                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              APR 20 2012

                                                                          MOLLY C. DWYER, CLERK
JOSHUA NATHAN HERNANDEZ,                         No. 11-16443              U.S. COURT OF APPEALS



              Petitioner - Appellant,            D.C. No. 3:10-cv-00201-CRB

  v.
                                                 MEMORANDUM*
ANTHONY HEDGPETH, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                       Argued and Submitted April 16, 2012
                            San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.

       Petitioner, Joshua Nathan Hernandez, appeals the district court’s denial of

his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254, alleging

ineffective assistance of counsel. On de novo review, Stanley v. Schriro, 598 F.3d

612, 617 (9th Cir. 2010), we affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Because Petitioner filed his petition after April 24, 1996, the Antiterrorism

and Effective Death Penalty Act (AEDPA) of 1996 governs review of his claims.

Under AEDPA, 28 U.S.C. § 2254(d), our review is highly deferential. Harrington

v. Richter, 131 S. Ct. 770, 785 (2011). The California Supreme Court denied

Petitioner’s ineffective assistance claim summarily, so we must decide what

theories could have supported the state court’s decision and then ask whether fair-

minded jurists could conclude that those theories followed applicable Supreme

Court precedents. Id. at 786.

      Petitioner’s trial counsel obtained the assistance of three mental health

experts, including one psychiatrist, whose qualifications are not in question.

Counsel gave the experts some background materials, including a discharge

summary from the Atascadero State Hospital and writings by Petitioner. Counsel

succeeded in having Petitioner declared incompetent to stand trial and in having

him committed for treatment for a significant period of time. Counsel also

presented the mental health experts at the eventual trial, two of whom opined that

Petitioner was not guilty of the crimes by reason of insanity. Nonetheless,

Petitioner contends that counsel rendered ineffective assistance by failing to obtain

and to give to the experts easily obtainable mental health records, thus enabling the

prosecutor to argue that Petitioner was malingering.


                                          2
      On this record, the state court permissibly could conclude that trial counsel’s

performance was not deficient, which is the first prong of the required analysis

under Strickland v. Washington, 466 U.S. 668 (1984). Petitioner points to cases

such as Rompilla v. Beard, 545 U.S. 374, 389–92 (2005); Wiggins v. Smith, 539

U.S. 510, 524–25 (2003); and Williams v. Taylor, 529 U.S. 362, 395–97 (2000),

finding deficient performance where trial counsel failed adequately to investigate

their clients’ mental health. But these cases are distinguishable on several grounds.

First, all of them deal with capital sentencing. We are aware of no Supreme Court

decision that has extended the same strict standard of investigation to the guilt

phase of noncapital cases. Second, trial counsel in the present instance put forward

a well-developed insanity defense whereas, in some of the cases to which

Petitioner points us, the issue of mental illness was ignored or treated cavalierly.

Third, we are aware of no Supreme Court opinion that places on trial counsel an

affirmative duty to supply all potentially relevant material even when not requested

by the retained experts.

      Additionally, the state court permissibly could conclude that counsel’s

failure to obtain the records did not prejudice Petitioner, which is the second prong

of the Strickland analysis. This material is not entirely favorable to Petitioner’s

insanity defense. For example, the records reveal that, at age 14, Petitioner


                                           3
admitted to faking hallucinations in order to escape his group home. A discharge

report from a San Antonio facility noted that Petitioner suffered from "[n]o

psychosis." The Alaska period of institutionalization resulted from a run-in with

the law. Finally, the complete records from Atascadero include reports that

Petitioner delayed taking steps to restore competency and that he said, "I want to

plead to whatever gives me the least time."

      In summary, although trial counsel could have done more, we cannot

conclude that the state court’s decision failed to meet the standards of AEDPA.

      AFFIRMED.




                                         4
