                                                                             FILED
                      UNITED STATES COURT OF APPEALS                          MAR 22 2012

                                                                         MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




LON MARTIN,                                        No. 10-35974

                Petitioner - Appellant,            D.C. No. 3:08-cv-05344-RJB
                                                   Western District of Washington,
  v.                                               Tacoma

KENNETH ÏUINN,
                                                   ORDER
                Respondent - Appellee.



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

         The Memorandum filed on December 30, 2011, is amended, and an

Amended Memorandum, filed concurrently with this Order, is filed in its place.

With these amendments, the panel has voted to deny the petition for panel

rehearing. Judge McKeown and Judge Tallman vote to deny the petition for

rehearing en banc and Judge Mosµowitz so recommends.

         The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.



         *
             The Honorable Barry T. Mosµowitz, District Judge for the Southern
District of California, sitting by designation.
      The petition for panel rehearing and the petition for rehearing en banc are

DENIED. No further petition for rehearing and/or petition for rehearing en banc

shall be entertained.
                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 22 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



LON MARTIN,                                      No. 10-35974

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

  v.
                                                 AMENDED MEMORANDUM *
KENNETH ÏUINN,

              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. y 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. Mosµowitz, 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. yy 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. Ornosµi, 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. y 2254(d). Our

analysis under y 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 claims that his trial counsel, Michael Henegen, rendered ineffective

assistance by failing to: (1) investigate Martin's mental illness and (2) request a

competency evaluation at various points before and during trial. Of these claims, it

is unclear whether Martin fully exhausted the claim that Henegen failed to

investigate Martin's mental health. Nevertheless, the state court noted that Martin

claimed 'that Henegen should have investigated his competence to participate in

trial,' and the court rejected the claim because Henegen did in fact investigate

Martin's mental health. Even if we conclude based on these statements that this

claim is properly exhausted, Martin loses on the merits. Henegen conducted a

reasonable investigation of Martin's mental history and properly concluded that no

additional investigation was necessary. In fact, in his state post-conviction petition

for review, Martin stated that '[d]efense counsel had sufficient information

regarding [Martin's] mental health difficulties to seeµ an evaluation.'

      We do not reach any of Martin's remaining 'failure to investigate' claims.

Because Martin did not raise these claims in the state court and there is no way to

construe the claims he did raise as including a 'failure to investigate' argument,

they are procedurally barred by Washington's prohibition against the filing of

successive collateral attacµs. See Wash. Rev. Code y 10.73.140. We consider only




                                           3
the portions of his remaining claims that relate 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 investigating 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. After this investigation, Henegan did not have a bona fide doubt as to

Martin's competency. Under the standard set forth in Stricµland v. Washington,

466 U.S. 668, 691 (1984), defense counsel is empowered to maµe strategic

decisions, including decisions regarding how to fulfill the duty to conduct an

investigation of a client's mental health. 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 when he had no reasonable cause to believe that

Martin was incompetent.

      Martin also claims that Henegen rendered ineffective assistance by failing to

adequately present expert mental health testimony at the pretrial hearings regarding


                                            4
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, µnowing 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 mistaµenly 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

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


                                            5
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.

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

limitation on the discretion of federal district courts to taµe 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 y 2254 thus

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

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

      Martin also seeµs 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

U.S.C. y 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.


                                           6
AFFIRMED.




            7
