                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

EDWIN GREGORY,                                   No. 11-17494

              Petitioner - Appellant,            D.C. No. 1:98-cv-06521-LJO-MJS

  v.
                                                 MEMORANDUM *
WILLIAM DUNCAN, Warden; and
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.

       Petitioner appeals the district court’s denial of habeas relief. Reviewing de

novo, Williams v. Warden, 422 F.3d 1006, 1008 (9th Cir. 2005), we affirm.

       1. The California Court of Appeal’s decision did not "involve[] an

unreasonable application of[] clearly established Federal law, as determined by the


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The court correctly

identified the governing principles from Godinez v. Moran, 509 U.S. 389 (1993),

and Brady v. United States, 397 U.S. 742 (1970). It treated Petitioner’s repeated

and explicit decision not to challenge his competence as a concession of

competence. We are unaware of any Supreme Court case suggesting that the court

could not do so. The state court viewed the evidence as relating only to

Petitioner’s competence. Although one could consider the evidence to relate to

more than just competence, it was not unreasonable for the court to interpret it as

relating only to his competence. That being so, the court was left with: (a) a

concession that Petitioner met the competence prong of Godinez and (b) no

evidence of any reason other than lack of competence why Petitioner’s plea was

not knowing and voluntary. In those circumstances, we cannot say that "the state

court’s ruling . . . was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement." Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

      2. The performance of Petitioner’s lawyer did not fall "below an objective

standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984).

The lawyer adequately investigated Petitioner’s mental state and provided ample

evidence to the prosecution’s expert, the defense experts, and the jury of


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Petitioner’s impairment. Alternatively, it was not unreasonable for the state trial

court to conclude that Petitioner did not suffer prejudice from his lawyer’s failure

to introduce the additional evidence of his mental state. Although the

prosecution’s expert would have testified more favorably to the defense had he

possessed the information, the expert still believed that there was evidence

consistent with a lack of psychosis at the time of the murder, and he still would

have expressed no opinion as to Petitioner’s sanity. In those circumstances,

"fairminded jurists could disagree on the correctness of the state court’s decision."

Harrington, 131 S. Ct. at 786 (internal quotation marks omitted).

      AFFIRMED.




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                                                                                  FILED
Gregory v. Duncan, No. 11-17494                                                    FEB 21 2013

                                                                              MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                              U .S. C O U R T OF APPE ALS




         The California Court of Appeal stated the correct principles, but decided the

case contrary to the federal constitution as decided by the Supreme Court. The

California Court of Appeal did so by its illogical reasoning. The court made two

errors of logic:

         (1) It held that if a defendant pleaded, the defendant could not attack his plea

on the basis of incompetence.

         (2) It held that if the defendant was competent to plead, then the defendant

was competent to waive other constitutional rights.

         Both propositions are contrary to federal law as stated by the Supreme

Court.

         Summarizing its own holdings, the Supreme Court stated in Godinez v.

Moran, 509 U.S. 389, 400 (1992):

                 A finding that a defendant is competent to stand trial, however,
         is not all that is necessary before he may be permitted to plead guilty
         or waive his right to counsel. In addition to determining that a
         defendant who seeks to plead guilty or waive counsel is competent, a
         trial court must satisfy itself that the waiver of his constitutional rights
         is knowing and voluntary. Park v. Raley, 506 U.S. 20, 28-29 (1992)
         (guilty plea); Faretta, supra at 835 (waiver of counsel).

         As found by both the California Superior Court and by the federal


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magistrate, Gregory was not competent to plead or to waive his constitutional

rights. His conviction should not stand.




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