NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEENAN G. WILKINS, AKA Nerrah 

Brown, 

Petitioner-Appellant, 

 v. 

JEFF MACOMBER, Warden, 

Respondent-Appellee.

No. 22-16072 

D.C. No. 3:16-cv-00221-SI 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted February 8, 2024

San Francisco, California

Before: R. NELSON, FORREST, and JOHNSTONE, Circuit Judges.**

Petitioner-Appellant Keenan Wilkins, also known as Nerrah Brown, appeals 

the dismissal of his 28 U.S.C. § 2254 habeas corpus petition challenging his 

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

except as provided by Ninth Circuit Rule 36-3.

** Pursuant to General Order 3.2(h), Judge Johnstone has been drawn to 

replace Judge Sanchez in this matter. Judge Johnstone has reviewed the briefs and 

the record, and listened to the recording of the oral argument in this case.

FILED

SEP 4 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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California conviction on seven counts of second-degree robbery, seven counts of 

false imprisonment by violence, and one count of making criminal threats.1 We 

review de novo a district court’s denial of habeas relief. Balbuena v. Sullivan, 980 

F.3d 619, 628 (9th Cir. 2020). We may only grant habeas relief if the state court’s 

adjudication of a claim (1) “was contrary to, or involved an unreasonable application 

of, clearly established Federal law, as determined by the Supreme Court of the 

United States” or (2) “was based on an unreasonable determination of the facts in 

light of the evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d)(1)–(2). We affirm in part and remand in part.

1. Competency-Related Claims. Wilkins contends that his Fourteenth 

Amendment due process rights were violated because he was not present at the 

competency hearing held before he was committed to the state hospital and because 

California refused to prescribe him Seroquel. Criminal defendants have “the right to 

be present at any stage of the criminal proceeding that is critical to its outcome if his 

presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 

U.S. 730, 745 (1987). The Supreme Court has never held that a competency hearing 

is a critical stage of criminal proceedings. Although the Court’s precedent leads

1Wilkins also raised the uncertified issue that the district court improperly 

dismissed several claims of his second amended petition as unexhausted. We decline 

to expand the certificate of appealability and, accordingly, dismiss the uncertified 

issue for lack of jurisdiction. Doe v. Woodford, 508 F.3d 563, 569 (9th Cir. 2007).
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towards that conclusion—and this court has so held on direct appeal, see United 

States v. Gillenwater, 717 F.3d 1070, 1077 (9th Cir. 2013)—the California Supreme 

Court’s holding that Wilkins’s due process rights were not violated was not an 

unreasonable application of existing Supreme Court precedent. See White v. 

Woodall, 572 U.S. 415, 419 (2014); see also Clark v. Broomfield, 83 F.4th 1141, 

1149 (9th Cir. 2023) (“Given a Supreme Court holding in one context, circuit law 

cannot ‘bridge the gap’ to reach a new context, even as a ‘logical next step.’” 

(citations omitted)). Likewise, Wilkins does not cite any Supreme Court authority 

clearly establishing a due process right to receive a particular medication for mental 

illness. 

2. Speedy-Trial Right. Forty-nine months after he was arrested (but 

seventeen months before his trial), Wilkins presented a speedy-trial challenge to the 

California Supreme Court, which itsummarily denied. We assess speedy-trial claims

by balancing: the “[l]ength of delay, the reason for the delay, the defendant’s 

assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 

514, 530 (1972). 

The total length of delay at issue, forty-nine months, is presumptively 

prejudicial. See id. at 534 (“[M]ore than four years was too long a period, particularly 

since a good part of that period was attributable to the [prosecution] . . . .”). Eleven

months of that delay are attributable to the State. The remaining delay is attributable 
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to Wilkins. We reject Wilkins’s argument that the 96 days in 2007 when criminal 

proceedings were suspended pending a competency hearing should be attributed to

the State because there is no evidence that the state court’s failure to follow the 

statutory competency-evaluation procedures with exact precision constituted 

deliberate or negligent delay. We also decline to attribute the delay from March 2008 

to May 2011—when Wilkins was not prescribed Seroquel—to the State because 

Wilkins fails to establish that his mental illness is what caused this delay. 

Wilkins both asserted his speedy-trial rights and incongruently engaged in 

conduct that significantly delayed his trial, such as frequently switching between 

different counsel and self-representation, filing excessive pro se matters with the 

trial court and for collateral review, and repeatedly waiving his speedy trial rights. 

United States v. Loud Hawk, 474 U.S. 302, 314 (1986). We conclude that Wilkins 

shows presumptive prejudice, but no actual prejudice. See Doggett v. United States, 

505 U.S. 647, 656 (1992) (“[P]resumptive prejudice cannot alone carry a Sixth 

Amendment claim without regard to the other Barker criteria, it is part of the mix of 

relevant facts, and its importance increases with the length of delay.” (citation 

omitted)). And although the State’s unexplained eleven-month delay weighs in 

Wilkins’s favor, on the whole, the Barker factors weigh against finding a speedytrial violation. The California Supreme Court could have considered Wilkins’s 
5 

petition and reasonably concluded that his speedy-trial rights were not violated by 

the State’s delay.

3. Ineffective Assistance of Trial Counsel. Wilkins contends his trial 

counsel erroneously advised him that accepting the State’s plea deal would require 

waiving all his appellate rights, even those that cannot be waived. The record 

indicates that Wilkins refused the plea deal because he wanted to preserve “all 

appellate rights,” including, specifically, a speedy-trial claim. Because a felony

guilty plea extinguishes speedy-trial claims, regardless of appeal waiver, Wilkins 

received correct advice. See Ortberg v. Moody, 961 F.2d 135, 137–38 (9th Cir. 

1992); People v. Egbert, 59 Cal. App. 4th 503, 508 (Cal. Ct. App. 1997). And he 

fails to show “a reasonable probability” that but-for counsel’s advice he “would have 

accepted the plea” that required him to forfeit his speedy-trial claim. Lafler v. 

Cooper, 566 U.S. 156, 163–64 (2012). 

Wilkins argues that his trial counsel failed to investigate an alibi defense until 

after Wilkins testified about it at trial, which was too late to use this information 

effectively. But the record demonstrates that counsel thoroughly investigated 

Wilkins’s primary alibi and the second alibi was peripheral until Wilkins began 

embellishing at trial. Under the doubly deferential standard of review that applies, 

there is a “reasonable argument that counsel satisfied Strickland’s deferential 

standard” despite not investigating the second alibi. Harrington v. Richter, 562 U.S. 
6 

86, 105 (2011).

4. Eighth Amendment. Wilkins claims that his 100-year sentence violates 

the Eighth Amendment. Compared to sentences that the Supreme Court has upheld

in the face of Eighth Amendment challenges, Wilkins’s underlying crime and 

criminal history are more serious and his sentence, though severe, is comparable. 

See, e.g., Ewing v. California, 538 U.S. 11 (2003); Lockyer v. Andrade, 538 U.S. 63, 

68 (2003); Harmelin v. Michigan, 501 U.S. 957 (1991); Rummel v. Estelle, 445 U.S. 

263 (1980).

5. Ineffective Assistance of Appellate Counsel (IAAC). When the district 

court concluded that Wilkins’s IAAC claim in his First Amended Petition was 

unexhausted, it gave Wilkins the options to either dismiss the unexhausted claims 

and proceed on his single exhausted claim; dismiss the petition without prejudice 

and exhaust his claims in state court; or move to stay the proceedings so that he could 

exhaust his claims in state court. Wilkins did not take any of these options. Instead, 

he filed a pro se habeas petition with the California Supreme Court to exhaust his 

IAAC claim. Later, with the assistance of new counsel, Wilkins filed a Second 

Amended Petition in federal court and sought reconsideration of whether his IAAC 

claim was exhausted. 

In February 2021, the district court declined to consider the pro se state 

petition as a sanction for Wilkins’s failure to elect any of the three exhaustion options 
7 

he was given. The district court, however, concluded that Wilkins’s entire IAAC 

claim in his Second Amended Petition was nevertheless exhausted based on a 

purported concession by the State. A year later, in the order now on appeal, the 

district court modified its prior order, recognizing that it had overstated the State’s 

concession about whether Wilkins’s IAAC claim was exhausted. Accordingly, the 

district court reimposed its original sanction—declining to consider the pro se 

habeas petition that Wilkins filed in state court—and found the bulk of Wilkins’s 

IAAC claim unexhausted. In the same order, the district court denied the rest of 

Wilkins’s petition on the merits. By reversing its exhaustion conclusion, limiting its 

review of the IAAC claim to the portion it deemed was exhausted, and then denying 

Wilkins’s petition on the merits, the district court seemingly violated the prohibition 

on mixed-petition adjudication. See Rhines v. Weber, 544 U.S. 269, 273–74 (2005).

The problem is that, as is apparent from the record and as the State conceded 

at oral argument, Wilkins exhausted the entirety of his IAAC claim through his pro 

se petition to the California Supreme Court. Thus, in fact, Wilkins’s federal habeas 

petition consisted only of exhausted claims, including his entire IAAC claim. 

Because the district court addressed only a portion of that claim, we remand for the 

district court to address Wilkins’s full IAAC on the merits. 

AFFIRMED IN PART; REMANDED IN PART.