FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON ANDERSON,

Petitioner-Appellant,

v.

CONNIE GIPSON, Warden,

Respondent-Appellee.

No. 16-15338

D.C. No.

2:12-cv-02964-KJM-KJN

OPINION

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted June 15, 2018

San Francisco, California

Filed September 6, 2018

Before: Mary M. Schroeder, David M. Ebel,

*

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Ebel

 * The Honorable David M. Ebel, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 ANDERSON V. GIPSON

SUMMARY**

Habeas Corpus

The panel reversed the district court’s denial of 

California state prisoner Aaron Anderson’s 28 U.S.C. 

§ 2254 habeas corpus petition challenging his conviction for 

domestic violence, assault, and vandalism.

The panel held that the California Court of Appeal’s 

decision denying Anderson relief on his claim that the trial 

court violated his due process rights by failing to order sua 

sponte a competency hearing involved an unreasonable 

application of clearly established federal law. The panel 

explained that in the face of strong indicia of incompetence, 

including a bona fide suicide attempt on the eve of trial, Pate 

v. Robinson, 383 U.S. 375, 385 (1966), and its progeny 

demand more than explanation; they demand a competency 

hearing.

The panel remanded the case to the district court with 

instructions to grant the writ unless, within a reasonable 

time, the State grants a new trial; and dismissed as moot 

Anderson’s appeal as to claims of error involving his Faretta

waiver and shackling during trial.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ANDERSON V. GIPSON 3

COUNSEL

Ann Catherine McClintock (argued), Assistant Federal 

Defender; Heather E. Williams, Federal Defender; Office of 

the Federal Defender, Sacramento, California; for 

Petitioner-Appellant.

David Andrew Eldridge (argued) and Justain P. Riley,

Deputy Attorneys General; Michael P. Farrell, Senior 

Assistant Attorney General; Xavier Becerra, Attorney 

General; Office of the Attorney General, Sacramento, 

California; for Respondent-Appellee.

OPINION

EBEL, Circuit Judge:

In 2008, Petitioner Aaron Anderson was convicted of 

domestic violence, assault, and vandalism stemming from a 

physical quarrel with his on-again, off-again live-in 

girlfriend. Pursuant to California’s Three Strikes law, 

Anderson was sentenced to fifty-four years to life. After 

exhausting his state remedies, Anderson sought a writ of 

habeas corpus in federal court, alleging constitutional 

violations involving (1) the failure of his trial judge to call 

sua sponte for a competency hearing, (2) the failure of the 

trial judge to revoke sua sponte his Faretta waiver, and 

(3) the trial court’s decision to keep him shackled during 

trial.

The Anti-Terrorism and Effective Death Penalty Act 

(“AEDPA”) sets a high bar for a state petitioner seeking to 

establish a constitutional violation. Mindful of that bar, we 

nonetheless conclude it was error for the state trial judge not 
4 ANDERSON V. GIPSON

to sua sponte order a competency hearing given the 

numerous signs of Anderson’s mental incompetency, 

including his suicide attempt on the eve of trial. 

Accordingly, we REMAND the case to the district court with 

instructions to grant the writ unless, within a reasonable 

time, the state grants a new trial consistent with this opinion. 

Because of our ruling on the competency issue, we need not 

address Anderson’s other issues, and we therefore DISMISS 

as moot his appeals as to the Faretta and shackling issues.

I. BACKGROUND

The following facts are drawn primarily from the opinion 

of the California Court of Appeal in Anderson’s direct 

appeal.1

In 2007 Mr. Anderson and the victim, his on-again, offagain girlfriend, attended a wake for Anderson’s nephew. 

This wake left Anderson “distraught,” and he drove with his 

brother and the victim to the grocery store. When the victim 

refused to join the brother and Anderson for a drink, 

Anderson “hit her behind her right ear and grabbed the car 

keys, heading for the store. As she followed him toward the 

store, he struck her again, knocking her down.”

The victim got up and continued into the store, where she 

asked the manager if she could call 911. “After she made 

the call, [Anderson] tried to grab the phone out of her hand. 

He put his arm around her neck and dragged her backward 

about 15 feet before throwing her to the ground.” The victim 

got up and climbed back into the car, but Anderson climbed 

 1 See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (instructing 

that federal habeas courts should “look through” unexplained state court 

decisions to the “last related state-court decision that does provide a 

relevant rationale”).
ANDERSON V. GIPSON 5

in with her. The two drove off, but were intercepted by 

police shortly afterwards. Officers took Anderson into 

custody, but after he was placed into a police cruiser he 

kicked out the cruiser’s window. When police examined the 

victim, she had “a two- by one-inch ‘painful’ contusion 

behind [her] ear, bruises, and a lump on her head.”

The incident at the supermarket was caught on the store’s 

surveillance cameras. According to the California Court of 

Appeal, the video “did not show the victim attacking 

[Anderson] in the car,” as Anderson claims, but instead

it showed him on top of her in the car drawing 

his hand back several times; it showed him 

standing above her as she lay on the ground 

outside the market, moving his arms and legs; 

and it showed him swinging his arms as he 

stood over her in the store after shoving her 

to the ground.

A. The Initial Proceedings Before State Judge Balonon

Anderson was charged with inflicting injury on a 

cohabitant, assault by means of force likely to inflict great 

bodily injury, vandalism, and resisting a peace officer. 

Because of prior California convictions, his trial became a 

“three strikes case” under California law, greatly enhancing 

the penalties Anderson faced. Anderson was set to proceed 

to trial on these charges in October of 2007 before The 

Honorable Eugene Balonon.

At the outset of the Balonon proceedings Petitioner’s 

counsel indicated that “relations with his client were rocky 

but repairable.” The next day, however, Petitioner, who had 

been detained awaiting trial, refused to come to court, and 

counsel raised concerns about his client’s competency to 
6 ANDERSON V. GIPSON

proceed. ER 68 (“Defense counsel reported that ‘I don’t 

think I can raise things to the level of a doubt of his 

competency. But I do have some concerns’ about defendant 

not presently taking the anti-depressants previously 

prescribed for him while in jail[.]”). At this point defense 

counsel requested a short continuance to “get an evaluation 

of defendant from professionals with whom he was familiar 

and who could work quickly[,]” but Judge Balonon and the 

prosecutor both expressed concern that doing so would offer 

Petitioner an “indication that being difficult would result in 

. . . delay of the proceedings.”

The point became moot, however, when Petitioner 

arrived in court in the afternoon. He was wearing his jail 

attire, and refused to change into civilian clothes. Given the 

opportunity to address Judge Balonon, Petitioner

asserted that he did not want to be there, that 

he was not mentally prepared, and [that] he 

did not understand what was happening. He 

said that he had stopped taking his 

medication and thought the strain of the 

proceedings might leave him unable to be 

present throughout them. He also had been 

having trouble eating and sleeping.

Despite these statements from the defendant, Judge Balonon 

observed that defendant had become emotional during a 

colloquy as to the impact of his previous convictions on his 

current case and noted that he “believed that defendant was 

simply experiencing the ordinary stress of facing trial (rather 

than facing an incipient mental breakdown).” Judge 

Balonon then stated for the record: “There is nothing that I 

can find from my interaction and my observation of Mr. 

Anderson that would in any [ ] way . . . indicate that he 
ANDERSON V. GIPSON 7

doesn’t know what was going on . . . either today or in the 

prior proceedings . . . .”

At this point the Balonon proceedings moved into voir 

dire, and Judge Balonon asked the courtroom bailiff about 

the necessity of restraining the defendant in open court. 

According to the California Court of Appeal, “[t]he court 

concluded it did not find any basis for any restraints.” 

Despite that conclusion from the court, Anderson 

nonetheless said he wanted to remain in shackles. Judge 

Balonon ordered the bailiff to release Petitioner’s ankle 

shackles, but keep the belly-chain shackles in place.

The proceedings continued briefly, before recessing for 

the weekend still in the middle of voir dire. When the jury 

returned to court on the following trial date, a Monday, 

“[Judge Balonon] announced that [he] was continuing the 

proceedings in order to evaluate defendant because 

[Anderson] had attempted suicide over the weekend.” At 

this point the jury panel was dismissed for good cause.

B. The Proceedings Before State Judge Orr

After several continuations, including one at which 

defense counsel informed the court that he intended to have 

outside experts conduct a psychological evaluation of 

Petitioner, the case proceeded to trial roughly three months 

later before a different judge, The Honorable Joseph Orr. At 

this point Petitioner indicated that he wanted to proceed pro 

se.

In doing so, Petitioner “explained that he felt the 

outcome of the trial was inevitable and he would rather reach 

that result on his own than with someone else representing 

him.” After some discussion, Judge Orr told Petitioner that 

he “would accept his waiver [of his right to counsel] 
8 ANDERSON V. GIPSON

notwithstanding his refusal to acknowledge that he could not 

raise the incompetence of his own trial performance on 

appeal.” The trial court also appointed stand-by counsel. 

The case then proceeded to voir dire.

Prior to voir dire, the court also discussed whether 

Anderson would be shackled. The bailiff indicated that 

defense counsel had asked for the restraints to be removed 

but “it doesn’t make any difference to defendant whether or 

not he ha[s] restraints on.” The California Court of Appeal

assumed that this comment was a reference to the previous 

proceedings when Petitioner had requested to remain in 

shackles. This time, however, Anderson “asserted that he did 

not pose any threat and voiced objection to the full restraints 

that the deputies wanted as a matter of course.” Judge Orr 

ruled that Petitioner’s primary shackles would be removed, 

but that he would still be chained to his chair. Petitioner 

“expressed his satisfaction with this arrangement.” 

According to the California Court of Appeal, “the record 

does not indicate whether or not there was an adjustment of 

the chain in front of the jury,” and “nothing affirmatively 

indicates that the jury actually saw the chair chain, nor does 

anything indicate that defendant testified in a chair 

restraint.”

That is not to say that the jury was unaware of 

Petitioner’s shackles. While one witness was being directexamined, Petitioner twice indicated to the court in the 

presence of the jury that the chain was too tight. Then, 

during jury instructions, Judge Orr instructed the jury to 

disregard the fact that “physical restraints have been placed 

on Aaron Anderson.” Based on these two statements, even 

if the jury were unable to see the shackles, they certainly 

were aware of them.
ANDERSON V. GIPSON 9

Petitioner—now representing himself—did not 

“meaningfully” participate in voir dire. This resulted in an 

all-female jury, including one juror who herself had been a 

victim of domestic violence and one whose “best friend” had 

been the victim of domestic violence.2

At the start of trial on the second day, Judge Orr 

reminded Petitioner that defense counsel was standing by, 

but Petitioner did not respond. While the first witness was 

being presented, Petitioner blurted out that he felt 

“overwhelmed,” and when it came time to conduct crossexamination he admitted that he did not know how to crossexamine a witness. Judge Orr called a recess after that 

witness, and Petitioner “confessed that he was legally 

inadequate, and was feeling an extreme amount of stress.” 

Judge Orr then recessed the trial to the following Monday to 

allow time for Petitioner to go to the prison law library and 

prepare.

When the trial reconvened, Petitioner again complained 

about his lack of legal knowledge. During the examination 

of at least one witness he was silent, even when asked if he 

wanted to conduct cross-examination. When the victim took 

the stand, Petitioner “repeatedly interrupted the 

questioning,” calling the victim names and pleading with her 

to tell the truth.

When the court called the noon recess, 

defendant had an emotional outburst 

 2 Judge Orr allowed the former to sit on the jury after she testified 

that she could be impartial because the violence against her had occurred 

well in the past, and the latter because she testified that her friend having 

been the victim of domestic violence had not “affected [her] in any way.” 

Petitioner did not challenge either of these jurors for cause or use his 

peremptory challenges on them (or any other jurors).
10 ANDERSON V. GIPSON

(apparently directed at the prosecutor) and 

asked to rescind his waiver of counsel. He 

also demanded a mistrial. After the recess, 

defendant apologized for his behavior and 

again requested a mistrial. At the conclusion 

of the afternoon’s proceedings, the court 

granted defendant’s request to revoke his 

waiver of counsel and reappointed defense 

counsel.

Defense counsel had been on stand-by, but had not been 

present during the entire trial.

The jury ultimately convicted Petitioner on the domestic 

violence, assault, and vandalism counts.3 Based on 

California’s Three Strikes law, he was sentenced to fiftyfour years to life in prison with the possibility of parole.

II. PROCEDURAL HISTORY

Petitioner raised each of the issues relevant to this appeal 

during his direct appeal, but each was rejected by a reasoned 

opinion of the California Court of Appeal. The California 

Supreme Court denied Petitioner’s petition for certiorari 

without comment. Our review, therefore, focuses on the 

California Court of Appeal’s reasoning in denying relief on 

the three issues presented here. See Wilson v. Sellers, 138 S. 

Ct. 1188, 1192 (2018). Petitioner later sought state habeas 

review of several issues irrelevant to this appeal, but those 

 3 A mistrial was declared on the basis of a hung jury as to the last 

charge, resisting a peace officer, but that determination is not before us 

on appeal.
ANDERSON V. GIPSON 11

claims were denied as well without a further reasoned 

opinion.

In 2012, proceeding pro se, Anderson petitioned the 

federal district court for habeas relief. In March 2014, a 

federal magistrate issued Findings and Recommendations to 

deny all relief. Anderson timely objected to those Findings 

and Recommendations, and the district court ordered the 

State of California to provide some missing records, 

including any report filed by any doctor who examined 

Petitioner after his suicide attempt and before the trial 

resumed in front of Judge Orr. The State filed a declaration 

averring that no such report existed, but that it had been in 

contact with Petitioner’s trial counsel, who explained that a 

doctor had examined Anderson, and that “it was his common 

practice with [the psychologist who examined Anderson] 

that no written report was made when the results of the 

evaluation did not raise concerns about competency. . . . 

[The psychologist’s] examination of Petitioner did not raise 

doubts about Petitioner’s competency.”4

After receiving this declaration and the other requested 

documents, the district court issued an order adopting in full 

the Findings and Recommendations of the magistrate and 

denying habeas relief. The district court also denied a 

certificate of appealability. Petitioner timely filed a notice 

of appeal, and the Ninth Circuit granted a certificate of 

appealability on the following claims: “whether the trial 

court violated the appellant’s right to due process by failing 

 4 Petitioner’s trial counsel’s statement was not under oath, nor had 

it ever been submitted to any state court nor has it ever been tested by 

cross-examination for accuracy or veracity. And we also note that 

Anderson denied in his pro se objections to the magistrate’s findings and 

recommendations that any such examination ever occurred.
12 ANDERSON V. GIPSON

to revoke his pro se status, failing to hold a competency 

hearing, and allowing him to remain shackled during trial.” 

At this point we also granted Petitioner’s motion for 

appointment of counsel.

III. DISCUSSION

AEDPA sets forth two circumstances in which a federal 

court may grant habeas relief to a state prisoner: (1) if the 

state proceedings “resulted in a decision that 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) if those state proceedings 

“resulted in a decision that 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). 

Because the first clause can be further bifurcated into two 

sets of circumstances, Anderson’s petition must fail unless 

he can convince us his state court proceedings resulted in a 

decision that (1) was contrary to clearly established federal 

law as determined by the Supreme Court, (2) involved an 

unreasonable application of clearly established federal law 

as determined by the Supreme Court, or (3) was based on an 

unreasonable determination of the facts in light of the 

evidence presented at his trial. Id. It is the first two of these 

§ 2254 sets of circumstances that are involved in the 

dispositive issue in this appeal.

A decision is contrary to clearly established Supreme 

Court law if it “applies a rule that contradicts the governing 

law set forth in [Supreme Court] cases.” Early v. Packer, 

537 U.S. 3, 8 (2002) (internal quotations omitted). While 

circuit precedent may be “persuasive” in establishing the 

contours of Supreme Court authority, Maxwell v. Roe, 

606 F.3d 561, 567 (9th Cir. 2010), it cannot “refine or 

sharpen a general principle of Supreme Court jurisprudence 
ANDERSON V. GIPSON 13

into a specific legal rule that [the Supreme Court] has not 

announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

Assuming the state court identifies and applies the 

correct legal standard, the second inquiry becomes whether 

the state court unreasonably applied clearly established 

federal law. This question, however, does not ask whether 

the federal court, on direct review, would have reached a 

different decision than did the state court, but only whether 

the state court “unreasonably” applied the correct legal 

principle to the facts of petitioner’s particular case. Williams 

v. Taylor, 529 U.S. 362, 407 (2000). “A state court’s 

determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ 

on the correctness of the state court’s decision.” Harrington 

v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)).

Under the Richter standard, our inquiry is designed not 

to probe what arguments exist for overturning the state 

court’s determinations, but rather whether “‘arguments or 

theories . . . could have supported’ the state court’s . . .

decision.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560 

(2018) (quoting Richter, 562 U.S. at 102). “‘If this standard 

is difficult to meet’—and it is—‘that is because it was meant 

to be.’” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting 

Richter, 562 U.S. at 102).

But while setting a high standard for relief, AEDPA 

protects and preserves the critical role federal courts play in 

identifying and correcting constitutional errors. Even under 

the strict dictates of AEDPA, constitutional infirmity in a 

state court conviction does not become immunized against 

federal review by virtue of subsequent affirmances in the 

state courts of appeals. See Slack v. McDaniel, 529 U.S. 473, 
14 ANDERSON V. GIPSON

483 (2000) (“The writ of habeas corpus plays a vital role in 

protecting constitutional rights.”).

We review the district court’s denial of Anderson’s 

petition de novo, Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 

2006), and its factual determinations for clear error, Paulino 

v. Harrison, 542 F.3d 692, 698 (9th Cir. 2008).

“It has long been accepted that a person whose mental 

condition is such that he lacks the capacity to understand the 

nature and object of the proceedings against him, to consult 

with counsel, and to assist in preparing his defense may not 

be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 

171 (1975). Furthermore, in some trials, there comes a point 

where the defendant’s behavior displays such marked indicia 

of incompetence that the trial court violates due process by 

not sua sponte suspending proceedings and conducting a 

hearing into defendant’s competency to stand trial. See, e.g., 

Drope, 420 U.S. at 180; Pate v. Robinson, 383 U.S. 375, 385 

(1966); de Kaplany v. Enomoto, 540 F.2d 975, 979–81 (9th 

Cir. 1976). Anderson argues that his erratic behavior during 

the course of the judicial proceedings in this case crossed this 

line. While the California Court of Appeal apparently 

identified the correct standard, its application of that 

standard was contrary to clearly established federal law as 

determined by the Supreme Court.

“Where the evidence raises a ‘bona fide doubt’ as to a 

defendant’s competence to stand trial, the judge on his own

motion must impanel a jury and conduct a sanity hearing 

pursuant to” the relevant state procedures. Pate, 383 U.S. at 

385 (emphasis added) (citing People v. Shrake, 182 N.E.2d 

754 (Ill. 1962)). Since Pate, courts, including the Ninth 

Circuit, have generally adopted the “bona fide doubt” 

standard as to when a trial court is required to order a 
ANDERSON V. GIPSON 15

competency hearing before proceedings may continue.5 See, 

e.g., de Kaplany, 540 F.2d at 979. A few years later the 

Supreme Court explained that the “import” of its decision in 

Pate “is that evidence of a defendant’s irrational behavior, 

his demeanor at trial, and any prior medical opinion on 

competence to stand trial are all relevant in determining 

whether further inquiry is required, but that even one of 

those factors standing alone may, in some circumstances, be 

sufficient.” Drope, 420 U.S. at 180.

Looking at these factors, Anderson’s case checks two if 

not all three of these evidentiary boxes. His behavior was 

irrational, especially when he declined to participate in the 

voir dire process, resulting in an all-female jury which 

included multiple jurors with personal connections to 

domestic violence. His demeanor at trial was erratic and 

marked by intermittent withdrawal from the proceedings and 

 5 At oral argument the State suggested, based on language from 

Drope, that Pate’s “bona fide doubt” standard was too case-specific to 

constitute the “clearly established” federal law required by AEDPA. See

Drope, 420 U.S. at 172 (explaining that Pate did not “prescribe a general 

standard with respect to the nature or quantum of evidence necessary to 

require resort to an adequate procedure”). However not only does the 

“bona fide doubt” standard enunciated in Pate accord with the general 

evidentiary inquiries outlined in Drope, but Circuit authority can be 

“persuasive” in determining the contours of clearly established Supreme 

Court law, Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010), and the

Courts of Appeals have uniformly interpreted Pate and Drope as 

outlining a generally applicable “bona fide doubt” standard. See, e.g., 

Austin v. Davis, 876 F.3d 757, 781 (5th Cir. 2017); McManus v. Neal, 

779 F.3d 634, 656 (7th Cir. 2015); Johnson v. Singletary, 162 F.3d 630, 

634 (11th Cir. 1998); cf. People v. Rogers, 141 P.3d 135, 152 (Cal. 2006) 

(citing Cal. Penal Code § 1368) (establishing that under California law 

the trial court judge is required to “suspend trial proceedings and conduct 

a competency hearing” if he is “presented with substantial evidence of 

incompetence, that is, evidence that raises a reasonable or bona fide 

doubt concerning the defendant’s competence to stand trial”).
16 ANDERSON V. GIPSON

profane outbursts. And while there is a dispute over whether 

Petitioner received a mental health evaluation between the 

Balonon proceedings and the Orr trial, no mental evaluation 

was submitted into the state record. At the very least 

Anderson’s suicide attempt which aborted the Balonon 

proceedings should have left the court insistent on receiving 

the results of any such promised mental examination when 

the case resumed. Finally, while there was a roughly threemonth gap between the Balonon proceedings and the Orr 

trial, there is nothing in the trial court record that suggests 

any amelioration of Petitioner’s mental incompetence during 

that hiatus.

Considered holistically, the trial judge was or should 

have been aware of the following indicia of incompetence: 

(1) Petitioner’s disengagement during voir dire, which 

shows he did not have the wherewithal to remain engaged in 

the trial, (2) that he permitted a jury of all women, including 

one with a personal experience involving domestic violence 

and one whose best friend was a victim of domestic violence, 

to be empaneled in this case, where he was charged with 

domestic violence, (3) that he did not object to shackles 

during trial, and even affirmatively requested them during 

the Balonon proceedings, (4) his bizarre performance during 

trial, including his emotional outbursts, (5) wearing prison 

clothes to court one day during the Balonon proceedings, and 

refusing to change, (6) refusing to show up in court one 

morning during the Balonon proceedings, (7) that 

Petitioner’s own attorney expressed concern regarding his 

mental competency during the Balonon proceedings, and 

(8) his suicide attempt. Taken together, these indicia raise 

such a bona fide doubt as to Anderson’s competence to stand 

trial that the trial court erred in not sua sponte ordering a 

competency hearing before the trial resumed.
ANDERSON V. GIPSON 17

Regarding whether a mental health evaluation occurred 

between Anderson’s suicide attempt and the Orr 

proceedings, Anderson maintains that no such examination 

ever occurred and there was no state court hearing to resolve 

that factual dispute. Further, if there was such an 

examination, it was never submitted to Judge Orr nor tested 

in any state judicial proceeding. This lack of any 

information about any such examination in the trial court 

record is fatal to its ability to cure the constitutional 

deficiencies at issue.

The California Court of Appeal dismissed the abovereferenced indicia of incompetence as demonstrating 

nothing more than “the expected reaction of an unprepared 

layperson thrust into the complexities of the ill-advised role 

of self-representation.” It also concluded that those actions, 

“far from being substantial evidence of [Anderson’s] 

incompetence, demonstrate[] he knew far too well what was 

at stake, including his accurate assessment of the likelihood 

of his convictions.” This speculation represents only the 

impressions of the California Court of Appeal on the basis 

of a paper record rather than the contemporaneous 

observations of the trial court and a competency hearing 

where evidence could be considered and tested. In the face 

of strong indicia of incompetence, including a bona fide 

suicide attempt on the eve of trial, Pate and its progeny 

demand more than such speculation: they demand a 

competency hearing.

Accordingly, we conclude that the California Court of 

Appeal’s decision denying Anderson relief on this claim 

involved “an unreasonable application” of clearly 

established federal law. In such circumstance the 

appropriate remedy is to remand the case to the district court 

with instructions to retain jurisdiction and grant the writ 
18 ANDERSON V. GIPSON

unless, within a reasonable time, the State grants Anderson 

a new trial consistent with due process. See, e.g., Petrocelli 

v. Baker, 869 F.3d 710, 731 (9th Cir. 2017) (“We remand 

with instructions to grant the writ . . . unless, within a 

reasonable time . . . the State grants a new . . . trial[.]”); 

McKinney v. Ryan, 813 F.3d 798, 827 (9th Cir. 2015) (en 

banc).

Because we find error in the state court’s failure to order 

a competency hearing, we need not consider Anderson’s 

further asserted grounds for relief.

IV. CONCLUSION

The issue before us is not whether Anderson is 

competent today, or whether a court—upon review of a stale 

record—believes he was competent a decade ago. The 

question is whether his behavior at trial, including his suicide 

attempt, created a “bona fide doubt” as to his mental 

competency. Upon the conclusion that it did, federal 

authority is clear: due process required the trial to cease until 

a competency hearing had been held. No such competency 

hearing was held, and accordingly, Anderson’s due process 

rights were violated.

This case is REVERSED and the case is REMANDED

to the district court with instructions to grant the writ unless, 

within a reasonable time, the State grants Anderson a new 

trial consistent with due process. Anderson’s further claims 

of error involving his Faretta waiver and shackling during 

trial are DISMISSED as moot in light of our ruling on the 

competency issue.