Mark Simon v. Josie Gastelo , 697 F. App'x 903 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK JAMES SIMON, No. 15-55531
Petitioner-Appellant, D.C. No.
2:14-cv-03763-MMM-SH
v.
JOSIE GASTELO, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted June 7, 2017
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,** District
Judge.
Mark Simon stands convicted of three crimes, stemming from a violent
altercation at a state fair. Simon rejected a plea offer of a four-year sentence.
After a jury convicted Simon, he was sentenced to nine years in prison. Simon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
pursued a direct appeal and collaterally challenged his conviction in the California
state court system, securing no relief. He then filed a habeas petition in federal
district court, which the district court denied. We granted a certificate of
appealability on Simon’s claims that (1) the trial court should have held a
competency hearing, and (2) that his trial counsel rendered ineffective assistance of
counsel by failing to request a competency hearing. We review “the last reasoned
state court adjudication on the merits.” Thompson v. Runnels, 705 F.3d 1089, 1096
(9th Cir. 2013). Applying the required deference to the state court’s rulings, see 28
U.S.C. § 2254(d), we affirm.
1. A state court ruling that a competency hearing was unnecessary is a
factual finding. See Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009). We
review the finding to decide whether it was “‘unreasonable’ within the meaning of
28 U.S.C. § 2254(d)(2).” Torres v. Prunty, 223 F.3d 1103, 1105 (9th Cir. 2000);
see Mendez, 556 F.3d at 771.
“A state trial judge must conduct a competency hearing, regardless of
whether defense counsel requests one, whenever the evidence before the judge
raises a bona fide doubt about the defendant’s competence to stand trial.” Williams
v. Woodford, 384 F.3d 567, 603 (9th Cir. 2004). A bona fide doubt is present
where “a reasonable judge, situated as was the trial court judge whose failure to
conduct an evidentiary hearing is being reviewed, should have experienced doubt
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with respect to competency to stand trial.” Stanley v. Cullen, 633 F.3d 852, 860
(9th Cir. 2011) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)
(en banc)). The evidence before the trial court judge of Simon’s mental health
issues is roughly comparable to, or less than, evidence previously rejected in
similar competency challenges in Ninth Circuit cases on both direct appeal, United
States v. Brugnara, 856 F.3d 1198, 1215–16 (9th Cir. 2017), and on collateral
review, e.g., Davis v. Woodford, 384 F.3d 628, 644–47 (9th Cir. 2004). Though
there is evidence of Simon’s mental health problems since his incarceration, this
evidence was not before the trial court, and on review we “disfavor retrospective
determinations of incompetence.” Williams, 384 F.3d at 608. Simon appears to
have understood the “nature and object of the proceedings against him” when
discussing his right not to testify, and when he accepted responsibility so as to
reduce his sentence; he could, and did, “consult with counsel”; and there is no
apparent evidence that he was unable to “assist in preparing his defense” during his
trial. Drope v. Missouri, 420 U.S. 162, 171 (1975). The California Court of
Appeal did not make an unreasonable factual finding when it found that the trial
court did not have to hold a competency hearing.
2. Counsel did not provide ineffective assistance by failing to request a
competency hearing before sentencing. Rather than looking to whether the state
court reached the right result, the court looks to “whether that determination was
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unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (internal quotation marks omitted); see Strickland v. Washington,
466 U.S. 668, 689 (1984). Counsel’s failure to move for a competency hearing
violates the defendant’s right to effective assistance of counsel when “there are
sufficient indicia of incompetence to give objectively reasonable counsel reason to
doubt the defendant’s competency, and there is a reasonable probability that the
defendant would have been found incompetent to stand trial had the issue been
raised and fully considered.” Stanley, 633 F.3d at 862 (internal quotation marks
omitted). Here, counsel brought the issue to the court’s attention, and requested a
mental health evaluation prior to sentencing. The California Court of Appeal
reasonably concluded that trial counsel was not ineffective. See Kimmelman v.
Morrison, 477 U.S. 365, 382 (1986) (holding that counsel must display “gross
incompetence” to be ineffective). Simon also failed to show prejudice from the
lack of a competency evaluation, either by showing that he would have accepted a
plea offer when competent, Lafler v. Cooper, 566 U.S. 156, 164 (2012), or that he
would have made a more compelling presentation at trial than the testimony he
gave. The California Court of Appeal did not unreasonably apply either prong of
Strickland.
AFFIRMED.
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