                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 03 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


MICHAEL MCINERNEY,                               No. 09-16185

              Petitioner - Appellant,            D.C. No. 3:07-cv-00037-LRH-
                                                 RAM
  v.

DONALD HELLING and NEVADA                        MEMORANDUM*
ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                          Submitted November 1, 2010**
                            San Francisco, California

Before: HALL, THOMAS, Circuit Judges, and LASNIK, Chief District Judge.***




        *
             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).
        ***
            The Honorable Robert S. Lasnik, Chief United States District Judge
for the Western District of Washington, sitting by designation.
      Michael McInerney appeals the district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition, which challenges his jury conviction and sentences

for robbery and attempted murder, both with a victim over the age of 65.

McInerney argues that his trial counsel rendered ineffective assistance for not

seeking a second competency hearing before trial, and for not investigating

McInerney’s mental health history at the time of McInerney’s criminal conduct.

Per the Antiterrorism and Effective Death Penalty Act, he alleges that the Nevada

Supreme Court unreasonably applied federal law to his ineffective assistance

claims. See 28 U.S.C. § 2254(d). We affirm.

      Judicial scrutiny of McInerney’s counsel’s performance must be highly

deferential, and McInerney must prove that his defense attorney’s representation

(1) was deficient, and (2) prejudiced the defense. See Strickland v. Washington,

466 U.S. 668, 687, 689 (1984) (articulating the required showing for ineffective

assistance of counsel claims). McInerney first argues that his trial counsel

rendered ineffective assistance by not moving for a second competency hearing.

However, McInerney has not shown that the Nevada Supreme Court unreasonably

applied federal law when it determined that McInerney failed to satisfy

Strickland’s first prong, requiring that his attorney’s representation be deficient.

The Nevada Supreme Court considered all of the evidence and applicable law


                                          -2-
bearing on McInerney’s competence, including his claim that changes in his

medication regimen negated a prior determination of competency. McInerney’s

proof of a two-month alteration in his medication regimen, after he was deemed

competent, was insufficient to create the requisite reasonable doubt as to his

competency. See Melchor-Gloria v. State, 99 Nev. 174, 180 (1983) (explaining

that a formal competency hearing is required when substantial evidence raises a

reasonable doubt as to the defendant’s competency). He offered no other proof of

his incompetence. Given the evidence presented, the Nevada Supreme Court did

not apply federal law in an objectively unreasonable way by concluding that

McInerney’s representation was not ineffective for not seeking a second

competency hearing.

      Second, McInerney argues that his trial counsel should have investigated

McInerney’s mental health history at the time of his criminal acts. Again,

McInerney has not shown that the Nevada Supreme Court unreasonably applied

federal law when it determined, per Strickland, that McInerney’s trial

representation was not deficient. The Nevada Supreme Court examined

McInerney’s medical records and reviewed the circumstances of his crime. It

considered all of the things McInerney claims should have been investigated by his

trial attorney. McInerney’s medical records showed that he has a history of


                                         -3-
depression, not insanity. Furthermore, the circumstances of McInerney’s crime,

while strange, do not indicate that he was legally insane. Rather, they indicate that

he was trying to avoid responsibility for his actions and was, therefore, not legally

insane. See Finger v. State, 117 Nev. 548, 576 (2001) (“To qualify as being legally

insane, a defendant must be in a delusional state such that he cannot know or

understand the nature and capacity of his act, or his delusion must be such that he

cannot appreciate the wrongfulness of his act . . . .”). On these facts, the Nevada

Supreme Court’s application of federal law was not objectively unreasonable.

      AFFIRMED.




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