                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              AUG 25 2010

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

NICHOLAS W. GIVENS,                              No. 09-35465

              Petitioner - Appellant,            D.C. No. 1:07-cv-00829-PA

  v.
                                                 MEMORANDUM*
JEAN HILL, Supintendent at SRCI,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Owen M. Panner, District Judge, Presiding

                        Argued and Submitted June 8, 2010
                                Portland, Oregon

Before: FERNANDEZ, McKEOWN and PAEZ, Circuit Judges.

       Nicolas W. Givens (Givens) appeals the denial of habeas relief by the

district court on the ground that he was denied effective assistance of counsel.

Givens was convicted of kidnapping in the first degree (Or. Rev. Stat. § 163.235),

robbery in the first degree (Or. Rev. Stat. § 164.415), and assault in the second



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
degree (Or. Rev. Stat. § 163.175) and sentenced to 180 months following a bench

trial. Givens argues that he received ineffective assistance of counsel at trial and at

sentencing in violation of the Sixth Amendment when his attorney failed to

investigate and present information regarding his mental illness and receipt of

electroconvulsive therapy (“ECT”). Although counsel’s performance was

deficient, Givens cannot show prejudice. Consequently, we affirm the denial of

habeas relief.

      We have jurisdiction under 28 U.S.C. § 2253, and we review de novo the

district court’s denial of a petition for a writ of habeas corpus. Musladin v.

Lamarque, 555 F.3d 830, 835 (9th Cir. 2009). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.

1214, a writ of habeas corpus may be granted only if the state court’s decision

“was contrary to or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

      First, Givens argues that the state post-conviction court’s conclusion that

defense counsel provided constitutionally adequate assistance at trial is contrary to

or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, we consider whether (1) his counsel’s performance fell


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below an objective standard of reasonableness, and (2) whether there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 687.

      Givens argues that defense counsel’s performance fell below objective

standards of reasonableness when counsel failed to contact Dr. Maletzky, his

treating physician at Pacific Gateway Hospital, regarding the ECT treatments he

received in the days leading up to the incident. Evidence of Givens’s ECT

treatments and the therapy’s related side-effects, Givens argues, would have

supported a diminished capacity defense. See Or. Rev. Stat. § 161.300.

      With respect to the first prong of Strickland, we agree that Givens’s

counsel’s performance was objectively unreasonable. Defense counsel knew,

based on his own expert’s report, that Givens had a long and troubling history of

mental illness, had been released following a month-long commitment from a

mental health hospital the night before the crime, and had received seven ECT

treatments over the course of the two weeks preceding the crime. “[A]ny

reasonably competent attorney would have realized that pursuing these leads was

necessary to making an informed choice among possible defenses . . . .” Wiggins

v. Smith, 539 U.S. 510, 525 (2003). Yet, “despite tantalizing indications in the

record” that Givens may have been operating at diminished capacity at the time of


                                          3
the crime, defense counsel never contacted Dr. Maletzky nor investigated the

effects of ECT. Stankewitz v. Woodford, 365 F.3d 706, 720 (9th Cir. 2004). His

failure to do so was unreasonable both because it fell below what defense counsel

conceded was standard practice and because it was insufficient “in light of what

counsel actually discovered in the . . . records.” Wiggins, 539 U.S. at 525.

      In light of the other substantial evidence admitted at trial, however, we agree

with the district court that Givens was not prejudiced by his counsel’s deficient

performance. Under AEDPA’s standard, the state court’s decision was not an

unreasonable application of Strickland, and we affirm the district court’s denial of

this claim.

      Givens further argues that counsel’s assistance was constitutionally

inadequate at sentencing. At the sentencing hearing, the court stated that unless it

“heard something truly startling,” the court would sentence Givens to 180 months.

The default under Oregon law is that sentences arising out of a continuous and

uninterrupted course of conduct run concurrently. Or. Rev. Stat § 137.123(4).

Here, however, the trial court found that Givens had exhibited the requisite

“willingness to commit more than one criminal offense” under Or. Rev. Stat.

§ 137.123(5)(a) and that his pertinent offense “caused or created a risk of causing

greater or qualitatively different” injury to the victim under Or. Rev. Stat.


                                           4
§ 137.123(5)(b). Accordingly, the trial court exercised its discretion and ordered

that the robbery and kidnapping convictions run consecutively and that the

sentence for assault run concurrently, for a total sentence of 180 months. See State

v. Trice, 976 P.2d 569, 571 (Or. Ct. App. 1999).

      Defense counsel presented no evidence of Givens’s mental illness at

sentencing. However, even if counsel had presented evidence of Givens’s

contemporaneous treatment with ECT and its severe side-effects, Givens still

would have met the condition for the discretionary imposition of a consecutive

sentence at § 137.123(5)(b). Under AEDPA’s “highly deferential” standards of

review, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), we cannot conclude that

the state court unreasonably applied Strickland by holding that there was no

reasonable possibility the additional evidence would have altered the sentencing

judge’s exercise of discretion. Consequently, we affirm the denial of Givens’s

sentencing claim.

      Givens further argues that the district court erred in denying his request to

expand the state court record. Givens is not entitled to an expansion of the record

or evidentiary hearing unless he diligently attempted to develop the evidence in

state court, but was unable to do so. See Williams v. Taylor, 529 U.S. 420, 432

(2000). Because the factual predicate for Givens’s request was available at the


                                          5
time of the state post-conviction proceeding, and he did not diligently seek to

expand the record at that time, we affirm the district court’s denial of this request.

See id. at 435.

      AFFIRMED.




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                                                                                FILED
No. 09-35465.                                                                   AUG 25 2010

                                                                          MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring and dissenting:                             U.S. COURT OF APPEALS



      I concur in the court’s disposition of Givens’s claim of ineffective assistance

of counsel (IAC) at trial. I respectfully dissent, however, from the denial of habeas

relief as to Givens’s IAC sentencing claim. In my view, there is a reasonable

probability that had the trial court been presented with evidence of Givens’s

contemporaneous electroconvulsive treatments (ECT) and their severe-side effects,

the court would not have exercised its discretion to impose consecutive sentences

under Oregon Revised Statute section 137.123(5). See Strickland v. Washington,

466 U.S. 668, 694 (1984).

      As the majority notes, the default under Oregon law is that sentences arising

out of a continuous and uninterrupted course of conduct will run concurrently. See

Or. Rev. Stat § 137.123(4). Here, however, the trial court found that Givens’s

offense conduct met the requirements of Oregon Revised Statute section

137.123(5). The trial court, however, never had the benefit of any evidence

regarding Givens’s then recent ECT treatments.

      Unbeknownst to the court at sentencing, Givens was released, against the

advice of his doctors, from Pacific Gateway Hospital just hours before he assaulted

the victim. An affidavit from Givens’s treating physician reported that “Givens

                                          1
received seven ECT treatments” from March 14 to March 24. And that after he

was released, Givens committed the assault, “just two days after his last ECT

treatment.” The doctor further explained that because Givens’s “ex-girlfriend

agreed to sign him out and supervise him for the next week, we released him. . . .

Had we known he would not have been supervised, we would not have released

him because of the temporarily confused state the ECT treatments had brought

upon him.”

      With respect to Givens’s ability to form the requisite intent at the time of the

crime, the treating physician explained that

             72 hours after his last ECT treatment, Mr. Givens was still
             suffering from the effects of the series of ECT treatments.
             The lingering effects of those treatments would have
             included, among other things, confusion and memory loss.
             . . . While the ECT may not have hampered his ability to
             tell right from wrong, his ability to appreciate the
             consequences of his actions would have been severely
             impaired. It would have been difficult for Mr. Givens to
             appreciate the consequences of his actions. His capacity for
             executive functions, including decision making, would
             have been impaired on the day in question. During that
             time, his memory for day-by-day or moment-by-moment
             events would also have been impaired. His thought process
             would not have been sequential.

      The ECT evidence is sufficiently startling and the therapy’s mental side-

effects sufficiently severe, that there is a reasonable probability that evidence of the



                                           2
treatments would affect a trier of fact’s assessment of the threat Givens posed to

others as well as the benefit to Givens of additional custody time. There is also a

reasonable probability that the evidence of Givens’s ECT treatments would affect a

trier of fact’s determination as to whether Givens was capable at the time of the

incident of forming the requisite mens rea to willingly commit more than one

criminal offense, as required under Oregon Revised Statute section 137.123(5)(a).

See State v. Anderson, 145 P.3d 245, 249 (Or. Ct. App. 2006) (noting that

“‘willingness to commit more than one criminal offense’ is, as with any other

determination of culpable mental states, innately factual”). Finally, although

circumstances support each of the section 137.123(5) findings, the court had

discretion not to make those findings. Had the court been fully informed about the

ECT treatments and the lingering effects of such treatments, there is a reasonable

probability that the court would not have imposed consecutive sentences.

      In light of the statutory default for concurrent sentences and the discretion

the court had in imposing consecutive sentences, counsel’s failure to present such

evidence “undermine[s] confidence in the outcome” of the sentence proceeding.

Strickland, 466 U.S. at 694. For these reasons, I would conclude that Givens was

prejudiced by his counsel’s failure to present such evidence and reverse the district

court’s denial of habeas relief on this claim.

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