NOT FOR PUBLICATION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 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 trial. Additionally, reports in the record state that Petitioner

improved only with medication and that he had stopped taking his medication in

the months before this trial. It is not clear that no mental health records exist from

the time Petitioner left the mental hospital until trial, and it is not clear that his

counsel performed adequately by not obtaining further evaluations and pursuing

mental health arguments against guilt or, at a minimum, on sentencing mitigation.

We are cognizant of the double deference that we must give to the state-

court proceedings here. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).

And the state-court record, which Respondent must provide on remand, may lead

to dismissal on the pleadings. For instance, the state-court record might contradict

2 some of Petitioner’s allegations about his counsel’s conduct during trial. But,

without the state-court record, we cannot say that Petitioner "plainly . . . is not

entitled to relief" on his ineffective assistance of counsel claim. 28 U.S.C. § 2254,

Rule 4.

2. For the same reasons, the district court erred in summarily dismissing

Petitioner’s claim that the trial court failed to inquire into his competency, in

violation of his due process rights. See Stanley v. Cullen, 633 F.3d 852, 860 (9th

Cir. 2011) (citing Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson,

383 U.S. 375, 378 (1966)).

3. But the district court did not err in summarily dismissing Petitioner’s

Sixth Amendment claim regarding his right to be present during critical

proceedings. See Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (citing

United States v. Wade, 388 U.S. 218, 224–25 (1967)). Petitioner correctly

concedes that three of the four proceedings alleged to be "critical" in the petition

are not, in fact, "critical" for purposes of the Sixth Amendment. The final

proceeding—an in camera hearing regarding alleged juror misconduct—is also not

a "critical" proceeding for purposes of the Sixth Amendment. United States v.

Long, 301 F.3d 1095, 1103 (9th Cir. 2002) (per curiam).

AFFIRMED in part, REVERSED in part, and REMANDED with

instructions.

3

FILED

Shreves v. State of Montana, No. 10-35637 FEB 06 2012

MOLLY C. DWYER, CLERK

Rawlinson, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

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 competency.

We are not de facto counsel for habeas petitioners and should not manufacture

causes of action where none have been legally pled. For that reason, I respectfully

dissent.