Rain Dickey-O’brien v. JAMES A. YATES, Warden and ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAIN DICKEY-O’BRIEN,
Petitioner - Appellant,
v.
JAMES A. YATES, Warden and
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondents - Appellees.
No. 13-16667
D.C. No. 2:07-cv-01241-WBS-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted December 10, 2014
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
Rain Dickey-O’Brien appeals from the district court’s denial of his petition
for habeas corpus. The facts are known to the parties and will not be repeated here.
FILED
DEC 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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He first contends that the state trial court’s decision to use CALJIC 4.00 rendered
his trial fundamentally unfair. Second, he contends that two events that occurred
during his trial created doubt concerning his competency to stand trial, requiring
the state trial court to hold a competency hearing sua sponte.
The claim that CALJIC 4.00 does not conform to the M’Naghten test fails
because there was no showing that any violation of clearly established federal law
occurred. See 28 U.S.C. § 2254(d)(1); see also Estelle v. McGuire, 502 U.S. 62,
71-72 (1991) (“[T]he fact that” a jury instruction was “allegedly incorrect under
state law is not a basis for habeas relief.”).
As to the competency at trial issue, Dickey-O’Brien identifies two events
that he argues created doubt. First, the trial court judge noted unspecified
“difficulties.” Second, on the same day, the prosecutor noted that Dickey-O’Brien
had sat “nearly motionless and mute” during the trial. At oral argument, his
counsel acknowledged that the record contains no other references to either event.
“[T]he failure to observe procedures adequate to protect a defendant’s right
not to be tried or convicted while incompetent to stand trial deprives him of his due
process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172 (1975). A court
must conduct a hearing sua sponte if it has a “bona fide doubt” as to the
defendant’s competency. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010).
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“Genuine doubt” rather than “synthetic or constructive doubt” is required. de
Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir. 1976).
Without more, the two events identified by Dickey-O’Brien are insufficient
to meet the “high bar” for establishing a bona fide doubt. See Clark v. Arnold, 769
F. 3d 711, 729 (9th Cir. 2014). The California District Court of Appeal did not
unreasonably apply clearly established federal law when it determined that the
state trial court was not required to conduct a competency hearing.
AFFIRMED
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