NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBIN LEE SHERWOOD, No. 20-55636

Petitioner-Appellant, D.C. No. 5:11-cv-01728-CJC-PLA v.

GEORGE A. NEOTTI, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted October 7, 2021 Pasadena, California

Before: GRABER and CHRISTEN, Circuit Judges, and ZOUHARY,** District Judge.

Robin Sherwood is serving a life sentence after pleading guilty mid-trial to an

Indictment charging him with special-circumstance murder, attempted robbery, and

burglary. He filed a federal habeas Petition under 28 U.S.C. § 2254, asserting his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. trial counsel was ineffective for failing to investigate his mental competency. The

district court denied his Petition, but a Ninth Circuit panel reversed, finding

Sherwood’s counsel was constitutionally deficient for failing to move for a

competency hearing at the time of the guilty plea. Sherwood v. Sherman, 734

F. App’x 471, 473–74 (9th Cir. 2018).

The panel remanded with instructions to “determine whether there are either

disputed issues of fact or issues requiring further factual development, such that an

evidentiary hearing would be necessary.” Id. at 475. After holding an evidentiary

hearing, which included expert testimony, the district court found there was no

reasonable likelihood Sherwood would have been found incompetent. Therefore,

Sherwood was not prejudiced by trial counsel’s failure to investigate the possibility

of incompetence. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

The district court dismissed the Petition and granted a Certificate of

Appealability on the question whether the district court “was correct in its denial of

[Sherwood]’s claim of ineffective assistance of counsel as to [his] competency to

plead guilty.” Reviewing the denial of Sherwood’s Petition de novo, and the district

court factual findings for clear error, we affirm. See Kipp v. Davis, 971 F.3d 939,

948 (9th Cir. 2020).

Sherwood argues the evidence presented on remand demonstrates that his

“mental illness, which includes psychotic symptoms, affected his mental state and

2 perceptions, and impaired his ability to examine and interpret reality correctly.” And

because of this impaired state, he was unable to fully understand the proceedings or

“make a reasoned choice among the legal alternatives presented to him.”

Sherwood’s primary evidence is the opinion of psychologist Dr. Nathan Lavid, who

opined that it was reasonably likely Sherwood would have been deemed incompetent

at the time of his plea. However, Lavid’s opinion rests mainly on Sherwood’s prison

medical file, which contained no information for the fifteen months preceding the

guilty plea. More importantly, the district court noted that “Lavid’s opinion of

incompetence is at odds with the [direct] evidence of [Sherwood’s] statements and

notes [during trial] showing he was able to assist his counsel and understand his legal

situation.” We agree.

Contrary to Lavid’s opinion, psychiatrist Dr. Alan Abrams concluded that

Sherwood’s handwritten trial notes to his attorney demonstrate he understood his

case and the circumstances of his guilty plea. Sherwood’s trial counsel, Michael

Belter, also testified that Sherwood had “above average” comprehension of his case,

participated in crafting his defense, and eventually pled guilty because he was

“racked with guilt.” Belter’s testimony is corroborated by the transcript of the

change of plea, Sherwood’s post-plea letters to the trial court stating he “could no

longer put the victim[’s] family through the nightmares inflicted,” and by

Sherwood’s statement of remorse at sentencing. In all, there is simply “no

3 contemporaneous evidence that [Sherwood] lacked the capacity to understand his

options and to make a rational decision to accept responsibility for what he did.”

Deere v. Cullen, 718 F.3d 1124, 1126 (9th Cir. 2013).

Finally, “[t]he question . . . is not whether mental illness substantially affects

a decision, but whether a mental disease, disorder or defect substantially affects [a

defendant’s] capacity to appreciate his options and make a rational choice among

them.” Dennis v. Budge, 378 F.3d 880, 890 (9th Cir. 2004). While Sherwood indeed

had some mental-health issues, the record clearly reflects that, at the time of his trial

and guilty plea, he had the “capacity to make a rational choice.” Id. Giving

appropriate deference to the district court’s findings of fact, Sherwood fails to

demonstrate “a reasonable probability that he would have been found incompetent

to plead guilty.” Deere, 718 F.3d at 1145.

AFFIRMED.

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