Hibbler v. Benedetti, No. 11-16683 (9-10-12) (Ikuta with Nelson and Rawlinson).

The mentally troubled petitioner entered into a plea agreement. It was an Alford plea, and carried a stipulated term of between 5 and 15 years. After a plea, and then a motion to withdraw, and then a withdrawal of the withdrawal, and a sentencing, the petitioner argued that the court should have conducted a competency hearing on whether he could have competently entered into a plea. The state courts denied, and the 9th affirms the denial. The 9th holds that under AEDPA, an evidentiary hearing is not necessarily required if the record refutes the factual allegations or otherwise precludes relief. Here, the state court had a competency evaluation prepared, where the expert found the petitioner competent, and the colloquy indicated he was aware, It was not an unreasonable determination. In addition, there was no IAC.

Wood v. Ryan, No. 08-99003 (9-10-12) (Thomas with Gould and Bybee).

The 9th affirms the denial of petition in a capital case that raises a whole litany of alleged prosecuorial misconduct. The questions of the prosecutor to the defense expert on whether he had considered hypnosis did not undermine the credibility of the expert, but actually enhanced it. Moreover, the questions as to the petitioner's past actions fell into the acceptable scope of cross examination. Other issues of prosecutorial misconduct were procedurally barred.