Aaron Anderson v. Connie Gipson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON ANDERSON, No. 16-15338

Petitioner-Appellant,

D.C. No.

v. 2:12-cv-02964-KJM-KJN

CONNIE GIPSON, Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted June 15, 2018

San Francisco, California

Filed September 6, 2018

Before: Mary M. Schroeder, David M. Ebel, *

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Ebel

*

The Honorable David M. Ebel, United States Circuit Judge for the

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 ANDERSON V. GIPSON

SUMMARY **

Habeas Corpus

The panel reversed the district court’s denial of

California state prisoner Aaron Anderson’s 28 U.S.C.

§ 2254 habeas corpus petition challenging his conviction for

domestic violence, assault, and vandalism.

The panel held that the California Court of Appeal’s

decision denying Anderson relief on his claim that the trial

court violated his due process rights by failing to order sua

sponte a competency hearing involved an unreasonable

application of clearly established federal law. The panel

explained that in the face of strong indicia of incompetence,

including a bona fide suicide attempt on the eve of trial, Pate

v. Robinson, 383 U.S. 375, 385 (1966), and its progeny

demand more than explanation; they demand a competency

hearing.

The panel remanded the case to the district court with

instructions to grant the writ unless, within a reasonable

time, the State grants a new trial; and dismissed as moot

Anderson’s appeal as to claims of error involving his Faretta

waiver and shackling during trial.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ANDERSON V. GIPSON 3

COUNSEL

Ann Catherine McClintock (argued), Assistant Federal

Defender; Heather E. Williams, Federal Defender; Office of

the Federal Defender, Sacramento, California; for

Petitioner-Appellant.

David Andrew Eldridge (argued) and Justain P. Riley,

Deputy Attorneys General; Michael P. Farrell, Senior

Assistant Attorney General; Xavier Becerra, Attorney

General; Office of the Attorney General, Sacramento,

California; for Respondent-Appellee.

OPINION

EBEL, Circuit Judge:

In 2008, Petitioner Aaron Anderson was convicted of

domestic violence, assault, and vandalism stemming from a

physical quarrel with his on-again, off-again live-in

girlfriend. Pursuant to California’s Three Strikes law,

Anderson was sentenced to fifty-four years to life. After

exhausting his state remedies, Anderson sought a writ of

habeas corpus in federal court, alleging constitutional

violations involving (1) the failure of his trial judge to call

sua sponte for a competency hearing, (2) the failure of the

trial judge to revoke sua sponte his Faretta waiver, and

(3) the trial court’s decision to keep him shackled during

trial.

The Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) sets a high bar for a state petitioner seeking to

establish a constitutional violation. Mindful of that bar, we

nonetheless conclude it was error for the state trial judge not

4 ANDERSON V. GIPSON

to sua sponte order a competency hearing given the

numerous signs of Anderson’s mental incompetency,

including his suicide attempt on the eve of trial.

Accordingly, we REMAND the case to the district court with

instructions to grant the writ unless, within a reasonable

time, the state grants a new trial consistent with this opinion.

Because of our ruling on the competency issue, we need not

address Anderson’s other issues, and we therefore DISMISS

as moot his appeals as to the Faretta and shackling issues.

I. BACKGROUND

The following facts are drawn primarily from the opinion

of the California Court of Appeal in Anderson’s direct

appeal. 1

In 2007 Mr. Anderson and the victim, his on-again, off-

again girlfriend, attended a wake for Anderson’s nephew.

This wake left Anderson “distraught,” and he drove with his

brother and the victim to the grocery store. When the victim

refused to join the brother and Anderson for a drink,

Anderson “hit her behind her right ear and grabbed the car

keys, heading for the store. As she followed him toward the

store, he struck her again, knocking her down.”

The victim got up and continued into the store, where she

asked the manager if she could call 911. “After she made

the call, [Anderson] tried to grab the phone out of her hand.

He put his arm around her neck and dragged her backward

about 15 feet before throwing her to the ground.” The victim

got up and climbed back into the car, but Anderson climbed

1

See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (instructing

that federal habeas courts should “look through” unexplained state court

decisions to the “last related state-court decision that does provide a

relevant rationale”).

ANDERSON V. GIPSON 5

in with her. The two drove off, but were intercepted by

police shortly afterwards. Officers took Anderson into

custody, but after he was placed into a police cruiser he

kicked out the cruiser’s window. When police examined the

victim, she had “a two- by one-inch ‘painful’ contusion

behind [her] ear, bruises, and a lump on her head.”

The incident at the supermarket was caught on the store’s

surveillance cameras. According to the California Court of

Appeal, the video “did not show the victim attacking

[Anderson] in the car,” as Anderson claims, but instead

it showed him on top of her in the car drawing

his hand back several times; it showed him

standing above her as she lay on the ground

outside the market, moving his arms and legs;

and it showed him swinging his arms as he

stood over her in the store after shoving her

to the ground.

A. The Initial Proceedings Before State Judge Balonon

Anderson was charged with inflicting injury on a

cohabitant, assault by means of force likely to inflict great

bodily injury, vandalism, and resisting a peace officer.

Because of prior California convictions, his trial became a

“three strikes case” under California law, greatly enhancing

the penalties Anderson faced. Anderson was set to proceed

to trial on these charges in October of 2007 before The

Honorable Eugene Balonon.

At the outset of the Balonon proceedings Petitioner’s

counsel indicated that “relations with his client were rocky

but repairable.” The next day, however, Petitioner, who had

been detained awaiting trial, refused to come to court, and

counsel raised concerns about his client’s competency to

6 ANDERSON V. GIPSON

proceed. ER 68 (“Defense counsel reported that ‘I don’t

think I can raise things to the level of a doubt of his

competency. But I do have some concerns’ about defendant

not presently taking the anti-depressants previously

prescribed for him while in jail[.]”). At this point defense

counsel requested a short continuance to “get an evaluation

of defendant from professionals with whom he was familiar

and who could work quickly[,]” but Judge Balonon and the

prosecutor both expressed concern that doing so would offer

Petitioner an “indication that being difficult would result in

. . . delay of the proceedings.”

The point became moot, however, when Petitioner

arrived in court in the afternoon. He was wearing his jail

attire, and refused to change into civilian clothes. Given the

opportunity to address Judge Balonon, Petitioner

asserted that he did not want to be there, that

he was not mentally prepared, and [that] he

did not understand what was happening. He

said that he had stopped taking his

medication and thought the strain of the

proceedings might leave him unable to be

present throughout them. He also had been

having trouble eating and sleeping.

Despite these statements from the defendant, Judge Balonon

observed that defendant had become emotional during a

colloquy as to the impact of his previous convictions on his

current case and noted that he “believed that defendant was

simply experiencing the ordinary stress of facing trial (rather

than facing an incipient mental breakdown).” Judge

Balonon then stated for the record: “There is nothing that I

can find from my interaction and my observation of Mr.

Anderson that would in any [ ] way . . . indicate that he

ANDERSON V. GIPSON 7

doesn’t know what was going on . . . either today or in the

prior proceedings . . . .”

At this point the Balonon proceedings moved into voir

dire, and Judge Balonon asked the courtroom bailiff about

the necessity of restraining the defendant in open court.

According to the California Court of Appeal, “[t]he court

concluded it did not find any basis for any restraints.”

Despite that conclusion from the court, Anderson

nonetheless said he wanted to remain in shackles. Judge

Balonon ordered the bailiff to release Petitioner’s ankle

shackles, but keep the belly-chain shackles in place.

The proceedings continued briefly, before recessing for

the weekend still in the middle of voir dire. When the jury

returned to court on the following trial date, a Monday,

“[Judge Balonon] announced that [he] was continuing the

proceedings in order to evaluate defendant because

[Anderson] had attempted suicide over the weekend.” At

this point the jury panel was dismissed for good cause.

B. The Proceedings Before State Judge Orr

After several continuations, including one at which

defense counsel informed the court that he intended to have

outside experts conduct a psychological evaluation of

Petitioner, the case proceeded to trial roughly three months

later before a different judge, The Honorable Joseph Orr. At

this point Petitioner indicated that he wanted to proceed pro

se.

In doing so, Petitioner “explained that he felt the

outcome of the trial was inevitable and he would rather reach

that result on his own than with someone else representing

him.” After some discussion, Judge Orr told Petitioner that

he “would accept his waiver [of his right to counsel]

8 ANDERSON V. GIPSON

notwithstanding his refusal to acknowledge that he could not

raise the incompetence of his own trial performance on

appeal.” The trial court also appointed stand-by counsel.

The case then proceeded to voir dire.

Prior to voir dire, the court also discussed whether

Anderson would be shackled. The bailiff indicated that

defense counsel had asked for the restraints to be removed

but “it doesn’t make any difference to defendant whether or

not he ha[s] restraints on.” The California Court of Appeal

assumed that this comment was a reference to the previous

proceedings when Petitioner had requested to remain in

shackles. This time, however, Anderson “asserted that he did

not pose any threat and voiced objection to the full restraints

that the deputies wanted as a matter of course.” Judge Orr

ruled that Petitioner’s primary shackles would be removed,

but that he would still be chained to his chair. Petitioner

“expressed his satisfaction with this arrangement.”

According to the California Court of Appeal, “the record

does not indicate whether or not there was an adjustment of

the chain in front of the jury,” and “nothing affirmatively

indicates that the jury actually saw the chair chain, nor does

anything indicate that defendant testified in a chair

restraint.”

That is not to say that the jury was unaware of

Petitioner’s shackles. While one witness was being direct-

examined, Petitioner twice indicated to the court in the

presence of the jury that the chain was too tight. Then,

during jury instructions, Judge Orr instructed the jury to

disregard the fact that “physical restraints have been placed

on Aaron Anderson.” Based on these two statements, even

if the jury were unable to see the shackles, they certainly

were aware of them.

ANDERSON V. GIPSON 9

Petitioner—now representing himself—did not

“meaningfully” participate in voir dire. This resulted in an

all-female jury, including one juror who herself had been a

victim of domestic violence and one whose “best friend” had

been the victim of domestic violence. 2

At the start of trial on the second day, Judge Orr

reminded Petitioner that defense counsel was standing by,

but Petitioner did not respond. While the first witness was

being presented, Petitioner blurted out that he felt

“overwhelmed,” and when it came time to conduct cross-

examination he admitted that he did not know how to cross-

examine a witness. Judge Orr called a recess after that

witness, and Petitioner “confessed that he was legally

inadequate, and was feeling an extreme amount of stress.”

Judge Orr then recessed the trial to the following Monday to

allow time for Petitioner to go to the prison law library and

prepare.

When the trial reconvened, Petitioner again complained

about his lack of legal knowledge. During the examination

of at least one witness he was silent, even when asked if he

wanted to conduct cross-examination. When the victim took

the stand, Petitioner “repeatedly interrupted the

questioning,” calling the victim names and pleading with her

to tell the truth.

When the court called the noon recess,

defendant had an emotional outburst

2

Judge Orr allowed the former to sit on the jury after she testified

that she could be impartial because the violence against her had occurred

well in the past, and the latter because she testified that her friend having

been the victim of domestic violence had not “affected [her] in any way.”

Petitioner did not challenge either of these jurors for cause or use his

peremptory challenges on them (or any other jurors).

10 ANDERSON V. GIPSON

(apparently directed at the prosecutor) and

asked to rescind his waiver of counsel. He

also demanded a mistrial. After the recess,

defendant apologized for his behavior and

again requested a mistrial. At the conclusion

of the afternoon’s proceedings, the court

granted defendant’s request to revoke his

waiver of counsel and reappointed defense

counsel.

Defense counsel had been on stand-by, but had not been

present during the entire trial.

The jury ultimately convicted Petitioner on the domestic

violence, assault, and vandalism counts. 3 Based on

California’s Three Strikes law, he was sentenced to fifty-

four years to life in prison with the possibility of parole.

II. PROCEDURAL HISTORY

Petitioner raised each of the issues relevant to this appeal

during his direct appeal, but each was rejected by a reasoned

opinion of the California Court of Appeal. The California

Supreme Court denied Petitioner’s petition for certiorari

without comment. Our review, therefore, focuses on the

California Court of Appeal’s reasoning in denying relief on

the three issues presented here. See Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018). Petitioner later sought state habeas

review of several issues irrelevant to this appeal, but those

3

A mistrial was declared on the basis of a hung jury as to the last

charge, resisting a peace officer, but that determination is not before us

on appeal.

ANDERSON V. GIPSON 11

claims were denied as well without a further reasoned

opinion.

In 2012, proceeding pro se, Anderson petitioned the

federal district court for habeas relief. In March 2014, a

federal magistrate issued Findings and Recommendations to

deny all relief. Anderson timely objected to those Findings

and Recommendations, and the district court ordered the

State of California to provide some missing records,

including any report filed by any doctor who examined

Petitioner after his suicide attempt and before the trial

resumed in front of Judge Orr. The State filed a declaration

averring that no such report existed, but that it had been in

contact with Petitioner’s trial counsel, who explained that a

doctor had examined Anderson, and that “it was his common

practice with [the psychologist who examined Anderson]

that no written report was made when the results of the

evaluation did not raise concerns about competency. . . .

[The psychologist’s] examination of Petitioner did not raise

doubts about Petitioner’s competency.” 4

After receiving this declaration and the other requested

documents, the district court issued an order adopting in full

the Findings and Recommendations of the magistrate and

denying habeas relief. The district court also denied a

certificate of appealability. Petitioner timely filed a notice

of appeal, and the Ninth Circuit granted a certificate of

appealability on the following claims: “whether the trial

court violated the appellant’s right to due process by failing

4

Petitioner’s trial counsel’s statement was not under oath, nor had

it ever been submitted to any state court nor has it ever been tested by

cross-examination for accuracy or veracity. And we also note that

Anderson denied in his pro se objections to the magistrate’s findings and

recommendations that any such examination ever occurred.

12 ANDERSON V. GIPSON

to revoke his pro se status, failing to hold a competency

hearing, and allowing him to remain shackled during trial.”

At this point we also granted Petitioner’s motion for

appointment of counsel.

III. DISCUSSION

AEDPA sets forth two circumstances in which a federal

court may grant habeas relief to a state prisoner: (1) if the

state proceedings “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) if those state proceedings

“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).

Because the first clause can be further bifurcated into two

sets of circumstances, Anderson’s petition must fail unless

he can convince us his state court proceedings resulted in a

decision that (1) was contrary to clearly established federal

law as determined by the Supreme Court, (2) involved an

unreasonable application of clearly established federal law

as determined by the Supreme Court, or (3) was based on an

unreasonable determination of the facts in light of the

evidence presented at his trial. Id. It is the first two of these

§ 2254 sets of circumstances that are involved in the

dispositive issue in this appeal.

A decision is contrary to clearly established Supreme

Court law if it “applies a rule that contradicts the governing

law set forth in [Supreme Court] cases.” Early v. Packer,

537 U.S. 3, 8 (2002) (internal quotations omitted). While

circuit precedent may be “persuasive” in establishing the

contours of Supreme Court authority, Maxwell v. Roe,

606 F.3d 561, 567 (9th Cir. 2010), it cannot “refine or

sharpen a general principle of Supreme Court jurisprudence

ANDERSON V. GIPSON 13

into a specific legal rule that [the Supreme Court] has not

announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

Assuming the state court identifies and applies the

correct legal standard, the second inquiry becomes whether

the state court unreasonably applied clearly established

federal law. This question, however, does not ask whether

the federal court, on direct review, would have reached a

different decision than did the state court, but only whether

the state court “unreasonably” applied the correct legal

principle to the facts of petitioner’s particular case. Williams

v. Taylor, 529 U.S. 362, 407 (2000). “A state court’s

determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington

v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

Under the Richter standard, our inquiry is designed not

to probe what arguments exist for overturning the state

court’s determinations, but rather whether “‘arguments or

theories . . . could have supported’ the state court’s . . .

decision.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560

(2018) (quoting Richter, 562 U.S. at 102). “‘If this standard

is difficult to meet’—and it is—‘that is because it was meant

to be.’” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting

Richter, 562 U.S. at 102).

But while setting a high standard for relief, AEDPA

protects and preserves the critical role federal courts play in

identifying and correcting constitutional errors. Even under

the strict dictates of AEDPA, constitutional infirmity in a

state court conviction does not become immunized against

federal review by virtue of subsequent affirmances in the

state courts of appeals. See Slack v. McDaniel, 529 U.S. 473,

14 ANDERSON V. GIPSON

483 (2000) (“The writ of habeas corpus plays a vital role in

protecting constitutional rights.”).

We review the district court’s denial of Anderson’s

petition de novo, Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.

2006), and its factual determinations for clear error, Paulino

v. Harrison, 542 F.3d 692, 698 (9th Cir. 2008).

“It has long been accepted that a person whose mental

condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult

with counsel, and to assist in preparing his defense may not

be subjected to a trial.” Drope v. Missouri, 420 U.S. 162,

171 (1975). Furthermore, in some trials, there comes a point

where the defendant’s behavior displays such marked indicia

of incompetence that the trial court violates due process by

not sua sponte suspending proceedings and conducting a

hearing into defendant’s competency to stand trial. See, e.g.,

Drope, 420 U.S. at 180; Pate v. Robinson, 383 U.S. 375, 385

(1966); de Kaplany v. Enomoto, 540 F.2d 975, 979–81 (9th

Cir. 1976). Anderson argues that his erratic behavior during

the course of the judicial proceedings in this case crossed this

line. While the California Court of Appeal apparently

identified the correct standard, its application of that

standard was contrary to clearly established federal law as

determined by the Supreme Court.

“Where the evidence raises a ‘bona fide doubt’ as to a

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

motion must impanel a jury and conduct a sanity hearing

pursuant to” the relevant state procedures. Pate, 383 U.S. at

385 (emphasis added) (citing People v. Shrake, 182 N.E.2d

754 (Ill. 1962)). Since Pate, courts, including the Ninth

Circuit, have generally adopted the “bona fide doubt”

standard as to when a trial court is required to order a

ANDERSON V. GIPSON 15

competency hearing before proceedings may continue. 5 See,

e.g., de Kaplany, 540 F.2d at 979. A few years later the

Supreme Court explained that the “import” of its decision in

Pate “is that evidence of a defendant’s irrational behavior,

his demeanor at trial, and any prior medical opinion on

competence to stand trial are all relevant in determining

whether further inquiry is required, but that even one of

those factors standing alone may, in some circumstances, be

sufficient.” Drope, 420 U.S. at 180.

Looking at these factors, Anderson’s case checks two if

not all three of these evidentiary boxes. His behavior was

irrational, especially when he declined to participate in the

voir dire process, resulting in an all-female jury which

included multiple jurors with personal connections to

domestic violence. His demeanor at trial was erratic and

marked by intermittent withdrawal from the proceedings and

5

At oral argument the State suggested, based on language from

Drope, that Pate’s “bona fide doubt” standard was too case-specific to

constitute the “clearly established” federal law required by AEDPA. See

Drope, 420 U.S. at 172 (explaining that Pate did not “prescribe a general

standard with respect to the nature or quantum of evidence necessary to

require resort to an adequate procedure”). However not only does the

“bona fide doubt” standard enunciated in Pate accord with the general

evidentiary inquiries outlined in Drope, but Circuit authority can be

“persuasive” in determining the contours of clearly established Supreme

Court law, Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010), and the

Courts of Appeals have uniformly interpreted Pate and Drope as

outlining a generally applicable “bona fide doubt” standard. See, e.g.,

Austin v. Davis, 876 F.3d 757, 781 (5th Cir. 2017); McManus v. Neal,

779 F.3d 634, 656 (7th Cir. 2015); Johnson v. Singletary, 162 F.3d 630,

634 (11th Cir. 1998); cf. People v. Rogers, 141 P.3d 135, 152 (Cal. 2006)

(citing Cal. Penal Code § 1368) (establishing that under California law

the trial court judge is required to “suspend trial proceedings and conduct

a competency hearing” if he is “presented with substantial evidence of

incompetence, that is, evidence that raises a reasonable or bona fide

doubt concerning the defendant’s competence to stand trial”).

16 ANDERSON V. GIPSON

profane outbursts. And while there is a dispute over whether

Petitioner received a mental health evaluation between the

Balonon proceedings and the Orr trial, no mental evaluation

was submitted into the state record. At the very least

Anderson’s suicide attempt which aborted the Balonon

proceedings should have left the court insistent on receiving

the results of any such promised mental examination when

the case resumed. Finally, while there was a roughly three-

month gap between the Balonon proceedings and the Orr

trial, there is nothing in the trial court record that suggests

any amelioration of Petitioner’s mental incompetence during

that hiatus.

Considered holistically, the trial judge was or should

have been aware of the following indicia of incompetence:

(1) Petitioner’s disengagement during voir dire, which

shows he did not have the wherewithal to remain engaged in

the trial, (2) that he permitted a jury of all women, including

one with a personal experience involving domestic violence

and one whose best friend was a victim of domestic violence,

to be empaneled in this case, where he was charged with

domestic violence, (3) that he did not object to shackles

during trial, and even affirmatively requested them during

the Balonon proceedings, (4) his bizarre performance during

trial, including his emotional outbursts, (5) wearing prison

clothes to court one day during the Balonon proceedings, and

refusing to change, (6) refusing to show up in court one

morning during the Balonon proceedings, (7) that

Petitioner’s own attorney expressed concern regarding his

mental competency during the Balonon proceedings, and

(8) his suicide attempt. Taken together, these indicia raise

such a bona fide doubt as to Anderson’s competence to stand

trial that the trial court erred in not sua sponte ordering a

competency hearing before the trial resumed.

ANDERSON V. GIPSON 17

Regarding whether a mental health evaluation occurred

between Anderson’s suicide attempt and the Orr

proceedings, Anderson maintains that no such examination

ever occurred and there was no state court hearing to resolve

that factual dispute. Further, if there was such an

examination, it was never submitted to Judge Orr nor tested

in any state judicial proceeding. This lack of any

information about any such examination in the trial court

record is fatal to its ability to cure the constitutional

deficiencies at issue.

The California Court of Appeal dismissed the above-

referenced indicia of incompetence as demonstrating

nothing more than “the expected reaction of an unprepared

layperson thrust into the complexities of the ill-advised role

of self-representation.” It also concluded that those actions,

“far from being substantial evidence of [Anderson’s]

incompetence, demonstrate[] he knew far too well what was

at stake, including his accurate assessment of the likelihood

of his convictions.” This speculation represents only the

impressions of the California Court of Appeal on the basis

of a paper record rather than the contemporaneous

observations of the trial court and a competency hearing

where evidence could be considered and tested. In the face

of strong indicia of incompetence, including a bona fide

suicide attempt on the eve of trial, Pate and its progeny

demand more than such speculation: they demand a

competency hearing.

Accordingly, we conclude that the California Court of

Appeal’s decision denying Anderson relief on this claim

involved “an unreasonable application” of clearly

established federal law. In such circumstance the

appropriate remedy is to remand the case to the district court

with instructions to retain jurisdiction and grant the writ

18 ANDERSON V. GIPSON

unless, within a reasonable time, the State grants Anderson

a new trial consistent with due process. See, e.g., Petrocelli

v. Baker, 869 F.3d 710, 731 (9th Cir. 2017) (“We remand

with instructions to grant the writ . . . unless, within a

reasonable time . . . the State grants a new . . . trial[.]”);

McKinney v. Ryan, 813 F.3d 798, 827 (9th Cir. 2015) (en

banc).

Because we find error in the state court’s failure to order

a competency hearing, we need not consider Anderson’s

further asserted grounds for relief.

IV. CONCLUSION

The issue before us is not whether Anderson is

competent today, or whether a court—upon review of a stale

record—believes he was competent a decade ago. The

question is whether his behavior at trial, including his suicide

attempt, created a “bona fide doubt” as to his mental

competency. Upon the conclusion that it did, federal

authority is clear: due process required the trial to cease until

a competency hearing had been held. No such competency

hearing was held, and accordingly, Anderson’s due process

rights were violated.

This case is REVERSED and the case is REMANDED

to the district court with instructions to grant the writ unless,

within a reasonable time, the State grants Anderson a new

trial consistent with due process. Anderson’s further claims

of error involving his Faretta waiver and shackling during

trial are DISMISSED as moot in light of our ruling on the

competency issue.