David John Rodius v. Attorney General of the State of Nevada; Dwight Neven

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID JOHN RODIUS,
Petitioner - Appellant,
v.
ATTORNEY GENERAL OF THE STATE
OF NEVADA; DWIGHT NEVEN,
Respondents - Appellees.
No. 10-16999
D.C. No. 2:07-cv-00602-KJD-LRL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted March 15, 2012**
San Francisco, California
Before: WALLACE, CALLAHAN, and BEA, Circuit Judges.
David Rodius, a Nevada state prisoner, appeals from the denial of his
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.
FILED
MAR 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 2253(c)(1). We review the district court’s judgment de novo, and we review the
last-reasoned decision of the state court applying the standard set forth in 28
U.S.C. § 2254(d). Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). By that
standard, we may not grant relief “unless the adjudication of the claim—(1)
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). We affirm.
Rodius’s first claim is that the Nevada Supreme Court’s decision that his
counsel provided effective assistance involved an unreasonable application of
federal law as determined by the Supreme Court in Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984), and Hill v. Lockhart, 474 U.S. 52, 59 (1985). Rodius
alleges that his counsel failed to investigate Rodius’s mental condition adequately
by not obtaining jail records and by not interviewing the doctor who had treated
him in Mexico after an alleged psychotic episode. He contends that if his attorneys
had performed this investigation, they would have advised him to go to trial on an
insanity defense rather than plead guilty. The Nevada Supreme Court concluded
that (1) Rodius failed to establish that his attorneys were not effective, and (2) he

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failed to demonstrate that, had they performed the stated investigation, they would
have changed their analysis. These conclusions do not involve an unreasonable
application of Strickland or Hill. The evidence before the state court did not
compel a conclusion that Rodius’s counsels’ representation “fell below an
objective standard of reasonableness.” See Strickland, 466 U.S. at 688. Nor did it
compel a conclusion that “discovery of the evidence would have led counsel to
change [their] recommendation as to the plea.” See Hill, 474 U.S. at 59.
Rodius next argues that his attorneys provided ineffective assistance by not
advising the trial judge that he was under the influence of psychotropic medication
at the time he entered his guilty plea. The Nevada Supreme Court held, however,
that Rodius did not demonstrate that he would not have pleaded guilty had his
counsel so advised the trial court. In coming to this conclusion, the Nevada
Supreme Court directly applied Hill, which provides that in order to demonstrate
prejudice on a claim that counsel’s ineffective assistance resulted in a guilty plea,
“the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” 474 U.S. at 59. The evidence before the state court did not require a
different result.

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Finally, Rodius asserts that he was incompetent to enter a guilty plea and
that the trial court should have held a hearing on its own motion to determine
whether he was competent. The Nevada Supreme Court denied this claim because
Rodius’s responses at the plea discussion with the trial judge were coherent and
appropriate, and because his attorney testified that he knew Rodius was on
medication but that Rodius was able to communicate and seemed to understand
what was happening. The Nevada Supreme Court’s decision is entirely consistent
with Dusky v. United States, which requires that the defendant have “sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding” and have “a rational as well as factual understanding of the
proceedings against him.” 362 U.S. 402, 402 (1960). Furthermore, Rodius has not
identified an evidentiary basis that would compel a finding that the trial court
should have been in such doubt of Rodius’s competence that it was required to
order a competency hearing sua sponte. See Drope v. Missouri, 420 U.S. 162, 172
(1975); Pate v. Robinson, 383 U.S. 375, 385-86 (1966).
AFFIRMED.

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