Richard Shreves v. State of Montana

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 06 2012

MOLLY C. DWYER, CLERK

RICHARD E. SHREVES, No. 10-35637 U.S. COURT OF APPEALS

Petitioner - Appellant, D.C. No. 6:10-cv-00019-DWM

v.

MEMORANDUM*

STATE OF MONTANA,

Respondent - Appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted January 11, 2012 Seattle, Washington

Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.

Petitioner Richard E. Shreves appeals the district court’s summary dismissal

of his 28 U.S.C. § 2254 habeas petition. Reviewing de novo, Cooper v. Neven,

641 F.3d 322, 326 (9th Cir.), cert. denied, 132 S. Ct. 558 (2011), we reverse and

remand with instructions that the district court order a response from Respondent

State of Montana and direct Respondent to file a copy of the state-court record.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The district court erred in summarily dismissing…

MEMORANDUM *

Petitioner Richard E. Shreves appeals the district court’s summary dismissal of his 28 U.S.C. § 2254 habeas petition. Reviewing de novo, Cooper v. Neven, 641 F.3d 322, 326 (9th Cir.), cert. denied, — U.S.-, 132 S.Ct. 558 , 181 L.Ed.2d 398 (2011), we reverse and remand with instructions that the district court order a response from Respondent State of Montana and direct Respondent to file a copy of the state-court record.

1. The district court erred in summarily dismissing Petitioner’s claim of ineffective assistance of counsel. Summary dismissal is appropriate only “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” 28 U.S.C. § 2254 pt. VI, ch. 153, Rule 4. In the petition, Petitioner alleges that his lawyer failed to investigate whether Petitioner was taking his psychotropic medications and, if so, the effects of those medications, and whether Petitioner was competent. Petitioner’s allegations of incompetence have potential merit because of his personal history. For instance, less than a year before the trial at issue here, a district court judge in Idaho declared Petitioner incompetent to stand…

concurring in part and dissenting in part:

I respectfully dissent from that portion of the majority disposition reversing the district court’s summary dismissal of the habeas petition filed by Richard E. Shreves. Although Petitioner alleged that his lawyer failed to investigate whether Petitioner was taking medications and/or the effects of those medications, there is no allegation that Petitioner was incompetent or that there was a reasonable probability that an investigation by Petitioner’s counsel would have affected the outcome of his proceedings. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982) (noting that liberal interpretation of a pro se complaint “may not supply essential elements of the claim that were not initially pled”); see also Turner v. Calderon, 281 F.3d 851, 873 (9th Cir.2002) (describing the elements of ineffective assistance of counsel as including a probable effect on the outcome of the proceedings).

The reversal based on the district court’s failure to sua sponte examine Shreves’ competency is even more indefensible. Nothing in the complaint even remotely suggests that the judge was alerted to a potential issue of…