FILED

NOT FOR PUBLICATION

SEP 18 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID FIERRO, No. 14-56356

Petitioner-Appellant, D.C. No. 2:94-cv-03198-GHK-AJW v.

CLARK E. DUCART, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding

Argued and Submitted August 31, 2017 Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District Judge.

David Fierro appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.

§ 1291 and review the district court’s ruling de novo. Deere v. Cullen, 718 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sarah Evans Barker, United States District Judge for the Southern District of Indiana, sitting by designation. 1124, 1144 (9th Cir. 2013). Because Fierro filed his petition before the effective

date of the Antiterrorism and Effective Death Penalty Act, “we grant habeas relief

if [Fierro] proves by a preponderance of the evidence that he ‘is in custody in

violation of the Constitution or laws or treaties of the United States.’” Id. (quoting

28 U.S.C. § 2254(a) (1996)).

The district court did not err by denying relief on Fierro’s first certified

claim that he was incompetent to stand trial, because the evidence meriting the

most weight indicated he met the competency standard. All contemporaneous

medical evaluations opined that Fierro was able to understand the nature and

purpose of the proceedings against him and could cooperate in a rational manner

with counsel in presenting a defense. See Dusky v. United States, 362 U.S. 402,

402 (1960) (per curiam); Deere, 718 F.3d at 1145. There is no evidence in the

record that any of Fierro’s three defense attorneys or the state trial judge who

observed and interacted with Fierro questioned his competency to stand trial. See

Deere, 718 F.3d at 1145–46; Williams v. Woodford, 384 F.3d 567, 608 (9th Cir.

2004). Moreover, transcripts of Fierro’s interactions with the state trial judge and

his penalty phase testimony disclose that Fierro “actually understood what was

going on” and “accurately answered open-ended questions.” Deere, 718 F.3d at

1146. The various concerns that Fierro expressed to the trial judge were “logical.”

2 Id. The district court did not err by giving less weight to expert opinions proffered

after trial. See id. at 1446–47. There is no evidence that Fierro was rendered

incompetent by the use of Xanax during the trial; rather, the evidence shows that

his dosage of Xanax was “reduced” during guilt phase proceedings. Moreover,

although there is some evidence that Fierro had access to heroin while in prison,

the record does not indicate that Fierro was under the influence of illicit drugs

during trial.

The district court also properly denied relief on Fierro’s certified claim that

his trial counsel was ineffective for failing to investigate his competency to stand

trial. Trial counsel was not deficient; he retained a medical expert to assess

Fierro’s competency, and was entitled to rely on that properly selected expert’s

opinion. See Hendricks v. Calderon, 70 F.3d 1032, 1038–39 (9th Cir. 1995);

Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990). We may not impute the

expert’s deficiency, if any, to trial counsel. Earp v. Cullen, 623 F.3d 1065, 1077

(9th Cir. 2010). Moreover, Fierro cannot show that any error by trial counsel was

prejudicial “[b]ecause the evidence indicates that [Fierro] was competent to stand

trial.” Boyde v. Brown, 404 F.3d 1159, 1167 (9th Cir. 2005).

Nor did the district court err by denying relief on Fierro’s certified claim that

trial counsel was ineffective for failure to investigate and present a mental state

3 defense. In reliance on then-existing state law, People v. Frierson, 39 Cal. 3d 803,

815–18 (1985), trial counsel presented Fierro’s preferred defense that Fierro had

not been involved in the alleged criminal activity, and trial counsel performed

reasonably by repeatedly challenging the credibility of the state’s eye witnesses.

Upon selecting this defense strategy, “largely on the basis of [Fierro’s] own

representations,” trial counsel’s “duty to investigate the directly conflicting [mental

state] defense was at an end.” Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir.

1998). Given the state’s evidence, the contemporaneous hostility towards mental

state defenses, see Mickey v. Ayers, 606 F.3d 1223, 1239 (9th Cir. 2010), and the

jury’s special verdict finding that Fierro “shot and killed” the victim, there is no

“reasonable probability that . . . the result of the proceeding would have been

different” had trial counsel raised a mental state defense. Strickland v.

Washington, 466 U.S. 668, 694 (1984).

We have reviewed the uncertified claims that Fierro raised in his opening

brief, which we construe as a motion to expand the certificate of appealability.

Ninth Cir. R. 22-1(e). Because no reasonable jurist could disagree with the district

court’s resolution of the constitutional claims, nor conclude that “the issues

presented are adequate to deserve encouragement to proceed further,” we deny the

4 motion. Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)).

AFFIRMED.

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