Anderson v. Gipson

• Citation: 902 F.3d 1126
• Decision Date: 06 September 2018
• Docket Number: No. 16-15338,16-15338
• Parties: Aaron ANDERSON, Petitioner-Appellant, v. Connie GIPSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

902 F.3d 1126

Aaron ANDERSON, Petitioner-Appellant,

v.Connie GIPSON, Warden, Respondent-Appellee.

No. 16-15338

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2018, San Francisco, California

Filed September 6, 2018

Ann Catherine McClintock (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Defender, Sacramento, California; for Petitioner-Appellant.

David Andrew Eldridge (argued) and Justain P. Riley, Deputy Attorneys General; Michael P. Farrell, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.

Before: Mary M. Schroeder, David M. Ebel,^* and Ronald M. Gould, Circuit Judges.

EBEL, Circuit Judge:

In 2008, Petitioner Aaron Anderson was convicted of domestic violence, assault, and vandalism stemming from a physical quarrel with his on-again, off-again live-in girlfriend. Pursuant to California’s Three Strikes law, Anderson was sentenced to fifty-four years to life. After exhausting his state remedies, Anderson sought a writ of habeas corpus in federal court, alleging constitutional violations involving (1) the failure of his trial judge to call sua sponte for a competency hearing, (2) the failure of the trial judge to revoke sua sponte his Faretta waiver, and (3) the trial court’s decision to keep him shackled during trial.

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") sets a high bar for a state petitioner seeking to establish a constitutional violation. Mindful of that bar, we nonetheless conclude it was error for the state trial judge not to sua sponte order a competency hearing given the numerous signs of Anderson’s mental incompetency, including his suicide attempt on the eve of trial. Accordingly, we REMAND the case to the district court with instructions to grant the writ unless, within a reasonable time, the state grants a new trial consistent with this opinion. Because of our ruling on the competency issue, we need not address Anderson’s other issues, and we therefore DISMISS as moot his appeals as to the Faretta and shackling issues.

I. BACKGROUND

The following facts are drawn primarily from the opinion of the California Court of Appeal in Anderson’s direct appeal.¹

In 2007 Mr. Anderson and the victim, his on-again, off-again girlfriend, attended a wake for Anderson’s nephew. This wake left Anderson "distraught," and he drove with his brother and the victim to the grocery store. When the victim refused to join the brother and Anderson for a drink, Anderson "hit her behind her right ear and grabbed the car keys, heading for the store. As she followed him toward the store, he struck her again, knocking her down."

The victim got up and continued into the store, where she asked the manager if she could call 911. "After she made the call, [Anderson] tried to grab the phone out of her hand. He put his arm around her neck and dragged her backward about 15 feet before throwing her to the ground." The victim got up and climbed back into the car, but Anderson climbed in with her. The two drove off, but were intercepted by police shortly afterwards. Officers took Anderson into custody, but after he was placed into a police cruiser he kicked out the cruiser’s window. When police examined the victim, she had "a two- by one-inch ‘painful’ contusion behind [her] ear, bruises, and a lump on her head."

The incident at the supermarket was caught on the store’s surveillance cameras. According to the California Court of Appeal, the video "did not show the victim attacking [Anderson] in the car," as Anderson claims, but instead

it showed him on top of her in the car drawing his hand back several times; it showed him standing above her as she lay on the ground outside the market, moving his arms and legs; and it showed him swinging his arms as he stood over her in the store after shoving her to the ground.

A. The Initial Proceedings Before State Judge Balonon

Anderson was charged with inflicting injury on a cohabitant, assault by means of force likely to inflict great bodily injury, vandalism, and resisting a peace officer. Because of prior California convictions, his trial became a "three strikes case" under California law, greatly enhancing the penalties Anderson faced. Anderson was set to proceed to trial on these charges in October of 2007 before The Honorable Eugene Balonon.

At the outset of the Balonon proceedings Petitioner’s counsel indicated that "relations with his client were rocky but repairable." The next day, however, Petitioner, who had been detained awaiting trial, refused to come to court, and counsel raised concerns about his client’s competency to proceed. ER 68 ("Defense counsel reported that ‘I don’t think I can raise things to the level of a doubt of his competency. But I do have some concerns’ about defendant not presently taking the anti-depressants previously prescribed for him while in jail[.]"). At this point defense counsel requested a short continuance to "get an evaluation of defendant from professionals with whom he was familiar and who could work quickly[,]" but Judge Balonon and the prosecutor both expressed concern that doing so would offer Petitioner an "indication that being difficult would result in ... delay of the proceedings."

The point became moot, however, when Petitioner arrived in court in the afternoon. He was wearing his jail attire, and refused to change into civilian clothes. Given the opportunity to address Judge Balonon, Petitioner

asserted that he did not want to be there, that he was not mentally prepared, and [that] he did not understand what was happening. He said that he had stopped taking his medication and thought the strain of the proceedings might leave him unable to be present throughout them. He also had been having trouble eating and sleeping.

Despite these statements from the defendant, Judge Balonon observed that defendant had become emotional during a colloquy as to the impact of his previous convictions on his current case and noted that he "believed that defendant was simply experiencing the ordinary stress of facing trial (rather than facing an incipient mental breakdown)." Judge Balonon then stated for the record: "There is nothing that I can find from my interaction and my observation of Mr. Anderson that would in any [ ] way ... indicate that he doesn’t know what was going on ... either today or in the prior proceedings ...."

At this point the Balonon proceedings moved into voir dire, and Judge Balonon asked the courtroom bailiff about the necessity of restraining the defendant in open court. According to the California Court of Appeal, "[t]he court concluded it did not find any basis for any restraints." Despite that conclusion from the court, Anderson nonetheless said he wanted to remain in shackles. Judge Balonon ordered the bailiff to release Petitioner’s ankle shackles, but keep the belly-chain shackles in place.

The proceedings continued briefly, before recessing for the weekend still in the middle of voir dire. When the jury returned to court on the following trial date, a Monday, "[Judge Balonon] announced that [he] was continuing the proceedings in order to evaluate defendant because [Anderson] had attempted suicide over the weekend." At this point the jury panel was dismissed for good cause.

B. The Proceedings Before State Judge Orr

After several continuations, including one at which defense counsel informed the court that he intended to have outside experts conduct a psychological evaluation of Petitioner, the case proceeded to trial roughly three months later before a different judge, The Honorable Joseph Orr. At this point Petitioner indicated that he wanted to proceed pro se.

In doing so, Petitioner "explained that he felt the outcome of the trial was inevitable and he would rather reach that result on his own than with someone else representing him." After some discussion, Judge Orr told Petitioner that he "would accept his waiver [of his right to counsel] notwithstanding his refusal to acknowledge that he could not raise the incompetence of his own trial performance on appeal." The trial court also appointed stand-by counsel. The case then proceeded to voir dire.

Prior to voir dire, the court also discussed whether Anderson would be shackled. The bailiff indicated that defense counsel had asked for the restraints to be removed but "it doesn’t make any difference to defendant whether or not he ha[s] restraints on." The California Court of Appeal assumed that this comment was a reference to the previous proceedings when Petitioner had requested to remain in shackles. This time, however, Anderson "asserted that he did not pose any threat and voiced objection to the full restraints that the deputies wanted as a matter of course." Judge Orr ruled that Petitioner’s primary shackles would be removed, but that he would still be chained to his chair. Petitioner "expressed his satisfaction with this arrangement." According to the California Court of Appeal, "the record does not indicate whether or not there was an adjustment of the chain in front of the jury," and "nothing affirmatively indicates that the jury actually saw the chair chain, nor does anything indicate that defendant testified in a chair restraint."

That is not to say that the jury was unaware of Petitioner’s shackles. While one witness was being direct-examined, Petitioner twice indicated to the court in the presence of the jury that the chain was too tight. Then, during jury instructions, Judge Orr instructed the jury to disregard the fact that "physical restraints have been placed on Aaron Anderson." Based on these two statements, even if the jury were unable to see the shackles, they certainly were aware of them.

Petitioner—now representing himself—did not "meaningfully" participate in voir dire. This resulted in an all-female jury, including one juror who herself had been a victim of domestic violence and one whose ...