                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 23 2014

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



                            FOR THE NINTH CIRCUIT


CHARLES RAY SMITH,                               No. 13-15474

              Petitioner - Appellant,            D.C. No. 2:09-cv-02967-MCE-
                                                 GGH
  v.

M. MCDONALD, Warden,                             MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                     Argued and Submitted November 19, 2014
                             San Francisco, California

Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.

       Petitioner Charles Ray Smith argues that he was unrepresented by counsel at

his competency hearing, a critical stage of his pretrial criminal proceedings, in

violation of United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80

L. Ed. 2d 657 (1984). Smith also argues that we must review his federal habeas



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claim de novo, and not under the deferential standard in 28 U.S.C. § 2254(d),

because the “state courts failed to adjudicate [his] Cronic claim.” Finally, Smith

argues that the district court abused its discretion by denying his motion for an

evidentiary hearing.

      We first address Smith’s “adjudication on the merits” argument, because it

affects our standard of review.1 When a state’s highest appellate court summarily

rejects a petitioner’s federal claims, we “look through” summary denials to the last

reasoned state court decision. Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir.

2013), amended on denial of reh’g, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134

S. Ct. 1001, 187 L. Ed. 2d 863 (2014). The last reasoned decision concerning


      1
         The warden did not waive his exhaustion argument, see 28 U.S.C.
§ 2254(b)(3), and he raises that argument here. However, we conclude that
Smith’s argument was exhausted, because he fairly presented his Cronic claim to
all state courts on direct review. See Turner v. Compoy, 827 F.2d 526, 528 (9th
Cir. 1987) (“[A] prisoner need exhaust only one avenue of relief in state court
before bringing a habeas petition in federal court. This is true even where
alternative avenues of reviewing constitutional issues are still available in state
court.”). Smith fairly presented his Cronic claim to the state courts. Moreover,
Smith’s Cronic claim is not otherwise barred on adequate and independent state
procedural grounds; California Rule of Court 8.500(c) is not an “adequate” state
procedural ground because it only states a California Supreme Court policy
regarding petitions for rehearing filed in the Court of Appeal below. It is not
mandatory and does not state that appeals will be rejected for noncompliance.
Compare Walker v. Martin, 131 S. Ct. 1120, 1128, 179 L. Ed. 2d 62 (2011)
(discussing the “adequate” nature of California’s discretionary time-bar rule for
untimely state habeas petitions in a case where the California Supreme Court
exercised discretion to bar an untimely claim).
                                          2
Smith’s sole federal claim before us is the California Court of Appeal’s May 15,

2009 opinion.

      Smith argues that his Cronic claim was not adjudicated on the merits,

because instead of deciding that claim, the Court of Appeal “recognized that Smith

raise[d] a denial of counsel claim . . . but the claim the state court actually

evaluated was a competence/prejudice based analysis of Smith’s Sixth Amendment

rights.”

      In Johnson v. Williams, the Supreme Court held that “[w]hen a state court

rejects a federal claim without expressly addressing that claim, a federal habeas

court must presume that the federal claim was adjudicated on the merits.” 133 S.

Ct. 1088, 1096, 185 L. Ed. 2d 105 (2013), reh’g denied, 133 S. Ct. 1858, 185 L.

Ed. 2d 858 (2013). Johnson involved a state court opinion that “addresse[d] some

but not all of a defendant’s claims,” which the Court said was an irrelevant

distinction from Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784–85, 178

L. Ed. 2d 624 (2011), where the state court decision in that case did not specifically

address any of the defendant’s federal claims. Johnson, 133 S. Ct. at 1094.

Although the presumption from Johnson is rebuttable, id. at 1096, we conclude

that Smith has failed to rebut it here.




                                            3
      The Court of Appeal specifically characterized Smith’s denial of counsel

claim as “creating a shroud of reversible error per se.” Combining the Johnson

presumption that Smith’s Cronic claim was adjudicated on the merits with this

language from the Court of Appeal’s opinion, Smith fails to rebut the presumption.

An ineffective assistance of counsel claim under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), does not require per se

reversal if counsel was ineffective, because there also must be prejudice for an

ineffective assistance of counsel claim to succeed. On the other hand, a denial of

counsel claim under Cronic, if successful, is structural error, which requires

reversal per se. The Court of Appeal’s rejection of Smith’s federal claim, while

mentioning neither Strickland nor Cronic, clearly considered the salient feature of

Smith’s Cronic claim—per se reversal if successful. Smith has not rebutted the

presumption, arising from Johnson, that Smith’s Cronic claim was adjudicated on

the merits. See Johnson, 133 S. Ct. at 1096. Because we conclude that Smith’s

Cronic claim was adjudicated on the merits, we owe deference to the Court of

Appeal’s decision under 28 U.S.C. § 2254(d).

      Smith contends that he satisfies the deferential standard under 28 U.S.C.

§ 2254(d) because the decision was “based on an unreasonable determination of

the facts in light of the evidence presented – that is, the entire state court records.”


                                            4
See 28 U.S.C. § 2254(d)(2). We disagree. Smith argues that “the key mistake” the

Court of Appeal made regarding factual determinations was its refusal to believe

that attorney Davidson would appear for Smith without knowing that was the

intent of Smith’s attorney. The Court of Appeal’s conclusion about attorney

Davidson’s awareness and authority to appear for Smith is a factual determination

under § 2254(d)(2), and it is not an unreasonable one because the transcript of the

state court proceeding shows that attorney Davidson was aware of what counsel for

both sides had agreed to regarding Smith’s competency determination and report.

We also conclude that the Court of Appeal’s denial of Smith’s Cronic claim was

neither “contrary to” nor “involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). First, we find no clearly established Supreme Court

authority holding that a lawyer appearing as substitute counsel to submit

competency on an expert’s competency report is a denial of counsel at that stage of

the proceeding. Second, 28 U.S.C. § 2254(d) is no “substitute for ordinary error

correction through appeal,” Richter, 131 S. Ct. at 786, and here there is room for

fairminded jurists to disagree over whether the Court of Appeal correctly denied

Smith’s Cronic claim.




                                          5
      Finally, the district court did not abuse its discretion by denying Smith’s

motion for an evidentiary hearing, because “[i]f a claim has been adjudicated on

the merits by a state court, a federal habeas petitioner must overcome the limitation

of § 2254(d)(1) on the record that was before that state court.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (2011).

      AFFIRMED.




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