
    Rain DICKEY-O’BRIEN, Petitioner-Appellant, v. James A. YATES, Warden and Attorney General of the State of California, Respondents-Appellees.
    No. 13-16667.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 10, 2014.
    Filed Dec. 22, 2014.
    Quin Anthony Denvir, Davis, CA, for Petitioner-Appellant.
    Rain Dickey-O’Brien, pro se.
    Brian R. Means, Deputy Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondents-Appellees.
    
      Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
   MEMORANDUM

Rain Dickey-O’Brien appeals from the district court’s denial of his petition for habeas corpus. The facts are known to the parties and will not be repeated here. He first contends that the state trial court’s decision to use CALJIC 4.00 rendered his trial fundamentally unfair. Second, he contends that two events that occurred during his trial created doubt concerning his competency to stand trial, requiring the state trial court to hold a competency hearing sua sponte.

The claim that CALJIC 4.00 does not conform to the M’Naghten test fails because there was no showing that any violation of clearly established federal law occurred. See 28 U.S.C. § 2254(d)(1); see also Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[T]he fact that” a jury instruction was “allegedly incorrect under state law is not a basis for habeas relief.”).

As to the competency at trial issue, Dickey-O’Brien identifies two events that he argues created doubt. First, the trial court judge noted unspecified “difficulties.” Second, on the same day, the prosecutor noted that Dickey-O’Brien had sat “nearly motionless and mute” during the trial. At oral argument, his counsel acknowledged that the record contains no other references to either event.

“[T]he failure to observe procedures adequate to protects 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 v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A court must conduct a hearing sua sponte if it has a “bona fide doubt” as to the defendant’s competency. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir.2010). “Genuine doubt” rather than “synthetic or constructive doubt” is required. de Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir.1976).

Without more, the two events identified by Dickey-O’Brien are insufficient to meet the “high bar” for establishing a bona fide doubt. See Clark v. Arnold, 769 F.3d 711, 729 (9th Cir.2014). The California District Court of Appeal did not unreasonably apply clearly established federal law when it determined that the state trial court was not required to conduct a competency hearing.

AFFIRMED 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     