* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, Chief United States District Judge for the Western District of Washington, sitting by designation. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL MCINERNEY, Petitioner - Appellant,

v. DONALD HELLING and NEVADA ATTORNEY GENERAL, Respondents - Appellees. No. 09-16185D.C. No. 3:07-cv-00037-LRHRAM
MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Submitted November 1, 2010 ** San Francisco, California Before: HALL, THOMAS, Circuit Judges, and LASNIK, Chief District Judge. *** 

# FILED
NOV 03 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS-2- Michael McInerney appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challe nges his jury conviction and sentences for robbery and attempted murder, both with a victim over the age of 65. McInerney argues that his trial counsel rendered ineffective assistance for not seeking a second competency hearing before trial, and for not investigating McInerney’s mental health history at th e time of McInerney’s criminal conduct. Per the Antiterrorism and Effective Death Pe nalty Act, he alleges that the Nevada Supreme Court unreasonably applied federa l law to his ineffective assistance claims. See 28 U.S.C. § 2254(d). We affirm. Judicial scrutiny of McInerney’s counsel’s performance must be highly deferential, and McInerney must prove that his defense attorney’s representation (1) was deficient, and (2) prejudiced the defense. See Strickland v. Washington , 466 U.S. 668, 687, 689 (1984) (articulating the required showing for ineffective assistance of counsel claims). McInerney first argues that his trial counsel rendered ineffective assistance by not moving for a second competency hearing. However, McInerney has not shown thatthe Nevada Supreme Court unreasonably applied federal law when it determin ed that McInerney failed to satisfy Strickland ’s first prong, requiring that his attorney’s representation be deficient. The Nevada Supreme Court considered a ll of the evidence and applicable law-3- bearing on McInerney’s competence, incl uding his claim that changes in his medication regimen negated a prior determination of competency. McInerney’s proof of a two-month alteration in his medication regimen, after he was deemed competent, was insufficient to create th e requisite reasonable doubt as to his competency. See Melchor-Gloria v. State , 99 Nev. 174, 180 (1983) (explaining that a formal competency hearing is required when substantial evidence raises a reasonable doubt as to the defendant’s comp etency). He offered no other proof of his incompetence. Given the evidence pr esented, the Nevada Supreme Court did not apply federal law in an objectiv ely unreasonable way by concluding that McInerney’s representation was not ineffective for not seeking a second competency hearing. Second, McInerney argues that his trial counsel should have investigated McInerney’s mental health history at the time of his criminal acts. Again, McInerney has not shown that the Neva da Supreme Court unreasonably applied federal law when it determined, per Strickland , that McInerney’s trial representation was not deficient. The Nevada Supreme Court examined McInerney’s medical records and reviewedthe circumstances of his crime. It considered all of the things McInerney cl aims should have been investigated by his trial attorney. McInerney’s medical r ecords showed that he has a history of-4- depression, not insanity. Furthermore, the circumstances of McInerney’s crime, while strange, do not indicate that he was le gally insane. Rather, they indicate that he was trying to avoid responsibility for hi s actions and was, therefore, not legally insane. See Finger v. State , 117 Nev. 548, 576 (2001) (“To qualify as being legally insane, a defendant must be in a delu sional state such that he cannot know or understand the nature and capacity of his act, or his delusion must be such that he cannot appreciate the wrongfulness of his act . . . .”). On these facts, the Nevada Supreme Court’s application of federa l law was not objectively unreasonable. AFFIRMED
.