Robert Lee HENSLEY, Petitioner-Appellant, v. Roger CRIST, Warden; Grant Woods, Attorney General, Respondents-Appellees

Citations: 67 F.3d 181; 1995 WL 577838Docket: 94-16601

Court: Court of Appeals for the Ninth Circuit; October 3, 1995; Federal Appellate Court

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Robert Lee Hensley appeals the denial of his habeas corpus petition under 28 U.S.C. Sec. 2254, challenging his 1982 convictions for two counts of first-degree murder, one count of attempted first-degree murder, and armed robbery, on the grounds of ineffective assistance of counsel. Hensley was indicted in connection with an armed robbery at the Tin Horn Saloon in Phoenix, Arizona, after an incident on January 26, 1981. His case was combined with those of co-defendants Richard Cihak and Robert Paul Berndt, and the court allowed the use of two confessions made by Hensley during the investigation.

On February 2, 1982, Hensley waived his right to a jury trial, following his counsel's advice to submit the case based on stipulated facts, with the belief that the trial court had wrongly admitted his incriminating statements and that an appeal would likely succeed. Counsel anticipated that the State would struggle to locate its transient key witnesses in a retrial, thus complicating its case. The trial judge confirmed Hensley’s understanding and voluntariness regarding the waiver, which was deemed knowing, intelligent, and voluntary. On March 3, 1982, the judge found Hensley guilty based on the stipulated facts, and on April 1, the court allowed those facts to also establish aggravating circumstances for sentencing. Hensley received the death penalty for the murder convictions and consecutive 21-year sentences for the armed robbery and attempted murder convictions.

On June 30, 1983, the Arizona Supreme Court upheld Hensley's conviction, acknowledging that his confessions were obtained in violation of Miranda and Edwards but deemed them voluntary. The court determined that admitting these confessions was a harmless error due to the substantial evidence of Hensley’s guilt. However, the court vacated Hensley's death sentences because materials submitted for determining his culpability were not suitable for sentencing. Upon remand, the superior court re-sentenced Hensley to death without considering the stipulated facts, a decision later affirmed by the Arizona Supreme Court.

On April 29, 1985, Hensley filed a post-conviction relief petition, claiming ineffective assistance of counsel. He alleged that his trial counsel improperly advised him to waive his right to a jury trial, misled him about the likelihood of conviction reversal, and failed to inform him about the implications of the harmless error doctrine and admissibility of his confessions. Hensley argued that had he been properly informed, he would not have waived his right to a jury trial, potentially resulting in a conviction for only second-degree murder.

The superior court held an evidentiary hearing, concluding that Hensley independently chose to submit his case based on stipulated facts, knowing a reversal was uncertain. On February 26, 1986, the court partially denied Hensley's petition, finding his counsel effective during the culpability phase but vacated Hensley’s death sentences, recognizing the possibility of significant mitigating circumstances related to his intoxication at the time of the offense.

For resentencing, Dr. Kevin Buckley evaluated Hensley, determining he understood the proceedings and could assist his defense. At the pre-sentence hearing on November 24, 1987, Dr. Robert Clark testified that Hensley had a chemical dependency that might have impaired his ability to distinguish right from wrong, though he could not confirm this conclusively. Dr. George O'Connor, who diagnosed Hensley as a schizophrenic, also noted he was untreated and intoxicated during the crime but could not definitively state whether Hensley could appreciate the nature of his offenses at that time.

On November 27, 1987, the superior court sentenced Hensley to life imprisonment for murder, factoring in his intoxication as a mitigating circumstance. The Arizona Supreme Court upheld this decision on May 2, 1989. Hensley subsequently filed a second post-conviction relief petition on February 24, 1988, claiming ineffective assistance of counsel for not presenting an insanity defense. The superior court denied this petition, determining Hensley failed to demonstrate that a different outcome would have occurred had the defense been raised, noting conflicting expert testimonies on Hensley's mental state during the offenses. The Arizona Supreme Court declined to review this ruling on October 25, 1989.

On August 6, 1992, Hensley filed a habeas corpus petition, again alleging ineffective assistance of counsel. A federal magistrate judge found no ineffective assistance and recommended denial of the petition, which the district court dismissed on August 5, 1994. Hensley appealed this dismissal, and the district court issued a certificate of probable cause on September 13, 1994, with jurisdiction established under 28 U.S.C. §§ 1291 and 2253.

Hensley claims his counsel was ineffective for recommending submission of the case on stipulated facts and for not exploring the insanity defense. The review of the district court's denial of the habeas corpus petition is de novo. The decision to submit the case on stipulated facts is viewed as a tactical choice and does not indicate ineffective assistance. Under the two-pronged Strickland test for such claims, Hensley must show his counsel's performance was objectively unreasonable and that this deficiency prejudiced his defense, affecting the trial's outcome. The assessment includes determining if there’s a reasonable probability that the trial result would have differed without the alleged counsel errors.

Hensley claims ineffective assistance of trial counsel, arguing that his attorney advised him to submit his case on stipulated facts without informing him of these facts, the legal implications of his confessions, or the harmless error doctrine. Despite this, the court finds that the decision was not objectively unreasonable due to the substantial evidence against Hensley, and the potential for a reversal of his conviction if the State could not locate transient witnesses. Hensley fails to meet the first prong of the Strickland test regarding ineffective assistance because the likelihood of conviction at trial was high, as evidenced by the conviction of his co-defendant, Berndt, who faced more serious charges.

Additionally, Hensley challenges the validity of his waiver of the right to a jury trial, claiming it was not made knowingly due to ignorance of appellate consequences. However, the court clarifies that a knowing waiver requires the defendant to be fully informed, which was satisfied in Hensley's case. The trial judge thoroughly explained the jury trial process, the rights being waived, and the potential penalties, confirming Hensley's understanding and strategic choice to waive his right.

Finally, Hensley concedes that his intoxication does not excuse first-degree murder charges, focusing instead on whether his counsel’s failure to assert an insanity defense constituted ineffective assistance. The court distinguishes this case from Mauldin v. Wainwright, where insanity was the sole defense and counsel failed to investigate adequately. In Hensley's situation, the decision not to pursue an insanity defense, given his background, was deemed objectively reasonable.

Hensley did not provide evidence that his counsel considered or rejected an insanity defense, nor did he show that such a defense was warranted based on his mental health history. His assertion of a long history of mental illness and alcohol abuse relies primarily on a 1973 Denver Police Department report, which noted he was mentally disturbed but lacked prior psychiatric treatment or suicide attempts. This report does not sufficiently alert his counsel to the need for an insanity defense, contrary to cases where stronger indicators of mental illness were present. Hensley also failed to meet the second prong of the Strickland test, as he could not demonstrate a reasonable probability that the trial outcome would have differed had an insanity defense been pursued. Expert testimonies from Drs. Clark and O'Connor did not specifically address Hensley's mental state at the time of the crime, and Dr. Buckley indicated that Hensley was aware of his actions during the offense. Hensley, advised by his counsel, waived his right to a jury trial, a decision deemed reasonable under the circumstances. Allegations of ineffective assistance due to counsel's failure to discuss certain legal matters or investigate an insanity defense were rejected, affirming that counsel's actions were justified given the lack of notice regarding the defense and Hensley’s inability to show a likely different outcome.