Marks v. Davis (112 F. Supp. 3d 949, 2015)

United States District Court for the Northern District of California 2015-06-25

Citations

Full opinion text

DEATH PENALTY CASE

ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AS TO CLAIMS 2, 3, AND 5

HON. LUCY H. KOH, District Judge

INTRODUCTION

The instant case arises from Petitioner’s conviction and death sentence for crimes that occurred on October 17, 1990. On January 31, 1992, while awaiting trial, Petitioner moved under California Penal Code section 1368 to suspend the criminal proceedings against him in order to determine whether he was competent to stand trial. (AG000943-44, AG000946-47.) On July 22, 1992, after a month-long trial, a jury found Petitioner competent to stand trial. (AG001257.) On January 21, 1994, three days before jury selection for his capital murder trial was set to begin, Petitioner filed a second motion to suspend the proceedings and determine his competency (AG011558, AG011563-64), which the trial judge denied three days later (AG011586-87). On March 28, 1994, during his trial, Petitioner filed a third motion to suspend the proceedings and have his competency evaluated. (AG014987-90.) The trial judge . again denied the motion. (AG015298.)

On April 13, 1994, Petitioner was convicted of two counts of first degree murder with personal use of a’firearm, and two counts of attempted premeditated murder and infliction of great bodily injury. (AG016577-83.) On May 6, 1994, after a penalty phase trial, the jury returned a verdict of death, as well as terms of imprisonment on the other charges. (AG017687-89.)

Petitioner’s conviction and death sentence were affirmed by the California Supreme Court on direct appeal on July 24, 2003. See People v. Marks, 31 Cal.4th 197, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (2003). Petitioner filed a petition for writ of habe-as corpus in the California Supreme Court on October 28, 2002. On March 16, 2005, that court ordered Respondent to show cause in the Alameda County Superior Court why the death sentence should not be vacated and Petitioner re-sentenced to life without parole on the ground that he is intellectually disabled within the meaning of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that intellectually disabled individuals may not be executed. (AG023690.) The California Supreme Court denied the remaining claims in the petition.

The Alameda County Superior Court conducted an evidentiary hearing on the issue of Petitioner’s alleged intellectual disability. On June 13, 2006, the Superior Court denied his petition, and found that Petitioner had failed to prove by a preponderance of the evidence that he is intellectually disabled within the meaning of Atkins. (AG028412-37.) On August 14, 2006, Petitioner filed a further writ of ha-beas corpus on the issue of his intellectual disability (AG025463-561); this petition was denied by the California Supreme Court on December 15, 2010 (AG028382).

On December 14,.2011, Petitioner filed his federal petition for writ of habeas corpus in this Court. ECF No. 3 (“Pet.”). Respondent filed an answer on July 17, 2012, ECF No. 24, and Petitioner filed .a traverse on November 19, 2012, ECF No. 33. The parties-have since filed cross-motions for summary judgment on Claims 2, 3, and 5 of the petition, which concern Petitioner’s competency and intellectual disability. ECF No. 37-1 (“Pet’r’s MSJ”); ECF No. 38 (“Resp’t’s MSJ”).

STANDARD OF REVIEW

I. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (“AEDPA”)

Because Petitioner filed his original petition in 2011, well after AEDPA’s effective date of April 24, 1996, the parties agree that the standards of AEDPA apply to this case. See Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363. (2003). Pursuant to AEDPA, a district court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, .clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In determining whether a petitioner is entitled to relief under this provision, a federal court’s review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

The “contrary to” and “unreasonable application” prongs of section 2254(d)(1) have separate and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is “contrary to” clearly established U.S. Supreme Court law if that decision fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 412-13, 120 S.Ct. 1495, A decision is an “unreasonable application” of U.S. Supreme Court law if “the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Importantly, “‘an unreasonable application of federal law is different froip an incorrect application .of federal law.’ ” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). A state court’s determination that a claim lacks merit is not unreasonable “so long as ‘fair-minded jurists could disagree’ on [its] correctness.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Holdings of the U.S. Supreme Court at the time of the state court decision are the only definitive source of clearly established federal law under section 2254(d)(1). See Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lopez v. Smith, - U.S. -, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“AEDPA permits habeas relief only if a state court’s decision is ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ as determined by this Court, not by the courts of appeals.”). While a federal court may “look to circuit precedent to ascertain whether [the circuit] has already held that the párticülar point in issue is clearly established by’ Supreme Court precedent,” Marshall v. Rodgers, - U.S. -, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013) (per curiam), “[c]ircuit precedent cannot réfine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has. not announced,” Lopez, 135 S.Ct. at 4 (internal quotation marks omitted).

To find under section 2254(d)(2) that a state court’s decision was based on “an unreasonable determination of the facts,” a federal court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.) (internal quotation marks omitted), cert. denied, - U.S. -, 135 S.Ct. 710, 190 L.Ed.2d 461 (2014). In other words, “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Burt v. Titlow, - U.S. -, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (internal quotation marks. omitted). That said, “where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to. a material factual issue that is central to petitioner’s claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.2004).

Under AEDPA, a federal court reviews “the last reasoned state-court decision.” Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir.2014). In a case where “no state-court decision furnishes a basis for the state court’s underlying reasoning,” a federal court’s “duty under AEDPA is -not absolved.” Murray, 745 F.3d at 996. Rather, “the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98, 131 S.Ct. 770. To determine whether a petitioner has met this burden, a federal court must ask “what arguments or theories supported or, ... could have supported, the , state, court’s decision”, .and decide “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme Court].” Id. at 102, 131 S.Ct. 770. Thus, when a state court does not supply reasoning for its decision, a federal court “must engage in an independent review of the record and ascertain whether the state court’s decision was objectively unreasonable.” Castellanos, 766 F.3d at 1145 (internal quotation marks omitted). Critically, independent review of the record “is not a de novo review of the constitutional question,” but rather the only way a federal court' can determine whether a' silent state court decision is objectively unreasonable. Murray, 745 F.3d at 997.

In the event that a federal court “determine^], considering only the evidence before the state court, that the adjudicatioii of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, or that the state court’s decision was based on, an unréasonable determination of the facts,” the federal court evaluates the petitioner’s constitutional claim “de novo.” Hurles, 752 F.3d at 778. If constitutional, error is found, however, habeas relief is warranted only if that error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)); accord Davis v. Ayala, 576 U.S. -, -, 2015 WL 2473373, at *8, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015).

ÍI. SUMMARY JUDGMENT

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to.the,nonmoving party, there are no genuine disputes of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary judgment stage, the Court “does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier of fact , to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Bald assertions that genuine issues of material fact exist,” however, “are insufficient.” Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir.2007); see also United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.2011) (“To survive summary judgment,, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”). “If the evidence is merely col-orable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

When, as here, the parties have filed cross-motions for summary judgment, the Court “review[s] each-motion for summary judgment separately, giving the non-moving party- for each motion the benefit of all reasonable inferences.” Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir.2008). In so doing, the Court “must consider each party’s evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir.2011).

DISCUSSION

I. Claim 2: Inadequate Competency Hearing

Respondent first moves for summary judgment on Petitioner’s claim that he was denied a fair, reliable, and adequate determination of his competency in his June-July 1992 competency trial. Resp’t’s MSJ at 6-10. Respondent argues that Petitioner has failed to establish that the California Supreme Court’s rejection of this claim in its summary order of March 16, 2005 (AG023690), was contrary to or an unreasonable application of U.S. Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, see 28 U.S.C. § 2254(d). Petitioner cross-moves for summary judgment, contending that Respondent has failed to .present affirmative evidence to controvert Petitioner’s factual allegátions, and that those allegations establish that he is entitled to relief. Pet’r’s MSJ at 15-37.

A criminal defendant has a constitutional due process right not- to be tried or convicted while incompetent to stand trial. This right assures that a- defendant has: , (1) a rational,- as well as. a factual, understanding of the nature of the proceedings against him; and (2) the present ability to consult with his lawyer with a reasonable, degree of rational understanding and to assist with the preparation and presentation of his defense. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Protecting this right is “fundamental to an adversary system of justice.” Id. at 172, 95 S.Ct. 896.

To that end, due process requires a trial court to conduct a competency hearing whenever it has a “bona fide doubt” concerning the defendant’s competence. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); accord Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir.2010). Petitioner contends that his June-July 1992 competency trial was constitutionally inadequate for three reasons: (1) the trial court provided inadequate funding to two court-appointed psychiatrists who believed that Petitioner was incompetent but' needed to perform additional testing hi order to 'confirm their opinions; (2) Petitioner’s couiisel failed to coordinate the testimony of Petitioner’s retained clinical psychologist "with the two court-appointed psychiatrists; and (3) the trial court made erroneous evidentiary rulings and gave erroneous instructions that prevented the jury from validly and accurately determining Petitioner’s competence to stand trial.

A. First Subclaim: Inadequate Psychiatric Expert Assistance

1. Factual Summary

On January 31, 1992, the state trial court, upon Petitioner’s motion, suspended criminal proceedings against Petitioner and appointed two psychiatrists, Karen Gudiksen, M.D., and Fred Rosenthal, M.D., to evaluate Petitioner’s competency to stand trial. (AG000943-44, AG000946-47.) In- March 1992, both experts informed the court that, in their opinions, Petitioner was not competent to stand trial According to Dr. Rosenthal, the nature of Petitioner’s condition was organic, meaning based on neurological defects or brain damage. Neither expert rendered a formal diagnosis of organic brain damage, however, because “appropriate neurological testing” would have been necessary in order to complete a diagnosis of Petitioner’s medical condition, and there was insufficient funding available for Drs. Gudiksen and Rosenthal to conduct such testing. (AG009803-04, AG023064-65, AG023584.)

Petitioner’s counsel, however, had previously been granted funding to employ Dr. David Stein, Ph.D., to perform neuropsy-chological testing on Petitioner. (AG010927.) Dr. Stein eventually, performed the testing in May 1992. (AG010928-29.) At the state’s request,, a full jury trial on the issue of Petitioner’s competency was conducted before Judge Michael Ballachey of the Alameda County Superior Court from June 24 to July 22, 1992. (AG00Q957-60, AG001258.) Petitioner called all three doctors as expert witnesses. Drs. Gudiksen and Rosenthal both testified that, in their opinions, Petitioner was not competent to stand trial, and Dr. Stein testified that based upon the neuropsychological testing he had performed, Petitioner suffered from considerable pervasive brain . impairment. (AG010591, AG010883, AG010948-49.) Petitioner’s counsel did not provide Dr. Stein’s test results to Drs. Gudiksen and Rosenthal. (AG023065, AG023074.) The state offered three lay witnesses from the Santa Rita Jail who testified in support of Petitioner’s competency. See Marks, 31 Cal.4th at 217-18, 2 Cal.Rptr.3d 252, 72 P.3d 1222. The jury found Petitioner competent to stand trial. (AG001257.)

2. Applicable Supreme Court Precedent

The clearly established federal law applicable to this subclaim is set out in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the U.S. Supreme Court held -that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087.

3. Analysis

Petitioner contends that he “was'entitled to state procedures that ensured a reliable assessment of his competency by a competent psychiatrist who was enabled to perform an appropriate examination.” Pet’r’s MSJ at 32. Petitioner, however, does not contend that Drs. Gudiksen and Rosenthal were incompetent. Nor does Petitioner contend that he was denied access to them. The issue for the Court, therefore, is whether the examinations conducted by the two court-appointed psychiatrists were “appropriate.”

At Petitioner’s competency trial, Dr. Rosenthal testified as follows:

MS. SAWYER: Now, when you’re asked by the court to examine someone, does the court pay you your fee?

A: Yes. ' There is a standard fee that is paid by the court, it’s a county — I imagine through a county financial services [sic], but it is set by the court.

Q: Okay. Now when you’re asked to examine someone'for their competence, what, in general, do you do? •

A: Well, mostly, I do an evaluation interview with the person, and then whatever records are provided, generally the material that I’m given, generally not too much, but if I’m given some records by the court or by one of the attorneys, I’ll review that as well.

(AG010588-89.) Based upon this testimony, combined with testimony that Dr. Ro-senthal had examined Petitioner and had reviewed social history information prepared by the defense, Dr. Rosenthal was qualified as an expert and permitted to testify that, in his opinion, Petitioner was not competent to stand trial. Dr. Rosenthal offered the following reasons for his conclusion:

[MS. SAWYER]: And could you give us your reasons why you believed he was not competent to stand trial?

A: There are actually several things in Mr. Marks’ history. He had a history of numerous head injuries, some of which from — at least from the available history that I had, sounded serious.

He had a history of seizure, of a seizure disorder which apparently was post-traumatic, that is, the seizures were induced by head injuries. And he had a fairly long history of seizures....

He had been treated by a number of — with a number of antiseizure medications, fairly strong ones, including dilantin and mysoline, and when I saw him he was still receiving mysoline, which is an antiseizure medication.

He also had been described by a number .of people over the years as having strange behaviors and strange thoughts and personality problems. And it appeared from the history that his mental state was changeable. There would be times when he'would look fairly intact and other times when he would look apparently quite deranged and quite strange.

He also had a history of fairly excessive drug and alcohol abuse. The reason this is significant is that if someone has head injury and if, in the case of Mr. Marks, there is a chance for brain damage, which I believe exists here, then medications or substances that alter mental states can, over a long period of time, produce additional damage. Alcohol is one that is fairly potent in this respect.' And, of course, many of the street drugs will do the same thing over long use. So this is adding.insult to the brain that’s already damaged.

And then getting down to when I saw him, it was fairly clear that this was a man who was having mental problems. He was quite scattered. He would, at times in the interview, be able to attend what looked like in a rational fashion, but it was soon obvious that he could not control that and he very.quickly lapsed into repetitive pressured speech that made little sense, •

He, at times, would become somewhat scattered, not focused on the material that we were discussing. He had a number of rather unusual ideas about what was going on in his life.

He didn’t really understand his situation. He couldn’t really tell me clearly what the charges were that he was being held on. He had some idea of charges -that really didn’t relate to the seriousness of the charges that he was being held on.

(AG010591-93.)

Dr. Gudiksen testified similarly:

[MS. SAWYER]: Now, could you tell us first in general what you do when you — when the court notifies you to examine someone to see if that person is competent or not to stand trial?

A: I get a telephone call from a court clerk or perhaps a minute order in the mail that mentions the attorney of record, and I call that person, because part of the issue is whether this person is understanding the proceedings and whether they are cooperating with the defense counsel in their preparation and presentation of their defense..

So the issue, that issue especially comes to someone’s mind, and often the defense attorney’s, so I call that person.

And sometimes more than one defense attorney has been involved in working with this particular client, so sometimes I call more than one defense attorney.

I ask for them to summarize the case and ask about what the charges are and if there is any past mental record and what prior offenses may be, often' ask that attorney to send me some materials from their file that they think would be pertinent, obviously, a probation officer’s report, past ones,' or police' reports or summaries of mental health or psychiatric treatment, or I’ll tell the attorney, “Send me anything you think is pertinent, and I’ll take a look at it.”

Then I schedule an appointment to see the defendant, who is almost always in custody. In fact, I guess in 1368, he or she is always in - custody. But I schedule the appointment and go to the facility where.the person is incarcerated and conduct my examination. -,

That’s how I get ready to do the exam. ■

(AG010879-80.) Based upon Dr. Gudiksen’s. subsequent testimony that she had reviewed Petitioner’s social history report, spoken with Petitioner’s attorneys, and interviewed Petitioner, Dr. Gudiksen was deemed qualified as an expert and permitted to testify that, in her opinion, Petitioner was incompetent to stand trial. (AG010880-82). Dr. Gudiksen based her opinion on both her observations of and conversations with Petitioner (AG010880-94), as well as his medical history, which she testified consisted of “extensive substance abuse,” “repeated episodes of head trauma,” and a “poorly controlled” seizure disorder (AG010890-91). In addition, Dr. Gudiksen testified as to her specific observations of Petitioner that led her to conclude that he was incompetent, stating:

A: Based upon the history and my examination, I. didn’t feel that- he was able to understand the nature of the proceedings against him or to cooperate with defense counsel; in the preparation and presentation of a rational defense.

(AG010883.)

Petitioner’s argument is essentially that because there was insufficient funding for the two court-appointed psychiatrists to conduct additional neurological or neuropsychological testing to confirm their opinions that Petitioner was incompetent, the examinations that the psychiatrists did conduct were not “appropriate” under Alee. The Court disagrees. To start, the Court notes that Petitioner was only entitled “to ‘provision of one competent psychiatrist.’ ” Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir.2011) (quoting Ake, 470 U.S. at 79, 105 S.Ct. 1087). “Given this unambiguous language,” the Ninth Circuit has held, a “defendant ‘lacks the right to appointiúent of a second psychiatrist,’ even where the first psychiatrist is alleged to be incompetent or reaches a diagnosis unfavorable .to the defense.” Id. (quoting Pawlyk v. Wood, 248 F.3d 815, 824 (9th Cir.2001)). Petitioner, therefore, has already received more than what Ake requires. What’s more, the Ninth Circuit has expressed doubt that a right to an “appropriate examination” even exists. “]I]t’s far from clear,” the Ninth Circuit has said, “that such a right exists, or that, if it does, we’d be able to review it on habeas.” Leavitt, 646 F.3d at 610 (citations omitted).

In any event, the above passages reveal that both psychiatrists examined Petitioner according to their usual and customary procedures, and that, based upon those standards, they testified as experts that Petitioner was incompetent to stand trial. The testimony of Drs. Gudiksen and Ro-senthal was thorough and referred to numerous, specific reasons why they concluded that Petitioner was incompetent. (AG010591-92, AG010883.) Additionally, Dr. Stein, a clinical psychologist, actually conducted neuropsychological tests on Petitioner and opined that, based upon the testing he had performed, Petitioner suffered from considerable pervasive brain impairment. (AG010924-27, AG010947-49.) Petitioner cites no case or statute requiring additional neurological or neu-ropsychological testing in such a situation.

Indeed, the fact that Drs’. Gudiksen and Rosenthal could have performed more testing than what they usually and customarily performed in examining defendants for competency to stand trial does not render the examinations they did perform insufficient under Ake. This is all the more true considering that Petitioner did undergo neuropsychological testing by a clinical psychologist, Dr. Stein, who also testified on Petitioner’s behalf. That a jury nevertheless found Petitioner competent to stand trial does not necessarily mean his psychiatric examinations were inadequate.

Because Petitioner was not denied “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense,” Ake, 470 U.S. at 83, 105 S.Ct. 1087, the California Supreme Court’s summary denial of this subclaim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law, as determined' by the U.S. Supreme Court, see 28 U.S.C. § 2254(d)(1). As a result, this subclaim must be denied.

B. Second Subclaim: Ineffective Assistance of Counsel

1. Factual Summary

As explained above, Petitioner offered testimony at his competency trial from two court-appointed psychiatrists, both of whom opined that he was incompetent to stand trial. Neither expert, however, conducted neurological or neuropsychological testing to confirm their impression that Petitioner suffered from organic brain damage. Petitioner also presented the testimony of a clinical psychologist, Dr. Stein, who did conduct neuropsychological tests confirming that Petitioner suffered from significant brain impairment. Dr. Stein, however, did not opine as to Petitioner’s competence to stand trial.

Petitioner argues that his counsel should have: (1) provided the results of Dr. Stein’s neuropsychological testing to Drs. Gudiksen and Rosenthal, the court-appointed psychiatrists;. and (2) elicited testimony from. Dr. Stein that Petitioner was incompetent to stand trial. Petitioner contends that by failing to do either, his counsel rendered constitutionally ineffective assistance. See Pet’r’s MSJ at 33-34.

2. Applicable Supreme Court Precedent

The clearly established federal law applicable to this subclaim is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the U.S. Supreme Court held that ineffective assistance of counsel is cognizable as a denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance, of counsel. Id. at 686, 104 S.Ct. 2052. To prevail on an ineffective assistance of counsel' claim, a petitioner must establish that: (1) his counsel’s performance was deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing professional norms; and (2) he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 688-94, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ultimately, a petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and “might be considered sound trial strategy” under the circumstances. Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

A “doubly” deferential standard of review is appropriate in analyzing ineffective assistance of counsel claims under AEDPA because “[t]he standards created by Strickland and § 2254(d) are both highly deferential.” Richter, 562 U.S. at 105, 131 S.Ct. 770 (internal quotation marks omitted). When section 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Id.

3. Prejudice

Petitioner is unable to establish prejudice resulting from his counsel’s alleged deficient performance, and, thus, Petitioner is unable to prevail on this sub-claim. A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir.1995) (commending the district court’s decision not to consider whether counsel’s conduct was deficient after determining that the Petitioner could not establish prejudice). Even assuming Petitioner had established that his counsel’s performance was deficient, the Court finds that it was not unreasonable for the California Supreme Court to conclude that there was no reasonable probability that, had counsel provided Dr. Stein’s test results to Drs.’ Gu-diksen and Rosenthal, the jury would have ruled differently and found that Petitioner was incompetent to stand trial.

Petitioner emphasizes that the California Supreme. Court, in reviewing fhe separate question whether substantial evidence supported the competency jury’s verdict, found the testimony of the court-appointed psychiatrists “suspect” because the bases for their opinions were at times “limited.” See Pet’r’s MSJ at 32 & n.7 (citing Marks, 31 Cal.4th at 219-20, 2 Cal.Rptr.3d 252, 72 P.3d 1222). For instance, the California Supreme Court found “Dr. Gudiksen’s information about defendant’s history was limited to that, which she received from defense counsel and her meetings with defendant,” chiding Dr. Gudiksen at one point because “she had not read the preliminary hearing transcript.” Marks, 31 Cal.4th at 219, 2 Cal.Rptr.3d 252, 72 P.3d 1222. Seizing on that language, Petitioner contends that had counsel provided Drs. Gudiksen and Rosenthal with the results of Dr. Stein’s neuropsychological testing and Petitioner’s social history, there is a reasonable probability that the jury, would have found him incompetent to stand trial. Pet’r’s MSJ at 33-34.

The Court is not convinced. First of all, Petitioner’s assertion that the psychiatrists were not provided evidence of Petitioner’s social history is directly refuted by the record. (AG010589, AG010592-93 (Dr. Rosenthal testifying that he had reviewed'-“a summary” of Petitioner’s “social history” and describing that history); AG01Q881 (Dr. Gudiksen testifying that she had reviewed “a summary of Mr. Marks’ social history”).) Second, as explained above, to the extent the psychiatrists’ credibility was weakened by the fact that.they did not conduct neuropsychological testing, Dr. Stein’s testimony — that he had performed such testing and that Petitioner ..indeed suffered from organic brain damage— would likely have rehabilitated their credibility in the eyes of the jury. Far from the complicated “jigsaw puzzle” Petitioner portrays, Pet’r’s MSJ at 34, a reasonable jury could have drawn the logical inferences from the experts’ testimony.

Finally, the contrary evidence submitted by the- state was quite strong, including statements Petitioner had made demonstrating that he was well aware of the nature of the proceedings against him and the potential punishments he faced. See Marks, 31 Cal.4th at 219-20, 2 Cal.Rptr.3d 252, 72 P.3d 1222. For example, in June 1992, Petitioner, then incarcerated in the Santa Rita' Jail, asked Deputy Sheriff Timothy Durbin for a work assignment, telling Durbin that Petitioner believed that if he had a job it would look better to the jury in his upcoming trial. Id. at 217, 2 Cal.Rptr.3d 252, 72 P.3d 1222. In the course of their conversation, Petitioner stated that' he would have a competency hearing soon. Id. When Durbin asked Petitioner if that was a hearing to decide whether to fire his attorney, Petitioner responded, “No, it is a competency hearing to see whether or not I am. sane.” Id. at 218, 2 Cal.Rptr.3d 252, 72 P.3d 1222. Petitioner then added, “I should lose that in June and I’ll start my main trial later in the year or early '93.” Id.

As the California Supreme Court concluded in affirming the jury’s finding that Petitioner was competent to stand trial:

[T]he People below produced abundant evidence that contradicted the defense testimony, most of it coming from defendant’s own mouth. For example, although Dr. Rosenthal opined that defendant believed the charge concerned only possession of a weapon, defendant himself remarked, “I didn’t do no Taco Bell shootings and no Gourmet shootings and no cab shootings.” Defendant’s statements support the inference that he fully recognized the magnitude of the charges he faced and the potential consequences, as well as counsel’s unwillingness to seek an acquittal. “And this is a life or death, either I get life or I get death. It’s just cut and dry. Either you get life or you get death and here are two people playing with your life. I need somebody who is serious that wants to see me victorious____” Defendant objected to the fact that Attorneys Najpaver and McGrew “tried to ... manipulate me to take life sentences for something I did not do.” At one Marsden hearing, defendant told the court “I want a public defender ... who I can work with, understand me... I know I can’t pick my own lawyer, but I’m saying if there is a conflict and my life is at stake..-.. I can’t get'my rights with the counsel who don’t believe I’m innocent. He don’t believe I’m innocent and- he’s addressed me as such” Defendant also indicated he understood the nature of the competency hearing: “[I]t is a competency hearing to see whether or not I am sane.”

Defendant’s statements and conduct further showed he could assist counsel in the conduct of the defense. Although he did not cooperate with the attorney who was trying to arrange defendant’s conviction for .noncapital murder,’ he cooperated with Attorney Sawyer because he trusted her. He took her advice not to appear on television and he sought work to make a good impression on the jury. Defendant thus showed he was able to cooperate with counsel but sometimes refused to do so, largely to achieve a substitution of counsel. In an earlier proceeding described during the instant hearing, defendant remarked, “I know I acted like a zip-down fool in the courtroom. I don’t want Mr. Denton as my attorney and I will not cooperate with him.” Defendant promised to cooperate and refrain from acting like a “zip-down fool” if he were granted a new attorney.

Furthermore, although defendant’s outbursts did not comport with eourt-room protocol, they did reflect his attempt to provide advice to counsel. For example, defendant complained that counsel failed, to ask a witness who claimed to have, been five feet from the smiling perpetrator whether there was anything' unusual about the perpetrator’s teeth, as defendant had missing teeth. We conclude there was substantial evidence from which the jury could rationally infer defendant’s competence to stand trial.

Marks, 31 Cal.4th at 218-20, 2 Cal.Rptr.3d 252; 72 P.3d 1222 (alterations in original).

The Court therefore finds that even had defense counsel provided the neuropsycho-logical test" results to the two court-appointed psychiatrists, Drs. Gudik’sen and Rosenthal, and also elicited from Petitioner’s clinical psychologist, Dr. Stein, the opinion that Petitioner was' incompetent to stand trial, the state’s contrary evidence, especially Durbin’s testimony and defendant’s own documented statements and conduct, was sufficiently strong that Petitioner cannot show a reasonable probability the jury would have found Petitioner incompetent to stand trial.

As a result, the Court finds that the California Supreme Court’s summary denial of this subclaim was'neither contrary to, nor the result of an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Strickland and Richter. See 28 U.S.C. § 2254(d)(1). In addition, the decision was not based oh an unreasonable determination of the facts. See id. § 2254(d)(2). Accordingly, this subelaim must be denied.

C. Third Subclaim: Inadequate Fact-Finding Procedures

1. Factual Summary

During the competency trial, the trial court made four evidentiary rulings that resulted in the exclusion of certain evidence that -Petitioner contends was relevant to the issue of -his competency to stand trial. First, when the defense attempted to show that Petitioner was unable to provide his attorneys with truthful information about either the crime at issue or his life while growing up, the trial court refused to admit the evidence on the ground that it is not “a function of competence for a client to. tell a lawyer the truth.” (AG010441.) Second, in response to defense questioning about whether Petitioner had the ability to cooperate during testing, the trial court limited Dr. Stein’s answer to the one occasion on which Dr. Stein was able to administer the test, thereby preventing the jury from learning that Petitioner had refused to be tested on two other occasions. (AG011384.) Third, the trial court did not allow Dr. Stein to answer the defense’s question as to whether the ability to cooperate with neuropsy-chological testing was, different from, the ability to cooperate with his. defense counsel. Finally, when Petitioner, voiced disagreement with a witness’s testimony about a statement Petitioner allegedly had made, the trial court, after asking Petitioner to be quiet, told the jury, “Mr. Marks’ outburst is not evidence, unless he testifies.” (AGÓ10784-85.) Petitioner contends that these rulings denied him a fair opportunity to demonstrate to the jury that he was not competent to stand trial. See Pet’r’s MSJ at 23-30.

,2. Applicable Supreme Court Precedent

Petitioner. asserts that the clearly established federal law applicable to. his subclaim is set forth in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). In Panetti, a condemned inmate argued duping his federal habeas corpus proceedings that he was incompetent to be executed, and the federal court stayed the proceedings so that the state court, could determine whether he was. in fact incompetent. The state court .appointed, two experts to examine the defendant, and they filed a report concluding that he was competent to be executed. The state court then closed the case without letting the inmate respond to the report. The U.S. Supreme Court explained that in competency determination proceedings, the Due Process Clause of the Fourteenth Amendment requires, at a minimum, that an inmate who makes a. -threshold showing of incompetency be , provided “factfinding procedures” that are “adequate, for reaching reasonably correct results.” Id. at 952, 954, 127 S.Ct. 2842 (internal quotation marks omitted). The - U.S, Supreme Court further held that fact-finding procedures adequate for achieving reasonably correct results in a competency determination hearing involved at least some form- of hearing in which the inmate had the “opportunity to submit expert evidence in response to the report filed by the court-appointed experts.” Id. at 951-52, 127 S.Ct. 2842. The U.S. Supreme Court explicitly reserved 'ruling on whether other procedures, such as the opportunity for discovery or for the cross-examination of witnesses, would be required. Id. at 952, 127 S.Ct. 2842.

3. Analysis

Petitioner argues that because the rulings by the trial court prevented him from introducing some, evidence that was arguably relevant to the issue of his competency, the fact-finding procedures at his competency trial were inadequate for reaching a reasonably correct result as to his competency to stand trial. Pet’r’s MSJ at 23, 36-37. Respondent counters that Petitioner confuses the opportunity to submit evidence with the trial court’s rulings on whether to admit the evidence, and that, because Petitioner was provided the opportunity to submit expert psychiatric evidence, his competency proceedings did not violate the requirements set forth in Panetti. ECF No. 44 (“Opp’n to Pet’r’s MSJ”) at 5-9.

Panetti is distinguishable from the present case. Petitioner does not dispute that he was given the “opportunity to submit expert evidence,” which is what Panetti requires. 551 U.S. at 951, 127 S.Ct. 2842. Unlike the defendant in Pan-etti, Petitioner was provided a hearing-and did submit expert testimony as* well as other evidence. As this Court has indicated above, the trial court held a month-long jury trial regarding the issue of competency. Having the opportunity to submit evidence does not mean that a court must admit all of the evidence submitted by the defendant. See, e.g., United States v. Waters, 627 F.3d 345, 354 (9th Cir.2010) (holding that evidentiary rulings by the trial court do not deprive defendant of a meaningful opportunity to present a complete defense as long as he is able to present the substance of his factual innocence theory).

Moreover, much of the evidence that Petitioner says was improperly excluded from his competency trial was in fact admitted in some form or another. For example, when Petitioner’s defense counsel asked Najpaver, another of Petitioner’s counsel who testified during the competency trial, whether Petitioner could provide his attorneys truthful information about the facts of his case or his life history, the trial court sustained a relevance objection (AG010428), stating- that it is not' “a function of competence for a client to tell a lawyer the truth” (AG010441). Shortly thereafter, however, Najpaver was allowed to respond to the' following similar question: “Have you received information from Mr. Marks that later checked out to be accurate or inaccurate[?]” (AG010429.) In addition, evidence of Petitioner’s earlier refusals to submit to neuropsychological testing was admitted when Dr. Stein testified that Petitioner did not submit to testing in October and December 1991 due to extreme agitation and bizarre behavior. (AG010927-28.) Contrary to Petitioner’s assertion, then, the jury was not left “to speculate that Mr. Marks was able to comply with testing procedures any time that he chose.” Pet’r’s MSJ at 29. Lastly, the trial court’s admonishment to the jury that “Mr. Marks’ outburst is not evidence, unless he testifies” was wholly proper. (AG010784-85.) The trial court was not instructing thé jury to ignore the fact that Petitioner hade made an outburst. Rather, the trial court was instructing the jury to ignore the content of that outburst unless Petitioner took the stand and uttered the same.- In any event, other evidence of Petitioner’s disruptive behavior was considered by the jury, which heard testimony from the magistrate who had presided over Petitioner’s preliminary hearing that Petitioner “actfed] out” during that hearing and “seemed to be unable to control himself.” (AG010538.)

As a result, Petitioner cannot demonstrate that the particular evidence he wanted to. submit would have altered the competency determination. Not telling the truth to one’s attorney, refusing-to submit to a certain psychiatric exam, and' improperly voicing disagreement with a witness’s testimony are not compelling in-dicia of incompetency, and Petitioner cites to no case law suggesting that .they are. In the absence of such authority, Petitioner cannot demonstrate either that an error occurred or that any alleged error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638, 113 S.Ct. 1710.

Because Petitioner does not dispute that he was able to present the substance of his claim that he was incompetent to stand trial, Petitioner’s contention that he was denied a meaningful opportunity to present evidence in support of that claim fails. Accordingly, Petitioner cannot establish that the fact-finding procedures at his competency trial were constitutionally inadequate under Panetti. The Court therefore finds that the California Supreme Court’s summary denial of this subclaim was neither contrary to, nor the result .of an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Additionally, Petitioner has not demonstrated that the California Supreme Court’s decision was based on an unreasonable determination of the facts. See id. § 2254(d)(2). This subclaim must be denied.

D. Claim 2 Conclusion

Por the foregoing reasons, the Court grants Respondent’s motion for summary judgment as to Claim 2 and denies Petitioner’s motion for summary judgment as to that claim.

II. Claim 3: Failure to Conduct a Second Competency Hearing

Respondent next moves for' summary judgment on Petitioner’s claim that the trial court’s refusal to suspend Petitioner’s trial proceedings and redetermine his competency denied him ' due process. Resp’t’s MSJ at 10-14. Respondent argues that Petitioner has failed to establish that the California Supreme Court’s summary rejection of this claim was contrary to or an unreasonable application of U.S. Supreme Court precedent, or that the California Supreme Court’s decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner cross-moves for summary judgment, contending that Respondent has failed to present affirmative evidence to controvert Petitioner’s factual allegations and that those allegations entitle him to relief. Pet’r’s MSJ at 37-66.

A. Factual Summary

As explained in the analysis of Claim 2 above, a jury found Petitioner competent to stand trial on July 22, 1992. (AG001257.) On January 21, 1994, three days before jury selection in Petitioner’s capital murder trial was set to begin, the defense moved under California Penal Code section 1368 to suspend the proceedings and have a second hearing to determine Petitioner’s competency. (AG011558, AG011563-64.) Petitioner’s counsel represented to the trial court that Petitioner was out of touch with basic reality and could not. comprehend the significance of simple facts that were necessary to prepare his case. As an example, counsel pointed out that a key piece of. evidence in the case was a tape recording of Petitioner’s statement to police. According to defense counsel, however, Petitioner not only refused to concede that the .voice , on the tape recording was his voice; he sincerely believed that it was not his voice. (AG011556-63.) Petitioner insisted that he did not make a tape recorded statement; that the transcripts had, been altered; and that defense counsel, the prosecutor, and the trial court were engaged in a conspiracy against him. (AG011574.)

The state law applicable to Petitioner’s motion provided:

When a competency hearing has already been held and defendant has been found competent to stand trial .... a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on. the validity of that finding.

People v. Kelly, 1 Cal.4th 495, 542, 3 Cal.Rptr.2d 677, 822 P.2d 385 (1992) (citations and internal quotation marks omitted). After reviewing the transcript of the 1992 competency trial, the trial court found on January 24, 1994, that Petitioner’s circumstances at. trial were not substantially different from his circumstances at that prior hearing, and that the new evidence he presented did not cast a serious doubt on the validity'of the jury’s prior finding that Petitioner was competent (AG011586-87 (relying on Kelly).)

On March 28, 1994, Petitioner moved to dismiss his attorneys and to represent himself, and Petitioner’s counsel moved once again to have the trial court suspend the proceedings and conduct a hearing to determine Petitioner’s competency. (AG014987.) Later that day, Petitioner spoke out of turn to disagree with a witness’s testimony, and the trial court threatened repeatedly to have Petitioner removed from the courtroom if he continued to disrupt the proceedings. (AG015045-46, AG015090-93.)

On March 29, 1994, the trial court first denied Petitioner’s motions to dismiss his attorneys and to represent himself. (AG015273, AG015279.) In support of the motion ‘ to suspend proceedings, defense counsel contended that ’Petitioner was unable to answer their questions or confer with them, and that Petitioner was firmly convinced that the prosecutor, trial court, and defense counsel had accepted bribes in his case. (AG015280-81.) Counsel also contended that Petitioner had changed drastically since the trial began, when they had meaningful conversations with him about the case, and that they believed there was a risk that the jury would “see Mr. Marks acting out and being removed” from the courtroom. (AG015283-84.) Upon being questioned by the trial court, Petitioner stated, “I’m mentally sound. I’m aware of, I’m aware of my — I’m not saying nothing else, because I already know I’m being treated unfairly. I’m not going to make ambiguous outbursts, this is a biased courtroom.” (AG015292.)

The trial court again denied the defense’s section 1368 motion to suspend the proceedings. (AG015298 (relying on Kelly).) The trial court stated that because there had been a previous competency hearing at which Petitioner had been found competent, suspension of the criminal proceedings was' not required unless the court found that the circumstances had changed substantially or new evidence had surfaced to now cast serious doubt on the validity of the jury’s previous finding of competency. The trial court also stated that it' had reviewed the entire transcript of the 1992 competency hearing. The trial court, noted that Petitioner’s previous attorneys had made the same complaints during that hearing as defense counsel was making at trial; namely, lack of cooperation and differing views of the evidence and trial tactics. Applying the Kelly standard, the trial court found that: (1) Petitioner’s circumstances had not substantially changed from his circumstances at the time of the 1992 competency determination; and (2) the new evidence Petitioner submitted did not cast a serious doubt on that determination. The trial court also noted that Petitioner’s outbursts and his responses to the court’s questions showed that Petitioner understood the nature of the proceedings as well as the significance of the evidence being introduced against him, and that Petitioner was able to recognize and understand weaknesses or flaws in that evidence. (AG015293-98.) Because Petitioner continued to disrupt the proceedings despite the trial court’s repeated warnings, the trial court ultimately had Petitioner removed. (AG015228-30.)

On direct review in 2003, the California Supreme Court upheld the trial court’s decision not to conduct an additional competency hearing, finding as follows:

[Although defendant’s outbursts did not comport with courtroom protocol, they did reflect his attempt to provide advice to counsel. For example, defendant complained that counsel failed to ask a witness who claimed to have been five feet from the smiling perpetrator whether there was anything unusual about the perpetrator’s teeth, as defendant had missing teeth....

Defendant further contends that his conduct during trial warranted a further examination of his competency, and the trial court erred in failing to suspend-the proceedings. However, once a defendant has been found to be competent, even bizarre statements and actions are not enough to require further inquiry. ([People v. Marshall, 15 Cal.4th 1, 33, 61 Cal.Rptr.2d 84, 931 P.2d 262 (1997)].) Reviewing courts give great deference to a trial court’s decision whether to hold a competency hearing. “An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” (Ibid.)

Moreover, defendant’s most conspicuous outburst during trial amply proves his ability to understand the proceedings and assist counsel. When the prosecutor concluded his redirect examination of John Myers, defendant interrupted, “Your Honor, I object.. This person stated it was not me, it was No. 6 who committed the shooting.... He did not even ask.” Discussion among the attorneys and the court revealed that Myers had selected a suspect other than defendant at a photographic lineup. The prosecutor recognized, however, there was a sound tactical reason for defense counsel’s not asking Myers about his failure to select defendant: Myers had indicated “it was a toss up” between defendant and the “number six” individual; Myers finally chose the latter. Although there was a legitimate reason for not asking Myers about his selection at the lineup, defendant’s comment reflected he comprehended not just the nature of the proceedings but the state of ’the People’s case and its potential deficiencies. Defendant also demonstrated his ability to offer assistance to counsel, even if such assistance was neither solicited nor welcomed. FN4

FN4. The defense again moved for a competency hearing after defendant testified in the guilt phase. The motion was based in large part on defendant’s frequent nonresponsiveness to the questions posed. As the trial court found, however, defendant strategically ignored the limited scope of questions and aggressively presented to the jury material that would either tend to raise a doubt about his guilt or engender sympathy for him.

The court considered this “an intentional and volitional and willful decision by him to go outside the scope of questions and place material before the jury that he perceived to be in his interests.”

Defendant was properly found competent to stand trial.

Marks, 31 Cal.4th at 220-21 & n. 4, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (citations and internal quotation marks omitted).

B. Applicable Supreme Court Precedent

The clearly -established federal law applicable’ to this claim is set out in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). In Pate, the U.S. Supreme Court held that if, at anytime during the trial, the trial court becomes aware of circumstances that would lead a reasonable person to have a “bona fide doubt” as to the defendant’s competence, the trial court must suspénd the proceedings and conduct a hearing to determine the defendant’s competency. 383 U.S. at 385, 86 S.Ct. 836; accord Maxwell, 606 F.3d at 568. In Drope, moreover, the U.S. Supreme Court held that “[e]ven 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 the accused unable to meet the standards of competence to stand trial.” 420 U.S. at 181, 95 S.Ct. 896; accord Maxwell, 606 F.3d at 574.

C. Analysis

Petitioner contends that the California Supreme Court’s determination that a second competency hearing was not required was contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court, or based, on an unreasonable determination of the facts. See Pet’r’s MSJ at 54-65. Petitioner, advances two arguments. First, Petitioner argues that California’s standard for conducting a second competency hearing—i.e., that a court find either a “substantial change in circumstances” or - “new evidence 'that gives rise to a serious doubt about the validity of the [prior] competency finding,” Marshall, 15 Cal.4th at 33, 61 Cal.Rptr.2d 84, 931 P.2d 262 (internal quotation marks omitted) — is more restrictive than the clearly established federal law counterpart, which requires that a state court be alert to “circumstances suggesting a change that would render the accused, unable to meet the standards of competence to stand trial,” Drope, 420 U.S. at 181, 95 S.Ct. 896. For that reason, Petitioner argues, the state law standard, upon which the California Supreme Court implicitly relied in affirming the trial court’s denials of a second competency hearing, see Marks, 31 Cal.4th at 220-21, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (quoting Marshall, 15 Cal.4th at 33, 61 Cal.Rptr.2d 84, 931 P.2d 262), is either contrary to, or the result of an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Pate and Drope. Pet’r’s MSJ at 54-58. Because a state court’s application, of the “wrong legal framework” is “unworthy of AEDPA deference," Milke v. Ryan, 711 F.3d 998, 1006-07 (9th Cir.2013), Petitioner contends that he is entitled to de novo review of Claim 3, see Pet’r’s MSJ at 65.

Petitioner’s first argument is without merit. It is true that when a “state court applies a legal- standard that contradicts clearly established federal law,” a federal court may “review de novo the applicant’s claims, applying .the correct legal standard to determine whether the applicant is entitled to relief.” Castellanos v. Small, 766 F.3d 1137, 1146 (9th Cir.2014). There is no indication, however, that the standard set forth irl Marshall and Kelly contradicts the clearly established federal law of Pate and Drope. Petitioner emphasizes the Ninth Circuit’s statement that a federal court must “apply the same bona fide doubt standard to determine whether an additional competency hearing was required.” Pet’r’s MSJ at 55 (quoting Maxwell, 606 F.3d at 568). Even assum