                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 21 2010

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




                              FOR THE NINTH CIRCUIT



 RAYMOND LARRY CARRASCO,                           No. 08-17381

               Petitioner - Appellant,             D.C. No. 2:04-cv-02595-MCE-
                                                   KJM
   v.

 SCOTT KERNAN,                                     MEMORANDUM *

               Respondent - Appellee.



                       Appeal from the United States District Court
                          for the Eastern District of California
                      Morrison C. England, District Judge, Presiding

                        Argued and Submitted September 1, 2010
                               San Francisco, California

Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.

        Larry Raymond Carrasco, a California state prisoner, appeals the district

court’s denial of his petition for writ of habeas corpus. We affirm the judgment of

the district court.




         *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Carrasco claims that his due process rights were violated because the trial

judge failed to sua sponte order a hearing on his competency to stand trial. The

Supreme Court has identified three factors that are relevant to whether there is

reason for a trial judge to doubt a defendant’s competency: prior medical opinions

about competency, evidence of irrational behavior by the defendant, and the

defendant’s demeanor at trial. Drope v. Missouri, 420 U.S. 162, 180 (1975).

Carrasco concedes that the record does not contain any evidence of the latter two

factors, but argues that the testimony of his expert witness, a neuropsychologist

who evaluated him shortly after his arrest, was sufficient to raise a “bona fide

doubt” about his competency in the mind of the trial judge. Pate v. Robinson, 383

U.S. 375, 385 (1966) (citation omitted).

      At most, the defense expert’s testimony established that Carrasco’s IQ score

was between that of a mentally retarded person and a person of low average

intelligence, and that Carrasco suffered frontal lobe damage as a result of a train

accident in 1999. While the expert also testified that Carrasco performed poorly on

a battery of neuropsychological tests, suggesting some cognitive impairment, the

expert never offered an opinion that Carrasco lacked the capacity to stand trial, nor

suggested that he was otherwise incompetent.




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      Perhaps more telling, Carrasco’s counsel did not question his competency

during the trial. Medina v. California, 505 U.S. 437, 450 (1992) (“[D]efense

counsel will often have the best-informed view of the defendant’s ability to

participate in his defense.”). On this record, the trial judge had insufficient reason

to doubt Carrasco’s competency based solely on the testimony of his psychological

expert.

      Because the record of Carrasco’s trial reveals no evidence of the indicia of

incompetency identified by the Supreme Court in Drope, and because there is no

clearly established federal law that the type of testimony given by Carrasco’s

expert, standing alone, is sufficient to raise a “bona fide doubt” about a defendant’s

competency, Pate, 383 U.S. at 385, we hold that the state court’s determination

that the evidence before the trial court was not sufficient to require a sua sponte

inquiry into Carrasco’s competency was neither contrary to, nor an unreasonable

application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).

      Carrasco’s claim that his due process rights were violated when the trial

judge admitted evidence of his past crimes is foreclosed by Larson v. Palmateer,

515 F.3d 1057, 1066 (9th Cir. 2008). There, we noted that the Supreme Court has

expressly left open the question whether the admission of “past crimes” evidence

constitutes a violation of due process. Id.


                                              3
      Carrasco’s claim that his right to a unanimous jury under the Sixth and

Fourteenth Amendments was violated when the trial judge instructed the jury with

CALJIC 17.41.1, an antinullification instruction, is foreclosed by Brewer v. Hall,

378 F.3d 952, 957 (9th Cir. 2004). In Brewer, we denied federal habeas relief

because there is no Supreme Court decision establishing that an instruction like

CALJIC 17.41.1 violates a federal constitutional right.

      AFFIRMED.




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