dissenting:

This case presents the question of whether the trial court had sufficient evidence before it to call sua sponte for a competency hearing. Because I believe that the evidence was insufficient, I dissent.

I

I will first summarize the situation facing the trial court prior to Blazak’s sentencing in November 1974. The strongest evidence of Blazak’s incompetence was the presentence report, which contained summaries of seven psychiatric reports prepared for Blazak’s 1968 trial. Not one of these reports explicitly found Blazak incompetent to stand trial. Two — Dr. Shankel’s and Dr. Durfee’s — declared him to be highly dangerous, and requiring mental hospitalization, but neither declared him incompetent. However, the other three psychiatrists — Drs. Baker, Pierce, and Willis — explicitly found him competent to stand trial.

The 1974 presentenee report also contained the presentence report prepared for Blazak’s 1968 sentencing. The 1968 presen-tence report noted that Blazak had thrice before been declared incompetent to stand trial and committed to the state mental hospital. The 1968 presentence report also included Dr. Shankel’s June 2, 1967 psychiatric report, which found Blazak incompetent to stand trial. Counterbalancing this evidence of incompetence was the trial court’s subsequent determination in 1970 that Blazak was competent to stand trial.

The majority opinion asserts that Blazak also exhibited behavior in pretrial hearings which, viewed with Blazak’s history of mental illness contained in the presentence report, should have shown Blazak’s attorneys and the court that there was reasonable doubt as to his competency to stand trial. However, despite this allegedly “bizarre” behavior — his refusal to provide handwriting exemplars and his allegations at the September 26, 1974 hearing — Blazak’s attorney Kashman never requested a competency hearing, and apparently neither the trial court nor the prosecutor saw a need for one either.

II

To summarize, the evidence of Blazak’s incompetence in November 1974 consisted of (a) the allegedly “bizarre” pretrial behavior and (b) the three 1967 determinations of incompetence, based primarily if not exclusively on the diagnosis of one psychiatrist— Dr. Shankel. Counterbalancing this evidence were (a) attorney Kashman’s apparent belief in his client’s competence, (b) the trial court’s 1970 determination that Blazak was competent to stand trial, and (c) the three 1967-68 psychiatric reports, from three different doctors, finding Blazak competent. When contrasted with the situations presented in our prior decisions, I find the totality of this evidence to be insufficient as a matter of law to raise sufficient doubt of Blazak’s incompetence for a hearing to have been constitutionally required.

The cases that most strongly support Bla-zak’s position are Moore v. United States, 464 F.2d 663 (9th Cir.1972), and Morris v. United States, 414 F.2d 258 (9th Cir.1969), both of which are cited by the majority opinion to support its holding. However, Moore is distinguishable from the present situation on the ground that the court there had recent reports from a psychiatrist and the Bureau of Prisons describing the defendant’s extensive mental problems. In fact, the reason the psychiatrist had prepared the report was that the defendant’s attorney had moved for a psychiatric examination under 18 U.S.C. § 4244 . Moore, 464 F.2d at 665 . In Blazak’s case, however, all the court had were conflicting six- and seven-year old psychiatric reports, along with a defendant who was basically rational and his attorney who had never moved for a psychiatric exam, let alone a competency hearing. As we explained in Chavez v. United States, 656 F.2d 512 (9th Cir.1981),

Id. at 518 (citation omitted) (emphasis added). In Blazak’s case, any “substantial doubt” of incompetence created by the 1967— 68 psychiatric reports was outweighed by the 1970 finding of competence and the lack of any significant indication in 1974 that Blazak was incompetent to stand trial.

Moms provides stronger support for Bla-zak’s position. As in Blazak, no competency hearing was requested by either party or the court. In a very short opinion, we held that:

Morris, 414 F.2d at 259 . At a general level, this holding provides support for Blazak’s position. However, it is impossible to tell from the Morris opinion how old the prior findings of insanity and psychosis were, and whether any intervening events had reduced their validity.

By contrast, our more recent decisions in United States v. Caplan, 633 F.2d 534 (9th Cir.1980) and Steinsvik v. Vinzant, 640 F.2d 949 (9th Cir.1981) provide stronger support for the State’s position than Moore and Morris do for Blazak’s. In Caplan , the district court had before it in March 1979 an October 1978 finding by an Arizona state court that the defendant was incompetent to stand trial, followed by a February 1979 psychiatric report concluding that the defendant was competent to stand trial. The district court declined to hold a competency hearing. Id. at 537 .

We affirmed the district court’s decision. Id. at 540 . We noted that the 1978 finding of incompetence was based on psychiatric reports addressing defendant’s mental state at the time, and not at any future date. Id. at 541-42 . We further noted that the defendant had been hospitalized after the finding of incompetence, and that following treatment had been found competent by a psychiatrist. “[The earlier reports] were not substantial evidence of appellant’s present incompetency.” Id. at 541 (emphasis added). Similarly, in Blazak’s case, the 1967-68 psychiatric reports and 1967 finding of incompetence were not “substantial evidence” of Blazak’s incompetence in 1974, especially given the 1970 finding of competence.

Furthermore, unlike the attorney in Ca-plan, attorney Kashman here never moved for a competency hearing. We have previously held that a defense attorney’s failure to request a competency hearing indicates an “apparent belief’ in the client’s competence to stand trial and is a factor weighing against the need for a competency hearing. De Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976), cert. denied, 429 U.S. 1075 , 97 S.Ct. 815 , 50 L.Ed.2d 793 (1977). See also Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) (“We deem significant the fact that the trial judge, government counsel, and Hernandez’s own attorney did not perceive a reasonable cause to believe Hernandez was incompetent.”).

In Steinsvik , the trial court had before it a presentence report which disclosed that only 18 months previously, the defendant had been hospitalized for mental health problems and had been diagnosed as a borderline chronic paranoid schizophrenic. Id. at 953 . We adopted the finding of the magistrate that although

[t]he presentence report obviously indicated that Steinsvik had significant emotional problems ... there is absolutely nothing in it to have indicated to the trial judge that Steinsvik was not competent either at the time of plea or when he was sentenced.

Id. Similarly, although Blazak’s presentence report indicated that Blazak had significant emotional problems, there was nothing in it to indicate that he was not competent to stand trial in November 1974.

Steinsvik supports the State’s position in another respect as well. Like Blazak, Stein-svik had exhibited bizarre behavior during *903 the proceedings against him; at the time of the entry of his guilty plea, he expressed some confusion regarding the sentencing procedures and the entry of the guilty plea. However, this court found that his behavior did not indicate a lack of competence to plead guilty. Id. at 952 . Similarly, Blazak’s behavior (and particularly his refusal to submit a handwriting exemplar) should not be viewed as indicating a lack of competence to stand trial. 1 See De Kaplany, 540 F.2d at 978 (single courtroom outburst by defendant not sufficient evidence of incompetence to require a competency hearing).

Overall, Caplan and Steinsvik provide strong support for the State’s position that the evidence before the Arizona trial court was not sufficient to raise a reasonable doubt regarding Blazak’s competence to stand trial and thereby trigger the need for a competency hearing. The trial court here could reasonably have concluded, like the trial courts in Caplan and Steinsvik , that the older psychiatric reports and findings of incompetence were outweighed by the later finding of competence, the lack of any behavior on Blazak’s part that would indicate incompetence, and the lack of any request from Blazak’s attorney for a competency hearing. I dissent and would remand to the district court for consideration of the remaining twenty-six challenges to his death sentence which were not previously addressed by the district court.

. The majority contends that Blazak's behavior ”support[s] an interpretation of paranoid thinking.” However, there appears to be little justification for this assertion. The objection to the handwriting exemplar could just as easily be explained by a confusion over which case was at issue or over evidence law, and the allegations did have some basis in fact. See n. 10 of majority opinion. If Blazak had been truly incompetent to stand trial, he would have given far more drastic evidence of mental infirmities than these two small incidents.