NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD GALVAN MONTIEL, 

Petitioner-Appellant, 

 v. 

KEVIN CHAPPELL, Warden, San Quentin 

State Prison, 

Respondent-Appellee.

No. 15-99000 

D.C. No. 

1:96-cv-05412-LJO-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted April 16, 2021

San Francisco, California

Before: W. FLETCHER, HURWITZ, and FRIEDLAND, Circuit Judges.

Richard Galvan Montiel appeals from the district court’s denial of his 

application for a writ of habeas corpus, in which Montiel challenges his 

convictions and capital sentence for the 1979 robbery and murder of Gregorio 

Ante. In his habeas application, Montiel argues that he received ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), at both 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 5 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

his 1979 guilt-phase and 1986 penalty-phase trials. The district court issued a 

certificate of appealability (“COA”) for certain claims related to his 1986 penaltyphase trial, and we address those claims (and others related to the penalty-phase 

trial) in an opinion filed concurrently with this memorandum disposition. For the 

reasons we explain here, we decline to expand the COA to include the other 

uncertified claims and issues that Montiel advances in his opening brief.

A petitioner seeking a COA “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.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (brackets and 

emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983), 

codified by statute as recognized by Slack v. McDaniel, 529 U.S. 473, 483 (2000)). 

Montiel’s uncertified claims do not meet this standard.1

1. Montiel urges us to consider whether his penalty-phase attorney provided 

ineffective assistance of counsel by failing to file a state habeas petition 

challenging his 1979 convictions before the 1986 penalty trial. We decline to 

expand the COA to include this claim. As an initial matter, there is no right to 

effective assistance of counsel in postconviction proceedings. See Davila v. Davis, 

1 For the reasons given in the concurrently filed opinion, our review is 

governed by the highly deferential standard of the Antiterrorism and Effective 

Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(d).
3 

137 S. Ct. 2058, 2062 (2017) (“[A] prisoner does not have a constitutional right to 

counsel in state postconviction proceedings.”). Thus, Montiel could not have been 

deprived of such a right by his attorney’s failure to file a state habeas petition 

before the 1986 penalty trial. Moreover, Montiel cannot show prejudice from the 

failure to file a state habeas petition before his 1986 penalty trial, because after that 

trial, he was able to file a petition raising claims about his 1979 guilt-phase 

counsel’s performance that the California Supreme Court considered and denied on 

the merits. We also reject Montiel’s argument that, because his penalty-phase 

attorney’s failure to file a habeas petition was a result of a conflict-of-interest, 

under Cuyler v. Sullivan, 446 U.S. 335 (1980), we must presume prejudice.

2

2. Montiel also urges us to consider whether his guilt-phase counsel 

provided ineffective assistance at his 1979 trial by failing to investigate and present 

evidence that Montiel’s gross intoxication with phencyclidine (“PCP”) prevented 

him from harboring the mens rea necessary for robbery and murder. Strickland

2 Montiel argues that we must presume prejudice under Cuyler, 446 U.S. at

349–50, because his attorney had previously represented his guilt-phase lawyer in 

two unrelated cases. We disagree. The Supreme Court has limited the Cuyler

presumption of prejudice in conflict-of-interest cases to conflicts arising from joint 

or concurrent representation. See Mickens v. Taylor, 535 U.S. 162, 175-76 (2002). 

“We have held that a state court’s rejection of a conflict claim not stemming from 

concurrent representation is neither contrary to, nor an unreasonable application of, 

established federal law as determined by the United States Supreme Court.”

Rowland v. Chappell, 876 F.3d 1174, 1192 (9th Cir. 2017). Here, there is no 

evidence that Montiel’s penalty-phase attorney was representing his guilt-phase 

attorney at the time he allegedly should have filed the state habeas petition..
4 

requires that a court “indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” 466 U.S. at 689. 

Although we do not deny that aspects of guilt-phase counsel’s performance are 

troubling, the California Supreme Court could reasonably have concluded that 

counsel’s performance did not fall below Strickland’s standard of care. 

Montiel’s guilt-phase attorney did present a mental state defense and offered 

expert testimony in support of it. He first attempted to hire forensic psychologist 

and PCP expert Dr. Steven Lerner to review the possible effects that PCP had on 

Montiel’s behavior on the day of the crimes. Dr. Lerner was not available and 

recommended that counsel contact Dr. Linder, who testified on Montiel’s behalf. 

Dr. Linder held a doctorate in education and health science, had been involved in 

PCP research activities, and served as the director of a program to develop 

guidelines and training for medical and law-enforcement professionals on the 

recognition and management of acute and chronic PCP intoxication. At trial, the 

court and the parties agreed that there were almost no qualified experts on the 

psychopharmacological effects of PCP. The decision to hire Dr. Linder appears 

justified in light of Dr. Lerner’s recommendation, Dr. Linder’s reasonable 

qualifications, and the dearth of other available experts. Turner v. Calderon, 281 

F.3d 851, 875–76 (9th Cir. 2002) (“The choice of what type of expert to use is one 
5 

of trial strategy and deserves ‘a heavy measure of deference.’” (quoting Strickland, 

466 U.S. at 691)). 

Moreover, the guilt-phase attorney’s direct examination of Dr. Linder was 

not obviously deficient. In a declaration submitted with Montiel’s state habeas 

petition, Dr. Linder explained that Montiel’s attorney had failed to provide him 

with California’s criminal jury instructions for the relevant offenses or explain to 

him the meaning of legal concepts, like specific intent, pertinent to Montiel’s 

mental state. To be sure, counsel’s failure in this regard is troubling, but Montiel 

has not provided authority that the failure to provide legal standards to a mental 

health expert in preparation for testifying was deficient performance for a capital 

guilt-phase lawyer in 1979. And, in any event, Dr. Linder did provide opinions 

that undercut the prosecution expert’s conclusions about Montiel’s mental state. 

Although his testimony could have been more definitive, Dr. Linder offered the 

opinion that Montiel was in a “delusional state” at the time of the crimes; rebutted 

the prosecution expert’s assertions that Montiel showed no signs of PCP-induced 

psychosis; and noted that PCP’s effects were highly unpredictable, such that one 

seemingly rational act was not strong circumstantial evidence that a user was 

acting rationally just a short time later. 

We therefore cannot say that the California Supreme Court’s denial of the 

claim involved an unreasonable application of clearly established Supreme Court 
6 

precedent. See 28 U.S.C. § 2254(d)(1). We do not think this issue warrants more 

searching analysis, and we therefore decline to expand the COA to include the 

claim.3

3. Finally, Montiel also attempts to raise a claim under Atkins v. Virginia, 

536 U.S. 304 (2002), that his intellectual disability precludes his execution, and a 

claim under Napue v. Illinois, 360 U.S. 264 (1959), that the prosecution knowingly 

presented false testimony from Palacio. The State argues, and Montiel does not 

dispute, that those issues were not presented to the California Supreme Court and 

are therefore not exhausted. We agree, and we decline to expand the COA to 

includes those claims. See 28 U.S.C. § 2254(b)(1)(A).

3 We therefore need not address Montiel’s arguments that guilt-phase 

counsel was ineffective for failing to prepare a different psychiatrist, Dr. Paul 

Cutting, who evaluated Montiel before trial. And, in any event, Montiel did not 

present Dr. Cutting’s declaration to the California Supreme Court, so we may not 

consider it here. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).