                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 12 2015

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



                            FOR THE NINTH CIRCUIT


ROBERT W. WASHINGTON,                            No. 13-15616

              Petitioner - Appellant,            D.C. No. 1:09-cv-01801-AWI-JLT

 v.
                                                 MEMORANDUM*
D. G. ADAMS,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted October 22, 2015
                            San Francisco, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.


      Robert Washington appeals the denial of his habeas petition under 28 U.S.C.

§ 2254. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Because the

petition was filed after April 24, 1996, the provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) govern. Lindh v. Murphy, 521


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S. 320, 326-27 (1997). Under AEDPA, habeas relief may be granted only if the

state court’s adjudication was: (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States;” or (2) “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

1.    Washington argues that he was denied effective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984), because his attorney failed to

request a competency hearing and failed to investigate or present a mental health

defense. When counsel has reason to doubt the defendant’s competency, failure to

request a competency hearing may fall below a reasonable standard of professional

competence under Strickland. See Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir.

2011). The petitioner must also establish prejudice by demonstrating a “reasonable

probability that the court would have found [the defendant] incompetent to stand

trial.” Hoffman v. Arave, 455 F.3d 926, 938 (9th Cir. 2006), vacated in part on

other grounds, 552 U.S. 117 (2008).

2.    We need not address whether Washington’s attorney was ineffective in

failing to request a competency hearing because Washington has failed to establish

a reasonable probability that the trial court would have adjudged him incompetent.


                                          2
After the guilt phase of the trial, Washington answered a series of questions that

the judge asked relating to his waiver of a jury determination of his prior

convictions, which the record shows he was able to answer without difficulty. In

addition, the record does not reflect any erratic behavior or outbursts. Although

“calm behavior in the courtroom is not necessarily inconsistent with mental

incompetence,” Odle v. Woodford, 238 F.3d 1084, 1088 (9th Cir. 2001), in light of

the record presented, the state courts’ determination that Washington failed to

demonstrate prejudice was not objectively unreasonable.

3.    Washington also fails to establish prejudice with respect to his claim that

trial counsel was ineffective for not investigating or raising a mental health

defense. To prevail on an insanity defense under California law, the trier of fact

must find that it is more likely than not that the defendant “was incapable of

knowing or understanding the nature and quality of his or her act and of

distinguishing right from wrong at the time of the commission of the offense.” Cal.

Penal Code § 25(b) (West 2015). Alternatively, a successful mental health defense

may negate the mens rea required for the specific offenses charged. In this case, it

was not objectively unreasonable for the state courts to conclude that counsel’s

failure to investigate or raise a mental health defense did not result in prejudice to

Washington. See Knowles v. Mirzayance, 556 U.S. 111, 127-28 (2009); Bemore v.


                                           3
Chappell, 788 F.3d 1151, 1169-70 (9th Cir. 2015); Woods v. Sinclair, 764 F.3d

1109, 1133 (9th Cir. 2014). The record does not include any evidence that

Washington was insane or unable to form the intent required for the crimes

charged. Thus, the district court properly rejected Washington’s claim that his

attorney’s failure to pursue a mental health defense constituted ineffective

assistance of counsel.

      AFFIRMED.




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