NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLIVER GRAY, No. 20-16122

Petitioner-Appellant, D.C. No. 2:16-cv-01577-JAM-KJN v.

W. L. MUNIZ, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted November 15, 2022 San Francisco, California

Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Petitioner Oliver Gray appeals the denial of his 28 U.S.C. § 2254 habeas

corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm. This Court reviews the denial of a habeas petition de novo. Runningeagle v.

Ryan, 686 F.3d 758, 766 (9th Cir. 2012). To do so, we look to the “last reasoned

[state court] decision that finally resolve[d] the claim at issue.” Amado v. Gonzalez,

758 F.3d 1119, 1130 (9th Cir. 2014) (internal quotation marks and citations

omitted).

First, we affirm the district court’s conclusion that petitioner’s right to due

process was not violated when the trial court denied his counsel's request for a

subsequent competency hearing. Under California law, a trial judge who has

previously found a defendant competent need not hold a second or subsequent

competency hearing unless “the evidence discloses a substantial change of

circumstances or new evidence is presented casting serious doubt on the validity of

the prior finding of the defendant’s competence.” People v. Weaver, 26 Cal. 4th

876, 954 (2001) (quoting People v. Medina, 11 Cal. 4th 694, 734 (1995)). Here, the

trial court noted that it was a “close case,” but determined that a second

competency hearing was unnecessary. In making this decision, the court had before

it (1) the prior competency determination (including two evaluations by court-

appointed expert Dr. Schaffer); (2) the evaluation produced in the context of

petitioner’s Faretta hearing by court-appointed expert Dr. Mattiuzzi; (3) the PET

2 scan results and report of defense expert Dr. Wicks; (4) defense counsel’s repeated

concerns that defendant was not competent; and (5) the trial judge’s own

experience dealing with defendant during trial (including during the Faretta

hearing). This determination was neither contrary to nor an unreasonable

application of Supreme Court precedent. See Drope v. Missouri, 420 U.S. 162, 180

(1975) (explaining that there are “no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness to proceed”). Nor was it

based on an unreasonable determination of the facts. See Mendez v. Knowles, 556

F.3d 757, 773 (9th Cir. 2009) (citing Drope, 420 U.S. at 177 n.13) (explaining that

“a lawyer’s representations concerning the competence of his client should be

considered, but . . . courts need not accept them without question”).

Second, we affirm the district court’s conclusion that the trial court did not

violate Gray’s due process rights by failing to inquire into a juror’s ability to

comprehend jury instructions. The decision not to hold a hearing was neither

contrary to nor an unreasonable application of Supreme Court precedent. See

Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003) (explaining that clearly

established federal law does not require state or federal courts to hold an

evidentiary hearing every time a claim of juror misconduct or bias is raised). Nor

was the trial court’s determination of the facts “objectively unreasonable in light of

the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537

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U.S. 322, 340 (2003).

Finally, we affirm the district court’s conclusion that the prosecution did not

violate Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose witness

Hua’s statement that both robbers were Black. To establish a Brady claim,

petitioner must show that the evidence at issue (1) is “favorable to the accused,

either because it is exculpatory [or] impeaching”; (2) was “suppressed by the State,

either willfully or inadvertently”; and (3) that prejudice ensued. Strickler v.

Greene, 527 U.S. 263, 281–82 (1999). Here, petitioner cannot establish prejudice.

To establish prejudice, the suppressed evidence must be “material,” meaning

“there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 682 (1985). Here, (1) the prosecution had a strong case

(including multiple eyewitness accounts and petitioner’s own confessions); (2)

accepting Hua’s version of events would have required the jurors to discredit the

other witnesses, as Hua was the only witness who stated both robbers were Black;

and (3) Hua’s statement conflicted with Gray’s third-party liability defense that J

(who is not Black) was the second robber. Thus, petitioner cannot show that the

state court’s denial of his Brady claim was contrary to or an unreasonable

application of Supreme Court precedent, or that it was based on an unreasonable

determination of the facts.

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AFFIRMED.

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