                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 27 2015

                                                                          MOLLY C. DWYER, CLERK
RAYMOND BOLT,                                    No. 14-35083               U.S. COURT OF APPEALS



              Petitioner - Appellant,            D.C. No. 2:12-cv-01660-MO

  v.                                             MEMORANDUM*

MARK NOOTH,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted May 4, 2015
                                Portland, Oregon

Before: FLETCHER and HURWITZ, Circuit Judges, and WALTER, Senior
District Judge.**

       Appellant Raymond Onward Bolt appeals the district court’s dismissal of his

application for habeas corpus relief under 28 U.S.C. § 2254. Bolt claims that his

Sixth-Amendment right to effective assistance of counsel was violated when his


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

       **   The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
attorney allowed him to plead guilty on the afternoon before trial without insisting

that Bolt undergo a mental capacity examination that had been ordered that

morning.

      In order to succeed on his ineffective-assistance claim, Bolt must establish

that the state post-conviction review court, which rejected Bolt’s

ineffective-assistance claim, unreasonably concluded: (1) that his attorney’s

actions did not fall below an objective standard of reasonableness; and (2) that any

deficient performance did not result in prejudice. Harrington v. Richter 562 U.S.

86, 104–05 (2011) (discussing the analysis that federal courts must apply to an

ineffective-assistance claim under 28 U.S.C. § 2254(d) when the claim has been

adjudicated on the merits in state court); see also Strickland v. Washington, 466

U.S. 668 (1984). We conclude that Bolt has not demonstrated that the

post-conviction review court’s determinations were unreasonable.

      On the day before trial was set to commence in Lane County Circuit Court,

Bolt appeared before Judge Maurice K. Merten for a status hearing during the

court’s morning session. At the hearing, Judge Merten learned that Bolt had

attempted suicide the night before and that he was refusing to speak to his lawyer.

When Judge Merten asked Bolt why he would not speak to his lawyer, he

answered “I don’t want to be alive.” He also mentioned that he was upset at his


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lawyer for failing to do anything about an alleged threat made to Bolt’s daughter.

Apparently, a relative of Bolt’s ex-girlfriend—the victim in this case—threatened

Bolt’s daughter when she attempted to retrieve Bolt’s belongings from the victim’s

residence. In light of Bolt’s responses, Judge Merten ordered a competency

examination under Or. Rev. Stat. § 161.360. Judge Merten directed that the exam

should be done by day’s end if possible and that trial would commence as

scheduled the following day.

      Immediately after the morning hearing, Bolt indicated to his attorney that he

wished to plead guilty. Accordingly, Bolt and his attorney reappeared that

afternoon before Judge Charles Carlson, the only judge available to take the plea at

that time. When Judge Carlson asked Bolt whether anyone had coerced him into

pleading guilty, Bolt again mentioned the above-described threats allegedly made

to his daughter. Judge Carlson then stated that he would not go forward with

sentencing until he was satisfied that the plea was free and voluntary. At that point,

the prosecution made it clear that it would seek a sentence of 240 months if a jury

convicted Bolt, and that the state’s outstanding plea offer of 180 months would

expire at the end of the day. After conferring with his client, Bolt’s counsel

clarified for the court that the previously described threats were unrelated to plea

negotiations or Bolt’s decision to plead guilty. After confirming this with Bolt,


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Judge Carlson proceeded to accept Bolt’s guilty plea. At the conclusion of the plea

hearing, with the agreement of counsel, Judge Carlson vacated Judge Merten’s

earlier order for a mental competency exam.

      Based on these facts, it was reasonable for the post-conviction review court

to conclude that Bolt’s counsel was not ineffective in allowing Bolt to enter a

guilty plea without waiting for a competency determination. Counsel’s decision to

allow Bolt to accept the plea deal that afternoon ensured that Bolt received a

sentence of 180 months. Had counsel insisted that the competency examination

take place, he risked losing the offer of a 180 month sentence and potentially

exposing Bolt to a sentence of 240 months. Importantly, the issues surrounding

Bolt’s competency did not concern whether Bolt should be found “guilty except

for insanity” under Or. Rev. Stat. § 161.295, but rather whether Bolt had the

present ability to aid and assist with his defense at trial under Or. Rev. Stat.

§ 161.360. Thus, even if the competency examination had taken place and Bolt had

been found incompetent to proceed, such a finding would have merely delayed the

inevitable, and the plea offer would have expired. Considering the risks, the state

court reasonably determined that counsel’s decision to allow Bolt to plead guilty

was not deficient performance.

      Additionally, even assuming arguendo that counsel should have insisted on


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the competency evaluation, Bolt cannot establish that the state court unreasonably

determined that the failure to hold such an evaluation did not result in prejudice.

On post-conviction review, the state court held an evidentiary hearing before

ultimately finding that Bolt was competent to plead guilty on the day in question.

The post-conviction court’s finding was not an unreasonable determination of fact

under 28 U.S.C. § 2254(d)(2).

      AFFIRMED.




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