                                                                               FILED
                            NOT FOR PUBLICATION                                 AUG 25 2010

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


                            FOR THE NINTH CIRCUIT


RICHARD HODGES,                                   No. 08-17113

              Petitioner - Appellant,             D.C. No. 2:04-cv-02087-MCE-
                                                  KJM
  v.

FERNANDO GONZALEZ,                                MEMORANDUM*

              Respondent-Appellee.


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

                            Submitted August 10, 2010**
                              San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       Richard Hodges, a state prisoner, appeals the district court’s denial of his 28

U.S.C. § 2254 habeas petition. Hodges contends (1) that the state trial court

violated his right to due process when it failed sua sponte to conduct a competency

hearing and (2) that his attorneys rendered ineffective assistance when they failed

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to obtain and present evidence that he had suffered from hallucinations. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

      This court reviews de novo the district court’s denial of a petition for a writ

of habeas corpus. Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010). Because

Hodges filed his federal habeas petition after April 24, 1996, his petition is subject

to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under

AEDPA, a writ of habeas corpus can be granted only if the state court’s decision

(1) “was contrary to, or involved an unreasonable application of, clearly

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

or (2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

                                          I.

      The state trial court did not violate Hodges’s right to due process when it

failed sua sponte to conduct a competency hearing. Due process requires a court

sua sponte to conduct a competency hearing whenever the evidence before it raises

a “bona fide doubt” whether a defendant is competent. Drope v. Missouri, 420

U.S. 162, 180 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). Unlike in

Drope and Robinson, Hodges’s evidence did not raise a bona fide doubt as to his

competence because his most recent suicide attempt occurred several months


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before he pleaded no contest, there was no evidence that his antidepressants

impaired his ability to understand the proceedings and to assist counsel in his

defense (rather, there was evidence he could do so), and he did not have a

pronounced history of irrational behavior. His reliance on non-Supreme Court

cases is to no avail; those cases are distinguishable and, in any event, are merely

persuasive under 28 U.S.C. § 2254(d)(1). Maxwell, 606 F.3d at 567.

                                         II.

      Hodges’s two trial attorneys did not render ineffective assistance when they

failed to discover and present evidence that Hodges previously had suffered from

hallucinations. To establish ineffective assistance of counsel, Hodges must show

his attorneys’ representation was both deficient and prejudicial. Strickland v.

Washington, 466 U.S. 668, 686 (1984). Hodges can show neither because the

evidence of his hallucinations was insignificant: the hospital record concluded that

there was no evidence that he had suffered from hallucinations and noted that he

denied any history of hallucinations. His mother’s declaration referred to only two

times in which he had suffered from hallucinations a year before his no contest

plea. Neither document suggests that hallucinations affected his competency at the

time of his plea.

      AFFIRMED.


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