                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 27 2010

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




                            FOR THE NINTH CIRCUIT



MIGUEL MENDOZA,                                  No. 08-56093

              Petitioner - Appellant,            D.C. No. 2:05-cv-06436-CAS-OP

  v.
                                                 MEMORANDUM *
RODERICK Q. HICKMAN, Secretary
California Department of Corrections and
Rehabilitation,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted July 15, 2010
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Jack J. Camp, Senior United States District Judge for
the District of Northern Georgia, sitting by designation.
      On this record, the district court properly ruled that the California court did

not unreasonably apply or act contrary to Supreme Court precedent in holding that

the circumstances leading up to the change of plea proceeding did not warrant

further inquiry into Miguel Mendoza’s mental status when he entered his plea of

no contest. We review de novo. Musladin v. Lamarque, 555 F.3d 830, 835 (9th

Cir. 2009).

      We have carefully considered Mendoza’s allegations of error. The fact that

Mendoza was on medication does not make his situation identical to McMurtrey v.

Ryan, 539 F.3d 1112 (9th Cir. 2008). There the defendant was on eight anti

psychotic and anti-anxiety medications. Usually there is supporting evidence or

medical opinions suggesting incompetency. See McMurtrey, 539 F.3d at 1126;

Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997).

      We recognize that we can consider evidence that was not before the trial

court if it shows actual incompetence, but Dr. Erwin’s opinion and Mendoza’s

treatment in Vacaville fail to establish that Mendoza was incompetent at the time

of his plea. Dr. Erwin’s evaluation was made two and a half years later. It must be

considered in light of the two contemporaneous medical opinions of record. Dr.

Erwin’s conclusion is based primarily on the medication that Mendoza was taking.

The level of Mendoza’s participation in his contemporaneous medical interviews


                                          2
and at his hearings refute those conclusions. See Davis v. Woodford, 384 F.3d 628,

645-46 (9th Cir. 2004); United States v. Mitchell, 502 F.3d 931, 986 (9th Cir.

2007).

         The record supports Dr. Arroyo’s conclusion in October 2000 that Mendoza

was competent to proceed with adjudication.

         AFFIRMED.




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