Richard Allan Moran, Petitioner-appellant, v. Salvador Godinez, Warden, Respondent-appellee, 57 F.3d 690 (9th Cir. 1995)

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

ORDER

The opinion filed November 15, 1994, Moran v. Godinez, 40 F.3d 1567 (9th Cir. 1994), is amended as follows:

1. At page 1572, the word "possible" in the first sentence of the first full paragraph in the righthand column is changed to "impossible". With this change the sentence will read:

When a state court wrongfully fails to hold a competency hearing, "it often may be impossible to repair the damage retrospectively."

2. At page 1572, the word "However" is inserted at the beginning of the second sentence in the first full paragraph in the righthand column. With this change, the sentence will begin: "However, although retrospective competency hearings are disfavored,".

3. At page 1572, the "But see " signal and the citation to United States v. Aponte, 591 F.2d 1247 (9th Cir. 1978) which follows this signal at the end of the third sentence in the second full paragraph in the righthand column are deleted, and the third sentence in that paragraph which begins: "He was ideally situated", is changed to read:

His familiarity with the case made him well situated to adduce any additional evidence needed to determine Moran's competency.

4. At page 1574, the phrase "substantive constitutional right" in the second sentence of the second full paragraph in the righthand column is changed to "substantive right". The sentence will then read:

Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest.

5. At page 1574, the phrase "substantive constitutional right" in the second sentence of the last paragraph in the righthand column is changed to read "substantive right". With this change, the sentence will read:

This violation of state law, however, did not result in the deprivation of a substantive right, because the state provided Moran with constitutionally adequate procedures to evaluate his competency, see Drope [v. Missouri ], 420 U.S. at 172, 95 S. Ct. at 904 [43 L. Ed. 2d 103 (1975) ], even with the burden of proof on Moran.

With the foregoing amendments, Judges Farris and Thompson voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Pregerson voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the cause en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. Judge Pregerson dissents from the refusal to hear this case en banc. His dissent is filed with this order.

The appellant's motion to file a letter reply to the State's response to the petition for rehearing is granted.

PREGERSON, Circuit Judge, dissenting, in which REINHARDT, Circuit Judge, joins:

I dissent from the refusal to rehear this case en banc. The majority opinion is flawed in three very serious respects. I discussed two of these errors in my dissent from the panel's decision in this case, Moran v. Godinez, 40 F.3d 1567, 1577-1586 (9th Cir. 1994) (Pregerson, J., dissenting), and I will summarize those two issues only briefly here. The third error is an error of equal magnitude, which I will set forth in more detail below.

First, the majority erred in concluding that the retrospective competency hearing in which Moran was allocated the burden of proof cured the trial judge's error in failing to hold a contemporaneous hearing as to Moran's competence. A violation of the trial court's obligation to hold a competency hearing under Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), can only be cured by a post-conviction hearing in which the state bears the burden of proving the defendant was competent to stand trial.

Second, the majority opinion completely fails to examine whether Moran's mental state and the drugs he was given subverted his decisions to waive counsel and plead guilty. In concluding that the Faretta canvass was adequate, Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the majority fails to acknowledge that the trial court was required to exercise a heightened degree of care because Moran was unstable to the point of suicide, he was under the influence of state-prescribed drugs, and he was facing the death sentence. See United States v. Christensen, 18 F.3d 822, 825-26 (9th Cir. 1994).

Third, the majority in Moran has adopted a novel and unsupported definition of what constitutes a state-created liberty interest. This definition directly conflicts with existing precedent and represents a radical departure in the law.

Moran raised a due process claim because the trial court violated the law of Nevada by placing the burden of proof regarding his competence to stand trial upon the defendant rather than the state.¹  Moran's due process claim is thus relatively straightforward: state law governing Pate violations creates a liberty interest which is protected under the Due Process Clause of the Fourteenth Amendment, and the state's failure to adhere to its own law in conducting the post-conviction hearing violated Moran's right to due process.

As the majority notes, two requirements must be met for a protected liberty interest to be created: first, the state rule must contain substantive predicates triggering its application; second, the state law must contain explicit, mandatory language concerning the outcome once the substantive predicates are met. Moran, 40 F.3d at 1574.

Here, as Moran points out, the Doggett decision of the Nevada Supreme Court clearly contains the necessary substantive predicate ("when the trial court has failed to follow the procedural safeguards of Pate "), as well as explicit, mandatory language concerning the outcome ("the State is required to forego its usual requirement that the defendant establish his incompetence as of the date of the original trial."). Moran, 40 F.3d at 1574 (quoting Doggett, 572 P.2d at 210) (emphasis added); see also Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir. 1991) (finding that a state-created liberty interest exists when, as here, the state misapplies its own law). Therefore it is clear that Moran has established the existence of a state-created liberty interest. Nevertheless, the majority concludes that no liberty interest has been created by Doggett.

The only justification provided by the majority (in its unamended opinion) for concluding that no state liberty interest exists is that the state rule does not protect a "substantive constitutional right" because the federal Constitution does not require the burden of proof to be placed upon the state. Moran, 40 F.3d at 1574. In effect, the majority holds that courts cannot recognize the existence of a liberty interest when a state law creates one unless that liberty interest is also independently guaranteed by the federal Constitution.

The panel has now amended its opinion, and deleted the word "constitutional" in two places within its discussion of Moran's state liberty interest claim.²  Unfortunately, by eliminating the word "constitutional," the panel has not erased the conflict its opinion creates with existing precedent. The problem with the opinion, both the original version and the amended one, is not the terminology that the panel uses to describe the "substantive right" requirement, but the meaning that the panel assigns to that requirement. As the opinion still makes clear,³  the "substantive right" requirement means that state-created liberty interests may only be recognized when the right in question is independently protected by the federal Constitution. This is a rule sharply at odds with existing precedent.

The majority's conclusion that no protected liberty interest exists unless the liberty interest is also independently guaranteed by the federal Constitution is in direct conflict with the explicit holdings of at least two Ninth Circuit decisions. In Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993), we held that a state court's failure to weigh sentencing factors in the manner required by state law established "a cognizable claim that in enacting and enforcing [the statute, the state] has created a liberty interest protected under the Due Process Clause of the Fourteenth Amendment." Id. at 1301. In reaching this conclusion, we specifically held:

There is, of course, nothing in the Constitution of the United States that requires Idaho's legislature to approach balancing as it has done in [the state statute]. However, the failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.

Id. at 1300 (emphasis added); see also Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1993).

Moreover, the justification provided for concluding that no protected liberty interest exists directly conflicts with a number of Supreme Court decisions. These decisions make clear that a state-created liberty interest can exist even when the right in question is not independently guaranteed by the federal Constitution. For example, in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), the Supreme Court noted that " [l]iberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt, 459 U.S. at 466, 103 S. Ct. at 868-69 (emphasis added). In Hewitt, the Court rejected the plaintiff's claim that the federal Due Process Clause independently guaranteed an interest in being confined to a general population cell. Id. at 466-67, 103 S. Ct. at 868-69. Nevertheless, the Court concluded that the state had created a protected liberty interest by adopting specific procedures for confining an inmate to administrative segregation. Id. at 470-71, 103 S. Ct. at 870-71.

Similarly, in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Supreme Court recognized a state-created liberty interest in prisoners' receiving good-time credits despite the fact that the federal Due Process Clause did not adequately guarantee this type of liberty interest:

It is true that the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison. But here the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior.... But the state having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within the Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.

Id. at 557, 94 S. Ct. at 2975 (emphasis added). Thus, the majority's flawed approach for determining what constitutes a state-created liberty interest directly conflicts with existing Ninth Circuit and Supreme Court precedent, and its egregious error is likely to have serious repercussions in the future.

For this reason, and for the other two reasons discussed above, en banc review is warranted in this case. I therefore dissent from the court's refusal to rehear this case en banc.

OPINION

THOMPSON, Circuit Judge:

Richard Allan Moran pleaded guilty to three counts of capital murder and was sentenced to death by a Nevada state court. After exhausting his state court appeals, he filed a petition for habeas corpus in the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 2254. The district court denied his petition and Moran appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS AND PROCEEDINGS

On August 13, 1984, Moran summoned police to the hospital room where he was recuperating from an attempted suicide. He confessed to killing his ex-wife at her home and two people at the Red Pearl Saloon. He was charged with three counts of capital murder. Initially, he pleaded not guilty to each count. Detailed facts of the murders and the circumstances of Moran's confession are set forth in Godinez v. Moran, --- U.S. ----, ---- - ----, 113 S. Ct. 2680, 2682-84, 125 L. Ed. 2d 321 (1993), and Moran v. State, 103 Nev. 138, 140-41, 734 P.2d 712, 713 (1987).

On November 28, 1984, Moran appeared before the Nevada trial court. He said he wanted to discharge his attorneys and plead guilty to prevent the presentation of mitigating evidence on his behalf.

Before accepting Moran's waiver of counsel and guilty pleas, the court interrogated Moran at length. During this interrogation, the following colloquy occurred:

The Court: Are you presently under the influence of any drug or alcohol?

Moran: Just what they give me in, you know, medications.

Although Moran indicated he was under the influence of medications, the trial court made no inquiry as to the medications he had been given, the dosages, the times when he was medicated, or how the medications affected him. The court simply moved on to other questions, and eventually accepted Moran's waiver of counsel and guilty pleas.

On January 21, 1985, a three-judge Nevada state court sentenced Moran to death for each of the three murders. On appeal, the Nevada Supreme Court affirmed Moran's death sentences for the two Red Pearl Saloon murders, but reversed his death sentence for the murder of his ex-wife. On this count, the Nevada Supreme Court remanded for imposition of a life sentence without possibility of parole. Id. at 141-42, 734 P.2d at 714.

On July 30, 1987, Moran filed a petition in the Nevada state court for post-conviction relief. He alleged his guilty pleas and waiver of counsel were involuntary because he was "under the influence of drugs," he was mentally incompetent to represent himself, and the trial court failed to conduct a proper canvass "as to mental and legal competency." After an evidentiary hearing, the Nevada post-conviction court found Moran was competent to represent himself and plead guilty, and his guilty pleas and waiver of counsel were voluntary. The Nevada Supreme Court dismissed Moran's appeal. Moran v. Warden, 105 Nev. 1041, 810 P.2d 335, cert. denied sub nom. Moran v. Whitley, 493 U.S. 874, 110 S. Ct. 207, 107 L. Ed. 2d 160 (1989).

Moran then filed a habeas petition in the United States District Court for the District of Nevada. The district court denied the petition. We reversed in Moran v. Godinez, 972 F.2d 263 (9th Cir. 1992). We concluded the state court should have entertained a good faith doubt during the November 28, 1984 change-of-plea proceedings as to Moran's competency to discharge counsel and plead guilty. Id. at 265. We held the failure of the trial court to conduct a competency hearing at that time violated Moran's right to due process. Id. We also held the 1987 post-conviction court failed to correct the trial court's error because the post-conviction court incorrectly applied the standard of competency to stand trial, which we stated was a lower standard than the standard of competency to waive counsel and plead guilty. Id. at 267.

The Supreme Court reversed. Godinez, --- U.S. at ----, 113 S. Ct. at 2688. The Court held the standard for competency to waive counsel and plead guilty was identical to the standard for competency to stand trial. Id. at ----, 113 S. Ct. at 2686. The Court also stated when a court has reason to doubt a defendant's competence, in addition to the competency inquiry, the court "must satisfy itself that the waiver of his constitutional rights is knowing and voluntary." Id. at ----, 113 S. Ct. at 2687.¹  The Court remanded the cause to us for further proceedings. Id. at ----, 113 S. Ct. at 2688.

STANDARD OF REVIEW

We review the denial of a habeas corpus petition dee novo. Mikes v. Borg, 947 F.2d 353, 356 (9th Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992).

DISCUSSION

A. Competence to Waive Counsel and Plead Guilty

Due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant's competence. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.) (competence to plead guilty), cert. denied, --- U.S. ----, 114 S. Ct. 216, 126 L. Ed. 2d 172 (1993); Harding v. Lewis, 834 F.2d 853, 856 (9th Cir. 1987) (competence to waive counsel), cert. denied, 488 U.S. 871, 109 S. Ct. 182, 102 L. Ed. 2d 151 (1988); Chavez v. United States, 656 F.2d 512, 515-16 (9th Cir. 1981) (competence to plead guilty). A bona fide doubt should exist when there is substantial evidence of incompetence. Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Chavez, 656 F.2d at 517. Although no particular facts signal incompetence, suggestive evidence includes a defendant's demeanor before the trial court, previous irrational behavior, and available medical evaluations. Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103 (1975); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856.

As we said in our previous decision, a reasonable jurist should have entertained a good faith doubt as to Moran's competence during the November 28, 1984 change-of-plea hearing. Moran, 972 F.2d at 265. When the trial court asked Moran whether he was "presently under the influence of drugs or alcohol," Moran indicated he was taking medications. Although the court made no inquiry, it is not disputed the medications Moran was taking were Inderal, Dilantin, Phenobarbital, and Vistaril. Inderal, a "beta-blocker," is used in the management of hypertension. Physician's Desk Reference (42d ed. 1988) at 650-52; Docket No. 26, Exhibit III. Dilantin is an antiepileptic drug that inhibits the spread of seizure activity in the motor cortex and is related to barbiturates in its chemical structure. Id. at 1543-45. Vistaril is used for relief of anxiety and tension associated with psychoneurosis. It acts on certain key regions of the central nervous system. Id. at 1625-26. Phenobarbital is a sedative used to counteract central nervous system stimulation. Id. at 1667-68. It is also not disputed that these medications were given to Moran while he was in jail awaiting trial, although the record is silent as to what dosages he was given, the times they were administered, and the effect they had on him.

The court also was aware that three months before the hearing, Moran attempted suicide, and that he wanted to fire his attorneys, plead guilty to three counts of capital murder, and die.

In these circumstances, the state trial court should have entertained a bona fide doubt as to Moran's competence. The court should have held an immediate competency hearing. It did not, and as a result Moran's right to procedural due process was violated. Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815 (1966); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856. The state contends, however, that the 1987 post-conviction hearing cured this due process violation. We agree.

When a state court wrongfully fails to hold a competency hearing, "it often may be impossible to repair the damage retrospectively." Evans v. Raines, 800 F.2d 884, 888 (9th Cir. 1986). However, although retrospective competency hearings are disfavored, see Drope, 420 U.S. at 183, 95 S. Ct. at 909; Blazak v. Ricketts, 1 F.3d 891, 894 n. 3 (9th Cir. 1993) (Tang, J., for an equally divided court), cert. denied sub nom. Lewis v. Blazak, --- U.S. ----, 114 S. Ct. 1866, 128 L. Ed. 2d 487 (1994), they are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant. See Evans, 800 F.2d at 888; DeKaplany v. Enomoto, 540 F.2d 975, 986 n. 11 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977). While the passage of time is significant in determining whether such a hearing can be held, Pate, 383 U.S. at 387, 86 S. Ct. at 843, medical reports contemporaneous to the time of the initial hearing greatly increase the chance for an accurate retrospective evaluation of a defendant's competence. See Sieling v. Eyman, 478 F.2d 211, 215-16 (9th Cir. 1973). See also Ray v. Bowen, 843 F.2d 998, 1006 (7th Cir. 1988).

In the present case, the post-conviction hearing was held three years after Moran waived counsel and pleaded guilty. The judge who presided at the post-conviction hearing was the same judge who presided over the change-of-plea hearing. His familiarity with the case made him well situated to adduce any additional evidence needed to determine Moran's competency. The post-conviction court also had the benefit of two medical reports from psychiatrists who evaluated Moran's competency two months before the change-of-plea hearing, and who opined he was competent to stand trial. One of these examining psychiatrists testified before the post-conviction court.

The post-conviction court also had the records from two hearings held after the change-of-plea hearing. At a presentencing hearing on December 17, 1984, conducted less than three weeks after the change-of-plea hearing, Moran repeated his desire not to be represented by counsel, and stated he did not wish to withdraw his guilty pleas. He also indicated he did not want to present witnesses at the sentencing hearing, or allow an attorney to gather mitigating evidence. At the sentencing hearing on January 21, 1985, Moran refused to present mitigating evidence, cross-examine witnesses, or view the exhibits used by the state to prove aggravating circumstances. The judge who presided at these two subsequent hearings also presided at the change-of-plea hearing and post-conviction hearing.

Moran testified at the post-conviction hearing. He said the medications made him indifferent at the time he waived counsel and pleaded guilty, but he did not present any evidence to show that at the change-of-plea hearing he lacked the " 'ability to consult with his lawyer with a reasonable degree of rational understanding' [or that he then lacked] 'a rational [or] factual understanding of the proceedings against him.' " Godinez, --- U.S. at ----, 113 S. Ct. at 2685 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960) (per curiam)).

State court competency determinations are entitled to a presumption of correctness. Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir. 1993). We will overturn a competency finding only if it is not fairly supported by the record. Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762 (1990) (per curiam); Maggio v. Fulford, 462 U.S. 111, 117, 103 S. Ct. 2261, 2264, 76 L. Ed. 2d 794 (1983) (per curiam); King v. Brown, 8 F.3d 1403, 1408 (9th Cir. 1993); Brewer, 989 F.2d at 1027.

The trial court should have had a bona fide doubt as to Moran's competence during the November 28, 1984 change-of-plea hearing. It should have conducted a competency hearing at that time. However, because the retrospective determination of Moran's competence by the post-conviction court in 1987 is fairly supported by the record, we have no basis to overturn it. See Evans, 800 F.2d at 887 ("There was conflicting [evidence] on this issue, but the state court resolved the conflicts in the state's favor. Its resolution is 'fairly supported by the record.' ") (quoting 28 U.S.C. § 2254(d) (1992)). See also Brewer, 989 F.2d at 1027.

Moran challenges the findings of the post-conviction court by arguing that the court incorrectly placed the burden of proof on him to establish his incompetence. He relies on James v. Singletary, 957 F.2d 1562, 1570-71 (11th Cir. 1992).

In James, 957 F.2d at 1570-71, the Eleventh Circuit interpreted Pate, 383 U.S. at 385, 86 S. Ct. at 842, to require a defendant to first establish that the trial court failed to conduct a competency hearing at the time a bona fide doubt should have arisen as to his competency. According to James, if a defendant establishes this Pate error, the burden of proof then shifts to the state to prove it is possible to hold a retrospective hearing to determine whether the defendant was competent to stand trial. James, 957 F.2d at 1570-71. If the state successfully demonstrates a meaningful retrospective hearing can be held, the burden of proof remains with the state at the retrospective proceeding to show the defendant was competent. Id. But see Porter v. Estelle, 709 F.2d 944, 949 n. 3 (5th Cir. 1983) (petitioner bears burden of proof by preponderance of the evidence), cert. denied sub nom. Porter v. McKaskle, 466 U.S. 984, 104 S. Ct. 2367, 80 L. Ed. 2d 838 (1984).

After the decision in James, the Supreme Court, in Medina v. California, --- U.S. ----, ----, 112 S. Ct. 2572, 2579, 120 L. Ed. 2d 353 (1992), held that a state may constitutionally place the burden of proof on a defendant at a competency hearing. The Court recognized a state must provide procedures "adequate to protect a defendant's right not to be tried or convicted while incompetent." Id. (internal quotations omitted). However,

[o]nce a State provides a defendant access to procedures for making a competency evaluation, ... we perceive no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial.

Id. Thus, so long as the state provides adequate procedures to assess competence, it constitutionally may assign the burden of proof to the defendant.

Although Medina involved a pretrial competency hearing, the Supreme Court's rationale is equally applicable to retrospective competency hearings. When it is established that a petitioner's competence can be accurately evaluated retrospectively, there is no compelling reason to require states to divert from their normal procedures for assessing competence. Moran's competence could be accurately evaluated retrospectively. Nevada was not constitutionally obligated to place the burden of proof on the prosecution to establish his competence, or to relieve him of the burden of establishing his incompetence.

Although there is no federal right to be free from the burden of proof in a retrospective state competency hearing, Medina, --- U.S. at ----, 112 S. Ct. at 2579, Moran contends that Nevada has created a federally protected state liberty interest in such a right. It is "well established that state laws can create liberty interests triggering federally enforceable procedural rights." Dix v. County of Shasta, 963 F.2d 1296, 1299 (9th Cir. 1992). "Misapplication of these laws that lead to deprivations of those liberty interests by state institutions may be reviewed in federal habeas proceedings." Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir. 1991).

In Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462-63, 109 S. Ct. 1904, 1909-10, 104 L. Ed. 2d 506 (1989), the Court held that to create a constitutionally protected liberty interest, a state law must contain substantive predicates governing an official's decision, and explicit language specifying the outcome that must be reached if the predicates are met. See Dix, 963 F.2d at 1299.

Moran contends that in Doggett v. Warden, 93 Nev. 591, 595, 572 P.2d 207, 210 (1977), Nevada created a constitutionally protected liberty interest relieving a defendant of the burden of proving his incompetence if he demonstrates the trial court committed a Pate error. In Doggett, the Nevada Supreme Court stated, " [W]hen the trial court has failed to follow the procedural safeguards of Pate ... the State is required to forego its usual requirement that the defendant establish his incompetence as of the date of the original trial." Id.

There is a distinction between state-created procedures and the substantive liberty interests those procedures are meant to protect. Olim v. Wakinekona, 461 U.S. 238, 250, 103 S. Ct. 1741, 1748, 75 L. Ed. 2d 813 (1983) ("Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement."); Smith v. Sumner, 994 F.2d 1401, 1406-07 (9th Cir. 1993). Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest. See Olim, 461 U.S. at 250-51, 103 S. Ct. at 1748 (state procedures that do not protect substantive rights do not create independent substantive rights); Smith v. Sumner, 994 F.2d at 1406; Toussaint v. McCarthy, 801 F.2d 1080, 1096-97 & n. 15 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 107 S. Ct. 2462, 95 L. Ed. 2d 871 (1987).

Here, the post-conviction court violated Nevada law when it placed the burden of proving competency on Moran. Doggett, 93 Nev. at 595, 572 P.2d at 210. This violation of state law, however, did not result in the deprivation of a substantive right, because the state provided Moran with constitutionally adequate procedures to evaluate his competency, see Drope, 420 U.S. at 172, 95 S. Ct. at 904, even with the burden of proof on Moran. Medina, --- U.S. at ----, 112 S. Ct. at 2579. See also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021, 106 S. Ct. 3336, 92 L. Ed. 2d 741 (1986). Cf. Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992), aff'd on reh'g en banc, 18 F.3d 662 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S. Ct. 1337, 127 L. Ed. 2d 685 (1994); Fetterly v. Paskett, 997 F.2d 1295, 1297 (9th Cir. 1993).

Moran also argues that because the post-convictionn court failed to consider his claim that he was incompetent to discharge his counsel, it failed to cure the Pate violation. We reject this argument. The post-conviction court considered and rejected Moran's claim that he was incompetent to plead guilty. The record supports this conclusion. The standard for competence to plead guilty is the same as the standard for competence to waive counsel. Godinez, --- U.S. at ---- - ----, 113 S. Ct. at 2686-87. Because the two standards are identical, one finding of competence suffices for both.

"In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary." Godinez, --- U.S. at ----, 113 S. Ct. at 2687. Whether a waiver of constitutional rights was made knowingly and voluntarily is a mixed question of law and fact which we review de novo. Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S. Ct. 2125, 128 L. Ed. 2d 682 (1994); Terrovona v. Kincheloe, 852 F.2d 424, 427-28 (9th Cir. 1988); Harding, 834 F.2d at 857.

To determine whether a defendant actually understands the nature and consequences of his waiver of counsel, the court must abide by the principles set forth in Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). Godinez, --- U.S. at ---- - ----, 113 S. Ct. at 2687-88. Under Faretta, the defendant must "be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation." United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987). See also Hendricks v. Zenon, 993 F.2d 664, 669-70 (9th Cir. 1993); United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir. 1990), cert. denied, 498 U.S. 1104, 111 S. Ct. 1006, 112 L. Ed. 2d 1089 (1991); Harding, 834 F.2d at 857.

Prior to accepting Moran's guilty plea, the trial court conducted an in-depth colloquy to determine whether Moran was waiving counsel knowingly and intelligently. As recounted by the Supreme Court in Godinez, --- U.S. at ----, 113 S. Ct. at 2683,The court advised [Moran] that he had a right both to the assistance of counsel and to self-representation, warned him of the "dangers and disadvantages" of self-representation, ... inquired into his understanding of the proceedings and his awareness of his rights, and asked why he had chosen to represent himself.

The trial court further explained the first-degree murder charges against Moran, stated the death penalty could be imposed, and inquired whether Moran understood the charges and penalties. The court asked whether Moran recognized the possible defenses to the crimes with which he was charged, and whether he had discussed these defenses with his counsel. See Harding, 834 F.2d at 857. Moran's affirmative answers to the court's questions were unequivocal. See Robinson, 913 F.2d at 714; Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).

The court's colloquy with Moran was probing and thorough, see Von Moltke v. Gillies, 332 U.S. 708, 723-34, 68 S. Ct. 316, 323, 92 L. Ed. 309 (1948), and satisfied its duty under Faretta. See Balough, 820 F.2d at 1487-88. We conclude, as did the post-conviction Nevada state court, that Moran knowingly and voluntarily waived his right to counsel.

To determine whether a defendant's guilty plea is "a voluntary and intelligent choice among the alternative courses of action," North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970), a trial court must follow the guidelines set forth in Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969). See Godinez, --- U.S. at ---- n. 12, 113 S. Ct. at 2687 n. 12. Under Boykin, the record of the plea proceeding must reflect that the defendant voluntarily waived his right to a jury trial, the right to confront his accusers, and his privilege against compulsory self-incrimination. Parke v. Raley, --- U.S. ----, ----, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992); Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1711-12; United States v. Butcher, 926 F.2d 811, 817 (9th Cir.), cert. denied, 500 U.S. 959, 111 S. Ct. 2273, 114 L. Ed. 2d 724 (1991).

Prior to accepting Moran's guilty pleas, the triall court engaged in an extensive canvass to determine whether Moran understood the rights he was forsaking by pleading guilty. As noted by the Court in Godinez, --- U.S. at ----, 113 S. Ct. at 2683, the trial court

determined that [Moran] was not pleading guilty in response to threats or promises, that he understood the nature of the charges against him and the consequences of pleading guilty, that he was aware of the rights he was giving up, and there was a factual basis for the pleas.

The trial court specifically asked Moran whether he understood his right to a trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination. Moran answered affirmatively to each of these inquiries. The trial court did not err in determining Moran knowingly and voluntarily pleaded guilty.² 

Moran contends he received ineffective assistance of counsel before he discharged his attorneys at his change-of-plea hearing.

A defendant claiming ineffective assistance of counsel must demonstrate that counsel's actions were outside the range of professionally competent assistance, and the defendant was prejudiced by counsel's actions. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). Whether a defendant received ineffective assistance of counsel is a legal question we review de novo. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1991).

Moran argues his attorneys failed to investigate whether he was competent to plead guilty, waive counsel, and forego the presentation of mitigating evidence. This argument lacks merit. Moran's attorneys had him evaluated by two psychiatrists. These psychiatrists provided detailed, reasoned reports which contained their individual opinions that Moran was competent to stand trial. Moran's attorneys were entitled to rely on these reports. The standard for competence to stand trial is identical to the standard for competence to waive constitutional rights. Godinez, --- U.S. at ---- - ----, 113 S. Ct. at 2686-87. Because counsel could rely on the psychiatrists' reports that Moran was competent to stand trial, it was unnecessary for them to investigate his competence to plead guilty, waive counsel or forego the presentation of mitigating evidence.

Moran also argues his attorneys failed to investigate and research all possible defenses that might have been presented as mitigating evidence at the penalty phase of his capital sentencing hearing. Moran offers no evidence to support this claim. While it is true "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, Moran fired his attorneys precisely because they wanted to gather and introduce mitigating evidence on his behalf.

Moran also contends his counsels' failure to attempt to prevent the use of his confession taken while he was in the hospital recovering from his suicide attempt constituted ineffective assistance. We decline to consider this contention. In Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir.), cert. denied, 474 U.S. 981, 106 S. Ct. 387, 88 L. Ed. 2d 339 (1985), we stated,

As a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations. A defendant may only attack the "voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases."

Id. (internal citations omitted) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973)). See also McMann v. Richardson, 397 U.S. 759, 770-71, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763 (1970). But see Creech v. Arave, 947 F.2d 873, 876-79 (9th Cir. 1991), (habeas appeal addressing petitioner's argument that counsel failed to provide certain information), rev'd on other grounds, --- U.S. ----, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993). Moran's contention that his attorneys were ineffective because they failed to attempt to prevent the use of his confession is the assertion of an alleged pre-plea constitutional violation. We will not consider that claim in this habeas appeal.

CONCLUSION

The state trial court should have entertained a bona fide doubt as to Moran's competence during his November 28, 1984 change-of-plea hearing. The failure to hold a competency hearing at that time violated Moran's constitutional right to due process. Pate, 383 U.S. at 385, 86 S. Ct. at 842. That violation was cured, however, by the state court's post-conviction retrospective hearing held in 1987. That court found Moran was competent when he waived counsel and entered his guilty pleas. That finding is fairly supported by the record. Moran knowingly and voluntarily waived his right to counsel and pleaded guilty. He was not denied effective assistance of counsel.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

I dissent.

I believe that the trial judge did not conduct an adequate inquiry to determine whether Moran's fateful decision to dismiss his counsel was animated by his own free will, or whether, instead, it was the product of state-prescribed drugs affecting Moran's precarious mental state.

The majority's analysis is flawed on two fronts. First, the failure of the trial judge to conduct an adequate inquiry violated Moran's constitutional procedural right, under Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), to a hearing to evaluate his mental competence whenever a doubt about such competence is raised. Contrary to the majority's conclusion, failure to hold such a hearing cannot be cured by a post-conviction hearing, years after the fact, in which the defendant is allocated the burden of retrospectively proving his competency.

Second, the judge's failure to conduct a proper inquiry calls into question whether Moran's guilty plea and waiver of right to counsel were knowingly, intelligently, and voluntarily tendered. The majority gives short shrift to Moran's strong argument that his waiver of constitutional rights was not knowing, intelligent, and voluntary. In my view, however, the trial judge's woefully inadequate inquiry into whether Moran's choice was truly free and rational necessitates a more detailed look at the evidence. Moreover, this is not one of the rare cases in which the totality of circumstances permits us to affirm a waiver of fundamental rights absent an adequate canvass by the trial judge.

I address each of these issues in turn.

I. COMPETENCE: EFFECT OF THE PATE VIOLATION

As the majority notes, Moran told the trial judge that he was under the influence of state-prescribed drugs at the time he entered his guilty plea and dismissed his counsel. When combined with everything else the judge knew about Moran's state of mind, this statement should have been sufficient to raise a good faith doubt about Moran's competence to stand trial. I therefore agree with the majority's conclusion that the trial court was required to hold a sua sponte hearing under Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836. It is undisputed that the trial judge did not do so.

This failure to hold a contemporaneous hearing to determine competence violated Moran's constitutional right to a fair trial. Id. Furthermore, there is no doubt that failure to conduct an adequate Pate hearing is reversible error on habeas review. Pate itself was a habeas case. As I read the majority opinion, we are all in agreement up to this point.

The more difficult question, on which we disagree, is whether the State's constitutional error was cured by the post-conviction hearing held a few years after the trial. The salient fact about the post-conviction hearing is that the presiding judge placed the burden of proof as to Moran's competence on Moran. For a number of reasons, I am convinced that this post-conviction hearing was constitutionally inadequate to cure the state's initial failure to hold a contemporaneous Pate hearing.

A. Constitutional requirements to cure a Pate violation.

It is clear that a Pate violation can only be cured by a post-conviction hearing in which the state bears the burden of proving that the defendant was competent to stand trial. In other words, the state must bear the burden of retrospectively proving competence if the trial court failed to provide the defendant with the constitutionally required contemporaneous hearing.¹ 

We need look no further than Pate itself to see that this is true. The opinion in Pate can be divided analytically into two parts. In part one, discussing the constitutional violation, the Supreme Court confirmed a defendant's right to a contemporaneous hearing where a good faith doubt arises before sentencing concerning the defendant's competence to stand trial. In the second part of Pate, discussing the appropriate relief for such a violation, the Supreme Court established that where the trial court failed to hold the required contemporaneous hearing the state then bears the burden of nonpersuasion in any subsequent competency determination.

The second part of Pate discusses the appropriate relief for a Pate violation. This second part of Pate has not been analyzed as often as the first, but it is well established and frequently applied. In Pate, after determining that the defendant's constitutional right to a contemporaneous competency hearing had been violated, the Supreme Court turned to the question of what relief was proper on habeas review. The state argued that it could cure the violation by holding a retrospective hearing, but the Court disagreed, noting that after six years there was insufficient evidence to make the required competency determination.

At this point, if the burden in a retrospective competency determination had been on the defendant, the Court would have affirmed the state court conviction. Instead, the Court reversed the conviction and remanded for a new trial; thus the Court established that the burden of proving a defendant's competence in a retrospective determination is on the state.

This precedent has been consistently followed by the Supreme Court, see, e.g., Drope v. Missouri, 420 U.S. 162, 183, 95 S. Ct. 896, 909, 43 L. Ed. 2d 103 (1975) (reversing for new trial after finding that remand for psychiatric evaluation to determine whether defendant was competent to stand trial six years ago was not a proper remedy), and has frequently been applied by this circuit, see, e.g., Evans v. Raines, 800 F.2d 884, 888 (9th Cir. 1986) (upholding the findings of a competency hearing held five years ex post facto only because the evidence was sufficient to retrospectively determine competence); Sieling v. Eyman, 478 F.2d 211, 215-16 (9th Cir. 1973) (remanding to trial court to determine whether there was sufficient evidence to determine competence retrospectively).² 

In every case where our court or the Supreme Court has addressed the sufficiency of the evidence for making a retrospective determination, we have affirmed the view that the state bears the burden of nonpersuasion: where the evidence is insufficient to make a retrospective determination, the conviction is reversed and the case remanded for a new trial. The necessary conclusion from these cases is that the state bears the burden of proving competence in a retrospective hearing held after a Pate violation. This is precisely the conclusion of the Eleventh Circuit, James v. Singletary, 957 F.2d 1562 (11th Cir. 1992), which examined the issue in greater detail than any other circuit.³ 

"Once the petitioner has established [that the trial court should sua sponte have held a competency hearing] ... he or she has made out a federal constitutional violation. At this point, the state has the opportunity to establish before the federal district court the petitioner's competency at the time of trial."

James, 957 F.2d at 1571 (emphasis added).

The majority argues that Medina v. California, --- U.S. ----, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992), requires us to disregard the compelling logic of James. In Medina, the Supreme Court addressed the question, not addressed in Pate, of who must bear the burden of proof in a contemporaneous Pate hearing. Medina determined that the Constitution permits the states to place the burden on the defendant in the required contemporaneous competency hearing. This holding is completely consistent with Pate and James.

The Medina opinion explicitly discussed and re-affirmed the first part of Pate, that a defendant is entitled to a contemporaneous hearing in the event doubts are raised as to competence. Id. at ---- - ----, 112 S. Ct. at 2578-79. The Supreme Court went on to explain that the allocation of the burden of proof in such a contemporaneous hearing is not of constitutional dimension. Id. The test for whether a state procedure violates the Constitution is that of fundamental fairness, and no principle of fundamental fairness is violated by placing on a defendant the burden of proof in a contemporaneous competency hearing. Id. One of the reasons that fundamental fairness is not violated is that in a contemporaneous hearing only a very small proportion of the cases are affected by the state's allocation of the burden of proof: cases where the evidence as to competence is in perfect equipoise. Id.

The Medina opinion did not directly or indirectly address the second part of Pate discussing the proper relief when no contemporaneous hearing is held despite doubt about the defendant's competence. In Medina, the required contemporaneous hearing was held. The only question was the adequacy of that contemporaneous hearing. Thus, Medina did not discuss the burden of proof in a retrospective competence determination after a Pate violation. See Appellee's brief at 5 (conceding this point). We therefore remain bound by Pate and its progeny on this issue.

Even if the holding in Medina were read to cast some doubt on the second part of Pate, there are good reasons not to extend Medina in such a radical fashion as does the majority. In contrast with contemporaneous determinations, it will frequently be the case that the critical facts necessary for making a retrospective competency determination are unavailable years after the trial, thereby leaving the evidence in equipoise on the issue whether the defendant was competent at the time of trial. See Evans, 800 F.2d at 888 ("When the state court fails in [its duty to conduct a contemporaneous hearing], it often may be impossible to repair the damage retrospectively.").

Allowing the burden to fall on the defendant to prove incompetence in the retrospective determination would result in affirmances in every case where the record has become stale. This is the exact opposite of the current practice. Yet in such cases it is the state court's error in failing to hold a contemporaneous hearing that results in the loss of evidence. It is fundamentally unfair to allow the conviction of a possibly incompetent defendant to stand because of the state's failure to observe constitutionally mandated procedures in the first instance.

The case at bar is a case in point. It would not have been difficult at the time of Moran's trial to have conducted a hearing to determine the actual effect of the drugs that Moran had ingested on his ability to meaningfully participate in trial decisions. In contrast, by the time of his post-conviction hearing the only evidence of the actual effect of the drugs was Moran's testimony that they caused him not to care about what happened. The Nevada Supreme Court specifically relied on the paucity of evidence about the actual effect of the drugs in dismissing Moran's appeal. 3/15/89 Order Dismissing Appeal at 3-4 ("Moran presented no medical evidence in the post-conviction hearing which necessarily established that the medication influenced him to such an extent that he was unable to understand the meaning and consequences of his plea." (emphasis added)).⁴  In other words, the Nevada Supreme Court specifically relied on Moran's failure to produce evidence that may have been available when the Pate hearing should have been held, but which was no longer available by the time of the post-conviction hearing.⁵ II. KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER

Even if it were determined that Moran was competent, I would conclude that his guilty plea and waiver of right to counsel were not knowingly and voluntarily tendered, as required by the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The majority's discussion of this issue is very brief, and the majority completely fails to discuss the impact of Moran's mental problems and state-prescribed drugs on his decision.

The Nevada trial judge was required to determine whether Moran's waiver of constitutional rights was adequate to meet federal standards. Those standards are the same for a guilty plea and for a waiver of counsel. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969). Courts are required to "indulge in every reasonable presumption against waiver." Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977) (in habeas proceeding, it is incumbent on the State to prove that a waiver was voluntary); See also Parke v. Raley, --- U.S. ----, ----, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992) (contrasting direct appeal, where the Constitution requires States to grant a presumption of invalidity to an uninformed guilty plea, with collateral challenge, including habeas petition, where there is no such presumption). Our review of the state's voluntariness determination is de novo, although we accord a presumption of correctness to the factual findings underpinning the state's ultimate voluntariness determination. Terrovona v. Kincheloe, 852 F.2d 424, 428 (9th Cir. 1988) (state's voluntariness determination is not subject to 28 U.S.C. § 2254(d) presumption of correctness).

The competency determination and the knowing, intelligent and voluntary waiver determination require interrelated, but not identical, inquiries. Whereas the competency determination turns on whether Moran had the capacity to knowingly and voluntarily waive his rights, the knowing and voluntary inquiry turns on whether he actually did knowingly and voluntarily waive his rights. Godinez v. Moran, --- U.S. ----, ---- n. 12, 113 S. Ct. 2680, 2687 n. 12, 125 L. Ed. 2d 321 (1993).

A defendant who is incompetent obviously may not knowingly, intelligently, and voluntarily waive constitutional rights. See Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 841, 15 L. Ed. 2d 815 (1966). But a mere showing that a defendant is competent is not sufficient to demonstrate that the waiver of right to counsel was knowing, intelligent, and voluntary. "In this sense there is a 'heightened' standard for pleading guilty and for waiving the right to counsel...." Moran, --- U.S. at ----, 113 S. Ct. at 2687 (emphasis in original). Or, as Justice Frankfurter stated nearly a half century ago, " [t]here must be both the capacity to make an understanding choice and an absence of subverting factors so that the choice is clearly free and responsible." Von Moltke v. Gillies, 332 U.S. 708, 729, 68 S. Ct. 316, 326, 92 L. Ed. 309 (1948) (Frankfurter, J., concurring) (emphasis added).

The majority's critical error is that it unreasonably narrows this inquiry. It completely fails to examine whether Moran's mental state and the drugs he was given subverted his decisions to waive counsel and plead guilty.

In the context of Moran's waiver of counsel, the majority examines only whether Moran was advised of his rights and whether he indicated unequivocally that he understood those rights. Majority at pp. 699-700. The majority does not discuss whether, and if so to what extent, Moran's decision was affected by the drugs and by his clinically depressed state.

In the context of Moran's guilty plea, the majority quotes North Carolina v. Alford to the effect that we must look to whether the guilty plea is "a voluntary and intelligent choice among the alternative courses of action," 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). But the majority does not apply this standard. Rather, it looks only to whether Moran "understood the rights he was forsaking...." Id. at 699. This is a different question from whether Moran made a knowing, voluntary, and intelligent choice.

Where a defendant's mental state has not been called into question, an inquiry such as that undertaken in the majority opinion is sufficient. But where, as here, the defendant was suicidal, depressed, and taking powerfully psychoactive drugs, we have an additional duty to determine whether these factors subverted his decision to such an extent that they precluded a truly free and rational choice. See United States v. Christensen, 18 F.3d 822, 825-26 (9th Cir. 1994) (mental or emotional instability of defendant provoked suspicion that waiver of right to jury trial may not have been knowingly, voluntarily and intelligently tendered).

To do so, we are obliged to follow the two-step procedure discussed in the following section: First, we must determine whether the state trial court's transcript contains enough information for us to determine that the waiver was knowing intelligent and voluntary, i.e., if the Faretta canvass was adequate. Second, if the Faretta canvass was inadequate, as I believe it was, we must examine the entire record to determine whether, under the totality of the circumstances, this is one of the rare cases in which we may affirm a waiver of constitutional rights despite an inadequate waiver canvass. The majority fails to undertake such an analysis, and because of that failure comes to an erroneous conclusion.

A. Procedural Requirements of Faretta and Boykin.

The Constitution requires a state trial court to engage in careful inquiry before accepting a waiver of constitutional rights. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969).

In the context of waiver of the right to counsel, this careful inquiry is accomplished by means of a "Faretta canvass." Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (establishing the right to self-representation, but only where the record establishes that the accused "knows what he is doing and his choice is made with eyes open" (emphasis added)).⁶  To conduct a proper Faretta canvass, the trial court "must investigate as long and as thoroughly as the circumstances of the case before him demand." Von Moltke, 332 U.S. at 723-724, 68 S. Ct. at 323. "A colloquy conducted in a rote and mechanical fashion ... may look reassuring on the record but will do little to protect the rights of the accused." United States v. Balough, 820 F.2d 1485, 1488-90 (9th Cir. 1987) (Kozinski, J., concurring). Thus, the court cannot meet the principles of Faretta by just going through the motions of merely eliciting the proper responses to boilerplate questions. Instead, " [a] judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." 332 U.S. at 724, 68 S. Ct. at 323.

Despite the importance of the Faretta canvass, an inadequate Faretta inquiry by the trial court does not conclusively establish absence of effective waiver. Mason v. Pitchess, 440 F.2d 454 (9th Cir. 1971). But we only rarely affirm a waiver of constitutional rights absent an adequate Faretta canvass on the record by the court to determine whether the waiver is understandingly and voluntarily offered. Balough, 820 F.2d at 1488-90. In fact, in federal court, when an accused's mental or emotional state has been called into question, "an in-depth colloquy which reasonably assures the court that under the particular facts of the case, the ... waiver was voluntarily, knowingly, and intelligently made" is required. Christensen, 18 F.3d at 826 (reversing conviction because of failure to adequately canvass manic-depressive defendant before accepting written waiver of right to jury trial). Although we have not imposed a similar requirement on the states, Christensen suggests the skepticism with which a waiver of constitutional rights should be viewed when the defendant's mental state has been called into question and there has not been an adequate on-the-record inquiry into the effect of the mental state on the defendant's waiver.

B. Adequacy of the Faretta canvass.

The majority expresses its view in summary fashion that the Faretta canvass was adequate as to both the guilty plea and waiver of counsel. The majority's summary analysis fails to acknowledge that the trial court was required to exercise a heightened degree of care because Mr. Moran was unstable to the point of suicide, because he was under the influence of state-prescribed drugs, and because he was facing the death sentence. Applying the required heightened standard, the canvass was inadequate because Moran's often rote responses to the court's questioning actually raised more questions than they answered.⁷ 

I am perplexed by majority's treatment of the Faretta canvass in this case. On the one hand, the majority finds the judge's questioning of Moran to be inadequate to quiet doubts about Moran's competence. On the other hand, it finds the same sequence of questions to be adequate to determine that Moran's waivers were knowing, intelligent, and voluntary, an inquiry which requires competence plus a free and rational choice. The trial court was required to "indulge every reasonable presumption against waiver." Brewer, 430 U.S. at 404, 97 S. Ct. at 1242. If the Faretta canvass was inadequate to establish competence, how can it have been adequate to establish waiver?

I would find that the Faretta canvass, by itself, is inadequate to establish that Moran's waiver of constitutional rights was knowing, intelligent, and voluntary.

C. Totality of the Circumstances.

Because the Faretta canvass was inadequate, we must review the rest of the record to determine whether, given the totality of the circumstances, this case represents one of those rare instances in which a waiver of constitutional rights should be affirmed despite an inadequate canvass. Balough, 820 F.2d at 1488-90. The critical additional evidence on the record relevant to our totality of the circumstances inquiry was presented at Moran's Nevada state court post-conviction hearing. The majority does not examine this evidence, other than to note that the post-conviction Nevada state court concluded that Moran knowingly and voluntarily waived his rights. But because our review of the state's determination of voluntariness is de novo, this state court finding should not influence our own determination of this issue.

Far from overcoming the presumption against waiver, the state court post-conviction hearing provided evidence that Moran's decision was not knowing, intelligent, and voluntary. The relevant post-conviction hearing evidence consisted of Moran's testimony and that of one of the psychiatrists who had examined him for competence before he waived counsel and pleaded guilty. Moran supplemented this testimony with medical records indicating the medications he was taking at the time he changed his plea to guilty and waived counsel, and with evidence as to the psychological effects of that medication. The state presented no evidence at the post-conviction hearing.

The evidence presented by Moran raised new doubts about Moran's guilty plea and waiver of counsel in two respects. First, it provided support for the theory that Moran's plea was, indeed, affected by the drugs he was given. This evidence strongly suggested that the medications Moran was taking when he entered his guilty plea and waived counsel affected his thought processes sufficiently to call into question the voluntariness of his decision.⁸ 

Second, the evidence at the post conviction hearing supported Moran's contention that he was demoralized by possibly erroneous information provided by counsel about the lack of possible defenses to first degree murder. Moran testified that his lawyers had demoralized him by telling him that he had no such defense:

Well, basically I asked [my lawyers] what, you know, what we were going to do. And I'm not sure if it was Mr. Gubler or Mr. Miller says that they weren't going to worry about the defense because there really was none, and they were just going to work on the guilt phase of the trial or the penalty phase of the proceedings.

. . . . .

.. I asked them if I could plead like diminished capacity or something, and they said, well, you can't do that in Nevada.

RT 4/20/88 at 158-159. The post-conviction court adopted Moran's version of events, finding that: "Defendant was informed by his Deputy Public Defender that he had no defense to the crimes and that they suggested he concern himself with the penalty phase of the murder cases." Order at 3.⁹ 

The testimony of Doctor William O'Gorman, one of two psychiatrists who examined Moran to determine his competence to stand trial, suggests that Moran's lawyers were wrong. Moran may well have had a legitimate defense based on his inability to form the specific intent requisite to a conviction of first degree murder. Doctor O'Gorman testified that "at the actual time [of the murders], if [Moran] were under the influence of large amounts of cocaine, particularly free-base or crack, I don't think he could form intent at that moment." RT 4/20/88 at 15. Moran's attorney's apparently never bothered to ask Doctor O'Gorman his opinion on this matter.

We do not have enough information at this juncture to evaluate the viability of such a defense. For this reason, Moran's counsel's statement, that Moran had no defense, would not be enough, by itself, to demonstrate that Moran's guilty plea and waiver of counsel were not knowing, intelligent and voluntary. Still, the demoralizing effect of the lawyer's possibly erroneous statement is likely to have combined with Moran's already depressed mental state and with the mind-numbing drugs to subvert Moran's choice not to fight for his life.

In sum, the Faretta canvass was inadequate in this case because Moran's mental state was insufficiently probed. Furthermore, this is not one of the rare cases wherein there is adequate evidence in the record, outside of the canvass, to demonstrate that the waiver of counsel and guilty plea were knowingly, intelligently, and voluntarily tendered. Rather, an examination of the record in its totality only magnifies the impression that Moran's waiver of counsel and guilty plea were not the product of a free and rational choice.

Because of this, and because of the Pate violation, I would remand to the district court for an evidentiary hearing to inquire about the effect of the drugs, what Moran's lawyers told him, and whether Moran's waiver and plea were knowing, intelligent and voluntary in light of what the district court finds.