                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 30 2011

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




                            FOR THE NINTH CIRCUIT



LON MARTIN,                                      No. 10-35974

              Petitioner - Appellant,            D.C. No. 3:08-cv-05344-RJB

  v.
                                                 MEMORANDUM *
KENNETH QUINN,

              Respondent - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 7, 2011
                              Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges, and MOSKOWITZ, District
Judge.**

       Lon Martin appeals the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition challenging his jury conviction and 398-month sentence for first-

degree murder. Martin challenges the district court’s denial and also argues that

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Barry T. Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
the district court erred by failing to grant his request to expand the record and for

an evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253, and we affirm.

      We review de novo the district court’s denial of Martin’s petition for habeas

corpus and review findings of fact for clear error. Brown v. Ornoski, 503 F.3d

1006, 1010 (9th Cir. 2007). Because Martin filed his federal habeas petition after

1996, the AEDPA governs his action. Id.; see also 28 U.S.C. § 2254(d). Our

analysis under § 2254(d)(1) “is limited to the record that was before the state court

that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,

1398 (2011).

      Martin argues that his Fourteenth Amendment right to due process of law

was denied when the trial court failed, on its own initiative, to order a competency

hearing. Nothing in the record before the state trial court would have given that

court reason to doubt Martin’s competency. Notably, neither government counsel

nor Martin’s counsel perceived a reasonable cause to believe that Martin was

incompetent. United States v. Lewis, 991 F.2d 524, 528 (9th Cir. 1993).

Consequently, the state appellate court’s ruling was not contrary to or an

unreasonable application of clearly established federal law, nor did it constitute an

unreasonable determination of the facts in light of the record.


                                           2
      Martin raises three claims alleging that his trial counsel, Michael Henegen,

rendered ineffective assistance by failing to investigate Martin’s mental illness or

request a competency evaluation at various points before and during trial. Because

Martin did not raise the “failure to investigate” portions of these claim in the state

court, they are procedurally barred by Wash. Rev. Code § 10.73.140, Washington’s

prohibition against the filing of successive collateral attacks. We consider only the

portions of his claims relating to his trial counsel’s failure to request a competency

evaluation.

      Martin argues that Henegen rendered ineffective assistance by failing to

request a competency evaluation. Henegen hired an investigator to help with all

aspects of the case (including Martin’s mental health), obtained Martin’s

psychiatric reports, had several discussions with Martin regarding his mental

health, and had discussions with Martin’s family regarding Martin’s mental health.

Under the standard set forth in Strickland v. Washington, 466 U.S. 668, 691

(1984), defense counsel is empowered to make strategic decisions. It was not an

unreasonable application of clearly established federal law or an unreasonable

determination of the facts for the state appellate court to conclude that, while it

might have been prudent for Henegen to request a competency evaluation, he did

not render ineffective assistance by failing to do so.


                                           3
      Martin also claims that Henegen rendered ineffective assistance by failing to

adequately present expert mental health testimony at the pretrial hearings regarding

the admissibility of Martin’s confession to police officers. This claim fails because

Martin cannot demonstrate that Henegen’s failure to present psychiatric evidence

in support of the motion to suppress prejudiced the defense. Id. at 687. The

presence of a mental illness or impairment is not alone sufficient to find that a

waiver was not voluntary, knowing and intelligent. In addition, all objective signs

observed by the detectives indicated that Martin was lucid, coherent and

cooperative during the course of the interrogation. Martin has not established that

even with psychiatric evidence, his statements to the police would have necessarily

been suppressed, nor has he demonstrated that it was objectively unreasonable for

the state court to reach this conclusion.

      Martin next asserts that he was prejudiced by Henegen’s failure to provide

expert testimony at trial regarding how Martin’s mental illness would have affected

the reliability of his statements to the police. As the Washington State Supreme

Court reasoned, Martin mistakenly believes that it would have been sufficient for

an expert to opine that Martin suffered from schizophrenia and psychotic

delusions. Given the testimony of Martin’s stepfather and the two eyewitnesses to

the murder, it is not reasonably probable that the jury would have reached a


                                            4
different outcome if Martin’s confession had been shown to be unreliable. Martin

has not demonstrated that his counsel’s failure to present psychiatric evidence to

undermine the reliability of Martin’s confession constituted ineffective assistance

of counsel.

      Finally, Martin argues that the district court erred in finding that an

evidentiary hearing and expansion of the record were barred under 28 U.S.C.

§ 2254(e). The Supreme Court reiterated in Pinholster that § 2254(e)(2) imposes a

limitation on the discretion of federal district courts to take new evidence in an

evidentiary hearing. 131 S. Ct. at 1400-01. An evidentiary hearing is not required

on issues that can be resolved by reference to the state court record. Schriro v.

Landrigan, 550 U.S. 465, 474 (2007).

      Martin moved to expand the record to include a declaration from a

psychiatrist and the expert opinion of an attorney. Martin cannot establish that he

diligently sought to develop the factual basis for his claim, and § 2254 thus

precludes an evidentiary hearing or expansion of the record. See Williams v.

Taylor, 529 U.S. 420, 435 (2000).

      Martin also seeks to expand the record to include his prison treatment

records from Kitsap County Jail. The information in the medical records is not

sufficient to meet the clear and convincing standard imposed by the AEDPA. 28


                                           5
U.S.C. § 2254(e)(2). The district court did not err in concluding that Martin failed

to meet his burden and that an evidentiary hearing was not required.

      AFFIRMED.




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