Ullysses Paul Cuen v. M.s. Evans

* 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ULLYSSES PAUL CUEN,
Petitioner - Appellant,
v.
M.S. EVANS,
Respondent - Appellee.
No. 08-16197
D.C. No. 3:05-cv-04569-JSW
MEMORANDUM*
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
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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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