                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 02 2010

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



                           FOR THE NINTH CIRCUIT


ULLYSSES PAUL CUEN,                              No. 08-16197

             Petitioner - Appellant,             D.C. No. 3:05-cv-04569-JSW

  v.
                                                 MEMORANDUM*
M.S. EVANS,

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                       Argued and Submitted July 12, 2010
                           San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.**

       Petitioner Ulysses Paul Cuen was convicted of arson in California Superior

Court. Before trial, the court held a hearing on Cuen’s competency and concluded

he was indeed competent to stand trial. The California Court of Appeal affirmed

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.
the trial court’s competency determination. In a petition for the writ of habeas

corpus, Cuen now claims that the California courts’ competency determination was

erroneous. The district court denied Cuen’s petition. We affirm.

      Whether Cuen was competent to stand trial is a factual question. See Dennis

ex rel. Butko v. Budge, 378 F.3d 880, 891 (9th Cir. 2004). Accordingly, we review

whether the California courts’ decision was “an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). Moreover, the California courts’ decision is “presumed to be

correct[,]” and Cuen has “the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

      In Indiana v. Edwards, the Supreme Court recognized that two of its cases

set forth the Constitution’s mental competence standard. 128 S. Ct. 2379, 2383

(2008). The first, Dusky v. United States, 362 U.S. 402 (1960), defines the

competency standard as including both “(1) whether the defendant has a rational as

well as factual understanding of the proceedings against him and (2) whether the

defendant has sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding.” Edwards, 128 S. Ct. at 2383 (internal quotation

marks and emphasis omitted). The Indiana Court further recognized that Drope v.

Missouri, 420 U.S. 162 (1975) “repeats that standard,” stating that “it has long


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been accepted that a person whose mental condition is such that he lacks the

capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected to

a trial.” Indiana, 128 S. Ct. at 2383 (emphasis omitted).

      Cuen does not dispute that he understood the nature and the object of the

proceedings against him. Instead, he contends that he lacked the capacity to

consult with counsel and assist in preparing his defense.

      The California courts’ finding that Cuen was capable of assisting his lawyer

is not unreasonable. The State’s witness, Douglas Harper, was a psychiatrist who

had more experience than the defense witness, David Echeandia. Harper had also

conducted more competency evaluations than Echeandia under California Penal

Code sections 1368 and 1369. Further, although the experts came to different

conclusions concerning Cuen’s competency, Echeandia admitted that his

assessment that Cuen was incompetent was a “close call.” Harper, on the other

hand, testified that he was “95 percent sure” of his judgment that Cuen was

competent. He also testified that Cuen’s past behavior indicated a pattern of not

accepting responsibility for his actions. Although the California courts were faced

with conflicting evidence, their decision to credit Harper’s testimony was not “an




                                         -3-
unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” See 28 U.S.C. § 2254(d)(2).

      Cuen’s remaining contentions are without merit.

      AFFIRMED.




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