FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG CLIFFORD BUSCH, 

Petitioner-Appellant,

v.

No. 06-16154

JEANNE S WOODFORD, in her

D.C. No. capacity as Director of the  CV-04-04157-MJJ California Department of

Corrections; JOSEPH L. MCGRATH, OPINION

Warden, in his capacity as

Warden, Pelican Bay State Prison,

Respondents-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

February 15, 2007—San Francisco, California

Filed August 29, 2007

Before: J. Clifford Wallace, Richard D. Cudahy,* and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Cudahy

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

10881
COUNSEL

Donald L. Lipmanson, Ukiah, California, for the petitionerappellant. 

Dorian Jung, Office of the Attorney General, State of California, San Francisco, California, for the respondent-appellee. 

OPINION

CUDAHY, Circuit Judge: 

In 1998, the petitioner, Craig Busch, pleaded guilty to first

degree murder. Busch filed a petition for writ of habeas corpus in the California state trial court alleging ineffective assistance of counsel and that his plea was not voluntary and

intelligent. After holding a three-day evidentiary hearing, the

state court denied the petition without opinion. The California

Court of Appeal and the California Supreme Court also sum10884 BUSCH v. WOODFORD
marily denied the petition. Busch then filed the present petition in the Northern District of California. The district court

denied the petition but issued a certificate of appealability as

to the voluntariness of the plea given the length of time the

petitioner had to consider the proposed plea agreement. The

petitioner appeals the denial of the petition and raises uncertified issues concerning ineffective assistance of counsel as

well. We decline to expand the certificate of appealability and

affirm the denial of the petition as to the certified issue. 

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of February 2, 1997, Petitioner Craig

Busch was allegedly angry with George Steven Wilson

because Wilson had moved out of the petitioner’s family ranch.1

Busch told a number of people that he had decided to kill Wilson. Wilson was last seen alive that evening with Busch and

Busch’s companions, Donovan Williams and Dillon Bacon.

When Busch, Williams and Bacon were seen later that evening without Wilson, they reported that his truck had become

stuck in the mud and that Wilson had stayed behind with it.

Wilson was later found dead near his truck with three bullet

wounds in his head. Busch had previously identified the place

where Wilson’s body was found as a good place to carry out

a murder. Busch was subsequently taken into custody. While

incarcerated, a jailhouse informant reported that Busch had

told him where Busch had hidden the murder weapon. A gun

was subsequently recovered at that location, and ballistics

tests confirmed that it had been used in the killing.

On May 12, 1997, the Lake County District Attorney filed

an information charging Busch with first degree murder pursuant to California Penal Code § 187(a). The information also

1The facts are derived from the decision of the California Court of

Appeal, First Appellate Division, denying Busch’s direct appeal. Case No.

A083099 (filed Oct. 12, 1999). These facts are not disputed. 

BUSCH v. WOODFORD 10885
included enhancements for: personal use of a firearm in the

commission of the first degree murder charge pursuant to California Penal Code § 1203.06(a)(1)(A); being armed in the

commission of the charged felony pursuant to California

Penal Code § 12022.5(a); and personal infliction of great bodily injury pursuant to California Penal Code § 1203.075(a)(1).

Busch’s trial began with jury selection on March 17, 1998.

On that same day, Busch gave a statement to police detectives

from the Lake County Sheriff’s Office. In the statement,

Busch reported that he witnessed Donovan Williams, one of

the other individuals with Wilson the night of his murder,

shoot Wilson in the head three times. He further reported that

Williams had given him the murder weapon to dispose of.

On March 19, 1998, after the jury had been empaneled,

Busch’s trial counsel and the prosecutor asked the court to

delay opening arguments to allow them time to discuss a plea

arrangement. (See Petitioner’s ER at 63-64.) The court agreed

and allowed a two-hour recess until 4:30 that afternoon.

Shortly before 5:00 p.m., Busch’s trial counsel informed the

court that they had reached a resolution. Busch then entered

a negotiated plea of guilty to a charge of first degree murder

pursuant to People v. West.

2

 Pursuant to the plea agreement,

the enhancements were dismissed, a case against Busch concerning an unrelated drug charge was also dismissed and the

prosecution agreed to not pursue a possible burglary charge

involving the suspected murder weapon or any perjury

charges against Busch’s girlfriend. On April 13, 1998, Busch

was sentenced to prison for an indeterminate term of 25 years

to life. 

On March 30, 2000, Busch filed a petition for habeas corpus in the Superior Court of Lake County. In May of 2001,

2People v. West, 477 P.2d 409 (Cal. 1970) does not require an admission of guilt and is the California equivalent of an Alford plea. See North

Carolina v. Alford, 400 U.S. 25 (1970). 

10886 BUSCH v. WOODFORD
the court held a three-day evidentiary hearing on the habeas

petition. On June 6, 2001, the court denied the petition without opinion. The petition was also summarily denied by the

California Court of Appeal, First Appellate District Division

and by the California Supreme Court. On September 30,

2004, Busch filed the present federal petition for writ of

habeas corpus. The district court denied the petition but

granted a certificate of appealability as to one issue: whether

the petitioner’s plea agreement was involuntary in light of the

fact he was allowed only two hours to accept or reject it.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs our review of Busch’s petition for writ

of habeas corpus. Relevant for this review, a federal court can

grant a state prisoner’s petition for a writ of habeas corpus if

the state court’s decision: 1.) was “contrary to . . . clearly

established Federal law, as determined by the Supreme Court

of the United States”; or 2.) “involved an unreasonable application of . . . clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). 

A state court’s decision is “contrary to” clearly established

federal law “if the state court arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law

or if the state court decides a case differently than [the

Supreme Court] has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). As

for “unreasonable application,” a federal court may grant

relief “if the state court identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Id. at 413. When a claim falls under the “unreasonable application” clause, the state court’s application of the Supreme

Court precedent must be “objectively unreasonable,” not just

incorrect. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 

BUSCH v. WOODFORD 10887
Where the state court provides no basis for its decision to

deny a habeas corpus petition, as is the case here, the state

court decision does “not warrant the deference we might usually apply.” Delgado v. Lewis (Delgado II), 223 F.3d 976, 982

(9th Cir. 2000) (citing Delgado v. Lewis (Delgado I), 168

F.3d 1148, 1152 (9th Cir. 1999)). Lacking a reasoned opinion

from the state court, we review the record independently for

clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court’s decision, we can

view it through the “objectively reasonable” lens

ground by Williams. . . . Federal habeas review is not

de novo when the state court does not supply reasoning for its decision, but an independent review of the

record is required to determine whether the state

court clearly erred in its application of controlling

federal law. Only by that examination may we determine whether the state court’s decision was objectively reasonable. 

Id. at 982 (internal citation omitted); see also Lewis v. Mayle,

391 F.3d 989, 996 (9th Cir. 2004).

DISCUSSION

I. Scope of the Certificate of Appealability 

[1] The district court certified only the issue whether

Busch’s plea was involuntary in light of the fact he was

allowed only two hours to accept or reject it. In his opening

brief, the petitioner also raised the other issue in his habeas

petition under the heading of “Uncertified Issue.” We construe this inclusion and designation as a motion to expand the

Certificate of Appealability (“COA”). 9th Cir. R. 22-1(e). 

[2] “The required showing for originally obtaining a COA

on a claim remains the standard by which this court reviews

10888 BUSCH v. WOODFORD
the broadening of a COA. A habeas petitioner’s assertion of

a claim must make a ‘substantial showing of the denial of a

constitutional right.’ ” Hiivala v. Wood, 195 F.3d 1098, 1104

(9th Cir. 1999) (quoting 28 U.S.C. § 2253(c)(2)). In order to

make this showing, a petitioner “must demonstrate that the

issues are debatable among jurists of reason; that a court

could resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to proceed

further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)

(alteration in original, internal quotation marks omitted);

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

The uncertified issue here involves ineffective assistance of

counsel. Busch posits two grounds for the appeal of this issue.

First, Busch argues that his attorneys were deficient in failing

to investigate potential mental defenses. Second, Busch contends that his attorneys’ decision to allow him to be interviewed by the Lake County Sheriff’s Office constitutes

ineffective assistance of counsel. He further argues that he

was prejudiced by the ineffectiveness of counsel since he

would have gone to trial rather than plead guilty. The district

court denied relief as to the petitioner’s ineffective assistance

of counsel argument and also declined to certify this issue.

We agree with the district court that the petitioner has failed

to “make a substantial showing of the denial of a constitutional right” (see 28 U.S.C. § 2253(c)(2)) and therefore

decline to expand the COA to consider the merits of this

issue. 

To show ineffective assistance of counsel, Busch must

demonstrate (1) that the defense attorney’s representation

“fell below an objective standard of reasonableness” and (2)

that the attorney’s deficient performance prejudiced the

defendant such that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington,

466 U.S. 668, 688, 694 (1984). In a guilty-plea case, like the

present case, “in order to satisfy the ‘prejudice’ requirement,

BUSCH v. WOODFORD 10889
the defendant must show that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).3

[3] Petitioner’s argument that his trial counsel was deficient

for failing to investigate mental state defenses is a far fetch.

“Trial counsel has a duty to investigate a defendant’s mental

state if there is evidence to suggest that the defendant is

impaired.” Douglas v. Woodford, 316 F.3d 1079, 1085 (9th

Cir. 2003). In the present case, there was no evidence to suggest that the petitioner was impaired. The two pre-trial psychiatric evaluations of Busch by Drs. Drury and Rossoff not only

determined that he was competent to stand trial, but also concluded that the petitioner did not suffer from mental disorders.

Busch points to the psychiatric evaluation of Dr. Drury, who

examined Busch prior to trial. (Petitioner’s ER at 1-6.) That

evaluation describes Busch’s prior medical history, including

his suicidal thoughts as a young teenager, his abuse of

methamphetamines and prescription drugs for several years

before the crime and head injuries Busch suffered in an auto

accident in early 1996 and a motorcycle accident in December

1996. (Id. at 4.) After considering this and the other information contained in his evaluation, Dr. Drury concluded that

“[b]ased upon personal information, it is my opinion that he

is essentially free of major signs of mental disorder, mental

3The district court, at times in its opinion, does not rely on the correct

standard for demonstrating prejudice in a plea bargain case. See Busch v.

Woodford, No. C 04-4157-MJJ, 2005 WL 1926618, at *6 (N.D. Cal. Aug.

10, 2005). (“Petitioner has not established a reasonable probability that

such information would have led to a different verdict (had the case gone

to trial).”); id. at *7 (“Given this evidence, it is unlikely that a reasonable

jury would have found Petitioner less culpable or returned a verdict less

stringent than first degree murder.”). However, the district court found,

and we agree, that Busch has failed to demonstrate that his trial counsel’s

performance “fell below an objective standard of reasonableness” — the

first prong of the Strickland test — and therefore, this apparent error is

harmless. 

10890 BUSCH v. WOODFORD
diseases or psychiatric disease.” (Id. at 6.) In addition, Dr.

Thomson — the expert psychiatrist who testified at the evidentiary hearing on Busch’s state court habeas petition —

agreed that he had no doubt that Busch was competent to

stand trial. (Respondent’s ER at 141.) Although Dr. Thomson

testified that Busch experienced some symptoms of “classical

drug induced paranoia” as a result of his prior substance abuse

(id. at 73) and that he thought Busch may have suffered from

some form of organic brain injury due to his prior head injuries (id. at 135-38, 144-45), he testified that Busch did not

possess any “major” of “full blown” mental illness or mental

disorder (id. at 74-75, 89). 

[4] The petitioner draws a distinction between competency

evaluations and investigating mental defenses, arguing that a

psychiatric evaluation that concludes that an individual is

competent to stand trial is not the same as investigating mental defenses. Although this might be true, the duty to investigate mental defenses is only triggered “if there is evidence to

suggest the defendant is impaired.” Douglas, 316 F.3d at

1085. The defendant fails to point to any credible evidence of

mental incapacity which would have triggered a duty on the

part of his counsel to investigate for possible defenses. Moreover, petitioner’s trial counsel made a reasonable strategic

choice to rely on petitioner’s claims of innocence and decided

not to pursue further investigations into petitioner’s mental

state since he testified that a mental state defense “would have

been inconsistent” with the theory of the case. (Petitioner’s

ER at 167.) See Siripongs v. Calderon, 133 F.3d 732, 734 (9th

Cir. 1998) (holding that “[w]here the attorney has consciously

decided not to conduct further investigation because of reasonable tactical evaluations, the attorney’s performance is not

constitutionally deficient”). Therefore, Busch has failed to

make a substantial showing of the denial of a constitutional

right based on his trial counsel’s performance. 

[5] Busch also fails to show that his trial counsel’s decision

to allow him to make a statement to police detectives on

BUSCH v. WOODFORD 10891
March 17 fell below an objective standard of reasonableness.

The record supports a finding that the decision was strategic.

As his counsel explained at the evidentiary hearing, without

the statement, there would have been no reason for the prosecutor to participate in further plea bargain negotiations. (See

Respondent’s ER at 324.) Moreover, the present case is distinguishable from Harris ex rel. Ramseyer v. Wood, 64 F.3d

1432, 1436 (9th Cir. 1995), a case relied on by the petitioner,

in which we found the trial counsel’s performance to be deficient in allowing the defendant to give a statement to police.

Importantly, unlike the statement in Harris ex rel. Ramseyer,

here there were certain restrictions placed on the use of

Busch’s statement. Namely, it could not be used in the prosecutor’s case-in-chief. (See Petitioner’s ER at 9.) And, perhaps

even more importantly, Busch’s statement was also not

directly incriminating since he did not confess to murdering

the victim; rather, he explained that Donovan Williams killed

the victim. 

[6] Because the ineffective assistance of counsel claims

raised by the petitioner are not “debatable among jurists of

reason,” we decline to expand the COA and, therefore, dismiss the petitioner’s uncertified issue for lack of jurisdiction.

II. Voluntariness of plea 

We now turn to the certified issue. The petitioner argues

that the voluntariness of his plea was undermined by the short

period of time — two hours — that he had to consider the

plea agreement.4 Busch further argues that the limited length

4The total amount of time the petitioner had to consider the plea is in

dispute. The transcript reflects that trial proceedings were suspended for

a little more than two hours before Busch informed the trial court that he

had accepted a plea agreement. However, the respondent argues that the

petitioner had more time than those two hours to consider the plea. His

trial counsel testified that the plea negotiations happened over a couple of

days. Even the petitioner acknowledges that the “proposed disposition was

identical to an offer that Busch had rejected shortly after arraignment following his arrest.” (Petitioner’s Opening Br. at 12.) 

10892 BUSCH v. WOODFORD
of time, in combination with his mental defects, rendered his

plea involuntary. 

[7] The test for determining whether a plea is valid is

“whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” Hill, 474 U.S. at 56 (quoting Alford, 400 U.S. at 31)

(quotation marks omitted); Boykin v. Alabama, 395 U.S. 238,

242-43 (1969). “[T]he record must affirmatively disclose that

a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Brady v. United States, 397 U.S. 642,

747 n.4 (1970). A guilty plea is coerced where a defendant is

“induced by promises or threats which deprive [the plea] of

the nature of a voluntary act.” Iaea v. Sunn, 800 F.2d 861, 866

(9th Cir. 1986) (quotation marks and citation omitted). To

determine the voluntariness of the plea, we look to the totality

of the circumstances, examining both the defendant’s “subjective state of mind” and the “constitutional acceptability of the

external forces inducing the guilty plea.” Id.

[8] The district court issued a certificate of appealability on

this issue noting that it was a novel argument and indicating

that there was no case law on the question. Busch v. Woodford, No. C 04-4157-MJJ, slip op. at 3 (N.D. Cal. Mar. 24,

2006.) Indeed, the case law on this issue is quite limited.5

However, the amount of time Busch had to consider the plea

is only relevant if it somehow rendered his plea coerced, and

therefore involuntary. Recall that the jury had already been

empaneled and that the court had delayed opening arguments

until the following morning in order to provide Busch’s counsel and the prosecution an opportunity to reconsider a plea

bargain. Therefore, there was a plausible reason for the arguably short two hours Busch had to consider the proposed plea

agreement. With this in mind, the proper question for review

5This court has held that nine days to consider a plea bargain was not

inadequate. United States v. Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir.

1995). 

BUSCH v. WOODFORD 10893
is whether the California Supreme Court “clearly erred in its

application of controlling federal law” in determining that the

petitioner’s plea was voluntary. See Delgado II, 223 F.3d at

982. We conclude that it did not.

In accepting Busch’s plea, the state trial court conducted a

thorough plea colloquy. As the district court noted, the transcript of the plea colloquy covers sixteen pages. As is evidenced from the following exchange, the state trial court

specifically addressed the adequacy of the length of time the

defendant had to discuss the plea agreement with his counsel.

The Court: Now, have you talked about this case

with your lawyers?

[Petitioner]: Yes.

The Court: And you believe you’ve had enough

time to talk with them about your

case?

[Petitioner]: I guess. 

The Court: Well, is that a yes or a no?

[Counsel]: Maybe you could ask the next question first and maybe then he’ll be

able to answer this question.

The Court: Have you told your attorneys all the

facts and circumstances that are

known to you about your case? 

[Petitioner]: Yes. 

The Court: You’ve had enough time to talk with

them about your case? 

10894 BUSCH v. WOODFORD
[Petitioner]: Yeah. 

The Court: Is that a yes? I just need to be sure.

[Petitioner]: Yes.

The Court: Okay. Are you pleading guilty freely

and voluntarily? 

[Petitioner]: Yes.

(Respondent’s ER at 30.) Based in part on this exchange, the

trial court found that the petitioner “understands the consequences to him of his plea of guilty. His plea of guilty is

freely and voluntarily given, and there’s a factual basis for his

plea of guilty.” (Id. at 36.) 

[9] In Blackledge v. Allison, 431 U.S. 63 (1977), the

Supreme Court held that findings made by the judge accepting the plea “constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court

carry a strong presumption of verity.” Id. at 74; cf. Chizen v.

Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (holding that the

defendant overcame statements made at his plea colloquy and

showed his plea was involuntary where the plea was induced

by misrepresentations by the defendant’s counsel as to what

the defendant’s sentence would in fact be under the plea

agreement). In a case where the defendant decided to plead

guilty after trial had begun, the Tenth Circuit rejected the

defendant’s claim that the limitations on time for him to consider a plea bargain rendered it involuntary, relying in part on

the defendant’s “participat[ion] in a [plea] colloquy that

leaves little doubt that his plea was knowing and voluntary.”

United States v. Graham, 466 F.3d 1234, 1239 (10th Cir. 2006).6

6Although Graham involved a direct appeal from a plea to a federal

offense and the plea was taken pursuant to Federal Rule of Criminal Procedure 11, the plea colloquy demonstrated voluntariness under the same

constitutional standard applicable in this case. See Alford, 400 U.S. at 31;

Brady, 397 U.S. at 784. 

BUSCH v. WOODFORD 10895
The petitioner contends that the court should have questioned the voluntariness of his plea in light of Busch’s “I

guess” response, instead of “shoehorn[ing] Busch’s answer in

a way that masked his grave doubts about whether to plead.”

(Petitioner’s Opening Br. at 13.) The trial court, however, did

respond to Busch’s “I guess” answer. The court again asked

if he had enough time to talk to his attorneys about the plea.

(Respondent’s ER at 30.) When Busch responded “Yeah,” the

court asked Busch to clarify, “Is that a yes?” Id. Moreover,

earlier in the exchange when Busch did not understand a

question, he had clearly answered “No.” (See id. at 27.) 

[10] Busch argues that the limited time he had to consider

the plea agreement must be considered in light of his “mental

state.” The petitioner relies on the testimony of Dr. Thomson

offered at the evidentiary hearing. Dr. Thomson testified to

certain “factors,” namely immaturity, history of brain headinjury accidents, history of methamphetamine use and limited

education, which impacted the defendant’s mental state at the

time he considered the plea agreement. (Petitioner’s ER at

75.) When pressed, however, Dr. Thomson admitted that there

was no evidence to support a “major mental illness diagnosis.” (Id. at 80-81.) Moreover, Dr. Drury, who provided a

competency evaluation prior to trial, found Busch to be “essentially free of major signs of mental disorder, mental disease or psychiatric disease” and concluded that he was

competent to stand trial. (Id. at 6.) The competency standard

to plead guilty is the same as that to stand trial. Miles v.

Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (citing Godinez

v. Moran, 509 U.S. 389, 402 (1993)). Any evidence of mental

deficiencies did not undermine the voluntariness of Busch’s

plea even in light of the alleged limitation to two hours he

claims he had to consider the proposed plea agreement. 

[11] Busch’s testimony at the evidentiary hearing describes

the difficulty he had in making the decision to plead guilty.

(Respondent’s ER at 136-41.) Recall, however, that Busch

was offered identical terms shortly after he was arrested, more

10896 BUSCH v. WOODFORD
than a year before he pleaded guilty. We have no doubt that

the decision to plead guilty is a difficult one for many defendants, but the fact that one struggles with the decision, and

might later even come to regret it, does not render it coerced.

See United States v. Johnson, 539 F.2d 1241, 1243 (9th Cir.

1976). Here, Busch participated in a thorough plea colloquy,

in which he answered in the affirmative that his plea was voluntary under the circumstances and, specifically answered in

the affirmative when asked if he had had enough time to discuss the plea with his attorneys. We conclude that the California Supreme Court did not “clearly err in its application of

controlling federal law” by determining that Busch’s plea was

voluntary. Delgado II, 223 F.3d at 982. 

AFFIRMED.

BUSCH v. WOODFORD 10897