Kevin v. Virga

Filing 26

ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Kevin Lipscomb. Signed by Judge James Donato on 10/13/15. (lrcS, COURT STAFF) (Filed on 10/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN LIPSCOMB,

Case No. 13-cv-05744-JD

Petitioner,
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v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

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TIM VIRGA,
Respondent.

Re: Dkt. No. 24

United States District Court
Northern District of California

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Kevin Lipscomb, a pro se state prisoner, has brought a habeas petition pursuant to 28

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U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted.

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Respondent filed an answer and a memorandum of points and authorities in support of it.

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Petitioner filed a traverse. The petition is denied.
BACKGROUND

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Petitioner was found guilty of evading a police officer with willful and wanton disregard

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for the safety of persons and property, possession of a firearm by a felon, discharging a firearm

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from a motor vehicle, and assault with a semiautomatic firearm. Clerk’s Transcript (“CT”) at 339-

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42. The trial court also found true the enhancement allegations for prior felony convictions, prior

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serious felony convictions, and prior prison terms. Id. at 198-99, 486. Lipscomb was sentenced to

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67 years to life in prison. Id. at 517.

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The California Court of Appeal ordered the restitution fine reduced to $10,000, but

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affirmed the judgment in all other respects. People v. Lipscomb, No. A128549, 2012 WL

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2519057, at *1 (Cal. Ct. App. June 29, 2012). The California Supreme Court denied review on

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September 12, 2012. Answer, Ex. 9. Lipscomb has since filed several state habeas petitions, all

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of which were denied. Answer, Exs. 10-14.

STATEMENT OF THE FACTS

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The California Court of Appeal summarized the relevant facts of the underlying crime as
follows:

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The Shooting

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On June 4, 2007, at approximately 11:55 a.m., Kenneth Lee parked
his car on Townsend Street in San Francisco, got out, and walked to
a nearby crosswalk where he waited for the pedestrian crossing light
to turn green. As he stood there, a silver Dodge Charger driven by
defendant pulled up into the crosswalk. Defendant made eye contact
with Mr. Lee and kept looking over at him. Because Mr. Lee
thought perhaps he knew the driver or that he was lost and wanted
directions, he bent down to peer in through the open passenger side
window and asked, “Can I help you?” Defendant, whom Mr. Lee
did not recognize, looked at him with a smirk on his face and
reached out as if he were going to hand him something. Instead,
defendant shot him two to three times. Mr. Lee, who suffered
gunshot wounds to his left forearm and both groins, collapsed onto
the sidewalk. Defendant drove away.

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San Francisco police officer Richard Lee was in a nearby store on
Townsend Street when he heard two gunshots. He immediately ran
outside and saw Mr. Lee on the ground. As he ran towards him,
Officer Lee saw some bystanders pointing down Third Street. He
looked in the direction they were pointing and saw the back of a
silver car that looked like a Dodge Charger. As he was running, he
radioed to police dispatch that there had been a shooting and that the
suspect was in a silver car that was heading down Townsend Street
past Third Street. He then turned his attention to Mr. Lee. Over the
radio, he heard other officers reporting that they had the silver car in
their view.
The Police Chase
Officer Anthony Holder and recruit Officer Christine Hayes had just
initiated a traffic stop on New Montgomery Street near Mission
Street when they heard a radio broadcast of shots fired near Third
and Townsend Streets, with the suspect in a gray or silver car
heading towards the freeway. Anticipating that the driver might
attempt to get on the Bay Bridge, they got in their patrol car and
drove to the area of Bryant and Second Streets. As they were
stopped at a red light, Officer Holder spotted a gray Dodge Charger
being driven by defendant heading towards them. The officer made
a U-turn and pulled up behind the car. When he did so, defendant
suddenly accelerated and sped off. Officers Holder and Hayes took
off in pursuit and were soon joined by San Francisco Police Officer
Gary Peachey and others.
After leading the police on a high-speed chase through the city
streets—reaching speeds of 80 miles per hour at one point, as well
as hitting a car that was stopped in traffic—defendant eventually
became unable to maneuver through traffic, so abandoned his car at
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Mission Street and New Montgomery and fled on foot. Officers
Holder and Hayes followed him, with Officer Peachey right behind.
They chased him into an alley before briefly losing sight of him.
Officer Peachey noticed a construction worker pointing to the door
of an abandoned building, so he went inside. Searching the
building, he found defendant in a bathroom, breathing hard and with
his shirt stripped off. Defendant was taken into custody without
further incident.
Meanwhile, other officers who had been involved in the pursuit had
secured defendant's abandoned car, which bore the license plate
“5RLG375.” Inside, they found a .40-caliber, semi-automatic
handgun lying on the front passenger seat. The hammer of the gun
was cocked, which typically indicates that the gun has recently been
fired. They also found three bullet casings, an unfired .40-caliber
bullet, and a wallet containing defendant's driver's license.
Defendant's fingerprint was found on the gun, as well as on other
objects in the car, and the driver's side headliner and a glove in the
car tested positive for gunshot residue. A bullet jacket found at the
scene of the shooting had been fired from the gun found in
defendant's car.
Witnesses to the Shooting
There were numerous witnesses to the incident. Lindell Wilson was
walking down Townsend Street when he heard a “pop.” He looked
up in the direction of the noise, heard another “pop,” and then saw
Mr. Lee drop to the ground about 125 yards away. A silver car—the
only car that Mr. Wilson remembered seeing in the vicinity—then
drove past him down Townsend. Mr. Wilson was on the driver's
side of the car, and through the open driver's side window, saw
defendant behind the wheel. The car stopped at the next intersection
because the light was red, which gave Mr. Wilson enough time to
note the license plate number—5RLG375—and write it down. He
then gave the number to the police who responded to the scene.
Kerry Atkinson was also walking on Townsend Street, getting ready
to have lunch with his wife and a coworker. As he was standing on
the street corner, a silver car stopped in the crosswalk across the
street from him. The windows were down on both sides of the car,
and through the open window he could see the silhouette of a
stocky, black man in the driver's seat. He saw Mr. Lee bend down
to the car window and have an exchange with the driver. He heard
two shots come from the car and saw Mr. Lee fall to the ground.
The car then drove off down Townsend Street. Mr. Atkinson ran
over to help Mr. Lee, and when Officer Lee arrived, he provided a
description of the car and the direction in which it was heading. Mr.
Atkinson was later taken to New Montgomery and Mission Streets
and shown defendant's car, which he identified as the car he saw
leave the scene of the shooting. He was unable to positively identify
defendant as the driver, but he said that defendant was “very
similar” to the shooter.
William Sherman was at an automobile window repair shop on
Townsend Street. He had just walked out of the shop and headed
left onto Townsend towards Third Street when he heard two
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gunshots. Looking across the street from where the sound had
come, he saw a grey or silver car stopped in or near a crosswalk and
Mr. Lee lying on the street. The car then pulled away slowly,
stopped at a red light at Third and Townsend, and turned toward
Second Street. Because he suspected that the car had been involved
in some kind of incident, Mr. Sherman tried to note the license plate
but was only able to get the numbers and not the letters. He gave
the partial plate— 5___375—to Officer Lee. He was later taken to
another location, where he identified defendant's car as the car he
saw on Townsend Street.
A nearby security camera captured an image of a car resembling
defendant's on Townsend Street at the time of the shooting.
Mr. Lee’s Identification of Defendant
Mr. Lee suffered serious injuries and was taken to San Francisco
General Hospital, where he would undergo surgery. Before he was
taken into surgery, however, the police brought defendant to the
hospital for possible identification. Mr. Lee, who had been given “a
lot” of pain medication, could not say “100 percent” that defendant
was the assailant, although he noted that they shared some
similarities, such as the roundness of the face, build, age, and
mustache.
At a preliminary hearing in 2008, however, Mr. Lee positively
identified defendant as the shooter. And he reiterated his positive
identification at trial, explaining he had no doubts because “I'll never
forget those eyes.” At trial, Mr. Lee explained why he had been
unable to make a positive identification in the hospital but could do
so at the preliminary hearing: “Well, I was of clear mind. And the
circumstances which I—at the hospital, I couldn't in my heart,
because I really wasn't 100 percent coherent, having just been shot,
pumped full of medication, being pressured to go into surgery and
having all the inspectors trying to get a statement from me and make
an identification, I just didn't think it was fair to—I couldn't do it.”
On cross-examination, Mr. Lee acknowledged that on the day of the
preliminary hearing, while he was waiting outside the courtroom,
one of the officers involved in the case put a file down on the bench
next to him, and he saw defendant's picture on the file. Mr. Lee told
the officer, “That's the guy who shot me.” The officer responded,
“You didn't see this.”
Defendant’s Confession
San Francisco police inspectors Mike Morley and Rich Danielly
interviewed defendant shortly after his arrest. When asked if he
would like to talk about what happened that day, defendant
responded that he was “just tripping,” that he “[j]ust was upset,”
“frustrated,” and depressed because he was broke and could not get
a better job. He then explained that he drove his wife's car from
Vallejo, and as he was driving down a street in San Francisco, he
saw an Asian man walking. He stopped his car and said, “Excuse
me.” When the man looked over, he fired two to three times
through the open passenger window with a .40–caliber gun that he
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had bought off the street. This was, according to defendant, the first
time he had ever shot someone randomly. He claimed he was not
trying to hurt anybody and that he felt bad afterwards. He also
claimed that he did not realize that he shot the man. He had seen
Mr. Lee at the hospital, and denied that he was the man at whom he
had fired his gun. When asked what happened after he fired the gun,
defendant admitted leading the police on a high-speed chase.
Lipscomb, 2012 WL 2519057, at *1-3 (footnote omitted).
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on the

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basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication

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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

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States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first

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prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor,

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529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under the first

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clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by

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[the Supreme] Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.

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A state court decision is an “unreasonable application of” Supreme Court authority, falling under

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the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the

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Supreme Court's decisions but “unreasonably applies that principle to the facts of the prisoner’s

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case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be

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“objectively unreasonable” to support granting the writ. Id. at 409.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will
not be overturned on factual grounds unless objectively unreasonable in light of the evidence
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presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v.

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Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, in conducting its analysis, the federal

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court must presume the correctness of the state court’s factual findings, and the petitioner bears the

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burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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The state court decision to which § 2254(d) applies is the “last reasoned decision” of the

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state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d

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1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to

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consider the petitioner’s claims, the court looks to the last reasoned opinion. See Nunnemaker at

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801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
DISCUSSION

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United States District Court
Northern District of California

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As grounds for federal habeas relief, Lipscomb asserts that: (1) counsel was ineffective for

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failing to challenge the victim’s identification and the trial court erred by admitting this suggestive

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identification; and (2) the trial court erred by failing to hold a competency hearing and counsel

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was ineffective for failing to request a competency hearing and not moving to suppress his

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statement to police.

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I.

IDENTIFICATION EVIDENCE
Lipscomb argues that counsel was ineffective for failing to challenge the victim’s

identification and that the trial court improperly admitted the evidence.

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Legal Standard

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A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth

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Amendment right to counsel, which guarantees not only assistance, but effective assistance of

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counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any

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claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning

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of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must

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establish two things. First, he must establish that counsel’s performance was deficient, i.e., that it

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fell below an “objective standard of reasonableness” under prevailing professional norms.

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Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel’s
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deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A

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reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

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“A conviction which rests on a mistaken identification is a gross miscarriage of justice.”

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Stovall v. Denno, 388 U.S. 293, 297 (1967). Thus, the Constitution “protects a defendant against a

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conviction based on evidence of questionable reliability, not by prohibiting introduction of the

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evidence, but by affording the defendant means to persuade the jury that the evidence should be

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discounted as unworthy of credit.” Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012) (citing

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rights to counsel, compulsory process, confrontation, cross-examination, as examples).
Due process requires suppression of eyewitness identification evidence “when law

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enforcement officers use an identification procedure that is both suggestive and unnecessary.” Id.

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at 718; see Manson v. Brathwaite, 432 U.S. 98, 107-09 (1977); Neil v. Biggers, 409 U.S. 188, 196-

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98 (1972). The purpose of this rule is “to deter police from rigging identification procedures.”

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Perry, 132 S. Ct. at 721.

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Discussion

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The California Court of Appeal denied the claim that counsel was ineffective:

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Defendant challenges the validity of his conviction on that ground
that Mr. Lee’s identification of him as the shooter was procured in
an unduly suggestive manner, specifically, that it was improperly
influenced by the police officer who let him see—unintentionally or
otherwise—defendant’s mugshot while he was waiting to testify at
defendant’s preliminary hearing. Defendant contends that his
counsel should have moved to strike Mr. Lee’s identification of him,
and that the failure to do so amounted to ineffective assistance of
counsel. Further, he claims that admission of Mr. Lee’s testimony at
trial violated his right to due process. We need not decide whether
Mr. Lee’s identification was improperly influenced, however,
because in order to prevail on his claims, defendant must also
demonstrate that he was prejudiced by the alleged error. This, he
cannot do.

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Multiple eyewitnesses identified defendant’s car as the car involved
in the shooting. Lindell Wilson saw a silver car driving away from
the scene of the shooting. He wrote down the license plate number,
which matched that of the car defendant was driving during the
police chase. Mr. Wilson also identified defendant as the driver of

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the car. Kerry Atkinson saw a silver car leaving the scene, and
when later shown defendant’s car, identified it as the car he saw
leaving the shooting. William Sherman saw a silver or gray car
leaving the scene and noted the numbers of the license plate,
numbers that matched those on defendant’s plate. He later identified
defendant’s abandoned car as the car he saw leaving the shooting.
Officer Lee, who was in a nearby store when the shooting occurred,
saw witnesses pointing to a car that was leaving the scene, a car he
identified as a Dodge Charger, which was the make and model of
defendant's car. Finally, a closed-circuit television in the vicinity of
the shooting recorded a Dodge Charger at the scene at the time of
the shooting.
A car matching the description of that involved in the shooting was
spotted by numerous San Francisco police officers within moments
of the shooting, and defendant was driving that car. Officers Holder
and Hayes, who led the pursuit, saw defendant exit the Dodge
Charger and continue running on foot. Officer Peachey chased
defendant from the car to the abandoned building where he was
ultimately arrested.
Further, the forensic evidence tied defendant to the shooting. A gun
bearing defendant’s fingerprint was found in his car, and gunshot
residue was detected on the car's headliner and a glove found in the
car. A bullet casing retrieved from the scene of the shooting had
been fired from the gun in defendant's car.
Finally, defendant admitted to Inspectors Morley and Danielly that
he fired his gun at an Asian man walking down the street in San
Francisco.
In light of this evidence, there can be no question but that the
outcome of the trial would have been the same even without Mr.
Lee’s identification. As defendant cannot establish that but for his
counsel’s failure to move to strike Mr. Lee’s identification, there
was a reasonable probability that the outcome would have been
different, his ineffective assistance of counsel claim fails.
Lipscomb, 2012 WL 2519057, at *4-5.

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The California Court of Appeal reasonably applied Strickland in ruling that Lipscomb was
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not prejudiced by counsel’s failure to object to the identification evidence. It is clear an objection

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to the identification would not have produced a different result. Even without Mr. Lee’s
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identification, there was a wealth of other evidence that could have easily led to his conviction.
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The state court noted the other eyewitnesses, the confession, and the physical evidence implicating
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Lipscomb. To be entitled to habeas relief, Lipscomb must have made it clear that the likelihood of
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a different result in his trial is not just “conceivable,” but “substantial.” Harrington v. Richter,
562 U.S. 86, 112 (2001). The likelihood of a different result without Mr. Lee’s identification is

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not even conceivable, let alone substantial. Accordingly, Lipscomb is not entitled to habeas relief

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on this claim.

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The California Court of Appeal also found that the trial court did not err in admitting the
identification evidence:

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The absence of prejudice similarly defeats defendant’s claim that he
was deprived of due process. (See Chapman v. California (1967)
386 U.S. 18, 24 [where defendant was deprived of a federal
constitutional right, no reversal where error was harmless beyond a
reasonable doubt].) In light of the overwhelming evidence of
defendant’s guilt, as detailed above, there can be no doubt that any
claimed error in the admission of Mr. Lee’s identification was
harmless.
Defendant impliedly concedes the correctness of this conclusion. In
his opening brief, he argues that Mr. Lee’s identification of
defendant was the result of an unduly suggestive identification
process, and that without it, the prosecution would have had “a
difficult time establishing beyond a reasonable doubt that
[defendant] was the man who shot Lee.” In response, the People
detail the extensive evidence, aside from Mr. Lee’s identification,
establishing that defendant was the shooter, and argue that in light of
the evidence, defendant cannot show prejudice. In reply, defendant
completely fails to acknowledge this argument. Rather, he merely
reargues his position that Mr. Lee’s identification was unduly
influenced and therefore unreliable. He ignores the eyewitness
testimony and forensic evidence tying him to the crime, baldly
concluding that “Lee’s identification of [defendant] at trial was
necessarily prejudicial to appellant.” By failing to respond to the
People’s argument that he was not prejudiced by the admission of
Mr. Lee’s identification because of the other evidence identifying
him as the shooter, defendant has as much as conceded the validity
of the argument.
Lipscomb, 2012 WL 2519057, at *5.
The Supreme Court has made it clear that a defendant is not necessarily entitled to exclude

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unreliable testimony from the record entirely. So long as the defendant is afforded the “means to

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persuade the jury that the evidence should be discounted as unworthy of credit,” due process has

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not been violated. Perry, 132 S. Ct. at 723. Lipscomb was afforded such means to challenge the

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creditworthiness of Mr. Lee’s identification. The circumstances of the identification were

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presented to the jury, and on cross-examination and closing argument trial counsel directly called

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into doubt the reliability of the identification. Reporter’s Transcript (“RT”) at 220-23; 1032-36.

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Lipscomb was not denied his due process rights when Mr. Lee’s identification was admitted

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because he was given the opportunity to discredit the identification.

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Even if pretrial identification procedures violated the Due Process Clause, that error must

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still be analyzed for harmlessness under the standard set forth in Brecht v Abrahamson, 507 U.S.

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619, 623 (1993), to determine if the error had a “substantial and injurious effect or influence on

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the jury’s verdict.” See Williams v. Stewart, 441 F.3d 1030, 1038–39 (9th Cir. 2006) (considering

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allegedly unconstitutional pretrial identification procedure, and analyzing for harmlessness under

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Brecht); see also Johnson v. Sublett, 63 F.3d 926, 928–29 (9th Cir. 1995) (prejudice from

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unreliable identification may be mitigated by cross-examination and other courtroom safeguards);
Simmons v. United States, 390 U.S. 377, 384 (1968) (danger that photo lineup technique may

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result in conviction based on misidentification may be lessened by cross-examination at trial).
Even if it were an error to admit the evidence, Lipscomb cannot demonstrate that it had a

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detrimental effect upon his defense. The California Court of Appeal reasonably applied

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established constitutional law in denying this claim, and the admission of the identification

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evidence did not have a substantial and injurious effect upon his defense. As discussed above, the

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remaining incriminating evidence against Lipscomb was overwhelming. This claim is denied.

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COMPETENCY
Lipscomb next argues that the trial court erred in failing to hold a competency hearing and

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that counsel was ineffective for failing to raise the issue and not moving to have Lipscomb’s

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statement to the police suppressed.

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Legal Standard

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The test for competence to stand trial is whether the defendant demonstrates the ability “to

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consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well

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as factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396

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(1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)); Douglas v. Woodford,

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316 F.3d 1079, 1094 (9th Cir. 2003). The question “is not whether mental illness substantially

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affects a decision, but whether a mental disease, disorder or defect substantially affects the

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prisoner’s capacity to appreciate his options and make a rational choice . . . .” Dennis v. Budge,

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378 F.3d 880, 890 (9th Cir. 2004).

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Due process requires a trial court to order a psychiatric evaluation or conduct a

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competency hearing sua sponte if the court has a good faith doubt concerning the defendant’s

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competence. Pate v. Robinson, 383 U.S. 375, 385 (1966). This responsibility continues

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throughout trial. Drope v. Missouri, 420 U.S. 162, 181 (1975).

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A good faith doubt about a defendant’s competence arises if “a reasonable judge, situated

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as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed,

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should have experienced doubt with respect to competency to stand trial.” Maxwell v. Roe, 606
F.3d 561, 568 (9th Cir. 2010) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)

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(en banc)); see, e.g., Stanley v. Cullen, 633 F.3d 852, 860-61 (9th Cir. 2011) (not unreasonable for

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trial court to conclude there was not enough evidence before it to raise a doubt about defendant’s

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competence to have sua sponte held a hearing where defendant made some questionable choices in

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strategy and acted oddly but defense counsel specifically informed trial court several times that

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they had no doubt about defendant’s competency to assist them and defendant was coherent in his

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testimony and colloquies with the court); Cacoperdo v Demosthenes, 37 F.3d 504, 510 (9th Cir.

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1994) (denial of motion for psychiatric evaluation did not render trial fundamentally unfair where

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petitioner made single conclusory allegation he suffered from mental illness).

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Several factors are relevant to determining whether a hearing is necessary, including

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evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion

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on competence to stand trial. Drope, 420 U.S. at 180. “In reviewing whether a state trial judge

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should have conducted a competency hearing, we may consider only the evidence that was before

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the trial judge.” McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008). The failure of

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petitioner or his attorney to request a competency hearing is not a factor in determining whether

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there is a good faith doubt in the defendant’s competency. Maxwell, 606 F.3d 574 (trial judge has

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an “independent duty” to hold competency hearing if there is a good faith doubt).

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Discussion

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The claim that the trial court erred by not holding a competency hearing was presented in a

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state habeas petition to the San Francisco County Superior Court, which was the last court to issue

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a reasoned decision. The Superior Court denied the claim stating:

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Petitioner alleges in his writ of habeas corpus that he was denied due
process because the trial court failed to order a mental competency
hearing. Petitioner concedes that neither his counsel nor the court
ever raised the issue of his competency, but he argues this is not
determinative, especially considering his mental health history.

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...

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Petitioner fails to provide sufficient documentary evidence that he
was mentally incompetent at the time of trial. To support his claim,
petitioner includes with his writ of habeas corpus his mental health
records from San Quentin, High Desert State Prison, and the state
prison in Sacramento. The evidence describes, for instance, a past
suicide attempt, petitioner’s being placed in a safety cell, certain
diagnoses such as adjustment disorder with conduct problems and
antisocial personality disorder, and behavior while incarcerated.
However, all of the evidence provided documents events and
diagnoses that occurred after he was convicted of his life crimes.
Petitioner provides no evidence that he was suffering from any
apparent mental health issues at the time of his trial, which
commenced in December 2008 and ended in 2009. Accordingly,
none of the records indicate that at the time of his trial he was
“unable to understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational manner.”
(Cal. Pen. Code § 1367(a).)

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United States District Court
Northern District of California

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Ex. 11 at 1-2.
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In this case, the state court found that Lipscomb failed to provide sufficient evidence that a
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competency hearing was necessary or that he was mentally incompetent at trial. “In reviewing

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whether a state trial judge should have conducted a competency hearing, we may consider only the
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evidence that was before the trial judge.” McMurtrey, 539 F.3d at 1119.

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Lipscomb presents no evidence to support his assertion that he was incompetent at the time
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of the trial. The majority of evidence he presents occurred well after his trial and was therefore
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unknown by the trial court. He identifies no interactions with counsel or the court that should
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have called his competency into question. The trial began on December 9, 2008, and ended on
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January 14, 2009. Lipscomb, 2012 WL 2519057 at *4; RT at 1083-94. Lipscomb argues that his
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psychiatric disorder became clearly apparent on March 17, 2010, while in San Francisco County

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Jail. Answer, Ex. 10 at 126 of 256. The remainder of his evidence consists of prison medical

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records dated 2010 and later. The only reference to any mental problems prior to 2010 is a note in

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a prison medical report that Lipscomb had been hospitalized in June 2007 in the jail psychiatric

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services section. Answer, Ex. at 141 of 256. There is no additional information regarding this

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incident nor is it alleged that the trial court was aware of it, and Lipscomb presents no arguments

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how this incident 18 months prior to trial, supports his assertion of incompetency at trial.

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Moreover, on December 8, 2008, a day before the trial commenced, Lipscomb testified at a
hearing on a motion to suppress his statement. Answer, Ex. 3 at 139, 159-78. The transcripts of

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the hearing reflect competent testimony, in that he understood the questions being asked and he

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United States District Court
Northern District of California

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provided thoughtful answers. Id.; see, e.g., Benson v. Terhune, 304 F.3d 874, 885-86 (9th Cir.

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2002) (testifying in one’s own defense is the “quintessential act of participating in one’s own trial”

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and a defendant’s “lengthy, logical and cogent trial testimony reflects a sufficient ability to

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understand the proceedings and to assist in her own defense”)

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Lipscomb presents no evidence that he was mentally impaired at the time of his trial. His

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conclusory arguments with no support are insufficient to establish any indicia of incompetence.

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This claim is denied because he has failed to demonstrate that the state court opinion was an

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unreasonable determination of the facts or an unreasonable application of Supreme Court

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authority.

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The San Francisco Superior Court also denied the claim that trial counsel was ineffective
for failing to request a competency hearing and not moving to suppress the statement to police:
Here, petitioner provides no facts to support his claim that trial
counsel was inattentive to petitioner’s mental instability and should
have requested a competency hearing. In fact, as discussed above,
petitioner does not provide any evidence that he was mentally
unstable at the time of his trial. Further, trial counsel’s failure to
move to suppress petitioner’s statements to the police was a tactical
decision. Given that the transcript of the police interview that
petitioner attached to his writ shows he clearly waived his Miranda
rights, trial counsel was reasonable in not moving to suppress the
statements. The reviewing court should not second guess counsel’s
decision. After all, it is reasonable for counsel to not move to
suppress statements that do not violate a defendant’s constitutional
rights. If petitioner is arguing these statements should have been
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suppressed because of his mental incompetency, petitioner, again
has not provided sufficient documentary evidence to support his
claim.

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Moreover, while petitioner claims that counsel’s failure to suppress
the statements and failure to request a competency evaluation
prejudiced him in general, he has not given any concrete explanation
of how he was prejudiced nor has he demonstrated a reasonable
probability that the overall result of his trial would have been
different had these particular tactical decisions not been made.
Thus, petitioner fails to provide sufficient evidence that his trial
counsel was ineffective.

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Ex. 11 at 5.
Counsel’s failure to request a competency hearing violates the Sixth Amendment right to
effective assistance of counsel only when “there are sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt the defendant’s competency, and there is a

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United States District Court
Northern District of California

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reasonable probability that the defendant would have been found incompetent to stand trial had

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the issue been raised and fully considered.” Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011)

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(quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)).

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Lipscomb offers no evidence that he was mentally impaired at the time of his trial that

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could establish sufficient indicia of incompetence. When evaluating counsel’s performance for

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effective assistance purposes, counsel’s performance should be “viewed as of the time of counsel’s

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conduct,” and not after the fact. Strickland, 466 U.S. at 690. Counsel could not possibly have

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concluded that Lipscomb was incompetent to stand trial from incidents that took place at times far

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outside of the trial, or from Lipscomb’s statements and conduct during trial. “The reasonableness

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of counsel’s actions may be determined or substantially influenced by the defendant’s own

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statements or actions.” Strickland, 466 U.S. at 691.

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Lipscomb testified competently at the motion to suppress hearing and also competently

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addressed the court to make a motion for a new trial and new counsel and to request a hearing

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regarding the assistance of his second appointed counsel. RT at 1091-93, 1097-99. None of these

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interactions indicated any reason to doubt Lipscomb’s competency. As such, the state court’s

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decision was not unreasonable.

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Nor was counsel ineffective for failing to move to suppress the statement to police

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pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Counsel did seek to suppress the statement

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on the grounds that it was obtained as a result of Lipscomb’s unlawful arrest and detention and

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that the statement was involuntary. CT at 52-63; RT at 55-131, 141-81. The record also indicates

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that Lipscomb waived his Miranda rights at the beginning of his interview with police. CT at 272.

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Counsel thus made a reasonable tactical decision not to raise a motion citing Miranda and instead

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challenge the statement through other means. Lipscomb has failed to demonstrate that counsel

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was ineffective for failing to move to suppress the statement or that he was prejudiced because the

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motion, had it been made, would most certainly have been denied. Accordingly, he is not entitled

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to relief on this claim.

United States District Court
Northern District of California

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CONCLUSION

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1. The petition for writ of habeas corpus is DENIED on the merits. A certificate of

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appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable

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jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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2. Petitioner’s motion to appoint counsel (Docket No. 24) is DENIED.

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IT IS SO ORDERED.

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Dated: October 13, 2015

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________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN LIPSCOMB,

Case No. 13-cv-05744-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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TIM VIRGA,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on October 13, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kevin Lipscomb ID: AC5110 C-8-229
California State Prison-Sacramento
P.O. Box 290066
Represa, CA 95671

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Dated: October 13, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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