Hendricks v. Calderon

• Decision Date: 22 November 1995
• Docket Number: 94-99008,Nos. 94-99007,s. 94-99007
• Citation: 70 F.3d 1032
• Parties: 95 Cal. Daily Op. Serv. 8886, 95 Daily Journal D.A.R. 15,404 Edgar M. HENDRICKS, Petitioner-Appellant-Cross-Appellee, v. Arthur CALDERON, Warden, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1032

70 F.3d 1032

95 Cal. Daily Op. Serv. 8886, 95 Daily Journal

D.A.R. 15,404

Edgar M. HENDRICKS, Petitioner-Appellant-Cross-Appellee, v. Arthur CALDERON, Warden, Defendant-Appellee-Cross-Appellant.

Nos. 94-99007, 94-99008.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 14, 1995.

Decided Sept. 1, 1995.

As Amended on Denial of Rehearing and Suggestion for

Rehearing En Banc Nov. 22, 1995. ^*

William M. Goodman, Topel & Goodman, San Francisco, California, for petitioner-appellant-cross-appellee.

Dane R. Gillette, Deputy Attorney General, San Francisco, California, for respondent-appellee-cross-appellant.

Appeals from the United States District Court for the Northern District of California.

Before: GOODWIN, CANBY, and RYMER, Circuit Judges.

GOODWIN, Circuit Judge:

A California jury convicted Edgar M. Hendricks of two counts of first degree murder with use of a firearm; one count of robbery with use of a firearm; one count of burglary with use of a firearm; and one count of grand theft. The jury in the penalty phase found multiple murders and felony-murder special circumstances and returned a death verdict. After exhausting his state appeals, Hendricks sought habeas relief under 28 U.S.C. Sec. 2254, claiming that he received ineffective assistance of counsel in both the guilt and penalty phases of his state trial. ¹ The district court granted the petition as to the penalty phase and denied the petition as to the guilt phase. The challenged order vacated the death sentence, leaving the state the option to retry the penalty phase. Hendricks appeals the denial of his petition challenging the guilt phase, arguing primarily that his counsel failed to investigate the possibility of a mental defense adequately. The state cross-appeals the order finding the penalty phase constitutionally defective, contending that trial counsel presented enough mitigating evidence to pass constitutional muster.

Because trial counsel hired two mental health experts to look into mental defenses and both concluded after examining Hendricks that there was no basis for a mental defense, counsel's decision not to pursue a mental defense was a reasonable strategic choice supported by an adequate investigation. However, because trial counsel conducted no investigation in preparation for the penalty phase and had no strategic reason for failing to do so, counsel's performance in the penalty phase fell below the level of constitutional acceptability. As a result of counsel's failure in the penalty phase, counsel did not make an effort to present mitigating evidence which was available, thereby prejudicing Hendricks. Accordingly, we affirm the district court order, granting the petition as to the penalty phase and denying the petition as to the guilt phase.

I. FACTS

The basic facts of this case are not disputed. For a thorough exposition of the underlying crimes, the conduct of counsel at both the guilt and penalty phases, as well as the testimony at the evidentiary hearing held on the habeas petition now under review, see the district court's opinion, Hendricks v. Calderon, 864 F.Supp. 929 (N.D.Cal.1994). See also Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir.1992) for this Court's precis of the background facts.

II. THE LAW

This Court reviews habeas petitions de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). In a federal habeas action, a claim of ineffective assistance of counsel presents a mixed question of fact and law. Id. District court fact findings are accepted unless they are clearly erroneous. Id. at 1451-52.

In order to prevail on a claim of ineffective assistance of counsel, the petitioner must establish that counsel's actions were deficient and this shortcoming prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 2064-67, 80 L.Ed.2d 674 (1984); Hendricks v. Vasquez, 974 F.2d at 1109. "Although there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and judicial scrutiny of counsel's performance must be highly deferential, ... counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Sanders v. Ratelle, 21 F.3d at 1456 (internal citation and quotations omitted). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. This Court has found counsel to be ineffective where an attorney neither conducted a reasonable investigation nor demonstrated a strategic reason for failing to do so. See Sanders, 21 F.3d at 1456 and cases cited therein.

In determining whether counsel's conduct falls within the broad range of professionally acceptable conduct, this Court will not view counsel's actions through "the distorting lens of hindsight." Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir.1989), vacated on other grounds, Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991). Rather, under the rule of contemporary assessment, an attorney's actions must be examined according to what was known and reasonable at the time the attorney made his choices. Id.

To establish the prejudice prong of the Strickland standard, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In the guilt phase, then, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Likewise, in the sentencing phase, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id.

III. COUNSEL'S PERFORMANCE IN THE GUILT PHASE

A. Failure to Investigate Hendricks' Background

Hendricks argues that his attorney's failure to investigate his background adequately, particularly his alleged history as a victim of sexual abuse and possible genetic predisposition to various psychiatric disorders, rendered counsel's representation constitutionally deficient. Hendricks argues that the defective investigation provided an inadequate basis for counsel's strategic decision not to pursue a mental defense. Hendricks further argues that regardless of the decision not to pursue a mental defense, the strategy pursued at trial, that is, corroborating the state of mind reflected by Hendricks' confession, demanded an investigation into Hendricks' family background, a task counsel never performed.

1. Decision Not to Pursue a Mental Defense

a. The Investigation Conducted

Hendricks' chief trial counsel, Robert Berman, and co-counsel, Michael Gaines, the most experienced homicide lawyers in the San Francisco Public Defenders Office, suspected that Hendricks may have had psychiatric problems. Following his intuition, Berman hired mental health experts to examine Hendricks with an eye toward appraising any mental defenses that could be available. Berman first hired Dr. George Bach-y-Rita, a psychiatrist with whom Berman had worked before, and whom Berman believed to be a competent forensic mental expert. Dr. Bach-y-Rita met with Hendricks twice, about four and a half hours in total, to canvass any indication that Hendricks was insane or suffered from a diminished mental capacity. Dr. Bach-y-Rita found no evidence that Hendricks was insane, psychotic, or unable to control his behavior at the time of the crimes. In short, Bach-y-Rita found no promising basis for a mental defense. Bach-y-Rita diagnosed Hendricks as a sociopath and informed Berman that he could not assist in the defense.

Still, Bach-y-Rita thought further psychological testing might prove useful, so he suggested that Berman hire Dr. Linda Carson, a clinical psychologist with whom both Dr. Bach-y-Rita and Berman were acquainted. Dr. Carson interviewed Hendricks nine times, for a total of about fifteen hours. She ran several psychological tests on Hendricks, reviewed the taped confessions and police reports, as well as Hendricks' life history, which she elicited from Hendricks in their talks. Like Dr. Bach-y-Rita, Dr. Carson concluded that Hendricks was sane at the time of the murders and found no evidence that Hendricks was insane or suffered from a diminished capacity.

Berman provided Dr. Carson and Dr. Bach-y-Rita with the limited information on Hendricks in his possession, that is, the confession and the police reports, before they reached any conclusions. Neither Dr. Bach-y-Rita nor Dr. Carson requested further background information on Hendricks from Berman or qualified their conclusions due to insufficient information on their patient. There is no evidence that the conclusions of the experts were tentative, snap judgments, or otherwise based on anything less than a full analysis of complete data. After hearing the conclusion of his two mental health experts that there was no basis for a mental defense, Berman decided that he would not pursue a mental defense and stopped his investigation down that path.

Not only did Hendricks' own mental health experts fail to offer any grounds for a mental defense, but a mental defense could be pursued only at a substantial strategic cost. If Berman put on the testimony of Dr. Carson or Dr. Bach-y-Rita, the jury would have learned, during their cross-examination, of Hendricks' other murders for which he was tried separately. Considering the conclusion of the mental health experts that Hendricks was sane, sociopathic, and did not suffer from a diminished capacity, along with the...