Demar Rhome v. Ron Fraker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMAR RHOME,
Petitioner - Appellant,
v.
RON FRAKER,
Respondent - Appellee.
No. 12-35833
D.C. No. 2:09-cv-00085-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted February 7, 2014
Seattle, Washington
Before: GOULD and CHRISTEN, Circuit Judges, and KOBAYASHI, District
Judge.**
Demar Rhome appeals from the district court’s denial of his petition for a
writ of habeas corpus, arguing that the Washington state courts’ determinations
FILED
MAR 05 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 Ninth Circuit Rule 36-3.
** The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.

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that he was competent to stand trial and that he knowingly and intelligently waived
his right to counsel were unreasonable determinations of fact or unreasonable
applications of clearly established federal law.1 28 U.S.C. § 2254(d). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
Rhome first argues that the Washington courts’ determination that he was
competent to stand trial was an unreasonable determination of the facts in light of
the state courts’ failure to consider the testimony of his counsel, their refusal to
allow Rhome himself to testify at the competency hearing, and their adoption of an
improper understanding of mental illness. Competency is a question of fact.
Langford v. Day, 110 F.3d 1380, 1390 (9th Cir. 1996). In the context of a petition
for habeas relief from a state prisoner, the factual findings of the state court are
presumed correct absent “clear and convincing evidence to the contrary” and a
finding that the state court was “objectively unreasonable.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003).
1 On habeas review, we analyze the “state court’s last reasoned decision.”
Ylst v. Nunnemaker, 501 U.S. 797, 804-05 (1991). Here, the decision of the
Washington Superior Court was the last reasoned decision with respect to the
competency issue, and the decision of the Washington Supreme Court was the last
reasoned decision with respect to the waiver of counsel issue. Both by necessity
incorporate the actions and justifications of the trial court.
2

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Contrary to Rhome’s assertions, the trial court did consider the testimony of
Rhome’s counsel, but reasonably considered it less compelling than the contrary
testimony of the state’s mental health expert. Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004) (noting that a court need not expressly reject every piece of
relevant evidence). Also, even though Rhome was not permitted to testify at his
competency hearing, Rhome has not presented evidence that such testimony would
“be sufficient to support petitioner’s claim when considered in the context of the
full record.” Id. Finally, Rhome has not presented clear and convincing evidence
that the trial judge improperly conflated the clinical definition of mental illness
with the legal definition of competency.
Rhome’s second argument is that the determination that he knowingly and
intelligently waived his right to counsel was an unreasonable application of Faretta
v. California, 422 U.S. 806 (1975), Godinez v. Moran, 509 U.S. 389 (1993), and
Iowa v. Tovar, 541 U.S. 77 (2004). The question of whether a waiver of the
constitutional right to counsel was proper is a question of law, but the subordinate
question of whether that waiver was knowing and intelligent is a question of fact.
Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991). Thus, the same standard of
review applies to this claim as to his claims regarding competency.
3

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Rhome’s challenge to the trial judge’s Faretta colloquy may have some
merit in light of Rhome’s mental health issues, but Rhome has not shown clear and
convincing evidence that the trial judge’s determination that “the defendant
actually does understand the significance and consequences of” waiving the right
to counsel was objectively unreasonable. Godinez, 509 U.S. at 401 n.12 (emphasis
in original). Rhome’s argument that the trial judge was improperly predisposed
towards accepting his waiver of counsel is unavailing; the record shows that the
trial judge made a searching inquiry and gave Rhome plenty of warnings that
representing himself was a bad idea. That Rhome went forward to represent
himself with “eyes open” in no way supports his assertion that the trial judge was
biased.
AFFIRMED.
4

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