
    Ullysses Paul CUEN, Petitioner-Appellant, v. M.S. EVANS, Respondent-Appellee.
    No. 08-16197.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 12, 2010.
    Filed Aug. 2, 2010.
    
      Ullysses Paul Cuen, Soledad, CA, pro se.
    Dorian Jung, Esquire, Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
    Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District Judge.
    
    
      
       The Honorable Thomas F. Hogan, Senior United States District Judge for the District of Columbia, sitting by designation.
    
   MEMORANDUM

Petitioner Ullysses Paul Cuen was convicted of arson in California Superior Court. Before trial, the court held a hearing on Cuen’s competency and concluded he was indeed competent to stand trial. The California Court of Appeal affirmed the trial court’s competency determination. In a petition for the writ of habeas corpus, Cuen now claims that the California courts’ competency determination was erroneous. The district court denied Cuen’s petition. We affirm.

Whether Cuen was competent to stand trial is a factual question. See Dennis ex rel. Butko v. Budge, 378 F.3d 880, 891 (9th Cir.2004). Accordingly, we review whether the California courts’ decision was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Moreover, the California courts’ decision is “presumed to be correct[,]” and Cuen has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

In Indiana v. Edwards, the Supreme Court recognized that two of its cases set forth the Constitution’s mental competence standard. 554 U.S. 164, 128 S.Ct. 2379, 2383, 171 L.Ed.2d 345 (2008). The first, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), defines the competency standard as including both “(1) whether the defendant has a rational as well as factual understanding of the proceedings against him and (2) whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Edwards, 128 S.Ct. at 2383 (internal quotation marks and emphasis omitted). The Indiana Court further recognized that Drope v. Missoun, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) “repeats that standard,” stating that “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.” Indiana, 128 S.Ct. at 2383 (emphasis omitted).

Cuen does not dispute that he understood the nature and the object of the proceedings against him. Instead, he contends that he lacked the capacity to consult with counsel and assist in preparing his defense.

The California courts’ finding that Cuen was capable of assisting his lawyer is not unreasonable. The State’s witness, Douglas Harper, was a psychiatrist who had more experience than the defense witness, David Echeandia. Harper had also conducted more competency evaluations than Echeandia under California Penal Code sections 1368 and 1369. Further, although the experts came to different conclusions concerning Cuen’s competency, Echeandia admitted that his assessment that Cuen was incompetent was a “close call.” Harper, on the other hand, testified that he was “95 percent sure” of his judgment that Cuen was- competent. He also testified that Cuen’s past behavior indicated a pattern of not accepting responsibility for his actions. Although the California courts were faced with conflicting evidence, their decision to credit Harper’s testimony was not “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2).

Cuen’s remaining contentions are without merit.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     