                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 15 2010

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




                            FOR THE NINTH CIRCUIT



MATTHEW R. WATTS,                                No. 07-17237

              Plaintiff - Appellant,             D.C. No. 1:06-cv-00809-DLB

  v.
                                                 MEMORANDUM *
JAMES A. YATES,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding

                        Argued and Submitted June 15, 2010
                             San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**

       Matthew Watts was convicted of carjacking, attempted carjacking, theft, and

arson after a bench trial in the Superior Court of Madera County, California, and

sentenced to thirteen-and-a-half years. Before and during trial, he asserted, among

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
other delusional beliefs, that he was a member of the British Royal Family; that his

father and various federal agencies had placed a camera in his head; and that the

camera would be removed if he were sent to prison. Two psychologists concluded

that Watts was incompetent to stand trial, but the trial court relied on the opinion of

a third psychologist who concluded that Watts was competent and that he was

faking his delusions in an attempt to avoid prison. Before and during trial, the

court refused to reconsider its ruling on competency, despite finding, as part of its

verdict, that Watts was motivated by his paranoid delusions when he committed

the carjacking. The California Court of Appeal affirmed, and the California

Supreme Court denied Watts’s petition for review. Watts then filed a petition for

habeas corpus in federal court. The district court denied the petition, and Watts

appeals. We reverse and remand with directions to grant the writ.

      Our review of the district court’s denial of a petition for a writ of habeas

corpus is de novo. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). We agree

with the district court that the state courts’ adjudication of Watts’s claims did not

involve an unreasonable application of law. 28 U.S.C. § 2254(d)(1). We discuss

only whether the state courts’ adjudication “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” Id. § 2254(d)(2). A decision is “based on an


                                           2
unreasonable factual determination” if we are “convinced that an appellate panel,

applying the normal standards of appellate review, could not reasonably conclude

that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000

(9th Cir. 2004).1

      The Supreme Court has held that the trial of an incompetent defendant

violates the Constitution’s Due Process Clause. Indiana v. Edwards, 128 S. Ct.

2379, 2383 (2008); Drope v. Missouri, 420 U.S. 162, 171 (1975). A defendant is

incompetent if “he lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his

defense.” Drope, 420 U.S. at 171. When evidence before the trial court raises a


      1
             The state argues that we should apply 28 U.S.C. § 2254(e)(1)’s
heightened presumption of correctness to state court factual findings, but that
presumption only comes into play if the state court fact-finding process survives
the reasonableness review of (d)(2) and the petitioner attempts to present new
evidence in federal court. Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004);
Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004). Watts did not present
any new evidence in federal court.

             The state also argues that record evidence not discussed by the
California Court of Appeal is off limits because such evidence was not before the
California Supreme Court, which normally relies on the appellate court’s statement
of facts. C AL. R. C T. 8.500(c)(2). This argument misconstrues the California
Supreme Court’s rule; accepting the facts as summarized by the appellate court is
not the same as refusing to consider the record as a whole. Miller v. Dep’t of
Corrections, 115 P.3d 77, 81 n.3 (2005). More importantly, though, the state
explicitly waived this argument in the district court when it stated that Watts had
exhausted all of his claims.

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“bona fide doubt” about a defendant’s competency, the judge must sua sponte

order a competency hearing. Pate v. Robinson, 383 U.S. 375, 385 (1966). The

judge’s responsibility is not discharged after such a hearing, though; it continues

through trial under the same “bona fide doubt” standard. Drope, 420 U.S. at 181.

      Watts makes three separate arguments about competency: that the trial

court’s initial competency finding at the competency hearing was unreasonable

based on the evidence then before the court, that the trial court’s refusal to later

reconsider that finding was unreasonable based on new evidence produced after the

hearing, and that the trial court unreasonably failed to sua sponte hold a renewed

competency hearing after Watts testified at trial.

      We hold first that the trial court’s competency finding after the hearing was

not an unreasonable finding of fact. Dr. Adrian Della Porta testified at the hearing

that Watts was malingering. Although some evidence presented at the time of the

competency hearing contradicted Della Porta’s conclusion and some of the bases

for that conclusion, that evidence was not so strong that the trial judge’s

competency finding was unreasonable. There is no reason to believe that the trial

court overlooked the contradictory evidence. Cf. Taylor, 366 F.3d at 1000-01

(state fact-finding process is unreasonable when highly probative evidence central

to petitioner’s claim is overlooked). Watts would have had the trial court give the


                                           4
contradictory evidence more weight, but its failure to do so was not unreasonable.

See Gonzalez v. Brown, 585 F.3d 1202, 1210-11 (9th Cir. 2009).

      Watts next challenges the state appellate court’s ruling on the trial court’s

reaffirmance of its competency finding when the court allowed Watts to withdraw

his insanity plea. In affirming that second competency finding, the California

Court of Appeal stated that “[t]here was no new evidence nor was there a change in

circumstances requiring the trial court to hold a second hearing.” We disagree.

There was significant new evidence: Dr. Michael Zimmerman, one of the

psychologists who initially found Watts to be incompetent, had prepared two

reports after the competency hearing, and both contained important new

information about Watts’s condition. Moreover, Watts’s refusal to enter an

insanity plea following the competency hearing also constituted important new

evidence because, like Dr. Zimmerman’s reports, it contradicted Dr. Della Porta’s

conclusion, adopted by the court, that Watts was faking his mental illness to

support an insanity plea. Because Della Porta’s report relied so heavily on a belief

that Watts wanted to be placed in a mental institution, the new contradictory

evidence was highly probative. Thus, the ruling of the appellate court affirming

the trial court’s factual finding, which overlooked that evidence, was based on an

unreasonable determination of fact. Taylor, 366 F.3d at 1000-01. Based on the


                                          5
analysis below, we need not make our own finding on whether, at the time the trial

court reaffirmed its competency finding, there was a bona fide doubt as to Watts’s

competence.

       Watts’s final argument is that the trial court should have sua sponte

conducted a competency hearing after his trial testimony. The California Court of

Appeal acknowledged that Watts had “exhibited some bizarre behavior,” but held

that the record did not demonstrate any error in failing to hold a competency

hearing after Watts testified. In Drope, 420 U.S. at 180, the Supreme Court

discussed three categories of evidence relevant to determining whether a further

inquiry into competence is required: “evidence of a defendant’s irrational behavior,

his demeanor at trial, and any prior medical opinion.” Watts points to evidence in

all three categories.

       First, there is Watts’s irrational behavior regarding his plea. It is not unusual

for a defendant to change his mind about what plea he wants to enter, but Watts’s

reasons for changing his mind were highly unusual. He first refused an insanity

plea and attempted to plead guilty because he believed he was not insane and did

not want to be hospitalized or medicated. Watts’s request to change his plea was

continued to the next hearing, where he entered a not guilty plea and again rejected

the possibility of an insanity plea, stating that he had been found competent and


                                           6
was not retarded. On the morning of trial, Watts’s lawyer and the prosecutor

believed that Watts had agreed to change his plea again, to guilty. Watts told the

court that he was pleading guilty so he would not be placed in a mental institution

where his brain would be incapacitated, and that he needed to have the camera in

his head removed or he needed to be locked up. After a recess, Watts informed the

court, without explanation, that he wanted to change his plea yet again, back to not

guilty. As further examples of irrational behavior, Watts points to his inability to

communicate with counsel regarding his desire to testify, and his implication,

through a hearsay statement by counsel, of the court in a conspiracy against him.

      Next, Watts points to his demeanor at trial, including his insistence that

counsel ask one of the carjacking victims if he was aware of Watts’s royal status

and his interruption of his father’s testimony. The most significant evidence in this

category, though, is Watts’s own trial testimony. In that testimony, Watts

repudiated his plea of not guilty by confessing to all of the charges, and he repeated

the delusional beliefs that motivated him to commit the crimes. It is impossible to

read the transcript of Watts’s testimony, supposedly delivered in his defense,

without questioning his competence to stand trial. Competent defendants do not

typically plead not guilty, but then take the stand and volunteer an unsolicited

confession. See Torres v. Prunty, 223 F.3d 1103, 1109-10 (9th Cir. 2000) (holding


                                          7
that “defendant’s unusual and self-defeating behavior in the courtroom suggested

that an inquiry into competence was required”).

      Finally, Watts discusses the medical opinions, relying primarily on the

reports that Dr. Zimmerman prepared after the competency hearing. He argues that

by the time he had finished testifying, the factual basis for Dr. Della Porta’s report

had been thoroughly undermined by Zimmerman’s reports and by Watts’s own

testimony. Indeed, Della Porta’s belief that Watts was hoping to avoid jail by

faking his delusions is all but impossible to square with Watts’s refusal to enter an

insanity plea, his in-court confessions to crimes he had pleaded not guilty to, and

his repeatedly stated desire to be sent to prison rather than a mental institution.

Moreover, the evidence presented at trial that Watts’s mental instability began

before he committed the crimes contradicted another of the bases for Della Porta’s

conclusion. Despite all these factors weighing against Della Porta’s conclusion, a

trial court finding that continued to rely on Della Porta’s report might not be

unreasonable. See Maggio v. Fulford, 462 U.S. 111, 117 (1983) (pre-AEDPA

ruling deferring to trial court’s reasoned determination of competency). Here,

though, the trial court made no finding that Watts was competent following his

testimony. On the contrary, the court made a very significant finding suggesting

that Watts was not competent. In explaining its verdict, the court found that


                                           8
Watts’s delusions were truly motivating him when he committed the crimes. That

finding cannot be reconciled with Della Porta’s conclusion that Watts was

fabricating his symptoms of mental illness and was not truly delusional.

      The relevant evidence that had been presented to the trial court by the time it

announced its verdict was the following: new evidence of incompetence in Dr.

Zimmerman’s second and third reports; Watts’s refusal to enter an insanity plea;

his repeated vacillating over what type of plea to enter and the delusional reasons

for that vacillation; and, finally, Watts’s own bizarre trial testimony, based on

which the trial court found his delusions to be genuine, thus contradicting the only

report finding him competent. Considering all that evidence, we hold that the trial

court should have had a bona fide doubt as to Watts’s competence. The only

substantial evidence supporting competency–Dr. Della Porta’s report–had been so

seriously questioned that a new competency hearing was required. See McMurtrey

v. Ryan, 539 F.3d 1112, 1126-27 (9th Cir. 2008). The trial court’s failure to hold a

new competency hearing violated Watts’s due process rights, and the appellate

court’s affirmance resulted in a decision based on an unreasonable determination

of facts in light of the evidence. 28 U.S.C. § 2254(d)(2).

      In some cases, a retrospective competency hearing may be held, but such

hearings are generally disfavored. McMurtrey, 539 F.3d at 1131. A new hearing


                                           9
in this case would be held more than six years after trial, a length of time

determined to be too long in both Drope and Pate. Drope, 420 U.S. at 183; Pate,

383 U.S. at 387. A retrospective hearing has a better chance of success when there

are contemporaneous medical reports, as there are here. See Odle v. Woodford,

238 F.3d 1084, 1089-90 (9th Cir. 2001) (medical records created at time of trial

and subsequently were sufficient to allow for meaningful retrospective hearing

eighteen years after trial). In this case, though, the only report supporting

competence is Dr. Della Porta’s. As explained, that report cannot be relied upon,

so a meaningful retrospective hearing is not possible.

      Accordingly, we reverse the judgment of the district court and remand with

instructions to grant a writ of habeas corpus directing the state to provide Watts

with a new trial, giving due attention to his competence to stand trial. See

generally C AL. P ENAL C ODE § 1370 (California procedure for resolving

competency, which allows for commitment of incompetent defendants). If the

state elects not to retry Watts, it must release him.

      REVERSED and REMANDED.




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