NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC MARK ROBINSON, No. 19-55656

Petitioner-Appellant, D.C. No. 2:13-cv-01311-TJH-KES v.

RICK HILL, Warden, MEMORANDUM*

Respondent-Appellee,

and

JAMES D. HARTLEY, Warden;

ATTORNEY GENERAL FOR THE STATE

OF CALIFORNIA,

Respondents.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding

Submitted September 3, 2020** Pasadena, California

Before: SILER,*** BERZON, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Eric Robinson was convicted of three felonies: one count of making criminal

threats and two counts of resisting arrest. After exhausting his state appeals, he

now seeks habeas relief. The district court granted a certificate of appealability

(COA) on two issues: (1) whether the state court unreasonably determined that he

was competent to stand trial, and (2) whether he was competent to stand trial. We

find neither claim has merit and deny the writ. We deny Robinson’s request to

expand the COA to include his claim that the trial court erred by not ordering a

second competency evaluation prior to sentencing.

Robinson requested to represent himself. But because of his unruly

behavior, the court ordered a competency evaluation by two doctors: Drs. Kojian

and Knapke. The doctors reached opposite conclusions on his competency. The

court credited Dr. Knapke’s report that Robinson was competent and granted

Robinson’s request to represent himself.

Robinson then represented himself at several pretrial hearings with assigned

standby counsel, Kevin Avery. At the hearings, Robinson frequently spoke too

loudly and too quickly and skipped around in his arguments. As a result, the court

issued multiple reprimands and threatened to revoke his self-representation.

*** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 19-55656 Nevertheless, that same behavior persisted through the first day of voir dire. Upon

Robinson’s request, Avery permanently took over representation on the second day

of voir dire. Robinson’s conduct, though, did not improve.

After the trial concluded, Robinson was convicted. At sentencing, he

refused to have his fingerprints taken and was verbally belligerent toward Avery.

The court denied Avery’s request for additional psychological evaluations because

Robinson said he would not cooperate. The court sentenced Robinson to 13 years,

8 months in prison. On appeal, the California Court of Appeal affirmed, holding

that substantial evidence supported the trial court’s decision.

We review de novo a petition for habeas corpus under 28 U.S.C. § 2254.

Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). Under AEDPA, Robinson must

show that the state court’s decision: (1) was “contrary to . . . clearly established”

federal law as determined by U.S. Supreme Court precedents or (2) amounted to

“an unreasonable application” of the same. 28 U.S.C. § 2254(d)(1). We review

“the last reasoned state court decision to address the claim[s].” White v. Ryan, 895

F.3d 641, 665 (9th Cir. 2018). Here, the last reasoned decision was by the

California Court of Appeal.

Robinson alleges that the trial court unreasonably determined he was

competent to stand trial. The Constitution prohibits individuals who are mentally

incompetent from standing trial. Indiana v. Edwards, 554 U.S. 164, 170 (2008).

3 19-55656 The trial court relied on Dr. Knapke’s finding that Robinson was competent.

Robinson argues that it erred in relying on the report because it: (1) improperly

focused on his lack of clinical diagnoses and (2) minimized his “delusional

paranoia towards his counsel.” He is incorrect.

As an initial matter, the trial court was free to credit one expert report over

another. United States v. Lindley, 774 F.2d 993, 993 (9th Cir. 1985) (per curiam).

While a history of mental health treatment or a diagnosis is not necessary for

incompetence, a court may consider its presence or absence. Moreover, Dr.

Knapke’s conclusion did not hinge on Robinson’s mental health history. Instead,

his conversations with Robinson led him to believe Robinson could cooperate with

an attorney “if he so chooses.” Similarly, Dr. Knapke’s determination did not rely

on whether a new attorney would be appointed. Therefore, we cannot find that the

court made “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Robinson also contends that he was not competent during trial or sentencing.

A defendant who is competent at the beginning of trial may become incompetent

during the trial. See Drope v. Missouri, 420 U.S. 162, 181 (1975). However, even

under a de novo review, Robinson cannot prevail. Robinson assisted his counsel

during the trial, including passing his trial counsel notes. Although much of his

behavior likely undermined his defense, it does not demonstrate that he did not

4 19-55656 have a rational understanding of the proceedings. See Dusky v. United States, 362

U.S. 402, 402 (1960). Robinson has failed to “create a real and substantial doubt

as to his competency.” Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985).

Accordingly, we deny the writ and affirm the district court.

5 19-55656