                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 24 2012

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




                             FOR THE NINTH CIRCUIT



LAWRENCE ROY BECK,                                No. 11-35391

              Petitioner - Appellee,              D.C. No. 3:08-cv-00636-KI

  v.
                                                  MEMORANDUM *
MARK NOOTH,

              Respondent - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                        Argued and Submitted May 10, 2012
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, TALLMAN and IKUTA, Circuit Judges.

       Respondent-appellant Mark Nooth, Superintendent of the Snake River

Correctional Institution, appeals the district court’s grant of petitioner-appellee

Lawrence Roy Beck’s 28 U.S.C. § 2254 habeas petition challenging his conviction

for multiple crimes, including four counts of attempted murder of law enforcement



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
officers with a firearm in violation of Or. Rev. Stat. §§ 161.405, 163.115, and

161.610. Notwithstanding the deferential standard of review under 28 U.S.C. §

2254(d), the district court held that Beck was denied effective assistance of counsel

when Beck’s trial counsel failed to move for a competency hearing before allowing

Beck to plead guilty, and that Beck was denied due process when the trial court did

not sua sponte order such a hearing. We have jurisdiction under 28 U.S.C. § 2253,

and we reverse.

      The district court erred in holding that the state court’s determination that

Beck’s trial counsel was not ineffective was an unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d)(1). Based on the transcript and

the trial counsel’s affidavit, the state court could reasonably determine that Beck

had “(1) a rational as well as factual understanding of the proceedings against him,

and (2) sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding.” Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir.

2011) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam))

(internal quotation marks omitted). Even assuming that the district court properly

considered the Pre-Sentence Report and the psychological evaluation, Beck has

failed to present evidence showing that trial counsel’s performance was so clearly

ineffective under Strickland v. Washington, 466 U.S. 668 (1984), that no


                                          2
fairminded jurist could agree with the state court’s conclusion to the contrary. See

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

      The district court also erred in its holding that there was no reasonable basis

to support the state court’s rejection of Beck’s due process claim. See 28 U.S.C. §

2254(d)(1). The state post-conviction review court held that there was insufficient

evidence before the trial judge to raise a “bona fide doubt” as to Beck’s

competence to stand trial. See Pate v. Robinson, 383 U.S. 375, 385 (1966). The

record supports that conclusion, even considering all the information then available

to the trial court, and Beck has therefore not shown that the state court’s

determination was so objectively unreasonable that habeas relief is warranted. See

Williams v. Taylor, 529 U.S. 362, 409–10 (2000).

      REVERSED and REMANDED with instructions to DENY the

application for federal habeas relief.




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