Greene v. Lambert

• Decision Date: 26 March 2002
• Docket Number: No. 01-35595.,01-35595.
• Parties: William B. GREENE, Petitioner-Appellee, v. John LAMBERT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F.3d 1081

William B. GREENE, Petitioner-Appellee, v. John LAMBERT, Respondent-Appellant.

No. 01-35595.

United States Court of Appeals, Ninth Circuit.

Submitted December 6, 2001.^*

Filed March 26, 2002.

COPYRIGHT MATERIAL OMITTED

Paul D. Weisser, Senior Counsel, Criminal Justice Division, Olympia, WA, for the respondent-appellant.

William B. Greene, pro se, Walla Walla, WA, petitioner-appellee.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding.

Before O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.

OPINION

GRABER, Circuit Judge.

In this unusual case, a state trial court forbade a defendant's testimony about his own state of mind and forbade testimony from the victim — his therapist — about what she observed of his state of mind. The state trial court acted on the basis of its interpretation of state rules of evidence and its conclusion that the mental disease about which the defendant and the victim would testify — Dissociative Identity Disorder (DID), formerly referred to as Multiple Personality Disorder (MPD) — was a questionable diagnosis and, at all events, had no relevance to the defendant's sanity or knowledge at the time of the crime. In the context of this subsequent federal habeas petition, we are called on to decide two questions: (1) whether the Washington Supreme Court's response to a motion to reconsider its opinion was an adjudication on the merits of a newly raised Sixth Amendment claim, which would permit us to address it, 28 U.S.C. § 2254(b), (c); and (2) if so, whether the Washington Supreme Court's decision involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1). We hold that (1) the Washington Supreme Court adjudicated the merits of the Sixth Amendment claim and (2) the court unreasonably applied federal constitutional principles that were clearly established by the United States Supreme Court. Accordingly, we affirm the district court's order granting the petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

In 1988, Petitioner William B. Greene pleaded guilty to a charge of indecent liberties, in violation of Washington Revised Code § 9A.44.100. He was incarcerated in a Washington state correctional facility and entered a sex-offender treatment program there. During treatment, Petitioner complained of hearing voices. His therapist suspected a dissociative disorder and ultimately diagnosed DID. An independent private medical provider who specialized in DID confirmed the diagnosis. Petitioner manifested at least 24 separate personalities or "alters," which had different ages, sexes, and races.

During Petitioner's incarceration, a psychiatric nurse served as his main therapist. Petitioner continued therapy with her twice a week, voluntarily, after his release from prison in November 1992. Although his condition remained stable for about a year, it began to deteriorate thereafter. The therapist instructed Petitioner to call her every day because she thought that he was depressed and might try to commit suicide. After their conversation on April 29, 1994, the therapist became alarmed about Petitioner's mental condition and decided to go to his apartment to evaluate him for possible hospitalization. When she arrived, Petitioner became agitated. He refused to allow the therapist to leave. He forcibly removed her clothes and sexually assaulted her. The lengthy sexual assault consisted in large part of ritual sucking of the victim's breasts; Petitioner did not achieve an erection. After the assault ended, Petitioner bound and gagged his therapist and drove away in her car. The therapist freed herself and called the police, who arrested Petitioner.

As a result of those events, Petitioner was charged with first-degree kidnapping, in violation of Washington Revised Code § 9A.40.020(1)(b), and indecent liberties. He pleaded not guilty by reason of insanity. He asserted that he suffered from DID and that the alter in control of his body during the incident involving the therapist was incapable of understanding the nature or wrongfulness of his acts. In an offer of proof the therapist testified that "Tyrone," a child less than seven years old, was the alter who perpetrated the assault. At a pre-trial hearing, Petitioner and the state presented contradictory experts concerning DID.

The state trial court refused to allow Petitioner's insanity defense, as well as a defense of diminished capacity. The court said that there was "no discernible standard to justify a diagnosis of MPD/DID in questionable cases" and "no consensus on a forensic diagnosis concerning insanity by reason of MPD/DID." Accordingly, the court held that the DID — related defenses would not be helpful to the trier of fact and were inadmissible under Washington Rule of Evidence 702.¹ The state's motion, which the trial court granted, was to "preclude any mention of the disorder in the case"; "[a]nd my motion would go to encompass statements made by the defendant during the defense," as well as "any observation by [the therapist] that it was Tyrone."

A jury convicted Petitioner of both counts: kidnapping and indecent liberties. Because of Petitioner's two earlier felony convictions, the judge sentenced him to concurrent terms of life in prison under Washington's "three-strikes" law, Wash. Rev.Code Ann. § 9.94A.120(4) (West 1988) (recodified as § 9.94A.505(2)(a) (West 2001)).

Petitioner appealed to the Washington Court of Appeals, which reversed his conviction. State v. Greene, 92 Wash.App. 80, 960 P.2d 980, 982 (1998). That court held that the trial court erred when it found that DID was not generally accepted in the scientific community and that the trial court abused its discretion when it ruled that DID evidence would not have assisted the jury. Expert testimony was reliable, and it would be relevant to establish either insanity or diminished capacity. Id. at 997.

The state petitioned for review. On review, the Washington Supreme Court reinstated the conviction. State v. Greene, 139 Wash.2d 64, 984 P.2d 1024, 1025 (1999). The Washington Supreme Court agreed with the Court of Appeals that DID was generally accepted in the scientific community. 984 P.2d at 1028. The Supreme Court held, however, that the evidence was not admissible in Petitioner's case because it would not have been helpful to the trier of fact. Id. at 1031.

Petitioner filed a motion for reconsideration, in which he raised for the first time a federal constitutional claim: that the trial court's rulings precluding his defenses based on DID violated his Sixth Amendment rights. In response, the Washington Supreme Court sent a letter stating that "[t]he motion will be considered by the Court." Thereafter the Court amended its opinion by adding the following footnote:

Greene presents no new argument for finding the Persistent Offender Accountability Act [POAA] unconstitutional. Therefore, we decline his invitation to overturn our previous determination that the POAA is constitutional. He also argues that denying him the right to present evidence of DID to the jury denies him the right to present a defense. Since we decide this case on more narrow grounds, we do not reach this issue. 139 Wash.2d at 79 n. 5, 984 P.2d 1024 (emphasis added). Having made that change, the court denied the motion for reconsideration.

Petitioner unsuccessfully sought certiorari in the Supreme Court of the United States. Greene v. Washington, 529 U.S. 1090, 120 S.Ct. 1726, 146 L.Ed.2d 647 (2000). Then he filed a petition for a writ of habeas corpus in the district court for the Western District of Washington. As pertinent, the petition alleged violations of the "right to present a trial defense," the right "to defend against the state's accusations," and the right "to testify in my own behalf."

Initially, the district court dismissed the petition with leave to amend by striking one unexhausted claim and, after it was stricken, the court granted the amended petition. The court held, with respect to the DID claims, that they were exhausted in state court and were meritorious. The district court emphasized that the restriction on DID evidence was disproportionate, especially in the light of the Washington Supreme Court's decision that the disorder was a generally accepted medical condition. Citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the district court concluded that Petitioner's clearly established constitutional rights had been violated by the preclusion of DID evidence.

The state filed this timely appeal.

EXHAUSTION

The state first argues that Petitioner's Sixth Amendment claim is not properly brought to federal court because Petitioner failed to exhaust his state remedies. We review de novo whether a petitioner has exhausted state remedies. Harris v. Pulley, 885 F.2d 1354, 1370 (9th Cir.1988). Although the question is close, we are persuaded that the Washington Supreme Court considered this claim.

Undeniably, a state prisoner must exhaust a federal constitutional claim in state court before a federal court may consider the claim. 28 U.S.C. § 2254(b)(1)(A), (c). Exhaustion typically requires that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). However, exhaustion does not require repeated assertions if a federal claim is actually considered at least once on the merits by the highest state court. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (citing Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953))....