                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RONALD LEE DEERE , AKA Running            No. 10-99013
Deer,
              Petitioner-Appellee,           D.C. No.
                                          2:92-cv-01684-
                v.                             CAS

VINCE CULLEN , Acting Warden,
            Respondent-Appellant.           OPINION


     Appeal from the United States District Court
         for the Central District of California
     Christina A. Snyder, District Judge, Presiding

               Argued and Submitted
    September 17, 2012—San Francisco, California

                     Filed June 3, 2013

   Before: Barry G. Silverman, William A. Fletcher,
      and Johnnie B. Rawlinson, Circuit Judges.

             Opinion by Judge Silverman;
             Dissent by Judge W. Fletcher
2                        DEERE V . CULLEN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel reversed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition, based on ineffective
assistance of counsel, affirmed the denial of the petition on all
other grounds, and remanded for the district court to deny the
petition.

    The panel reversed the district court’s order granting
habeas relief based on petitioner’s contention that counsel
provided ineffective assistance by failing to investigate
petitioner’s competence to plead guilty. The panel held that,
even assuming that petitioner’s counsel should have
requested a plenary competency hearing, petitioner was not
prejudiced because there was no reasonable probability that
he would have been found incompetent to plead guilty, given
reports by two mental health examiners, counsel’s own
observations of petitioner based on extensive interaction with
him, the observations of the prosecutor and judge, and
petitioner’s rational reasons for wanting to plead guilty.

    The panel affirmed the district court’s denial of
petitioner’s request for discovery and a hearing on the subject
of the trial judge’s mental competency at the re-sentencing
hearing (after the state supreme court remanded for a new
penalty phase hearing due to counsel’s failure to present
mitigating evidence). The panel observed that the state
supreme court’s failure to express any concern over the

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      DEERE V . CULLEN                       3

judge’s statements or behavior and its explicit commendation
on the way the judge handled the case, alone, compels the
conclusion that the judge was not impaired and that counsel
was not ineffective by failing to seek his disqualification.

     Judge W. Fletcher dissented. He would hold that the
district court should have granted an evidentiary hearing on
whether the trial judge was mentally competent when he re-
sentenced petitioner to death. He would also hold that the
district court should have granted an evidentiary hearing on
whether the counsel was ineffective in failing to challenge the
trial judge’s competence during re-sentencing. And he would
hold that counsel was ineffective in failing to investigate
petitioner’s competence to plead guilty during the original
proceedings.


                         COUNSEL

Lise S. Jacobson (argued), Deputy Attorney General for the
State of California, San Diego, California, for Respondent-
Appellant.

Michael Satris (argued), Bolinas, California; and Diana
Samuelson, San Francisco, California, for Petitioner-
Appellee.


                         OPINION

SILVERMAN, Circuit Judge:

   Ronald Deere threatened to kill everyone in Cindy
Gleason’s family if she were ever to break up with him. On
4                    DEERE V . CULLEN

March 4, 1982, Deere made good on his threat. Upset that
Cindy had left him, Deere shot and killed Cindy’s brother-in-
law, Don Davis, and Davis’s two young daughters, ages 7
and 2.

    Deere was arrested a few days later. After having been
appointed a lawyer, he expressed his desire to withdraw his
plea of not guilty and to plead guilty, even though he knew he
could face the death penalty. Before the plea was entered,
Deere’s lawyer arranged for him to be examined by two
mental health professionals – a physician with experience in
psychiatry, and a psychologist. Both examiners came to
remarkably similar conclusions. Both reported that Deere
was oriented as to time, place and person. Neither examiner
found Deere to suffer from a thought disorder.

    Deere told the psychologist, William Jones, Ph.D., that he
would prefer a death sentence to life imprisonment. He also
said that the death penalty would make him feel better and
help the people he hurt. He said that pleading guilty would
protect others who would be spared the ordeal of a trial and
that by pleading guilty he would protect his family from
further publicity.

   The physician, Tommy Bolger, M.D., a former staff
psychiatrist in the California prison system and elsewhere,
opined that Deere did not suffer from mental illness.
However, like Dr. Jones, Dr. Bolger diagnosed Deere with
severe personality and substance abuse disorders. Bolger
concluded that Deere understood the charges against him and
was capable of cooperating with counsel if he wanted to.

    Deere’s lawyer spent countless hours with his client
leading up to the change of plea. The lawyer attested that
                      DEERE V . CULLEN                        5

Deere was fully aware of the ramifications of his decision and
was legally competent to plead guilty. Following a change-
of-plea colloquy in which Deere indisputably was lucid,
engaged, and evidenced knowledge of his situation, the trial
judge accepted Deere’s guilty plea.

    In Deere’s present habeas case, he argues that his lawyer
was ineffective in 1982 for failing to request a full-blown
competency hearing. We hold today that even assuming for
the sake of argument that his lawyer should have requested a
plenary competency hearing – despite the reports of the two
mental health examiners, despite counsel’s own observations
of Deere based on his extensive interaction with him, despite
the observations of the prosecutor and the judge, despite
Deere’s rational reasons for wanting to plead guilty – Deere
nevertheless suffered no prejudice from the lack of a
competency hearing because there was no reasonable
probability that he would have been found incompetent to
plead guilty. As we said in Dennis v. Budge, 378 F.3d 880,
890 (9th Cir. 2004), “The question . . . is not whether mental
illness substantially affects a decision, but whether a mental
disease, disorder or defect substantially affects the prisoner’s
capacity to appreciate his options and make a rational
choice.” Id. (Emphasis in the original) There is literally no
contemporaneous evidence that Deere lacked the capacity to
understand his options and to make a rational decision to
accept responsibility for what he did. All of the evidence
supports the trial court’s findings that Deere’s guilty plea was
knowing, intelligent and competent. Those findings are
presumed correct and have not been rebutted by clear and
convincing evidence. See Evans v. Raines, 800 F.2d 884, 887
(9th Cir. 1986).
6                    DEERE V . CULLEN

    In 1986, after Deere’s case had been remanded by the
California Supreme Court for the presentation of mitigating
evidence and re-sentencing, Deere once again appeared
before Superior Court Judge Fred Metheny. At that time,
neither Deere’s own lawyer, nor the lawyer specially
appointed as a friend-of-the-court to present mitigation on
Deere’s behalf, nor the prosecutor, nor any reviewing court
expressed any concern whatsoever about Judge Metheny’s
mental competence. Five years later, in reviewing the
transcript of Judge Metheny’s statements at the 1986 re-
sentencing, the California Supreme Court said this about
Judge Metheny: “[T]he record indicates that the trial court
remained scrupulously fair and objective throughout the
proceedings. It carefully weighed and considered both the
aggravating and mitigating evidence after they were
presented.” People v. Deere, 808 P.2d 1181, 1195 (Cal.
1991) (in bank). The California Supreme Court affirmed
every one of Judge Metheny’s rulings. Despite this, Deere
now seeks discovery and an evidentiary hearing on his claim
that his lawyer was ineffective in 1986 for failing to move to
disqualify Judge Metheny due to the judge’s supposed
senility.

    We hold today that the district court did not abuse its
discretion in denying Deere’s request for discovery and a
hearing on the issue. First, Deere came forward with no
admissible evidence that the judge was mentally impaired in
1986. The most Deere offered were anecdotes recounted by
a grand total of three lawyers, anecdotes that are either
hearsay, or that do not shed light on Judge Metheny’s mental
status in 1986, or that reveal no more than eccentricity as
distinguished from dementia. Tellingly, although Deere’s
habeas counsel had access to a stable of mental health
professionals, counsel furnished nothing – zero – from any
                     DEERE V . CULLEN                        7

mental health professional opining that any of the stories
about Judge Metheny might be indicative of mental
impairment or even that they warrant further investigation.
Second, there is absolutely nothing to show that any of the
supposed incidents involving other lawyers were ever
communicated to Deere’s lawyer. Deere’s lawyer can hardly
be faulted for failing to act upon gossip that was never passed
along to him. Third, the California Supreme Court reviewed
Judge Metheny’s handling of the 1986 proceeding, affirmed
him in toto, and found that he was scrupulously fair and
objective throughout the proceeding, and that he carefully
weighed and considered the evidence. This appellate ruling
demonstrates two things: First, that Judge Metheny was not
impaired in 1986; and second, if the state supreme court had
no cause to question Judge Metheny’s mental status, neither
did Deere’s counsel.

I. Background

   Cindy Gleason was Deere’s former girlfriend and the
mother of his baby daughter. Don Davis was married to
Cindy’s sister Kathy. Kathy and Don had two daughters,
Michelle and Melissa.

    Cindy broke up with Deere around February 26, 1982.
Some time on or after March 1, Deere took a .22 caliber
single-action Ithaca rifle from the home of an acquaintance,
Marc Nelson.

    On March 2, 1982, Deere told Kathy that he was mad at
Don for implying that Kathy was involved with Deere. Deere
also told Kathy that he was going to do something that would
cause her to hate him. But Deere wouldn’t be around for her
to hate. Bruce Norton, a friend of Kathy’s, was present
8                     DEERE V . CULLEN

during the conversation. After Kathy left, Deere told Norton,
“I’m gonna leave town, but I’ve got something to do first.”
Deere added that he only thought he’d get a couple of years
in prison if he killed a couple of people. Norton testified that
Deere did not appear to be intoxicated at the time.

    Two days later, on March 4, 1982, Deere was seen around
town either drunk or in a daze. Deere telephoned Cindy
around 3:20 p.m. and said, “I’m not going to be responsible
for what I do today.” Deere then walked to the Davis trailer,
broke in and waited for Davis to return. Davis called Cindy
around 4:00 p.m. to say that someone had been in his trailer.
Cindy asked Davis to call her back and let her know if
anything was missing. Davis never called back. Later that
evening Cindy and Kathy found the bodies of Davis and the
two children in the Davis trailer. They had been shot with a
.22 caliber rifle.

    On March 9, 1982, five days after the murders, police
found Deere camping in the desert near Blythe, and arrested
him. Deere told the officers, “I was going to call out to you
but I was afraid I would be shot.” At Deere’s campsite,
police found Nelson’s .22 caliber rifle (later confirmed as the
murder weapon), .22 caliber bullets, a glass and some pictures
of Cindy taken from the Davis trailer and letters written by
Deere to his family. Davis’s pickup truck was found in a
ditch adjacent to where Deere was found.

    Riverside Police officers immediately requested that
Tommy Bolger, M.D., the consulting psychiatrist for
Riverside County, interview Deere at the jail. Dr. Bolger had
obtained a Doctor of Osteopathy degree in 1957. However,
he was allowed to use the “M.D.” designation pursuant to the
California Reunification Act of 1962. Cal. Bus. & Prof. Code
                          DEERE V . CULLEN                                 9

§ 2396 (1962); Cal. Bus. & Prof. Code § 2275 (2012). Dr.
Bolger had worked as a surgeon and medical doctor and
trained in psychiatry at Patton State Hospital from 1965
through 1970. In 1975, he was hired as Chief Medical
Officer at San Quentin. In September of the same year, he
transferred to Soledad State Prison, where he served as a staff
psychiatrist from 1977 through 1979. When he resigned from
Soledad, Dr. Bolger moved to Blythe, opened a
medical/psychiatric practice and consulted as a psychiatrist
for Riverside and San Bernardino Counties. Dr. Bolger died
in 1987.1

    On March 9, 1982, the day Deere was arrested, Dr. Bolger
interviewed Deere at the police station for a little over an
hour. The next day, Dr. Bolger wrote that Deere was
cooperative and competent. Deere had acknowledged that he
was aware that anything he told Dr. Bolger could be used
against him in court.

    Dr. Bolger obtained a complete history from Deere during
the interview. Deere told Dr. Bolger that he was being held
for three counts of murder. He said he had threatened to kill


  1
     In 1986, Bolger testified in this case that he was board-certified in
psychiatry and internal medicine. In 1987, he testified in a different case
that he was not board-certified in any speciality. It is possible, of course,
that Bolger intentionally lied in 1986. It is also possible that there was a
transcription error or some other explanation for a statement that is so
easily refuted. W hat is puzzling about this is the absence of any evidence
in the record that Bolger, in a career that spanned 30 years, ever
misrepresented his credentials in a job application, résumé, or testimony
on any other occasion. In March, 2007, 20 years after Bolger died, the
parties stipulated that Bolger was never board-certified, but the
explanation for his 1986 statement – a deliberate falsehood or something
else – remains a mystery.
10                    DEERE V . CULLEN

Cindy, his common-law-wife, if she left him. Deere and
Cindy had a six-month-old child. Cindy had another daughter
from a previous relationship. Deere stated that he knew Don,
Kathy, Michelle and Melissa “well” because Deere, Cindy,
their daughter and Cindy’s other daughter had lived with the
Davis family until Cindy left Deere. Kathy was divorcing
Don. Deere claimed that he loved Melissa and Michelle. The
girls were “real sweeties” who had played with his children.
Deere stated, “I don’t know why I did this. I hope that if I am
convicted that I will get the gas chamber.”

    Deere also told Dr. Bolger he had been in special
education classes, did poorly in school and had a history of
self-mutilation and alcohol and drug abuse. Deere stated that
he cut himself or broke things when he got “enraged.”

    Dr. Bolger opined that Deere “answers appropriately.”
He is “oriented as to place, time and date,” and is not
delusional. Dr. Bolger wrote that Deere is not mentally ill,
but has “a severe personality problem.” He “does understand
the nature and the charges against him” and “was certainly
capable of forming the intent and then carrying out the
action.” Finally, Dr. Bolger opined that Deere “is capable of
cooperating with counsel in his defense, if he feels it is to his
advantage.”

   Dr. Bolger diagnosed a “Dependent personality type, with
explosive features, Alcohol and drugs as factor” and an
“Antisocial personality type, with borderline features, not
psychotic.”

   On the same day Dr. Bolger provided his report to police,
Glenn S. Jones was appointed to defend Deere. Mr. Jones, a
Riverside County Public Defender, had been admitted to the
                      DEERE V . CULLEN                       11

bar in 1972. Before representing Deere, Mr. Jones had
practiced for 10 years as a criminal defense trial attorney,
with eight years as an assistant public defender. Mr. Jones
had represented defendants in “a couple of dozen” murder
cases, with one prior death penalty case.

    Deere initially pled not guilty. Mr. Jones testified in 1998
that he had repeatedly discussed the case with Deere “dozens
of times” for hours at a time. From 1982 through 1986,
Deere consistently told Mr. Jones that he intended to plead
guilty, waive a jury trial and request the death penalty. Mr.
Jones said that Deere consistently gave three reasons for
wanting to plead guilty, even if it meant the death penalty.
First, Deere was “concerned about his family and friends, his
relationships.” Deere “did not want anything done what
would in any way bring sadness or pain to” his family. He
“had done enough, and he wasn’t going to do anymore.”
Second, he wanted to show that he had dignity and morality.
Third, Deere wanted to take responsibility for his actions
because he had committed the crimes and believed in capital
punishment.

    Mr. Jones would later testify that at the outset of the
representation he would not consent to Deere pleading guilty.
But “over time,” Mr. Jones concluded that, although Deere
was not well-educated, he was “very intelligent” and “very
articulate.” As a result of their numerous conversations, Mr.
Jones had “absolutely no doubt that Deere was competent.”
Mr. Jones stated:

       [Deere’s] discussions with me were always
       vivid and intelligent, no indication that he did
       not know what we were doing, with the
       consequences of what we were doing. He
12                   DEERE V . CULLEN

       knew exactly what he was charged with and
       what the proceedings were all about. There
       were just no hallmarks of incompetency there
       at all.

Mr. Jones also testified in 1998 that there “was never a
question in [his] mind” that Deere was able to assist with his
defense:

       He had the ability. It was a very reasoned
       decision he made as to what he wanted to do,
       which was the reason why he acted the way
       he did or said what he said or did what he did.
       Not because he was acting under any delusion
       or hallucination or fantasy or any kind of
       psychiatric or psychological, you know,
       reason for his behavior.

Mr. Jones added that Deere cooperated with his defense by
listening to and discussing Mr. Jones’s suggestions, signing
releases, never refusing to talk to Mr. Jones, and not
interrupting discussions or walking out.

    Mr. Jones also stated that he “found no indication that
[Deere’s] desire to plead guilty and obtain the death penalty
had anything to do with a death wish or that there was any
suicidal impulse behind [Deere’s] desire to plead guilty.”
Rather, Deere pled guilty “out of a strong sense of justice he
had that he deserved the death penalty; it was a moral
statement of principle that I accepted.” “It was clear” to Mr.
Jones that Deere “understood every aspect of the
proceeding.” Mr. Jones added, “I have dealt with hundreds,
thousands of defendants, and [Deere] did not in any way,
shape, or form impress me as being incompetent.”
                      DEERE V . CULLEN                      13

    Deere eventually persuaded Mr. Jones that he wanted to
plead guilty, was competent to plead guilty and was prepared
to take responsibility for his actions.

    Mr. Jones testified in 1998 that he wanted to pursue
insanity and diminished capacity mental health defenses in
1982. He obtained funding for mental health experts,
intended to hire at least one psychologist and psychiatrist and
he hired a psychologist, William Jones, Ph.D. (no relation to
Mr. Jones), to evaluate Deere for mental health defenses. Mr.
Jones requested Dr. Jones to perform a general mental
examination of Deere, but not to assess him for competency.
His reason for this was two-fold: first, he did not doubt
Deere’s competency; and second, it was his practice to use
separate experts for competency questions and mental health
defenses.

    Mr. Jones and Deere had several discussions about
possible mental health defenses. But, Deere consistently
refused to “do anything inconsistent with his ultimate
choice,” to accept responsibility for what he had done. Deere
convinced Mr. Jones that “he would have no part in any kind
of mental defense.”

    On June 18, 1982, Deere moved to change his pleas to
guilty. Judge Fred Metheny presided over Deere’s case.
Because the Information did not specify the degrees of
murder, the parties agreed that the judge would decide the
degrees of murder and special circumstances if the guilty plea
were accepted. Judge Metheny advised Deere that he could
be facing the death penalty if he pled guilty. Deere assured
the judge that he had discussed his case with Mr. Jones. The
prosecutor then suggested that before the court entertain a
change of plea, it should appoint a psychiatrist to examine
14                   DEERE V . CULLEN

Deere for competence just to make sure that the plea was
“proper and just.” The prosecutor recommended Dr. Bolger,
who had “previously examined” Deere. Mr. Jones agreed to
Dr. Bolger’s appointment. Judge Metheny then appointed Dr.
Bolger to examine Deere.

    Dr. Bolger interviewed and tested Deere for an additional
hour and a half and provided his second written report dated
June 21, 1982. Dr. Bolger found Deere “extremely
cooperative and alert.” Deere’s mood was “stable . . . neither
being depressed nor unduly elated.” Deere denied delusions
and hallucinations. Dr. Bolger found “no evidence of
organicity.” Dr. Bolger also opined that Deere showed no
evidence of psychosis or abnormal thinking and was not
mentally ill.

    Dr. Bolger further opined that Deere was “able to carry
his ideas to goal.” He was “well aware of the charges” and
“implications of pleading guilty.” Deere had been “well
advised” and was “aware of and able to understand the
meaning of the waiver of the rights to a jury trial.” He was
“able to adequately assist his attorney in the preparation and
the presentation of his case.” Finally, Deere was aware of a
probability of a death sentence. But, he also knew that a
court would decide the sentence. Deere was motivated to
having “as short a trial as possible . . . since he indicate[d]
that either pleading guilty or not guilty would in all
probability result in the same decision.”

   At the same time Dr. Bolger was examining Deere, Mr.
Jones was pursuing a separate mental health defense
examination by Dr. Jones because, even if a guilty plea were
accepted, there would still be a trial to determine the degree
of murder. Mr. Jones testified in 1998 that, after hours of
                      DEERE V . CULLEN                      15

discussion with Deere, Deere agreed to meet with Dr. Jones.
On June 23, 1982, Dr. Jones examined and tested Deere for
one and a half hours.

    Two days later, on June 25, 1982, Deere advised the court
that he intended to plead guilty to the three counts of murder.
Judge Metheny found that Deere’s appearance, actions,
comments and conduct in court had established that Deere
understood the charges and was “ready, willing and able to
cooperate” with defense counsel. Dr. Bolger’s report, Judge
Metheny stated, had confirmed the judge’s observations that
Deere was competent. Mr. Jones agreed that Deere was
competent, stating:

       I have seen no evidence in Mr. Deere that
       would suggest that he’s in any way
       incompetent. I’ve reviewed with him the
       report of Dr. Bolger, and I’d be willing to
       stipulate at this time the Court may accept the
       report and base its rulings on the report.

The prosecutor “concur[ed] with Mr. Jones’ evaluation of Mr.
Deere’s mental state” and also stipulated that the court could
consider Dr. Bolger’s report that Deere was aware of the
charges, understood his waiver and was competent.

    The change of plea transcript establishes that Deere was
lucid, clearly understood the proceedings and consulted with
counsel when he wanted to. Judge Metheny extensively
questioned Deere about the rights Deere was waiving, and
Deere responded appropriately. When asked to explain his
understanding of the right to a jury trial, Deere said, “twelve
people, you know, find out if you’re guilty or not, on the
evidence they have.” When asked what the charges were,
16                   DEERE V . CULLEN

Deere responded, “[t]hree counts of murder.” Judge Metheny
then asked Deere, “what is your understanding of the nature
of that charge?” Deere conferred with Mr. Jones and
responded, “[i]ntentional killings with malice.” In response
to Judge Metheny’s question of what Deere had done to be
charged with murder, Deere stated:

       On March 4th, 1982, at about 4:00 p.m. I shot,
       with intent to kill and did kill Don Davis,
       Melissa, – I mean Michelle Davis, Melissa
       Davis. I used a .22 caliber rifle, and the
       shootings took place at the Davis’ home near
       Blythe, Riverside County, California. At the
       time of the shootings, none of the three
       victims did anything to provoke me in any
       way.

When asked what sentence he was facing, Deere responded,
“death or life in prison.” In response to the question
regarding what sentence he faced for using the rifle, Deere
conferred with counsel and responded, “anything less than
life, you know, would add two years to any other sentence.”
Finally, Judge Metheny asked Deere, “who do you believe
will decide what your sentence will be?” Deere responded,
“[t]he judge or the jury.”

    When the judge asked Mr. Jones about the possibility of
an insanity defense or mental states defense, Mr. Jones
responded:

       Your honor, I have spent a great deal of effort
       and time investigating the possibility of
       insanity defense or some other mentally
       related defense. It is my firm conclusion that
                     DEERE V . CULLEN                      17

       there is no such defense; and even if there
       were, Mr. Deere has advised me that he, under
       no circumstances, will enter a plea of guilty
       by reason of insanity.

           I find no evidence to support any defense
       that would reduce these charges to
       manslaughter.

    Mr. Jones then concurred in the plea and reaffirmed his
belief that Deere was competent to enter the plea:

       As to this particular case, Mr. Deere and I
       have spent literally hours discussing the case,
       debating the case, literally arguing about what
       is appropriate. I think it’s rather obvious that
       a man’s pleading guilty in a capital case is
       rare. And when I began this case, I didn’t
       even consider – it didn’t even enter my mind
       that I would consent to such a plea. And Mr.
       Deere has slowly but surely persuaded me that
       this is what he wishes to do, that he’s
       competent to do it, and he’s prepared to take
       the full responsibility for his actions. And I
       can find absolutely no basis, in my
       experience, training or the investigation of
       this case, which would suggest he should not
       be permitted to do exactly what he wants to
       do, knowing the consequences of his act.

Mr. Jones advised the court that Deere had given Mr. Jones
three reasons for pleading guilty. First, Deere wanted to take
responsibility for his actions and “maintain[] a small amount
of dignity as a human being.” Mr. Jones explained, “[h]e
18                       DEERE V . CULLEN

knows that doesn’t change what happened. He knows it
doesn’t change the agony and the hurt that he’s caused the
survivors, but it’s the one thing he can do to show that he can
take responsibility.” Second, Deere wanted to protect his
family and the victims’ family from a “highly publicized”
trial and “more agony.” Third, Deere knew he would be
found guilty, favored capital punishment and was willing to
face justice. Mr. Jones explained:

         Mr. Deere and I have debated the theory of
         capital punishment quite a bit. He is in favor
         of capital punishment, and I am not. He
         thinks that this case is an appropriate case for
         capital punishment, and he simply feels that
         justice should be done in this case, and he
         feels that pleading guilty and taking what
         results has justice; whatever happens, happens
         . . . He knows the result of a jury trial. He
         knows what would happen if the case went to
         jury trial, and he feels that the expense of a
         circus or charade of a trial is not right for him
         or for the community.

    Deere then pled guilty to three open counts of murder2
and admitted to using the gun. Judge Metheny found that the
guilty pleas were knowing, voluntary and supported by a
factual basis.

   Five days after the change of plea hearing, Deere again
met with Dr. Jones for the continuation of the examination
Mr. Jones requested in aid of proceedings yet to come to

 2
   The degrees of murder were left for the judge to decide in a subsequent
proceeding.
                     DEERE V . CULLEN                      19

determine the degree of murder and the penalty. Dr. Jones
met with and tested Deere for about the same length of time
that Dr. Bolger had met with and tested Deere. Dr. Jones’s
1982 findings, conclusions and diagnoses were amazingly
similar to Dr. Bolger’s. Dr. Jones opined in 1982 that “Deere
was oriented as to time, place, and person” and “aware of the
charges against him.” He was “generally cooperative.”
Deere had “no obvious thought disorders in his
communication.” His memory was “generally adequate.” He
denied hallucinations and delusions. Deere’s tests were
“within normal limits” and did not indicate visual motor or
neurological dysfunction. Dr. Jones also opined that Deere
cut himself to discharge anger, get attention and sympathy
and to manipulate others. Dr. Jones concluded that the self-
mutilation was “a very powerful attention-getting device.”

    Deere told Dr. Jones that he cooperated because defense
counsel “told him that lack of cooperation in a psychological
evaluation might jeopardize his conviction.” Deere “wished
to be found guilty and to accept whatever punishment the
court would impose.” Deere also told Dr. Jones that he was
“willing to accept” the death penalty and “indeed would
prefer it to life imprisonment.” Deere stated that a death
sentence would make him feel better, “help the people he has
hurt,” protect others from participating in trial, protect his
family and keep the matter out of the newspapers. Pleading
guilty, Dr. Jones opined, was “a further extension of
[Deere’s] very strong masochistic tendencies.”

   Dr. Jones diagnosed Deere with adjustment disorder with
depressed mood; mixed substance abuse disorder, including
abuse of alcohol, marijuana, stimulants, amphetamines; and
borderline personality disorder with anti-social aspects. In
other words, Dr. Jones and Dr. Bolger basically came to the
20                   DEERE V . CULLEN

same conclusions. Mr. Jones would later testify that none of
the reports, including the reports from Dr. Bolger, Dr. Jones
and the two private investigators that Mr. Jones hired, gave
Mr. Jones any information that would have caused him to
question Deere’s competence.

    On July 23, 1982, the parties returned to court for Judge
Metheny to determine the degrees of the three murders. Mr.
Jones testified in 1998 that he and Deere had vigorously
discussed the issue. Mr. Jones wanted to go for a second
degree murder finding. Like all their conversations, it was
“give and take:”

       He always knew what he wanted, and he was
       going to get what he wanted to get. And we
       dealt with each other very civilly on all the
       vigorous points, so it wasn’t simply him being
       absolutely uncooperative with me at some
       point or not. There were always discussions,
       and eventually when we would do something
       his way, it was because: “Okay, Ronnie,
       we’ve discussed this, and its obviously what
       you want to do, and I can’t see a reason at this
       point in doing something different.”

Mr. Jones testified that, even though Deere didn’t like his
position regarding second degree murder, Deere agreed to let
Mr. Jones argue that the crimes were second, not first, degree
murder.

    The parties stipulated that Judge Metheny could consider
the preliminary hearing testimony to determine the degrees of
murder. Again, Deere was alert and engaged. At the
prosecutor’s request, Judge Metheny again advised Deere that
                        DEERE V . CULLEN                            21

a first degree murder finding would require a penalty phase
and could result in a death sentence. Deere responded
appropriately to the judge’s questions and waived his rights.

     When Judge Metheny expressed concern that the
preliminary hearing testimony might not establish Deere’s
state of mind at the time of the crimes, Mr. Jones responded
that Deere had given specific instructions not to offer
evidence regarding the degrees of murder and asked to
continue the discussion in chambers. In chambers, Judge
Metheny unsuccessfully tried to convince Deere to allow
mental health expert testimony. Judge Metheny explained to
Deere that state of mind evidence would help establish first
or second degree murder. He suggested that Deere allow Dr.
Bolger to testify. Deere responded that he didn’t “agree upon
all the doctors.” The judge advised Deere that he would not
have to testify, but asked Deere to agree to let the doctors
testify.

    However, at the next hearing, Mr. Jones advised the court
that he would not be offering Dr. Bolger’s testimony because
Deere objected to having private family matters discussed in
court. Deere confirmed that he agreed with defense counsel.3


 3
       MR JONES: Your Honor, at this time we will not offer
       any evidence on the issue of degree. I’ve discussed the
       matter with Mr. Deere, and it is his specific instructions
       that we not call Dr. Bolger. His reasons are personal.
       He knows that Dr. Bolger would be revealing
       conversations he’s had with him, which he feels are
       private. And Dr. Bolger will be discussing family
       matters, Ronnie’s childhood and his brothers and sisters
       and that sort of thing, and he’s instructed me we are not
       to call Dr. Bolger as a witness; and so at this time we
       would not offer any evidence.
22                    DEERE V . CULLEN

The prosecutor declined to present additional evidence and
reaffirmed that he believed that Deere was competent,
making rational decisions and acting appropriately. Judge
Metheny agreed with the prosecutor’s assessment, and again
found that Deere was competent and rational.

    The prosecutor argued for first degree murder because the
evidence showed that Deere planned the murder for days and
then carried out his plan. Deere shot the girls, he argued,
because they were witnesses. Mr. Jones argued for second
degree murder, citing evidence that Deere was suffering
emotional turmoil and intoxicated. In addition, Mr. Jones
argued that the children did not live at the trailer, and there
was no way Deere could know the girls would be with their
father that afternoon. Thus, premeditation as to them was
lacking.

    Judge Metheny then found that the killing of the two
children was second degree murder, but that the killing of
Don Davis was first degree murder. In a nuanced ruling, the
judge reasoned that Deere clearly planned and intended to kill
the father, but had not anticipated that the children would be
present. Because the evidence regarding the children could
be reasonably interpreted as either first or second degree
murder, Judge Metheny found Deere guilty of the second
degree murder of the children.

    Judge Metheny also found that the multiple murder
allegation was true: Deere committed multiple first and


       THE COURT: I take it that’s what you want to do, Mr.
       Deere; is that right?

       THE DEFENDANT: Yes.
                     DEERE V . CULLEN                      23

second degree murders. This finding made Deere eligible for
the death penalty.

    At the penalty phase hearing, Deere attempted to waive
his right to a jury trial. But the prosecutor refused to waive
the state’s right. Deere indicated his intention to absent
himself. Mr. Jones explained to the court:

       You know, he wants a death verdict. He said
       that over and over again. And any procedure
       that may impede that he just doesn’t want to
       have any part of, and he sees a jury trial on the
       penalty phase as possibly resulting in a verdict
       other than a death penalty. So that’s his line
       of thinking. It’s very rational, and I don’t see
       any possible basis for concluding that he’s not
       competent. His lack of cooperation doesn’t
       stem from any mental disability. It stems
       from his very logical decision about what he
       wants as a result.

Ultimately, the parties agreed to waive a penalty jury. The
judge again found Deere competent:

       I think you’re competent to make that
       decision. I’ve listened to that decision for a
       number of times now, and I haven’t the
       slightest doubt that you have the ability and
       the right to make that decision.

   At the continued penalty hearing, Deere reaffirmed that
he wanted to waive his right to a jury trial at the penalty
phase and understood the rights he was waiving. After Mr.
24                   DEERE V . CULLEN

Jones and the prosecutor concurred in the waiver, Judge
Metheny found Deere’s waiver to be knowing and voluntary.

    At Deere’s request, Mr. Jones did not present mitigation
evidence. Instead, the parties stipulated that Judge Metheny
could consider the evidence already admitted at the degree of
murder hearing. Judge Metheny made sure that Deere
concurred and understood that he was waiving his right to
confront witnesses and found Deere’s waiver to be knowing
and voluntary.

     Deere expressed remorse for the crimes and said that he
deserved to die. Mr. Jones then commented that Deere’s
actions were “unprecedented.”               But, Deere had
communicated his feelings “steadfastly since practically the
first day.” Deere had “slowly but surely swayed” Mr. Jones
to permit him to plead guilty, admit the special
circumstances, waive jury trials for the guilt and penalty
phases and decline to present mitigating evidence. Mr. Jones
and Deere had “argued quite vociferously about what to do in
this case.” But Deere stated that he didn’t want to cheapen
his relationships. He did not deserve mercy and would lose
his “last vestige of dignity” if he begged for mercy. The only
thing Deere could do to show the victims’ family that he was
sorry was to accept full responsibility for his actions.

    Mr. Jones advised the court that each decision was made
“in close consultation with” Deere, who knew “the
consequences of every decision he’s made, as well as the
consequences of his criminal acts.” Mr. Jones added that
Deere’s “decisions are not suicidal, crazy decisions. They are
rational, intelligent decisions by a man who realizes what he
has done and says, ‘This is the only position I can take to
show you that I am still a man and not an animal.’”
                     DEERE V . CULLEN                      25

     Judge Metheny then sentenced Deere to 15 years to life
for the murder of each of the children and to death for the
first degree murder of their father.

    On December 31, 1985, the California Supreme Court
affirmed the convictions and special circumstance finding,
but reversed the death sentence. People v. Deere, 710 P.2d
925, 926 (Cal. 1985).

     Different counsel appointed for Deere by the state
supreme court for the automatic direct appeal argued that the
trial court should have conducted a sua sponte competency
hearing because preliminary hearing testimony showed that
“shortly before the murders” Deere asked Kathy Davis to kill
him, had exhibited suicidal tendencies and had cut himself
with a razor blade in the past and “was frequently
intoxicated.” Deere claimed that his guilty plea and waiver
of a jury trial amounted to a suicide attempt. Id. at 927. The
California Supreme Court rejected the claim, holding that the
record did not show “substantial evidence” of mental
incompetence. Id. at 928. Rather, the trial court and defense
counsel believed Deere to be competent. The trial court had
appointed the mental health expert, Dr. Bolger, “‘to be
certain’ of defendant’s ability to stand trial and cooperate
with counsel,” even though there was no evidence of
incompetence before the court. Id. at 927–28. The mental
health expert found Deere mentally competent to plead guilty.
The expert opined that Deere “displayed no evidence of
psychosis, abnormal thinking or mental illness” and was
aware of the charges and the consequences of waiving a jury
trial. Id. at 927.

   The California Supreme Court also held that neither the
decision to plead guilty nor the waiver of a jury trial
26                     DEERE V . CULLEN

established incompetence, reasoning that Deere gave rational
reasons for pleading guilty and avoiding a jury trial. Id. at
927–28. He “felt great remorse for his offenses and was
prepared to suffer the consequences of a judgment of death.”
Id. at 927. He also didn’t want a long drawn-out jury trial.
He didn’t want “to waste his time listening to trial counsel
‘yak’ about which prospective jurors were opposed to the
death penalty and which were not.” Id. at 928.

    Although the California Supreme Court affirmed the
convictions and life sentences, it reversed the death sentence,
holding that counsel’s honest, but mistaken, belief that he
should not present mitigating evidence because of his client’s
wish to present no evidence nevertheless denied Deere
effective assistance of counsel. Id. at 931–34. The case was
remanded for a new penalty phase trial.

   In 1986, Judge Metheny convened the penalty phase trial.
Again, Deere was lucid and understood the proceedings.
Deere consistently reaffirmed his jury trial waiver and
opposition to mitigating evidence.4

 4
       T H E CO U RT : I assum e, M r. D eere, that you are
       willing and want to have Mr. Jones represent you –

       THE DEFENDANT: Yes.

       THE COURT: – from here on out again?

       THE DEFENDANT: Yes.

       THE COURT: And do you understand what I told you
       about the Supreme Court’s ruling to the effect that we
       have to continue with the trial?

       THE DEFENDANT: Yes, I have read the report. I
                 DEERE V . CULLEN                             27



have one, too. I read it all.

THE COURT: I don’t really believe we’re ready to go
to trial today; do you, gentlemen?

MR. JONES: No, that’s correct, Your Honor. . . I’ve
discussed with Mr. Deere his desires, in terms of
whether he wants a jury trial or a court trial. He clearly
advised me he does not want a jury trial. His previous
waiver of jury is still his desire.

THE COURT: Of course, you understand you have the
right to have a jury trial, if you wish to have it.

THE DEFENDANT: Yes.

***

THE COURT: . . [The trial] will be limited to the
mitigating and aggravating circumstances. You know
what that means. I’m sure of that.

THE DEFENDANT: Yes.

THE COURT: And you have a right – and your
attorney, Mr. Jones, will get this set up – you will have
a right to put on the individuals who will testify for you
as to mitigating circumstances. I will be the judge and
the finder of fact on this particular question and issue as
to whether the mitigating circumstances outweigh the
aggravating circumstances.

    That puts us in a position where the court has the
responsibility to determine whether or not the sentence
would be life imprisonment or whether it would be the
death penalty, or there’s a possibility that there could be
some other conclusion.

THE DEFENDANT: Yes.
28                  DEERE V . CULLEN



Judge Metheny found Deere competent and the waiver
knowing:

           THE COURT: Very well. . . . The court
       does find at this time that Mr. Deere – as he
       did the last time – completely understands
       what we’ve discussed. I’ve never had any
       doubt about his intelligence and ability to
       understand. I think he’s made his decision
       fairly based on the facts we’ve discussed this
       morning.

At the continued hearing, Mr. Jones added:

       I have discussed in detail with Mr. Deere his
       desires and he’s made them very clear to me.
       He does not change his position in any matter.
       He previously waived jury trial and continues
       to waive jury trial. He wants nothing to do
       with the jury trial. And I believe he’s
       satisfied with the way I’ve handled the case.
       He’s certainly indicated nothing to me that
       he’s dissatisfied in any way, shape, or form
       with my performance.



       THE COURT: Do you understand that?

       THE DEFENDANT: Yes.

       THE COURT: Do you have any questions?

       THE DEFENDANT: No.
                      DEERE V . CULLEN                       29

Judge Metheny then directly addressed Deere to make sure
that Deere understood and continued to waive his right to a
jury trial:

           THE COURT: You know originally we
       went through this before in great detail that
       you had a right to the jury and you had a right
       to have the jury decide if you were found
       guilty of first degree murder. Then the jury
       would decide according to the aggravating
       and mitigating circumstances. You did waive
       that. The last time you were in here, just a
       few weeks ago I asked you again. I don’t
       mean to be facetious about this. I just want to
       have this done fairly. And I can assure you,
       and I want the record to reflect this, that I
       haven’t made up my mind yet at all.

           I’m going to have to listen to the evidence.
       I can assure you I’m going to be fair. If I felt
       otherwise, I would not go any further with this
       case.

          I’m asking you right now, Mr. Deere, if
       you want us to pick a jury and go back to the
       aggravating and mitigating circumstances?

          THE DEFENDANT: No. I’m satisfied the
       way it is right now. I don’t want a jury.

    The prosecution offered only the aggravation evidence
presented in the first trial. Despite the fact that the case had
been remanded due to ineffective assistance of counsel for
Mr. Jones’s failure to set forth mitigating evidence, Mr. Jones
30                   DEERE V . CULLEN

again refused to put on any mitigation. Mr. Jones said, “[a]s
I indicated during the first trial from day one Ronnie Deere
has told me exactly how he wants this case to be handled.
He’s never changed once.” Mr. Jones also re-affirmed that
Deere was competent and rational:

       He has convinced me that he knows what he’s
       doing. He’s not crazy. He’s not incompetent.
       He’s not insane. He knows exactly what he’s
       doing. He knows what he did to be convicted
       of these crimes and he knows – or he believes
       in his heart that justice should be done.

Mr. Jones repeated that Deere did not want a trial or
evidence:

       He does not want any evidence presented on
       his behalf because in his heart that is his
       private life and to bring that evidence into
       court would violate his relationships with
       everybody he holds dear and respects in the
       world. And to him, those relationships are
       more important than anything else, including
       his life.

    Although the judge threatened Mr. Jones with contempt
if he didn’t present mitigation, Mr. Jones reaffirmed that
contempt would not change his mind. Mr. Jones again
explained that Deere had “slowly but surely convinced” him
not to present evidence. He believed Deere had “made his
decisions consciously, temperately, and not in the heat of
passion, but based on his true and sincere and honest beliefs
about what is right for him.” After Mr. Jones again refused
to admit mitigating evidence, Judge Metheny found the
                         DEERE V . CULLEN                             31

Riverside Public Defender’s Office and Mr. Jones in
contempt and reinstated the death penalty.

    Less than a month later, Judge Metheny stayed that order
and appointed an attorney, Jonathan Landau, as a friend of the
court, and an investigator, Richard Welby, to investigate and
present mitigating evidence to the court. In addition, the
California Supreme Court struck the “stayed” death sentence
as “having been entered through inadvertence.”5 After the
state supreme court vacated the death penalty order, Judge
Metheny vacated the contempt order.

     At the continued hearing, now with Mr. Landau present
as an amicus, Deere reaffirmed his jury waiver. Mr. Landau
discussed the mitigation evidence from the preliminary
hearing transcripts, and then presented six mitigation
witnesses, including Dr. Bolger. Dr. Bolger opined that
Deere suffered from diminished capacity at the time of the
murders because he was under the influence of alcohol or
drugs, stressed and traumatized. Dr. Bolger testified that,
although Deere had a hard time expressing his remorse, he
was “extremely remorseful over the death of the two
children” and “the influence that this whole thing would have
upon his daughter.” Dr. Bolger also believed that Deere



  5
    A “Commitment Judgment of Death” was filed by the Clerk of Court
on April 22, 1986. On May 14, 1986, Judge Metheny stayed the sentence
to obtain mitigating evidence and scheduled a penalty hearing for June 27,
1986. In a May 19, 1986 minute order, Judge Metheny appointed Richard
W elby, a licensed private investigator, to investigate for mitigating
evidence. Citing the May 19 order, the California Supreme Court
subsequently concluded that the April 22 judgment was “through
inadvertence, prematurely filed.” It ordered the judgment stricken and
returned the case to the trial court.
32                    DEERE V . CULLEN

could be of benefit to himself and society if spared the death
penalty and imprisoned for life instead.

    Investigator Welby testified about his investigation,
adding that he had found that Deere cared about his mother
and father and never forgot a birthday or holiday. A neighbor
testified that Deere had helped her with yard work. Deere’s
sister testified that Deere was upset at the time of the murders
because of his deteriorating relationship with Cindy. Deere
loved his daughter, had been a protective brother and had
never been violent. Deere’s mother testified that she loved
her son and wanted him to live. Finally, Mr. Landau
introduced a piece of Deere’s art to show the work he could
accomplish in prison.

    After Mr. Landau argued that life in prison would be
more punishment than a death sentence, Deere asked to
respond. This is what he said:

       THE DEFENDANT: I’d like to make a
       statement due to his saying about my being in
       prison for life.      That that would be
       punishment, you know.

       THE COURT: A punishment to you?

       THE DEFENDANT: I understand what he’s
       saying. I don’t think he really knows much
       about prison life. He’s going by hearsay. I’m
       going to state something that I’m pretty sure
       that if they want to check it out they can check
       it out with the guards.
              DEERE V . CULLEN                       33

    Being in prison for all your life for the rest
of your life – don’t think I do without the
luxuries on the streets. I drink every Friday
night, every Saturday night. I smoke my
weed everyday. You tell me how being in
prison the rest of my life is really a
punishment. I see my old lady every week. If
I get married then I get contact visits. So he
doesn’t really know what punishment is. I go
to the yard seven days a week. I sit there if I
got a hangover, then I’ll go out.

    How can he say – he’s never been there.
He doesn’t know what he’s talking about.
How does that benefit society? I committed a
crime punishable by death. I’m not looking at
as an eye for an eye. I didn’t write the law.
The law stated I committed a crime
punishable by death. Not sitting there for the
rest of my life which costs taxpayers a lot of
money.

     I’m sitting in there doing what I did out
here. I smoke weed everyday. You can ask
any guards there. They will verify that.
Whatever is out there is in here. I make
money off my artwork. I make thousands of
dollars off my artwork. It doesn’t hurt me a
bit to pay the money for drugs or drinking. I
live comfortable.

    If they think that’s punishment, then you
go ahead and make your decision from that. I
can live a life like that. The rest of my life.
34                    DEERE V . CULLEN

   When Judge Metheny responded that he had to “make a
decision based upon the evidence,” Deere added:

       I believe in justice. I believe Kathy has a
       right to justice. I don’t look at this as an eye
       for an eye. I don’t think two wrongs make a
       right. I look at it as the law stated. I
       committed a crime punishable by death. I
       should have been punished a long time ago by
       that law.

   Mr. Jones then argued for a life sentence because of the
absence of aggravating circumstances and the stress Deere
was under at the time of the offenses. Judge Metheny
weighed all of the mitigating and aggravating evidence and
again sentenced Deere to death.

     On May 2, 1991, the California Supreme Court affirmed
the convictions and death sentence. Deere, 808 P.2d at 1195.
Different appellate counsel, again appointed by the state
supreme court for the automatic direct appeal, argued that
counsel was ineffective for failing to investigate competence
in light of the fact that Deere was despondent, had cut himself
and was suicidal. Id. at 1186. The California Supreme Court
rejected the ineffective assistance claim, reaffirming its prior
holding that Deere’s history of cutting of himself with razor
blades when his girlfriend threatened to leave and asking
Kathy Davis to kill him two days before the murders did not
establish that he was incompetent to plead guilty or stand
trial. Id. The court said:

       [N]othing at the penalty retrial suggested
       that the state of defendant’s mental
       competence had changed for the worse.
                      DEERE V . CULLEN                      35

       Indeed, the trial court inquired of defendant
       directly on several occasions whether he
       wished to waive his right to a jury trial. In
       each instance, defendant responded clearly
       and unequivocally that he did. The trial court
       also observed for the record that defendant
       appeared to be rational and intelligent.

Id.

    The California Supreme Court also affirmed the death
sentence, holding that Judge Metheny “proceeded with a
careful and detailed analysis of the evidence relevant to the
penalty determination, with specific reference to the statutory
mitigating and aggravating factors.” Id. at 1190. After listing
all of the evidence considered by Judge Metheny, the
California Supreme Court held that “the record leaves no
doubt that the court’s sentencing decision was guided by clear
and proper standards.” Id.

    Deere filed his first petition for writ of habeas corpus in
federal court on May 18, 1993, and amended the petition on
July 11, 1994, claiming, among other things, that he was
incompetent to plead guilty and that Mr. Jones rendered
ineffective assistance of counsel in failing to establish his
incompetence. In support of these allegations, Deere’s
habeas counsel furnished a new report from Dr. Jones and the
report of Frank Rosenthal, Ph.D., M.D., a psychiatrist. In a
December 1, 1993 affidavit, signed 11 years after the
convictions, Dr. Jones opined that:

       Mr. Deere was competent in the limited sense
       of knowing what was going on around him, so
       that he understood the nature of the criminal
36                   DEERE V . CULLEN

       proceedings; however, Mr. Deere’s mental
       disorders rendered him unable to assist
       counsel in the conduct of a defense in a
       rational manner. Mr. Deere’s initial refusal to
       cooperate with my evaluation of him and his
       eventual failure to complete the testing were
       themselves indicators of his inability to
       rationally cooperate in the presentation of a
       defense. Mr. Deere simply was not able to
       make logical judgments about his defense,
       rather, he had a compulsion to be punished
       with the death penalty and did not want
       anyone to interfere with that. Mr. Deere’s
       insistence on pleading guilty was part of that
       compulsion and an outgrowth of his mental
       disturbances, it was irrational. It did not
       appear to me that Mr. Deere was capable of
       making a knowing, voluntary, intelligent
       decision to so plead.

       ***

       In sum, it appeared to me that Mr. Deere was
       so bent on self-destruction that it disabled him
       from cooperating in a meaningful way with
       the presentation of a defense and caused him
       to solicit the death penalty.

Deere v. Woodford, 339 F.3d 1084, 1085 (9th Cir. 2003)
(Deere I). Dr. Jones later testified at his deposition that
Deere’s desire to accept responsibility for his crimes “was
probably substantially based on the self-destructive aspect of
his personality.”
                         DEERE V . CULLEN                             37

    Hired by habeas counsel, Dr. Rosenthal came on the
scene in 1992 and examined and tested Deere 10 years after
the conviction. Dr. Rosenthal agreed with Dr. Jones that
Deere could not “rationally” assist in his defense in 1982
because of his “compulsion to be punished with the death
penalty” and self-destructive personality.6

    The district court (Judge Gary Taylor) denied Deere’s
habeas petition, and did so without holding an evidentiary
hearing. The court held that the state trial court’s finding that
Deere was competent was presumed correct and was
supported by the record. The court reasoned that the
attorneys, mental health experts and trial judge all found
Deere competent; Dr. Bolger’s 1982 conclusions were
consistent with the 1982 report of Dr. Jones; the crimes did
not show incompetence; and Deere’s behavior in 1982 and
1986 did not provide any evidence of incompetence. Judge
Taylor concluded that there was no evidence before the trial
court to require a competence hearing.

    The district court held that the newly-obtained mental
health opinions, made 10 years after trial, could be
considered, but that those opinions did not compel the
rejection of the finding of Deere’s competence. Both Drs.
Jones and Rosenthal based their opinions on what they
deemed to be Deere’s unreasonable decision not to put on a
defense. However, they agreed that Deere was competent in
the sense that he understood the nature of the proceedings.
The fact that Deere desired an outcome that the doctors


 6
   Dr. Rosenthal did not testify about this 1993 report at the evidentiary
hearing before Judge Snyder because he could not remember it. Dr.
Rosenthal also testified that he could not “answer the question of whether
Mr. Deere was competent.”
38                        DEERE V . CULLEN

believed to be irrational, Judge Taylor reasoned, did not make
Deere incompetent to plead guilty.

    In his habeas petition, Deere also claimed that he was
denied due process because, he said, Judge Metheny was
himself not mentally competent in 1986. Deere sought
discovery and an evidentiary hearing on this point. The
district court denied this claim, reasoning that the record as a
whole did not show any evidence that Judge Metheny was
incompetent, and none of the attorneys, not Mr. Jones, not
Mr. Landau, not the prosecutor, who were in the best position
to assess competence, ever moved to recuse the judge.
Although Judge Metheny may have made an initial misstep
when confronted with Mr. Jones’s refusal to present
mitigation after the case had been remanded for exactly that
purpose, any error was understandable given the novel nature
of the circumstances.          This did not show mental
incompetence.7


  7
    The district court also rejected a sufficiency of the evidence claim for
the first degree murder conviction and related ineffective assistance of
counsel claim because Deere:

         walked a great distance with the murder weapon, broke
         into the house to wait for Donald Davis to return, had
         considered the consequences for the homicide on a
         prior occasion, had threatened to kill the whole family,
         and had told others that he was going to do
         something. . . .

     Similarly, the district court held that counsel was not ineffective for
not presenting mental state evidence because Deere was competent,
adamantly opposed the evidence, refused to consider a plea of guilty by
reason of insanity or mental health defenses and insisted on pleading
guilty and seeking the death penalty against defense counsel’s advice. As
Mr. Jones advised the court, he had an ethical duty to follow Deere’s
                        DEERE V . CULLEN                      39

    The district court denied the habeas petition in its entirety
and Deere appealed. In 2003, the first time this case was
before us, we remanded it for an evidentiary hearing on the
question of Deere’s competency to plead guilty and the
claims premised on that issue. We wrote that:

          [W]e agree with Deere that he came forward
          with sufficient evidence at least to trigger a
          hearing on whether he was, in fact, competent
          to have pleaded guilty. We do not quarrel with
          the district court’s statement that Dr.
          Rosenthal’s “conclusions cannot be awarded
          as much weight as that given to Dr. Jones’
          examination which occurred around the time
          of the trial.” Belated opinions of mental health
          experts are of dubious probative value and
          therefore, disfavored. See Williams, 306 F.3d
          at 706. (“[W]e disfavor retrospective
          determinations of incompetence, and give
          considerable weight to the lack of
          contemporaneous evidence of a petitioner’s
          incompetence to stand trial.”) (citation
          omitted).

              Dr. Jones’s declaration, however, stands
          on different footing. It is based on his two
          examinations of Deere, which he performed in
          1982, within several days of when Deere
          pleaded guilty. It is, therefore, probative of
          Deere’s mental status at the critical time. Dr.
          Jones also offered a reasonable explanation
          for why he did not render an opinion on


wishes.
40                  DEERE V . CULLEN

       Deere’s competency right then and there: He
       was told by Lawyer Jones not to. Viewed
       together, the declarations of Drs. Jones and
       Rosenthal “create a real and substantial
       doubt” as to Deere’s competency to plead
       guilty, if they are taken at face value and
       assumed to be true.

           We express no opinion on how the district
       court should weigh the evidence after hearing
       it. We simply hold that a hearing was
       required. We remand to the district court with
       directions to hold a hearing on Deere's claim
       that he was incompetent to plead guilty, and
       to reconsider the petition for writ of habeas
       corpus as to the claims premised on that
       contention. This court will rule on the other
       issues raised in petitioner’s appeal if and
       when the case is re-appealed.

Deere, 339 F.3d at 1086–87.

   Judge Snyder took over the case from Judge Taylor and
conducted an evidentiary hearing in 2007. Deere v. Cullen,
713 F. Supp. 2d 1011, 1015 (C.D. Cal. 2010).

    At the evidentiary hearing, Dr. Jones testified that he
examined and tested Deere for a total of two hours in 1982.
His 1982 diagnosis of borderline personality disorder was
supported by Deere’s self-mutilation and suicidal behavior.
That same self-destructive behavior motivated Deere to seek
the death penalty and waive presentation of mitigating
evidence. Dr. Jones opined that Deere “[knew] what was
going on around him so that he understood the nature of the
                     DEERE V . CULLEN                      41

criminal proceedings” in 1982. But, Dr. Jones opined, Deere
was “unable to assist counsel in the conduct of a defense in a
rational manner” in 1982. In other words, Deere was
“strongly motivated” to seek the death penalty by his self-
destructive needs.

    Dr. Jones testified he “had reservations about” Deere’s
competence in 1982 because of Deere’s “self-destructive
behavior.” But, Dr. Jones did not “arrive at . . . an opinion
with respect to Deere’s competency” in 1982. Dr. Jones
testified that he advised Mr. Jones in 1982 that Deere’s
decision to plead guilty was a continuation of his impulsive
lifestyle. However, Dr. Jones stated in his deposition that he
could not remember if he advised Mr. Jones in 1982 that
Deere might not be competent.

    Armando Favazza, M.D., testified that habeas counsel
hired him in 2004, 22 years after the guilty plea, to assess
Deere based on the records. Dr. Favazza never met with or
tested Deere, but nevertheless opined at the evidentiary
hearing that he would not have diagnosed the borderline
personality disorder (the diagnosis made by both Dr. Bolger
and Dr. Jones). Instead, he would have diagnosed mild to
severe depression. Alcohol abuse, he opined, makes it
difficult to diagnose personality disorders. According to Dr.
Favazza, Deere had “a pathological fixed idea that he must be
killed.”     This “fixed idea” “prevented [Deere] from
cooperating with his counsel.” Dr. Favazza admitted, though,
that the Diagnostic and Statistical Manual IV, commonly
known as the DSM IV, does not recognize a mental illness of
“fixed” or “pathological” death wish.

   Dr. Rosenthal testified that he had been hired to evaluate
Dr. Bolger’s qualifications and procedures. Based on Dr.
42                        DEERE V . CULLEN

Bolger’s two reports, his 1986 testimony and a 1986
deposition, Dr. Rosenthal testified he didn’t think Dr. Bolger
had formally trained or was otherwise well-trained in
psychiatry. Dr. Rosenthal stated, “[Dr. Bolger] did claim to
be board certified in one of his transcripts which I find very
troubling because the letter in the files that I was provided
from the board, the American Board of Psychiatry indicating
that Dr. Bolger had never been certified by that board.”8
Therefore, he did not believe that Dr. Bolger’s report could be
reliable.

    Dr. Pablo Stewart, a psychiatrist who had never met or
tested Deere, was hired by habeas counsel in 2006, 24 years
after Deere pled guilty. He opined that Deere suffered from
post-traumatic stress disorder (PTSD) and possibly organic
brain syndrome. Dr. Stewart acknowledged that the same
symptoms used to diagnose PTSD can establish a borderline
personality disorder. It was unclear, Dr. Stewart testified,
whether Deere had a major depressive disorder. Dr. Stewart
opined that Deere’s plea was “colored by” his “psychiatric
condition.” In other words, Deere’s mental health “inhibited”
his ability to think rationally.

    The state’s expert, Park Dietz, M.D., Ph.D., did not meet
with or examine Deere, but not because he didn’t try. The
parties stipulated, and Judge Snyder ordered, that Dr. Dietz
would examine Deere at the prison, but Deere refused to
cooperate. Dr. Dietz has been a board-certified psychiatrist
since 1979. He specializes in forensic psychiatry. Dr. Dietz
agreed with both Drs. Jones and Bolger that Deere had
borderline and anti-social personality disorders. The
borderline personality disorder diagnosis was supported by

 8
     See Note 1, supra.
                     DEERE V . CULLEN                     43

Deere’s history of cutting himself; pattern of unstable
personal relationship; marked impulsivity; frantic efforts to
avoid real or imagined abandonment; unstable self-image;
substance abuse; self-mutilation; emotional instability and
inappropriate, intense anger. The anti-social personality
disorder was similarly supported by the record. Anti-social
personality disorder, which previously would have labeled
Deere a sociopath, is not a psychotic state.

    Dr. Dietz concluded that the 1982 and 1986 observations
of Dr. Jones, defense counsel and Dr. Bolger established that
Deere was competent to plead guilty in 1982. Specifically,
Dr. Dietz opined:

       [Deere’s] decisions were not made once,
       without thinking, in an impulsive manner.
       They were repeatedly and consistently made
       over a period of time where he heard
       alternative view points, was educated about
       his options, had someone making an effort to
       persuade him to take a different course of
       action, and during which Mr. Deere himself
       articulated his reasons for acting as he was
       wishing. And articulated his personal values
       and beliefs that were the basis for his
       decision. That’s not impulsivity and that’s
       not even the way borderline personalities
       make their decision when they’re being
       symptomatic.

   Dr. Dietz stated that the “idea of execution or death is
undesirable” to most people. But he added:
44                   DEERE V . CULLEN

       In Mr. Deere’s case, he indicated that he had
       other values and goals that in his eyes made it
       self-serving for him to seek and even desire
       that he be executed. And those included his
       expressed desire to demonstrate his humanity,
       his expressed sense of justice, his expressed
       desire to spare further pain to his family and
       to his victims’ family. And his expressed
       desire to accept responsibility for his crimes.

           If we credit him with the ability to hold
       those values and to espouse those goals and to
       care more for living in those ways in the brief
       span until execution, than for the value of life
       itself, then we would have to say that in his
       case he is asserting his goals in the service of
       himself that to him outweigh the obvious self-
       destructive function of permitting oneself to
       be executed.

    Dr. Dietz said that “self-harm syndrome” or life-long
death wish diagnosis is not a diagnosis recognized by the
American Psychiatric Association or listed in the DSM IV.
In any case, Dr. Dietz said that the same symptoms support
the borderline personality disorder diagnosed by Drs. Jones
and Bolger.

    Dr. Dietz disagreed with Dr. Jones’s 1993 opinion that
Deere had an “irrational compulsion” to seek the death
penalty. Dr. Dietz opined that even repeated suicide attempts
do not warrant a diagnosis of a “compulsion” as the term is
used in psychiatry. He said that the evidence in this case did
not rise to the level of a compulsion.
                          DEERE V . CULLEN                             45

   After the evidentiary hearing, the court found that there
was “no conclusive understanding of the nature and degree of
[Deere’s] mental illness.” It then offered Deere an
opportunity to provide additional evidence to establish that a
mental illness prevented him from assisting in his defense.
Although the parties agreed that two experts, Drs. Stewart
and Dietz, would jointly examine Deere, Deere again refused
to cooperate. Therefore, the court ruled without the
additional evidence. Deere, 713 F.Supp. 2d at 1015–16.

    The district court granted the habeas petition on the
grounds of ineffective assistance of counsel. The court held
that Mr. Jones had performed below the objective standard of
reasonableness in failing to request a full-blown competency
hearing before Deere pled guilty. Id. at 1029–30. Further, it
also held that Deere was prejudiced by this failing because
there was a reasonable probability that he would have been
found incompetent had Mr. Jones adequately developed the
issue at the time of Deere’s guilty plea. Id. at 1041. Notably,
having decided the case on this basis, the court specifically
declined to “reach Deere’s claim of actual incompetence.”
Id.

    In coming to this conclusion, the court rejected Dr.
Bolger’s 1982 opinions, finding that “Dr. Bolger had no
formal psychiatric training whatsoever,9 misrepresented to the
Court that he was board certified, and failed to disclose” that
he “had a prior relationship with Deere’s father as his treating
physician and had previously interviewed Deere in that


   9
     This finding is dubious because it is based on Dr. Rosenthal’s
speculation about Dr. Bolger’s training. The record simply does not
contain details about the training beyond the fact that he trained and then
was officially designated a psychiatrist in the California prison system.
46                        DEERE V . CULLEN

capacity.”10 Id. at 1023, 1034. The court gave “substantial
weight” to Dr. Jones’s 1992 opinion, but also considered the
expert opinions of Drs. Favazza, Stewart and Dietz. Id. at
1036.

    The district court vacated Deere’s convictions and
sentences, id. at 1043, but stayed the order pending appeal.
The state timely appealed.

II. Jurisdiction and Standards of Review

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s grant or denial of the habeas
claims, the ineffective assistance of counsel claims and
competence claims de novo. We review a district court’s
findings of fact for clear error and the district court’s refusal
to hold an evidentiary hearing for an abuse of discretion.
Williams v. Woodford, 384 F.3d 567, 586, 608 (9th Cir.
2004).

    State court findings of fact, including findings made by
appellate courts based on reviews of the record, are entitled
to a presumption of correctness and are reviewed for clear
error. 28 U.S.C. § 2254(d)(8) (1996); Sumner v. Mata,
449 U.S. 539, 545–47, 550 (1981); Jeffries v. Blodgett, 5 F.3d
1180, 1187 (9th Cir. 1993).


 10
    Specifically, Dr. Bolger had treated Deere’s father for seizures at the
Blythe hospital in 1981 and had taken a family history about the father’s
alcoholism from Deere. Dr. Bolger’s prior experience with the Deeres is
not mentioned in his 1982 reports. In 1986, Bolger denied knowing Deere
previously, but is not clear why Dr. Bolger should have been expected to
remember in 1986 that he had met Deere five years earlier, before the
events of this case, while treating his father.
                        DEERE V . CULLEN                           47

    The Antiterrorism and Effective Death Penalty Act does
not apply to this habeas petition because the original petition
was filed in 1993. Williams, 384 F.3d at 586. Thus, we grant
habeas relief if Deere proves by a preponderance of the
evidence that he “is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(1996).

III.    Deere’s competence to plea guilty and stand trial
        and related ineffective assistance of counsel claim

    Many of Deere’s claims revolve around his competence
during the 1982 and 1986 proceedings. Deere was competent
to plead guilty and stand trial if he had “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” Godinez v.
Moran, 509 U.S. 389, 396–98 (1993); Drope v. Missouri,
420 U.S. 162, 172 (1975); Dusky v. United States, 362 U.S.
402, 402 (1960) (per curiam).11 Competence “has a modest
aim: It seeks to ensure that [the defendant] has the capacity to
understand the proceedings and to assist counsel.” Godinez,
509 at 402.

    The state courts’ repeated findings that Deere was
competent to plead guilty and stand trial in 1982 and 1986 are
presumed to be correct if they are fairly supported by the
record. Demosthenes v. Baal, 495 U.S. 731, 735 (1990);
Maggio v. Fulford, 462 U.S. 111, 116–17 (1983) (per
curiam); Evans, 800 F.2d at 887. No formal evidentiary


   11
      W hen Deere pled guilty in 1982, California applied the same
competence standard. Cal. Penal Code § 1367 (1982); Deere, 710 P.2d at
927; People v. Jablonski, 126 P.3d 938, 961 (Cal. 2006).
48                        DEERE V . CULLEN

hearing is required for the presumption to apply. Mata,
449 U.S. at 545–46. Deere must come forward with clear and
convincing evidence to rebut the presumption. Id. at 550.

    The question on this aspect of the case boils down to this:
whether Deere suffered any prejudice from the lack of a
competency hearing, even assuming for the sake of argument
that Mr. Jones should have moved for one? Put another way,
was there a reasonable probability that he would have been
found incompetent to plead guilty? Strickland v. Washington,
466 U.S. 668, 694 (1984); Stanley v. Cullen, 633 F.3d 852,
862 (9th Cir. 2011). We review this question on a de novo
basis. Williams, 384 F.3d at 586. After carefully reviewing
the record, including the district court’s factual findings that
we accept as true, we hold that there is no reasonable
probability that Deere would have been found incompetent to
enter his plea.

    Furthermore, the state court’s finding that Deere was in
fact competent is presumed correct and has not been rebutted
by clear and convincing evidence. Evans, 800 F.2d at 887.
First, all of the mental health experts, even the Johnny-come-
latelies, agree that Deere had the ability to understand and
actually understood the nature and object of the proceedings
against him.12 The reports of both mental health experts who
examined Deere in 1982 establish that Deere understood the
proceedings and was able to cooperate with counsel. The
reports of Drs. Bolger and Jones are remarkable for the


  12
      As the Supreme Court explained in Godinez, competence requires
only the ability to rationally understand. In contrast, the plea is knowing
if the defendant actually understands the proceedings. Godinez, 509 U.S.
at 401 n.12. Thus, the expert opinions that Deere understood the
proceedings also demonstrate that Deere’s plea was knowing.
                      DEERE V . CULLEN                      49

similarity of their conclusions. Both doctors opined that
Deere understood the proceedings, was oriented to time, place
and person and was free of thought disorders. Both experts
diagnosed Deere with substance abuse and personality
disorders with antisocial aspects. Dr. Jones also diagnosed
adjustment disorder. No mental health expert has ever found
Deere to be delusional, paranoid or psychotic. Dr. Bolger
also opined that Deere was capable of working with counsel
if it benefitted him to do so.

    In 2010, Judge Snyder found that Dr. Bolger, who had
died 23 years earlier and was no longer around to defend
himself, was not a competent psychiatrist. Never mind that
Bolger trained in psychiatry at a state hospital for several
years, was the staff psychiatrist at a state prison for several
years more and had a private psychiatric practice after that.
Even if the court’s finding about Dr. Bolger is entitled to
deference, it is of little moment since Bolger’s 1982 opinions
were in almost complete lockstep with Dr. Jones’s 1982
opinions and entirely consistent with the observations of the
judge and counsel. And those observations come down to
this: Deere knew what he was doing and had rational reasons
for doing it.

    Second, Judge Metheny personally interacted with Deere
on numerous occasions at every hearing and repeatedly found
that Deere understood the proceedings and could cooperate
with counsel in a defense. During these interactions, Deere
was lucid, appropriately answered open-ended questions, and
established his understanding of the proceedings and his
ability to consult with counsel. To repeat, the state court’s
finding that Deere was competent is not only strongly
supported by the evidence, but presumed correct because
“competency determinations necessarily involve assessments
50                   DEERE V . CULLEN

of credibility and demeanor” by the trial judge, and
“competency may be examined in open court on a full
record.” Evans, 800 F.2d at 887. Judge Metheny repeatedly
observed and evaluated Deere’s competence in 1982 and
1986. His observation that Deere was competent is presumed
correct and strongly supported by the record. Id.; Maggio,
462 U.S. at 117–18. It certainly has not been rebutted by
clear and convincing evidence.

    Third, defense counsel, who spent a great deal of time
discussing the issues with Deere, had no doubt that Deere was
legally competent, rational and could cooperate in his defense
if he wanted to. Although’s Deere’s psychiatric diagnosis is
a medical question, his competence to plead guilty is a legal
one that judges and lawyers deal with all the time. Deere and
Mr. Jones conferred for countless hours before the plea was
entered. It was apparent to Mr. Jones that Deere understood
the proceedings and his various options but wanted to plead
guilty for the reasons already stated: he wanted to spare his
family; he wanted to minimize the trauma to the survivors;
and he thought a guilty plea and possible death sentence was
just under the circumstances. These are not irrational
considerations. Mr. Jones was uniquely positioned to assess
Deere’s ability to understand the proceedings and his legal
options. Medina v. California, 505 U.S. 437, 450 (1992);
Williams, 384 F.3d at 606. Thus, Mr. Jones’s opinion is
“especially relevant” and provides “significant evidence” that
Deere was competent. Williams, 384 F.3d at 608.

    Fourth, the prosecutor believed that Deere was competent
in 1982 and 1986.

    Fifth, the facts of the crimes do not suggest legal
incompetence or someone out of touch with reality. Deere
                      DEERE V . CULLEN                      51

repeatedly threatened to kill Cindy’s family. Then, after she
left him, he planned the murder for a few days, again warned
Cindy and then carried out that murder.

    Sixth, the transcripts of the guilty plea proceedings
establish that Deere actually understood what was going on.
Deere accurately answered open-ended questions from the
judge, consulted with his counsel in court and demonstrated
his understanding of the proceedings, his waivers and the
possible results of his actions. He was articulate, repentant
and logical in the courtroom. Deere’s “comprehension of the
legal significance” of his actions, including the withdrawal of
his not guilty plea, “indicated that he had the ability to
consult with his attorney with a reasonable degree of rational
understanding.” Williams, 384 F.3d at 605.

    Finally, as noted already, Deere had rational reasons for
pleading guilty. As the California Supreme Court found,
Deere “felt great remorse for his offenses and was prepared
to suffer the consequences of a judgment of death.” Deere,
710 P.2d at 927.

    Eleven years after Deere pled guilty, habeas counsel came
forward with newly-obtained opinions to the effect that
Deere’s plea was motivated by an irrational desire to be put
to death, rendering him incompetent and his plea invalid,
whether or not he understood his situation and the
ramifications of his decision. This evidence is of little
consequence for two reasons:

    First, as we pointed out in Deere I, “[b]elated opinions of
mental health experts are of dubious probative value and
therefore disfavored.” 339 F.3d at 1086.
52                    DEERE V . CULLEN

     Second, even if these belated opinions are credited, what
matters is not whether Deere had a mental illness that
affected his decision, but whether he had a mental illness that
affected his capacity to understand his situation and make
rational choices. Dennis v. Budge, 378 F.3d 880 (9th Cir.
2004), involves a case with strikingly similar facts. Dennis
pled guilty to capital murder and was sentenced to death. He
sought and was granted leave to withdraw his state habeas
appeal. Id. at 882–83. A “next friend” federal habeas
petition was filed arguing that Dennis was incompetent to
have made these decisions due to mental illness. Id. at
886–87. A psychiatrist opined that Dennis “killed the victim
and is seeking the death penalty as a convenient way out of
life, and a way of assuring himself that ultimately he will
die.” Id. at 883. Nevertheless, the psychiatrist opined that
Dennis had sufficient understanding of the proceedings to
consult with counsel and had a rational and factual
understanding of the proceedings. He was fully aware of the
charges, the implications of the sentence, and the legal
options available to him. Id. We held:

       The question . . . is not whether mental illness
       substantially affects a decision, but whether a
       mental disease, disorder or defect
       substantially affects the prisoner’s capacity to
       appreciate his options and make a rational
       choice among them . . . A “rational choice”
       does not mean a sensible decision, or a
       decision that the next friend regards as
       reasonable.

Id. at 890 (emphasis in original).
                          DEERE V . CULLEN                             53

    Thus, because it is undisputed that Deere was fully aware
of his situation and had rational reasons for his desire to plead
guilty – in other words, that he had “the capacity to appreciate
his options and make a rational choice” – it is not reasonably
probable that he would have been found incompetent to plead
guilty under the proper legal standard, even if his new-found
experts had opined at a competency hearing in 1982 as they
do now. We reverse Judge Snyder’s order granting a writ of
habeas corpus on this ground.13

   We now turn to the order issued by Judge Taylor denying
habeas relief on the other grounds raised by Deere.




  13
      Deere’s claim that the trial judge should have sua sponte held a
competency hearing in 1982 fails because there was no evidence of his
incompetence before the trial judge. Judge Metheny, the prosecutor and
Mr. Jones all believed that Deere was competent. Deere’s actions in court
established that he understood the charges, understood the possible
sentences, had extensively discussed his case with counsel, could state a
factual basis for the plea, understood the rights he was waiving and could
consult with counsel. He also gave rational reasons for pleading guilty
and waiving a jury trial and his constitutional rights. Finally, the court-
appointed psychiatrist found Deere competent, and both counsel stipulated
to that competence finding. The trial court was entitled to rely on the
competency determination. Wallace v. Stewart, 184 F.3d 1112, 1118 (9th
Cir. 1999). The record before the trial judge simply did not raise a bona
fide doubt about Deere’s competence to warrant a sua sponte hearing.

     Deere’s claim that he was actually incompetent to plead guilty and
stand trial fails because the state court’s multiple, repeated competence
findings are well-supported by the record. The new evidence, which we
disfavor, simply does not provide the clear and convincing evidence
necessary to overcome all of the evidence establishing that Deere was
competent in 1982 and 1986.
54                     DEERE V . CULLEN

IV.     Trial judge’s mental competency in 1986

    Deere argues that the district court abused its discretion
by denying his request for discovery and an evidentiary
hearing on his claim that counsel was ineffective for not
challenging Judge Metheny’s competency to preside at the
1986 penalty retrial. We review the district court’s denial of
an evidentiary hearing for an abuse of discretion. Williams,
384 F.3d at 586. The district court must conduct an
evidentiary hearing if the facts are disputed, the facts alleged
would entitle the petitioner to habeas relief, if true, and if the
petitioner did not receive a full and fair opportunity to
develop the facts in state court. Id.

    We hold that the district court did not abuse its discretion
in finding that Deere did not come forward with sufficient
evidence to warrant an evidentiary hearing on this issue.

    The essence of Deere’s claim is that in 1986, Judge
Metheny was senile and that Mr. Jones rendered ineffective
assistance of counsel in failing to attempt to disqualify him.
Deere’s habeas counsel admit that they did not have enough
proof to sustain this claim, but they argue they came forward
with enough to entitle them to discovery and an evidentiary
hearing. They offered the following:

    1. After the case was remanded by the California
Supreme Court for the presentation of mitigating evidence,
and after Mr. Jones still refused at Deere’s insistence to offer
mitigation, Judge Metheny held Mr. Jones in contempt and
reimposed the death sentence. He then purported to “stay”
the sentence and appointed a private investigator to develop
mitigation. Mr. Jones objected to this, and ultimately the
California Supreme Court struck the order and returned the
                          DEERE V . CULLEN                          55

case to the trial court for the presentation of mitigating
evidence.14 When the case went back to Judge Metheny, he
appointed Mr. Landau as a friend of the court and mitigation
was developed and presented. Deere argues that Judge
Metheny’s ruling is evidence of not just legal error, but
mental impairment.

    2. Deere also points to certain statements Judge Metheny
made at the time of sentencing as indicative of mental
impairment. Deere argues that Judge Metheny “employed
bizarre reasoning” by comparing Deere’s murders to mafia
hits,15 soldiers shooting enemies during the war and
individuals shooting judges.16 The judge also compared Deere


 14
      Deere, 808 P.2d at 1187 n.4.

 15
      Judge Metheny stated:

          You might say what was committed here certainly was
          not an extensive crime. It had to do with an emotional
          situation. It has to do with the murder of people
          knowing one another. You can’t compare it with
          organized crime . . . where somebody was hired to go
          out and shoot people. . .

 16
          THE COURT: . . .Can you think of anything sadder you
          could do to a mother or father – a mother in this case.
          Losing a husband and two kids?

          THE DEFENDANT: No.

          THE COURT: M e either. I’ve thought about that. I’ve
          thought about it a lot. W hen you go out and shoot
          somebody with a rifle – when you’re in the service, it
          doesn’t hurt you too much because you’re told that is
          right. But stripping away the life of children and a
          husband from somebody that wasn’t directly connected
56                      DEERE V . CULLEN

to himself, noting that he was angry when he lost a girlfriend
during the war.

    3. Deere also furnished declarations from four lawyers.
Taylor Huff signed a declaration in 1993. He is a former
public defender in Indio. He furnished a copy of a ruling
Judge Metheny made in 1985 on a motion to suppress that
Huff offered as proof of the judge’s mental impairment.
However, there is no explanation of how the ruling evidenced
mental impairment or even in what way it was wrong. Huff
expressed his opinion that Judge Metheny had difficulty
grasping the legal concepts involved in that case, but
provided no details. Huff also offered his opinion that Judge
Metheny’s faculties seemed to have deteriorated over the
years. Huff declared that he had appeared before Judge
Metheny five to ten times, but never sought his
disqualification.

    Michael Kennedy, a public defender in San Bernardino
County, furnished a declaration in 1993 stating that he had
heard “rumors” as early as 1985 that the judge had
Alzheimer’s Disease. Kenney states that in 1988 – two years
after Deere was resentenced – he saw Judge Metheny, a
former college football player, come down from the bench
after an evidentiary objection, assume a football stance and
challenge him. Kennedy speculates that Judge Metheny was
having a flashback to his days as a college football player.
After Kennedy moved for Judge Metheny’s disqualification,
Metheny “appeared to snap back into the present” and


       to you, that puts that into the aggravating circumstances
       to the extent that everything else I say is a bunch of
       nonsense. If you shot the Judge, it might have been
       different.
                        DEERE V . CULLEN                          57

apologetically disqualified himself. Kennedy had never
appeared before Judge Metheny prior to 1988.

    Mark Sullivan declared in 1993 that in 1984 Judge
Metheny made “strange rulings and off-hand remarks” in a
civil case. In 1986, Judge Metheny was presiding over a
small claims appeal that was only supposed to have taken a
couple of hours. When it dragged on for three days, Judge
Metheny, apparently exasperated, came down from the bench,
said that both sides were good Christian people, that they
should settle the dispute, and then he dismissed the case. The
matter was reinstated by the presiding judge. Sullivan stated
that in his opinion, Judge Metheny was not competent to
handle the responsibilities of a judge since 1983.

    Finally, Diane Samuelson, one of Deere’s current habeas
counsel, furnished a declaration stating that in 1993 – seven
years after Deere’s sentencing – she unsuccessfully attempted
to contact Judge Metheny. Ultimately, she received a phone
call from someone who identified herself as his wife who told
Samuelson that the judge was ill, couldn’t remember cases
anyway, and had an Alzheimer’s-type condition.

    As noted above, the district court denied the request for
discovery without prejudice,17 balancing this new evidence
against the fact that neither Mr. Jones nor Mr. Landau ever
moved to recuse and the fact that the California Supreme
Court reviewed the record and found that the trial judge was
fair, objective and carefully weighed mitigating and


 17
    Deere wanted to depose Judge M etheny, obtain his medical records
and subpoena “any relevant records of complaints lodged with the
Commission on Judicial Performance between 1982 and 1988 against” the
judge.
58                     DEERE V . CULLEN

aggravating factors at sentencing. Evidence obtained 11
years after the sentencing, the district court reasoned, would
not establish the judge’s competency in 1986. Although the
request for discovery was denied without prejudice, the
request was never renewed.

    The district court also denied the request for an
evidentiary hearing because the evidence proffered, when
viewed along with “the entire record,” did not support
Deere’s allegation that the judge was incompetent. None of
the attorneys who actually appeared before Judge Metheny in
this case – Mr. Jones, Mr. Landau, the prosecutor and
appellate defense counsel – ever questioned the trial judge’s
mental competence. These lawyers, the district court added,
were in the best position to observe the trial judge’s behavior.
In addition, although Judge Metheny may have initially erred
in his handling of Mr. Jones’s refusal to put on mitigation, the
district court noted, “the fact that all the parties were breaking
new ground in this case. . . It is rare that a defendant pleads
guilty in a death penalty case, and Petitioner created a novel
dilemma when he declined to present any mitigating
evidence.” Neither the judge nor parties had experience with
the novel situation.

    We hold that the district court did not abuse its discretion
in denying an evidentiary hearing on the subject of Judge
Metheny’s mental competency in 1986. First, with respect to
Judge Metheny’s ruling when Mr. Jones refused to put on
mitigation, a ruling later reversed, there is simply no evidence
– none – that this ruling was other than legal error committed
when the judge was confronted with a highly unusual
situation. Mr. Jones refused to present mitigation in a capital
case even after the case had been remanded by the California
Supreme Court for that very purpose, even on pain of
                          DEERE V . CULLEN                              59

contempt. Judge Metheny was sailing in unchartered waters.
His procedure of reimposing the death penalty, and then
staying it for further mitigation was error. After this error
was corrected on appeal, the case was remanded to Judge
Metheny and it proceeded to conclusion without further ado
and it was affirmed on appeal. Legal error, especially in the
context of highly unusual circumstances, is not evidence of
senility.

    The out-of-context excerpts of Judge Metheny’s remarks
at Deere’s 1986 sentencing prove only that Judge Metheny
was not the most articulate of men. However, when Judge
Metheny’s remarks are read in context and not in isolated
snippets, it is apparent that he was trying to make the
legitimate point that he could empathize with Deere about the
pain of being jilted by a girlfriend. He was also explaining
that he had to consider the facts of the crimes to determine
the sentence. He was making the point that Deere committed
an emotional crime, rather than a murder for hire. And that
even though Deere was intoxicated and upset, he had
nevertheless planned the murder; it was not an accident, like
drunk driving, nor was it a spur-of-the-moment killing.18




  18
     The dissent (but not Deere) argues that Judge Metheny exhibited
“mental incompetence” at the penalty phase as evidenced by a discussion
in which defense counsel requested that the judge rule that the aggravating
evidence “outweighed” the mitigating evidence, all before any mitigating
evidence was even presented. After Judge Metheny (and the prosecutor)
expressed confusion about this request and sought clarification of what
defense counsel was really seeking – basically, a ruling that the
aggravating evidence was insufficient as a matter of law – Judge Metheny
denied the request and required the presentation of mitigation, a ruling not
disturbed on appeal.
60                   DEERE V . CULLEN

   Although Deere’s lawyers argue that Judge Metheny’s
remarks are evidence of mental impairment, conspicuously
missing from their submission is anything from any of their
doctors. Despite having access to a veritable stable of mental
health professionals who could have reviewed the transcripts
– Dr. Jones, Dr. Rosenthal, Dr. Favazza, Dr. Stewart – not
one has opined that Judge Metheny’s statements are evidence
of a disordered mind, or even that they warrant further
inquiry.

    The declarations of the lawyers recounting anecdotes also
do not provide a basis for a hearing. Taylor Huff’s
declaration boils down to his personal opinion that Judge
Metheny “had difficulty grasping” the legal concepts
involved in a 1985 motion to suppress. Huff is certainly
entitled to his opinion, but it is not proof of the judge’s
mental impairment, especially since there is no specific
explanation of what the problem supposedly was. Judge
Metheny’s ruling attached to Huff’s declaration is
unremarkable on its face, and there is not even an allegation
that it was ever found to be legally erroneous. Huff’s
declaration does not warrant a hearing.

    Michael Kennedy’s declaration speaks of “rumors” he’d
heard about Judge Metheny around 1985. Rumors do not
warrant a hearing. The football incident occurred in 1988 –
two years after Deere’s sentencing. At best, the football
incident sheds light on Judge Metheny’s status at that time,
not in 1986. In fact, Kennedy says he never even appeared
before Judge Metheny until 1988. His observations two years
after the time in question do not warrant a hearing.

    Mark Sullivan’s declaration speaks of “strange rulings,”
not otherwise identified, made by Judge Metheny in a civil
                      DEERE V . CULLEN                      61

case in 1984. It also recounts an inexplicable statement that
the judge made to the jury to the effect that Sullivan’s wife
had complained to the judge about Sullivan’s staying out too
late at night. No transcript was furnished, so it is impossible
to tell whether this statement was an attempt at humor, the
product of confusion, or something else. In any event, this
one stray remark, without any context in a 1984 trial, does not
warrant a hearing. The 1986 event in which the judge
abruptly dismissed a small claims appeal that was supposed
to have taken just a few hours, but went on for three days,
shows a judge who became exasperated and blew his stack.
Although this is evidence of impatience, it is not hard to
understand how or why the incident happened. Once again,
Deere has failed to furnish anything from any of his several
mental health experts ascribing any clinical significance to
this incident.

    The substance of Diana Samuelson’s declaration quoting
the woman who identified herself as Judge Metheny’s wife in
1993 is hearsay. Even if it weren’t, the woman’s statements
speak only to Judge Metheny’s condition in February 1993,
and say nothing about his status in 1986.

    Deere’s habeas counsel accuse Mr. Jones of ineffective
assistance of counsel for failing to move to disqualify Judge
Metheny, yet offer no evidence whatsoever that Huff,
Kennedy or Sullivan ever shared their opinions of Judge
Metheny with Mr. Jones or passed along the gossip and
rumors they included in their declarations. In evaluating Mr.
Jones, we look to what he knew in 1986. Strickland, 466 U.S.
at 689.

   Finally, and most importantly, on May 2, 1991, the
California Supreme Court affirmed, without dissent, Judge
62                    DEERE V . CULLEN

Metheny’s handling of the 1986 proceeding – the proceeding
Deere now argues was affected by the judge’s mental
impairments. Not only was Judge Metheny affirmed in toto,
but the Supreme Court even specifically observed that “the
record indicates that the trial court remained scrupulously fair
and objective throughout the proceedings. It carefully
weighed and considered both the aggravating and mitigating
evidence after they were presented.” Deere, 808 P.2d at
1195. Not only did the Supreme Court fail to express any
concern over Judge Metheny’s statements or behavior, it
explicitly commended him on the way he handled the case.
This alone compels the conclusion that Judge Metheny was
not impaired when he presided over this case in 1986, and
that Mr. Jones was not ineffective in failing to seek his
disqualification.

    The dissent says, “The majority holds that a judge
suffering from dementia may sentence a man to death.” We
hold no such thing. What we really hold is that the anecdotes
drummed up many years after the time in question do not
support the claim that Judge Metheny was impaired in 1986,
particularly in light of the California Supreme Court’s
laudatory affirmance of Judge Metheny’s supposedly-
impaired 1986 rulings.

V. Conclusion

    We REVERSE the district court’s grant of the petition for
writ of habeas corpus on the ineffective assistance of counsel
claim relating to the lack of a competency hearing, AFFIRM
                          DEERE V . CULLEN                              63

the district court’s denial of the petition on all other grounds19
and REMAND for the district court to deny the petition for
writ of habeas corpus.

  AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.



W. FLETCHER, Circuit Judge, dissenting:

   The majority holds that a judge suffering from dementia
may sentence a man to death. I disagree.

    A severely disturbed Ronnie Deere shot and killed Don
Davis and Davis’s two young daughters. Deeply remorseful,
Deere convinced deputy public defender Glenn Jones to help
him obtain a death sentence for his crimes. Deere pled guilty
and waived a penalty-phase jury. Jones presented no
mitigating evidence. Superior Court Judge Fred R. Metheny
sentenced Deere to death in 1982. The California Supreme
Court reversed and remanded, holding that a death sentence
could not be imposed without the presentation of mitigating
evidence. People v. Deere (Deere I), 710 P.2d 925 (Cal.
1985). On remand in 1986, Jones again refused to present
mitigating evidence. Judge Metheny again sentenced Deere
to death, even though he had been specifically instructed by
the Supreme Court not to do so without hearing mitigating
evidence. Judge Metheny held a second penalty hearing a
few months later, at which another attorney presented

  19
     The remaining claims Deere asserts on appeal were rejected by the
district court. W e affirm those rulings for the reasons set forth by Judges
Taylor and Snyder, respectively.
64                    DEERE V . CULLEN

mitigating evidence. At that hearing, Judge Metheny
sentenced Deere to death for the third time. The California
Supreme Court affirmed. People v. Deere (Deere II),
808 P.2d 1181 (Cal. 1991).

    When Judge Metheny resentenced Deere to death in 1986,
he was mentally incompetent. Three attorneys who appeared
before Judge Metheny during this period provided affidavits
in support of Deere’s state and federal habeas petitions. The
attorneys describe Judge Metheny as incompetent and report
that his incompetence was general knowledge in the
courthouse. The record of Deere’s resentencing also shows
Judge Metheny’s incompetence.

    I believe the evidence already in the record is sufficient to
demonstrate that Judge Metheny was mentally incompetent
when he resentenced Deere to death in 1986, but that is not
the question before us today. The question now before us is
much easier: Should the district court have granted an
evidentiary hearing on Judge Metheny’s mental competence?
The majority holds that such a hearing was not required. I
disagree.

    It is an open secret that some judges stay on the bench too
long. Formal procedures exist for removing senile judges,
but they are rarely employed. Attorneys hesitate to challenge
judges they appear before, and judges hesitate to blow the
whistle on their colleagues. I am as reluctant as most judges
to seek to remove a senile judge or to set aside a decision
reached by such a judge. But when a man’s life is at stake, I
cannot stay silent.
                      DEERE V . CULLEN                        65

                 I. Procedural Background

    Deere filed a federal habeas corpus petition in 1993,
before the effective date of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Two federal district judges
have dealt with his petition. District Judge Taylor denied
Deere’s petition in its entirety in 2001. On appeal from that
denial, we wrote that Deere had “c[o]me forward with
sufficient evidence at least to trigger a hearing on whether he
was, in fact, competent to have pleaded guilty.” Deere v.
Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003). We held that
two declarations “‘create[d] a real and substantial doubt’ as
to Deere’s competency to plead guilty, if they [were] taken at
face value and assumed to be true.” Id. at 1087 (quoting
Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985). We
remanded for a hearing “on Deere’s claim that he was
incompetent to plead guilty, and to reconsider the petition . . .
as to the claims premised on that contention.” Id. We did not
reach any other issues, including Judge Metheny’s
competence in 1986.

    District Judge Snyder conducted the hearing on remand.
In a careful forty-nine-page order, she concluded that Jones
provided ineffective assistance of counsel (“IAC”). She held
that Jones fell below “an objective standard of reasonableness
and performed below the professional standard in his
community at the time” when he failed to investigate Deere’s
competence to plead guilty. She held that Deere was
prejudiced because there was a “reasonable probability that,
but for counsel’s unprofessional errors,” Deere would have
been found incompetent.

   The State appeals Judge Snyder’s decision. Deere
continues to appeal Judge Taylor’s decision. The panel
66                  DEERE V . CULLEN

majority reverses Judge Snyder’s decision, affirms Judge
Taylor’s decision, and denies Deere’s petition. I disagree
with the majority on three issues.

     First, I would hold that the district court should have
granted an evidentiary hearing on whether Judge Metheny
was mentally competent when he sentenced Deere to death in
1986. Second, I would hold that the district court should
have granted an evidentiary hearing on whether Jones
provided IAC in failing to challenge Judge Metheny’s
competence in 1986. Third, agreeing with Judge Snyder, I
would hold that Jones provided ineffective assistance in
failing to investigate Deere’s competence to plead guilty in
1982.

       II. Judge Metheny’s Competence in 1986

              A. Evidence of Incompetence

    Judge Metheny first sentenced Deere to death in 1982.
The California Supreme Court reversed the death sentence
because Jones had refused to present mitigating evidence and
Judge Metheny had imposed the sentence without requiring
Jones to do so. Deere I, 710 P.2d at 934. The Court
remanded for a new sentencing hearing, holding that a death
sentence could not be imposed in the absence of mitigating
evidence. Id.

    Judge Metheny conducted two resentencing hearings after
remand. At the first hearing, held on April 21, 1986, Jones
again refused to present mitigating evidence. Judge Metheny
did not require mitigating evidence and sentenced Deere to
death the next day. On May 14, Judge Metheny “stayed” the
new death sentence by minute order. Even though stayed, the
                      DEERE V . CULLEN                       67

death sentence triggered an automatic appeal to the California
Supreme Court. On June 9, the Court struck the judgment of
death and “returned [the case] to the superior court for further
proceedings.”

    On June 27, 1986, Judge Metheny appointed attorney
Jonathan Landau to present mitigating evidence on Deere’s
behalf as a friend of the court. A second resentencing hearing
was held on July 18, 1986, at which Landau presented
mitigating evidence. Judge Metheny sentenced Deere to
death the same day. The California Supreme Court affirmed.
Deere II, 808 P.2d at 1195.

    Evidence of Judge Metheny’s mental incompetence in
1986 falls into two categories. First, three attorneys who
appeared before him provided affidavits in which they attest
to Judge Metheny’s incompetence in 1986. Second, the
record of Deere’s 1986 resentencing, including but not
limited to the transcripts, shows Judge Metheny’s
incompetence.

                  1. Attorneys’ Affidavits

    Three attorneys who appeared before Judge Metheny in
the 1980s provided sworn affidavits in support of Deere’s
1993 state habeas petition. Those affidavits were later
provided to the district court in support of Deere’s federal
habeas petition.

   Attorney Mark Sullivan wrote:

          I came to know Judge Fred Metheny in
       1983 when he presided over a criminal case
       wherein I represented the defendant. That
68                  DEERE V . CULLEN

     experience left me unwilling to risk the liberty
     of another of my clients in his hands. I
     resolved never to permit him to be involved in
     another criminal case of mine.

         . . . In a civil jury trial in 1984, Ohlsson vs.
     Phillips, opposing counsel and I found
     ourselves bewildered by many of Judge
     Metheny’s strange rulings and off-hand
     remarks to the jury. For example, despite the
     fact that my wife and I had never had any
     personal relationship whatsoever with Judge
     Metheny, he told jurors in the case that my
     wife constantly complained to him that I
     stayed out too late at night. This was out of
     the blue and not connected to anything that
     had transpired.

         . . . By 1986, the only matter of mine
     which I would agree to allow Judge Metheny
     to hear was McCready vs. Moore, a Superior
     Court trial de novo of a small claims action.
     This matter was supposed to last a couple of
     hours, but we were in our third day of
     testimony when Judge Metheny appeared to
     become very frustrated. He stepped down
     from the bench and started shaking hands with
     all of the litigants seated at counsel table.
     Opposing counsel and I just looked at one
     another in amazement. Judge Metheny then
     went into the spectator section of the
     courtroom where many observers had been
     seated and started shaking hands with them.
     He told them that he assumed all of the people
                 DEERE V . CULLEN                       69

   in his courtroom were Christians and attended
   church, and remarked upon our inability to
   settle the case. He then ordered the case
   dismissed. Opposing counsel and I reported
   this to the presiding judge, and Judge Noah
   Ned Jamin informed us that he would be
   retrying the case in its entirety, which is what
   he did.

       . . . As the years passed, it seemed as if his
   condition worsened considerably. It appeared
   as if he would float in and out of reality. He
   would not recognize people whom he had
   known for years. It was a very sad situation,
   because I am told that he was once a very
   likeable man.

Attorney Taylor Huff wrote:

       I have worked in the Indio [public
   defender’s] office since approximately March
   of 1985. I appeared before Judge Fred
   Metheny between five and ten times from
   1985 until his retirement in 1989, but did not
   conduct any criminal trials before him. . . .

       I did have occasion to appear before Judge
   Metheny for pretrial motions. I recall one
   lengthy suppression hearing which was held
   in 1985 in the case of People v. Dyer. It
   became obvious to me during that hearing that
   the judge had difficulty grasping the legal
   concepts involved; and his written ruling . . .
   confirmed my opinion of his slipping grasp.
70                   DEERE V . CULLEN

            . . . I was aware of the penalty phase
        retrial ordered by the California Supreme
        Court in People v. Deere, as Mr. Deere was
        represented by Glenn Jones, another deputy in
        the Indio office. I observed part of these
        proceedings. In my opinion, it was not
        appropriate for this capital case to be
        reassigned to Judge Metheny; I do not believe
        he was then competent to sit in judgment of a
        capital case or other serious or complex
        criminal matters.

     Attorney Michael Kennedy wrote:

            I was a deputy district attorney in Indio,
        Palm Springs, and Blythe in 1983 and 1984
        and entered private criminal defense practice
        in those areas in 1985. I had heard of
        Superior Court Judge Fred Metheny’s
        reputation among the local prosecution and
        defense bars as being unable to render
        appropriate judicial services as long ago as
        about 1984, while I was still a prosecutor. I
        specifically recall my supervisor, then-
        Assistant District Attorney . . . Thomas
        Douglass, Jr., commenting on his anxiety
        about having complicated evidentiary issues
        heard by Judge Metheny in about 1984.
        However, it was my impression that the
        D.A.’s office did not want to shunt cases away
        from Judge Metheny . . . because Judge
        Metheny’s background as an F.B.I. agent
        (about which litigants were always regaled at
              DEERE V . CULLEN                       71

length by the judge) caused him to
instinctually err on the side of the People. . . .

    It was not until about 1988 that I had
occasion to appear before Judge Metheny. . . .
During those proceedings, . . . Judge Metheny
came off the bench, following an evidentiary
objection by me, assumed a three-point stance
on the floor in the open courtroom, ordered
me to get down on the floor opposite him (to
the horror of the on-looking spectators, court
personnel, and my client), and threatened to
knock me all the way out into the parking lot.
When I declined to “assume the position,” the
judge then got up and insisted that I
accompany him to the parking lot so he could
knock me around. He had, I believe,
imagined he was back at Nebraska State,
where he was a star football player in the
’40’s or thereabouts. That was one of his
common regressions, witnessed by anyone
foolish enough to take a case before him. . . .

     I met with the presiding judge and the
criminal calendar judge, who acknowledged
the outrageousness of Judge Metheny’s antics,
and they requested that I not take the matter to
the press or to the commission on judicial
performance, given that it appeared that Judge
Metheny would be retiring within several
weeks. . . . I chastised these two judges for
letting things get so far out of hand with a
judge who they, and everyone, knew was not
capable of handling the job, to the serious
72                   DEERE V . CULLEN

       detriment of those whose liberties hang in the
       balance. They conceded it was a difficult
       matter to deal with and appeared to regret that
       things had gone on for so long. It seems that
       the problem was that Judge Metheny was
       always on the verge of retirement, for several
       years, so no one wanted to hurt an otherwise
       distinguished public servant in the twilight of
       his career. But those promised, serially
       impending retirements never materialized. . . .

           . . . In my opinion, based on what I heard
       and what I experienced, Judge Metheny was
       not competent to handle any serious criminal
       matter, much less a capital case, in 1986, nor
       do I believe that anyone who knew of the
       events of those days considered him
       competent for some undefined time before
       1986.

    In November 1987, The Press-Enterprise, a local
newspaper of general circulation, rated judges on the
Riverside County Superior Court based on a survey of
lawyers and court staff. Judge Metheny was rated the
“worst” judge on the Riverside bench by a considerable
margin. The paper reported, “His detractors question his
intelligence and clarity of thought.” The paper continued:

       “He is in a complete fog,” wrote one criminal
       law attorney with six years in Superior Court.
       “Doesn’t know what’s going on, can’t make a
       decision, only wants to talk about World War
       II and playing football for Nebraska.”
                     DEERE V . CULLEN                     73

One respondent wrote that Judge Metheny “has simply been
in the trenches too long”; another stated that Judge Metheny
“appear[ed] to have little grasp of what’s going on.”

        2. Record in Deere’s 1986 Resentencing

    Judge Metheny’s mental incompetence was painfully
obvious during Deere’s 1986 resentencing. It may be seen in
exchanges in the courtroom, and in particular instances of
inappropriate behavior. I will give examples of both.

    A lengthy exchange took place during the first of the two
post-remand sentencing hearings, on April 21, 1986. The
State’s attorney, Robert Dunn, began the hearing by
introducing transcripts and exhibits from the 1982 sentencing
hearing. This evidence, in the State’s view, showed
aggravating circumstances warranting the death penalty.
After submitting the evidence, Dunn said, “[A]nd the people
would rest.” Judge Metheny accepted the evidence and
shortly thereafter stated, “You haven’t rested yet.” Dunn
repeated, “And we’re going to rest at this time.”

     Jones then moved for a ruling that the State’s evidence
was insufficient to support a finding of aggravation. Jones
said, “I’m asking the Court to make a ruling that what Mr.
Dunn has offered you does not justify a finding in
aggravation.” Jones had made the same motion at Deere’s
first sentencing hearing in 1982, and Judge Metheny had
denied it. Now, however, Judge Metheny did not understand
the motion. He responded:

          I don’t think I’m in a position right now to
       grant the motion or deny the motion, either
       one. I think, assuming arguendo, that all the
74                    DEERE V . CULLEN

        evidence to be introduced by the District
        Attorney has been offered. If this were the
        end of it and this were the last shot, it would
        be a different position for me to view from
        than if I allow you to go ahead and produce all
        the evidence that is available and you feel is
        necessary and proper and supportive, then
        there’s an opportunity that comes back again
        to the prosecution and their right to produce
        additional evidence.

Jones replied, “I don’t disagree if the defendant offers
evidence, but we haven’t got to that stage yet.” Judge
Metheny then denied Jones’s motion without prejudice.

     Jones tried again:

             Your Honor, with respect I would ask the
        Court to articulate the factual findings that
        permits the Court to come to the decision that
        there are sufficient aggravating circumstances
        at this point to justify a finding of aggravating
        circumstances.

Judge Metheny still did not understand:

            Yes. Well, I think there’s a conflict. If
        you could say it generally without doing two
        or three days of research on this matter, which
        may be necessary, but I hope not. I think
        we’re still looking at this proposition. I’m
        looking at the case right now although this is
        the first time I’ve been through it. I haven’t
        had an opportunity yet to review all the
              DEERE V . CULLEN                     75

evidence that was dumped in. I think it was
dumped in for a good reason. It’s in now. It’s
been allowed in. It’s for me to review. The
evidence as I recall it, and I haven’t — and I
have reviewed my files, what I think is
available. I’ve come to the feeling that what
we discussed first of all is that here is a
matter, a case that had to do with more than
one murder. I think we’re talking about
murders at the same time, but there were three
murders in this particular case and that would
be aggravating if it does apply. I haven’t
made up my mind on that because this is a
new trial for aggravating and mitigating
circumstances.

    Another thing to take into consideration is
murder involves particularly heinous,
atrocious, and cruel actions. Now, I don’t
think that’s going to come in on the evidence
as far as that’s concerned. It isn’t in yet.
You’re asking me to do things ahead of time.
That’s just my comment on the side. I really
don’t have enough in my mind right now.

...

    There is a possibility that we’ll hear
evidence to the effect that Mr. Deere was
there and waiting, pursuing a victim while
lying in wait. That’s a possibility. But I don’t
see how you can ask me or force me now to
state what you want me to state until you
produce the evidence. I’ve got to make that
76                    DEERE V . CULLEN

        decision on evidence. I can’t make it out of
        the wild blue yonder.

           Do you understand my position, Mr.
        Jones?

     Jones tried once more:

            Your Honor, in all due respect, I do not.
        I apologize for saying that, but in the end
        using an analogy, it’s as if we are in a
        criminal trial and the People have just rested
        and the defendant is making a motion for
        judgment upon insufficiency of evidence. We
        are now in a penalty trial. The People have
        rested offering their aggravating evidence.
        I’m making a motion on that evidence asking
        the Court to make a finding of fact that their
        aggravating evidence is insufficient, as a
        matter of law, to support a finding of
        aggravating circumstances.

Judge Metheny responded:

             I will. I will do that. But if this were the
        first time around and all this was put into
        evidence right now and you asked me to make
        your ruling right now I’d say, hey look, I
        haven’t had a chance to go over all this
        evidence yet. I don’t have a memory,
        although I guess I am probably quite a bit
        smarter than most of the judges around here,
        but I don’t like to brag about it. My memory
        isn’t that implicit.
                     DEERE V . CULLEN                     77

   Jones suggested a brief recess to review the evidence, and
Judge Metheny said:

           Say this was the way the case was handled
       the first time around. I’d say wait a minute.
       I want to go over every one of these exhibits
       and go over the transcripts and find out
       actually what happened. We didn’t have a lot
       on it. We didn’t have a lot of the transcript
       except final argument. We spent a bit of time
       there. If you give me another two hours or so
       I would feel much more comfortable. I don’t
       want to make any more mistakes. I want to
       do it not for myself or for you but for justice.
       I can’t tell you right now.

Jones again suggested a recess. Judge Metheny then recessed
for lunch. Upon reconvening, Judge Metheny said:

           I have done what I thought was absolutely
       necessary and that is to review the evidence
       and review the file again so that I’m caught
       up-to-date as to what has happened and what
       is happening.

           Where were we? A motion?

After being reminded, Judge Metheny continued:

           As I look at the situation at this point in
       time, if I were to balance the evidence which,
       of course, isn’t the proper thing to do now, I
       would have to, based on the evidence, deny
       the motion.
78                    DEERE V . CULLEN

Jones asked again for Judge Metheny to “articulate for the
record what it finds in this case which justif[ies] a finding of
aggravation. That’s been my point all along.” Judge
Metheny neither gave the requested articulation nor provided
a reason for not doing so.

    After Judge Metheny denied his motion, Jones refused to
provide evidence in mitigation. District Attorney Dunn then
suggested that Judge Metheny hold Jones in contempt. Dunn
emphasized to Judge Metheny that he was required to hear
mitigating evidence before sentencing Deere, and that
sentencing him without that evidence would be pointless.
Judge Metheny did not hold Jones in contempt and did
nothing else to secure the presentation of mitigating evidence.

    The next day, without having heard any mitigating
evidence, Judge Metheny sentenced Deere to death. After
sentencing Deere, Judge Metheny informed him that he had
sixty days to appeal. Jones reminded Judge Metheny that a
death penalty appeal is automatic.

    When Judge Metheny resentenced Deere to death in April
1986, he did not understand what the California Supreme
Court had told him to do. In 1982, Jones had refused to
present mitigating evidence, and Judge Metheny had
sentenced Deere to death. In Deere I, the California Supreme
Court reversed and remanded for resentencing, specifically
holding that a death sentence could not be imposed without
the presentation of mitigating evidence. On April 21, 1986,
Jones refused to present mitigating evidence, just as he had
done four years earlier. On April 22, Judge Metheny
sentenced Deere to death without having heard mitigating
evidence, just as he had done in 1982. That is, Judge
                      DEERE V . CULLEN                       79

Metheny did precisely what the Supreme Court had
unambiguously told him not to do.

    Judge Metheny also behaved inappropriately during
Deere’s post-remand resentencing. Two examples illustrate
this point.

    First, Judge Metheny decided important issues without
Jones or Deere being present. On May 14, 1986, Judge
Metheny “stayed” Deere’s April 22 death sentence and
appointed an investigator to look for mitigating evidence.
The minute order indicates that the prosecutor and Jones were
present in the courtroom during proceedings leading to the
entry of the order. The next day, Jones wrote a letter
requesting that the minute order be changed to reflect the fact
that he had not been present. There may, in fact, have been
no open courtroom proceedings leading to the minute order.
Despite extensive effort, no transcript for May 14 has been
located. Judge Metheny may have decided, without notice or
hearing, to stay Deere’s death sentence and to appoint an
investigator; or he may have held a hearing off the record
without either Jones or Deere being present. Judge Metheny
held another hearing a month and a half later, on June 27,
1986, at which he appointed Jonathan Landau to supervise the
investigation, present mitigation evidence, and act as a friend-
of-the-court at a new sentencing hearing. Judge Metheny also
established various procedures, withdrew the order of
contempt against Jones, and affirmed that Jones would
continue representing Deere. Deere was not present in the
courtroom, and there was no waiver of his presence.

   Second, Judge Metheny made direct off-the-record
contacts with witnesses. During the June 27 hearing at which
Deere was not present, Judge Metheny stated, “But, as I
80                   DEERE V . CULLEN

understand the situation, we have been mighty successful
with Mr. Deere’s family. I have contacted them directly and
a number of other people who would be happy to testify the
way Justice Mosk wants them to testify.” Judge Metheny
also appears to have contacted Deere’s father at some point,
for Judge Metheny stated during Deere’s second
resentencing, “I think Mr. Deere’s father talked to him about
it. I don’t think Mr. Deere knows that I know as much as I do
about this case.”

    There is direct evidence that Judge Metheny interviewed
Deere’s mother and two sisters in chambers off the record at
the second penalty retrial. Deere’s mother stated in a
declaration presented to both the state and federal habeas
courts:

       Me and my daughters Jeannie and Karen went
       to the second trial, the penalty trial I think
       they called it. . . . [W]e talked to the judge in
       his chambers. I can’t remember if I testified.
       All I remember was going into the judge’s
       chambers and him asking us if we thought
       Ronnie could be rehabilitated.

Deere’s sister Jeannie DeLeon also remembered the incident.
She stated in her declaration:

       After we testified, the judge asked us to go
       into his chambers to talk about Ronnie. He
       asked us a lot of things about Ronnie, about
       what kind of life Ronnie would lead if his
       sentence was overturned.        It was real
       emotional back there.
                     DEERE V . CULLEN                     81

                 3. Majority’s Response

    The panel majority refuses to recognize the extent and
strength of the evidence of Judge Metheny’s mental
incompetence. According to the majority, the evidence
“reveal[s] no more than eccentricity.” Op. at 6.

    First, the majority focuses on a single sentence in the
California Supreme Court’s Deere II opinion that addresses
Judge Metheny’s consideration of the evidence. The sentence
upon which the majority relies is italicized in the block
quotation that appears below. In the view of the majority,
this sentence is the “most important[]” factor. “This alone
compels the conclusion that Judge Metheny was not
impaired[.]” Op. at 62. The majority takes the Court’s
sentence out of context. The Court was responding to an
argument that in 1986 Judge Metheny had not been impartial,
and that the death sentence was therefore a “mockery.” The
Court wrote:

       On the contrary, the record indicates that the
       trial court remained scrupulously fair and
       objective throughout the proceedings. It
       carefully weighed and considered both the
       aggravating and mitigating evidence after
       they were presented. Indeed, neither defense
       counsel nor Mr. Landau [who was appointed
       for the purpose of presenting mitigating
       evidence] challenged the impartiality of the
       trial court at any point during the proceedings.

Deere II, 808 P.2d at 1195.
82                   DEERE V . CULLEN

    As the full passage makes clear, the Court was not ruling
on Judge Metheny’s mental competence. Indeed, the issue of
Judge Metheny’s competence was never raised in the direct
appeal to the Court. Instead, in the passage just quoted, the
Court was ruling on Judge Metheny’s impartiality. District
Judge Taylor correctly understood the limited scope of the
California Supreme Court’s statement. He wrote:

       [The Court’s] findings were made on claims
       that “the record [wa]s ‘ambiguous’ as to the
       standards which the trial court applied in
       determining the penalty, and thus that the
       sentence is constitutionally unreliable,” and
       that the resentencing was a “mockery.”
       [Deere II, 808 P.2d at 1194.] Thus, in terms
       of a claim of mental incompetency on the part
       of the trial judge, these factual findings do not
       preclude relief.

    Second, the majority writes that Judge Metheny was
sailing in “unchartered waters” when Jones refused to present
mitigating evidence on April 21, and when Judge Metheny
sentenced Deere to death the next day. Op. at 58–59. The
majority writes, “[T]here is simply no evidence — none —
that this ruling was other than legal error committed when the
judge was confronted with a highly unusual situation.” Id. at
58. The majority is wrong. The waters were hardly
uncharted. What happened in April 1986 was a precise repeat
of what had happened in 1982, and the legal issue in 1986
was the precise issue that the California Supreme Court
decided in Deere I. The conclusion is inescapable that Judge
Metheny’s mental disability was so severe in April 1986 that
he simply could not understand the Court’s clear holding in
Deere I.
                     DEERE V . CULLEN                      83

    Third, the majority contends that Judge Metheny’s odd
statements are merely “out-of-context excerpts.” Id. at 59.
The majority has inadvertently put its finger on part of the
problem. Many of Judge Metheny’s comments are indeed out
of context. They are oddly irrelevant comments that come
out of the blue. More important, the majority fails to take
into account Judge Metheny’s in-context remarks. The
excerpts from the April 21 hearing, quoted at length above in
order to provide context, show in excruciating detail the
degree to which Judge Metheny was mentally impaired.

    Fourth, the majority belittles the affidavits presented by
attorneys Huff, Kennedy, and Sullivan. In the view of the
majority, attorney Huff’s “declaration boils down to his
personal opinion.” Op. at 60. Attorney Kennedy’s
“declaration speaks of ‘rumors.’” Id. Attorney Sullivan’s
“declaration speaks of ‘strange rulings,’ not otherwise
identified”; recounts an “inexplicable statement” without
providing a transcript; and recounts an “event” in 1986 that
“shows a judge who became exasperated and blew his stack.”
Id. at 60–61. I disagree. The affidavits of Huff, Kennedy,
and Sullivan are serious assessments by serious professionals.
Huff, Kennedy, and Sullivan practiced before Judge Metheny,
directly observed the behavior they describe, and they knew
Judge Metheny’s reputation in the courthouse. All of them
concluded that Judge Metheny was incompetent. These
attorneys’ affidavits are not casual, offhand, or unsupported
evaluations. They are, instead, a terrifying window into
Judge Metheny’s courtroom.

    Fifth, the majority faults Deere for not providing any
medical evaluations of Judge Metheny’s mental competence
to serve as a judge in 1986. The majority writes, “Despite
having access to a veritable stable of mental health
84                    DEERE V . CULLEN

professionals who could have reviewed the transcripts — Dr.
Jones, Dr. Rosenthal, Dr. Favazza, Dr. Stewart — not one has
opined that Judge Metheny’s statements are evidence of a
disordered mind.” Op. at 60. I do not fault Deere for not
asking Drs. Jones, Rosenthal, Favazza and Stewart to
evaluate Judge Metheny’s mental competence. They were
retained for the specific purpose of evaluating Deere’s
competence to plead guilty in 1982.

    Moreover, because attorneys and judges are trained to
understand legal rules and legal reasoning, they are in some
respects better able than medical professionals to assess
competence to serve as a judge. The question now before us
is whether the district court should have allowed an
investigation and evidentiary hearing concerning the mental
competence of Judge Metheny. At some point, it may
become necessary to have the evaluation of a developed
record by medical professionals, but I emphatically do not
believe such an evaluation is required at this stage.

B. Habeas Claims Related to Judge Metheny’s Mental
                  Competence

     I would reverse two holdings of the district court related
to Judge Metheny’s mental competence. First, I would hold
that the district court erred in refusing to grant an evidentiary
hearing concerning Judge Metheny’s competence. Second,
I would hold that the district court erred in refusing to grant
an evidentiary hearing on whether Jones committed IAC by
failing to seek recusal of Judge Metheny based on his
incompetence.
                      DEERE V . CULLEN                        85

      1. Evidentiary Hearing on Judge Metheny’s
                     Competence

    The case law on due process violations resulting from
mental incompetence of the decisionmaker is sparse but clear.
The Supreme Court has stated unequivocally, “This Court has
recognized that a defendant has a right to ‘a tribunal both
impartial and mentally competent to afford a hearing.’”
Tanner v. United States, 483 U.S. 107, 126 (1987) (emphasis
added) (quoting Jordan v. Massachusetts, 225 U.S. 167, 176
(1912)). In Jordan, the Court held that it would violate due
process if an insane person were permitted to sit on a jury in
a criminal case. Jordan, 225 U.S. at 176. The Court held that
due process had not been violated only because the state
court, after an evidentiary hearing, had concluded by a
preponderance of the evidence that the juror in question was
sane. Id at 173.

    A federal habeas petitioner in a pre-AEDPA case is
entitled to an evidentiary hearing if “(1) the petitioner’s
allegations, if proved, would entitle him to relief, and (2) the
state court trier of fact has not, after a full and fair hearing,
reliably found the relevant facts.” Williams v. Calderon,
52 F.3d 1465, 1484 (9th Cir. 1995) (quoting Hendricks v.
Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992)) (internal
quotation marks omitted); see also Stankewitz v. Woodford,
365 F.3d 706, 714 (9th Cir. 2004). It is undisputed that Deere
requested an evidentiary hearing on state habeas concerning
Judge Metheny’s competence and that his request was denied.
Deere thus satisfied the second criterion, as the district court
correctly held. The disputed question is whether Deere
satisfied the first criterion.
86                    DEERE V . CULLEN

   Deere has alleged that Judge Metheny was so mentally
impaired in 1986 that he was incompetent to preside over his
capital sentencing. Because Deere waived a jury, Judge
Metheny himself was required to decide whether Deere
would live or die.

    Deere has not only alleged facts that would entitle him to
habeas relief. He has also provided substantial evidence in
support of his allegations. The district court nonetheless
denied Deere an evidentiary hearing. The district judge
concluded, “Viewed as a whole, the trial judge’s conduct and
statements during the proceedings in 1982 and 1986 do not
support Petitioner’s allegations.” (To be clear, I do not
contend that Judge Metheny was incompetent in 1982. I
contend only that he was incompetent in 1986.) The district
court did not describe the attorneys’ affidavits, nor any of the
other evidence in the record, in explaining its conclusion.
The district court concluded that Deere was not entitled to a
hearing because the attorneys involved in the case failed to
raise the issue of Judge Metheny’s incompetence. The court
wrote that attorneys Jones and Landau “were in the best
position to observe the competency of the trial judge in 1982
and 1986.” It wrote further, “[A]ppellate counsel and the
prosecutor also appeared before the trial judge, and neither
attorney ever made any kind of a record regarding the alleged
incompetency of the trial judge.”

    Given the evidence in the record, the district court should
not have attached controlling importance to the silence of the
attorneys. Lawyers are loathe to challenge as incompetent the
judge before whom they are appearing, and before whom they
might appear again. In Deere’s case, each of the attorneys
had a particular reason not to challenge Judge Metheny. The
two defense attorneys in the trial court were Jones and
                      DEERE V . CULLEN                       87

Landau. Jones was actively trying to help Deere get a death
sentence, and it was relatively clear that Judge Metheny
would impose such a sentence. Landau was not Deere’s
attorney in the normal sense; he was retained as a friend of
the court for the sole purpose of presenting mitigating
evidence at the second resentencing hearing. Further, the
prosecutor at trial was following office policy in not objecting
to Judge Metheny. As recounted by attorney Kennedy in his
affidavit, the prosecutor’s office had a policy of keeping their
cases before Judge Metheny, despite his incompetence,
because he “instinctually err[ed] on the side of the People.”
Finally, an appellate lawyer, even if he had wanted to raise
the issue of Judge Metheny’s incompetence, would have
known that the issue would be properly raised on collateral
rather than direct review.

    There was considerable evidence of Judge Metheny’s
incompetence that the district court declined to describe. I
have summarized that evidence above. In my view, that
evidence, if believed, is enough to support a determination
that Judge Metheny was so mentally impaired he could not,
consistent with due process, preside over Deere’s
resentencing in 1986. At a bare minimum, Deere was entitled
on federal habeas corpus to a hearing on his claim that Judge
Metheny was incompetent in 1986. At such a hearing, Deere
would have been allowed to introduce additional evidence of
Judge Metheny’s incompetence. The State, of course, would
have been allowed to introduce its own evidence, if any, and
to cross-examine any of Deere’s witnesses.

   I realize that Judge Metheny has been dead for many
years, and that it will be difficult to determine, more than 25
years after the fact, the precise degree of Judge Metheny’s
mental impairment in 1986. It would have been far
88                   DEERE V . CULLEN

preferable to have had an evidentiary hearing in 1993, when
the issue was first presented to the state and federal habeas
courts. It would also have been preferable in 2003, when we
remanded to the district court for a hearing concerning
Deere’s competence, to have remanded at the same time for
a hearing concerning Judge Metheny’s competence. Over my
objection, the panel majority declined to add to our 2003
remand order a direction to conduct such a hearing.

    I also realize that inquiries into the mental competence of
judges pose difficulties. I am sympathetic to the concerns
expressed by my colleague, then-Judge Kozinski, in his
dissenting opinion in Summerlin v. Stewart, 267 F.3d 926,
957 (9th Cir. 2001) (Kozinski, J., dissenting), opinion
withdrawn, Summerlin v. Stewart, 310 F.3d 1221 (9th Cir.
2002). In a perfect world, all judges would retire before their
mental faculties deteriorate to the point where they are no
longer competent to perform as judges. In that world, we
would not be faced with the difficult problem of forcing, or
encouraging, our colleagues to retire, or with the equally
difficult problem of dealing with cases decided by judges
who were, or might have been, incompetent.

    But this is not a perfect world. Some judges stay on too
long. They decide cases when they are no longer competent
to do so. There is credible evidence of mental incompetence
in the record before us. Deere has not embarked on a fishing
expedition in which he hopes to find evidence of
incompetence. He already has such evidence, a lot of it.
There may be more evidence still to be found, but Deere has
already presented enough to warrant a hearing.

    I therefore conclude that the district court erred in
refusing to hold an evidentiary hearing on whether Judge
                     DEERE V . CULLEN                      89

Metheny was mentally competent when he sentenced Deere
to death in 1986.

 2. IAC for Failing to Seek Recusal of Judge Metheny

     In his state habeas petition, Deere requested an
evidentiary hearing on whether Jones committed IAC in
failing to seek recusal of Judge Metheny. The state court
denied the request. The district court on federal habeas also
denied Deere’s request for a hearing on Jones’s alleged IAC
in failing to seek recusal based on Judge Metheny’s
incompetence.

    To establish IAC, Deere must show (1) that Jones’s
performance fell below an objective standard of
reasonableness; and (2) that the performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687–88
(1984). An attorney’s performance is deficient when
“counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. There is a strong presumption that
counsel’s conduct falls within “the wide range of reasonable
professional assistance.” Id. at 689. To establish prejudice,
“[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694.

    If Jones had successfully moved in 1986 to recuse Judge
Metheny based on incompetence, Judge Metheny would not
have been permitted to resentence Deere. A due process
violation based on a valid objection to a sitting judge is
structural error such that reversal or vacation of the judge’s
order or judgment is automatic. Tumey v. Ohio, 273 U.S.
90                    DEERE V . CULLEN

510, 535 (1927); Greenway v. Schriro, 653 F.3d 790, 805 (9th
Cir. 2011) (“[W]hen a defendant’s right to have his case tried
by an impartial judge is compromised, there is structural error
that requires automatic reversal.”); see also Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 883–84 (2009) (in a
case of alleged judicial bias, a litigant need not demonstrate
actual bias, but rather only a sufficient “risk” of bias).

    Deere has presented substantial evidence that Judge
Metheny was mentally incompetent in 1986 when he
resentenced Deere to death. Deere had convinced Jones that
he wanted to die. Jones and Deere struck a “deal” whereby
Jones would do almost nothing to avoid the death penalty. I
do not believe that such a deal — even if Deere had been
competent to make it — permitted Jones, consistent with his
duties as an attorney, to permit a violation of due process by
allowing a mentally incompetent judge to decide whether his
client should live or die.

    A showing of prejudice under Strickland requires a
showing that there is a “reasonable probability” that Jones
would have succeeded in 1986 if he had moved to recuse
Judge Metheny on grounds of incompetence. The evidence
already in the record is more than sufficient to show that such
a motion by Jones would have been successful. The
affidavits of Huff, Kennedy, and Sullivan show that Judge
Metheny was incompetent in 1986, and that his incompetence
was widely known. More specifically, Sullivan’s affidavit
recounts that he and his opposing counsel went to the
presiding judge in 1986 when Judge Metheny came down off
the bench, shook hands with the spectators, commented on
their Christianity, and dismissed the small civil case in the
middle of trial. The presiding judge, well aware of Judge
Metheny’s mental state, promptly reassigned the case and
                     DEERE V . CULLEN                      91

retried it himself. If the presiding judge was willing in 1986
to reassign this relatively inconsequential case because of
Judge Metheny’s incompetence, there can hardly be any
doubt that he would have reassigned Deere’s capital case if
Jones had sought recusal.

    I therefore conclude that the district court erred in
refusing to hold an evidentiary hearing on whether Jones
committed IAC in failing to seek recusal of Judge Metheny.

            III. Deere’s Competence in 1982

    We remanded in 2003 for an evidentiary hearing on issues
related to Deere’s competence to plead guilty in 1982. After
an extensive hearing, the district court concluded that Jones
committed IAC in failing to challenge Deere’s competence to
plead guilty.

   I agree with the district court that there is a reasonable
probability that, had attorney Jones properly investigated,
Deere would have been found incompetent to plead guilty.

                      A. Background

    Deere was born in 1954. He is of Creek and Seminole
heritage through his father. Deere was one of eight children
in a very poor family. Deere’s father was a violent alcoholic
who abused his wife and beat his children until they bled.
Deere’s mother sometimes beat him. The family moved to
Blythe, California, from Oklahoma so that Deere’s parents
could work as farm laborers. During his childhood, Deere
was exposed to pesticides and pollutants in the nearby fields
and in the drinking, irrigation, and swimming water.
92                   DEERE V . CULLEN

    Deere suffered three or perhaps four episodes of
convulsions before he was one year old. He was placed in
special education in the third grade because of attention and
personality problems. At age ten, Deere had a full-scale I.Q.
of 76, which placed him in the sixth percentile. When Deere
was ten or eleven years old, he grabbed bare electrical wires
and remained in contact with the current for several minutes.
The shock adversely affected his coordination. Deere began
cutting himself by age eleven. He began running away from
home by age twelve. Deere dropped out of school in the
eighth grade. He was committed to the California Youth
Authority at age thirteen or fourteen.

    Deere continued to cut himself in his adulthood, leaving
long and deep scars all over his body. Deere repeatedly asked
Alice Lyon, the mother of his first daughter, to kill him.
Once, after he had seriously cut his hand, he asked police
officers to let him die. On another occasion, when police
found Deere bleeding from six-inch cuts on both arms and a
smaller cut on his chest, Deere refused medical attention.
Deere frequently came to the attention of local police for
conduct including alcohol-related offenses, disturbing the
peace, stealing a cow, and possessing a concealed weapon.

     Deere had a tumultuous relationship with Cindy Gleason,
the mother of his second daughter. In the six months before
the murders, Deere’s self-mutilation increased, and he drank
a fifth of vodka each day. Cindy left Deere in January 1982,
taking their baby to her mother’s house. Deere began
threatening Cindy and her family, including threatening to
kill family members if Cindy left him and took the baby away
permanently.
                     DEERE V . CULLEN                      93

    On January 12, 1982, Deere and Cindy met with social
worker Virginia Erickson Tiernan. Tiernan noticed a seven-
or eight-inch cut on Deere’s arm. Deere told Tiernan that if
he did not cut himself, he would hurt others. Tiernan was
concerned that Deere was mentally ill and suggested that he
go to the local mental-health center. An intake worker at the
center diagnosed Deere with marital problems, alcohol abuse,
and antisocial personality disorder.

    In February 1982, Deere and Cindy briefly reconciled but
again separated. Deere’s self-mutilation and substance abuse
increased, and he again began threatening Cindy and her
family. In the two weeks before the murders, Cindy and her
mother called Tiernan two or three times each night. Tiernan
regularly asked the sheriff, probation department, and police
for help, reporting Deere’s threats against Cindy and her
family.

    On February 22, 1982, Cindy called Tiernan twice asking
for help. Tiernan advised Cindy to get Deere “into mental
health” and tried the next day to get Deere placed on a 72-
hour psychiatric hold. On the advice of the probation
department, Deere returned to the mental-health center on
February 25, 1982. The intake worker noticed a cut on
Deere’s forearm, but noted that there was “no indication” of
any “danger to self” and instructed Deere to keep his normal
appointment for the next week.

    On March 3, 1982, Cindy called the police to ask for help.
Cindy’s mother called the supervising psychologist at the
mental-health center, who told Cindy’s mother that he could
not see Deere unless she and Cindy went through “the proper
channels.” Cindy called the probation department for help
the next day, March 4, 1982. The probation department told
94                    DEERE V . CULLEN

Cindy to call the same supervising psychologist. The
supervising psychologist told Cindy to set up an appointment.
On the afternoon of March 4, Cindy’s former brother-in-law
Don Davis picked up his two daughters, Cindy’s nieces, for
visitation. Witnesses reported seeing Deere that evening at a
local market, drunk or in a daze. That night, Cindy and her
sister drove to Davis’s trailer and found the bodies of Davis
and the two girls.

     Five days later, police found Deere in the desert, missing
his shirt and a shoe. Deere told the police he had been living
on ditch water and raw birds. He had with him notes he had
addressed to Cindy and his parents. Police found a .22 rifle
with writing scratched into the wood stock: “if you have
gone to doctor I got end the mean Ronnie I wish I understood
— Kathy she help kill them now love her — Now live with
it for life — you killed them to — Shorty [Cindy] you hurt
like me how dose [sic] feel.”

     B. Proceedings Leading to Deere’s Guilty Plea

    On the afternoon of March 9, 1982, after Deere’s arrest
but before appointment of defense counsel, Dr. Tommy
Bolger interviewed Deere at the jail. Dr. Bolger had never
received formal psychiatric training. He had received a
degree of Doctor of Osteopathic Medicine in 1957 and had
become a Medical Doctor in 1962 as a result of the California
Reunification Act. Dr. Bolger spent most of his career
working in the California state prison system. From 1965 to
1970, he worked under the classification “Physician and
Surgeon II” at Patton State Hospital. He then worked as a
“Chief Medical Officer” at San Quentin prison in 1975 and a
“Physician and Surgeon” at Soledad prison from 1975 to
1977. He received a classification as a “Staff Psychiatrist” at
                      DEERE V . CULLEN                      95

Soledad in 1977. He voluntarily resigned from state service
in 1979 and moved to Blythe, where he worked for Riverside
County as a “medical and psychiatric consultant.”

    Dr. Bolger spoke with Deere for an hour and five minutes.
He prepared a report for the police in which he stated, “His
intellectual capacity is adjudged a dull normal,” and
“Judgement is narrowed and constricted.” Dr. Bolger
provided what he called a “diagnostic impression”: “1) Not
mentally ill[.] 2) Dependant personality type, with explosive
features, Alcohol and drugs a factor. 3) Antisocial personality
type, with borderline features, not psychotic.” Dr. Bolger
concluded:

       Mr. Deere is not mentally ill. He has a severe
       personality problem. He does understand the
       nature and [sic] the charges against him and was
       certainly capable of forming the intent and then
       carrying out the action. He is capable of
       cooperating with Counsel in his defense, if he
       feels it is to his advantage.

    Dr. Bolger had interviewed Deere a year earlier in
connection with treatment of Deere’s father for seizures and
mental health problems linked to alcoholism. At that time,
Dr. Bolger had concluded that statements by Deere were
“merely [Deere’s] attempt to blame his problems on someone
else.” Dr. Bolger did not disclose in his report to the police
that he had previously interviewed and formed an impression
of Deere. He testified in 1986 that he had had no knowledge
of Deere before the 1982 jail interview.

   The day after Deere’s jail interview with Dr. Bolger, the
court appointed deputy public defender Glenn Jones to
96                    DEERE V . CULLEN

represent Deere. Deere told Jones that he did not want a trial,
did not want a defense, and wanted to be executed. Deere
refused to discuss the facts of the case with Jones and insisted
on pleading guilty.

    Deere initially pled not guilty, but later moved to change
his plea to guilty. On the recommendation of the prosecutor,
the court appointed Dr. Bolger to evaluate Deere’s
competence before taking his guilty plea. The prosecutor
represented to the court that Dr. Bolger was a board-certified
psychiatrist. Dr. Bolger himself sometimes represented that
he was a board-certified psychiatrist, even though he was not.
It appears to have been common knowledge in the
community that Dr. Bolger was not a qualified psychiatrist.
Dr. William Jones, the psychologist that attorney Jones later
retained to evaluate Deere for mental health defenses,
testified in the district court that attorney Jones

       characterized Dr. Bolger as sort of a hack. No
       one else would go to Blythe, so they used him
       in that area. It was someone who had no
       formal psychiatric training whatsoever[.]

    Dr. Bolger interviewed Deere for about an hour and a half
on June 19, 1982, and submitted a short report to the court on
June 21. Dr. Bolger wrote that Deere had been given two
intelligence tests. In his earlier report to the police, Dr.
Bolger had written that Deere’s intellectual capacity was
“dull normal,” and that he had “narrowed and constricted”
judgment. But in the June report to the court, Dr. Bolger
reported that Deere was intelligent and had good judgment.
Dr. Bolger wrote: “He is given verbal Wechsler and verbal
O[fficer] I[ntelligence] T[est] and scores adequately in the
high percentile range.” “Judgement as tested by verbal skills
                      DEERE V . CULLEN                      97

in aforementioned verbal testing is excellent. . . . His I.Q.
would be adjudged to be in the high range of normal.” There
is no indication in the record that Dr. Bolger’s earlier report
to the police was ever submitted to the court. Dr. Bolger did
not reveal in his report to the court that he had prepared a
report for the police or that he had interviewed and formed an
impression of Deere a year earlier. Dr. Bolger concluded in
his report to the court that Deere was competent to plead
guilty.

    On June 25, Deere pled guilty to three counts of murder
and admitted a special circumstance allegation. At the time
of Deere’s plea, attorney Jones had requested but had not yet
received a psychological evaluation. Attorney Jones had seen
the scars of self-inflicted wounds on Deere’s arms, chest, and
abdomen. He had recognized signs of possible mental illness
and had requested funds from the court to retain mental-
health experts. (Jones ultimately spent only $1,696.86 of the
$5,000 the court awarded for this purpose.) Jones contacted
Dr. William Jones, Ph.D. (no relation), a licenced
psychologist, and asked him to do a general psychological
evaluation of Deere.

    Deere initially refused to see Dr. Jones. He agreed to see
Dr. Jones only on the condition that Attorney Jones allow him
to plead guilty. Dr. Jones interviewed Deere twice. The first
interview took place two days before Deere pled guilty. The
second interview took place a week later. The first interview
took an hour and a half, followed by two and a half hours of
psychological testing. The second interview lasted only thirty
minutes. Dr. Jones testified in the district court that Deere
refused to complete the second interview because “he was not
able to deal with the emotions” of discussing the crime or the
death penalty.
98                    DEERE V . CULLEN

    Attorney Jones did not ask Dr. Jones to evaluate Deere’s
competence to plead guilty. Dr. Jones testified in the district
court that it was standard procedure in the profession in 1982
not to give an opinion on competence unless asked to do so.
Dr. Jones wrote in his report that Deere frequently cut himself
to avoid hurting others, “has a very major alcohol abuse
problem,” and “ha[s] a major drug abuse problem.” He
reported that Deere’s full-scale I.Q. on the “Wechsler Adult
Intelligence Scale-Revised” tested at the 7th percentile, or
borderline retarded. Deere’s Wechsler “verbal I.Q.” tested
“at the 6th percentile, also in the borderline range.” (Recall
that Dr. Bolger reported to the court that Deere had scored “in
the high percentile range” on this same Wechsler test.) The
tests showed, further, that Deere had reading recognition at
about the sixth grade level, in the fifth percentile of persons
his age; spelling at the fourth grade level, in the first
percentile; and arithmetic at the third grade level, in the fifth
percentile.

    Dr. Jones diagnosed Deere as having an adjustment
disorder with depressed mood, mixed substance abuse
disorder, and borderline personality disorder with anti-social
aspects. Dr. Jones wrote that Deere had had a long-standing
desire to be killed, and that he pled guilty so that the State
would fulfill this desire:

        He feels that suicide cannot be forgiven, but
        that it is permissible for someone else to kill
        him. Consequently, he states that he has
        frequently asked others to kill him and stab
        him. He has even paid money for this and on
        one occasion apparently was stabbed.
                      DEERE V . CULLEN                        99

        Presently Mr. Deere states that he does not
        care in the slightest what happens to him. He
        states that if he is given the death penalty he is
        willing to accept it and indeed would prefer it
        to life imprisonment. He thinks this would
        make him feel better, but he is unclear as to
        how he would feel better if he were dead.

   Dr. Jones testified at the evidentiary hearing in the district
court that he had been concerned about Deere’s competence,
and had expressed his concerns orally to attorney Jones:

        I have a recollection that we talked either in
        person — I believe in person or on the
        telephone before I prepared the report. I
        recall having a — this conversation sticks in
        my mind more vividly than anything else
        about this case. The issue on one hand, my
        reservations that he was so self-destructive
        and on [attorney Jones’s] hand the idea . . .
        that opting for the death penalty was, in fact,
        a rational thing for Mr. Deere to do at the time
        and not, in fact, a — something reflecting
        incompetence.

When asked at the evidentiary hearing if in 1982 he had “felt
Deere was incompetent” and had “in essence . . . told
[attorney Jones] that,” Dr. Jones replied, “Yes.”

               C. District Court Proceedings

    The district court conducted extensive proceedings after
our 2003 remand. The State and Deere both introduced
evidence concerning Deere’s competence in 1982.
100                   DEERE V . CULLEN

                  1. The State’s Evidence

    The State’s evidence consisted of Dr. Bolger’s reports and
the report and testimony by Dr. Park Dietz. Dr. Bolger had
died by the time of the district court hearing, so the State
relied on the two reports he prepared in 1982, both of which
are described above.

    Dr. Dietz is a board-certified psychiatrist, but he has not
treated patients since 1988. He testified that he is the “head”
of two corporations, one of which provides expert psychiatric
testimony in criminal cases. This firm employs a substantial
staff of experts “from various disciplines.” Dr. Dietz
described the manner in which his firm prepares cases:

       Basically, we seek to obtain all the relevant
       documents that we can foresee or that the
       client allows us to know exists. So we
       typically send a list of documents that we’re
       requesting. . . . And then depending on the
       complexity of the case, the quantity of the
       documents sometimes more than one expert
       will work on it. On a simple case with a small
       stack of documents often that will just be one
       person’s work. But if there are multiple
       issues, multiple areas of expertise or extensive
       documents, we’ll often involve additional
       experts on the case.

Dr. Dietz has testified in a number of high-profile criminal
cases in federal and state court. In somewhere between 80
percent to 90 percent of the cases, Dr. Dietz has testified for
the prosecution.
                      DEERE V . CULLEN                     101

    Dr. Dietz did not interview Deere. He testified that his
declaration and his testimony were primarily based on the
observations of attorney Jones and to some degree on the
reports of Dr. Bolger. Dr. Dietz concluded in his declaration,
“Mr. Deere was, in my judgment, competent each time he
was examined by the court,” including the occasion on
“6/25/92 [sic], when Mr. Deere advised the court that it was
his wish to change his plea from not guilty to guilty on all
counts.” Dr. Dietz testified that Deere’s history and
symptoms were “proof” that he had “a borderline personality
disorder.” He testified, “Mr. Deere’s borderline personality
disorder did not in my view make him incompetent to enter
into the decisions he did in 1982.”

    Dr. Dietz relied for his diagnosis in substantial part on a
number of statements made by attorney Jones. For example,
Dr. Dietz quoted Jones as saying, “He knows the
consequences of every decision he’s made, as well as the
consequences of his criminal acts. . . . They are rational,
intelligent decisions by a man who realizes what he has done
and says, ‘This is the only position I can take to show you
that I am still a man and not an animal.’”

   Dr. Dietz also testified that he trusted Dr. Bolger’s
“observations”:

       Dr. Bolger’s report contains enough
       descriptive information of Dr. Bolger’s
       observations to support the opinion he offers
       in this report. And judged by the standards of
       the day, it was an average or above average
       competency evaluation.
102                   DEERE V . CULLEN

Dr. Dietz admitted that Dr. Bolger had made a mistake in
“estimating” Deere’s I.Q. He wrote in his declaration:

       Dr. Bolger could be faulted by the standards
       of the day for estimating Mr. Deere’s IQ as
       too high (“high range of normal”) in his report
       of 6/21/82 and for less than laudatory writing
       skill.

(Emphasis added.) Dr. Dietz described in his district-court
testimony how he thought Dr. Bolger had arrived at his
“estimate” that Deere’s I.Q. was in the “high range of
normal”:

       Well, what he did was an impressionistic
       evaluation of intelligence, which was fairly
       common then and many people still do it
       which is give an off-the-cuff idea of whether
       they think someone is above average or below
       average without any testing of that. And his
       off-the-cuff finding was wrong.

(Emphasis added.) Deere’s attorney asked Dr. Dietz whether
Dr. Bolger’s mistake in his “estimate” of Deere’s I.Q. was “a
fatal error in his report that makes his conclusion erroneous?”
Dr. Dietz replied, “No. The only way it could be is if it
turned out by objective evidence that Mr. Deere was mentally
retarded.” (Emphasis added.)

    Dr. Jones had concluded in 1982 that Deere was
incompetent to plead guilty because he had long felt a
compulsion to seek death, had felt that it wrong for him to kill
himself, and had desired to be killed by someone else.
Deere’s three other professional witnesses agreed with Dr.
                      DEERE V . CULLEN                      103

Jones’s conclusion that Deere’s mental illnesses drove his
compulsion to die and thus his decision to plead guilty. Dr.
Dietz disagreed with the conclusion that Deere had a
“compulsion” to seek death. However, his disagreement was
based on a narrow technical definition of “compulsion” that
requires the sufferer of the disorder to be self-aware, such that
the sufferer is himself aware that his actions are “excessive or
unreasonable.”

    Dr. Dietz made two obvious mistakes in his testimony.
First, Dr. Dietz stated that Dr. Bolger could be forgiven for
merely “estimating” Deere’s I.Q. “without any testing.” Dr.
Dietz had not been told, or perhaps did not remember, that
Dr. Bolger had not merely “estimated” Deere’s intelligence.
Rather, Dr. Bolger had performed two separate intelligence
tests. Dr. Bolger had stated in his report to the court: “He is
given verbal Wechsler and verbal O[fficer] I[ntelligence]
T[est] and scores adequately in the high percentile range.”

    Second, Dr. Dietz minimized the importance of Dr.
Bolger’s mistaken “estimate” of Deere’s I.Q. on the ground
that there was no “objective evidence” that Deere was
“mentally retarded.” Dr. Dietz had not been told, or perhaps
did not remember, that there was indeed objective evidence
of mental retardation. Dr. Jones had stated in his report in
1982 that he had tested Deere’s full-scale and verbal I.Q.s,
and had found that Deere was borderline retarded.

                    2. Deere’s Evidence

   Deere’s evidence at the district court evidentiary hearing
consisted primarily of evaluations by four doctors — Dr.
Jones, Dr. Fred Rosenthal, Dr. Armando Favazza, and Dr.
Pablo Stewart. Two of the four doctors had personally
104                  DEERE V . CULLEN

interviewed Deere. All four of them concluded that Deere
was not competent to plead guilty in 1982.

   As noted above, Dr. Jones interviewed Deere twice in
1982, just before and just after Deere pled guilty, and
prepared a contemporaneous report. Dr. Jones wrote in a
1993 declaration:

       Mr. Deere . . . had a compulsion to be
       punished with the death penalty and did not
       want anyone to interfere with that. Mr.
       Deere’s insistence on pleading guilty was part
       of that compulsion and an outgrowth of his
       mental disturbances; it was irrational. . . . Mr.
       Deere was extremely self-destructive to begin
       with and teetered throughout his life on the
       edge of suicide, as evidenced most
       dramatically by his history of self-
       mutilation. . . . In sum, it appeared to me that
       Mr. Deere was so bent on self-destruction that
       it disabled him from cooperating in a
       meaningful way with the presentation of a
       defense and caused him to solicit the death
       penalty. . . . Mr. Deere’s personality was one
       of denial about his inadequacies, and his
       ability to correctly perceive reality was
       limited. It would have been naive to take Mr.
       Deere at face value because he was not
       thinking logically.

Dr. Jones concluded:

       In my opinion, which I hold to a reasonable
       degree of professional certainty, Mr. Deere
                      DEERE V . CULLEN                     105

       was not competent to aid and assist counsel in
       the conduct of a defense in a rational manner
       due to his mental disabilities, which
       compelled him to seek death. Mr. Deere
       simply was not able to make logical
       judgments about his defense; rather, he had a
       compulsion to be punished with the death
       penalty and did not want anyone to interfere
       with that. Mr. Deere’s insistence on pleading
       guilty was an irrational part of that
       compulsion and an outgrowth of his mental
       disturbances.

   Dr. Jones testified in the district court to the same effect
as his 1993 declaration. He emphasized that Deere had
wanted someone to kill him long before the murders:

       [Deere] reported that he had asked other
       people to kill him before. He did not believe
       in suicide, but he believed it would be okay if
       someone else killed him. . . . In my view, his
       wanting the death penalty . . . was just kind of
       an extreme amount of masochistic behavior
       and self-destruction, efforts to destroy
       himself. He was strongly motivated in that
       direction at that time.

Dr. Jones testified further “that was my conclusion, [in 1982,]
that some of his acting out behavior was quite prov[o]cative
towards others, and my belief was that he desired . . . to be
killed.” Dr. Jones testified that Deere told him that he had
even paid others to kill him.
106                  DEERE V . CULLEN

   Dr. Rosenthal is a board-certified psychiatrist. He
examined Deere twice in December 1992 and prepared a
declaration in early 1993. Dr. Rosenthal concluded that
Deere was incompetent in 1982. He wrote in his declaration:

           Mr. Deere purported to enter a guilty plea,
       but arrived at that decision under compulsion
       and substantial pressure from a person on
       whom he was extremely dependent. He was
       held in solitary confinement and made
       constantly aware of threats against his life by
       persons inside and outside the jail. He was
       repeatedly interrogated, including three
       interviews by his former common-law wife,
       Cindy Gleason, and he was repeatedly told
       that he had committed the crimes and
       deserved to die.

           There is substantial evidence that his
       thought processes were illogical and disturbed
       during the period of his incarceration. For
       example, he continued to write to Cindy
       Gleason, proclaiming his love for her, despite
       her repeated insistence that he deserved to die
       and was less than a man. . . .

           In my professional opinion, which I hold
       to a reasonable degree of medical certainty,
       Mr. Deere’s multiple mental impairments,
       exacerbated by pressures from his former
       girlfriend and the conditions of his
       confinement, rendered him incompetent to
       rationally comprehend his trial proceedings or
       to aid and assist counsel at trial. I concur in
                     DEERE V . CULLEN                     107

       the conclusion of William Jones, Ph.D., who
       examined Mr. Deere at the time of his plea,
       and would have advised he was not competent
       to stand trial.

Because the State had not been able to examine Deere after
1982, and because there was concern that it might therefore
be unfair to allow testimony about Dr. Rosenthal’s 1992
examination of Deere, Dr. Rosenthal did not describe his
interviews with Deere in his district-court testimony.
However, Dr. Rosenthal’s 1993 declaration was entered into
the district-court record.

    Dr. Armando Favazza is a board-certified psychiatrist.
He is an expert on the psychology of people who cut
themselves. Dr. Favazza reviewed Deere’s personal history
and records, noting Deere’s troubled and violent family
history, alcohol abuse, depression, and his “prodigious” self-
mutilation.     Dr. Favazza concluded that Deere was
incompetent in 1982 because he possessed a “pathological
fixed idea that he must be killed.” Dr. Favazza testified that
Deere’s fixed idea, formulated in early childhood

       remained with him to this very day and is a
       core, central, pathological idea and is
       preventing him from cooperating with his
       counsel. He just wants to die, and he’s in a
       perfect situation right now because he can
       have the state kill him, and this is what he
       wants.

    Dr. Pablo Stewart is a board-certified psychiatrist. He is
also an examiner with the American Board of Psychiatry and
Neurology, which grants board certification for psychiatrists.
108                  DEERE V . CULLEN

Dr. Stewart also reviewed Deere’s personal history and
records. He concluded that Post-Traumatic Stress Disorder
was Deere’s primary condition, and that its interaction with
Deere’s depression, substance abuse, and possible organic
brain damage rendered him incompetent. Dr. Stewart’s
assessment of Deere’s competence matched that of Drs.
Jones, Rosenthal and Favazza. He testified:

       Based on the totality of the record, it is my
       opinion that [Deere’s] pleading guilty and
       wishing to be executed was not an
       independent decision but rather colored by,
       affected by[,] and was a result of his
       underlying psychiatric condition.

                3. District Court Decision

    Ineffective assistance of counsel requires a showing of
both deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The State does not
dispute that Jones performed deficiently. It contends only
that there was a lack of prejudice. Prejudice requires that
there be a “reasonable probability” that counsel’s deficient
performance affected the outcome of the case. The Court
wrote in Strickland, “[W]e believe that a defendant need not
show that counsel’s deficient conduct more likely than not
altered the outcome in the case. . . . The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 693–94 (emphasis added). See also Kyles
v. Whitley, 514 U.S. 419, 434 (1995); Howard v. Clark,
608 F.3d 563, 568 (9th Cir. 2010).
                      DEERE V . CULLEN                     109

    The district court held that Deere established IAC by
Jones. Because Dr. Jones was the only qualified professional
who had performed a contemporaneous examination, the
court relied most heavily on Dr. Jones’s conclusion. The
court also relied, though less heavily, on the conclusion of Dr.
Rosenthal, who examined Deere in 1992, and on the
conclusions of Drs. Favazza and Stewart. The district court
discounted Dr. Bolger’s conclusion on the ground that Dr.
Bolger was an unqualified evaluator who lied about his
qualifications. The court considered Dr. Dietz’s conclusion,
but weighed it against the contrary conclusions of Drs. Jones,
Rosenthal, Favazza and Stewart. The court held that there
was a reasonable probability that, had attorney Jones
adequately developed the record in 1982, Deere would have
been found incompetent to plead guilty. The court gave its
reasons in a careful forty-nine-page order. I agree with the
district court.

  D. Majority’s Disagreement with the District Court

    The majority disagrees with the district court. Its reasons
are unconvincing.

    First, the majority relies heavily on Dr. Bolger’s
conclusion that Deere was competent. It tries mightily to
make Dr. Bolger into something other than an unqualified
imposter, repeatedly referring to Dr. Bolger as a
“psychiatrist” and refusing to admit that Dr. Bolger lied when
he claimed in sworn testimony that he was board-certified in
psychiatry. Op. at 4, 8–9 and n.1, 49. However, the parties
jointly stipulated in the district court: “Dr. Bolger was never
board certified, and his educational credentials did not qualify
him for board certification.”
110                   DEERE V . CULLEN

    Second, the majority contends that Dr. Bolger and Dr.
Jones came to the same conclusions about Deere’s
competence in 1982. Op. at 48–49. This is not true. As a
preliminary matter, I note the obvious: Dr. Bolger’s report
responded to the court’s question whether Deere was
competent to plead guilty. Dr. Jones’s 1982 report did not
purport to answer that question. More fundamentally, Dr.
Bolger’s and Dr. Jones’s conclusions about Deere’s mental
state were strikingly different. Indeed, Dr. Bolger wrote two
reports, whose conclusions are themselves strikingly
different.

    Dr. Bolger’s report to the police (which may not have
been submitted to the court) contained a “diagnostic
impression” that Deere had, inter alia, an “[a]ntisocial
personality type, with borderline features, not psychotic.” It
assessed Deere as having a “dull normal” “intellectual
capacity,” and having “narrowed and constricted” judgment.
Dr. Bolger’s report to the court described a very different
mental state. Dr. Bolger stated that Deere had scored “in the
high percentile range” on two I.Q. tests, one of which was the
Wechsler Verbal I.Q. test. Dr. Bolger wrote further,
“Judgement as tested by verbal skills in aforementioned
verbal testing is excellent. . . . His I.Q. would be adjudged to
be in the high range of normal.” Dr. Bolger concluded: “He
displays no evidence of psychosis or abnormal thinking and
of course no mental illness is evident.”

    Dr. Jones provided a single report, based on two
interviews and testing. Dr. Jones provided a more extensive
discussion of Deere’s background and family history than
either of Dr. Bolger’s reports. Unlike Dr. Bolger, who had
provided only a “diagnostic impression” in his first report and
no “diagnosis” at all in his second report, Dr. Jones provided
                     DEERE V . CULLEN                     111

a formal diagnosis: “Adjustment disorder with depressed
mood[;] Mixed substance abuse disorder, including abuse of
alcohol, marijuana, stimulants, a[m]phetamines, etc.[;]
Borderline personality disorder with anti-social aspects.”
Also unlike Dr. Bolger, who had reported in his first report
that Deere had above average intelligence, Dr. Jones reported
that Deere was borderline retarded.

    Most important, Dr. Jones provided an analysis of Deere’s
mental state that was entirely lacking from either of Dr.
Bolger’s reports. Dr. Jones described Deere’s long-standing
desire to die at someone else’s hand, which had led to his
desire to plead guilty. Dr. Jones wrote, “He feels that suicide
cannot be forgiven, but that it is permissible for someone else
to kill him. Consequently, he states that he has frequently
asked others to kill him and stab him. He has even paid
money for this and on one occasion apparently was stabbed.”
Dr. Jones wrote in the last two sentences of his report:
“There are self-destructive inclinations, but they are blocked
from expression in suicide. Some of his acting out behavior
may have been an effort to get others to kill him.”

    Third, the majority relies on the observations of Judge
Metheny, attorney Jones, and the prosecutor. It emphasizes
that these people had opportunities to observe Deere, and that
none of them concluded that he was incompetent to plead
guilty. The relevant time period is 1982, so I do not discount
Judge Metheny’s observations on the ground that he was
incompetent. But I do note that the opportunities for
observation by Judge Metheny and the prosecutor were
limited.

    More important, mental illness is often not detectable by
a lay person. Dr. Stewart testified that those who are
112                  DEERE V . CULLEN

mentally ill often “mask” symptoms, and that “people in the
criminal justice system will go to great lengths to hide the
severity of mental illness where, in fact, their behavior is
incompetent, but it’s not seen that way cause they don’t see
it as mental illness.” Dr. Stewart testified further that “the
fact that the judge, his counsel, bailiffs[,] all these other
people thought he was competent, that doesn’t help me one
way or the other.” Dr. Rosenthal also testified that a
competency determination cannot be based on a layperson’s
view: “I don’t think the layperson may pick up things that
suggest there’s some doubt about competency. It would be
a mistake to rely on the layperson’s judgment to assess
whether somebody is competent or not competent.”

    Deere’s professional witnesses cautioned against being
taken in by Deere’s apparent rationality. Dr. Rosenthal
testified that taking “what the client says at face value”

       can be a real trap. Because one of the
       problems of not understanding much about
       mental illness and the way it presents is that
       you can get people telling you things that look
       very legitimate and reasonable when they’re
       really not and the person is operating in an
       entirely different world from the one you’re
       in.

Dr. Favazza agreed. He concluded that Deere tricked
attorney Jones into believing that his decision was rational.
Dr. Jones testified, “I did not think that you could take Mr.
Deere at face value. He — I don’t think he used his rational
thinking of doing much of anything in his life, but he would
offer rationalizations after the fact at times.”
                      DEERE V . CULLEN                     113

    Fourth, the majority contends that the facts of the crimes
and the transcripts of Deere’s guilty plea proceedings show
that he was not “out of touch with reality,” and that he
“actually understood what was going on.” Op. at 50–51. The
majority misses the point. Drs. Jones, Rosenthal, Favazza,
and Stewart did not conclude that Deere was incompetent to
plead guilty based on a disconnection from reality that
prevented him from understanding what was “going on.”
Rather, they concluded that Deere’s mental illnesses drove
his strong desire to die at the hand of someone else. This
desire long predated his crime, and so strongly compelled him
to plead guilty that he was prevented from making a rational
choice.

    Finally, the majority writes, “Eleven years after Deere
pled guilty, habeas counsel came forward with newly-
obtained opinions to the effect that Deere’s plea was
motivated by an irrational desire to be put to death, rendering
him incompetent and his plea invalid.” Op. at 50. In
disparaging what it calls “these belated opinions,” the
majority ignores Dr. Jones’s report, prepared in 1982. Op. at
52. Dr. Jones described in his report Deere’s long-standing
desire to be killed by someone else, such that seeking the
death penalty would fulfill that desire. Far from being a
“belated opinion,” this is a contemporaneous opinion by the
only qualified professional who examined Deere in 1982.

    Deere’s three other professional witnesses agreed with Dr.
Jones. All four witnesses testified to the same thing — that
Deere suffered from mental impairments producing a
compulsion to seek death at the hand of someone else, that a
plea of guilty followed by execution would satisfy Deere’s
deep-seated and irrational need, and that Deere’s compulsion
prevented him from making a rational choice. In the words
114                   DEERE V . CULLEN

of Dr. Favazza, “He just wants to die, and he’s in a perfect
situation right now because he can have the state kill him, and
this is what he wants.”

                         Conclusion

    There is no greater judicial responsibility than deciding
whether a person shall live or die at the hands of the state.
The majority makes a grievous error in holding that no
hearing was required on the competence of Judge Metheny to
sentence Deere to death in 1986. The majority similarly errs
in holding that no hearing was required as to whether Jones
was ineffective in failing to seek to disqualify Judge
Metheny. Finally, the majority errs in holding that Jones did
not commit ineffective assistance of counsel in failing to
investigate Deere’s competence to plead guilty in 1982.

   I respectfully but emphatically dissent.
