                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 22 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RAIN DICKEY-O’BRIEN,                             No. 13-16667

              Petitioner - Appellant,            D.C. No. 2:07-cv-01241-WBS-
                                                 CKD
  v.

JAMES A. YATES, Warden and                       MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                     Argued and Submitted December 10, 2014
                             San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

       Rain Dickey-O’Brien appeals from the district court’s denial of his petition

for habeas corpus. The facts are known to the parties and will not be repeated here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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He first contends that the state trial court’s decision to use CALJIC 4.00 rendered

his trial fundamentally unfair. Second, he contends that two events that occurred

during his trial created doubt concerning his competency to stand trial, requiring

the state trial court to hold a competency hearing sua sponte.

       The claim that CALJIC 4.00 does not conform to the M’Naghten test fails

because there was no showing that any violation of clearly established federal law

occurred. See 28 U.S.C. § 2254(d)(1); see also Estelle v. McGuire, 502 U.S. 62,

71-72 (1991) (“[T]he fact that” a jury instruction was “allegedly incorrect under

state law is not a basis for habeas relief.”).

       As to the competency at trial issue, Dickey-O’Brien identifies two events

that he argues created doubt. First, the trial court judge noted unspecified

“difficulties.” Second, on the same day, the prosecutor noted that Dickey-O’Brien

had sat “nearly motionless and mute” during the trial. At oral argument, his

counsel acknowledged that the record contains no other references to either event.

       “[T]he failure to observe procedures adequate to protect a defendant’s right

not to be tried or convicted while incompetent to stand trial deprives him of his due

process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172 (1975). A court

must conduct a hearing sua sponte if it has a “bona fide doubt” as to the

defendant’s competency. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010).

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“Genuine doubt” rather than “synthetic or constructive doubt” is required. de

Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir. 1976).

      Without more, the two events identified by Dickey-O’Brien are insufficient

to meet the “high bar” for establishing a bona fide doubt. See Clark v. Arnold, 769

F. 3d 711, 729 (9th Cir. 2014). The California District Court of Appeal did not

unreasonably apply clearly established federal law when it determined that the

state trial court was not required to conduct a competency hearing.

      AFFIRMED




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