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Maxwell v. Roe, No. 08-55534 (5-20-10) (Paez with Pregerson and Noonan). The petitioner had a history of mental illness, exhibited strange and bizarre behaviors during trial, and even attempted suicide. The trial court still thought he was feigning and refused to hold a competency hearing. This refusal, in light of the evidence, was unreasonable. A defendant has the due process right not to be tried nor convicted while incompetent. The state courts failed to determine if he was competent. As such, because 12 years has elapsed, the remedy is for a new trial rather than trying to look back and make a competency determination.

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