Hendricks v. Zenon

• Decision Date: 08 July 1993
• Docket Number: No. 92-35289,92-35289
• Citation: 993 F.2d 664
• Parties: Jackie Dean HENDRICKS, Petitioner-Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institute, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 664

993 F.2d 664

Jackie Dean HENDRICKS, Petitioner-Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institute, Respondent-Appellee.

No. 92-35289.

United States Court of Appeals Ninth Circuit.

Argued and Submitted January 7, 1993.

Decided April 22, 1993.

As Amended July 8, 1993.

George G. Curtis, Portland, OR, for petitioner-appellant.

Katherine H. Waldo, Asst. Atty. Gen., Salem, OR, for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: D.W. NELSON, TROTT, and T.G. NELSON, Circuit Judges.

TROTT, Circuit Judge:

Jackie Dean Hendricks ("Hendricks") appeals the denial of his habeas corpus petition under 28 U.S.C. § 2254 (1988) on several grounds. Hendricks claims: 1) he was denied his Sixth Amendment right to the effective assistance of counsel on appeal; 2) he was deprived of due process of law because the prosecution withheld exculpatory evidence; 3) he was denied due process of law because the State failed to provide funding for investigative expenses in a timely manner; 4) he was denied due process of law because the trial court failed to merge all of his convictions for sentencing; 5) he was denied due process of law because the prosecution knowingly used perjured testimony; 6) he was denied due process of law because the trial court admitted a tape recording of his statement; and 7) he was denied due process of law because the trial court sentenced him under the dangerous offender statute. The district court denied relief. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. Because the Oregon Court of Appeals' decision to deny Hendricks substitution of counsel and to require him to pursue his appeal pro se was in violation of his Constitutionally guaranteed right to effective assistance of counsel, we reverse and remand to the district court to issue the writ and determine a reasonable time in which the State of Oregon shall grant Hendricks a new appeal with respect to matters involving state law and any remaining matters of federal Constitutional law not decided by this Opinion. Hendricks shall have the benefit of counsel during this appeal unless he knowingly and intelligently waives this right and unequivocally requests to proceed pro se.

I

At trial, Kristi Oreb testified that on Tuesday, June 25, 1985, at approximately 9 p.m., her boyfriend's brother, Hendricks, came to the Creswell, Oregon apartment Oreb shared with Hendricks's ex-girlfriend, Karen Hunter. Hendricks agreed to give Oreb a ride to a friend's house in Springfield, Oregon to look for an individual named Guy Bennett. When Hendricks and Oreb arrived at the Springfield house, Bennett was not there. They went to another house in Springfield to look for him. Failing to locate him, they drove south on the freeway back toward Creswell.

When they arrived at the Creswell exit, Hendricks suggested they go on to Cottage Grove to a party where Bennett might be. Oreb testified Hendricks took another exit and drove to "the middle of nowhere," driving up "a bunch of back roads." In this location, 13 miles from the nearest residence, Hendricks stopped the car, pulled out a knife, and cut Oreb's neck. After cutting Oreb's neck, he apologized and explained he did not know what he was doing or why he was doing it. Hendricks then struggled with Oreb and raped her. After raping her, he again apologized and asked Oreb not to tell anyone about the rape. This was Oreb's last recollection of the incident before she woke up in the woods two days later.

Physical evidence from the scene and the physical injuries to Oreb indicated that after raping her, Hendricks hit Oreb in the head with a tire iron, stabbed her, tied a rope around her, dragged her 70 feet and threw her down a ravine. ¹

Oreb was found the afternoon of Thursday, June 27, 1985 by loggers in the woods. Oreb was dirty and wearing bloodstained clothing. Oreb told the loggers Hendricks was responsible for her condition. The loggers called for an ambulance and police.

When Trooper Cantu of the Oregon State Police arrived, he spoke with Oreb. Oreb told him Hendricks had stabbed her. She told Cantu where Hendricks lived in Florence, Oregon and described the car he was driving.

At approximately 9 p.m. on Thursday, June 27, 1985, Trooper Tindle called Hendricks at Hendricks's home in Florence and asked him to meet him at the Florence patrol office at 9:30. Hendricks agreed to come to the patrol office but failed to appear. When police went to his home, they found the car Oreb had described.

The car, a Datsun, belonged to Hendricks's current girlfriend, Davis, who testified Hendricks had been in possession of the car during the time period described by Oreb. The police found blood spatters and a tire iron with blood on it in the car. The wheel base of the car was measured, and it matched the tire tracks found at the scene of the assault.

Hendricks finally was arrested on Friday, when he was found hiding in a closet at a friend's house. He was transported from Florence to Eugene by police. He gave a taped statement en route in which he told police he had loaned the Datsun to a person named "John" in Oakridge on the night of June 25, 1985. At trial, when confronted with his statement to police about "John," Hendricks testified, "I--that part, I think I did make up. I don't remember." He also testified, "I don't remember if I loaned my car out or not." At trial, Hendricks admitted he had lied to his girlfriend and to police about different aspects of his story, but maintained that during the time of the alleged assault he was at the home of a friend, Peter Olin.

II

We review de novo the district court's decision to deny a petition for habeas corpus. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993); Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). However, "[t]o the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Thomas, 923 F.2d at 1364. In reviewing a district court's grant or denial of a habeas corpus petition, state court factual conclusions are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). See Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 870, 116 L.Ed.2d 776 (1992); Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir.1989).

III

Hendricks argues he was denied his Sixth Amendment right to counsel when the state appeals court refused to substitute appointed counsel, requiring him to proceed pro se in his direct appeal. Hendricks had been having difficulties with his appointed counsel and, on October 5, 1987, he asked the court to remove her and to appoint new counsel. In this motion--which is best viewed as a motion to substitute counsel--he complained that his counsel refused to raise issues which he felt were ripe for appeal, refused to attach affidavits from his trial attorney and investigator to the appellate brief, and did not have his best interests in mind.

During this period, the public defender also indicated her dissatisfaction with the situation. On October 14, 1987, she moved to withdraw as counsel and to withdraw the appellate brief she had filed on Hendricks's behalf. The Oregon Court of Appeals granted this motion on October 21, but did not appoint new counsel, leaving Hendricks to pursue his direct appeal unrepresented. In a letter dated October 2, 1987, the public defender had warned Hendricks about the possibility of this outcome: "Please be advised that the court may not allow you another attorney and may require that you proceed by yourself."

On October 26, proceeding pro se, Hendricks filed a motion for an extension of time to file an appellate brief. On November 4, the state appeals court granted this motion and formally denied Hendricks's motion for appointment of new appellate counsel. There is no indication in the record that the court ever held a hearing regarding Hendricks's motion to substitute counsel. On November 9, 1987, Hendricks filed what he styled a "petition for reconsideration" on his substitution of counsel motion. In an order denying the motion, again without a hearing, the court said the following: "The Court [sic] is not persuaded that the Public Defender failed to provide effective assistance of counsel to appellant; therefore, the 'petition for reconsideration' is denied."

Hendricks eventually filed a pro se brief. His conviction was affirmed without opinion. State v. Hendricks, 92 Or.App. 96, 757 P.2d 877, rev. den., 306 Or. 528, 761 P.2d 929 (1988).

Basing its decision on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the district court denied Hendricks's petition for a writ of habeas corpus and held Hendricks had waived his right to counsel. Noting Hendricks's counsel had warned him that his motion for appointment of new counsel might be denied, the district court held that "petitioner could not be heard to complain that he was 'forced' to proceed pro se." In so holding, the district court was in error.

A State has a duty to provide an indigent defendant with effective assistance of counsel through his first appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This duty is commanded by the Fourteenth Amendment to the Constitution of the United States. Id. at 358. As the Court later said,

In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that--like a trial--is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant--like an unrepresented defendant at...