                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBIN LEE SHERWOOD,                             No.    15-55659

                Petitioner-Appellant,           D.C. No.
                                                5:11-cv-01728-CJC-PLA
 v.

STUART SHERMAN, Warden,                         MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted March 6, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.

      Robin Lee Sherwood appeals the district court’s denial of his petition for

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In 2006, in the middle of

his criminal jury trial, Sherwood pleaded guilty to all charges against him,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
including the murder of Allen Allison and the special circumstances allegation that

made him eligible for life without the possibility of parole. In his present appeal,

Sherwood claims (1) that his mental illness rendered his guilty plea not knowing

and voluntary, and (2) that his trial counsel was ineffective for failing to

investigate Sherwood’s competence to enter the plea. We have jurisdiction

pursuant to 28 U.S.C. § 2253. We reverse and remand.

      1. Sherwood’s claim that mental illness rendered his guilty plea not knowing

and voluntary was not fully and fairly presented to the state court and is therefore

unexhausted. Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam).

None of the claims raised in Sherwood’s state habeas petition alerted the state

court to both the factual and legal basis for this claim. See id.; see also, e.g.,

Castillo v. McFadden, 399 F.3d 993, 1002–03 (9th Cir. 2005) (“Referring to the

Fourteenth Amendment in relation to these other claims does not exhaust his

separate assertion that the trial court violated his federal due process rights by

admitting the videotape.”); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir.

2005) (“In order to alert the state court, a petitioner must make reference to

provisions of the federal Constitution or must cite either federal or state case law

that engages in a federal constitutional analysis.”). The fact that Grounds One and

Two in Sherwood’s state habeas petition bear similarity to the claim argued on

appeal is not a valid basis for finding exhaustion where neither claim stated the


                                            2
core constitutional violation now alleged. See Johnson v. Zenon, 88 F.3d 828, 829–

30 (9th Cir. 1996) (discussing Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per

curiam)); cf. Medley v. Runnels, 506 F.3d 857, 863 (9th Cir. 2007) (en banc)

(concluding petitioner had exhausted where arguments made were not identical but

the core constitutional issue was the same). Accordingly, we dismiss Sherwood’s

claim that his plea was rendered not knowing and voluntary due to mental illness

as unexhausted.

      Although ordinarily the presence of an unexhausted claim would require

dismissal of the petition in its entirety, Rose v. Lundy, 455 U.S. 509, 522 (1982),

we note that the precise issue certified for appeal by this Court does not appear in

Sherwood’s federal habeas petition filed with the district court. Because the issues

actually raised in Sherwood’s federal petition were all exhausted before the state

courts, dismissal of the petition in its entirety is not warranted. See id. (“[A] district

court must dismiss habeas petitions containing both unexhausted and exhausted

claims.”).

      2. We reverse the district court’s conclusion that Sherwood is not entitled to

an evidentiary hearing on his ineffective assistance of counsel claim. Sherwood has

asserted a colorable claim that his trial counsel, Michael Belter, rendered deficient

performance in failing to investigate Sherwood’s mental competence. See

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Because the California


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Supreme Court did not reach the merits of Sherwood’s ineffective assistance of

counsel claim, our review of this claim is de novo.1 See Cone v. Bell, 556 U.S. 449,

472 (2009).

       In order to succeed on an ineffective assistance of counsel claim, Sherwood

must show (1) that his trial counsel’s performance was deficient to the point that it

fell outside the range of professionally competent assistance, and (2) that

Sherwood was prejudiced by the deficient performance. Strickland, 466 U.S. at

687.

       Regarding the first prong of Strickland’s test, there is evidence in the record

to suggest that Belter’s failure to investigate Sherwood’s psychiatric problems

constituted deficient performance. “Trial counsel has a duty to investigate a

defendant’s mental state if there is evidence to suggest that the defendant is

impaired.” Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003). At the time



1
  We reject Respondent’s argument that the California Supreme Court denied
Sherwood’s May 23, 2011 habeas petition on the merits. On October 19, 2011, the
California Supreme Court summarily denied Sherwood’s petition, citing only to
People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Swain, 34 Cal. 2d 300, 304
(1949). This Court has consistently found that citation to Duvall and Swain stand
for the proposition that the petitioner’s habeas petition was deficiently pled, which
is a procedural defect. See, e.g., Curiel v. Miller, 830 F.3d 864, 870–71 (9th Cir.
2016); Cross v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012); Gaston v. Palmer, 417
F.3d 1030, 1039 (9th Cir. 2005), reh’g granted, opinion modified, 447 F.3d 1165
(9th Cir. 2006). Claims that were not adjudicated on the merits by the state court,
however, do not warrant deference and are reviewed de novo. Cone, 556 U.S. at
472.

                                           4
of trial, evidence available to Belter showed Sherwood reported having

psychological and mental health issues, including anger, paranoia, and sleep issues

at the West Valley Detention Center (“West Valley”), and that Sherwood had been

diagnosed with Schizoaffective Disorder, Depression with Psychotic Features, and

Psychosis Not Otherwise Specified. Jail records further show that Sherwood had

been treated with psychotropic, anti-psychotic, anti-depressant, and stabilizing

medications in the time leading up to trial and after, and that West Valley placed

Sherwood on suicide watch on five separate instances, once following an apparent

suicide attempt. In addition to the readily available medical records, the record

suggests that Belter was aware of several events leading up to trial, which

Sherwood claims triggered his mental health problems, including the violent

assault on Sherwood by another inmate, which led to subsequent medical treatment

and a civil lawsuit, and the arrest of Sherwood’s father at a pretrial hearing.

Similarly, Belter was aware of Sherwood’s prior drug use and drug-related

convictions.

      This evidence was sufficient to trigger a duty on the part of Belter to

investigate Sherwood’s mental state. See Douglas, 316 F.3d at 1085. That Belter

may not have had actual knowledge of Sherwood’s psychological impairment is of

no moment where, as here, the evidence of such was readily available to Belter.

See id. at 1085–86 (failure to investigate mental health was deficient where “there


                                           5
was a significant alternative source of information that was readily discoverable,”

in the form of a psychological examination showing serious mental illness); Evans

v. Lewis, 855 F.2d 631, 636 (9th Cir. 1988) (finding deficient performance where

“[d]ocuments available to Evans’ attorney prior to the first sentencing hearing

plainly indicate that Evans had a history of mental problems . . . ,” even though

there was no indication that the attorney ever saw those documents); see also

Seidel v. Merkle, 146 F.3d 750, 755–56 (9th Cir. 1998) (finding deficient

performance based on available evidence, including jail records, and evidence

actually known to counsel). The fact that Sherwood appeared lucid and mentally

competent does not relieve counsel of the duty to perform reasonable investigation.

See Odle v. Woodford, 238 F.3d 1084, 1088 (9th Cir. 2001) (rejecting the argument

that “evidence of mental impairment [was] irrelevant because Odle appeared calm

in the courtroom,” noting that “[s]ome forms of incompetence manifest themselves

through erratic behavior, others do not”); cf. Deere v. Cullen, 718 F.3d 1124, 1126

n.13 (9th Cir. 2013).

      Turning to the second prong under Strickland’s test, Sherwood has also

shown a reasonable probability that he was prejudiced by Belter’s failure to

investigate Sherwood’s competency. To prove prejudice, Sherwood “must show

that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Evans, 855 F.2d at 636


                                           6
(quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. (internal quotation marks

and citation omitted). Given the ample record evidence of mental impairment, had

Belter sought a psychological evaluation, there is a reasonable probability that the

evaluation would have called into question Sherwood’s competency.

      In fact, in connection with the proceedings before the district court,

psychologist Dr. Nathan Lavid looked at the time period of January 2004 through

November 2006, and opined that “Mr. Sherwood was suffering from severe mental

illness that rendered him incompetent to stand trial and plead guilty.” The district

court erred in rejecting Dr. Lavid’s report on the ground that it post-dates

Sherwood’s trial. The report was based wholly on evidence that was readily

available to Belter at the time of trial, including jail medical records and an

interview with Sherwood regarding his personal and family history. See

McMurtrey v. Ryan, 539 F.3d 1112, 1131 (9th Cir. 2008) (“[M]edical reports

contemporaneous to the time of the initial hearing greatly increase the chance for

an accurate retrospective evaluation of a defendant’s competence.” (citation

omitted)); cf. Deere, 718 F.3d at 1126 (concluding that petitioner had not proven

prejudice where there was “literally no contemporaneous evidence that Deere

lacked the capacity to understand his options and to make a rational decision to

accept responsibility for what he did.”).


                                            7
      In sum, the district court erred in concluding that there was no evidence in

the record to support the conclusion that Sherwood was mentally impaired at the

time of trial. Moreover, because Sherwood stated a colorable claim for ineffective

assistance of counsel, the district court further erred in denying Sherwood’s

petition without first holding an evidentiary hearing. See Earp v. Ornoski, 431 F.3d

1158, 1166–67 (9th Cir. 2005).

      Although Sherwood has requested relief in the form of an evidentiary

hearing, we note that a hearing is not required on issues that can be resolved by

reference to the record. Totten v. Merkle, 137 F.3d 1172, 1175–76 (9th Cir. 1998).

On remand the district court shall determine whether there are either disputed

issues of fact or issues requiring further factual development, such that an

evidentiary hearing would be necessary. See Earp, 431 F.3d at 1166–67. To the

extent the district court determines that there are no outstanding factual issues, it

shall grant the petition based on the evidence discussed herein.

      REVERSED and REMANDED.




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