Birnbaum

MEMORANDUM **

Stephen Birnbaum appeals the district court’s denial of his petition for a writ of habeas corpus. He asserts that (1) he was denied effective assistance of counsel, (2) as a result his guilty plea was not knowing, intelligent and voluntary, and (3) the trial court deprived him of due process by failing to hold a hearing to determine his competency.

With respect to the due process claim, Birnbaum failed to present to the trial court evidence sufficient to raise a reasonable or “bona fide” doubt as to his competency to enter a guilty plea or stand trial. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir.1997). Thus, the court did not err in deciding not to hold a competency hearing.

There is, however, no evidence that Birnbaum’s counsel conducted any investigation regarding Birnbaum’s mental state at the time of the crime, despite evidence that Birnbaum was taking heavy doses of psychoactive medication and that he had a long history of mental illness. Thus, Birnbaum has demonstrated “the potential of a colorable claim” that, if proven true at an evidentiary hearing, would show that his counsel’s failure to investigate his mental state amounted to…