Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Western District of Washington, Barbara J. Rothstein, District Judge, Presiding.
Before LAY, BEEZER, and TROTT, Circuit Judges.
The Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by designation.
ORDER WITHDRAWING MEMORANDUM DISPOSITION
The memorandum disposition filed in this case on May 16, 1997, is hereby WITHDRAWN. A new disposition of this appeal is filed with this order.
This disposition is not appropriate for publication and may not be cited to or by the courts in this circuit except as provided by Ninth Circuit Rule 36-3.
Mark Cook appeals the district court's denial of his petition for a writ of habeas corpus. Cook is currently in custody at the Washington State Reformatory pursuant to a 1976 conviction and 1978 sentence for both First Degree Assault and Aiding a Prisoner to Escape. Cook's petition alleges that he is in custody in violation of the Constitution because his 1978 sentence was enhanced by his 1958 conviction, which Cook contends is constitutionally invalid. Specifically, Cook argues: 1) that his 1958 conviction is unconstitutional under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), because the trial court failed to order a competency hearing. We review the denial of habeas corpus relief de novo, Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994), and we affirm.
State courts have a constitutional obligation under the Due Process Clause to hold a hearing to determine competency whenever they have a "substantial" or "bona fide" doubt of competency. de Kaplany v. Enomoto, 540 F.2d 975, 979-83 (1976) (en banc). If a state trial court does not discharge this constitutional obligation, the defendant's conviction must be reversed. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
In reviewing the state court's decision, we must determine "whether a reasonable judge ... should have experienced doubt with respect to competency to stand trial." Chavez v. United States, 656 F.2d 512, 515 (9th Cir.1981). We may only consider evidence that was before the trial judge at the time of trial. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993).
Cook has not introduced evidence from the record of his 1958 trial which would show that the 1958 trial judge should have doubted Cook's competency to stand trial. Cook's 1958 attorney did inform the court that "a reasonable doubt" existed as to Cook's sanity because he had been under "mental observation" in two state hospitals for three years ending in 1956. In response to this affidavit, however, the trial court ordered a psychiatric evaluation, which dispelled the possibility of any mental condition that could be a defense, and Cook's attorney apparently never raised the issue again. In the absence of other indicia of incompetency, Cook's attorney's affidavit would not have led a reasonable judge to doubt Cook's competency to stand trial.
Cook also argues that the district court failed to provide him with fair notice of the requirements of the summary judgment rule, as required by Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988). Although there is insufficient evidence in the record that the district court provided the requisite Klingele notice, any such error was manifestly harmless under the test established in Rand v. Rowland, No. 95-15428, slip op. filed August 27, 1998. Cook filed his own procedurally adequate opposition to the State's motion for summary judgment, as well as his own motion for summary judgment. Cook fails to identify any evidence or arguments he would have introduced if he had received notice of the summary judgment requirements. Moreover, as contemplated in Rand, Cook himself cited Klingele in the district court in a motion for enlargement of time in which to respond to the State's motion for summary judgment. Cook said that he had "waited for notice from the court directing me when if ever to file an opposition to respondent's motion for summary judgment pursuant to Klingele v. Eikenberry." His demonstrated familiarity with Klingele creates an objective basis to hold harmless the notice defect.
Finally, Cook argues that the district court abused its discretion by allowing the state to file an untimely answer to his complaint and by refusing to enter a default judgment in his favor. This argument is without merit. "The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment." Gordon v. Duran, 895 F.2d 610, 612 (9th Cir.1990).
AFFIRMED.