
    Gregory Allen STURM, Petitioner-Appellant, v. Matthew CATE, Secretary of the California Department of Corrections and Rehabilitation and Michael Martel, Respondents-Appellees.
    No. 14-55118
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 2, 2016 Pasadena, California
    Filed September 12, 2016
    
      Jonathan Jeffrey Faria, Esquire, Attorney, Michael John Shipley, Esquire, Attorney, Kirkland & Ellis LLP, Gary D. So-wards, McBreen & Senior, Los Angeles, CA, for Petitioner-Appellant
    Christopher Beesley, Deputy Attorney General, Angela Borzachillo, AGCA—Of-fice of the Attorney General, San Diego, CA, for Respondent-Appellee
    Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.
   MEMORANDUM

Gregory Allen Sturm appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Sturm argues that he was tried and convicted while incompetent in violation of his Fourteenth Amendment right to due process, and that the California Supreme Court unreasonably denied his claim without first holding an evidentiary hearing. We disagree. While Sturm recently drummed up evidence describing mental and cognitive impairments during trial, these opinions were provided more than a decade after the trial and are refuted by the contemporaneous record as a whole. See Sully v. Ayers, 725 F.3d 1057, 1070-72 (9th Cir. 2013), cert. denied — U.S. -, 134 S.Ct. 2697, 189 L.Ed.2d 744 (2014) (holding the California Supreme Court’s summary denial of a claim of incompetence was not unreasonable based on the record before the court); Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th Cir. 2005) (holding that retrospective declarations of incompetence are disfavored where evidence from the time of the trial fails to support those declarations).

Because Sturm failed to establish substantial doubt about his competency at the time of trial, the state court’s denial of the claim without first conducting a hearing was not an unreasonable determination of the facts, see 28 U.S.C. § 2254(d)(2), and therefore the district court was not freed from AEDPA deference, and could not hold an evidentiary hearing on the claim. See Boyde, 404 F.3d at 1166-67; Cullen v. Pinholster, 563 U.S. 170, 183, 186-87, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (holding that when the state court record precludes relief under the limitations of § 2254(d), an evidentiary hearing is not warranted in federal court); see also Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (holding that the question is “ ‘not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.’ ”) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 act. 1933, 167 L.Ed.2d 836 (2007)).

Sturm next argues that the trial court violated his constitutional rights by admitting his recorded confession and videotaped re-enactment of his crimes. Again, we disagree.

The totality of the circumstances surrounding Sturm’s confession and re-enactment support the state court’s finding that Sturm’s participation was knowing, intelligent, and voluntary. See, e.g., Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (“The due process test takes into consideration the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”) (internal quotation marks and citation omitted). The transcript of Sturm’s custodial interview reflects that officers provided Sturm with the requisite advi-sals. He then agreed to speak with them, and, later, to walk them through the events at the scene. The transcript of the re-enactment likewise reflects that Sturm agreed to participate. In the absence of an affirmative and unambiguous invocation of the right to remain silent, the California Supreme Court’s denial of this claim was not contrary to or an unreasonable application of clearly established federal law, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) & (2); Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (holding that a suspect must unambiguously invoke the right to remain silent); DeWeaver v. Runnels, 556 F.3d 995, 1002 (9th Cir. 2009) (holding that a state court’s denial was reasonable under AED-PA’s standards where a suspect did not unambiguously invoke the right to silence).

Finally, Sturm argues that his counsel provided ineffective assistance by failing to seek a competency hearing and failing to succeed in his motion to suppress Sturm’s confession and re-enactment. We disagree.

Sturm has not demonstrated that he was in fact incompetent at the time of trial, so there is no basis to find that counsel’s failure to seek a competency hearing was the result of deficient performance, or prejudicial. Likewise, trial counsel did challenge the sufficiency of the Miranda warnings, as well as the voluntariness of the confession and re-enactment, and Sturm has presented no additional basis for a motion to suppress that had a reasonable probability of altering the outcome.

In short, we conclude that the state court’s denial of these claims was not contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) & (2); Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To the extent Sturm raises uncertified claims in his opening brief, we construe his arguments as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-l(e); 28 U.S.'C. § 2258(c)(2); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

Any outstanding motions are denied.

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