                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                                 SEP 12 2011

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

TARAY T. MORRIS,                                 No. 10-16485

              Petitioner - Appellant,            D.C. No. 3:06-cv-07409-SI

  v.
                                                 MEMORANDUM*
TONY A. MALFI, Warden and BILL
LOCKYER, Attorney General,

              Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                      Argued and Submitted August 30, 2011
                            San Francisco, California

Before: WALLACE, BERZON, and BYBEE, Circuit Judges.

       Taray Morris appeals from the district court’s judgment, denying Morris’s

habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

       Morris first alleges that he was mentally incompetent at the time of his plea,

conviction, and sentencing, in violation of his due process rights. As the last


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reasoned decision of the state court dismissed his claim on procedural grounds, we

review the competency claim de novo.

      The Due Process Clause of the Fourteenth Amendment prohibits the

criminal prosecution of a defendant while he is legally incompetent. See Drope v.

Missouri, 420 U.S. 162, 172 (1975). A defendant is competent to stand trial if he

“has sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding” and “has a rational as well as factual understanding of

the proceedings against him.” Id. (quoting Dusky v. United States, 362 U.S. 402,

402 (1960) (internal quotation marks omitted)). The same standard applies to a

defendant’s competency to plead guilty and waive counsel for the plea. See

Godinez v. Moran, 509 U.S. 389, 398 (1993).

      The evidence, including the new evidence before the district court, was

insufficient to establish that Morris was incompetent at the time that he waived his

right to counsel and pled guilty. The change of plea transcript can reasonably be

read as evincing a rational and factual understanding of the proceedings. Morris

was familiar with court proceedings, he coherently responded to questions that

were asked of him, he knew that the Deputy District Attorney was in the

courtroom, and he initiated a conversation about striking a deal. Additionally,

Morris expressed a desire to just “get it over with,” which was not clearly


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unreasonable, considering that he was already serving a sentence of life without the

possibility of parole, plus other consecutive sentences.

      Further, although the new evidence presented before the district court

appears to establish that Morris may now be incompetent, it is insufficient to

establish that Morris was incompetent at the time of the April 2004 hearing. We

agree with the district court that, although it may be a close call, the

contemporaneous evidence of competency, including prior mental health

screenings and the change of plea transcript, outweighs the new evidence

presented.

      Morris further alleges that he did not knowingly and voluntarily waive his

right to trial. The Court in Iowa v. Tovar explained that the Sixth Amendment “is

satisfied when the trial court informs the accused of the nature of the charges

against him, of his right to be counseled regarding his plea, and of the range of

allowable punishments attendant upon the entry of a guilty plea.” 541 U.S. 77, 81

(2004). In this case, the trial court informed Morris of the nature of the charges

against him, his right to counsel, and the punishment if he entered a guilty plea.

Because the California Superior Court’s decision to deny Morris’s habeas claim on

the merits was not “contrary to, or . . . an unreasonable application of [Tovar, 541

U.S. 77,] or . . . based on an unreasonable determination of the facts in light of the


                                           3
evidence presented,” 28 U.S.C. § 2254(d), the district court did not err in denying

the petition.

      AFFIRMED




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