WILLIAM H. ORRICK, District Judge.
Petitioner Joseph Girk seeks federal habeas relief from his state court conviction for two counts of first degree burglary and two counts of petty theft with multiple priors, and his "three strikes" sentence of 25 years to life for each of the burglary convictions. Girk challenges his convictions on the grounds that: (i) the trial court did not consider substantial evidence suggesting petitioner was incompetent to stand trial, and thus denied petitioner due process by failing to initiate competency proceedings; (ii) petitioner received ineffective assistance of counsel because his attorney failed to present evidence regarding his incompetency; and (iii) petitioner's "three strikes" sentence violates the Eighth Amendment. For the reasons set forth below, none of these claims have merit. Girk's petition for habeas relief is DENIED.
The California Court of Appeal summarized the facts and procedure of the case as follows:
Ex. A to Petition, People v. Girk, No. A137179, 2014 WL 2510503, at *2 (Cal. Ct. App. June 3, 2014). Girk's efforts to overturn his conviction in state court were unsuccessful. This federal habeas petition followed.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal district court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
Girk argues that because substantial evidence was presented to the trial court suggesting that Girk was incompetent to stand trial, the trial court should have conducted a competency hearing and its failure to do so violated Girk's right to due process. Pet. at 37-61.
When a trial court is presented with "substantial evidence of incompetence" of a criminal defendant, "due process requires that [it] conduct a full competency hearing." People v. Jones, 53 Cal.3d 1115, 52 (1991); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994) ("due process does not require a court to order a psychiatric evaluation or conduct a competency hearing unless the court has a good faith doubt concerning the defendant's competence," based upon a showing of "substantial evidence of incompetence"). "[S]ubstantial evidence of incompetence may arise from separate sources, including the defendant's own behavior" but "a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." People v. Ramos, 34 Cal.4th 494, 507-08 (2004); see also United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014) ("Relevant evidence falls into three broad categories: medical history, the defendant's behavior in and out of court, and defense counsel's statements about the defendant's competency."). On habeas review, as explained by the Ninth Circuit:
Chavez v. U.S., 656 F.2d 512, 516 (1981).
Girk argues there was substantial evidence presented to the trial court that raised a question of competence, specifically: (1) his history of mental illness; (2) his history of suicide attempts; (3) his prescription of psychotropic drugs while he was serving his initial sentence, including anti-psychotics and anti-depressants; (4) his active use of an anti-depressant (Sinequan) during the trial proceedings that can cause significant side effects that "could" have interfered with his ability to appreciate the nature of the proceeding and assist his counsel; (5) evidence that he "might" be developmentally disabled; and (6) the odd facts and "juvenile" nature of the burglaries (including defecating on the bathroom floor and on the towels, and stealing personalized jerseys and other items of no value).
The main evidence that Girk suffered from mental health problems comes from a report prepared seven months prior to trial by Dr. Douglas M. Rosoff, the Medical Director of Mendocino County Mental Health in Ukiah in January 2012. Pet. at 18-19. Dr. Rosoff evaluated Girk "for the purpose of assessing his mental state at the time of the commission of the offense and to furnish recommendations that may be helpful in formulating a defense strategy." CT 490. In his report, Rosoff noted that prior to Girk's commission of the 2009 offenses, he had been in county jail for over two years and had been "treated for psychiatric problems" and classified as CCCMS "due to serious mental health problems." CT 491. He was prescribed a number of anti-depressant and anti-psychotic medications during that time. Id. Rosoff also reported that Girk had attempted suicide at some point in prison. Id. However, as of January 2012, before trial, Rosoff concluded that Girk was "presently competent to stand trial." CT 492. He also concluded that Girk tolerated his Sinequan "without side effects." CT 490-491. The Rosoff report was not presented to the trial court until the October 2012, during sentencing and after Girk had been convicted.
In addition to Rosoff's report, Girk also relies on other facts. Prison medical records from 2009 show that he was prescribed various anti-psychotic and anti-depressant medications, and had been diagnosed with depression, dysphoric mania, and bipolar disorder. Dkt. No. 13, Declaration of Richard Such, Ex. B. Records during 2011 and 2012 (including during the trial) show that he was still on Sinequan in order to be "clear" for trial. Id., Ex. D at 41-43.
The California Court of Appeal considered this evidence and rejected Girk's due process argument. It wrote:
People v. Girk, 2014 WL 2510503, at *5.
The California Court of Appeal reasonably determined that a competency hearing was not required. First, there was no argument or evidence presented at trial suggesting that Girk was incompetent to stand trial. See, e.g., Boyde v. Brown, 404 F.3d 1159, 1167 (9th Cir.), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005) ("perhaps the most telling evidence that Boyde was competent at trial is that neither defense counsel—who would have had every incentive to point out that his client was incapable of assisting with his defense—nor the trial court even hinted that Boyde was incompetent.").
Id. (emphasis in original).
Girk likens his case to People v. Ary, where the California Court of Appeals reversed a murder conviction because there was substantial evidence that the defendant was mentally retarded. 118 Cal.App.4th 1016, 20 (2004). There, two healthcare professionals testified that the defendant was mentally retarded. Id. at 1021-22. There is no such testimony here, only the passing reference by Rosoff that despite "learning disabilities" Girk was competent to stand trial. Girk also relies on Moran v. Godinez, 972 F.3d 263 (9th Cir. 1992). There, the Ninth Circuit held that the trial court erred in failing to conduct a competency hearing when a defendant fired his attorneys and pleaded guilty to a capital offense, when the court knew of defendant's attempted suicide (at the time of the capital offenses), defendant's ongoing depression, defendant's terse responses to the court's questioning, and defendant's intent to plead guilty and put on no mitigating evidence. The court also failed to consider the effect of defendant's medications during trial on his competency. Those factors are wholly absent here.
This claim fails.
Related to the prior argument, Girk contends that his attorney's failure to present evidence during the trial and at the sentencing hearing about his mental health issues and related incompetency meant his counsel was constitutionally ineffective. The evidence Girk argues should have been adduced is: (1) evidence that Girk was taking a specific level Sinequan, a psychotropic medication that causes side-effects that "could" have affected Girk's ability to understand and assist his counsel during the proceedings; and (2) evidence regarding Girk's borderline intellectual functioning. Pet. at 61-66. This claim was raised in Girk's state court Petition for Habeas Corpus, Ex. 11, and the California Supreme Court summarily denied the claim.
In order to show constitutionally ineffective assistance of counsel, a petitioner must establish that their attorney's representation fell below an objective standard of reasonableness, despite application of a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 687-689 (1984). The petitioner must also demonstrate "a reasonable probability" that but for the errors, the result of the proceeding would have been different. "A reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. at 694. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding"— the errors must be "so serious" as to "deprive the defendant of a fair trial." Id. at 687, 693.
On habeas review, where "a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden must still be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98 (2011). Therefore, the court must "determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 102. "The pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. at 101.
Here, the California Supreme Court could have reasonably denied Girk's claim because he failed to demonstrate both incompetence and prejudice. As an initial matter, his trial counsel's defense strategy was not unreasonable. Girk argues that the trial attorney did not research and present to the court the side-effects of taking Sinequan, which include drowsiness, dizziness, confusion, and disorientation. Traverse at 14. However, there is no evidence that Sinequan affected Girk's competency during trial. Instead, the evidence from Dr. Rosoff's report is that only seven months earlier, Girk was tolerating a "high dose" of that medication. Girk's counsel knew about the medication, knew about Rosoff's statements, and saw Girk during trial. It was not unreasonable for the California Supreme Court to conclude that counsel's alleged failure to research potential side effects that "could" affect Girk, when there was no evidence it was affecting him, was not ineffective assistance of counsel.
In addition, the California Supreme Court could also have reasonably concluded that counsel made a strategic decision to not focus — at trial or sentencing — on the issue of competency, in order to portray Girk at sentencing as someone who understood his actions and showed remorse for them. Indeed, at sentencing trial counsel submitted letters and the testimony of petitioner's brother to convey that petitioner understood that his actions were wrong and regretted them, that he committed his crimes as a result of substance abuse, and, accordingly, would benefit from rehabilitation. RT 308, 309, 320-322; CT 478-480. If trial counsel were to show proof of incompetence, this would have harmed the sentencing strategy that characterized defendant as someone who was rational and regretful.
Similarly, there is no evidence in the record that Girk in fact exhibited signs of "borderline" intellectual functioning that impacted his abilities to comprehend and assist at trial, such that his attorney provided ineffective assistance of counsel. Dr. Rosoff did not conclude that Girk had "borderline intellectual functioning," only that Girk had impaired attention and memory (and noted the existence of learning disabilities); Rosoff concluded that those disabilities did not render him incompetent. CT 492-493. Girk also relies on prison medical records (that were not before the trial court) indicating that he had "borderline intellectual functioning, poor memory, and impaired attention and concentration." Even if I considered this, those records do not expressly contradict Rosoff's findings (that were brought to the trial court on sentencing) that Girk had some significant mental deficits but was nonetheless competent at least as of January 2012. Because there is no significant evidence in the record to show that Girk may have been incompetent at the time of trial, his trial counsel's failure to bring the potential impact of side-effects of Girk's medication and Girk's intellectual functioning issues to the court's attention in aid of a competency hearing does not support a claim of counsel incompetence. There is, therefore, no need to address prejudice under the second Strickland prong.
The ineffective assistance of counsel claim is denied.
Girk argues that his sentence for 50 years to life for two convictions of residential burglary with only prior non-violent convictions violates the "gross proportionality" principle established by the Supreme Court.
In In re Coley, the Court affirmed the 25-year-to-life sentence of a defendant who had many prior "serious" felony convictions, but was most recently prosecuted only for neglecting to update his sex offender registration within the required time period. In re Coley (2012) 55 Cal.4th 524. As explained in Coley, "it is now firmly established" that the concept of proportionality is central to the Eighth Amendment and "the Constitution's ban on cruel and unusual punishments is the `precept of justice that punishment for crime should be graduated and proportioned to the offense.'" Id. at 538 (quoting Graham v. Florida, 560 U.S. 48, 59 (2010). That determination depends not only on whether the "triggering offense" "bore both a rational and substantial relationship to the antirecidivist purposes of the Three Strikes law" but also considers the nature and extent of the defendant's previous criminal history. Id. at 531.
In this case, the California Court of Appeal "had no difficultly" applying the teachings from Coley and concluding that the sentence imposed was Girk was not in violation of the Eighth Amendment.
People v. Girk, 2014 WL 2510503, at *9.
Girk attempts to distinguish Coley on the ground that his prior convictions (for second degree burglary, receipt of stolen property, and first degree burglary; none of which were violent felonies) are not comparable to the prior convictions in Coley that were "extremely serious" and "heinous." While not particularly heinous, Girk's criminal history was extensive and resulted in significant prison time. Those prior convictions, combined with his also significant history of parole violations, crated a reasonable basis to conclude that application of the "three strikes" sentence seeking to punish recidivist criminals was appropriate.
The facts of this case fall closer to those addressed by the United States Supreme Court in Lockyer v. Andrade, 538 U.S. 63, 70 (2003). There, the Court upheld a sentence of two consecutive terms of 25 years to life for stealing approximately $150 in videotapes based in large part on the petitioner's lengthy history of prior non-violent felonies. Similarly, in Ewing v. California, 538 U.S. 11, 29 (2003), a plurality of the Court upheld a 25 years to life sentence for stealing three golf clubs in light of the petitioner's "long history of felony recidivism," when the prior convictions were for serious but not violent crimes. See id. at 29-30 ("Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior `strikes' were serious felonies including robbery and three residential burglaries. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.").
The California Court of Appeal's decision was not contrary to or an unreasonable application of federal law. This claim fails.
For the foregoing reasons, the Petition for Writ of Habeas Corpus is DENIED.
