                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 17 2011

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




                            FOR THE NINTH CIRCUIT



RICHARD LEE GRUBER,                              No. 10-15539

              Petitioner - Appellant,            D.C. No. 3:06-cv-00655-ECR-
                                                 RAM
  v.

JACK PALMER; ATTORNEY                            MEMORANDUM *
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                            Submitted March 15, 2011 **
                             San Francisco, California

Before: WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Petitioner-Appellant Richard Lee Gruber, a Nevada state prisoner, appeals

from the district court’s denial of his petition for a writ of habeas corpus. We have

jurisdiction pursuant to 28 U.S.C. § 2253. We agree with the analysis of the

district court and affirm.

      Because Gruber points to no clearly established Supreme Court law that

requires a trial court judge to inquire about a defendant’s mental competency when

presented with the information available to the trial court here and when counsel

makes no such request, Gruber’s guilty-plea argument must be rejected.

Furthermore, in light of the plea colloquy, the Nevada Supreme Court did not err in

holding that Gruber had a “sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding” and “a rational as well as factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402, 402 (1960) (per curiam); see also Bills v. Clark, 628 F.3d 1092, 1099 (9th Cir.

2010 (discussing Dusky standard generally and as applied to pretrial proceedings);

Stanley v. Cullen, __ F.3d __, 2011 WL 285218, at *4–6 (9th Cir. Jan. 31, 2011).

Even if Gruber’s medical records had been evaluated during the hearing, the

records would not support his claim that he lacked a reasonable degree of rational

understanding. In one psychiatric evaluation, the physician noted that Gruber “is

able to understand the likely outcome of his behavior.” The physician also


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considered that the “inconsistencies in the presentation” might “lead somebody to

believe that [Gruber] may be malingering.”

      Gruber argues that his trial counsel was ineffective because she did not

investigate Gruber’s mental health history and request a competency evaluation.

“For purposes of § 2254(d)(1), an unreasonable application of federal law is

different from an incorrect application of federal law. A state court must be

granted a deference and latitude that are not in operation when the case involves

review under the Strickland [v. Washington, 466 U.S. 668 (1984)] standard itself.”

Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (internal citation and quotation

marks omitted). Because there was evidence that Gruber’s counsel was acting

reasonably in believing that Gruber was competent and there is not a substantial

likelihood of a different result had Gruber’s counsel sought a competency hearing,

the Nevada Supreme Court reasonably applied Strickland in rejecting Gruber’s

argument. See id. at 787–88, 792.

      Gruber also argues that his trial counsel was ineffective because she failed to

move to suppress his confession. Because there is neither any evidence that his

counsel would have been successful in suppressing the confession, nor is there

evidence that suppressing the confession would have had any effect on the result,




                                          3
the Nevada Supreme Court reasonably applied Strickland in rejecting Gruber’s

argument. See id. at 787–88.

      Gruber next argues that his trial counsel was ineffective because she advised

Gruber to plead guilty to a time-barred charge. Because pleading guilty to the

time-barred charge was in lieu of Gruber being charged with numerous other non-

time-barred charges, the Nevada Supreme Court reasonably applied Strickland in

rejecting Gruber’s argument. See id.

      Gruber further argues that his trial counsel was ineffective because she failed

to present mitigating evidence related to Gruber’s mental health at sentencing.

Because there is no indication that presenting such evidence would have made a

difference in Gruber’s sentence, the Nevada Supreme Court reasonably applied

Strickland in rejecting Gruber’s argument. See id.

      AFFIRMED.




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