                                                                           FILED
                           NOT FOR PUBLICATION                               MAR 19 2012

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




                            FOR THE NINTH CIRCUIT



DAVID JOHN RODIUS,                               No. 10-16999

              Petitioner - Appellant,            D.C. No. 2:07-cv-00602-KJD-LRL

  v.
                                                 MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF NEVADA; DWIGHT NEVEN,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                            Submitted March 15, 2012 **
                             San Francisco, California

Before: WALLACE, CALLAHAN, and BEA, Circuit Judges.

       David Rodius, a Nevada state prisoner, appeals from the denial of his

petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 2253(c)(1). We review the district court’s judgment de novo, and we review the

last-reasoned decision of the state court applying the standard set forth in 28

U.S.C. § 2254(d). Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). By that

standard, we may not grant relief “unless the adjudication of the claim—(1)

resulted in a decision that was contrary to, or involved an unreasonable application

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

United States; or (2) resulted in a decision that was 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). We affirm.

      Rodius’s first claim is that the Nevada Supreme Court’s decision that his

counsel provided effective assistance involved an unreasonable application of

federal law as determined by the Supreme Court in Strickland v. Washington, 466

U.S. 668, 687-88, 694 (1984), and Hill v. Lockhart, 474 U.S. 52, 59 (1985). Rodius

alleges that his counsel failed to investigate Rodius’s mental condition adequately

by not obtaining jail records and by not interviewing the doctor who had treated

him in Mexico after an alleged psychotic episode. He contends that if his attorneys

had performed this investigation, they would have advised him to go to trial on an

insanity defense rather than plead guilty. The Nevada Supreme Court concluded

that (1) Rodius failed to establish that his attorneys were not effective, and (2) he


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failed to demonstrate that, had they performed the stated investigation, they would

have changed their analysis. These conclusions do not involve an unreasonable

application of Strickland or Hill. The evidence before the state court did not

compel a conclusion that Rodius’s counsels’ representation “fell below an

objective standard of reasonableness.” See Strickland, 466 U.S. at 688. Nor did it

compel a conclusion that “discovery of the evidence would have led counsel to

change [their] recommendation as to the plea.” See Hill, 474 U.S. at 59.

       Rodius next argues that his attorneys provided ineffective assistance by not

advising the trial judge that he was under the influence of psychotropic medication

at the time he entered his guilty plea. The Nevada Supreme Court held, however,

that Rodius did not demonstrate that he would not have pleaded guilty had his

counsel so advised the trial court. In coming to this conclusion, the Nevada

Supreme Court directly applied Hill, which provides that in order to demonstrate

prejudice on a claim that counsel’s ineffective assistance resulted in a guilty plea,

“the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” 474 U.S. at 59. The evidence before the state court did not require a

different result.




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      Finally, Rodius asserts that he was incompetent to enter a guilty plea and

that the trial court should have held a hearing on its own motion to determine

whether he was competent. The Nevada Supreme Court denied this claim because

Rodius’s responses at the plea discussion with the trial judge were coherent and

appropriate, and because his attorney testified that he knew Rodius was on

medication but that Rodius was able to communicate and seemed to understand

what was happening. The Nevada Supreme Court’s decision is entirely consistent

with Dusky v. United States, which requires that the defendant have “sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding” and have “a rational as well as factual understanding of the

proceedings against him.” 362 U.S. 402, 402 (1960). Furthermore, Rodius has not

identified an evidentiary basis that would compel a finding that the trial court

should have been in such doubt of Rodius’s competence that it was required to

order a competency hearing sua sponte. See Drope v. Missouri, 420 U.S. 162, 172

(1975); Pate v. Robinson, 383 U.S. 375, 385-86 (1966).

      AFFIRMED.




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