Michael McInerney v. DONALD HELLING and NEVADA ATTORNEY GENERAL

* 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).
*** The Honorable Robert S. Lasnik, Chief United States District Judge
for the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MCINERNEY,
Petitioner - Appellant,
v.
DONALD HELLING and NEVADA
ATTORNEY GENERAL,
Respondents - Appellees.
No. 09-16185
D.C. No. 3:07-cv-00037-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 1, 2010 **
San Francisco, California
Before: HALL, THOMAS, Circuit Judges, and LASNIK, Chief District Judge.***
FILED
NOV 03 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Michael McInerney appeals the district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition, which challenges his jury conviction and sentences
for robbery and attempted murder, both with a victim over the age of 65.
McInerney argues that his trial counsel rendered ineffective assistance for not
seeking a second competency hearing before trial, and for not investigating
McInerney’s mental health history at the time of McInerney’s criminal conduct.
Per the Antiterrorism and Effective Death Penalty Act, he alleges that the Nevada
Supreme Court unreasonably applied federal law to his ineffective assistance
claims. See 28 U.S.C. § 2254(d). We affirm.
Judicial scrutiny of McInerney’s counsel’s performance must be highly
deferential, and McInerney must prove that his defense attorney’s representation
(1) was deficient, and (2) prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687, 689 (1984) (articulating the required showing for ineffective
assistance of counsel claims). McInerney first argues that his trial counsel
rendered ineffective assistance by not moving for a second competency hearing.
However, McInerney has not shown that the Nevada Supreme Court unreasonably
applied federal law when it determined that McInerney failed to satisfy
Strickland’s first prong, requiring that his attorney’s representation be deficient.
The Nevada Supreme Court considered all of the evidence and applicable law

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bearing on McInerney’s competence, including his claim that changes in his
medication regimen negated a prior determination of competency. McInerney’s
proof of a two-month alteration in his medication regimen, after he was deemed
competent, was insufficient to create the requisite reasonable doubt as to his
competency. See Melchor-Gloria v. State, 99 Nev. 174, 180 (1983) (explaining
that a formal competency hearing is required when substantial evidence raises a
reasonable doubt as to the defendant’s competency). He offered no other proof of
his incompetence. Given the evidence presented, the Nevada Supreme Court did
not apply federal law in an objectively unreasonable way by concluding that
McInerney’s representation was not ineffective for not seeking a second
competency hearing.
Second, McInerney argues that his trial counsel should have investigated
McInerney’s mental health history at the time of his criminal acts. Again,
McInerney has not shown that the Nevada Supreme Court unreasonably applied
federal law when it determined, per Strickland, that McInerney’s trial
representation was not deficient. The Nevada Supreme Court examined
McInerney’s medical records and reviewed the circumstances of his crime. It
considered all of the things McInerney claims should have been investigated by his
trial attorney. McInerney’s medical records showed that he has a history of

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depression, not insanity. Furthermore, the circumstances of McInerney’s crime,
while strange, do not indicate that he was legally insane. Rather, they indicate that
he was trying to avoid responsibility for his actions and was, therefore, not legally
insane. See Finger v. State, 117 Nev. 548, 576 (2001) (“To qualify as being legally
insane, a defendant must be in a delusional state such that he cannot know or
understand the nature and capacity of his act, or his delusion must be such that he
cannot appreciate the wrongfulness of his act . . . .”). On these facts, the Nevada
Supreme Court’s application of federal law was not objectively unreasonable.
AFFIRMED.

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