FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL MENDEZ,  No. 06-15153

Petitioner-Appellant, D.C. No.

v.  CV-03-00022-WHA

MIKE KNOWLES,* Warden, ORDER AND

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Northern District of California

William H. Alsup, Distict Judge, Presiding

Argued and Submitted

April 14, 2008—San Francisco, California

Filed February 10, 2009

Before: Ronald M. Gould, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Gould

*We retain in the caption the name of the original custodian of Michael

Mendez, Warden Mike Knowles. Should the parties desire that the caption

reflect his current custodian, they may file a motion requesting such a

change, supported by documentation identifying the current custodian. 

1533
COUNSEL

Barry L. Morris, Hayward, California, for the petitionerappellant. 

Mark Howell, Assistant Attorney General for the state of California, San Francisco, California, for the respondentappellee.

ORDER

The opinion in the above-captioned matter filed on August

1, 2008, and published at 535 F.3d 973, is WITHDRAWN.

The superseding opinion shall be filed concurrently with this

order. The pending petition for panel rehearing and rehearing

en banc is dismissed as moot. The parties may file new petitions as to the amended opinion for rehearing and rehearing

en banc in accordance with the Federal Rules of Appellate

Procedure. 

OPINION

GOULD, Circuit Judge: 

In our original opinion, filed August 1, 2008, we concluded

that we were absolutely certain that the jury had not read the

jury instructions to lessen the state’s standard of proof.

Mendez v. Knowles, 535 F.3d 973. In Hedpgeth v. Pulido, the

Supreme Court held that this “absolute certainty” test was

MENDEZ v. KNOWLES 1537
improper. Hedgpeth v. Pulido, 129 S. Ct. 530, 533 (2008). We

now revisit our prior opinion. We remain absolutely certain

the jury did not read the instructions to lower the burden of

proof, and thus we conclude no instructional error occurred.

See id. (describing absolute certainty test as likely a determination that no error occurred). 

The state of California charged and tried Michael Mendez

for the molestation of two minor boys, in violation of sections

288(a), (b)(1), and 647.6(c)(2) of the California Penal Code

(“CPC”). Over Mendez’s objection, the prosecution introduced evidence of two prior convictions: (1) in 1989, Mendez

pleaded guilty to sexual battery of a five-year-old boy in violation of CPC § 243.4; and (2) in 1990, Mendez pleaded

guilty to committing a lewd act on a seven-year-old boy in

violation of CPC § 288(a). At the conclusion of Mendez’s

trial, the trial court instructed the jury that if it found by a preponderance of the evidence that Mendez had committed a

prior sexual offense, it could infer that he was likely to commit and did commit the crimes for which he was on trial. The

jury convicted Mendez on all counts. 

Before the district court, in a 28 U.S.C. § 2254 petition for

writ of habeas corpus, Mendez argued that these instructions

violated his rights to due process and to a jury trial because

the jury could have found him guilty on evidence less certain

than proof beyond a reasonable doubt. Mendez also argued,

among other challenges to the jury verdict, that the trial court

violated his right to due process by not holding a hearing on

his competence to stand trial. The district court denied

Mendez’s petition, but certified for appeal his claim of

instructional error. On appeal, Mendez raises the certified

issue and also reasserts that the trial court violated his due

process right to a hearing on his competence. California state

prison warden Mike Knowles argues that we should not reach

the merits of Mendez’s appeal because he filed his notice of

appeal late, and the district court erred in excusing Mendez’s

late filing. We have jurisdiction pursuant to 28 U.S.C.

1538 MENDEZ v. KNOWLES
§§ 1291 and 2253. We hold that the district court did not err

in excusing Mendez’s late filing of a notice of appeal, and we

affirm the district court’s denial of Mendez’s habeas petition.

I

On September 14, 1998, the State of California filed a complaint against Mendez alleging violations of the California

Penal Code for his alleged molestation of two boys, one nine

years old and the other ten. On June 1, 1999, while jury selection was underway, the prosecution offered to enter into a

plea agreement with Mendez in which it would recommend a

prison term of twenty-five years to life if Mendez pleaded

guilty to all charges. Mendez placed two prerequisites on his

acceptance of the plea agreement offer: (1) videotaped confirmation that the ten-year-old victim had been informed of the

sentence Mendez was to receive; and (2) official assurance

that the ten-year-old victim’s school records would be purged

of any reference to having been molested. The trial court told

Mendez that it lacked the authority to order what Mendez had

requested, and the prosecution advised Mendez that it would

withdraw the offer unless he entered into the plea agreement

during that court session. Defense counsel then stated,

“[W]e’re either in a situation where we’re going to trial or

we’re in a situation that comes within [California] Penal Code

Section 1368. . . . [H]e’s not making sense.” The trial court

inquired about defense counsel’s reference to CPC § 1368,

which requires the court to order a hearing to determine a

defendant’s mental competence if the trial court forms a doubt

as to the defendant’s competence. Defense counsel said that

a hearing was unnecessary at that time, but that he would “advise the Court at the earliest possible moment” if he believed

Mendez fell within CPC § 1368. 

On June 8, 1999, during jury selection but out of the presence of the jury, Mendez accused the prosecutor of calling

him a “sex predator.” Later during the same proceeding,

defense counsel formally requested that the trial court suspend

MENDEZ v. KNOWLES 1539
proceedings pursuant to CPC § 1368: “I have a doubt as to the

competency of Mr. Mendez to rationally assist me in the

defense of the case under 1368. And I would ask the Court to

recess from the jury trial in order to investigate that problem.

. . . I would simply say my observations at this point would

suggest some degree of decompensation or exacerbation of

the problem [identified and flagged for the Court a week earlier].” In response, the trial court stated that it would “suspend

criminal proceedings pursuant to [California] Penal Code Section 1368” and that it would later “go further in terms of

appointing the appropriate experts to examine Mr. Mendez.”

That afternoon, the trial court decided that “rather than suspending the proceedings at [that] time and ordering a hearing

pursuant to that section and related sections,” it would “appoint an expert in the matter to assist [it] in making that determination as to whether to suspend the proceedings and order

a competency hearing.” Defense counsel objected to the trial

court’s decision not to follow the CPC § 1368 procedure. 

On June 11, 1999, the trial court received the expert’s

report. The expert determined that “Mendez may have some

intellectual limits, but he is not incapacitated.” The expert

also concluded that Mendez appreciated the charges against

him and the range and nature of the possible penalties against

him, he understood the adversarial nature of legal proceedings, he had “the capacity to disclose pertinent facts to his

attorney,” he could relate to his attorney, he could “assist in

planning a defense, . . . realistically challeng[e] the prosecution, . . . manifest appropriate courtroom behavior, and . . .

testify relevantly if need be.” Relying on the expert’s report,

the trial court concluded that it would not suspend the proceedings and would not order a CPC § 1368 hearing to ascertain Mendez’s competence. Mendez’s case then proceeded to

trial. 

At trial, the prosecution introduced evidence of Mendez’s

two prior convictions upon guilty pleas: (1) a 1989 conviction

for sexual battery of a five-year-old boy in violation of CPC

1540 MENDEZ v. KNOWLES
§ 243.4, and (2) a 1990 conviction for committing a lewd act

on a seven-year-old boy in violation of CPC § 288(a). At the

conclusion of the trial, the trial court gave the jury the following oral and written instructions, including California Jury

Instructions—Criminal (“CALJIC”) 2.50.01 and 2.50.1 (6th

ed. 1996):

[CALJIC 1.01:] 

Do not single out any particular sentence or any individual point or instruction and ignore the others.

Consider the instructions as a whole and each in

light of all the others. . . . 

[CALJIC 2.50.01:] 

Evidence has been introduced for the purpose of

showing that the defendant committed crimes other

than that for which he is on trial. 

This evidence, if believed, may be considered by you

for the . . . limited purpose of determining if it tends

to show the existence of the intent which is a necessary element of the crime charged. 

For the limited purpose for which you may consider

such evidence, you must weigh it in the same manner as you do all other evidence in the case. 

Evidence has been introduced for the purpose of

showing that the defendant engaged in a sexual

offense on one or more occasions other than that

charged in this case. 

“Sexual offense” means a crime under the laws of a

state or of the United States that involves . . . any

conduct made criminal by Penal Code Section

288(a) and 243 point 4. 

MENDEZ v. KNOWLES 1541
If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer

that the defendant had a disposition to commit the

same or similar type of sexual offense. If you find

that the defendant had this disposition, you may, but

are not required to, infer that he was likely to commit and did commit the crime or crimes of which he

is accused. 

Unless you are otherwise instructed, you must not

consider this evidence for any other purpose. 

[CALJIC 2.50.1:] 

Within the meaning of the preceding instructions, the

prosecution has the burden of proving by a preponderance of the evidence that a defendant committed

crimes or sexual offenses other than those for which

he is on trial. 

You must not consider this evidence for any purpose

unless you find by a preponderance of the evidence

that a defendant committed the other crimes or sexual offenses. . . . 

[Additional Beyond A Reasonable Doubt Instructions:] 

In deciding whether or not to testify, the defendant

may choose to rely . . . upon the failure, if any, of

the People to prove beyond a reasonable doubt every

essential element of the charge against him. . . . 

A defendant in a criminal action is presumed to be

innocent until the contrary is proved, and in case of

a reasonable doubt whether his guilt is satisfactorily

shown, he is entitled to a verdict of not guilty. This

1542 MENDEZ v. KNOWLES
presumption places upon the People the burden of

proving him guilty beyond a reasonable doubt. 

Reasonable doubt is defined as follows: It is not a

mere possible doubt because everything relating to

human affairs is open to some possible or imaginary

doubt. It is that state of the case which, after the

entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding

conviction of the truth of the charge. . . . 

In order to find the defendant guilty, it is necessary

for the prosecution to prove beyond a reasonable

doubt the commission of a specific act or acts constituting that crime within the period alleged. . . . 

If you find the defendant guilty of one or more of the

crimes charged or included in the crime charged in

the information, you must determine whether the

allegation of the prior conviction for a violation of

Penal Code section 288 sub A on or about March

20th, 1990, is true. The People have the burden of

proving the truth of the allegation. That also must be

proved to the standard of beyond a reasonable doubt.

If you have a reasonable doubt that it is true, you

must find it to be not true. 

On June 23, 1999, the jury convicted Mendez as charged.

On September 13, 1999, he was sentenced to a prison term of

167 years to life. Mendez filed a notice of appeal on September 15, 1999, and his conviction was affirmed by the California Court of Appeal on June 22, 2001. On October 10, 2001,

the California Supreme Court denied Mendez’s petition for

review. 

On January 3, 2003, Mendez filed a petition for writ of

habeas corpus in the United States District Court for the

MENDEZ v. KNOWLES 1543
Northern District of California. On December 16, 2005, the

district court denied Mendez’s petition. On January 18, 2006,

Mendez filed an untimely notice of appeal. The district court

determined that the late filing of the notice of appeal was “excusable neglect” and deemed the notice of appeal effective.

The district court certified for appeal Mendez’s claim of

instructional error. Mendez’s appellate opening brief in this

court addresses the certified issue of instructional error and

the uncertified issue of whether the trial court violated

Mendez’s due process rights by not holding a hearing to

ascertain his competence to stand trial. 

II

As a preliminary issue, California state prison warden Mike

Knowles (“the Warden”) argues that Mendez’s appeal is foreclosed because he filed an untimely notice of appeal that

should not have been excused by the district court. We disagree. 

We review for abuse of discretion a district court’s decision

to grant a motion for an extension of time to file a notice of

appeal. Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004)

(en banc). We affirm a district court’s grant of a motion for

an extension of time “unless we are left with the definite and

firm conviction that the lower court committed a clear error

of judgment in the conclusion it reached after weighing the

relevant factors.” Id.

An appeal “from a district court to a court of appeals may

be taken only by filing a notice of appeal with the district

clerk.” Fed. R. App. P. 3(a)(1). The notice of appeal “must be

filed with the district clerk within 30 days after the judgment

or order appealed from is entered.” Fed. R. App. P.

4(a)(1)(A). The district court entered judgment denying

Mendez’s petition for writ of habeas corpus on December 16,

2005. The thirtieth and final day for Mendez to file a timely

notice of appeal fell on Sunday, January 15, 2006. The next

1544 MENDEZ v. KNOWLES
day, Monday, January 16, 2006, was Martin Luther King,

Jr.’s Birthday, a national and legal holiday, and the court was

closed. Therefore, the final day for Mendez to file the notice

of appeal was Tuesday, January 17, 2006. See Fed. R. App.

P. 26(a)(3) (“Include the last day of the period unless it is a

Saturday, Sunday, [or] legal holiday . . . .”); Fed. R. App. P.

26(a)(4) (“As used in this rule, ‘legal holiday’ means . . . Martin Luther King, Jr.’s Birthday . . . .”). 

Mendez’s counsel placed the notice of appeal, addressed to

the district court, in a mailbox at 4:15 p.m. on Friday, January

13, 2006. On Saturday, January 14, 2006, he mailed another

copy to the district court. On Tuesday, January 17, 2006,

Mendez’s counsel telephoned the district court clerk’s office

at 1 p.m., and learned that the clerk’s office had not received

the notice of appeal. At 4:02 p.m. that same day, he called

again, but because the clerk’s office was closed, he was

unable to inquire about the notice of appeal. Mendez’s notice

of appeal arrived at the clerk’s office one day late, on

Wednesday, January 18, 2006. On January 30, 2006, Mendez

moved for an extension of time pursuant to Rule 4(a)(5)(A)

of the Federal Rules of Appellate Procedure, which permits a

party to so move no later than thirty days after the expiration

of the deadline for filing a notice of appeal and permits the

district court to extend the time for filing if the party so moving shows excusable neglect or good cause. Fed. R. App. P.

4(a)(5)(A). On February 8, 2006, the district court found

excusable neglect and granted Mendez permission to file a

late notice of appeal. 

[1] The Warden contends that the district court abused its

discretion when it concluded that Mendez’s untimely filing of

a notice of appeal was excusable neglect.1 In evaluating

1Mendez did not claim that there was good cause for the late filing, and

the advisory committee notes make clear that the “good cause” standard

is only applicable to motions for extension of time filed within the initial

thirty-day period for filing a notice of appeal. Fed. R. App. P. 4(a)(5)

Advisory Committee’s Notes to 1979 Amendment. Therefore, the only

contested issue is whether the neglect of Mendez’s counsel was excusable.

MENDEZ v. KNOWLES 1545
whether neglect is excusable, a district court must consider

the four factors established by the Supreme Court in Pioneer

Investment Services Co. v. Brunswick Associates Limited

Partnership, 507 U.S. 380 (1993): “(1) the danger of prejudice to the non-moving party, (2) the length of delay and its

potential impact on judicial proceedings, (3) the reason for the

delay, including whether it was within the reasonable control

of the movant, and (4) whether the moving party’s conduct

was in good faith.” Pincay, 389 F.3d at 855 (citing Pioneer,

507 U.S. at 395). 

Here, the district court found that three of the four Pioneer

factors weighed in favor of granting Mendez’s motion: “Respondent concedes that it will not suffer prejudice if the

extension is granted. He also admits that petitioner acted in

good faith. The delay was only one day—practically the shortest delay possible. It had no impact on judicial proceedings

beyond the instant motion.” In focusing on the only factor at

issue—the reason for the delay—the district court determined

that the reason for the late filing was that Mendez’s counsel

relied on the Postal Service to deliver the notice of appeal

crosstown on the second day after its deposit in a mailbox.

Even though the district court found that a late filing was

foreseeable because the Postal Service advises its customers

that first-class mail takes one to three days for delivery and

that Mendez’s counsel previously had not been diligent in filing papers in this case, it nevertheless concluded that this

neglect was excusable. 

[2] The Warden presents several arguments to support his

contention that the district court abused its discretion in granting Mendez an extension of time for filing his notice of

appeal. First, the Warden contends that because the delay was

not caused by circumstances beyond Mendez’s control, it

should not be excused. But the Supreme Court in Pioneer

rejected this rigid rule for excusable neglect, applying a

broader standard that permitted a finding of excusable neglect

even where the filer was in control of the situation that caused

1546 MENDEZ v. KNOWLES
the delay. 507 U.S. at 386-95 (“ ‘[E]xcusable neglect’ . . . is

not limited to situations where the failure to timely file is due

to circumstances beyond the control of the filer.”). In our en

banc decision in Pincay, we applied this broader standard and

affirmed the district court’s decision to grant an extension

after finding excusable neglect where a paralegal miscalculated the filing deadline—a situation in the control of the filer.

389 F.3d at 856-60 (explaining that a situation not in control

of the filer is when the messenger delivering the documents

to the clerk’s office is hit by a truck). We thus reject the Warden’s contention that Mendez’s neglect cannot be excused

because it was caused by circumstances within Mendez’s control. 

The Warden next argues that the most important Pioneer

factor is the third—the reason for delay—and that the district

court did not give this factor sufficient weight. But in Pincay

we declined to give primary weight to any one of the Pioneer

factors, concluding that “the weighing of Pioneer’s equitable

factors” must be left “to the discretion of the district court in

every case.” 389 F.3d at 860. Here, following Pincay, the district court appropriately weighed the factors to determine that

the neglect of Mendez’s counsel was excusable.2

The Warden also asserts that the district court applied an

erroneous standard that requires a late filing to be inevitable

for it to be considered inexcusable neglect. However, the

record reveals that the district court did not adopt a standard

of inevitability. The district court, while undertaking an analysis based on the Pioneer factors, stated a fact—that it was

possible for the notice of appeal to arrive on time given the

2The Warden asserts that the district court also erred by considering the

prejudice to Mendez if the district court denied his motion to extend the

time for filing. While prejudice to the party seeking an extension is not

one of the Pioneer factors, it is clear from Pincay that a district court is

not limited in its analysis of a motion for extension of time to those four

factors. 389 F.3d at 859 (explaining that a district court can consider “the

likelihood of injustice if the appeal was not allowed”). 

MENDEZ v. KNOWLES 1547
day Mendez’s counsel placed it in the mailbox. This was not

the recital of a standard, but rather was the mention of one

fact of many the district court weighed pursuant to Pioneer to

conclude that the untimely filing was the result of excusable

neglect. 

Finally, the Warden urges us to conclude that the district

court committed a “clear error in judgment” by granting

Mendez’s motion for an extension of time despite the egregious behavior of Mendez’s counsel. The Warden stresses

that throughout the case Mendez’s counsel repeatedly missed

filing deadlines, and, despite knowledge that the district court

clerk’s office had not received the notice of appeal as of 1

p.m. on the day it was due, he took no action to ensure its

timely delivery. The Warden relies on decisions of the Fourth

and Seventh Circuits to support his contention that these

actions amount to inexcusable neglect.3See Thompson v. E.I.

DuPont de Nemours & Co., Inc., 76 F.3d 530 (4th Cir. 1996);

Prizevoits v. Indiana Bell Telephone Co., 76 F.3d 132 (7th

Cir. 1996). In Prizevoits, the counsel for the party seeking an

extension of time believed that he could not proceed with filing a notice of appeal until after the district court denied

another pending motion. 76 F.3d at 133. The Seventh Circuit

determined that the district court had abused its discretion in

granting an extension of time to file the notice of appeal, concluding that excusable neglect “refers to the missing of a

deadline as a result of such things as misrepresentations by

judicial officers, lost mail, and plausible misinterpretations of

ambiguous rules,” that the rules misinterpreted by counsel

were unambiguous, and that, as a result, his neglect was inexcusable. Id. at 134. In Pincay, we acknowledged the “differ3The Warden also relies on Kyle v. Campbell Soup Co., 28 F.3d 928

(9th Cir. 1994), a case decided before our en banc decision in Pincay. In

Kyle we reversed the district court’s finding of excusable neglect. 28 F.3d

at 931. But the untimely filing in Kyle, unlike that in Mendez’s case,

involved an attorney’s misinterpretation of unambiguous rules. Id. As a

result, it does not provide us with relevant guidance as to whether the district court abused its discretion in this case. 

1548 MENDEZ v. KNOWLES
ing conclusions” arrived at by other circuits, but elected not

to adopt the narrow definition of excusable neglect created by

the Seventh Circuit in Prizevoits. 389 F.3d at 857-60. Instead,

we focused on the deference given to the district court’s ability, with a more intimate knowledge of the case, to weigh the

Pioneer factors and determine whether the untimely filing

was a result of excusable neglect. Id. at 859-60. 

[3] Thompson presents a situation factually similar to

Mendez’s untimely filing. See 76 F.3d at 532. There, the party

seeking an extension of time allegedly placed the notice of

appeal in the mail three days before the filing deadline, but

the notice of appeal arrived three days late. Id. The Fourth

Circuit affirmed the district court’s decision to deny the

motion for extension of time, concluding that “the neglect at

issue in [that] case [was] nothing more than inexcusable runof-the-mill inattentiveness by counsel.” Id. at 535. The Fourth

Circuit determined that litigants, other than pro se prisoners,

who decide “to rely on the vagaries of the mail must suffer the

consequences if the notice of appeal fails to arrive within the

applicable time period.” Id. at 534. Unlike the Fourth Circuit,

however, we have concluded that per se rules, finding specific

actions inexcusable as a matter of law, “are not consistent

with Pioneer.” Pincay, 389 F.3d at 855. In other words, in this

circuit, every time a party’s counsel decides to “rely on the

vagaries of the mail,” that party is not necessarily foreclosed

from seeking an extension of time to file a notice of appeal

if the notice is untimely. See id. at 859-60 (“There should . . .

be no rigid legal rule against late filings attributable to any

particular type of negligence. Instead, we leave the weighing

of Pioneer’s equitable factors to the discretion of the district

court in every case.”). Applying this deferential standard of

review, we affirm the district court’s grant of Mendez’s

motion for an extension of time and conclude that we have

jurisdiction to review the merits of Mendez’s appeal. 

III

We review de novo the district court’s denial of a habeas

petition. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

MENDEZ v. KNOWLES 1549
2004). Because Mendez is in custody pursuant to the judgment of a state court, because Mendez’s claims were adjudicated on the merits by the Humboldt County Superior Court,

and because Mendez filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), we must deny the petition unless the

state court’s adjudication of Mendez’s claims resulted in a

decision that was either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States, or (2)

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). Although § 2254(d) mandates that only

Supreme Court precedential holdings clearly establish a right,

our circuit precedent may provide persuasive authority for

purposes of determining whether a state court decision is an

unreasonable application of Supreme Court precedent. Clark

v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Because

there was a reasoned state judgment rejecting Mendez’s federal claims—the California Court of Appeal judgment—we

“look through” the later unexplained order of the California

Supreme Court rejecting Mendez’s claims and analyze

whether the reasoned state judgment was erroneous under the

restrictive standard of § 2254(d). See Ylst v. Nunnemaker, 501

U.S. 797, 804-06 (1991). 

A

The issue certified by the district court for our review is

whether the California trial court violated Mendez’s rights to

due process of law and trial by jury by instructing the jury that

if the prosecution proved by a preponderance of the evidence

that Mendez committed crimes or sexual offenses other than

that for which he was on trial, the jury could infer that

Mendez had the disposition to commit the same type of sexual

offense and that he was likely to commit and did commit the

crimes of which he was accused. Mendez argues on appeal

that these instructions are unconstitutional under Gibson v.

1550 MENDEZ v. KNOWLES
Ortiz, 387 F.3d 812 (9th Cir. 2004), because they permit the

jury to convict Mendez of crimes on evidence less certain

than proof beyond a reasonable doubt. The Warden counters

that the district court correctly identified several differences

between the facts of Gibson and those of Mendez’s case that

permit the same instructions to pass constitutional muster

here. We agree with the district court and the Warden and

hold that these differences are sufficient to distinguish Gibson

and establish a constitutionally-sound guilty verdict in this

case. 

[4] The Due Process Clause of the Fourteenth Amendment

requires that the prosecution prove every element of a criminal offense beyond a reasonable doubt. Gibson, 387 F.3d at

820 (citing In re Winship, 397 U.S. 358, 364 (1970)). “Any

jury instruction that ‘reduce[s] the level of proof necessary for

the Government to carry its burden . . . is plainly inconsistent

with the constitutionally rooted presumption of innocence.’ ”

Id. (quoting Cool v. United States, 409 U.S. 100, 104 (1972)).

When a jury instruction is erroneous because it misdescribes

the burden of proof, it “vitiates all the jury’s findings,” and

no verdict within the meaning of the Sixth Amendment is rendered. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).

“Where such an error exists, it is considered structural and

thus is not subject to harmless error review.” Gibson, 387

F.3d at 820 (citing Sullivan, 508 U.S. at 280-82). 

[5] Conversely, if the instructions in question are considered “ambiguous,” then they will only violate due process if

“a reasonable likelihood exists that the jury has applied the

challenged instruction[s] in a manner that violates the Constitution.” Id. at 820-21 (citing Estelle v. McGuire, 502 U.S. 62,

72 (1991)); see also Mejia v. Garcia, No. 06-16460, slip op.

9313, 9321-22 (9th Cir. July 25, 2008). Unless there is a likelihood that the jury applied the instructions in a way that lessens the prosecution’s burden of proof, we review instructional

error under the harmless error standard. See Hedgpeth v.

Pulido, 129 S. Ct. 530, 532 (2008). All challenged instrucMENDEZ v. KNOWLES 1551
tions must be considered in light of all of the jury instructions

and the trial record as a whole. Cupp v. Naughten, 414 U.S.

141, 146-47 (1973). 

In this case, Mendez argues that there is a reasonable likelihood that the jury applied the instructions in a way to lessen

the government’s burden of proof. Were we to agree, the error

would be structural and require automatic reversal. See

Pulido, 129 S. Ct. at 532. However, we conclude that there is

no reasonable likelihood the jury applied the wrong burden of

proof, and thus there was no error. Id. at 533 (noting that a

court’s determination that the jury relied on a valid ground in

convicting a defendant “to an absolute certainty” would be a

determination that no error occurred). 

The jury instructions at issue include CALJIC 2.50.01 and

2.50.1. The instructions given at Mendez’s trial that incorporate CALJIC 2.50.01 provide:

Evidence has been introduced for the purpose of

showing that the defendant committed crimes other

than that for which he is on trial. 

This evidence, if believed, may be considered by you

for the . . . limited purpose of determining if it tends

to show the existence of the intent which is a necessary element of the crime charged. 

For the limited purpose for which you may consider

such evidence, you must weigh it in the same manner as you do all other evidence in the case. Evidence has been introduced for the purpose of

showing that the defendant engaged in a sexual

offense on one or more occasions other than that

charged in this case. 

“Sexual offense” means a crime under the laws of a

state or of the United States that involves . . . any

1552 MENDEZ v. KNOWLES
conduct made criminal by Penal Code Section

288(a) and 243 point 4. 

If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer

that the defendant had a disposition to commit the

same or similar type of sexual offense. If you find

that the defendant had this disposition, you may, but

are not required to, infer that he was likely to commit and did commit the crime or crimes of which he

is accused. 

Unless you are otherwise instructed, you must not

consider this evidence for any other purpose. 

The instructions given at Mendez’s trial that incorporate

CALJIC 2.50.1 provide:

Within the meaning of the preceding instructions, the

prosecution has the burden of proving by a preponderance of the evidence that a defendant committed

crimes or sexual offenses other than those for which

he is on trial. 

You must not consider this evidence for any purpose

unless you find by a preponderance of the evidence

that a defendant committed the other crimes or sexual offenses. . . . 

[6] In Gibson, we concluded that almost precisely the same

combination of instructions were unconstitutional and

affirmed the district court’s grant of habeas relief, explaining

that “the interplay of [CALJIC 2.50.01 and 2.50.1] allowed

the jury to find that Gibson committed the uncharged sexual

offenses by a preponderance of the evidence and thus to infer

that he had committed the charged acts based upon facts

found not beyond a reasonable doubt, but by a preponderance

of the evidence.” Id. at 822. We determined that a jury conMENDEZ v. KNOWLES 1553
viction based on these instructions conflicted with the

Supreme Court’s maxim in Winship “that a defendant may not

be convicted except ‘upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he

is charged.’ ” Id. (quoting Winship, 397 U.S. at 364). We also

determined, however, that CALJIC 2.50.01, which permitted

the jury to infer that Gibson committed the charged crimes if

it concluded that he had committed the prior sexual offenses,

was constitutionally valid standing alone. We noted that had

the jury not received CALJIC 2.50.1, which ascribed the

lesser burden of proof to evidence of the previous sexual

offenses, we “would have assumed that the jury followed,

with respect to the prior sexual offenses evidence, the only

standard regarding burden of proof they had received: reasonable doubt.” Id. Thus, so far as our Gibson precedent is concerned, it was constitutionally valid for the jury to infer that

Gibson committed the charged crime based on the previous,

uncharged sexual offenses so long as those previous offenses

were proven beyond a reasonable doubt. Id.

[7] The Warden distinguishes Gibson by arguing that,

because the prosecution proved beyond a reasonable doubt

that Mendez had been convicted of at least one of the prior

sexual offenses, the jury could not have convicted Mendez of

the charged offenses on anything less than proof beyond a

reasonable doubt. We agree. Under Gibson, it was constitutionally valid for the jury to infer that Mendez committed the

charged crimes based on the previous sexual offense because

that previous offense was proven beyond a reasonable doubt.

Id.

[8] We are comfortable that the jury did not rely upon an

incorrect burden of proof in convicting Mendez. Mendez’s

jury specifically found beyond a reasonable doubt that

Mendez had been convicted of one of the two prior sexual

offenses. Because the jury made this specific finding, it necessarily did not find that Mendez committed the prior sexual

offense by a preponderance of the evidence. 

1554 MENDEZ v. KNOWLES
Even if the jury had not made a specific finding of a prior

conviction, the defendant’s uncontested prior convictions

allay the concerns articulated in Gibson that the defendant

could have been convicted on proof less than beyond a reasonable doubt. 387 F.3d at 822 (concluding that had the jury

not been instructed that it could find that the defendant had

committed the prior bad act by a preponderance of the evidence, there would have been no constitutional violation).

Here, Mendez’s prior convictions for sexual offenses made

the offending jury instruction not only unnecessary but also

irrelevant, because Mendez’s prior sexual misconduct had

already been proven beyond a reasonable doubt. Indeed, in

Mendez’s case, his convictions were based upon guilty pleas

which eliminated any uncertainty about whether he had committed the prior sexual offenses. As the fact of the prior convictions was not contested by Mendez, there was simply

nothing left for the jury to find which could have been based

upon or affected by a lesser “preponderance” standard. 

Additional differences between Mendez’s case and Gibson

buttress our conclusion that the jury did not convict Mendez

based on a constitutionally deficient burden of proof. First, in

Mendez’s case, several instructions regarding the beyond a

reasonable doubt standard were read to the jury after the jury

was given the preponderance of the evidence instruction;

whereas in Gibson, once the preponderance of the evidence

standard was read to the jury, the beyond a reasonable doubt

standard was not included in any subsequent instructions.

Second, the prosecutor in Mendez’s case, unlike the prosecutor in Gibson, did not discuss, much less emphasize, the preponderance of the evidence standard in her closing argument.

Third, the victim of Gibson’s prior sexual offenses and the

charged offense was the same, whereas Mendez’s prior sexual

offenses involved different victims than those involved in his

charged offenses. We conclude that no rational juror would

have understood the instructions on evidence of prior sexual

misconduct to relieve the jury of its duty to find beyond a reasonable doubt that Mendez had committed the charged

MENDEZ v. KNOWLES 1555
offenses. We therefore uphold Mendez’s convictions as constitutionally sound. 

B

Mendez asks us to expand the Certificate of Appealability

(“COA”) to include his argument that the trial court improperly found him competent to stand trial without holding an

evidentiary hearing. Although Mendez did not follow the procedure delineated in Rule 22-1(e) of the Ninth Circuit Rules

for requesting the expansion of a COA—briefing certified

issues under the heading, “Certified Issues,” and briefing

uncertified issues under the heading, “Uncertified Issues”—,

he did request that we expand the COA. 

[9] “The required showing for originally obtaining a COA

on a claim remains the standard by which this court reviews

the broadening of a COA. A habeas petitioner’s assertion of

a claim must make a substantial showing of the denial of a

constitutional right.” Doe v. Woodford, 508 F.3d 563, 567

(9th Cir. 2007) (per curiam) (quoting Hiivala v. Wood, 195

F.3d 1098, 1104 (9th Cir. 1999) (internal quotation marks

omitted)). To make this showing, Mendez “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.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983) (alteration in original, internal quotation marks omitted), superseded on other grounds by 28 U.S.C. 2253(c)(2).

The uncertified issue here involves Mendez’s competence

to stand trial. Mendez presents two grounds for the appeal of

this issue. First, Mendez contends that under the Supreme

Court’s holdings in Drope v. Missouri, 420 U.S. 162 (1975),

and Pate v. Robinson, 383 U.S. 375 (1966), Mendez presented

substantial evidence that an evidentiary hearing was required

to determine whether he was competent to stand trial. Second,

Mendez argues that he was deprived of a state-created liberty

1556 MENDEZ v. KNOWLES
interest in an evidentiary hearing when the state did not follow the mandates of CPC § 1368 and provide him with an

evidentiary hearing. The district court denied relief on this

claim and also declined to certify the issue. Because, Mendez

has failed to “make a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we decline to

expand the COA to consider the merits of the issue. 

1

[10] Mendez contends that the trial court violated his due

process right to a fair trial by not providing him with an evidentiary hearing to determine his competence. “[T]he failure

to observe procedures adequate to protect a defendant’s right

not to be tried or convicted while incompetent to stand trial

deprives him of his due process right to a fair trial.” Drope,

420 U.S. at 172 (explaining the holding in Pate, 383 U.S. at

386). “The question to be asked by the reviewing court is

whether a reasonable judge, situated as was the trial court

judge whose failure to conduct an evidentiary hearing is being

reviewed, should have experienced doubt with respect to

competency to stand trial.” de Kaplany v. Enomoto, 540 F.2d

975, 983 (9th Cir. 1976) (en banc). “[W]here the evidence

raises a ‘bona fide doubt’ as to a defendant’s competence to

stand trial, the trial judge on his own motion must . . . conduct

a hearing to determine competency to stand trial.” Torres v.

Prunty, 223 F.3d 1103, 1106-07 (9th Cir. 2000) (internal quotations marks omitted); see also Moore v. United States, 464

F.2d 663, 666 (9th Cir. 1972) (“[A] due process evidentiary

hearing is constitutionally compelled at any time that there is

‘substantial evidence’ that the defendant may be mentally

incompetent to stand trial.”). Factors to consider in ascertaining a defendant’s competence include evidence of his irrational behavior, his demeanor at trial, and any prior medical

opinion on competence. See Drope, 420 U.S. at 180. “The

state trial and appellate courts’ findings that the evidence did

not require a competency hearing under Pate are findings of

fact to which [this court] must defer unless they are ‘unreaMENDEZ v. KNOWLES 1557
sonable’ within the meaning of 28 U.S.C. § 2254(d)(2).” Torres, 223 F.3d at 1105. 

Mendez contends that the evidence of his irrational behavior at trial and his counsel’s request for an evidentiary hearing

created a “bona fide doubt” as to his competence and required

an evidentiary hearing. However, when compared with the

evidence determined in Drope and Pate to require an evidentiary hearing, the evidence presented during Mendez’s trial

does not demonstrate that the California Court of Appeal was

unreasonable in determining that there was no doubt as to

Mendez’s competence. 

In Pate, the defense called four witnesses who testified to

Robinson’s long history of disturbed behavior. 383 U.S. at

378. One witness, Robinson’s mother, testified that a brick

dropped on his head when he was seven or eight years old. Id.

The injury made him cross-eyed, gave him headaches, and

resulted in noticeably erratic behavior. Id. at 378-79. A witness testified that on one occasion, Robinson, foaming at the

mouth, “lost his mind,” thinking someone was about to shoot

him or come after him, and was hospitalized. Id. at 379. The

medical records from his hospitalization indicated that he

heard voices and saw things, and suggested the possibility that

he was schizophrenic. Id. at 380. Other witnesses testified to

the “daze” Robinson would be in from time to time. Id. at

380-81. Robinson had also previously shot and killed his son,

and attempted to kill himself. Id. at 381. After serving nearly

four years in prison for murdering his son, he was released

and soon thereafter killed the woman for whose murder he

was on trial. Id. at 381-82. When Robinson was arrested for

the charged crime, he was unaware of his identity and denied

knowing anything about the killing. Id. at 382. All four

defense witnesses expressed the opinion that Robinson was

insane. Id. at 383. The Supreme Court concluded that this evidence entitled Robinson to a hearing on the issue of his competence to stand trial. Id. at 385. 

1558 MENDEZ v. KNOWLES
In Drope, Drope’s wife testified at trial that he had participated with four other men in forcibly raping her. 420 U.S. at

165-66. She also testified that she had resumed living with

Drope after the incident on the advice of his psychiatrist. Id.

at 166. She testified that she had initially told Drope’s attorney that she believed Drope needed psychiatric care and

related Drope’s behavior of rolling down the stairs when he

did not get his way. Id. She also testified that later, after talking with Drope’s psychiatrist, she was not convinced that

Drope was actually sick. Id. Later in the trial, Drope did not

appear in court because he had shot himself in the abdomen

earlier that morning. Id. at 166-67. The Supreme Court determined that this evidence created a sufficient doubt of Drope’s

competence and required further inquiry as to the question. Id.

at 180. 

In arguing that the district court should have held a hearing

to determine his competence, Mendez puts great weight on

the conditions he placed on his acceptance of the state’s plea

agreement offer: (1) videotaped confirmation that his tenyear-old victim had been informed of the sentence Mendez

was to receive; and (2) official assurance that the school

records of that same victim would be purged of any reference

to his molestation. He argues that these requests demonstrated

irrational behavior that, when coupled with his counsel’s

doubt as to his competence, warranted an evidentiary hearing.

Drope and Pate do not support this conclusion, and Mendez

cites no clearly established Supreme Court precedent that

holds that a defendant’s rejection of a plea agreement, even

if unwise, constitutes substantial evidence that he may have

been incompetent. See Davis v. Woodford, 384 F.3d 628, 645

(9th Cir. 2004) (concluding that even though defendant was

“recalcitrant and acted in ways that were detrimental to his

case,” the trial judge was not faced with substantial evidence

of the defendant’s incompetence). Nor do the reasons proffered by Mendez for the rejection of the plea—the inability of

the court and the prosecutor to accommodate his two requests

—necessarily provide evidence of irrational behavior on the

MENDEZ v. KNOWLES 1559
part of Mendez. As the California Court of Appeal determined, “[a] sex offender’s fascination with his victim does not

demonstrate that he is unable to understand the nature of the

criminal proceedings or rationally to assist counsel in the conduct of a defense.” 

[11] As for the concern expressed by Mendez’s counsel

about Mendez’s competence, in Drope, the Supreme Court

determined that a lawyer’s representations concerning the

competence of his client should be considered, but emphasized that courts need not accept them without question. 420

U.S. at 177 n.13. Mendez’s argument also omits from the

“bona fide doubt” inquiry the finding of the court-appointed

expert that Mendez was competent to stand trial. Evaluating

Mendez’s rejection of the plea agreement offer, his counsel’s

expressed concerns about his competence, and the courtappointed expert’s conclusion that he was competent, we conclude that Mendez has not made a substantial showing that the

trial court’s decision not to hold an evidentiary hearing to

determine Mendez’s competence resulted in the denial of a

constitutional right. See Davis, 384 F.3d at 645. 

2

Mendez also argues that the trial court deprived him of his

state-created liberty interest in an evidentiary hearing to determine his competence to stand trial. The procedure California

established to determine when an evidentiary hearing is necessary to ascertain a defendant’s competence is codified in

CPC § 1368.4 Mendez contends that because the trial court

4CPC § 1368: 

(a) If, during the pendency of an action and prior to judgment,

a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the

record and inquire of the attorney for the defendant whether, in

the opinion of the attorney, the defendant is mentally competent.

. . . At the request of the defendant or his or her counsel or upon

1560 MENDEZ v. KNOWLES
initially said that it would order an evidentiary hearing under

CPC § 1368 and then changed its mind and decided instead

to appoint an expert to assist it in determining whether an evidentiary hearing under CPC § 1368 was warranted, Mendez

was deprived of his liberty interest in a hearing to determine

his competence. The California courts, however, have determined that the procedure followed by the trial court in

Mendez’s case—ordering a psychiatric examination—is

required if there is a reasonable possibility that the defendant

may be incompetent. People v. Campbell, 193 Cal. App. 3d

1653, 1663 (Cal. Ct. App. 1987) (“[I]f there is a reasonable

possibility, even if it does not rise to the level of substantial

evidence, that the defendant is unable to understand the proceedings or assist in his defense, the trial court must order a

psychiatric examination before deciding there is no need for

its own motion, the court shall recess the proceedings for as long

as may be reasonably necessary to permit counsel to confer with

the defendant and to form an opinion as to the mental competence of the defendant at that point in time. 

(b) If counsel informs the court that he or she believes the

defendant is or may be mentally incompetent, the court shall

order that the question of the defendant’s mental competence is

to be determined in a hearing which is held pursuant to Sections

1368.1 and 1369. If counsel informs the court that he or she

believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court. 

(c) Except as provided in Section 1368.1, when an order for a

hearing into the present mental competence of the defendant has

been issued, all proceedings in the criminal prosecution shall be

suspended until the question of the present mental competence of

the defendant has been determined. 

If a jury has been impaneled and sworn to try the defendant, the

jury shall be discharged only if it appears to the court that undue

hardship to the jurors would result if the jury is retained on call.

If the defendant is declared mentally incompetent, the jury shall

be discharged. 

MENDEZ v. KNOWLES 1561
a section 1368 hearing.”). The state trial court followed the

state-created procedure for ascertaining whether it had doubt

as to Mendez’s competence under CPC § 1368. We hold,

therefore, that Mendez has not made a substantial showing

that the trial court’s decision not to hold an evidentiary hearing to determine Mendez’s competence resulted in the violation of his due process rights, and decline to expand the

Certificate of Appealability to consider the merits of this

issue. 

IV

In conclusion, we reject the Warden’s argument that the

district court abused its discretion by granting Mendez’s

motion for an extension of time to file his notice of appeal.

On the merits of Mendez’s appeal, we uphold Mendez’s conviction, concluding that it is absolutely certain that the jury

found beyond a reasonable doubt that Mendez was guilty of

the charged offenses and we decline to expand the Certificate

of Appealability to consider Mendez’s due process claim that

the trial court was required to hold an evidentiary hearing to

determine his competence. 

AFFIRMED.

1562 MENDEZ v. KNOWLES