                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUN 15 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MARK JAMES SIMON,                                No.    15-55531

                Petitioner-Appellant,            D.C. No.
                                                 2:14-cv-03763-MMM-SH
 v.

JOSIE GASTELO, Warden,                           MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                        Argued and Submitted June 7, 2017
                              Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,** District
Judge.

      Mark Simon stands convicted of three crimes, stemming from a violent

altercation at a state fair. Simon rejected a plea offer of a four-year sentence.

After a jury convicted Simon, he was sentenced to nine years in prison. Simon



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
pursued a direct appeal and collaterally challenged his conviction in the California

state court system, securing no relief. He then filed a habeas petition in federal

district court, which the district court denied. We granted a certificate of

appealability on Simon’s claims that (1) the trial court should have held a

competency hearing, and (2) that his trial counsel rendered ineffective assistance of

counsel by failing to request a competency hearing. We review “the last reasoned

state court adjudication on the merits.” Thompson v. Runnels, 705 F.3d 1089, 1096

(9th Cir. 2013). Applying the required deference to the state court’s rulings, see 28

U.S.C. § 2254(d), we affirm.

      1. A state court ruling that a competency hearing was unnecessary is a

factual finding. See Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009). We

review the finding to decide whether it was “‘unreasonable’ within the meaning of

28 U.S.C. § 2254(d)(2).” Torres v. Prunty, 223 F.3d 1103, 1105 (9th Cir. 2000);

see Mendez, 556 F.3d at 771.

      “A state trial judge must conduct a competency hearing, regardless of

whether defense counsel requests one, whenever the evidence before the judge

raises a bona fide doubt about the defendant’s competence to stand trial.” Williams

v. Woodford, 384 F.3d 567, 603 (9th Cir. 2004). A bona fide doubt is present

where “a reasonable judge, situated as was the trial court judge whose failure to

conduct an evidentiary hearing is being reviewed, should have experienced doubt


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with respect to competency to stand trial.” Stanley v. Cullen, 633 F.3d 852, 860

(9th Cir. 2011) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)

(en banc)). The evidence before the trial court judge of Simon’s mental health

issues is roughly comparable to, or less than, evidence previously rejected in

similar competency challenges in Ninth Circuit cases on both direct appeal, United

States v. Brugnara, 856 F.3d 1198, 1215–16 (9th Cir. 2017), and on collateral

review, e.g., Davis v. Woodford, 384 F.3d 628, 644–47 (9th Cir. 2004). Though

there is evidence of Simon’s mental health problems since his incarceration, this

evidence was not before the trial court, and on review we “disfavor retrospective

determinations of incompetence.” Williams, 384 F.3d at 608. Simon appears to

have understood the “nature and object of the proceedings against him” when

discussing his right not to testify, and when he accepted responsibility so as to

reduce his sentence; he could, and did, “consult with counsel”; and there is no

apparent evidence that he was unable to “assist in preparing his defense” during his

trial. Drope v. Missouri, 420 U.S. 162, 171 (1975). The California Court of

Appeal did not make an unreasonable factual finding when it found that the trial

court did not have to hold a competency hearing.

      2. Counsel did not provide ineffective assistance by failing to request a

competency hearing before sentencing. Rather than looking to whether the state

court reached the right result, the court looks to “whether that determination was


                                          3
unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009) (internal quotation marks omitted); see Strickland v. Washington,

466 U.S. 668, 689 (1984). Counsel’s failure to move for a competency hearing

violates the defendant’s right to effective assistance of counsel when “there are

sufficient indicia of incompetence to give objectively reasonable counsel reason to

doubt the defendant’s competency, and there is a reasonable probability that the

defendant would have been found incompetent to stand trial had the issue been

raised and fully considered.” Stanley, 633 F.3d at 862 (internal quotation marks

omitted). Here, counsel brought the issue to the court’s attention, and requested a

mental health evaluation prior to sentencing. The California Court of Appeal

reasonably concluded that trial counsel was not ineffective. See Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986) (holding that counsel must display “gross

incompetence” to be ineffective). Simon also failed to show prejudice from the

lack of a competency evaluation, either by showing that he would have accepted a

plea offer when competent, Lafler v. Cooper, 566 U.S. 156, 164 (2012), or that he

would have made a more compelling presentation at trial than the testimony he

gave. The California Court of Appeal did not unreasonably apply either prong of

Strickland.

      AFFIRMED.




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