NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRELL HUNTER, 

Petitioner-Appellant, 

 v. 

SCOTT KERNAN, Director, California 

Department of Corrections; XAVIER 

BECERRA, Attorney General of the State of 

California, 

Respondents-Appellees.

No. 18-17335 

D.C. No. 3:18-cv-02627-CRB 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Submitted October 21, 2020**

San Francisco, California

Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

Darrell Hunter appeals from the district court’s denial of his 28 U.S.C. § 2254

petition challenging his conviction in California state court for making a criminal 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without 

oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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threat against his former girlfriend’s manager. We granted a certificate of 

appealability with respect to three issues. We have jurisdiction under 28 U.S.C. § 

2253, and reviewing de novo, we affirm. See Lopez v. Thompson, 202 F.3d 1110, 

1116 (9th Cir. 2000) (en banc).

1. The state court reasonably determined that Hunter was not denied due 

process when the trial court failed to suspend his trial and order a competency 

evaluation after his outburst in court. A sua sponte competency hearing is required 

when the evidence before the trial court raises a “bona fide doubt” as to a defendant’s 

competency to stand trial. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010)

(quoting Pate v. Robinson, 383 U.S. 375, 385 (1966)). 

It is certainly true that Hunter’s out-of-court behavior was unusual, and his 

composure vacillated at times during in-court proceedings. But as the state court 

described, this evidence of “extreme emotion and anger,” “agitation,” and “perhaps 

a lack of impulse control” was not substantial enough to suggest that Hunter was 

unable to understand the proceedings and participate in his own defense. Instead, 

the trial court’s interactions with and observations of Hunter during the proceedings 

left it with no doubt that he was competent. Not only does Hunter rely almost 

exclusively on circuit precedent—which “does not constitute ‘clearly established 

Federal law, as determined by the Supreme Court’” and therefore “cannot form the 

basis for habeas relief under AEDPA,” Parker v. Matthews, 567 U.S. 37, 48–49 
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(2012)—in arguing that the state court erred, but the cases he cites involve far more 

extreme evidence. Thus, we cannot conclude that the state court’s denial of Hunter’s 

claim “resulted in a decision that was contrary to . . . clearly established Federal law, 

as determined by the Supreme Court of the United States” or was otherwise “based 

on an unreasonable determination of the facts in light of the evidence presented in 

the State court proceedings.” 28 U.S.C. § 2254(d)(1), (2). Furthermore, we cannot 

consider Hunter’s medical history and diagnoses because that evidence was not 

before the trial court. See McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008).

2. The state court reasonably determined that the trial court’s failure to grant 

Hunter a new trial was not a violation of due process. Two post-trial competency 

reports were the only new evidence before the court. Not only did those reports 

reach contrary conclusions, but they also addressed Hunter’s competence at the time 

of the doctors’ evaluations rather than at the time of the already-concluded trial. 

These were reasonable bases on which to reject this claim. 

3. Finally, defense counsel’s failure to declare a doubt as to Hunter’s 

competence or to investigate and present a diminished actuality defense did not make 

his performance constitutionally deficient. Our review of a Strickland claim under 

§ 2254(d) is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)

(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Strickland v. 

Washington, 466 U.S. 668, 689 (1984). 
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Hunter argues that his lawyer should have requested a competency evaluation 

based on the same evidence that he says should have led the trial court to order one. 

For the same reasons that a mid-trial evaluation was not constitutionally required, 

an expression of doubt from counsel was not constitutionally required. Further, as 

the state court noted, counsel’s doubt would not have changed the outcome in light 

of the trial court’s considered view of Hunter’s engagement in the proceedings and 

ability to assist in his defense. 

Neither was defense counsel constitutionally required to use Hunter’s bipolar 

disorder diagnosis to argue that he did not have the specific intent required to convict 

him. The state court’s rejection of this claim rested on at least three reasonable 

grounds. First, assuming that counsel was aware of the evaluation Hunter relies on, 

the report addressed his competence to stand trial, not his mental state at the time of 

the offense. Second, evidence about Hunter’s general capacity to form specific 

intent would not have been admissible. Third, in light of Hunter’s fixation on the 

victim and earlier threat against her, reasonable counsel could have concluded that 

this defense was not viable. Counsel’s decision was “reasonable considering all the 

circumstances.” See Strickland, 466 U.S. at 688. Finally, even if counsel’s 

performance could be considered deficient, Hunter has failed to show prejudice. 

AFFIRMED.