NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN BOSCO ALVAREZ,

Petitioner

- Appellant,

v. DEBBIE ASUNCION, Warden,

Respondent

- Appellee. No. 17

- 55360
D.C. No. 2:12

- cv - 07494

- RGK

- MRW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted November 16, 2018

Pasadena, California Before: W. FLETCHER and PAEZ, Circuit Judges, and GLEASON, ** District Judge. In 2002, Juan Alvarez (“Alvarez”) was convicted by a state court jury of attempted murder, assault with a firearm, and eluding a police officer. At the time of his trial, Alvarez suffered from Graves’ disease , a form of hyperth yroidism

.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 

# FILED

DEC 14 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Although Graves’ disease can affect a person’s mental state, Alvarez’s counsel did not investigate whether Alvarez was competent to stand trial. Beginning in 2011,
Alvarez filed several state court habeas petitions as well as a federal habeas

p etition

. In 2016, t he California Supreme Court den ied habeas relief on the merits. And in 2017, the district court denied Alvarez’s 28 U.S.C. § 2254 petition. Alvarez appeals the district court’s denial of his habeas petition, rais ing a substantive incompetence claim and an ineffective assistance of counsel claim , both of which he raised in his state habeas petitions. We have jurisdiction under 28 U.S.C. § § 1291 and 2253 , and we affirm

. 1. Alvarez argues that he was tried while incompetent in violation of his due process rights. 1 In order to stand trial, a defendant must “ha[ve] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding

— and . . . ha[ve] a rational as well as factual understanding of the proceedings against him.” Dusky v. United States , 362 U.S. 402, 402 (1960). Here, there is ample e vidence in the record that Alvarez both understood the proceedings against him and had a present ability to consult with his lawyer. According to Alvarez’s counsel, Alvarez participated in his own defense by

1 Alvarez only raises a substantive incompetence claim on appeal. Although Alvarez alleged a procedural incompetence claim in his habeas petition

— arguing that the trial judge should have conducted a competency hearing sua sponte

— he has not pursued that arg ument on appeal.3

providing an alibi, testifying to this alibi at his trial, and identifying a n additional
witness who could support his alibi. Alvarez also made an informed decision to reject a favorable plea deal after discussions with his counsel and the trial judge

. When the trial court judge asked Alvarez if he s till wished to go to trial, Alvarez
stated that he did. Because Alvarez’s decision

- making and participation in his
defense indicate that he was competent to stand trial, the district court properly denied habeas relief on this ground

. 2. In addition to h is substantive incompetence claim, Alvarez alleges that he
received ineffective assistance of counsel

— in violation of his Sixth Amendment rights

— because Alvarez’s trial counsel did not investigate whether he was competent to stand trial. To establish inef fective assistance of counsel, a defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984).
The record demonstrates that Alvarez’s trial coun sel was aware of Alvarez’s hyperthyroidism ; indeed, trial counsel referenced Alvarez’s condition several times throughout the trial proceedings to explain his unusual behavior. Despite observing that Alvarez’s condition “makes him react more nervously tha n the normal human being would,” trial counsel did not investigate Alvarez’s competency to stand trial. Even assuming that counsel’s failure to investigate4

Alvarez’s competency constituted deficient performance, Alvarez cannot show prejud ice. F or the rea sons previously discussed, it is not reasonably probable that
the trial court would have found Alvarez incompetent to stand trial had his counsel raised the issue. Thus, the district court did not err in denying habeas relief on this
claim

. 3. Because we affirm the district court’s denial of habeas on the merits, we need not decide whether Alvarez’s claims were procedurally barred.
AFFIRMED.