Hennessy v. Goldsmith, 89-16251

• Decision Date: 01 April 1991
• Docket Number: No. 89-16251,89-16251
• Parties: John Joseph HENNESSY, Petitioner-Appellee, v. Bob GOLDSMITH; Robert Corbin, Attorney General of the State of Arizona, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 511

929 F.2d 511

John Joseph HENNESSY, Petitioner-Appellee, v. Bob GOLDSMITH; Robert Corbin, Attorney General of the State

of Arizona, Respondents-Appellants.

No. 89-16251.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 1990.

Decided April 1, 1991.

Greg A. McCarthy, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants.

Michael J. Bloom, Tucson, Ariz., for petitioner-appellee.

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

Before NELSON and TROTT, Circuit Judges, and STEPHENS, Senior District Judge. ^*

TROTT, Circuit Judge:

Appellee John Joseph Hennessy was convicted in Arizona state court of attempted armed robbery, burglary, and two counts of class 2 kidnapping. After trial, his appellate attorney discovered that the trial judge had not instructed the jury on an element that had not been contested of the crime of kidnapping. Hennessy then filed with the state trial court a petition for post-conviction relief based on this error. The petition was granted by the trial court, but reversed by the state court of appeals which explicitly found the error harmless. After the state supreme court denied review, Hennessy filed a petition for a writ of habeas corpus in federal court. The district court granted the writ, apparently agreeing that the instructional failure deprived Hennessy of due process of law. We now reverse.

I Facts

Armed with a pistol, Hennessy entered the lobby of the Follies Burlesque Theater in Tucson, Arizona on July 12, 1982. He purchased a ticket from employee Jack Bruce and went into the theater's viewing room. Bruce then went into the rest room. When Bruce returned to the lobby, Hennessy pointed his firearm at him and announced he was robbing the theater. He forced Bruce into another room where employee Rene Caudill was located. Hennessy tied up Bruce and Caudill with tape, and he told Bruce he would "blow [Caudill] away" if Bruce moved.

While Hennessy was searching the theater for money, he was unexpectedly interrupted by Benjamin Reese, a third employee. Upon seeing Reese, Hennessy fled the premises, leaving Bruce and Caudill still bound with tape in the back room. At trial, Reese described Hennessy's flight as follows:

I started trying to get his [Hennessy's] attention. So I came out here [indicating his position by referring to a photograph].... He was bustling. When I got to the doorway, he was already out to the edge of the building.... I asked him to stop. He made no attempt to stop or anything.... I moved a little quicker.... I tried to get the man's attention again. I said come back, let's talk about it. He wasn't about to stop. There was nothing more than an acknowledgment he knew I was there.... Once I had rationalized that he wasn't going to stop and come back I just started taking down the tag number that was on the car.

After Hennessy's abrupt departure, Bruce and Caudill managed on their own to remove their restraints. They were uninjured.

II State Court Proceedings

Hennessy was captured and charged with various felonies, including "class 2 felony kidnapping." He was convicted of two counts of this offense, but after the trial it was discovered that the court had not instructed the jury that to find Hennessy guilty of class 2 kidnapping, they had to find that Hennessy did not "voluntarily release" Caudill and Bruce. Under Arizona law, if a kidnapper "voluntarily releases" his victim, his crime is reduced from a class 2 to a class 4 felony, which carries a lesser penalty. Arizona Revised Statutes Sec. 13-1304(B). Hennessy's counsel neither asked for an instruction on this issue nor objected to the instructions that were given.

The effect of the state trial judge's failure to instruct on voluntary release was first addressed by the state trial court in a post-trial proceeding requested by Hennessy. The purpose of the hearing was to explore the ramifications of this failure. The trial court concluded a mistake had been made, and granted a new trial. After a rehearing granted at the state's request, the court confirmed its earlier ruling granting relief, believing it was legally bound by Arizona precedent. However, the court found that "[t]he evidence would not support a finding of voluntary release."

The state then appealed. The Arizona Court of Appeals agreed with and accepted Judge Velasco's factual finding, but disagreed with his view of the effect of the instructional omission. The court reinstated Hennessy's kidnapping convictions as class 2 felonies and the sentences originally imposed, finding "there was no evidence to support a finding that defendant voluntarily released the victims", and concluding that "the court's failure to instruct on voluntary release constituted error which is harmless beyond a reasonable doubt." (emphasis added). Hennessy appealed this decision to the Arizona Supreme Court, which denied his petition for review.

III Proceedings in the District Court

The federal district court summarily granted Hennessy's petition for a writ of habeas corpus without explanation. Its order filed September 7, 1989 states only the following:

This matter having come on for a regularly scheduled hearing on Monday, August 28, 1989, the parties having been represented by counsel, and the court having reviewed the pleadings, and considered the arguments advanced by counsel:

It is therefore ordered that the Writ of Habeas Corpus is granted. It is further ordered that the case is remanded to Division 11 of Pima County Superior Court with orders to reinstate the sentence previously imposed on February 12, 1988 by the Hon. Bernardo P. Velasco sentencing petitioner on counts five and seven as class 4 felonies and vacating prior orders sentencing petitioner for class 2 felonies for those offenses.

With all respect to the district court, this treatment of Hennessy's petition leaves us with no way of reviewing its judgment. We are unable to discern why the court acted as it did. In view of the manner in which this matter had been analyzed and decided in the state courts, the district court may well have violated the rule of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) ("Sumner I "), confirmed in Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) ("Sumner II ").

In Sumner I, the Supreme Court reversed this court for failure to comply with 28 U.S.C. Sec. 2254(d), which mandates applying a presumption of correctness to factual determinations made by state courts when we review their findings in federal habeas proceedings. In reversing and remanding for further proceedings, the Court issued the following directive:

In order to ensure that this mandate of Congress is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was 'not fairly supported by the record.'

449 U.S. at 551, 101 S.Ct. at 771 (quoting Sec. 2254(d)(8)).

Arizona regards "voluntary release" as an element of the offense of kidnapping and a factual matter to be determined by the trier of fact. Thus, Arizona's finding of 'no evidence to support voluntary release' is primarily fact-driven, notwithstanding its obvious relationship to the statute's legal standard. In our view, this finding qualifies for deference under 28 U.S.C. Sec. 2254(d). In the present case, it appears that the district court did not abide by either section 2254(d) or Sumner I, both of which impose sua sponte responsibilities on a federal court that collaterally reviews a state court conviction. Confronted with a state court factual determination that there is 'no evidence to support voluntary release', the district court may have not accorded appropriate deference to Arizona's trial court, court of appeals, and supreme court. See Sumner II, 455 U.S. at 592-93, 102 S.Ct. at 1304 ("the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact...." ¹). In Sumner II, the Court recognized the challenge of distinguishing between questions of law and questions of fact, but concluded that "[a]lthough the distinction ... is not always easily drawn, we deal here with a statute [Sec. 2254(d) ] that requires the federal courts to show a high measure of deference to the fact-findings made by the state courts." 455 U.S. at 598, 102 S.Ct. at 1307. Moreover, the district court's abbreviated order fails to indicate how it viewed the question of harmless error. Under the circumstances, it would be appropriate to reverse the district court and remand this matter for further proceedings in accord with 28 U.S.C. Sec. 2254(d), Sumner I & II, and the harmless error rule. Because of the considerable appellate judicial resources already spent reviewing this matter, however, including an exhaustive review of the entire record, we choose not to do so. Instead, finding ourselves in as advantageous a position as the district court to evaluate the record, we will conduct our own harmless error analysis.

IV The Error

Arizona law defines kidnapping as a class 2 felony, "unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest and prior to accomplishing [certain] enumerated offenses ... in which case it is a class 4 felony." Arizona Revised Statutes Sec. 13-1304(B). Although the state supreme court has yet to visit the issue, the state court of appeals has interpreted this statutory language to make the absence of voluntary release an element of second-degree kidnapping that the state must prove beyond a reasonable doubt. State v. McMillen, 154 Ariz. 322, 742 P.2d 823, 825 (1987) (citing State v. Sterling, 148 Ariz. 134, 713 P.2d 335, 337 (1985)).

Under Arizona law, this is an issue for the trier of fact to decide. It is...