                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 02 2010

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




                            FOR THE NINTH CIRCUIT



TIMOTHY O’KEEFE,                                 No. 08-55339

              Petitioner - Appellant,            D.C. No. 3:04-CV-02088-W-NLS

  v.
                                                 MEMORANDUM *
MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                            Submitted August 30, 2010 **
                               Pasadena, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.

       O’Keefe’s habeas petition does not allege facts which, if true, would entitle

him to habeas relief on either his Sixth or his Fourteenth Amendment claim. See


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The California state court

record—including the transcripts, letters from O’Keefe, and two mental health

evaluations—shows that O’Keefe actively participated in his defense, understood

the consequences of his guilty plea, and expressed his sentencing preferences to the

trial court. See Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). In

light of the state court record, O’Keefe’s allegations of incompetence are

insufficient to compel an evidentiary hearing and the district court did not abuse its

discretion in declining to hold one. See Landrigan, 550 U.S. at 474 (“[I]f the

record refutes the applicant’s factual allegations or otherwise precludes habeas

relief, a district court is not required to hold an evidentiary hearing.”).

      Similarly, the record shows that O’Keefe’s counsel negotiated a reasonable

plea bargain and adequately investigated O’Keefe’s mental health. Therefore,

O’Keefe has not shown that the state court’s rejection of his ineffective assistance

claim was unreasonable. See 28 U.S.C. § 2254(d); see also Strickland v.

Washington, 466 U.S. 668, 687 (1984).

      AFFIRMED.




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