Unpublished Disposition, 862 F.2d 318 (9th Cir. 1980)

MEMORANDUM^** 

Bruce A. Gannon, an Arizona state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Gannon contends the state violated his constitutional rights by failing to appoint two mental health experts to examine him as required by the Arizona Rules of Criminal Procedure. The district court denied the petition as being both meritless and procedurally barred. We affirm.

In 1980, petitioner was charged in Arizona state court with first-degree murder. His defense counsel moved under Rule 11 of the Arizona Rules of Criminal Procedure to have Gannon undergo a psychiatric examination to determine his mental condition at the time of the crime, as well as his competency to stand trial. The motion nominated Dr. Willard Gold "as the Defendant's designated psychiatrist." Motion for Rule 11 Examination (August 13, 1980). The motion was granted, and the prosecution was directed to nominate their own doctor in order to comply with Ariz.R.Crim.P. 11.3(a). Rule 11.3(a) requires that at least two mental health experts be appointed.¹  See also State v. Hansen, 705 P.2d 466, 472 (Ariz.1985).

Dr. Gold examined petitioner and reported that, although Gannon abused alcohol and suffered from being a "passive aggressive personality," he was fully competent both at the time of the murder and for trial purposes.

The prosecution never nominated its own psychiatrist and the trial court failed to appoint one. Petitioner's counsel waived Dr. Gold's appearance and stipulated that the trial court could rule on the Rule 11 motion on the basis of the psychiatrist's written report. The trial judge did so, and concluded that Gannon was competent to stand trial.

Petitioner entered a plea of no contest to the lesser charge of second-degree murder. His conviction and sentence of 21 years in prison were upheld on direct appeal to the Arizona Supreme Court. State v. Gannon, 638 P.2d 206 (Ariz.1981).

A state prisoner can obtain relief under 28 U.S.C. § 2254 only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." The petitioner must allege a deprivation of a federal right in order to obtain habeas relief. Engle v. Isaac, 456 U.S. 107, 119 (1982); Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986), cert. denied, 107 S. Ct. 958 (1987).

Petitioner has alleged a deprivation of a constitutional right. " [F]ailure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial." Darrow v. Gunn, 594 F.2d 767, 770 (9th Cir.), cert. denied, 444 U.S. 849 (1979) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). Greater care must be taken to insure that a defendant is competent to enter a plea of guilty, "for a guilty plea is a waiver of important constitutional rights." Darrow, 594 F.2d at 770; see Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986) (discussing plea of nolo contendere).

The Supreme Court has recognized a defendant's constitutional right in an appropriate case to adequate procedures to determine his competence. Pate v. Robinson, 383 U.S. 375 (1966). In Pate, the Court held that a defendant has a constitutional right to receive a competency hearing if he raises a "bona fide doubt" of his competence to stand trial. 383 U.S. at 385.

Neither we nor the parties to this appeal question the viability of Pate v. Robinson. Indeed, the trial court obviously found that reasonable grounds for a competency hearing existed when it granted defense counsel's Rule 11 motion. Petitioner's allegation of state error justifying federal relief focuses instead on whether the procedures employed by the trial court were "constitutionally adequate."

The Supreme Court has never mandated the appointment of two mental health experts to determine a defendant's competency to stand trial. In Drope v. Missouri, the Court discussed Mo.Rev.Stat. Sec. 552.020 (1969), which described the proper procedures for determining competency to stand trial. It found the statute "constitutionally adequate to protect a defendant's right not to be tried while legally incompetent." Drope, 420 U.S. at 173. The statute did not require the appointment of more than one examining physician.² 

Because the procedures employed by the trial court were "constitutionally adequate," the essence of petitioner's claim, thus, becomes nothing more than a violation of state law. "Violations of state law, without more, do not deprive a defendant of due process." Newton v. Superior Court of California, 803 F.2d 1051, 1055 (9th Cir. 1986), cert. denied, 107 S. Ct. 2464 (1987) (quoting Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982)). See also Engle v. Isaac, 456 U.S. at 121 n. 21 ("We have long recognized that a 'mere error of state law' is not a denial of due process. If the contrary were true, then 'every erroneous decision by the state court on state law would come [to this Court] as a federal constitutional question' ") (quoting Gryer v. Burke, 334 U.S. 728, 731 (1948) (citation omitted)).

Having alleged an error of state law, petitioner must show that that error rendered the trial so "arbitrary and fundamentally unfair" that it violated federal due process. Newton, 803 F.2d at 1055; Cooks, 660 F.2d at 739. "Unless fundamental fairness is abridged, federal court interference is unwarranted." Kealohapauole, 800 F.2d at 1465.

Petitioner has wholly failed to demonstrate that the failure to appoint a second expert rendered the state court proceedings "arbitrary" or "fundamentally unfair."³  The district court's order dismissing his petition is

AFFIRMED.