                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JUAN BOSCO ALVAREZ,                             No.    17-55360

                Petitioner-Appellant,           D.C. No.
                                                2:12-cv-07494-RGK-MRW
 v.

DEBBIE ASUNCION, Warden,                        MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                    Argued and Submitted November 16, 2018
                              Pasadena, California

Before: W. FLETCHER and PAEZ, Circuit Judges, and GLEASON,** District
Judge.

      In 2002, Juan Alvarez (“Alvarez”) was convicted by a state court jury of

attempted murder, assault with a firearm, and eluding a police officer. At the time

of his trial, Alvarez suffered from Graves’ disease, a form of hyperthyroidism.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
Although Graves’ disease can affect a person’s mental state, Alvarez’s counsel did

not investigate whether Alvarez was competent to stand trial. Beginning in 2011,

Alvarez filed several state court habeas petitions as well as a federal habeas

petition. In 2016, the California Supreme Court denied habeas relief on the merits.

And in 2017, the district court denied Alvarez’s 28 U.S.C. § 2254 petition.

Alvarez appeals the district court’s denial of his habeas petition, raising a

substantive incompetence claim and an ineffective assistance of counsel claim,

both of which he raised in his state habeas petitions.

      We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

1.    Alvarez argues that he was tried while incompetent in violation of his due

process rights.1 In order to stand trial, a defendant must “ha[ve] sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding—and . . . ha[ve] a rational as well as factual understanding of the

proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960).

      Here, there is ample evidence in the record that Alvarez both understood the

proceedings against him and had a present ability to consult with his lawyer.

According to Alvarez’s counsel, Alvarez participated in his own defense by



1
  Alvarez only raises a substantive incompetence claim on appeal. Although
Alvarez alleged a procedural incompetence claim in his habeas petition—arguing
that the trial judge should have conducted a competency hearing sua sponte—he
has not pursued that argument on appeal.

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providing an alibi, testifying to this alibi at his trial, and identifying an additional

witness who could support his alibi. Alvarez also made an informed decision to

reject a favorable plea deal after discussions with his counsel and the trial judge.

When the trial court judge asked Alvarez if he still wished to go to trial, Alvarez

stated that he did. Because Alvarez’s decision-making and participation in his

defense indicate that he was competent to stand trial, the district court properly

denied habeas relief on this ground.

2.    In addition to his substantive incompetence claim, Alvarez alleges that he

received ineffective assistance of counsel—in violation of his Sixth Amendment

rights—because Alvarez’s trial counsel did not investigate whether he was

competent to stand trial. To establish ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that this deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984).

      The record demonstrates that Alvarez’s trial counsel was aware of Alvarez’s

hyperthyroidism; indeed, trial counsel referenced Alvarez’s condition several times

throughout the trial proceedings to explain his unusual behavior. Despite

observing that Alvarez’s condition “makes him react more nervously than the

normal human being would,” trial counsel did not investigate Alvarez’s

competency to stand trial. Even assuming that counsel’s failure to investigate


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Alvarez’s competency constituted deficient performance, Alvarez cannot show

prejudice. For the reasons previously discussed, it is not reasonably probable that

the trial court would have found Alvarez incompetent to stand trial had his counsel

raised the issue. Thus, the district court did not err in denying habeas relief on this

claim.

3.       Because we affirm the district court’s denial of habeas on the merits, we

need not decide whether Alvarez’s claims were procedurally barred.

         AFFIRMED.




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