Maxwell v. Roe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLIFTON MAXWELL,  No. 08-55534

Petitioner-Appellant,

D.C. No.

v.

 5:01-cv-00131-

ERNIE ROE, Warden California SGL-RZ

State Prison, Los Angeles County,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

December 10, 2009—Pasadena, California

Filed May 20, 2010

Before: Harry Pregerson, John T. Noonan and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

7207

MAXWELL v. ROE 7211

COUNSEL

Patrick Morgan Ford, San Diego, California, for plain-

tiff-appellant Clifton Wayne Maxwell.

Edmund G. Brown, Jr., Attorney General of California, Gary

W. Schons, Senior Assistant Attorney General, Kevin Vienna,

Supervising Deputy Attorney General, and Rhonda

Cartwright-Ladendorf, Supervising Deputy Attorney General,

San Diego, California, for respondent-appellee Ernie Roe,

Warden.

OPINION

PAEZ, Circuit Judge:

A criminal defendant has a constitutional due process right

not to be tried or convicted while incompetent to stand trial.

This right not only assures that a defendant has the present

ability to consult with counsel, to understand the nature and

object of the proceedings against him, and to aid in the prepa-

ration of his defense, Dusky v. United States, 362 U.S. 402,

7212 MAXWELL v. ROE

402 (1960), it is “fundamental to an adversary system of jus-

tice.” Drope v. Missouri, 420 U.S. 162, 172 (1975).

Here, Clifton Wayne Maxwell appeals from the district

court’s judgment denying his petition for a writ of habeas cor-

pus. Maxwell argues that at the time of his January 1998 state

court trial for first degree murder he was incompetent to stand

trial and that the state court denied him due process in failing

to hold, sua sponte, a competency hearing. At the time of

trial, Maxwell had a history of mental illness, frequently

refused to take his prescribed antipsychotic medications, was

unable to verbally or physically control himself in the court-

room, and exhibited increasingly paranoid and psychotic

behavior that impaired his communication with defense coun-

sel and reasoning regarding his defense. Furthermore, during

the trial, Maxwell attempted suicide and spent a substantial

portion of the trial involuntarily committed to a hospital psy-

chiatric ward. Despite these circumstances, the trial judge

never doubted Maxwell’s competence.

Because we conclude that the state appellate court’s deci-

sion to affirm the trial court’s finding that Maxwell was not

entitled to a hearing on his competence was based on an

unreasonable determination of the facts in light of the evi-

dence known by the trial judge at the time of trial and an

unreasonable application of federal law as established by

Drope, and Pate v. Robinson, 383 U.S. 375 (1966), we

reverse and remand.1

I. Factual and Procedural History

On December 27, 1994, Maxwell discovered his car had

been stolen from his stepfather’s garage. Several days later,

Maxwell and four other men drove to the home of Jerry Jef-

ferson, the person who they believed stole Maxwell’s car.

Although Maxwell was unarmed, three of the other four men

1

We have jurisdiction pursuant to 28 U.S.C. § 2253.

MAXWELL v. ROE 7213

were armed. After the missing car was found in Jefferson’s

garage, two of the armed men approached the house, fired

shots, and killed Jefferson.

In July 1995, Maxwell and the two shooters were charged

in Riverside County Superior Court with first degree murder.

The three defendants were tried before two separate juries:

one for Maxwell and one for the other two co-defendants. As

pretrial proceedings progressed, Maxwell’s defense counsel

expressed doubt about Maxwell’s competence to stand trial.

The trial court suspended criminal proceedings pursuant to

California Penal Code section 1368 and ordered a competence

determination. Between June and October 1996, five psychia-

trists evaluated Maxwell. Four of the five opined that Max-

well was feigning or at least grossly embellishing a psychosis

and that he was competent to stand trial. The fifth doctor filed

a report in which he concluded that Maxwell was incompetent

to stand trial. In December 1996, after considering the psychi-

atrists’ reports and opinions, Judge Christian F. Thierback of

the Riverside County Superior Court found Maxwell compe-

tent to stand trial and reinstated criminal proceedings.

In January 1998, Maxwell’s case was assigned to Judge

Patrick F. Magers for trial. As we explain in greater detail

below, during his trial, Maxwell’s behavior in and outside the

courtroom was erratic, irrational, and disruptive. Indeed,

before the jury ever entered the courtroom, Judge Magers

found Maxwell posed a danger to court staff and defense

counsel and had Maxwell removed. During trial, Maxwell’s

counsel repeatedly alerted the court that Maxwell’s condition

was worsening and that communication with Maxwell was

severely strained. The trial judge reviewed the 1996 psychiat-

ric competency evaluations and concluded that any sign that

Maxwell was mentally impaired was feigned. Approximately

half-way through the trial, Maxwell attempted suicide with a

razor blade and was sent to Riverside General Hospital for a

72-hour psychiatric hold. The court concluded that the suicide

attempt was feigned and accordingly found that Maxwell’s

7214 MAXWELL v. ROE

absence was voluntary. After two psychiatrists evaluated

Maxwell, his initial 72-hour psychiatric hold was extended to

a 14-day involuntary psychiatric hold. Nevertheless, the trial

proceeded. After a ten-day trial that spanned the month of

January, a jury that never saw Maxwell convicted him of first

degree murder. One of Maxwell’s co-defendants was acquit-

ted and the other was convicted of second degree murder. The

court sentenced Maxwell to prison for twenty-five years to

life.

Maxwell appealed. While his appeal was pending, Maxwell

also petitioned the state court of appeal for a writ of habeas

corpus. In October 1999, in an unpublished opinion, the Cali-

fornia Court of Appeal affirmed Maxwell’s conviction and

denied his petition for a writ of habeas corpus. The California

Supreme Court denied Maxwell’s petition for review without

comment. Thereafter, on two separate occasions, Maxwell

petitioned the state supreme court for habeas relief. Both

times the court denied his habeas petition without comment.

In February 2001, Maxwell filed a timely petition for a writ

of habeas corpus in federal district court. The assigned magis-

trate judge prepared a Report and Recommendation recom-

mending that the petition be denied and dismissed with

prejudice. The report found that despite Maxwell’s “certainly

disruptive and allegedly suicidal behavior, [and] extensive

pharmacopeia of prescribed antipsychotic medication,” the

evidence was “insufficient to raise a bona fide doubt that

[Maxwell], previously diagnosed as competent and malinger-

ing, had become truly incompetent;” and therefore, “the state

courts . . . neither acted in a manner contrary to federal law

as determined by the Supreme Court nor unreasonably applied

that law.” In November 2001, the district court adopted the

magistrate judge’s findings and conclusions and denied Max-

well’s petition. Maxwell appealed, arguing that he was incom-

petent to stand trial and that the trial court’s failure to conduct

a competency hearing when presented with substantial evi-

dence of incompetence violated his due process rights.

MAXWELL v. ROE 7215

In Maxwell v. Roe, 113 Fed. Appx. 213 (9th Cir. 2004), we

reviewed the district court’s November 2001 judgment.

There, we noted that

Maxwell’s behavior was erratic whether he was in

court or in jail. He was unable to control himself in

pretrial proceedings and was involuntarily commit-

ted several times while in jail awaiting trial, and

once during trial. Because he repeatedly waived his

right to be present at trial, the jury that convicted

Maxwell never actually saw him.

Maxwell, 113 Fed. Appx. at 216. We further noted that “Max-

well’s sustained erratic behavior, in light of the long interval

between his competency evaluations and his trial” presented

a relatively “compelling argument for incompetency . . . .” Id.

However, because it was not clear from the record what facts

relating to Maxwell’s competence were known by the state

trial court at the time of Maxwell’s January 1998 murder trial,

we reversed and remanded the case to the district court for an

evidentiary hearing. Id. We explained:

[W]e are not making a substantive determination on

Maxwell’s petition because it is unclear what evi-

dence was properly before the state court and the

consequent responsibility of the trial court in making

the determination of Maxwell’s competence to stand

trial. . . . In light of the trial court’s continuing

responsibility to ensure that a defendant is not tried

while incompetent, we are concerned about the fol-

lowing facts. First, . . . Maxwell was determined

numerous times to be “gravely disabled” or a danger

to himself or others as a result of mental disorder.

Second, Maxwell’s behavior at trial was erratic and

strange. And, third, during the course of trial Max-

well was involuntarily hospitalized for attempted

suicide. . . . Since we do not know how much of this

evidence was available to the trial court at the time

7216 MAXWELL v. ROE

of Maxwell’s trial, we remand to the district court to

hold an evidentiary hearing to consider the reason-

ableness of the trial court’s determination that Max-

well was competent to stand trial.

Id. at 215-16 (footnotes omitted). On remand, the assigned

magistrate judge conducted an evidentiary hearing to deter-

mine what evidence was properly before the state trial court

at the time of the January 1998 trial. Although the hearing

revealed additional information of Maxwell’s incompetence

that the trial judge knew at the time of trial, the magistrate

judge’s report again recommended denying Maxwell habeas

relief. The magistrate judge acknowledged “the dangers—

pointed out by the Ninth Circuit—of a judge reflexively rely-

ing on a prior, possibly stale determination that a criminal

defendant was competent and malingering.” However, after

weighing the evidence tending to support the trial court’s

decision against the evidence not supporting the court’s deci-

sion, the magistrate judge concluded that “the additional evi-

dence [deduced during the hearing] . . . still would have

permitted the judge reasonably, if perhaps incorrectly, to have

concluded that no bona fide doubt existed as to [Maxwell’s]

competence to stand trial.” The district court accepted the

findings and recommendation of the magistrate judge and

denied Maxwell’s habeas petition. Maxwell timely appealed,

and we reverse.

II. Standard of Review

We review de novo the district court’s denial of a petition

for a writ of habeas corpus. Musladin v. Lamarque, 555 F.3d

830, 835 (9th Cir. 2009). The district court’s findings of fact

are reviewed for clear error. McMurtrey v. Ryan, 539 F.3d

1112, 1118 (9th Cir. 2008). Maxwell filed his federal habeas

petition after April 24, 1996, and thus his petition is subject

to the Antiterrorism and Effective Death Penalty Act

(AEDPA). Under AEDPA, a writ of habeas corpus may be

granted only if the state court’s decision (1) “was contrary to,

MAXWELL v. ROE 7217

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” or (2) “was based on an unreasonable determi-

nation of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).

For purposes of § 2254(d)(1), clearly established federal

law consists of the holdings of the Supreme Court at the time

of the state court decision; however, “circuit court precedent

may be ‘persuasive’ in determining what law is clearly estab-

lished and whether a state court applied that law unreason-

ably.” Pinholster v. Ayers, 590 F.3d 651, 662 (9th Cir. 2009)

(en banc).

A state court’s finding that the evidence before the trial

court did not require a competency hearing under Pate is a

finding of fact. Torres v. Prunty, 223 F.3d 1103, 1105 (9th

Cir. 2000) (citing Maggio v. Fulford, 462 U.S. 111, 117

(1983) (per curiam)). Where a petitioner challenges the state

court’s findings based entirely on the state record, “we must

be particularly deferential to our state-court colleagues,” and

grant relief only if we are “convinced that an appellate panel,

applying the normal standards of appellate review, could not

reasonably conclude that the finding is supported by the

record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004); see also Miller-El v. Cockerell, 537 U.S. 322, 324

(2003) (“[A] decision adjudicated on the merits in a state

court and based on a factual determination will not be over-

turned on factual grounds unless objectively unreasonable in

light of the evidence presented in the state-court proceeding

. . . .”). As we have previously pointed out, “[t]his is a daunt-

ing standard—one that will be satisfied in relatively few

cases;” however, “the standard is not impossible to meet.”

Maddox, 366 F.3d at 1000; see, e.g., Torres, 223 F.3d at 1105

(holding that the state court’s finding that the evidence did not

require a competency hearing was “unreasonable within the

meaning of § 2254(d)(2), and that [petitioner] was entitled to

a competency hearing under Pate”).

7218 MAXWELL v. ROE

Our review is of the state court’s last reasoned decision.

Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005)

(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).

Here, because the California Supreme Court denied direct

review and Maxwell’s subsequent habeas petitions without

comment, we review the California Court of Appeal’s unpub-

lished opinion. See Ylst, 501 U.S. at 803.

III. Discussion

[1] Maxwell argues that at the time of his January 1998

trial he was not competent to stand trial. It is undisputed that

“the conviction of an accused person while he is legally

incompetent violates due process.” Pate, 383 U.S. at 378. To

be competent to stand trial, a defendant must have the “capac-

ity to understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in preparing

his defense.” Drope, 420 U.S. at 171. Where the evidence

before the trial court raises a “bona fide doubt” as to a defen-

dant’s competence to stand trial, the judge on his own motion

must conduct a competency hearing. Pate, 383 U.S. at 385.

This responsibility continues throughout trial, Drope, 420

U.S. at 181, and we apply the same bona fide doubt standard

to determine whether an additional competency hearing was

required. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th

Cir. 1997). We have explained that under Drope and Pate, the

test for such a bona fide doubt is “whether a reasonable judge,

situated as was the trial court judge whose failure to conduct

an evidentiary hearing is being reviewed, should have experi-

enced doubt with respect to competency to stand trial.” de

Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) (en

banc). “[E]vidence of a defendant’s irrational behavior, his

demeanor at trial, and any prior medical opinion on compe-

tence to stand trial are all relevant in determining whether fur-

ther inquiry is required,” and “one of these factors standing

alone may, in some circumstances, be sufficient.” Drope, 420

U.S. at 180 (paraphrasing Pate, 383 U.S. at 385).

MAXWELL v. ROE 7219

Here, the trial court found and the state court of appeal

affirmed that during the course of the trial, there was insuffi-

cient evidence to justify a second hearing regarding Max-

well’s competence. We conclude, however, that in light of the

evidence before the trial court at the time of the 1998 trial, the

trial court’s finding was an unreasonable determination of the

facts and an unreasonable application of the Supreme Court’s

clearly established law in Pate and Drope.

[2] The heart of competency to stand trial is a defendant’s

“present ability to consult with his lawyer with a reasonable

degree of rational understanding” and a “factual understand-

ing of the proceedings against him.” Dusky, 362 U.S. at 402.

Here, Maxwell’s uncontrolled and disruptive behavior in the

courtroom and signs of irrationality and paranoia when it

came to his own defense should have raised a doubt about his

competency. See Drope, 420 U.S. at 180. In Torres, we

explained that “defendant’s unusual and self-defeating behav-

ior in the courtroom” was a factor that “suggested that an

inquiry into competence was required.” 223 F.3d at 1109. As

in Torres, Maxwell engaged in “peculiar behavior” and “con-

tinually disrupted the trial until he was removed from the

courtroom and locked up.” Id. at 1109-10.

Maxwell’s lack of self control was apparent even before

trial. During pretrial proceedings, Maxwell made noises and

blurted out obscenities in the courtroom. Defense counsel

advised the trial judge that Maxwell “has been, in my opinion,

getting worse, or deteriorating . . . I know that he has been in

the psychiatric unit . . . of the jail . . . . I am not sure he knows

what I am saying . . . .” The trial judge replied that he had

reviewed the medical reports submitted in connection with the

prior competency hearing, that he found nothing that would

warrant conducting a second competency hearing, and that he

concluded that Maxwell was malingering. He stated that “[a]

prior Court found the defendant to be competent, and that

decision is binding on this Court and fully supported by the

psychiatric and psychological reports lodged with this Court.”

7220 MAXWELL v. ROE

The trial judge then asked Sergeant Larry Jernegan whether

he had any concerns regarding the security of the courtroom

with Maxwell present. Sergent Jernegan informed the judge

that Maxwell had undergone numerous psychiatric evalua-

tions pursuant to California Welfare and Institutions Code

section 51502, had been prescribed psychiatric medication

which he refused to take, and had assaulted another inmate

with a knife. Sergeant Jernegan concluded that Maxwell “ei-

ther is unwilling or unable to conform to proper court behav-

ior,” and asked the trial court to order Maxwell to wear a

Remote Electronically Activated Control Technology

(“REACT”) belt. The trial court agreed that Maxwell “obvi-

ously, has been displaying disruptive behavior and he is hav-

ing a difficulty conforming himself,” and ordered that the

REACT belt be placed on Maxwell at the discretion of the

Sheriff’s Department.

2

California Welfare and Institutions Code section 5150 states:

When any person, as a result of mental disorder, is a danger to

others, or to himself or herself, or gravely disabled, a peace offi-

cer, member of the attending staff, as defined by regulation, of an

evaluation facility designated by the county, designated members

of a mobile crisis team provided by Section 5651.7, or other pro-

fessional person designated by the county may, upon probable

cause, take, or cause to be taken, the person into custody and

place him or her in a facility designated by the county and

approved by the State Department of Mental Health as a facility

for 72-hour treatment and evaluation.

Such facility shall require an application in writing stating the

circumstances under which the person’s condition was called to

the attention of the officer, member of the attending staff, or pro-

fessional person, and stating that the officer, member of the

attending staff, or professional person has probable cause to

believe that the person is, as a result of mental disorder, a danger

to others, or to himself or herself, or gravely disabled. If the prob-

able cause is based on the statement of a person other than the

officer, member of the attending staff, or professional person,

such person shall be liable in a civil action for intentionally giv-

ing a statement which he or she knows to be false.

MAXWELL v. ROE 7221

Following this colloquy, Maxwell had another physical and

verbal outburst. The courtroom deputies, with the assistance

of Maxwell’s own counsel, had to physically restrain Max-

well and forcibly put him in his seat. At that point, the trial

judge found that Maxwell “represents a threat to the staff and

possibly to [defense counsel] as well” and ordered that Max-

well be removed from the courtroom. The trial judge found

that Maxwell was malingering and therefore that Maxwell had

voluntarily absented himself from the trial. Because Max-

well’s absence was due to voluntary disruptive behavior,

under California Penal Code section 1043, the trial judge

determined he could continue the trial without Maxwell pres-

ent. See Cal. Penal Code § 1043.3

On January 8, 1998, Maxwell’s trial commenced without

him. Over the course of the next few days of trial, Maxwell’s

counsel advised the court of Maxwell’s increasingly irrational

and paranoid behavior. Specifically, defense counsel informed

the court that Maxwell had requested that his attorney turn

over evidence that would be helpful to the prosecution, asked

that his counsel be fired, and continued to refuse to attend or

even listen to the trial proceedings.

[3] In Torres, we held that the defendant was entitled to a

competency hearing where he requested that his attorney be

3

California Penal Code section 1043 states in relevant part:

(a) Except as otherwise provided in this section, the defendant in

a felony case shall be personally present at the trial.

(b) The absence of the defendant in a felony case after the trial

has commenced in his presence shall not prevent continuing the

trial to, and including, the return of the verdict in any of the fol-

lowing cases:

(1) Any case in which the defendant, after he has been warned by

the judge that he will be removed if he continues his disruptive

behavior, nevertheless insists on conducting himself in a manner

so disorderly, disruptive, and disrespectful of the court that the

trial cannot be carried on with him in the courtroom.

7222 MAXWELL v. ROE

fired, threatened to assault his attorney, insisted on being

shackled, and continually disrupted the trial until he was

removed. 223 F.3d at 1109-10 (explaining that Torres was

“no longer [ ] able to assist rationally in his defense”); see

also Deere v. Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003)

(holding that an evidentiary hearing on competency was

required where defendant was not able to make logical judg-

ments about his defense). Like the defendant in Torres, Max-

well’s behavior throughout his murder trial was unreasonable

and self-defeating. Maxwell’s communication with his attor-

ney was so strained that his counsel stated he was unable to

develop a theory of the case or make an opening statement.

[4] In addition to Maxwell’s conduct in the courtroom, the

trial judge was aware of Maxwell’s mental health history and

contemporaneous behavior outside of the courtroom. This

additional information would have raised a bona fide doubt in

the mind of a reasonable trial judge about whether Maxwell

was competent to stand trial. Maxwell was on antipsychotic

drugs at the time of his trial and had a known history of men-

tal illness. The panoply of drugs he was administered during

trial, and his reported failure to take them “alone should have

raised concerns.” McMurtrey, 539 F.3d at 1125 (holding that

evidence of defendant’s behavior, medications, and memory

problems was sufficient to raise a reasonable doubt as to

defendant’s competence). Furthermore, during the trial, Max-

well attempted to kill himself. We recognize that “[not] every

suicide attempt inevitably creates a doubt concerning the

defendant’s competency.” United States v. Loyola-

Dominguez, 125 F.3d 1315, 1319 (9th Cir. 1997). Here, as in

Drope, however, the suicide attempt occurred in the midst of

trial and “did not stand alone.” Drope, 420 U.S. at 180 (inter-

nal quotation marks omitted); see id. at 181 (holding that “in

light of the defendant’s behavior including his suicide

attempt” a competency hearing was required). Maxwell’s

attempted suicide—taken in the context of his pre-trial behav-

ior, strained communication with defense counsel, mental

health history, antipsychotic medications, and subsequent psy-

MAXWELL v. ROE 7223

chiatric detentions—would have raised a doubt in a reason-

able judge. Id.; see also Loyola-Dominguez, 125 F.3d at 1319

(holding that a competency hearing was required when defen-

dant attempted suicide on the eve of trial); Moran v. Godinez,

57 F.3d 690, 695 (9th Cir. 1994) (holding that an attempted

suicide three months before trial was a significant factor war-

ranting a competency hearing).

On January 12, 1998, in conjunction with Maxwell’s sui-

cide attempt, officers from the jail admitted Maxwell to the

Riverside General Hospital psychiatric ward pursuant to their

authority under California Penal Code section 4011.6 for an

involuntary 72-hour hold pursuant to California Welfare and

Institutions Code section 5150. Without taking testimony or

reviewing Maxwell’s medical records, the trial judge opined

that Maxwell’s “conduct in jail, which caused the jail deputies

to take him to Riverside General Hospital, if that is where he

is at, I believe that [i.e., Maxwell’s suicide attempt] was a vol-

untary choice he made,” and accordingly stated that he was

“not entertaining a doubt as to his competency at this time.”

Maxwell, like the defendant in Drope who also attempted

suicide, was therefore “absent for a crucial portion of his

trial.” 420 U.S. at 180. In Drope, the Supreme Court

explained that:

Petitioner’s absence bears on the [competency] anal-

ysis in two ways: first, it was due to an act which

suggests a rather substantial degree of mental insta-

bility contemporaneous with the trial; second, as a

result of petitioner’s absence the trial judge and

defense counsel were no longer able to observe him

in the context of the trial and to gauge from his

demeanor whether he was able to cooperate with his

attorney and to understand the nature and object of

the proceedings against him.

7224 MAXWELL v. ROE

Id. at 181 (internal citation omitted). Here, Maxwell was

absent from his trial for a substantial amount of time. After a

medical evaluation conducted at Riverside General Hospital,

the medical staff extended Maxwell’s 72-hour psychiatric

hold to a 14-day psychiatric hold pursuant to California Wel-

fare and Institutions Code section 5250.4

[5] A section 5150 hold may be extended to a section 5250

hold, i.e. a 14-day hold, in the extreme instance where “[t]he

professional staff of the facility providing evaluation services

has found the person is, as a result of mental disorder . . . a

danger to others, or to himself or herself, or gravely disabled.”

Cal. Welf. & Inst. Code § 5250. The stated purpose of a sec-

tion 5250 14-day psychiatric hold is to certify the inmate for

“intensive treatment related to the mental disorder.” Id. The

psychiatric physicians who evaluated Maxwell pursuant to the

4

California Welfare and Institutions Code section 5250 states in relevant

part:

If a person is detained for 72 hours under the provisions of

Article 1 (commencing with Section 5150), or under court order

for evaluation pursuant to Article 2 (commencing with Section

5200) or Article 3 (commencing with Section 5225) and has

received an evaluation, he or she may be certified for not more

than 14 days of intensive treatment related to the mental disorder

or impairment by chronic alcoholism, under the following condi-

tions:

(a) The professional staff of the agency or facility providing

evaluation services has analyzed the person’s condition and has

found the person is, as a result of mental disorder or impairment

by chronic alcoholism, a danger to others, or to himself or her-

self, or gravely disabled.

(b) The facility providing intensive treatment is designated by

the county to provide intensive treatment, and agrees to admit the

person

....

(c) The person has been advised of the need for, but has not

been willing or able to accept, treatment on a voluntary basis.

...

MAXWELL v. ROE 7225

section 5250 hold reported that he was both “a danger to him-

self” and “gravely disabled.” Although it is not clear whether

the trial judge had copies of the psychiatric reports and evalu-

ations that the doctors prepared, he was fully aware of the 72-

hour and 14-day psychiatric holds.

During the time that Maxwell was “gravely disabled” and

committed to Riverside General Hospital’s psychiatric ward

on the involuntary 14-day psychiatric hold, his murder trial

proceeded without him with respect to all defendants and both

juries. In total, Maxwell was involuntarily committed to Riv-

erside General Hospital’s psychiatric ward for eight days, five

of which were during the trial. Over the course of January 12,

13, 14, 15 and 20, the prosecution called fifteen witnesses and

presented eyewitness testimony that related directly to Max-

well during his absence. On January 20, 1998, as trial contin-

ued, defense counsel advised the trial court that:

[Maxwell] is still at Riverside County hospital. I was

able to speak to him, although he doesn’t communi-

cate very well . . . . Apparently what it looks like is

he has been certified for a 14-day hold following a

5150, initial 48-hour detention . . . . I think where

this leaves us is that if I understand that process, two

doctors apparently now have interviewed him and

reviewed this matter and apparently have come to

this decision that he needs this, this next step of a 14-

day hold is appropriate. He is still at the hospital in

the jail section, and I don’t know what to tell the

court except this suggests—but maybe the court

would like to inquire or ask or order that the doctors

who have seen him prepare a report to the Court so

that the Court can see in greater detail what their

opinions are relating to Mr. Maxwell.

The following day, according to an entry in the record of his

doctor’s orders, Maxwell was “cleared to go to court.”5 And,

5

There is some ambiguity as to when exactly Maxwell was cleared by

the hospital to return to court. On January 20, 1998, the trial court stated

7226 MAXWELL v. ROE

on January 21, 1998, Maxwell returned to the courtroom. At

that time, the court again asked Maxwell if he was willing to

behave and conform his behavior to what would be expected

in the courtroom and Maxwell replied he would not. As a

result, he was once again removed from the courtroom.

[6] The initial section 5150 hold, standing alone, put the

court on notice that a qualified professional had certified that

there was “probable cause to believe” that Maxwell was “as

a result of mental disorder, a danger to others, or to himself

or herself, or gravely disabled.” Cal. Welf. & Inst. Code

§ 5150. The section 5250 hold put the court on notice that

medical professionals had determined that Maxwell in fact

had such a mental disorder that made him “a danger to others,

or to himself or herself, or gravely disabled.” Cal. Welf. &

Inst. Code § 5250(a). Here, as in Drope, “in light of the evi-

dence of petitioner’s behavior including his suicide attempt,

and there being no opportunity without his presence to evalu-

ate that bearing in fact, the correct course was to suspend the

trial until such an evaluation could be made.” 420 U.S. at 181.

No reasonable judge, situated as the state trial judge was here,

could have proceeded with the trial without doubting Max-

well’s competency to stand trial.

[7] Had the judge conducted a hearing at this point, he

would have discovered further information suggesting Max-

well’s incompetence. For example, had the judge simply

obtained copies of the January 15, 1998, “Notice of Certifica-

tion,” prepared in conjunction with the section 5250 hold, he

that Maxwell had “been free to come to court for the last week,” but the

only evidence in the record pertaining to Maxwell’s release date is a doc-

tor’s note clearing Maxwell for court on the day he first returned, January

21, 1998. Regardless of when the hospital cleared Maxwell to return to

court, the fact that Maxwell subsequently was cleared for court does not

obviate the trial court’s obligation to conduct a competency determination

and comply with Pate and Drope following his successive psychiatric

holds.

MAXWELL v. ROE 7227

would have learned that, at the time of trial, two separate state

psychologists had found Maxwell to be “actively psychotic”

and that one had reported that:

Patient [Maxwell] is in a safety cell on suicide

watch. Patient has a long history of mental illness.

Presently confused, disoriented, talking to himself,

agitated, unpredictable and impulsive. He was found

with a razor blade and a superficial laceration on his

left wrist, and has smeared blood. Patient is actively

hallucinating. He refused to communicate, paranoid

and suspicious. In safety cell he lies naked and on

the floor. Agitated and unpredictable with poor eye

contact. He refused medication and refused to eat.

He has suicidal intentions, and says “I will find a

way.”

The second psychologist similarly reported that:

[Maxwell] is unable to function at this time because

of his poor mental state and [he] is at this time

unable to provide care for himself because of his

acute psychotic symptoms . . . . He is talking to him-

self. He is evasive and uncooperative. Thought pro-

cesses are loose and tangential . . . . Reality

orientation is poor. He is not oriented to time or

place. Insight and judgment are poor. . . . The patient

obviously is in need of medications because of his

acute psychotic symptoms . . . .

A more complete inquiry by the state court would have also

revealed Maxwell’s Riverside General Hospital chart.

According to the chart, on January 15, 1998—during the psy-

chiatric hold and his murder trial—Maxwell was restrained in

four-point leather restraints and involuntary administered

heavy doses of the antipsychotic drug Haldol for “head bang-

ing and violent behavior.” The trial judge’s failure to make a

more complete inquiry undermines the state court fact-finding

7228 MAXWELL v. ROE

process, and the inadequacy of the fact-finding process under-

mines the facts themselves. See Torres, 223 F.3d at 1109 (not-

ing that “the factfinding procedure by the judge was clearly

inadequate” where defense counsel alerted the judge to com-

petency concerns and the judge concluded without further

inquiry that the defendant was competent); Maddox, 366 F.3d

at 1005 (holding that the “failure to consider, or even

acknowledge, [petitioner’s] highly probative [evidence] casts

serious doubt on the state-court fact-finding process”). In

Dyas v. Poole, for example, we held that a state courts’ find-

ing of fact “was unreasonable in the absence of any inquiry

to establish the facts.” 317 F.3d 934, 936 (9th Cir. 2003).

Here, the trial court similarly reached the factual conclusion

that Maxwell’s suicide attempt was feigned and that he was

malingering without inquiry.

[8] Nonetheless—even without taking into account the

graphic details reported in the section 5250 certification

reports and medical chart—the successive involuntary holds

by themselves, and in the context of the other evidence of

incompetence, would have raised a doubt in a reasonable

judge.

The California Court of Appeal disagreed. The court of

appeal affirmed the trial court’s finding, relying primarily on

the following circumstances: (1) Maxwell’s defense counsel

did not declare that he had a doubt about Maxwell’s compe-

tency; (2) the court’s finding that Maxwell merely feigned his

inability to control his conduct during the trial; and (3) the

trial judge’s reliance on a competency assessment conducted

thirteen months before the start of trial, which found that

Maxwell was feigning mental illness and embellishing a psy-

chosis. We address each in turn.

[9] First, the court of appeal inappropriately attributes

great weight to the fact that Maxwell’s counsel did not request

a competency hearing. As Pate and Drope make clear,

“[w]here the evidence raises a ‘bona fide doubt’ as to a defen-

MAXWELL v. ROE 7229

dant’s competence to stand trial,” a trial judge has an indepen-

dent duty to conduct a competency hearing “on his own

motion.” Pate, 383 U.S. at 385 (emphasis added); see also

Drope, 420 U.S. at 181 (explaining that “a trial court must

always be alert to circumstances suggesting . . . [a defendant’s

lack of] competence to stand trial” (emphasis added)). Fur-

thermore, as Pate explains, it is contradictory to argue that a

potentially incompetent defendant can knowingly waive “his

right to have the court determine his capacity to stand trial.”

383 U.S. at 384. Finally, although we acknowledge that “de-

fense counsel will often have the best-informed view of the

defendant’s ability to participate in his defense,” Medina v.

California, 505 U.S. 437, 450 (1992), we have recognized

that “counsel is not a trained mental health professional and

his failure to raise petitioner’s competence does not establish

that petitioner was competent.” Odle v. Woodford, 238 F.3d

1084, 1089 (9th Cir. 2001).

Here, defense counsel did not formally request a compe-

tency hearing, but he did on numerous occasions express con-

cern that Maxwell was unable to aid in his own defense.

Maxwell’s counsel informed the court that he was concerned

about Maxwell’s ability to stand trial because Maxwell was

deteriorating, not communicating with defense counsel, and

exhibiting paranoid behavior. Maxwell’s counsel alerted the

court to Maxwell’s history of mental health problems and use

of psychiatric drugs. And, after Maxwell was placed on a 14-

day involuntary psychiatric hold, defense counsel asked the

trial court whether the 14-day hold affected the court’s deter-

mination that Maxwell was voluntarily absent from his own

trial and recommended that the court inquire and obtain a

report from the doctors whose evaluations triggered the hold.

In sum, although Maxwell’s counsel did not formally request

a competency hearing, defense counsel clearly expressed con-

cern about Maxwell’s competence.

[10] Second, the trial court found that Maxwell was malin-

gering and that his “cursing and disruptive conduct” in the

7230 MAXWELL v. ROE

courtroom was voluntary. The state court of appeal upheld the

finding and concluded that Maxwell’s disruptive behavior

during trial amounted to no more than “affirmative efforts to

appear psychotic” and an “unwillingness” to participate in his

defense. Evidence of a defendant’s demeanor at trial is one of

the factors, under Drope, that a court may consider in deter-

mining whether a competency hearing is required. 420 U.S.

at 180; see Torres, 223 F.3d at 110 (“Although ‘bizarre

actions’ are not necessarily sufficient evidence to compel a

Pate hearing, they are a factor to be considered.”). In Torres,

we held that a competency hearing was required where defen-

dant believed his attorney was part of a conspiracy against

him, threatened to assault his attorney, insisted on being hand-

cuffed, and continually disrupted the trial until he was

removed from the courtroom. 223 F.3d at 1109-10. Here,

Maxwell’s behavior was equally bizarre, irrational, and dis-

ruptive. As we detailed above, Maxwell mumbled and

shouted obscenities during the pre-trial conference, he had to

be physically restrained by his own counsel, he requested that

his counsel be fired, his communication with his counsel was

so strained that defense counsel stated that he was unable to

develop a theory of the case or prepare an opening statement,

and Maxwell asked that his attorney hand over evidence help-

ful to the prosecution. Also, as in Torres, Maxwell was ulti-

mately removed from the courtroom due to his inability to

control himself. In sum, contrary to the trial court’s finding,

Maxwell’s unusual and self-defeating behavior in the court-

room suggested that an inquiry into competence was required.

[11] Third and finally, it is undisputed that a “prior medi-

cal opinion on competence to stand trial” is “relevant in deter-

mining whether a further inquiry [into competence] is

required.” Drope, 420 U.S. at 180. Here, however, there was

substantial evidence that Maxwell’s mental condition had sig-

nificantly deteriorated since the initial pretrial 1996 compe-

tency determination. “Even when a defendant is competent at

the commencement of his trial, a trial court must always be

alert to circumstances suggesting a change that would render

MAXWELL v. ROE 7231

the accused unable to meet the standards of competence to

stand trial.” Id. at 181. For example, in Torres, we held that,

despite a determination prior to trial that the defendant was

competent, in the face of significant indicia of incompetence

during trial, the “previous conclusion that [defendant] was

competent to stand trial [did] not obviate the need for a hear-

ing.” 223 F.3d at 1110. By the time of Maxwell’s murder

trial, the December 1996 competency determination was thir-

teen months old. That determination was itself based on aging

psychiatric evaluations that were, by the time of Maxwell’s

trial, eighteen months old. After so much time had passed, the

trial court would have been unreasonable in relying solely on

a stale competency determination in the face of contradictory

evidence. See de Kaplany, 540 F.2d at 980-81 (stating that

once there is substantial new evidence of incompetency, a

bona fide doubt is raised that “cannot be dispelled by resort

to [pre-existing] conflicting evidence”). Furthermore, we have

repeatedly acknowledged that a defendant’s competency can

change within a short period of time. See, e.g., Miles v.

Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997) (recognizing a

change in competency within one month); Chavez v. United

States, 656 F.2d 512, 518 (9th Cir. 1981) (noting that old psy-

chiatric reports may lose their probative value over time,

especially if subsequent facts and circumstances contradict

their conclusions).

Finally, as in Drope, the eighteen month old psychiatric

assessments “did not stand alone.” 420 U.S. at 180 (internal

quotation marks omitted). There was overwhelming evidence

that regardless of the prior competency determination, Max-

well was incompetent at the time of his 1998 murder trial.

Maxwell was involuntarily committed pursuant to 72-hour

and 14-day holds at the Riverside General Hospital psychiat-

ric unit during his trial; attempted suicide during his trial; had

a known history of mental illness; was prescribed antipsycho-

tic medications, which he frequently refused, during his trial;

had numerous outbursts that resulted in his removal from the

courtroom; and exhibited paranoid and psychotic behavior

7232 MAXWELL v. ROE

that impaired his communication with his attorney and rea-

soning regarding his defense. All of these circumstances were

known to the trial judge. On this record, the court’s determi-

nation that there was no need for a new competency hearing

was an unreasonable factual determination and an unreason-

able application of Drope and Pate.

[12] Having considered all of the evidence before the state

court, we conclude that Maxwell’s inability to control himself

in court, his suicide attempt, his history of mental illness, his

impaired communication with defense counsel, and his 14-

day involuntary psychiatric hold during his trial would have

raised a bona fide doubt in a reasonable trial judge that he was

no longer able to “consult with his lawyer with a reasonable

degree of rational understanding.” Dusky, 362 U.S. at 402

(internal quotation marks omitted). The state trial court’s fail-

ure to declare a bona fide doubt as to Maxwell’s competency

to stand trial and its failure to conduct sua sponte a compe-

tency hearing violated Maxwell’s due process rights, and the

state appellate court’s decision to affirm the state trial court’s

finding that Maxwell was not entitled to a competency hear-

ing was an unreasonable determination of the facts in light of

the evidence known by the trial judge, 28 U.S.C.

§ 2254(d)(2), and an unreasonable application of federal law

as established by Drope and Pate, 28 U.S.C. § 2254(d)(1).

IV. Remedy

[13] This court “disfavor[s] retrospective determinations of

incompetence,” see Williams v. Woodford, 384 F.3d 567, 608

(9th Cir. 2004), and they are reserved for those cases where

it is possible to “conduct a meaningful hearing to evaluate

retrospectively the competency of the defendant.” Moran v.

Godinez, 57 F.3d 690, 696 (9th Cir. 1995), overruled on other

grounds by Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003);

see Drope, 420 U.S. at 183 (holding that “[g]iven the inherent

difficulties of such a nunc pro tunc determination under the

most favorable circumstances,” a retrospective competency

MAXWELL v. ROE 7233

hearing six years after the trial was not possible). In determin-

ing whether such a hearing is warranted, we evaluate such

factors as the passage of time and the availability of contem-

poraneous medical reports. Moran, 57 F.3d at 696; see also

McMurtrey, 539 F.3d at 1131-32.

In Pate, for example, the Court explained the difficulties in

conducting a retrospective competency hearing in that case.

383 U.S. at 387. In particular, as we have noted, the Court

reasoned in Pate

that the inability of the jury to observe the demeanor

of the accused, the fact that expert testimony would

have had to have been based solely on the printed

record, and the six-year lapse between the time of

trial and the proposed post-conviction hearing com-

bined to compromise such a hearing beyond redemp-

tion.

de Kaplany, 540 F.2d at 986 n.11 (discussing Pate). Similarly,

in McMurtrey we concluded “that because of the thirteen-year

delay, the lack of contemporaneous medical opinions, and the

lack of medical records, the state trial court could not in 1994

meaningfully determine whether [the defendant] had been

competent at trial in 1981.” 539 F.3d at 1132.

[14] Here, as in Pate and McMurtrey, substantial time has

elapsed. Maxwell’s conviction is twelve years old. Moreover,

although some records were prepared in connection with the

holds under sections 5150 and 5250, the contemporaneous

medical reports are, for the most part, short form letters. A

meaningful retrospective competency determination, given

the twelve-year delay and sparse medical record, is not possi-

ble. See Pate, 383 U.S. at 387; McMurtrey, 538 F.3d at 1132.

Because we cannot conclude that a retrospective compe-

tency hearing would be possible here, we remand with direc-

7234 MAXWELL v. ROE

tions to grant Maxwell a writ of habeas corpus. The state

remains free to retry Maxwell.

V. Conclusion

[15] We conclude that the state trial and appellate courts

unreasonably determined that Maxwell was not entitled to a

competency hearing under Pate. We therefore reverse the dis-

trict court’s judgment and remand with directions to grant a

writ of habeas corpus directing the state to provide Maxwell

with a new trial in a reasonable amount of time or release

him.

REVERSED AND REMANDED.