*1 (2) Act; tion of the False Claims erred in FARRIS, Before PREGERSON and determining that his house elevated THOMPSON, Judges. Circuit (3) building; determining erred that the evidence was sufficient to show that he vio- THOMPSON; Opinion by Judge Dissent (4) Act; lated the False Claims erred in by Judge PREGERSON. imposing prejudgment judg- interest on the (5)

ment; and failed to make sufficient find- ORDER ings of fact and conclusions of law as re- 15,1994, opinion filed November Mor 52(a). quired by Fed.R.Civ.P. have care- We Godinez, (9th Cir.1994), an v. fully reviewed the record and the relevant amended as follows: law, arguments and find these to be without merit. page 1. At “possible” the word paragraph the first sentence of the first full reasons, foregoing For the we affirm the righthand changed in the column is to “im- judgment respects, district court’s in all ex- possible”. change With the sentence will cept that we remand the case to the district read: damages. court for reconsideration of wrongfully When a state court fails to competency hearing, hold a “it often repair impossible damage retro- spectively.” page 2. At the word “However” is beginning inserted at the of the second sen- paragraph right- tence in the first full *2 691 judges rehearing. in favor of change, this the sen- active en banc column. With hand “However, although Fed.RApp.P. 35. begin: retro- tence will hearings are disfa- competency spective petition rehearing for is denied vored,”. suggestion rehearing the for en banc is re- ” signal “But see page At the 3. jected. Judge Pregerson dissents from the Aponte, 591 States v. the citation United refusal to hear this case en banc. His dis- Cir.1978) 1247 which follows this F.2d sent is filed with this order. third in the signal at the end of the sentence appellant’s reply motion to file a letter paragraph righthand in the col- full second response petition to the to the for State’s deleted, in third umn are and the sentence rehearing granted. begins: “He was ideal- paragraph which situated”, changed to read: ly PREGERSON, Judge, dissenting, Circuit him familiarity with the case made His REINHARDT, Judge, joins: in which Circuit any to adduce additional evi- well situated needed to determine Moran’s com- dence I dissent from the refusal to rehear this

petency. majority opinion case en banc. The is flawed page phrase very respects. the “substantive in I 4. At three serious discussed right” my in the second sentence in constitutional these errors dissent from the righthand case, in paragraph panel’s full the in of the second decision Moran v. Godi (9th Cir.1994) nez, changed right”. to “substantive column is 1577-1586 J., (Pregerson, dissenting), then read: The sentence will and will summa briefly only rize those two issues here. The Only misapplication of state the denial or equal magnitude, third error is an error of procedures deprivation that results in the which I will set forth in more detail below. implicate a substantive will a fed- liberty erally recognized interest. First, majority concluding the erred page phrase At the “substantive retrospective competency hearing in the right” constitutional the second sentence which Moran allocated the burden of righthand col- paragraph of the last judge’s failing proof cured the trial error changed right”. “substantive umn is read contemporaneous hearing as to to hold a change, the sentence will read: With this competence. A violation of the trial however, law, did This violation of state obligation to hold a hear- court’s deprivation Robinson, not result in the of a substan 86 under Pate right, provided because the state Mor tive L.Ed.2d 815 can constitutionally adequate proce an with hearing in which cured Drope dures to evaluate his [v. Missouri 420 U.S. ], competency, see ^[162] the state bears defendant was competent burden to stand trial. proving the voted tion for tion for banc. Farris With Moran. (1975) ], accept rehearing rehearing grant even with Thompson ^[896] foregoing suggestion en bane. at 904 petition and to the burden of voted to amendments, Judges reject for [43 Judge Pregerson rehearing deny en rehearing L.Ed.2d 103 sugges- peti- vass was fails to examine his decisions to waive counsel state and the heightened degree of care because guilty. (1975), majority Second, trial court was adequate, Faretta v. concluding drugs majority opinion completely whether Moran’s mental fails to he was that the Faretta can- acknowledge that 45 L.Ed.2d given California, 422 exercise a subverted plead suicide, sugges- point to the he was

The full court advised of the was unstable state-prescribed influence of rehearing An active under tion for en banc. facing sentence. drugs, and he was the death requested a vote on whether to rehear Christensen, F.3d cause en banc. The matter failed to receive See United States (9th Cir.1994). of the votes of the nonrecused 210) adopted (quoting Doggett, 572 P.2d at Third, majority in Moran has added); unsupported (emphasis definition of what see also Ballard v. Es a novel and (9th Cir.1991) liberty telle, interest. (finding constitutes a state-created directly existing conflicts liberty This definition that a state-created interest exists departure precedent represents a radical when, here, misapplies the state its own *3 in law). the law. it is clear that Moran has Therefore the existence of a state-created established claim process a due because Moran raised Nevertheless, majority liberty the interest. the law of Nevada the trial court violated liberty that no interest has been concludes regarding proof placing the burden by Doggett. created upon the defendant competence to stand trial process due than the state.1 Moran’s rather justification provided by the ma- The relatively straightforward: thus claim is (in jority opinion) its unamended for conclud- governing Pate violations creates state law liberty ing that no state interest exists is that protected under the liberty is interest which protect the state rule does “substantive of the Fourteenth Due Process Clause right” constitutional because the federal Con- Amendment, failure to adhere and the state’s require proof does not the burden of stitution conducting post-convic- in the to its own law Moran, upon placed to be the state. right tion due violated effect, majority at 1574. In the holds that process. recognize courts cannot the existence of notes, requirements majority As the two liberty interest when a state law creates one liberty protected for a interest must be met liberty indepen- unless that interest is also first, the rule must to be created: state dently guaranteed the federal Constitu- predicates triggering its contain substantive tion. second, application; state law must con- the mandatory language concerning explicit, tain panel opinion, The has now amended its predicates the outcome once the substantive the word “constitutional” in two deleted Moran, 40 F.3d at 1574. are met. places within its discussion of Moran’s state liberty Unfortunately, by claim.2 interest out, Here, points Doggett the as Moran “constitutional,” eliminating the the word Supreme Court clear- decision of the Nevada panel opinion has not the conflict its erased ly necessary predi- contains the substantive (“when existing precedent. prob- The creates with cate the trial court has failed to fol- opinion, original lem with the both the ver- ”), procedural safeguards of Pate low the one, amended is not sion the the termi- explicit, mandatory language concern- well as (“the nology panel the uses to describe the ing the outcome State right” requirement, “substantive but the forego requirement that the defen- its usual meaning panel assigns that the to that re- incompetence as of the dant establish trial.”). Moran, clear,3 quirement. opinion original date of the As the still makes Warden, Moran, (citations omitted). Doggett 1. 93 Nev. 572 P.2d 40 F.3d at 1574 See underscored words have been removed from the opinion. majority's passage 2. The affected order comparison opinion 3. A the revised with the amending opinion states: original opinion makes clear that the pro- Only misapplication the denial or of state changed analysis any meaningful has not its in deprivation cedures that results in the way. original opinion, In the version of the implicate a substantive will constitutional panel liberty held that a state-created interest federally recognized liberty interest. recognized law could not be because state Here, court violated Ne- protect “a did not substantive constitutional placed proving Moran, burden of right.” vada law when it 40 F.3d at Now it holds protected recognized on Moran. This violation of state cannot be that a interest law, however, deprivation protect did not result in the because state law does not a "substantive However, right, justifica right." supra. of a substantive because constitutional See note constitutionally precisely provided panel’s the state Moran with tion for the conclusion is competen- opinion; adequate procedures of the to evaluate his same in both versions opinion, panel again cy, once holds even with the burden of on Moran. amended right” requirement means Fourteenth Amendment arise from two the “substantive may only liberty interests sources —the Due Process that state-created Clause itself and Hewitt, question the laws of the States.” recognized when the 459 U.S. at added). protected by (emphasis independently the federal Con- Hewitt, sharply rejected plaintiffs with This is a rule at odds stitution. claim that the federal existing precedent. Due Process Clause independently guaranteed an interest be majority’s protect that no conclusion general population to a confined cell. Id. liberty liberty interest exists unless the ed 103 S.Ct. at 868-69. Neverthe guaranteed by independently is also interest less, the Court concluded that the state had Constitution is direct conflict the federal protected liberty by adopt created a interest holdings explicit of at least ing specific procedures confining an in *4 Fetterly decisions. In v. Pask Ninth Circuit segregation. mate to administrative ett, (9th Cir.1993), we held that 470-71, 103 S.Ct. at 870-71. sentencing weigh court’s failure to a state by in the manner state factors law McDonnell, Similarly, in Wolff in cognizable “a claim that enact established (1974), L.Ed.2d 935 statute, enforcing state] has [the Supreme recognized Court a state-created liberty protected interest under the created liberty prisoners’ receiving good- in interest of the Fourteenth Due Process Clause despite fact time credits that the federal reaching Id. at 1301. In this Amendment.” adequately guar- Due Process Clause did not conclusion, specifically we held: type liberty antee this interest: is, course, nothing in the Consti- There It is true that the Constitution does itself requires tution the United States guarantee good-time credit satis- for legislature approach balancing Idaho's factory prison. behavior while in But done in state [the statute]. as it has How- only provided here the State itself has not ever, failure of a to abide its state statutory right good time but also statutory may implicate a own commands specifies that it is to be forfeited for liberty protected interest the Four- serious misbehavior.... But the state against arbitrary teenth Amendment de- having right good created the time and privation by a state. recognizing deprivation itself that its is a misconduct, major sanction authorized for added); (emphasis Id. at 1300 see also prisoner’s interest has real substance Campbell Blodgett, sufficiently and is embraced within the Cir.1993). “liberty” Fourteenth Amendment to entitle Moreover, justification provided for procedures appro- him to those minimum concluding protected liberty that no interest priate under the circumstances and re- directly conflicts with a number of exists quired by Process to in- the Due Clause Supreme Court decisions. These decisions is not sure that the state-created liberty make clear that a state-created inter- arbitrarily abrogated. question est can exist even when the added). (emphasis guaranteed by the Id. at 94 S.Ct. at 2975 independently is not fed- Thus, example, majority’s approach flawed for de- Constitution. For Hewitt v. eral Helms, termining what constitutes a state-created (1983), directly existing Supreme liberty interest conflicts with L.Ed.2d 675 Court noted precedent, “[l]iberty Supreme protected interests the Ninth Circuit - -, -, recog California, liberty no interest can be in Medina v. that nized in this case on the state-created ground that the "violation which 120 L.Ed.2d deprivation of a of state law did not result in the substantive require does not held that the Constitution federal right, provided Moran because the state proof regarding to bear the burden of the state constitutionally adequate procedures to evalu with Thus, according competency. to the Id. at 1575. competency, burden on ate his even just majority, right,” a "substantive like a “substan- Moran, (emphasis Moran.” at 1574-75 indepen- right,” tive constitutional is one that added). again, Once then relies for dently guaranteed under our Constitution. proposition Court's decision inquiry no as to the medications he had likely to have made error egregious and its given, dosages, the times when he been future. repercussions serious medicated, af- or how the medications reason, two for the other For this simply on to fected him. The court moved above, review is en banc discussed reasons eventually questions, accepted other I therefore dissent in this case. warranted guilty pleas. Moran’s waiver of counsel and this case to rehear court’s refusal from the 21,1985, three-judge January Nevada On en banc. to death for state court sentenced Moran appeal, the each of the three murders. On OPINION Supreme Court affirmed Moran’s Nevada THOMPSON, Judge: Circuit for the Red Pearl Sa- death sentences pleaded guilty to Richard Allan Moran murders, death sen- loon but reversed his and was sen- capital murder three counts the murder of his ex-wife. On this tence for by a state court. to death Nevada tenced count, the Nevada Court remanded exhausting appeals, court he his state After imposition pos- of a without life sentence corpus in the Unit- petition for habeas filed a 14H2, sibility parole. 734 P.2d at Id. at the District of Court for ed States District § 2254. The pursuant to 28 U.S.C. Nevada July petition On filed *5 petition and Moran court denied his district post-conviction the Nevada state court for jurisdiction under 28 appeals. We have alleged guilty pleas and waiv relief. He § 1291 and we affirm. U.S.C. involuntary of counsel were because he er drags,” he was was “under the influence of AND PROCEEDINGS FACTS himself, mentally incompetent represent to proper and the trial court failed to conduct 13, 1984, po summoned August Moran On legal competency.” to mental and canvass “as hospital he was recu lice to the room where evidentiary hearing, After an the Nevada attempted He con perating from an suicide. post-conviction court com found Moran was killing at her home and fessed to his ex-wife petent represent plead guilty, to himself and people at the Red Pearl Saloon. He was guilty pleas and his of counsel waiver capital charged three murder. counts voluntary. The were Nevada Initially, pleaded guilty to each count. he appeal. dismissed Moran’s Moran v. Court cir of the murders and the Detailed facts Warden, 810 P.2d cert. 105 Nev. of Moran’s confession are set cumstances — Whitley, Moran, denied sub nom. Moran v. -, - - forth in v. U.S. Godinez (1989). 110 S.Ct. 107 L.Ed.2d 160 -, 113 S.Ct. State, and Moran v. L.Ed.2d petition in Moran then filed a habeas (1987). 138, 140-41, 712, 713 Nev. 734 P.2d for the United States District Court District of Nevada. The district court denied the appeared On November Godinez, petition. in We reversed Moran v. He said he before the Nevada trial court. (9th Cir.1992). 972 F.2d 263 We concluded attorneys plead discharge to wanted the state court have entertained a should presentation mitigat- guilty prevent good during faith doubt the November ing evidence on his behalf. proceedings change-of-plea as to Mor- accepting Moran’s waiver of coun- Before competency discharge an’s counsel and interrogated guilty pleas, sel and the court plead guilty. at the failure Id. 265. We held During interrogation, length. Moran at competency of the trial court to conduct a following colloquy occurred: at that time violated Moran’s you presently Are under the Court: process. due Id. We also held the 1987 any drag influence of or alcohol? post-conviction court failed to correct in, they give you me Moran: Just what trial court’s error because the know, medications. incorrectly applied court the standard of trial, competency stated Although he under to stand which we Moran indicated medications, trial court was a lower standard than the standard the influence of court, plead previous or before the trial competency to waive counsel irrational behavior, at 267. and available medical guilty. Id. evaluations. Missouri, Drope Godinez, Court reversed. (1975); Lewis, — -, at 2688. The at 527; Harding, 991 F.2d at at 856. competency held the standard previous decision, in As we said our plead guilty was identical waive counsel and jurist reasonable should have entertained a stand trial. to the standard for good at-, faith doubt as to Moran’s at The Court Id. 113 S.Ct. 2686. 28,1984 during change-of-plea the November

also stated when a court has reason doubt Moran, hearing. 972 F.2d at 265. in When the competence, a defendant’s addition trial court asked Moran whether he satisfy competency inquiry, the court “must “presently drugs under the influence of or itself that the waiver of his constitutional alcohol,” taking Moran indicated he was knowing voluntary.” Id. at med- rights is Although -, inqui- ications. the court made no 113 S.Ct. at 2687.1 The Court remand- ry, disputed it is not the medications Moran proceedings. ed the cause to us for further Inderal, Dilantin, taking at-, were at Phenobar- Id. bital, Inderal, “beta-blocker,” and Vistaril. management hypertension. is used STANDARD OF REVIEW (42d 1988) Physician’s Desk Reference ed. corpus review the denial of a habeas We 650-52; Docket No. Exhibit III. Dilan- Borg, petition de novo. Mikes antiepileptic drug tin is an that inhibits the denied, Cir.1991), cert. spread activity seizure the motor cortex -, related to barbiturates its chemical structure. 1543^45. Vistaril used DISCUSSION anxiety for relief of and tension associated *6 psychoneurosis. key It on acts certain Competence A. to Waive Counsel and Plead regions system. of the central nervous Id. at Guilty 1625-26. Phenobarbital is a sedative used to process requires Due a court to conduct a system counteract central stimu- nervous motion, hearing competency on its own be disput- lation. Id. at 1667-68. It is also not permitting fore a defendant to waive consti given ed that these medications were to Mor- rights, judge tutional whenever a reasonable trial, jail awaiting al- an while he was expected to would be have bona doubt fide though dosag- the record is silent as to what competence. as to the defendant’s United they given, es he was the times were admin- (9th Cir.) Lewis, 524, v. 991 F.2d 527 States istered, they and the effect had on him. guilty), (competence plead cert. de three The court also was aware —nied, 216, -, 114 U.S. S.Ct. 126 attempted hearing, Moran months before the Lewis, (1993); Harding 172 v. 834 L.Ed.2d suicide, and that he wanted to fire his attor- (9th Cir.1987) 853, (competence to F.2d 856 neys, plead guilty capital to three counts of denied, 871, 109 counsel), 488 waive cert. U.S. murder, and die. (1988); 182, 102 L.Ed.2d 151 Chavez v. S.Ct. (9th circumstances, States, 512, trial 656 F.2d 515-16 these state United Cir.1981) guilty). a bona (competence plead A court should have entertained fide competence. as to The court bona doubt should exist when there is doubt fide competency incompetence. held an immediate substantial evidence of Lew should have is, not, 527; Harding, hearing. It did and as a result Moran’s 991 F.2d at 834 F.2d at Chavez, 856; procedural process violated. Although F.2d at no due 656 Robinson, 375, 385, 86 particular signal incompetence, sugges Pate v. 383 U.S. S.Ct. facts Lewis, (1966); 991 includes a defendant’s demean- tive evidence actually competency does under 1. Whereas involves a defendant's mine whether the defendant consequences general ability proceedings significance of a stand the to understand the " " Godinez, him, “knowing particular against purpose decision.' - U.S. at - ‘[t]he of the contrast, 12, voluntary” inquiry, by at 2687 n. 12. is to deter- n. 113 S.Ct. 696 1984, 17, hearing on December conducted 527; F.2d at 856. The Harding, 834 at F.2d change-of- however, post- than three weeks after contends, 1987 less that the state hearing, repeated his desire not process plea Moran this due hearing cured conviction counsel, he represented stated to be agree. We violation. guilty pleas. not to withdraw did wish fails to hold wrongfully a state court When present indicated he did not want He also im hearing, “it often be competency hearing, sentencing or allow witnesses at the damage retrospective repair the possible to gather mitigating attorney to evidence. an (9th 884, Raines, F.2d 888 800 ly.” Evans v. hearing January sentencing At the Cir.1986). However, although retrospective present mitigating refused to disfavored, see hearings are competency witnesses, evidence, or view cross-examine 909; at at 95 420 U.S. S.Ct. Drope, prove aggra- by the state to the exhibits used (9th Ricketts, 891, 894 n. 3

Blazak pre- vating circumstances. who Cir.1993) J., equally divided (Tang, for hearings subsequent also sided at these court), Lewis v. Bla denied sub nom. cert. change-of-plea hearing and presided at the — zak, -, hearing. (1994), they permissible are L.Ed.2d post-conviction hear meaningful Moran testified at the a court can conduct whenever made in ing. He the medications him retrospectively the com said hearing to evaluate Evans, at time he waived 800 different counsel petency of defendant. See Enomoto, any present pleaded guilty, but he did 888; DeKaplany v. at F.2d (en (9th Cir.1976) banc), change-of-plea at the evidence to show that n. 11 F.2d “‘ability denied, hearing to consult he lacked 429 U.S. cert. degree lawyer with a reasonable passage of with his While L.Ed.2d understanding’ determining [or rational he then significant in whether time is Pate, understanding held, factual [or] ‘a rational hearing lacked] can such ” Godinez, proceedings against him.’ contem of the reports medical at -, (quoting 113 S.Ct. at 2685 of the poraneous to the time initial States, 402, 402, 80 Dusky v. chance an accurate United greatly increase the (1960) (per a defendant’s retrospective evaluation of curiam)). Eyman, Sieling See competence. (9th Cir.1973). also See are court determinations State Bowen, Cir.

Ray v. presumption entitled to a of correctness. *7 1988). 1021, (9th Lewis, Brewer v. 989 F.2d 1027 Cir.1993). competency case, will post-conviction We overturn present In finding only fairly supported if it years after Moran is not held three Baal, v. guilty. The the record. Demosthenes pleaded waived counsel 2225, 2223, 109 L.Ed.2d 110 S.Ct. judge presided who at the (1990) curiam); Maggio Fulford, (per v. presided 762 hearing was the same who 2261, 2264, 76 462 103 S.Ct. change-of-plea hearing. His famil- U.S. over the (1983) curiam); King (per 794 v. him situated to L.Ed.2d the case made well iarity with (9th Cir.1993); Brown, 8 1408 any needed to additional evidence adduce Brewer, post- The F.2d at competency. Moran’s 989 determine of two court also had the benefit conviction trial court should have had bona fide reports psychiatrists who eval- from medical during competence doubt as to Moran’s months be- Moran’s uated change-of-plea hearing. 1984 November hearing, change-of-plea and who fore the competency hear- It should conducted a have competent to stand trial. One opined he was However, that time. because the ret- at examining psychiatrists testified be- of these compe- rospective of Moran’s determination post-conviction court. fore the post-conviction court in tence 1987 record, fairly supported by the we no had the rec- have post-conviction court also Evans, at it. 800 F.2d hearings after basis to overturn See ords from two held (“There conflicting on this [evidence] change-of-plea hearing. At a 887 presentencing

697 Thus, issue, long court the con Id. so provides but the state resolved as the state adequate procedures in the state’s favor. Its resolution is competence, flicts to assess it ”) ‘fairly supported by (quoting constitutionally may the record.’ assign the burden of 2254(d) (1992)). § also Brew proof 28 U.S.C. See to the defendant. er, 989 F.2d at 1027. Although Medina pretrial involved a com- challenges findings post- of the petency hearing, Court’s ratio- by arguing court that the court conviction equally applicable nale is retrospective to

incorrectly proof placed the burden of on him competency hearings. When it is established incompetence. his He relies on to establish petitioner’s competence that a can be accu- Singletary, James v. 957 F.2d 1570-71 rately retrospectively, evaluated there is no (11th Cir.1992). compelling require reason to states to divert James, procedures from assessing their normal In 957 F.2d at the Elev Pate, competence. interpreted could be enth Circuit U.S. accurately retrospectively. evaluated require a defendant to Neva- constitutionally obligated place da was not that the trial court failed to first establish proof prosecution the burden of on the competency hearing at the time a conduct competence, establish his or to him as to relieve bona doubt should have arisen fide James, establishing incompetence. the burden of competency. According if a defen error, dant establishes this Pate the burden Although there is no federal to be proof prove it then shifts to the state to proof retrospec free from the in a burden possible retrospective hearing hold a — Medina, competency hearing, tive state whether the defendant was com determine at -, U.S. S.Ct. at Moran con James, petent to stand trial. 957 F.2d at federally tends that Nevada has created a successfully If 1570-71. the state demon protected liberty state interest such a meaningful retrospective hearing strates a right. It is “well established state laws held, can be the burden of remains liberty triggering can create interests feder proceeding retrospective with the state at the ally procedural rights.” enforceable Dix v. competent. to show the defendant was (9th Shasta, County 963 F.2d Estelle, But see Porter 949 n. Cir.1992). “Misapplication of these laws that Cir.1983) (petitioner burden of bears deprivations liberty lead to of those interests evidence), proof by preponderance of the may state institutions be reviewed fed McKaskle, cert. denied sub nom. Porter v. Estelle, proceedings.” eral habeas Ballard v. (9th Cir.1991). Kentucky Department Corrections James, After the decision in 454, 462-63, Thompson, Court, California, in Medina v. 1904, 1909-10, (1989), the -, -, 2572, 2579, 120 L.Ed.2d constitutionally Court held create held that a state constitution interest, liberty protected a state law must *8 ally place proof the burden of on a defendant governing predicates contain substantive competency hearing. recog at a The Court decision, explicit language speci- official’s provide procedures nized a state must “ade fying the outcome that must be reached if quate protect a not to defendant’s Dix, predicates are met. See 963 F.2d at incompetent.” or tried convicted while (internal omitted). However, quotations Warden, provides Doggett v. a State a defendant access Moran contends that [o]nce 207, 591, 595, procedures making 572 P.2d 210 for a 93 Nev. evaluation, constitutionally protected perceive ... we no basis for Nevada created holding requires liberty relieving interest a defendant process that due further proving incompetence if he the State to assume the burden of vindicat- burden right by trial court committed a the defendant’s constitutional demonstrates Doggett, persuading Pate error. the Nevada Su- the trier of fact the defen- stated, preme the trial court competent “[W]hen dant is trial. stand 698 post-convic reject argument. The safeguards procedural We failed to follow

has rejected forego its required to tion court considered is of Pate ... the State plead incompetent estab- that the defendant claim that he was requirement usual supports of the date of this conclusion. incompetence guilty. The record lish his competence plead guilty original trial.” Id. for The standard competence the same as the standard state-creat a distinction between There is — Godinez, at - - counsel. U.S. to waive liberty and the substantive procedures ed -, at 2686-87. Because 113 S.Ct. pro procedures are meant to those interests identical, finding one standards are 238, Wakinekona, 461 U.S. tect. Olim v. suffices for both. 1741, 1748, 250, 75 L.Ed.2d 813 103 S.Ct. (1983) (“Process in itself. Its is not an end Voluntary Knowing Waivers B. protect a sub purpose is to constitutional determining the individual has a interest to which “In addition to defen stantive entitlement.”); Smith v. legitimate plead guilty claim of or waive dant who seeks to (9th Sumner, 1401, 1406-07 Cir. competent, 994 F.2d a trial court must satis counsel is 1993). misapplication of Only or fy the denial that the waiver of his constitutional itself Godinez, depriva in the procedures knowing voluntary.” that results rights state — implicate at -, will tion of a substantive at 2687. U.S. 113 S.Ct. Whether liberty federally recognized rights interest. See made of constitutional waiver Olim, voluntarily ques 103 at 1748 knowingly 461 U.S. S.Ct. is a mixed (state protect do not sub procedures that de novo. tion of law and fact which we review (9th Cir.) independent Wood, 662, rights do not create Campbell stantive F.3d 672 v. 18 — Sumner, (en denied, -, v. 994 rights); banc), Smith 114 substantive cert. U.S. 1406; McCarthy, 2125, (1994); 801 F.2d at Toussaint v. Terrovo 128 L.Ed.2d 682 S.Ct. (9th Cir.1986), (9th 1080, Kincheloe, 424, n. 15 F.2d 1096-97 & na v. 427-28 denied, 1069, 107 2462, Cir.1988); 95 481 S.Ct. Harding, cert. U.S. 834 F.2d at 857. (1987). 871 L.Ed.2d 1. Waiver of Counsel

Here, post-conviction court violated actually To determine whether a defendant placed when it the burden Nevada law consequences of the nature and Doggett, understands competency on 93 proving Moran. counsel, must 595, his waiver of the court abide 572 P.2d at 210. This violation Nev. at principles in Faretta v. Cali law, however, set forth did result state fornia, 422 right, deprivation of a because substantive — (1975). Godinez, U.S. at - - provided constitutional the state Moran with -, 113 at 2687-88. Under S.Ct. ly adequate procedures to evaluate his com Faretta, the defendant must “be aware of petency, Drope, 420 U.S. at see him, charges against possi nature of the on even with the burden — Medina, at -, dangers and disadvan penalties, ble Moran. S.Ct. Ylst, self-representation.” States tages of United also Hernandez v. at 2579. See (9th (9th Cir.1991); Balough, 820 F.2d Cir. Middleton v. F.2d Zenon, 1987). (9th Cir.1985), See Hendricks v. also Cupp, 768 F.2d (9th Cir.1993); denied, 1021, 106 United 669-70 cert. Robinson, States Campbell v. Blod L.Ed.2d 741 Cf. denied, Cir.1990), (9th Cir.1992), cert. gett, 997 F.2d aff'd (1991); (9th Cir.) (en banc, Har reh’g 18 F.3d 662 en *9 banc), denied, U.S. -, ding, F.2d at 857. 114 834 cert. S.Ct. (1994); 1337, Fetterly v. 127 L.Ed.2d 685 accepting guilty plea, the Prior to Moran’s (9th Cir.1993). Paskett, 1297 997 colloquy to in-depth trial court conducted waiving coun Moran was argues post- that determine whether Moran also because intelligently. As recount knowingly claim and failed to consider his sel conviction court — Godinez, discharge by ed incompetent his that he was at -, counsel, 113 S.Ct. at it cure the Pate violation. U.S. failed to

699 [Moran] court advised that he had a U.S. 111 S.Ct. 114 L.Ed.2d 724 (1991). right to the assistance counsel and both self-representation, warned him of the accepting guilty Prior to pleas, “dangers disadvantages” self-repre- and engaged trial court in an extensive canvass to sentation, inquired ... into his under- determine whether Moran understood the standing proceedings and his aware- of the rights he forsaking by pleading guilty. rights, why and asked he ness of his had — Godinez, As noted the Court in U.S. represent chosen to himself. -, at 113 S.Ct. at the trial court explained The trial court further the first- determined that pleading [Moran] was not Moran, degree charges against murder stat guilty response promises, to threats or penalty imposed, ed the death could be and that he understood the nature of the inquired whether Moran understood the charges against him consequences and the charges penalties. and The court asked pleading guilty, that he was aware of the recognized possible

whether Moran de rights giving up, he was and there was a to the crimes with which fenses he was factual pleas. basis for the charged, and whether he had discussed these The specifically trial court asked Moran Harding, defenses with his counsel. See 834 right whether he understood his to a trial F.2d at 857. Moran’s affirmative answers to jury, accusers, right his to confront his and questions unequivocal. the court’s were See privilege against compulsory his self-incrimi- Robinson, 714; v. 913 F.2d Adams Car nation. affirmatively Moran answered (9th roll, Cir.1989). 875 F.2d 1444 inquiries. each of these The trial court did colloquy prob- The court’s with Moran was determining not err in knowingly Moran Gillies, thorough, see Von Moltke v. voluntarily pleaded guilty.2 708, 723-34, 316, 323, 92 C. Ineffective Assistance of Counsel (1948), duty L.Ed. 309 and satisfied its under Moran contends he received ineffective as- Balough, Faretta. See 820 F.2d at 1487-88. discharged sistance of counsel before conclude, he post-conviction We as did the Ne- attorneys change-of-plea hearing. at his court, knowingly vada state that Moran voluntarily right waived his to counsel. A claiming defendant ineffective assistance

of counsel must demonstrate that counsel’s Guilty Pleas range profession actions were outside the assistance, ally competent and the defendant guilty To determine whether a defendant’s prejudiced by counsel’s actions. Strick plea voluntary intelligent is “a choice 668, 687, Washington, v. land action,” among the alternative courses of (1984). 2052, 2064, S.Ct. 80 L.Ed.2d 674 25, 31, Alford, North Carolina v. U.S. applies challenges guilty test Strickland a trial S.Ct. pleas based on ineffective assistance of coun guidelines court must follow the set forth in (9th Sunn, sel. Iaea v. 800 F.2d Alabama, Boykin 242-43, Cir.1986). in Whether a defendant received 1711-12, S.Ct. legal ques effective assistance of counsel is a — Godinez, - n. 12, 113 See U.S. at tion de novo. we review United States v. Boykin, at 2687 n. 12. Under record (9th Cir.1991). Swanson, plea proceeding must reflect voluntarily argues attorneys defendant to a waived his failed inves- trial, accusers, jury tigate competent plead to confront his he whether counsel, privilege against guilty, compulsory forego presen- and his self- waive Raley, mitigating argument incrimination. Parke v. tation This evidence. -, -, attorneys 121 L.Ed.2d lacks merit. Moran’s had him (1992); Boykin, psychiatrists. psy- 395 U.S. at 89 evaluated These 1711-12; Butcher, detailed, provided reports chiatrists reasoned United States denied, Cir.), opinions 500 which contained their individual cert. knowingly voluntarily pleaded guilty. 2. The court also found Moran *10 information), provide failed to certain trial. Mor sel competent to stand Moran was — -, rely grounds, to on these rev’d on other attorneys entitled an’s were (1993). competence to L.Ed.2d 188 Moran’s for reports. The standard attorneys to the standard his were ineffective contention that trial is identical stand rights. prevent they attempt constitutional to waive failed competence because at - - -, Godinez, 113 S.Ct. at is the assertion of an use of his confession rely could on the counsel alleged pre-plea Because constitutional violation. We 2686-87. compe reports that Moran psychiatrists’ that claim this habeas will not consider unnecessary for trial, it was to stand appeal. tent competence plead investigate his

them to CONCLUSION forego presenta or guilty, counsel waive mitigating evidence. tion of trial court should have enter- The state attorneys failed to argues his Moran also a bona doubt as to Moran’s com- tained fide possible all defenses investigate and research during petence his November mitigating presented as might have been hearing. failure to hold a change-of-plea phase capital of his penalty evidence at the competency hearing at time violated hearing. offers no evi- sentencing Moran process. constitutional to due Moran’s claim. While it is true support dence Pate, That at 86 S.Ct. at 842. 383 U.S. in- duty to make reasonable “counsel has a cured, however, by the state violation decision vestigations to make a reasonable or hearing post-conviction retrospective court’s investigations unneces- particular that makes held in 1987. That court found Moran Strickland, 104 S.Ct. sary,” 466 U.S. competent waived and en- when he counsel attorneys precisely Moran fired finding fairly guilty pleas. That tered gather and introduce they because wanted knowingly Moran supported the record. his behalf. mitigating evidence on voluntarily waived his to counsel pleaded guilty. He was not denied effec- his counsels’ failure also contends tive assistance of counsel. prevent the use of his confes attempt hospital recov he was sion taken while AFFIRMED. attempt constituted ering from his suicide We decline to consid ineffective assistance. PREGERSON, Judge, dissenting: Circuit Moran, v. In Hudson er this contention. I dissent. denied, (9th Cir.), cert. 1029-30 that the trial did not con- believe 981, 106 88 L.Ed.2d 339 474 U.S. adequate inquiry to duct an determine stated, (1985), we fateful decision to dismiss whether Moran’s rule, voluntarily general one who As a by his free his counsel was animated own guilty to a criminal intelligently pleads whether, instead, will, product it was the or subsequently seek federal charge not drugs affecting state-prescribed pre- basis of corpus relief on the habeas precarious mental state. A defendant plea constitutional violations. “voluntary may only and intelli- attack majority’s analysis is flawed on two guilty plea by show- gent of the character First, judge to fronts. the failure of the trial from coun- ing that the he received advice adequate inquiry violated Moran’s conduct range sel was within right, v. procedural constitutional under Pate attorneys in criminal cases.” demanded of Robinson, 836, 15 383 U.S. 86 S.Ct. (internal omitted) hearing to a to evaluate (quoting Tol L.Ed.2d 815 citations Henderson, competence whenever a doubt his mental lett (1973)). Contrary competence is raised. also about such See conclusion, Richardson, majority’s failure to hold to the 770- McMann v. post- 1441, 1448-49, cured such a cannot be fact, Arave, hearing, years after the conviction But see Creech (habeas Cir.1991), is allocated the burden appeal which the defendant competency. retrospectively proving his argument that coun- of addressing petitioner’s *11 post-conviction hearing Second, conduct a fact about the judge’s failure to salient the judge question presiding placed whether that the the burden inquiry calls into proper right competence waiver of guilty plea as to Moran’s on Mor- of intelligently, reasons, knowingly, were an. For a number of I am con- counsel majority gives voluntarily post-conviction hearing tendered. that this vinced strong argument that to Moran’s constitutionally inadequate short shrift to cure the state’s rights not his waiver of constitutional contemporaneous initial to hold a Pate failure voluntary. my In intelligent, and knowing, hearing.

view, however, judge’s woefully in- the trial adequate inquiry into whether Moran’s requirements cure a A. Constitutional truly and rational necessi- choice was free Pate violation. detailed look at the evidence. tates a more It is clear that Pate violation can Moreover, of the rare cases this is not one by post-conviction hearing in which cured permits totality of circumstances which the proving of the state bears the burden rights fundamental to affirm a waiver of us competent to trial. the defendant was stand by the adequate canvass trial absent words, In must other the state bear judge. retrospectively proving competence burden issues in turn. I address each of these provide if the defen- the trial court failed constitutionally required con- dant with EFFECT OF

I. COMPETENCE: temporaneous hearing.1 PATE THE VIOLATION notes, trial no further than Pate itself to Moran told the We need look As the opinion in Pate can under the influence see that this is true. The judge that he was In analytically parts. into two state-prescribed drugs at the time he entered be divided one, discussing counsel. constitutional viola- guilty plea part and dismissed his tion, everything Supreme else Court confirmed a defen- with combined When mind, contemporaneous hearing right to a Moran’s state dant’s knew about good faith doubt arises before sen- should have been sufficient where statement compe- tencing concerning com- the defendant’s good faith doubt about Moran’s raise a agree part In the I therefore to stand trial. second petence to stand trial. tence Pate, appropriate majority’s discussing that the trial conclusion relief violation, sponte hold a sua Court estab- required court was such Robinson, court failed to hold lished that where the trial hearing under Pate v. contemporaneous hearing the undisputed It that the 86 S.Ct. 836. nonpersuasion the burden of judge did not do so. state then bears trial competency determina- any subsequent contemporaneous to hold a This failure tion. competence violated hearing to determine to a fair trial. Moran’s constitutional ap- part Pate discusses the The second Furthermore, is no there doubt This for a Pate violation. propriate relief adequate to conduct an Pate failure analyzed part of Pate has been second Pate error on habeas review. is reversible first, it is well established often as the but a habeas case. As read itself was Pate, deter- frequently applied. after up majority opinion, agreement are all in we mining that the defendant’s constitutional point. to this contemporaneous to a violated, hearing had been question, on which we The more difficult relief question to the of what Court turned disagree, is whether the State’s constitutional review. The state proper on habeas hear- error was cured the violation argued that it could cure years the trial. The ing held a few after - U.S. -, has been a Pate proving where there California, 1. Medina L.Ed.2d cited the ma between Pate violation. The interaction requirement jority, is not in conflict with this is discussed below. Medina retrospectively that the state bear the burden *12 retrospective hearing, making retrospective but the the evidence for a de- holding a years termination, disagreed, noting that after six have we affirmed the view that to make nonpersuasion: insufficient evidence the the there was state bears burden required competency determination. where the evidence is insufficient to make a determination, retrospective the conviction is point, retrospec- if the in a At this burden and the case for a reversed remanded new had competency tive determination been on necessary trial. The conclusion from these defendant, the Court would have af- cases is that the state bears the burden of Instead, firmed the state court conviction. proving competence retrospective in a hear- and re- the Court reversed the conviction ing pre- held a Pate violation. This is trial; manded for a new thus the Court after Circuit, cisely the conclusion of the Eleventh proving that the burden of a de- established (11th Singletary, James v. 957 F.2d 1562 retrospective in competence fendant’s a de- Cir.1992), great- which examined the issue on the state. termination is any than er detail other circuit.3 precedent consistently fol This has been petitioner “Once the has [that established see, Court, by e.g., Drope lowed sponte the trial court should sua have held Missouri, 896, v. 420 U.S. 95 S.Ct. competency hearing] ... he or she has (1975) 909, (reversing for new made out federal constitutional violation. finding psychiatric trial after that remand for point, opportunity At this the state has the evaluation to determine whether defendant to establish before the federal district competent years ago to stand trial six petitioner’s competency court the at the remedy), proper frequent was not a and has time of trial.” see, circuit, ly applied by e.g., been Ev (9th James, added). Raines, 884, (emphasis 957 F.2d at ans v. 800 F.2d 888 Cir. 1571 1986) (upholding findings competen of a majority argues that Medina v. Cali cy hearing years post held five ex facto - fornia, -, 2572, because the evidence was sufficient to retro (1992), requires disregard L.Ed.2d 353 us to spectively competence); Sieling determine Medina, compelling logic In James. 211, (9th Cir.1973) Eyman, 478 F.2d 215-16 question, Court addressed the (remanding trial court determine Pate, not addressed in of who must bear the whether there was sufficient evidence to de proof in contemporaneous burden of Pate competence retrospectively).2 termine hearing. Medina determined that the Con every permits place case where our court or the stitution Su- the states to the bur preme sufficiency Court has addressed the of den on the defendant in the contem- majority attempts distinguish proof competent” 2. The [the defendant] these that in fact trial) added), by emphasizing (emphasis cases that the test for at the time of his determin- cert. appropriate if a remand is after a denied Pate viola- 395 U.S. 89 S.Ct. 23 L.Ed.2d possible, despite tion is whether it 246. remains time, passage meaningful retrospec- to hold a The state's brief cites an additional it case that hearing. tive But the never refutes places proof retrospec- claims the burden of in a compelling argument logic that the prisoner prove tive habeas on the state, defendant, Pate not the must incompetence. (citing See red brief at 7 Blazak any bear the burden of loss of evidence because Ricketts, (9th Cir.1993)). 1 F.3d 891 elapsed time that has since the Pate viola- The state has mis-cited this case. Nowhere tion. state, say, does it as claimed that on prisoner habeas review the burden is on the Only the 5th Circuit has stated otherwise. prove incompetency the fact after the state (5th Thigpen, Wheat v. Cir.1986), has violated Pate. denied, cert. state, Two other cases cited Fallada v. (1987); Estelle, Bruce v. (11th Dugger, 819 F.2d 1567-68 n. 1 Cir. (5th Cir.1976) II), {Bruce 1987), Estelle, and Nathaniel v. F.2d denied, cert. 1974), (5th completely inappo- 6n. Cir. are Alabama, L.Ed.2d 770 But see Lee v. site. These discuss the burden of as to the 1967) (remanding Cir. to dis substantive issue of where no Pate trict court to determine whether "it can be violation occurred at the trial. Here we are through discussing shown the state evidence available at the burden where there such meeting appropriate this time and standards of violation. leaving equipoise on the hearing. This hold- the evidence issue poraneous competent Pate and completely consistent with whether the defendant was at the ing is Evans, time of trial. See 800 F.2d at 888 James. (“When duty the state court fails [its opinion explicitly discussed Medina contemporaneous hearing], conduct a it often Pate, part of that a the first and re-affirmed impossible repair damage ret- contemporaneous is entitled to a defendant rospectively.”). raised as to hearing in the event doubts are *13 at - - -, competence. Id. Allowing to fall on the burden the defen- went on Court 2578-79. prove incompetence retrospec- in the dant to the burden of explain that the allocation of in tive determination would result affir- contemporaneous hearing is in a proof such every mances in case where the record has dimension. Id. The not of constitutional opposite become stale. This is the exact of procedure violates for whether a state test practice. the current Yet in such cases it is fundamental fair is that of the Constitution failing the state court’s error in to hold a ness, fundamental fair principle no of hearing in contemporaneous that results the the by placing on a defendant ness is violated fundamentally It unfair loss of evidence. is proof contemporaneous in a com burden of possibly incompe- to allow the conviction of a reasons hearing. Id. One of the petency of the tent defendant to stand because state’s fairness is not violated that fundamental constitutionally mandated to observe failure hearing only a contemporaneous in that procedures in first instance. the cases are affect very proportion small of the by allocation of the burden ed the state’s point. is a case in It The case at bar compe as to proof: cases where the evidence difficult at the time of would not have been perfect equipoise. tence is hearing trial to have conducted a directly or opinion The Medina did not drugs of the that determine the actual effect indirectly part the second of Pate address ingested ability to mean- Moran had on his no discussing proper relief when contem- the In con- ingfully participate trial decisions. hearing despite poraneous is held doubt trast, post-conviction hear- by the time of his competence. defendant’s Medi- about the only of the actual effect evidence na, hearing required contemporaneous testimony they that drugs was Moran’s only question was the ade- was held. The happened. caused him not to care about what contemporaneous hearing. quacy of that specifically re- The Nevada Thus, did not discuss the burden of Medina paucity of evidence about the lied on the retrospective competence in a determi- dismissing drugs in Mor- actual effect of the Appellee’s violation. See nation Pate Dismissing Ap- appeal. Order an’s after 3/15/89 (conceding point). We there- brief at 5 (“Moran presented no medical peal at 3-4 progeny Pate and its fore remain bound hearing post-conviction which evidence on this issue. that the medication necessarily established an extent that he was influenced him to such holding in were read Even if the Medina meaning conse- unable to understand part doubt on the second to cast some added)).4 In plea.” (emphasis quences of his Pate, good not to extend there are reasons words, spe- Supreme Court other the Nevada radical fashion as does the Medina such a produce cifically on Moran’s failure relied majority. contemporaneous In contrast with may when have been available determinations, evidence ease frequently it will be the held, hearing have but Pate should been making necessary for that the critical facts longer the time no available are which was competency determination retrospective trial, hearing.5 thereby years unavailable after that, given particularly as the untenable medical evidence 4. Of course there was also admits, recognizes drugs, that a Pate likely evidence that state law effect of the Nevada about retrospective disregarded by the Nevada courts. be cured violation can burden of the state bears the in which competency. persuasion No on the issue of majority’s position, the Pate violation 5. The any such that the state met regardless proof, court has found the burden of was cured VOLUNTARY, KNOWING, cy AND determination turns whether II. capacity knowingly and voluntari had INTELLIGENT WAIVER ly rights, knowing and volun waive his determined that Moran Even if it were actually tary inquiry on whether he did turns conclude that his competent, would knowingly voluntarily rights. waive his guilty plea to counsel and waiver Moran, U.S. -, - n. Godinez v. tendered, voluntarily knowingly and were not n. Fifth, Sixth, required by and Four- (1993). to the Constitution. teenth Amendments obviously incompetent A defendant who is very majority’s of this issue is discussion knowingly, intelligently, and volun brief, majority completely fails to tarily rights. waive constitutional See Pate impact prob- of Moran’s mental discuss the Robinson, state-prescribed drugs on deci- lems and 841, But a mere sion. *14 showing competent that a is is not defendant required trial was to The Nevada sufficient to demonstrate that the waiver of Moran’s waiver of consti determine whether right knowing, intelligent, to counsel was adequate rights tutional to meet federal voluntary. ‘height “In a this sense there is standards. Those standards are the same pleading guilty for ened’ standard guilty plea for a and for a waiver of counsel. Moran, waiving right to counsel....” Alabama, 238, 242-43, Boykin v. 395 U.S. 89 — at -, (emphasis at 2687 U.S. 113 S.Ct. (1969). 1709, 1711-12, Or, original). as Justice Frankfurter stat “indulge every to Courts are “[tjhere nearly century ago, ed a half must presumption against waiver.” reasonable capacity to make an be both the understand Williams, 430 Brewer v. 97 ing subverting choice and an absence of fac (1977) (in 1232, 1242, 424 51 L.Ed.2d clearly tors so that the choice is free and proceeding, it habeas is incumbent on the Gillies, responsible.” Von Moltke v. prove voluntary); to that a waiver State 708, 729, 316, 326, 68 S.Ct. 92 L.Ed. 309 — U.S. -, -, Raley, See also Parke v. (1948) (Frankfurter, J., concurring) (empha (1992) 517, 523, 121 113 S.Ct. L.Ed.2d 391 added). sis (contrasting appeal, direct where the Consti majority’s critical error is that it un- requires grant presumption tution States reasonably inquiry. It narrows this com- invalidity guilty plea, to an uninformed pletely fails examine whether Moran’s challenge, including with collateral habeas drugs given mental state and the he was petition, presump where there is no such subverted his decisions waive counsel and tion). Our review of the state’s voluntariness plead guilty. novo, although determination is de we accord presumption of correctness to the In the context of waiver of coun- factual findings underpinning the state’s ultimate sel, majority only examines whether Mor- voluntariness determination. Terrovona v. rights an was advised of his and whether he (9th Cir.1988) Kincheloe, 428 unequivocally indicated that he understood (state’s voluntariness determination is not rights. Majority pp. those 699-700. The 2254(d) subject presumption § to 28 U.S.C. whether, majority does not discuss and if so correctness). extent, to what Moran’s decision was affected by drugs clinically depressed determination and the state. knowing, intelligent voluntary waiver de- interrelated, require guilty termination plea, but not In the context of Moran’s identical, inquiries. majority quotes competen- Whereas the North Carolina v. Alford Thus, findings burden. no tribunal has made the interest Rather, to be enforceable under federal law. about Moran’s at the time of his trial liberty the enforceable interest is created required by that are state law to cure a Pate merely the Pate violation itself. Nevada's law

violation. the fact that the was never underscores violation suggest I do not mean this to that Nevada’s cured, either under state law or federal law. rule, more, liberty without created a sufficient rights. accepting a waiver of constitutional must look to whether that we the effect States, voluntary intelligent Arnold v. United “a plea is guilty (9th Cir.1969). of ac- among the alternative courses choice tion,” In the context of waiver of the But the does L.Ed.2d counsel, inquiry accomplished this careful Rather, it looks standard. apply by means of a “Faretta canvass.” Faretta v. only whether Moran “understood California, 422 U.S. at 699. forsaking-” rights he was (1975) (establishing L.Ed.2d 562 question from whether This is a different self-representation, but the rec- where knowing, voluntary, and intel- Moran made ord establishes that the accused “knows what ligent choice. doing eyes he is and his choice is made with added)).6 open” (emphasis To has not conduct a defendant’s mental state Where canvass, proper Faretta the trial court “must question, inquiry such as called into been thoroughly majority opinion investigate long as and as as the that undertaken where, here, him circumstances of the case before de- But the defendant sufficient. Moltke, suicidal, depressed, taking powerful- mand.” Von colloquy at 323. “A conducted a rote drugs, have an additional S.Ct. ly psychoactive we ... re- sub- and mechanical fashion look duty whether these factors to determine assuring the record will do little to an extent that but his decision to such verted protect rights of the accused.” United truly free and rational they precluded a Christensen, Balough, States v. choice. See United States *15 (mental (9th Cir.1987) (9th Cir.1994) J., (Kozinski, concurring). or F.3d Thus, instability provoked principles of defendant cannot meet the of emotional the court jury right by just going through of to trial the motions of suspicion that waiver Faretta voluntarily may knowingly, proper responses to merely eliciting not have been boil- tendered). Instead, intelligently judge can erplate questions. “[a] and professed an accused’s make certain that so, obliged to follow the two- To do we are understandingly and waiver of counsel is following step procedure discussed in the wisely only penetrating from a and made First, we must determine whether section: of all the circum- comprehensive examination transcript contains the state trial court’s plea such a is tendered.” stances under which us to determine that enough information for at 323. knowing intelligent vol- was the waiver i.e., ade- untary, if the Faretta canvass was importance of the Faretta can- Despite the Second, if canvass was quate. the Faretta vass, inadequate inquiry an Faretta was, I it we must inadequate, conclusively as believe not establish trial court does to determine the entire record examine Mason v. of effective waiver. absence whether, totality (9th Cir.1971). of the circum- Pitchess, under the But stances, in which this is one of the rare cases only rarely of constitu- affirm waiver we of constitutional affirm a waiver can- rights adequate we an Faretta tional absent inadequate canvass. rights despite an waiver by the court to determine on the record vass majority to undertake such an anal- understandingly fails whether the waiver that failure comes to an ysis, Balough, and because of F.2d at voluntarily offered. court, fact, erroneous conclusion. an when 1488-90. federal has or emotional state been accused’s mental Requirements A. Procedural colloquy in-depth “an question, into called Boykin. of Faretta reasonably the court that un- assures which case, the ... facts of the particular der the requires a state trial The Constitution voluntarily, knowingly, and intel- inquiry waiver was engage in careful before court “Faretta" canvass requirements refer to the for ac- will henceforth discussed the 6. Faretta counsel, inquiry but ceptance judge's a defendant's waiver of on-the-record for the shorthand acceptance of a are the same for voluntary the standards knowing, intelligent, and na- about the guilty acceptance of a waiver of counsel plea guilty and the waiver ture of both plea. Boykin, 89 S.Ct. at 395 U.S. at counsel. same, are Because the standards 1711-12. Christensen, required. adequate guilty plea as to both the and waiv- ligently made” (reversing conviction because of majority’s summary anal- er of counsel. The manic-depres- adequately canvass failure to ysis acknowledge fails to that the trial court accepting written waiv- sive defendant before required heightened degree to exercise a was trial). Although jury we have er of of care because Mr. Moran was unstable requirement on the imposed a similar suicide, point because he was under states, suggests skepticism Christensen state-prescribed drugs, and the influence of rights of constitutional with which a waiver facing he because the death sentence. when the defendant’s men- should be viewed standard, Applying required heightened question called into tal state has been inadequate the canvass was because adequate on-the-record there has not been responses question- rote court’s often mental state on inquiry into the effect of the they ing actually questions raised more than waiver. the defendant’s answered.7 of the Faretta Adequacy B. canvass. perplexed by majority’s I am treatment Faretta one majority expresses its in sum- canvass this case. On the view hand, the Faretta canvass was mary judge’s question- fashion that finds the indicating questions posed by statements of about 100 In addition to Moran's consisted state-pre- Nearly ques- court to the defendant. all of these that he was under the influence of drugs, tions could be answered little more than a scribed trial court should also have and, indeed, yes-or-no, all but two could be an- heightened degree vigilance exercised cause, be- single knew, swered in a word. Moran's answers form just had as the court recent- noes, litany yeses, a monotonous Occasionally, and uh-huhs. ly attempted by shooting himself in the suicide the court admon- by slitting his wrists. The trial abdomen just ish Mr. Moran that he could not nod. kept court also Moran had been in iso- knew The few occasions when Mr. Moran deviated watch,” during in a "suicide lation his detention monosyllabic responses only provide from his sufficiently con- and that Moran's counsel skepticism reason for about whether Moran’s stability cerned about Moran’s mental that coun- change plea guilty decision to his and waive psychiatrists sel asked two to examine Moran to product were the counsel of a ration- to stand trial. determine *16 why al mind. Asked to state the he reasons notice, fashion, Having put been in this himself, represent respond- wanted to Mr. Moran instability, about Moran's the court mental ed: should have canvass in a conducted Faretta THE DEFENDANT: Because we don't —the designed manner to determine whether Moran's myself agree Public Defenders and on the don’t change plea guilty decision to his and waive way they should defend me. responsi- the a free and assistance of counsel was Well, you you THE COURT: how do believe product instability. ble one and not the of mental should be defended? Rather, requirement This was not met. the THE DEFENDANT: I don't want them to appear any does not to have deviated in present any mitigating evidence. I don’t want typical questioning manner from a course of presented, they they this have feel that to— designed solely to determine whether Moran un- they have to. rights. derstood his words, you THE COURT: In other do not vigilance required Particular was also because defense, any any put up want to have in ef- facing Mr. Moran was a death sentence. A ten- fect, you're saying? is that what always dered constitutional waiver demands the By judge’s RT at 11. the own reckon- 11/28/84 capable "utmost solicitude of which courts are exchange strongly suggests this Moran was accused," canvassing Boykin, matter with plead guilty motivated to ly by and waive counsel sole- 395 U.S. at 1712. Even more by judicial a desire to commit suicide fiat. required capital “qualita- in a case. There is a engaged The court should have in a more exten- any per- tive difference between death and other probing investigation sive and but it did not. punishment [and missible form of ... there is canvass, along plea Further in the Mr. Moran corresponding therefore] a difference in the need again litany single-word deviated from his of reliability” procedures that result in a This, responses. again, should have alerted a Stephens, sentence of death. Zant v. 462 properly vigilant probe deep- trial court to more 862, 884-885, 2733, 2746-47, ly. Asked whether he murdered his wife "delib- L.Ed.2d 235 erately, premeditation with malice afore- circumstances, perfunc- Under such the court's thought,” interrupted: the defendant toiy sequence questions requiring only yes- really. THE DEFENDANT: Not answers, administered, swiftly and-no explained you? was inade- THE COURT: —as I’ve canvass, No, quate. including por- The entire those THE DEFENDANT: I didn’t do it—I mean, her, guilty looking tions devoted to waiver of counsel and she I wasn't to kill but pleas charged, up on each of the various counts ended dead. knowingly inadequate quiet voluntarily that Moran waived to be ing of Moran competence. rights. On the But our Moran’s his because review of the doubts about hand, sequence finds same it state’s determination of voluntariness is de other adequate novo, that finding to determine questions this state court should not influ- knowing, intelligent, waivers were ence our own determination of this issue. inquiry requires voluntary, an which overcoming presumption from Far and rational choice. competence plus free waiver, against post-convie- the state court “indulge ev- court was The trial hearing provided tion that Moran’s evidence against waiver.” ery presumption reasonable knowing, intelligent, decision was not Brewer, If 97 S.Ct. at 1242. voluntary. post-conviction The relevant inadequate to estab- Faretta canvass was of Moran’s testi- evidence consisted competence, can it have been ade- lish how mony psychiatrists and that one of the quate to waiver? establish him for be- who had examined canvass, by find that the Faretta would pleaded guilty. fore he waived counsel itself, that Moran’s inadequate to establish testimony supplemented this rights knowing, was waiver constitutional indicating the medications he medical records voluntary. intelligent, and taking changed plea at the time he counsel, guilty and waived and with evidence Totality of the Circumstances. C. psychological effects of that medi- as to the was inade- the Faretta canvass Because presented cation. The no evidence at state the rest of the record quate, we must review hearing. whether, given totality to determine presented Moran raised The evidence circumstances, represents case one this guilty plea and new doubts about Moran’s instances which a waiver of those rare First, respects. it waiver of counsel in two rights affirmed de- constitutional should be theory provided support for the that Moran’s Balough, spite inadequate canvass. was, indeed, drugs plea affected he critical additional evi- F.2d at 1488-90. The given. strongly suggested This evidence totality to our dence on the record relevant taking medications Moran was when inquiry presented of the circumstances counsel guilty plea he and waived post-convic- entered Nevada state court at Moran’s sufficiently thought processes affected his majority does not examine hearing. tion voluntariness of his evidence, question call into other than to note decision.8 post-conviction Nevada state court concluded *17 Well, you you're charged you do that? that Did THE COURT: did, aforethought, at and Yes. malice shoot THE DEFENDANT: exchange, body with a almost the of Linda K. Vandervoort From this it into Id. at 30-32. deadly weapon, putting though a firearm. words the trial looks you Did do that? into Moran’s mouth. THE DEFENDANT: Yes. Finally, from his usual rote Moran deviated you deliberately so THE COURT: And did do taking the court that he was answers to inform premeditation? This, too, and with drugs. state-prescribed raises a host of THE DEFENDANT: No. questions Moran's waivers were about whether you about it before COURT: Did think THE intelligent. knowing, voluntary, and

you it? did really. Not THE DEFENDANT: taking by majority, the Moran was 8. As noted you deliberately? do it THE COURT: Did drugs prescription his to control four different mean, I don’t know. I THE DEFENDANT: that Moran testified cocaine-induced seizures. deliberately. you by I what mean I don’t know drugs away His claim his will to live. these took mean, purpose, pulled trigger but I I the on by evidence he the medical was corroborated ’ it; you plan doing know what I didn’t on drugs question have presented can that the mean? psychological which include powerful effects Well, previously ex- THE COURT: I've hallucinations, confusion, light-headedness, dis- plained you what is meant deliberation loss, drowsiness, orientation, memory and men- you premeditation. Deliberate means that depression. tal as a result of careful arrived at or determined evidence, post-convic- reviewing weighing After thought the consideration for "the defendant did not found that against proposed tion court action. Second, post post-eonvietion at the conviction RT at 158-159. The the evidence d/20/88 events, hearing supported adopted Moran’s contention that court Moran’s version of by possibly erroneous finding he was demoralized that: “Defendant was informed provided counsel about information Deputy his Public Defender that had he no degree possible defenses to first mur- lack they suggest- crimes defense and that lawyers der. Moran testified had penalty phase ed he concern himself with the by telling him him that he had demoralized of the murder cases.” Order at 3.9 no such defense: testimony of Doctor William O’Gor- Well, basically [my lawyers] I asked man, psychiatrists of two one who examined what, know, you going what we were to do. Moran to determine his to stand if And I’m not sure it was Mr. Gubler or trial, suggests lawyers that Moran’s were says they going Mr. Miller weren’t to wrong. legiti- have had a well worry the defense because there about inability mate defense based on his to form none, just really they going were specific requisite intent to a conviction of guilt phase to work on the of the trial or degree first murder. Doctor O’Gorman testi- penalty phase proceedings. of the murders], fied that “at the actual time [of large

if were under the [Moran] influence cocaine, plead particularly ... if I amounts of asked them could like free-base or crack, capacity they something, diminished or I don’t think he could form intent said, well, you can’t do that in Nevada. that moment.” RT at 15. Moran’s 4/20/88 present any give greater evidence as to the effect on him of follow we should credence to the drugs may ingested prior entry post-conviction findings he have court’s on this issue. plea. merely defendant testified that he Court, referring The Nevada without depressed penalty” and desired the death findings, to the court concluded added). (emphasis finding Order This thorough reading "a of the record reveals that patently testimony inaccurate. Moran’s about potential Moran’s counsel did discuss defenses drugs clearly qualifies the effect the had on him Dismissing Appeal (citing with him.” Order 2at drugs, as evidence about the effect of the as does during Moran's statements the Faretta canvass the natural inference to be drawn from the medi- attorneys and the fact that advised him descriptions drugs cal of the effects that the have against changing plea guilty). patients. finding sup- As the court’s is not 2254(d) requires presume Section us to correct record, ported by the we need not accord it a findings all of the of the various tribunals in this 2254(d). presumption § of correctness under findings to the case extent that the do not contra Court, reviewing The Nevada Mata, one dict 547, another. Sumner v. post-conviction hearing, also stated that ‘‘Moran (1981) presented no medical evidence ... which neces- ("Sumner ”). findings I But where the factual sarily established that the medication influenced the various state tribunals contradict one anoth him to such an extent that he was unable to er, which, inquire we must further to determine meaning consequences understand of his either, findings pre if of the is entitled to the plea.” Dismissing Appeal (empha- at 3-4 Order sumption of correctness. See Neuschafer added). places high sis This statement far too (9th Cir.1987) McKay, (evidentiary 807 F.2d 839 First, any burden on Moran. defendant hearing warranted to resolve inconsistent find years three-and-a-half after the fact to establish court). ings by supreme the trial court and state "necessarily” that medication influenced him in case, give greater In this we should credence any particular way virtually impossible. would be post-conviction judge’s credibility findings. to the *18 Second, ability Moran’s to understand the mean- thing, judge presided For one the same over both consequences goes and of his choice entry pleas post-conviction the initial and the competent plead guilty. whether or not he was judgment credibility so that his should above, knowing, intelligent As discussed given special weight. Significantly, the Neva- voluntary rights requires waiver of constitutional Supreme explain why da Court did not it did not competence. more than mere The waiver also adopt post-conviction finding court’s that product must be "the of a free and rational Moran's counsel informed Moran that he had no Alford, choice.” 91 S.Ct. at 164. defense. Nor did the Nevada court even refer to finding The Nevada Court's does not finding. Finally, that the Nevada whether the wrong address medications affected Mor- when it concluded that Moran made ability an’s to make such a choice. inconsistent statements. It was not inconsistent say once that he discussed his 9. The attorneys, say court and the Nevada Su- defenses with his to later that preme agreement attorneys Court were not in about this his discussion with the consisted of his determination, attorneys’ factual but for the reasons that statements that he had no defense. to ask bothered attorney’s apparently never America, on this matter. opinion UNITED STATES O’Gorman

Doctor Plaintiff-Appellee, at this enough information not have We do viability of such a juncture to evaluate the reason, Moran’s counsel’s For this

defense. Vinny GILBERT, Defendant-Appellant. defense, statement, would had no that Moran itself, No. 93-10308. enough, by to demonstrate not be of counsel guilty plea waiver Moran’s Appeals, United States Court voluntary. intelligent and knowing, were Ninth Circuit. lawyer’s Still, demoralizing effect of likely to have erroneous statement possibly 25, 1995.* Submitted Jan. already depressed with Moran’s combined 30, 1995. Jan. Memorandum Filed mind-numbing and with mental state fight choice not drugs subvert Moran’s Opinion Filed June Order and for his life. inade- sum, canvass was the Faretta mental Moran’s in this case because

quate Further- insufficiently probed.

state was cases where-

more, of the rare this is not one record, adequate

in there is evidence canvass, demonstrate that

outside of plea were guilty of counsel and

the waiver voluntarily ten- intelligently, and

knowingly, Rather, of the record an examination

dered. impression totality only magnifies the

in its guilty counsel Moran’s waiver of product of a free not the

plea were choice.

rational this, of the Pate and because

Because

violation, district court to the would remand inquire evidentiary hearing to about

for an lawyers drugs, what

the effect of the him, Moran’s waiver and whether

told voluntary intelligent and knowing,

plea were finds. court light of what the district *19 * 34(a); 34-4. 9th Cir.R. unanimously suitable for panel finds this case Fed.R.App.P. argument. decision without oral