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Good morning, and welcome to the Ninth Circuit sitting in Phoenix, Arizona.

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This morning we are hearing three cases for argument.

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The first case, Casa Honda versus United States, has been submitted on the briefs.

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The first case for argument is Charles McDonald versus William Hutchins.

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Counsel, if you're ready.

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Can you hear me OK?

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OK.

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Good morning, your honors, and may it please the court.

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My name is Ron Sung, and I represent Mr. McDonald.

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I'd like to reserve two minutes for rebuttal, please.

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Trial counsel here was ineffective for failing to investigate Mr. McDonald's mental health issues, including paranoia, schizophrenia, and severe depression.

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There's a reasonable probability Mr. McDonald was incompetent at trial.

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After all, he was incompetent before and after trial.

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Your honors, this is a rare case where this court doesn't have to imagine what a hypothetical reasonable attorney would have done.

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Mr. McDonald had concurrent cases where he was represented by two different attorneys.

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In this case, trial counsel John Paris was cynical about mental health.

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He didn't investigate mental health.

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He ignored obvious signs of Mr. McDonald's mental health.

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Where is it in the record that he was cynical about his client's mental health?

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That's Parz's own testimony, Your Honor.

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He testified that his clients would say they're incompetent to try to avoid harsh sentences, and that's on ER 679.

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He testified, quote, I've dealt with many, many individuals who have later been found to be

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complete malingers and faking it and not anywhere near as mentally unstable or unable to assist counsel as they claim."

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Is the circumstance different because he also testified that he had meetings with his client and his client appeared to be able to understand the process and the gravity of the situation in assistance defense?

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Yes, Your Honor, but I would just say that Strickland requires more than just an inquiry into counsel's subjective state of mind.

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Strickland requires an inquiry into the objective reasonableness

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counsel's performance.

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And here, all the objective circumstances dictate that he should have investigated.

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For example, Parris himself testified he visited Mr. McDonald, who was housed in the mental health unit of the jail.

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He testified meeting with Mr. McDonald before trial, and he thought that he believed that Mr. McDonald was self-medicating with narcotics.

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Didn't the trial judge on this proceeding state that he observed the client's behavior

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saw nothing unusual, recognized that it was his duty as a trial judge.

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If he did observe indications of competency to sue a Sponte order hearing, isn't all of that in the record?

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Yes, Your Honor.

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The judge did not see anything, but at the same time, Your Honor, the judge basically asked yes or no questions.

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Counsel, to the question that Judge Hawkins just asked you, you'd agree that that goes to the prejudice prong, correct?

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Ultimately, the trial court found that the defendant was competent to stand for trial.

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And so, regardless of whether the counsel was ineffective in exploring issues of his incompetency, at the end of the day, the judge determined that he was, in fact, competent.

[00:03:51] Speaker 01:
Well, the judge, Your Honor, didn't know about other circumstances, because the trial counsel failed to investigate.

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He failed to investigate Mr. McDonald's mental health.

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And had he done so, he would have realized Mr. McDonald

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was one self-medicating, unfortunately, with narcotics.

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What I'm really getting at here is that even if all of that were true, and we were to agree with you on the deficiency prong, I'm still not understanding how we get over the hurdle under EDPA's highly deferential standard that the state court unreasonably applied Strickland when it found no prejudice.

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Because all of that could be true, and ultimately,

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the judge asked questions and determined that he was competent to stay in trial, that really goes to prejudice.

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And you need both.

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Right.

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And as for the state court's decision, Your Honor, we argued that it was an unreasonable application of Strickland because the state court said there was no prejudice because Mr. McDonald couldn't prove he was incompetent.

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But that's not the standard.

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That's an impossible burden.

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It's impossible basically under Dusky and Pate B. Robertson to retrospectively prove that Mr. McDonald was incompetent.

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The correct standard that the state court should have applied is found in Strickland and interpreted by this court under Stanley B. Cullen that all you need is a reasonable probability that Mr. McDonald was incompetent at the time.

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Understandably argue that because there was a competency determination in the

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parallel, if you will, proceeding.

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That's part of the argument, correct?

[00:05:31] Speaker 01:
Absolutely, Your Honor.

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Isn't it correct that in that proceeding, he sort of flip-flopped between competent, incompetent, incompetent, competent, and at the end of the day, wasn't he found competent?

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Yes, Your Honor, you're right that he wasn't found or cut your argument.

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Actually, I believe that it supports our argument because it shows Mr. McDonald has just such a history of mental illness that leads to incompetence.

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But it was changing like every five months.

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So he was first found incompetent in the parallel proceeding five months after the conclusion of the case at issue here, and then found competent again another five months later, and then found incompetent.

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So it seems to suggest that he could have been competent, certainly at the time of this trial.

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Yes, Your Honor, that could be the case, but we have Dr. Royman who says that based on the evidence of Mr. McDonald's institutionalization before and after this trial, quote, it is likely Mr. McDonald was mentally ill, impairing his competency during this case preparation and trial.

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Dr. Royman testified that Mr. McDonald's

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ailments are chronic and unrelenting.

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He has psychotic disorder with persistent paranoia, which is exacerbated by drug use.

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Mr. McDonald testified that before trial in this case, he self-medicated with methamphetamines instead of taking... Right, and his counsel noted that he suspected he might be using drugs just because of weight loss, but that he didn't suspect any incompetency, that he was having any mental health issues, just that he was losing weight.

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And gave examples of he met with them before

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he went to his job.

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Why is that not reasonable conduct on behalf of his attorney?

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But his attorney was also, as I said, as I mentioned, Your Honor, earlier, he was absolutely just cynical about mental health.

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So he didn't bother to investigate.

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His other attorney, Dan Winder, Mr. McDonald's other attorney, Dan Winder, conducted the basic investigation, right?

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Got those medical records, got Mr. McDonald into a competency evaluation.

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And soon after he did, he asked for the competency evaluation.

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He was, Mr. McDonald was determined incompetent.

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But didn't his attorney testify that if he had

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certain information he would have investigated.

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For example, he had his investigator sit in on meetings with clients, and the investigator didn't raise an issue.

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But if he had, he would have looked into it.

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And then he, I believe, also testified that he'd never received a message from Mr. McDonald's partner, and that if he had, he would have investigated, which seems to undercut the inference you're asking us to draw that he was so cynical about mental health that he would just disregard his duties as an attorney and not investigate his client's mental health.

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Well, to that, your honor, I would just say that Mr. McDonald is an open book about his mental health struggles.

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We have written documentation proves that he discloses mental ailments to the Clark County.

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But isn't there a difference between mental health issues and incompetency?

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You can have a mental health diagnosis and still be competent.

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Yes, Your Honor.

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And in this case, Your Honor, Mr. McDonald's mental health and incompetency are inextricably linked.

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I mean, look what happened in his concurrent case.

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The doctor said that his mental illness symptoms flair to the extent that he was deemed incompetent.

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Those doctors in his competency evaluations determined he had psychosis and that he was extremely mentally ill and incompetent.

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Did you want to?

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Yes, I will, Your Honor.

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Thank you, Your Honor.

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Good morning, may it please the court, Adam Woodrum for respondents.

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Mr. McDonald, as the court's already observed this morning, conflates mental illness and I feel like I'm loud.

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Am I too loud?

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You're not too long.

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As this court's already observed, Mr. McDonald conflates mental illness and competency throughout his briefing and throughout his argument this morning.

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Certainly, mental illness does not equate to competency.

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Competency is something different.

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Competency is a present ability to be able to understand the proceedings and consult with counsel.

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Now, we just simply don't have any contemporaneous evidence

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that Mr. McDonald was not competent at the time of the trial.

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This is a three-day trial, and again, it's sentencing, and he's able to speak eloquently about his medication.

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What more does an attorney in his position need to know to be put on notice that perhaps he should investigate the mental health conditions of a client?

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Let me break that down if I may, which first of all is you can investigate mental health for lots of reasons.

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Insanity, defenses, mitigation and sentencing.

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But again, that doesn't equate to a lack of competency.

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And the other part of that is that, I lost my train of thought, I apologize.

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As this court stated in Deer, counsel's observations are very important.

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And counsel observed numerous indicia that Mr. McDonald was competent.

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The state district court, the state trial court, believed his testimony, specifically said, in order for me to find that Mr. McDonald was not competent, I would have to disbelieve everything that John Paris told me.

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So I think that

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you would have to have some indicia that counsel observed.

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And I understand that counsel is not a doctor.

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So your argument is that counsel themselves would have to determine that their client is incompetent or observe that directly, even in light of evidence that there is mental health conditions in order for them to have a duty to investigate mental health concerns?

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Well, precisely.

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And if that's your argument, what's the best case that you have to support that position?

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Well, I mean, in terms of case law, I think dear is on point in this case, which is that the contemporaneous evidence of a defendant's present ability to consult with counsel is, I think they use the word strongly or heavily weighted.

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And so without some indication to counsel that somebody is incompetent, I don't know what they're supposed to do.

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And I'm not suggesting that they have to be a doctor in order to be an attorney, that they have to be able to make mental health diagnoses.

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You just have to be able to know whether somebody is able to assist you, able to understand what's going on.

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And again, Mr. Parris had numerous indicia that Mr. McDonald was competent.

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And frankly, aside from old mental health records, I apologize, and a lot of folks in the criminal justice system have mental health issues.

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So aside from those old mental health records, there's nothing to indicate that Mr. McDonald was incompetent.

[00:12:12] Speaker 03:
What about his partner contacting the attorney?

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And there seemed to be a conflict in the testimony.

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The attorney states he didn't get a message from the partner.

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He doesn't recall that.

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And the partner says, I contacted him to raise concerns about Mr. McDonald's mental competency.

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And it seems the district court credited Mr. Paris over the partner.

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Was that reasonable?

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And was that something that should have alerted the attorney that he needed to investigate?

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Well, I suppose supposing that was true, and again, as you observed,

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the district court sort of had these incompatible versions between the difference between Mr. McDonald's own testimony and John Parris' testimony that the state district court had that in front of them and necessarily credited Mr. Parris with the, I guess, the credibility contest as state counsel called it.

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What information did counsel in the concurrent proceeding

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have?

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What indications of possible competency questions that Mr. Parris did not have?

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And the record is frankly not developed on that point.

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And it wasn't developed in state court.

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To some extent, it's unfortunate that we didn't have Dan Wynder testify.

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I'm not saying we, the state, that we don't have the benefit of Dan Wynder's testimony.

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But what frankly might have happened is that Mr. McDonald might have told him that.

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And if you look into Mr. McDonald's post-conviction- Do we know that from the record?

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I'm sorry?

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Do we know that from the record?

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We don't, Your Honor.

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That McDonald told counsel in the parallel proceeding that, look, I'm not sure I'm mentally ready to stand up to trial.

[00:14:07] Speaker 00:
Well, it's not on the record.

[00:14:08] Speaker 02:
There's no indication of that, is there?

[00:14:09] Speaker 00:
There's not, Judge.

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And that's a gap in the record.

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But I wanted to- That's all we have to deal with is the record.

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I understand.

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I understand.

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I promise I was leading somewhere with that, which is that if you look at Mr. McDonald's own testimony and post-conviction, he says that there was times when he felt that Mr. Paris was a quote, outsider, and that he couldn't communicate with Mr. Paris.

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And so there is some evidence in the record that Mr. McDonald may have, I mean, I don't want to accuse him of hiding mental health symptoms, but that he might just not have felt comfortable discussing those issues with Mr. Paris, his first counsel.

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And the other issue is that once

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Mr. Winder, second counsel, got the case, however many months later.

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Mr. McDonald had been remanded, so he was in custody.

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Right up to trial, by his own testimony, he was receiving mental health counseling.

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Now there's some dispute in the briefing about whether or not he was receiving medication up to that moment.

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I don't know if that's resolved or not, but he was out of custody, working, functioning, and then that last day of trial, when he speaks eloquently on the record about why he wants to

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He has a job that's going to pay him some money, and he wants to stay out of custody.

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He's remanded.

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And then for however many months, he's in remand.

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And obviously, he loses the benefit of that intensive outpatient treatment.

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Are there any other questions?

[00:15:39] Speaker 03:
I don't think so.

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Thank you.

[00:15:40] Speaker 03:
Thank you.

[00:15:50] Speaker 01:
All right.

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I would just like to start off by going through some of the deficient performance issues.

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I want to say that Mr. McDonald is simply an open book.

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He told everybody about his mental health struggles.

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He told his public defenders before they were conflicted off.

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He told his other attorney, Dan Winder.

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He told the judge at sentencing.

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He told the parole officer when they were completing the PSI.

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And that's why the PSI has Mr. McDonald's history of mental illness.

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It's just strange credibility belief that Mr. McDonald just happened to skip Parris, of all people, about telling about his mental health issues.

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More likely than not, he told them and Mr. Parris simply just didn't investigate.

[00:16:33] Speaker 03:
Is there anything in the record to support that?

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Did Mr. McDonald testify that he told Mr. Parris that he had concerns and wanted to be evaluated?

[00:16:41] Speaker 01:
Yes, Your Honor.

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Mr. McDonald testified that when he told Parris about Dan Winders,

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attempts to get him the competency evaluation, Parris dismissed the idea as merely a road bump.

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Quote, the only thing they're going to do to me, I'm sorry, the only thing they're going to do is put me on more meds and I'll have to go forward.

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And as for the prejudice, Your Honors, I just want to mention that at the trial, Mr. McDonald said that he relapsed, he self-medicated.

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On the last day of trial, we have contemporaneous evidence that

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He was experiencing suicidal thoughts, hearing voices, and seeing shadows.

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And with that, Your Honor, I'd just like to conclude.

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The state court's decision unreasonably applied Strickland on both prongs.

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For deficient performance, they only relied on counsel's subjective state of mind.

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And on the prejudice, they required Mr. McDonald to retrospectively determine he was incompetent, which is impossible.

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And with that, we submit.

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Thank you, Your Honor.