                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAY 31 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JOSE ARNALDO RODRIGUES,                          No.   16-17069

              Petitioner-Appellant,              D.C. No. 4:96-cv-01831-CW

 v.
                                                 MEMORANDUM*
RON DAVIS, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                     Argued and Submitted November 16, 2017
                             San Francisco, California

Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,** District
Judge.

      Petitioner Jose Arnaldo Rodrigues (Rodrigues) appeals the district court’s

denial of his federal habeas petition.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
      It was not unreasonable for the California Supreme Court to summarily deny

Rodrigues’ claim that he was not competent to stand trial. Rodrigues “can satisfy

[28 U.S.C.] § 2254(d)(1) only by showing that there was no reasonable basis for

the California Supreme Court’s decision” and can satisfy § 2254(d)(2) “only when

the state court’s determination of the facts was not merely wrong, but objectively

unreasonable.” Sanders v. Cullen, 873 F.3d 778, 793-94 (9th Cir. 2017) (citations

and internal quotation marks omitted). During the 1987 proceedings, Rodrigues

was able to respond appropriately during court proceedings, and Rodrigues’

counsel confirmed that Rodrigues was cooperative. Based on the state court

record, Rodrigues is unable to demonstrate that there was no reasonable basis for

the California Supreme Court to conclude that Rodrigues was competent to stand

trial. Id.; see also Davis v. Woodford, 384 F.3d 628, 646-47 (9th Cir. 2004), as

amended.1

      Rodrigues failed to demonstrate that the California Supreme Court’s denial

of his ineffective assistance of counsel claim on direct and habeas review was




      1
        We deny Rodrigues’ request for a certificate of appealability on his related
claim that the state trial court should have sua sponte ordered a competency
hearing because Rodrigues fails to demonstrate that “jurists of reason could
disagree with the district court’s resolution of” his claim based on the trial record.
Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citation omitted).
                                           2
unreasonable. “The standards created by Strickland2 and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so . . .”

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations and internal quotation

marks omitted). Based on Rodrigues’ cooperation, his interactions with the trial

court, and counsel’s indication that there were no additional concerns regarding

Rodrigues’ competency beyond his refusal to waive time for the preliminary

hearing and authorize release of his records, it was not unreasonable for the

California Supreme Court to conclude that Rodrigues’ counsel did not render

ineffective assistance in failing to seek a competency hearing. See Stanley v.

Cullen, 633 F.3d 852, 862-63 (9th Cir. 2011).

      The declarations of Dr. James Missett and Dr. R.K. McKinzey, submitted

seven years after the 1987 proceedings, do not compel a contrary result. Dr.

Missett’s retrospective conclusion that he would have determined that Rodrigues

was incompetent to stand trial does not demonstrate that the California Supreme

Court’s rejection of Rodrigues’ ineffective assistance of counsel claim based on the

state court record was unreasonable. See Deere v. Woodford, 339 F.3d 1084, 1086

(9th Cir. 2003) (observing that “[b]elated opinions of mental health experts are of

dubious probative value and therefore, disfavored”) (citation omitted).


      2
          Strickland v. Washington, 466 U.S. 668 (1984).
                                          3
      Although Dr. McKinzey opined that Rodrigues was incompetent because his

responses to the state court judge’s questions were “non-responsive, tangential

non-sequiturs” and Rodrigues was unable to assist in his defense in other troubling

aspects, the state trial court’s direct interactions with Rodrigues, Rodrigues’

conduct during the 1987 proceedings, and Rodrigues’ cooperation with counsel

lend credence to a contrary conclusion. See Sanders, 873 F.3d at 814 (“Under

AEDPA, the primary issue is whether the state court adjudication of the Strickland

claims was objectively reasonable. . . .”) (citations, alteration, and internal

quotation marks omitted).3

      The California Supreme Court’s summary denial of Rodrigues’ juror bias

claim was not unreasonable. There are “three forms of juror bias: (1) actual . . . ;

(2) implied . . . ; and (3) . . . McDonough4 . . . , which turns on the truthfulness of a

juror’s responses on voir dire where a truthful response would have provided a

valid basis for a challenge for cause.” United States v. Olsen, 704 F.3d 1172, 1189

      3
         Because we conclude that the California Supreme Court’s rejection of
Rodrigues’ competency and ineffective of assistance of counsel claims was not
unreasonable, Rodrigues was not entitled to an evidentiary hearing. See Murray v.
Schriro, 882 F.3d 778, 802 (9th Cir. 2018), as amended (“[S]o long as we are
reviewing a petitioner’s claim under [the Antiterrorism and Effective Death
Penalty Act], our review is limited to the facts before the state court and the
petitioner is not entitled to an evidentiary hearing in federal court.”) (citation
omitted).
      4
          McDonough Pwr. Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).
                                            4
(9th Cir. 2013) (citation and internal quotation marks omitted). On habeas review,

Rodrigues is limited to demonstrating actual bias or McDonough bias because

“[t]here is no clearly established federal law regarding the issue of implied bias.”

Hedlund v. Ryan, 854 F.3d 557, 575 (9th Cir. 2017), as amended (citation

omitted).

      Rodrigues does not demonstrate that the juror was actually biased due to any

“pre-set disposition not to decide an issue impartially” based solely on her

incorrect answers on the jury questionnaire. Olsen, 704 F.3d at 1189. Rodrigues

also fails to establish McDonough bias because he did not sufficiently develop his

claim that the juror’s responses to an arguably ambiguous jury questionnaire

“would have provided a valid basis for a challenge for cause.” Id. at 1196 (citation

omitted).5

      AFFIRMED.




      5
         Rodrigues fails to demonstrate that the district court erred in denying
additional discovery or an evidentiary hearing. The district court accepted
Rodrigues’ assertions as true, and denied an evidentiary hearing due to the death of
the juror.
                                           5
