Raymond Larry Carrasco v. Scott Kernan

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND LARRY CARRASCO,
Petitioner - Appellant,
v.
SCOTT KERNAN,
Respondent - Appellee.
No. 08-17381
D.C. No. 2:04-cv-02595-MCE-
KJM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted September 1, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.
Larry Raymond Carrasco, a California state prisoner, appeals the district
court’s denial of his petition for writ of habeas corpus. We affirm the judgment of
the district court.
FILED
SEP 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Carrasco claims that his due process rights were violated because the trial
judge failed to sua sponte order a hearing on his competency to stand trial. The
Supreme Court has identified three factors that are relevant to whether there is
reason for a trial judge to doubt a defendant’s competency: prior medical opinions
about competency, evidence of irrational behavior by the defendant, and the
defendant’s demeanor at trial. Drope v. Missouri, 420 U.S. 162, 180 (1975).
Carrasco concedes that the record does not contain any evidence of the latter two
factors, but argues that the testimony of his expert witness, a neuropsychologist
who evaluated him shortly after his arrest, was sufficient to raise a “bona fide
doubt” about his competency in the mind of the trial judge. Pate v. Robinson, 383
U.S. 375, 385 (1966) (citation omitted).
At most, the defense expert’s testimony established that Carrasco’s IQ score
was between that of a mentally retarded person and a person of low average
intelligence, and that Carrasco suffered frontal lobe damage as a result of a train
accident in 1999. While the expert also testified that Carrasco performed poorly on
a battery of neuropsychological tests, suggesting some cognitive impairment, the
expert never offered an opinion that Carrasco lacked the capacity to stand trial, nor
suggested that he was otherwise incompetent.

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Perhaps more telling, Carrasco’s counsel did not question his competency
during the trial. Medina v. California, 505 U.S. 437, 450 (1992) (“[D]efense
counsel will often have the best-informed view of the defendant’s ability to
participate in his defense.”). On this record, the trial judge had insufficient reason
to doubt Carrasco’s competency based solely on the testimony of his psychological
expert.
Because the record of Carrasco’s trial reveals no evidence of the indicia of
incompetency identified by the Supreme Court in Drope, and because there is no
clearly established federal law that the type of testimony given by Carrasco’s
expert, standing alone, is sufficient to raise a “bona fide doubt” about a defendant’s
competency, Pate, 383 U.S. at 385, we hold that the state court’s determination
that the evidence before the trial court was not sufficient to require a sua sponte
inquiry into Carrasco’s competency was neither contrary to, nor an unreasonable
application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).
Carrasco’s claim that his due process rights were violated when the trial
judge admitted evidence of his past crimes is foreclosed by Larson v. Palmateer,
515 F.3d 1057, 1066 (9th Cir. 2008). There, we noted that the Supreme Court has
expressly left open the question whether the admission of “past crimes” evidence
constitutes a violation of due process. Id.

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Carrasco’s claim that his right to a unanimous jury under the Sixth and
Fourteenth Amendments was violated when the trial judge instructed the jury with
CALJIC 17.41.1, an antinullification instruction, is foreclosed by Brewer v. Hall,
378 F.3d 952, 957 (9th Cir. 2004). In Brewer, we denied federal habeas relief
because there is no Supreme Court decision establishing that an instruction like
CALJIC 17.41.1 violates a federal constitutional right.
AFFIRMED.

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