MEMORANDUM**

After a jury trial, Nobles was convicted of second degree murder, assault with a deadly weapon, and discharging a firearm at a motor vehicle. He was sentenced to state prison for twenty-one years to life. After exhausting his state remedies, Nobles filed a petition for a writ of habeas corpus in the district court. This petition was denied and Nobles now appeals. Petitioner challenges his conviction on three grounds: First, he argues that there must be a hearing to determine whether he was competent to waive counsel; second, he argues that he revoked his waiver of his right to counsel; third, he points to the trial court's failure to give a lesser included offense instruction.

Nobles's petition is based on 28 U.S.C. Sec. 2254. The Attorney General concedes that the procedural requirements for this court to have jurisdiction have been met.

The district court's denial of a petition for a writ of habeas corpus is generally reviewed de novo. However, to the extent that we are required to review a magistrate's findings of fact and a district court's adoption of such findings, we apply a clearly erroneous standard. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989); Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870 (1987).

The gravamen of Nobles's appeal is his argument that the trial court should have taken note of his mental instability and conducted a hearing on whether he was mentally competent to knowingly and intelligently waive his right to counsel.

The controlling case is Harding v. Lewis, 834 F.2d 853, 856-57 (9th Cir.), cert. denied, 488 U.S. 871 (1988). Under Harding a trial court must conduct a hearing on the defendant's competence to waive counsel whenever the court has, or should have, a good faith doubt about the defendant's ability to understand the nature and consequences of the waiver. Id. And a trial court should have a "good faith doubt" if there is "substantial evidence of incompetence," which may be found in a history of irrational behavior, medical opinion, or defendant's behavior at trial. Id. The question whether the trial court should have a good faith doubt and conduct a hearing on competence is independently reviewed on petition for habeas corpus. Id.

Applying the Harding analysis to the instant case, we must decide whether there was "substantial evidence" before the trial court that Nobles was not competent to waive counsel. We reject Nobles's argument that evidence of his incompetence from a previous trial should be considered "before the court" in the instant case. Trial courts simply cannot be expected to remember in detail the case histories of every recidivist who comes before them. On the other hand, an incompetent defendant cannot be expected himself to raise the issue of his own incompetence. Accordingly, the fact that no psychiatric reports were before the trial court is not dispositive. Thus, the key concern is Nobles's conduct at trial.

A case in which our court held that the circumstances required a hearing is Chavez v. United States, 656 F.2d 512, 517 (9th Cir.1981). In Chavez it could fairly be said that there was "substantial evidence" of incompetence. First, the trial court had before it both a report on the defendant's history of antisocial behavior, and conflicting psychiatric reports on his sanity. More importantly for present purposes, the defendant had emotional outbursts in open court, summarily fired his attorneys, and made no attempt whatsoever to reduce his punishment.

The instant case is a sharp contrast with Chavez, and we cannot conclude that the trial court had before it "substantial evidence" of Nobles's mental incompetence. The magistrate found as a fact that Nobles acted effectively as his own attorney on numerous instances, and the record supports the magistrate. See Magistrates Rep.; Exh. I. Moreover, Nobles had acted as his own attorney on numerous prior occasions. Id. Admittedly, Nobles's defense theory was somewhat farfetched, and he occasionally seemed confused. But this alone does not constitute "substantial evidence" of mental incompetence.

This court has previously upheld trial court denials of defendant post-waiver requests for counsel on the eve or in the midst of trial. In United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir.1979) we affirmed the denial of a continuance to enable the defendant to retain counsel, because prior continuances had been unavailing and the defendant did not explain why he had not obtained counsel earlier. See also Menefield v. Borg, 881 F.2d 696, 700 (9th Cir.1989); United States v. Studley, 783 F.2d 934, 938 (9th Cir.1986).

In the instant case the defendant suddenly requested counsel in the midst of trial. The trial court, which had previously granted a number of unavailing continuances to defendant in order for him to retain counsel, found that his request was for purposes of delay and denied it. Under the Leavitt and Menefield line of cases the district court did not err in this determination.

Nobles also argues that he is entitled to federal habeas corpus relief due to the trial court's failure to give an instruction on voluntary manslaughter, a lesser included offense. This contention is without merit. The trial court correctly noted that there was no evidence before the court of diminished capacity that would make an instruction on voluntary manslaughter appropriate. See Magistrate Rep. at 10.

AFFIRMED.