Anderson v. Attorney General of Kansas

• Decision Date: 22 September 2005
• Docket Number: No. 04-3243.,04-3243.
• Parties: Derek D. ANDERSON, Petitioner-Appellant, v. ATTORNEY GENERAL OF KANSAS; David R. McKune, Warden, Lansing Correctional Facility, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

425 F.3d 853

Derek D. ANDERSON, Petitioner-Appellant, v. ATTORNEY GENERAL OF KANSAS; David R. McKune, Warden, Lansing Correctional Facility, Respondents-Appellees.

No. 04-3243.

United States Court of Appeals, Tenth Circuit.

September 22, 2005.

Submitted on the Briefs:^*

Derek D. Anderson, pro se.

Phill Kline, Attorney General and Kristafer R. Ailslieger, Assistant Attorney General, Topeka, KS, for the Respondents-Appellees.

Before HARTZ, McKAY, and PORFILIO, Circuit Judges.

HARTZ, Circuit Judge.

A Kansas jury convicted Derek D. Anderson of committing aggravated sexual battery while a patient undergoing treatment for schizophrenia at a mental health facility. He claims that his trial counsel was ineffective for not raising an insanity defense. We affirm the district court's denial of his application for relief under 28 U.S.C. § 2254.

I. BACKGROUND

Mr. Anderson's assault conviction stems from an incident that occurred June 13, 1988, in the women's restroom at the Rainbow Mental Health Center. Ms. Leanna Birchard, a Rainbow employee, testified that Mr. Anderson, then a patient under her care, informed her that he could not sleep. He was given medication to help him sleep and went to bed. Later, Ms. Birchard went to the women's restroom and entered a stall. While in the stall, she heard someone else enter the restroom and, upon leaving the stall, saw Mr. Anderson. Despite her telling him that he needed to leave the restroom and return to the day hall, he started walking toward her. When she again insisted that he leave, he became agitated. When she shouted for help, he put his fist in her face and threatened her. He repeatedly touched her shoulders, and once brought his head toward her face in a motion she interpreted as an attempt to kiss her, but no actual kiss occurred. At one point he pulled her shorts halfway down, but she quickly pulled them back up. She was eventually able to escape from the restroom and summon help. A male nurse from another part of the facility came immediately. The local police were called and Mr. Anderson was taken into custody.

A. State Proceedings

An information filed on July 13, 1988, charged Mr. Anderson with aggravated sexual battery, a felony offense. He was appointed counsel, who filed a pretrial-conference document indicating that there might be a competency issue and that Mr. Anderson might rely on insanity as a defense. The state trial judge ordered a competency examination. At a hearing on September 15, 1988, the court determined that Mr. Anderson was incompetent to stand trial and ordered him confined for evaluation and treatment. He was discharged from the confinement on December 27, 1988.

Mr. Anderson's first court-appointed counsel was later granted leave to withdraw and a second counsel was appointed before trial. At trial in February 1989 the state called three witnesses: Galen Hunt, Rainbow's physical plant supervisor; Detective Clyde Blood, the investigating officer; and Leanna Birchard. Mr. Anderson's counsel cross-examined Mr. Hunt and Ms. Birchard and called Detective Blood as a defense witness.

The defense presented at trial was that the prosecution failed to prove all the elements of aggravated sexual assault—in particular, that it failed to show beyond a reasonable doubt that Mr. Anderson had applied force with the intent to arouse or satisfy his sexual desire. To that end, defense counsel cross-examined Ms. Birchard and elicited admissions that he did not kiss her, fondle her, request sexual contact, or state that he desired sexual activity. Defense counsel also questioned Detective Blood regarding Ms. Birchard's statement to the police and established that Mr. Anderson did not remove any of his clothing or otherwise expose himself and made no specific gestures or statements that he intended to have sexual relations with her.

Trial counsel unequivocally renounced an insanity defense. The court noted that "[t]here's been nothing on sanity." Trial Tr. at 16. And Mr. Anderson's counsel argued that the prosecution's witnesses could not testify as to Mr. Anderson's mental condition because "[w]e haven't used insanity as a defense. They can bring witnesses in here, but they can't do that until we open the door." Id. at 18.

The court instructed the jury that aggravated sexual battery required the showing of three elements: (1) the intentional application of force to a victim who is not the defendant's spouse and did not consent; (2) "the force was applied with the intent to arouse or satisfy the sexual desires of the defendant"; and (3) the alleged act occurred in Wyandotte County, Kansas, on June 13, 1988. St. Ct. R. at 173. The jury was also instructed on two lesser offenses: sexual battery and battery. The jury returned a verdict of guilty on the charge of aggravated sexual battery.

Mr. Anderson's trial counsel filed a motion for a new trial, arguing that the jury instructions were defective, the trial court erred in denying his motion to dismiss at the close of the state's evidence, the prosecutor's closing argument was improper and prejudicial, and the verdict was contrary to the evidence. After a hearing the court denied the motion. Mr. Anderson then made the following statement:

Your Honor, I wasn't allowed to testify on my own behalf in court. There were certain witnesses I could have used. A doctor could have been subpoenaed to testify for me. I was sedated on medication. I was having psychological problems at the particular time. I don't feel like I've had a due right to show that I was suffering from a psychological problem at the time. My record speaks for that. I did not intentionally commit the crime. I was hallucinating. The doctors had me on a drug that is for psychotic people. I was there for that treatment. I don't feel like my case had been presented properly to the best of my ability. I believe there's been a lot of things that weren't brought out on my behalf.

. . .

I want to state for the record that I don't think I had an adequate defense at the time.

St. Ct. R. Trans. of Motion for New Trial at 12-13. The court responded:

Mr. Anderson, I guess the statement calls for trial strategy. You never know which one is best or proper one. You always take the one you believe at the time was the best or proper one. To show from your doctor that because of medication or something else it's a very strict theory to follow under Kansas law that you didn't understand the nature and consequences of your act. It's a difficult position to show even with medical testimony. I can understand your questioning. We always sit back afterwards and sit back and it's like the old Monday morning quarterbacking. You take the strategy you think is right and put on the evidence you think should be done and you wait for the results.

Id. at 13.

Mr. Anderson appealed and was appointed his third new counsel for the appeal. The Kansas Court of Appeals affirmed the conviction, rejecting his arguments that there was insufficient evidence to support the verdict, that the prosecutor's statements during closing argument constituted reversible error, and that his sentence was unlawful. The appeal did not argue ineffective assistance of counsel. The Kansas Supreme Court denied review.

Mr. Anderson, proceeding pro se, then filed a motion for post-conviction relief in the Kansas state court, arguing, in relevant part, that "trial counsel was ineffective as a result of his failure to investigate mitigating evidence in general, failure to investigate or call mitigating character witnesses, failure to present evidence and defense of insanity (mental incompetence)." St. Ct. R. Motion for Relief at 8 ¶ 17. The district court denied relief, ruling that the assertion that trial counsel failed to investigate mitigating evidence was too vague for review and that the record did not support his allegation that counsel was ineffective for not presenting an insanity defense. Mr. Anderson was appointed counsel a fourth time for the appeal.

The Kansas Court of Appeals affirmed the district court's denial of post-conviction relief. Noting Mr. Anderson's statements to the court at the trial-court hearing on his motion for a new trial, the court stated that he had raised the insanity-defense issue before the trial court and that failure to pursue the issue in his direct appeal waived it under Kansas law. The Kansas Supreme Court denied review.

B. Federal Proceedings

Mr. Anderson then filed a pro se application for relief under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas. He alleged ineffective assistance of counsel as follows:

The petitioner next contends that his trial counsel violated his rights by failing to adequately prepare or investigate mitigating evidence.

Petitioner next contends that trial counsel's decision to not present a defense of insanity was unfair and in violation of his rights.

Dist. Ct. R. Doc. 1 at 5. The district court initially dismissed the petition on the ground that the claims were procedurally barred, but we reversed that finding and remanded for further proceedings. See Anderson v. Att'y General of Kansas, 342 F.3d 1140, 1144 (10th Cir.2003).

On remand Kansas argued that Mr. Anderson had failed to allege facts from which the court could find that trial counsel was ineffective and that he was not entitled to an evidentiary hearing under the standard set forth in 28 U.S.C. § 2254(e). Mr. Anderson responded that (1) "it is a matter of record that the psychiatrist was willing to testify and because defense counsel did not want nor choose to investigate this type of defense that action clearly compromise[d] my defense," Dist. Ct. R. Doc. 38. at 1; and (2) the factual basis for his ineffective-assistance-of-counsel claim could not be resolved on the basis of the trial record and he had exercised due diligence to obtain evidence, id. at 2.

The district court found that Mr. Anderson had attempted to raise his claim...