755 F.3d 724 (1st Cir. 2014), 13-1147, Hensley v. Roden

Docket Nº:13-1147
Citation:755 F.3d 724
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:KEVIN HENSLEY, Petitioner, Appellant, v. GARY RODEN, Superintendent, MCI Norfolk, Respondent, Appellee
Attorney:Stewart T. Graham, Jr., with whom Graham & Graham was on brief, for appellant. Jennifer L. Sullivan, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.
Judge Panel:Before Howard, Selya, and Thompson, Circuit Judges.
Case Date:June 20, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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755 F.3d 724 (1st Cir. 2014)

KEVIN HENSLEY, Petitioner, Appellant,


GARY RODEN, Superintendent, MCI Norfolk, Respondent, Appellee

No. 13-1147

United States Court of Appeals, First Circuit

June 20, 2014

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Stewart T. Graham, Jr., with whom Graham & Graham was on brief, for appellant.

Jennifer L. Sullivan, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before Howard, Selya, and Thompson, Circuit Judges.


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THOMPSON, Circuit Judge.

Kevin Hensley (" Hensley" ) was convicted in Massachusetts state court of first degree murder after killing his estranged wife, Nancy Hensley (" Nancy" ). Hensley appealed and the Massachusetts Supreme Judicial Court (" SJC" ) affirmed. Hensley turned to the federal courts. Alleging violations of his Sixth Amendment rights to confrontation and effective assistance of

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counsel, he sought a writ of habeas corpus in United States District Court. Unconvinced, the district court denied the petition. After due consideration, we affirm.


When we consider a state conviction on habeas review, we presume the state court's factual findings to be correct. See Abram v. Gerry, 672 F.3d 45, 46 (1st Cir. 2012). As a result, the below facts are derived from the SJC decision, see Commonwealth v. Hensley, 454 Mass. 721, 913 N.E.2d 339 (Mass. 2009), and the district court's decision, which itself drew from the SJC decision, see Hensley v. Roden, 2013 WL 22081 (D. Mass. 2013).

A. The Crime

Hensley and Nancy were married in 1979 and over the years they had four children together. By January 2002, the marriage was in trouble. The pair argued about whether Nancy was spending enough time at home or whether she was spending too much time at a local gym, possibly in the company of men. Hensley decided to investigate the latter possibility by donning a fake beard and following Nancy to the gym. Though he saw no sign of infidelity on Nancy's part, Hensley saw her speak with other men and he confronted her.

Shortly thereafter, on January 9, 2002, Nancy filed for divorce and obtained a temporary abuse prevention order against Hensley. The order required Hensley to leave the family's home, which was located at 198 Byron Street in East Boston. He moved to his sister's house in nearby Winthrop. As per the order, Nancy retained custody of the children, whom Hensley was prohibited from contacting pending further hearing.

On January 16 (the scheduled hearing date), the parties entered into an agreement. The order, which was entered as a temporary order in the divorce proceeding, provided that apart from prearranged visitation with the children, Hensley would stay away from the family's home. Hensley would have use of the couple's 1988 Plymouth Horizon automobile and Nancy would use their 2000 Buick LeSabre. They agreed that the children would remain in Nancy's care.

Not happy with the turn his life had taken, Hensley became despondent. According to his family, friends, and work supervisor, Hensley appeared depressed and distraught over the break-up of his family. He separately confided in two friends that if he lost custody of his children, he would kill Nancy and then himself.

On January 22, Nancy filed a complaint for contempt in family court, which alleged that Hensley was not complying with the agreement they had entered into. A few days later, Hensley was spotted by one of his neighbors jumping over a fence that surrounded an empty lot that stood opposite his home at 198 Byron Street. The neighbor reported this to Nancy. Hensley told a friend that he had been attempting to see his children and that Nancy had seen him and now she would try to take out another restraining order against him.

A little over a week later, on January 31, Hensley reported at 6:30 a.m. to his job at the Boston transportation department. Around 8:00 a.m., Hensley informed his supervisor that he was not " feeling right" and asked if he could use some vacation time to head home. Hensley then went to his sister's house where he stayed briefly before proceeding to 198 Byron Street. Hensley parked his vehicle around the corner (and out of view) from the house. He was next seen leaving the house around

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11:45 a.m. He left in Nancy's Buick LeSabre automobile.

That afternoon Hensley's oldest daughter returned from school. The daughter, upon heading down to the basement to get something to drink, found her mother's dead body. Nancy's body was under her bedroom comforter; a blue necktie was tied tightly around her neck. She had blood on her face and hands, and her left eye was swollen. Nancy was wearing one sock and the other was in the kitchen with what appeared to be a bloodstain. There was no sign of forced entry. Hensley's daughter called 911.

Meanwhile, Hensley drove Nancy's car to a ski resort in New Hampshire. Hensley parked the car and ran a dryer vent hose from the exhaust pipe into the car in an attempt to asphyxiate himself. He was thwarted when New Hampshire police officers and emergency personnel pulled Hensley from the vehicle around 9:00 p.m. and carried him to a nearby hospital. New Hampshire state police quickly learned that Hensley was the suspect in a homicide back in Massachusetts. Hensley was held on an involuntary emergency hospitalization based on his suicide attempt, which according to Hensley also included ingesting a bottle of sleeping pills.

At 1:11 a.m., New Hampshire state police questioned a Mirandized Hensley about Nancy's death. He admitted going to the house, explaining that he wanted to get the Buick LeSabre automobile and kill himself. When asked whether he went inside the house, Hensley said " I think I did." Later in the interview he changed his response to: " I don't remember, it's all a blur, I just want to die." Hensley also claimed not to remember whether he saw Nancy. He admitted having keys to both the house and the automobile. Around 3:30 a.m., New Hampshire police learned that a warrant had issued in Massachusetts for Hensley's arrest. Hensley was then transported to jail.

B. The Trial and Conviction

Hensley was indicted and tried for murder in the first degree based on alternative theories of deliberate premeditation and extreme atrocity or cruelty. Although Hensley did not take the stand, his defense was clear; he claimed mental impairment. In essence, defense counsel attempted to show that Hensley was incapable of forming the mental state required for first degree murder under either of the charged theories. A variety of witnesses testified on this point. Hensley's sister testified that Hensley had always been a wonderful man and a doting and involved father. After he was served with the initial abuse prevention order though, Hensley became a different person. According to Hensley's sister, he " basically fell apart," alternating between being depressed, hysterical, incoherent, and despondent. Hensley's daughter painted a similar picture, describing her father as having a " nervous breakdown" and not wanting to live anymore. Hensley's supervisor echoed similar sentiments. His friends testified that a barely functioning Hensley " looked like a zombie."

Testifying at trial, as a witness for the state, was Dr. Mark Flomenbaum, the chief medical examiner in Massachusetts at the time. Dr. Flomenbaum, who did not perform Nancy's autopsy, was called to take the stand because Dr. William Zane, the medical examiner who had performed the autopsy, was not available. Dr. Flomenbaum, after speaking to his credentials and explaining the autopsy process in general, turned to Nancy's autopsy. He explained that he had reviewed the autopsy report, supporting materials, and photographs. Dr. Flomenbaum went on to opine that the cause of Nancy's death was

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" ligature strangulation," the mechanism being " blood starvation to the brain." He also testified regarding some of Dr. Zane's findings, including the length of the struggle, which was put at two to ten minutes, and the nature of the struggle, e.g., the fact that it appeared that the abrasions on Nancy's neck were caused by her trying to pull the ligature off during strangulation. The autopsy report itself was not admitted into evidence; however, Dr. Flomenbaum had the report with him on the witness stand to refer to as needed.

Following closing arguments, during which defense counsel conceded that Hensley killed Nancy but emphasized that he could not have formed the mental state required for a first degree murder conviction, the case went to the jury. On July 14, 2002, Hensley was found guilty of first degree murder under both the theory of deliberate premeditation and extreme atrocity or cruelty. He was sentenced to life in prison.

C. The State Court Appeals

Hensley appealed his conviction to the SJC and filed a motion for a new trial in Massachusetts Superior Court based on ineffective assistance of counsel. His motion was denied; he appealed that as well. The SJC consolidated the two appeals and it issued a decision on September 15, 2009. In it, the court rejected Hensley's myriad challenges, affirming his conviction and the denial of the motion for a new trial. We need not recount all of Hensley's claims, or the SJC's conclusions, as only two are relevant to this appeal.

The first was Hensley's claim that the trial court violated his Sixth Amendment right to confrontation when it admitted the testimony of Dr. Flomenbaum, who was not the medical examiner who performed Nancy's autopsy. The SJC was not persuaded. It found that Dr. Flomenbaum's opinion as to Nancy's cause of death was admissible because the doctor opined, as an expert, based on information properly and typically relied on by experts, and was subject to cross-examination. As for Dr....

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