We must determine whether a habeas petitioner's federal constitutional rights were violated by a state court's failure to hold a pre-trial competency hearing.

* Petitioner Mike Hernandez was arrested following the shooting death on January 16, 1982, of a man who, at least in Hernandez's mind, was having an affair with Hernandez's wife. The evidence tying Hernandez to the killing was substantial. Witnesses observed Hernandez's vehicle at the scene of the shooting, which was identified by the license plate number. The murder weapon was discovered on the very day of the slaying, buried on Hernandez's in-laws' property. Hernandez's alibi was implausible.

At the request of Hernandez's counsel, a hearing was scheduled for April 27, 1982, to determine Hernandez's competency to stand trial. On the appointed day, however, Hernandez's trial counsel declared that he did not believe a finding of incompetency was warranted. Thus, no incompetency hearing was held. Instead, Hernandez moved for a transfer from the San Luis Obispo County Jail, in which he had been incarcerated since his arrest, to the Santa Barbara County Jail. In support of the motion, Hernandez personally described for the court the reasons behind his request. Hernandez's statement was comprised of (in the words of the California Court of Appeal) "bizarre statements of mistreatment in the jail," including allegations of forced drug injections by jailers and sexual assaults by fellow prisoners.1

On April 28, the following day, Hernandez appeared before the court for his pre-trial hearing. At that time, the trial court denied the motion for jail transfer. The case proceeded to trial, commencing on May 4, 1982.

In the midst of his jury trial, Hernandez withdrew his plea of "not guilty" and entered a plea of "not guilty by reason of insanity." The trial court postponed proceedings in the trial so three mental health experts could examine Hernandez and report their opinions concerning his sanity at the time of the offense.

By agreement of the parties, the sanity issue was submitted directly to the trial court on May 17, 1982. The jury was excused. The court considered the written reports of the three appointed experts, plus the written report of Dr. Lawrence Ratner, who examined Hernandez before the trial for defense counsel, plus the transcript of the April 27 hearing. The court found Hernandez sane and convicted him on one count of second degree murder. The petitioner was sentenced to fifteen years to life (with a two-year enhancement for use of a weapon) on June 14, 1982. The state appellate court affirmed the conviction on November 17, 1983.

In late 1985, Hernandez filed a petition for writ of habeas corpus with the California Supreme Court. The petition was denied summarily. Hernandez followed with a habeas petition in federal district court, which was dismissed for failure to exhaust state remedies. A subsequent (and second) state habeas petition filed with California's highest court was also denied summarily.

The present section 2254 habeas petition was filed January 12, 1988. The petition asserted that the trial court had violated Hernandez's right to due process by failing to institute proceedings to determine Hernandez's competence to stand trial, and by permitting statements taken in violation of Miranda to be used against him. A magistrate issued an order to show cause, and later filed a report and recommendation without the benefit of an evidentiary hearing. The magistrate concluded that Hernandez was not entitled to the writ because (1) his Miranda claim was precluded by his plea of "not guilty by reason of insanity," and (2) his competency claim was not borne out by the evidence.

The district court adopted the magistrate's report and dismissed the petition on August 29, 1988. Hernandez appeals, focusing exclusively on the competency claim. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253. We affirm.

Hernandez first argues that he presented sufficient evidence of his mental incompetence to entitle him to a pre-trial competency hearing.2 This evidence consisted chiefly of Hernandez's delusional statements made to the court to support a motion for jail transfer. The district court ruled that no hearing was necessary at that stage because the state trial court reasonably found that the evidence failed to raise a genuine doubt as to Hernandez's competence.

The conviction of an accused person while legally incompetent to stand trial is a clear violation of the constitutional guarantee of due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815 (1966). If a state trial court does not employ procedures designed to protect against the trial of an incompetent, the resultant conviction must be reversed. See id. at 386-87, 86 S.Ct. at 842-43; see also Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 903-04, 43 L. Ed. 2d 103 (1975). The trial court's constitutional obligation is discharged by holding a hearing to determine competency. See Pate, 383 U.S. at 387, 86 S.Ct. at 843.

A Pate hearing is not required, however, absent a "substantial" or "bona fide" doubt of competency. See de Kaplany v. Enomoto, 540 F.2d 975, 979-83 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977).3 In determining whether or not there is substantial doubt, "the trial judge must evaluate all the evidence." Chavez, 656 F.2d at 518. On appeal, we inquire "whether a reasonable judge ... should have experienced doubt with respect to competency to stand trial." de Kaplany, 540 F.2d at 983; see also Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir.) (Wisdom, J.) ("The test is an objective one."), cert. denied, 444 U.S. 943, 100 S. Ct. 299, 62 L. Ed. 2d 310 (1979); cf. Smith v. Ylst, 826 F.2d 872, 875 (9th Cir.1987) (stating de Kaplany test for question of counsel's competency), cert. denied, 488 U.S. 829, 109 S. Ct. 83, 102 L. Ed. 2d 59 (1988).

The transcript of Hernandez's statements to the trial court concerning the alleged assaults upon his person is set forth in the margin.4 This story was evidently delivered with an equanimity which the trial court found inconsistent with incompetency. Hernandez now invites this court to declare such a tale sufficient to raise doubt as to competency as a matter of law.

The invitation is declined. Apart from this tale, Hernandez did not give any indication of mental illness or hallucinations. In United States v. Auen, 846 F.2d 872 (2d Cir.1988), on which Hernandez relies, defendant "consistently exhibit[ed] behavior and beliefs" of an extraordinarily bizarre nature. Id. at 878. While Hernandez's beliefs were undeniably weird, there was nothing like Auen 's extended time-period of odd behavior, the defendant's unwillingness to retain a lawyer or otherwise provide for his own defense, nor the repeated uncooperative conduct toward the proceedings. See id. at 873-76. Unlike the situation in Auen, there is no indication here that Hernandez could not rationally consult with his lawyer or understand the proceedings against him.

Furthermore, in Auen, counsel for the government indicated that defendant was paranoid and held "irrational beliefs." See id. at 878. Here, Hernandez's own counsel stated that Hernandez was competent. While the opinion of Hernandez's counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings. See United States v. Clark, 617 F.2d 180, 186 (9th Cir.1980) (fact that defendant's attorney considered defendant competent to stand trial was significant evidence that defendant was competent). We deem significant the fact that the trial judge, government counsel, and Hernandez's own attorney did not perceive a reasonable cause to believe Hernandez was incompetent. See United States v. Richardson, 586 F.2d 661, 667 (9th Cir.1978).

Hernandez points to the psychological evaluation report prepared by Dr. Lawrence Ratner at defense counsel's behest, issued approximately three months prior to trial, as further evidence of incompetency. Dr. Ratner's report was evidently not filed with the court until after the trial had begun, and thus could not have contributed to any pre-trial determination of doubt. See Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972) (per curiam) (" '[e]vidence' encompasses all information properly before the court"). Moreover, Dr. Ratner's opinions were derived solely from two interviews with Hernandez; Dr. Ratner was not provided with records reflecting Hernandez's past medical or psychological history. See United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986) (psychiatrist's testimony insufficient to establish bona fide doubt where it was speculative and opinion was reached without benefit of previous medical or psychiatric records), cert. denied, 481 U.S. 1006, 107 S. Ct. 1631, 95 L. Ed. 2d 204 cert. denied, 482 U.S. 930, 107 S. Ct. 3215, 96 L. Ed. 2d 702 (1987). Most significantly, while Dr. Ratner found Hernandez to be delusional and depressed, and that his mental deterioration "would have prevented him from appreciating the criminality of his alleged misconduct," he offered no opinion as to Hernandez's competence to stand trial at that time or (obviously) several months later, when the trial was held.

Weighing all of the evidence, we cannot say that it was a constitutional violation not to hold a competency hearing simply because of Hernandez's odd beliefs regarding his treatment in jail. "[A] defendant's bizarre actions or statements, or counsel's statement that the defendant is incapable of cooperating in his own defense, or even psychiatric testimony need not alone raise sufficient doubt." United States v. Ives, 574 F.2d 1002, 1004 (9th Cir.1978) (emphasis in original) (discussing de Kaplany ). The trial judge and defense counsel had the opportunity to converse with Hernandez and observe his demeanor, and they concluded that Hernandez's competence was not in serious doubt. Nothing in the nature of the crime suggested otherwise. See Speedy v. Wyrick, 748 F.2d 481, 486 (8th Cir.1984) ("There was nothing about Speedy's offense ... to indicate that it was other than a crime of passion.") (contrasting defendant's murder of his ex-wife with the facts in Drope, which involved the defendant's participation in the gang rape of his own wife), cert. denied, 471 U.S. 1019, 105 S. Ct. 2028, 85 L. Ed. 2d 308 (1985). The state trial court's failure to hold a competency hearing does not amount to constitutional error on these facts.

Hernandez also contends that, under state law, the trial court was required to conduct a competency hearing and make an express finding of competence once it had scheduled the hearing. The asserted failure to comply with state law, Hernandez maintains, constituted a violation of the fourteenth amendment's due process clause. While alleged violations of state law per se are not cognizable in a federal habeas corpus petition, see 28 U.S.C. Sec. 2254(a) (1988), federal courts sitting in habeas can and will review an application of state law for alleged constitutional violations. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S. Ct. 2227, 2229, 65 L. Ed. 2d 175 (1980); see also McQueary v. Blodgett, 924 F.2d 829, 831 n. 1 (9th Cir. Jan. 10, 1991) ("The writ of habeas corpus exists precisely to allow federal-based challenges to state law.") (emphasis added); Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir.) ("errors of state law do not concern us unless they rise to the level of a constitutional violation"), cert. denied, --- U.S. ----, 110 S. Ct. 344, 107 L. Ed. 2d 332 (1989).

Federal courts are extraordinarily chary of entertaining habeas corpus violations premised upon asserted deviations from state procedural rules. See, e.g., Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir.1988) (publishing disposition in unmeritorious appeal "only to make as clear as we can that procedural errors committed in the course of a state criminal trial are not a ground for federal habeas corpus") (citing Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 948, 71 L. Ed. 2d 78 (1982)), cert. denied, 489 U.S. 1088, 109 S. Ct. 1552, 103 L. Ed. 2d 855 (1989). As the Supreme Court stated when considering a habeas petition premised upon a purportedly faulty jury instruction:

Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). We have pointed out that the Great Writ is available only where "the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (citation omitted), cert. denied, 478 U.S. 1021, 106 S. Ct. 3336, 92 L. Ed. 2d 741 (1986).

Hernandez contends that under California law, a state court loses jurisdiction to try and to sentence a criminal defendant from the time a competency hearing is ordered until that hearing is actually held. He further contends that a writ of habeas corpus lies for state prisoners convicted by courts which lacked jurisdiction under state law. Indeed, some courts have held that an absence of jurisdiction in the convicting court is a basis for federal habeas corpus relief cognizable under the due process clause. See, e.g., Lowery v. Estelle, 696 F.2d 333, 337 (5th Cir.1983) (state court jurisdiction); cf. Schlomann v. Moseley, 457 F.2d 1223, 1227 (10th Cir.1972) (military court martial), cert. denied, 413 U.S. 919, 93 S. Ct. 3068, 37 L. Ed. 2d 1041 (1973). We are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law. See United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 208-09 (2d Cir.1969) (regarding same proposition with considerable skepticism); see also Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986) (finding similar question not cognizable where state supreme court had already ruled that trial court had jurisdiction as a matter of state law).5 We need not make that determination today, however, because Hernandez has failed to persuade us that California law was violated at all. See id. (examining state law to determine whether convicting state court had jurisdiction); Moore v. McCotter, 781 F.2d 1089 (5th Cir.1986) (same); Herrington, 415 F.2d at 209-11 (same).

Hernandez urges that California law mandates an express determination of competency once a hearing is ordered. This contention is based on language from two recent opinions of the California Supreme Court, People v. Hale, 44 Cal. 3d 531, 244 Cal. Rptr. 114, 749 P.2d 769 (1988), and People v. Marks, 45 Cal. 3d 1335, 248 Cal. Rptr. 874, 756 P.2d 260 (1988). Those cases held that "[o]nce the trial court ordered the hearing ... it could not simply vacate the order, sub silentio." Hale, 44 Cal. 3d at 540, 244 Cal.Rptr. at 120, 749 P.2d at 774. The trial court's jurisdiction to proceed is divested "pending express determination" of the issue. Id. at 541, 244 Cal.Rptr. at 121, 749 P.2d at 775; see also Marks, 45 Cal. 3d at 1344, 248 Cal.Rptr. at 880, 756 P.2d at 267 (quoting Hale with emphasis on "express"); Cal.Penal Code Sec. 1368(c) (West 1982) ("[W]hen an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.").6

At the threshold, we are not convinced that the trial court in Hernandez's case ever ordered a section 1368 competency hearing. Hernandez was arraigned on an amended information on Friday, April 23, 1982. The court accepted Hernandez's plea and indicated that the scheduled dates for the pre-trial hearing (April 28) and trial (May 3) would remain unchanged. At that time, no mention was made of a hearing set for April 27, 1982, and certainly there was no indication that anyone questioned Hernandez's competence to stand trial.

The transcript from Hernandez's April 27 appearance also suggests that the trial judge had not ordered a competency hearing. At the onset of the "hearing," the trial judge noted that the proceeding "was specially set at the request of [defendant's counsel]." Hernandez's attorney explained that the hearing "was put on calendar because I told [the prosecutor] of my intention to raise the issue of 1368, incompetency," based upon a weekend conversation between Hernandez and counsel. Thus, the hearing presumably was scheduled with the court on Monday, April 26. Counsel then explained that he no longer felt a hearing was necessary, based upon his conversation with Hernandez that same afternoon. This colloquy indicates to us that the judge never ordered a competency hearing, despite the fact that an appearance was scheduled in order to give counsel an opportunity to explore the competency issue.7

Assuming that the trial court did "order" a competency hearing in the sense meant by Hale and Marks, we are not persuaded that the California Supreme Court intended its broad language to cover a situation such as this. The "mandatory" language of both the statute and the recent cases is premised upon the trial judge's actual doubt of the defendant's competency. See Cal.Penal Code Sec. 1368(a) (West 1982) (predicating entire procedure on trial judge's doubt of competency); see, e.g., Marks, 45 Cal. 3d at 1340, 248 Cal.Rptr. at 877-78, 756 P.2d at 264 (quoting a guide for trial judges which states "a hearing ... must be held if the trial judge has declared a section 1368(a) doubt"); Hale, 44 Cal. 3d at 541, 244 Cal.Rptr. at 120, 749 P.2d at 775 ("once a doubt has arisen as to the competence of the defendant ... the trial court has no jurisdiction to proceed"). In both Hale and Marks, the trial court specifically stated for the record that doubt had been raised as to defendant's sanity. See Marks, 45 Cal. 3d at 1338, 248 Cal.Rptr. at 876, 756 P.2d at 263 (quoting trial court's expression of doubt with emphasis); Hale, 44 Cal. 3d at 535 & n. 5, 244 Cal. Rptr. at 116 & n. 5, 749 P.2d at 771 & n. 5 (quoting trial judge). In contrast, the record in this case contains no indication that the trial judge ever harbored any doubts as to Hernandez's competence to stand trial.

Hernandez argues that the trial judge's reason for ordering the hearing (including whether he harbored any doubts himself) is irrelevant to this question, because the appellate court is not to second-guess the trial court's finding that a hearing was required. Petitioner's argument, however, appears to assume that which is in doubt--that the trial court truly did find that a hearing was required. We are simply not persuaded that the California Supreme Court would require a hearing every time a trial judge who harbors no doubts whatsoever about the defendant's competence affords counsel the opportunity to investigate her client's psyche. There is no showing in this record of a deprivation of due process amounting to a violation of Hernandez's constitutionally protected rights.

Because we conclude that the federal constitution did not require a pre-trial competency hearing for Hernandez, we need not decide whether the sanity trial conducted by the trial court pursuant to Hernandez's "not guilty by reason of insanity" plea sufficed as a substitute. The petition for a writ of habeas corpus was properly denied.

AFFIRMED.