Hibbler v. Benedetti

• Decision Date: 10 September 2012
• Docket Number: No. 11–16683.,11–16683.
• Parties: Kenneth Patrick HIBBLER, Petitioner–Appellant, v. James BENEDETTI; Nevada Attorney General, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

693 F.3d 1140

2012 Daily Journal D.A.R. 12,698

Kenneth Patrick HIBBLER, Petitioner–Appellant,

v.James BENEDETTI; Nevada Attorney General, Respondents–Appellees.

No. 11–16683.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2012.

Filed Sept. 10, 2012.

Ryan Norwood, Assistant Federal Public Defender, Las Vegas, NV, for petitioner-appellant Kenneth Patrick Hibbler.

Jared M. Frost, Deputy Attorney General, Carson City, NV, for respondents-appellees James Benedetti and Nevada Attorney General.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 3:07–cv–00467–RCJ–VPC.

Before: DOROTHY W. NELSON, JOHNNIE B. RAWLINSON, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Kenneth Hibbler claims that he was deprived of his Sixth Amendment right to effective assistance of counsel because his counsel induced him to enter a guilty plea at a time when counsel should have known that Hibbler was incompetent.¹ The Nevada Supreme Court rejected this claim, finding that Hibbler's allegations were belied by the record. This appeal requires us to determine whether it was unreasonable for the state court to make this finding absent an evidentiary hearing. We hold that it was not.

I

In the early morning hours of July 24, 2003, Kenneth Hibbler's eight-year-old daughter awoke in her father's apartment to find that her wrist had been slit. She asked her father for help. He told her to go back to sleep and, feeling somewhat groggy, she did.

Hibbler's daughter awoke sometime later to a knock on the door. It was Clark County Constable Coleman, there to evict Hibbler from his apartment. Hibbler went to the door and looked through the peephole. Rather than answering the door, he returned to his daughter, told her to be quiet, and cut her throat with a razor. He then took her to the bathroom, cut her throat again, and then carried her to the bedroom, where he attempted to cut her throat a third time, telling her it was for her own good. This time she fled.

At this point, Constable Coleman let himself into the apartment, where he encountered father and daughter both covered in blood. Coleman removed Hibbler's daughter from the apartment and secured medical care for her. In the meantime, Hibbler barricaded himself in the bathroom. By the time Hibbler was eventually removed from the bathroom, he had slit his own throat. Both Hibbler and his daughter survived the incident, but their injuries required extensive surgery and Hibbler's daughter was left with disfiguring scars on her neck.

Authorities arrested Hibbler and charged him with first degree kidnapping with use of a deadly weapon, attempted murder with use of a deadly weapon, and battery with use of a deadly weapon resulting in substantial bodily harm. The state appointed public defenders Jeffrey Rue and Amy Coffee to represent Hibbler.

Early in the proceedings, Rue requested a psychiatric evaluation to determine whether Hibbler was competent to stand trial and assist in his defense. Dr. Dodge Slagle, DO, performed the competency evaluation on August 18, 2003. Hibbler reported that he understood that he was facing serious charges. He was able to accurately explain the role of the judge, prosecutor, and defense counsel, and he understood the use of plea bargains. Dr. Slagle concluded that Hibbler was competent.

On May 5, 2005, after lengthy plea negotiations, Hibbler pleaded guilty to one count of child abuse and neglect with substantial bodily harm. In return, the state dropped the other charges against Hibbler and stipulated to a 5 to 15–year sentence. The plea agreement stated that Hibbler was pleading guilty because he wanted to avoid the possibility of being convicted of additional, more serious, charges and spending additional time in prison. It stated that Hibbler understood the sentencing consequences of his plea, that he had not been guaranteed any specific sentence, and that he was waiving specified constitutional rights. It further stated that Hibbler had discussed the charges and the plea agreement with his attorneys, “believe[d] that pleading guilty and accepting this plea bargain [was] in [his] best interest,” was entering his plea voluntarily, and was not under the influence of any drug that would “in any manner impair [his] ability to comprehend or understand this agreement or the proceedings surrounding [the] entry of this plea.”

Attached to the plea agreement was a certificate of counsel, signed by Rue, averring that, “to the best of [Rue's] knowledge and belief,” Hibbler was competent and understood the charges against him and the consequences of pleading guilty, was entering the plea voluntarily, and was not under the influence of any intoxicating drugs.

At the plea hearing, the state district court sought to ensure that Hibbler understood the nature of the plea agreement and the charges against him, and that Hibbler was making a knowing and voluntary plea. Hibbler assured the court that he understood the plea negotiations and was in agreement with them. The court confirmed that Hibbler had received a copy of the amended information and asked whether Hibbler had any questions about the nature of the charges. Hibbler stated that he had already asked his lawyers about the stipulated sentence and that he understood the charges. He then entered his plea of guilty. The court explained that the offense Hibbler was pleading to was a felony and that, pursuant to the stipulation, Hibbler would receive a 15–year sentence and would “have to serve at least five years before [he was] even eligible for parole.” Hibbler confirmed that he understood and that he had read and understood the agreement before he signed it. The court then asked if Hibbler had any further questions, to which Hibbler replied: “Just the time served that I have already served, will that be added to that?” The court assured Hibbler that he was entitled to credit for time served, and Hibbler stated that he had no further questions.

Because Hibbler intended to plead guilty but maintain his factual innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 38 n. 10, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the court then asked the state to make a proffer of the factual basis for the charges. The state obliged. The court then turned back to Hibbler, seeking to assure he understood the nature of an Alford plea. The court explained that the purpose of the state's proffer was to assure the court that there was a factual basis for the plea, but that Hibbler did not have to admit the truth of those allegations, and asked Hibbler if he understood. Hibbler responded, “Not really.” The court then gave a more detailed explanation, and Hibbler confirmed that he understood.

Finally, the court asked Hibbler whether he had an opportunity to discuss the plea with his lawyers and whether he believed the plea was in his best interest. Hibbler confirmed that both were true, and that he was entering his plea “because of the possible much greater sentence if [he] were convicted at trial on the original charges.” Satisfied, the court accepted Hibbler's plea: “I will find that the Defendant's plea of guilty pursuant to the Alford decision is freely and voluntarily made. I will find that he understands the nature of the offense, the consequences of his plea, and I will refer it for a pre sentence report.”

When the matter came up for sentencing, Rue informed the court that Hibbler had expressed a desire to withdraw his plea. The court addressed Hibbler directly, asking if this was correct, and Hibbler confirmed, stating that he wanted to withdraw his plea because of “differences” between himself and counsel and because on the day that he pled guilty he “really was not at [his] full mental capacity.” According to Hibbler, when he entered his plea, he was acting on the advice of his attorneys, and “kept saying yes, yes, yes, whatever” but he “had been up for two days” and was “on psychiatric drugs.” The court granted a continuance.

On June 29, 2005, when the case came back before the court, Hibbler, now represented by substitute counsel, informed the court that he would not be moving to withdraw his plea.² Sentencing was continued once more, and on July 25, 2005, the court sentenced Hibbler to the stipulated term of five to fifteen years.

On May 15, 2006, Hibbler filed a petition for a writ of habeas corpus with the Clark County District Court, claiming, among other things, that Rue and Coffee were constitutionally ineffective for failing to assure that he was competent to enter his plea and thereby allowing him to enter a plea that was not knowing and voluntary. He alleged that, at the time he entered his plea, he was “on very powerful anti-psychotic medications, and exhibited many signs that he was mentally unstable.” According to Hibbler, he was only able to get through the plea colloquy because “counsel stood beside [him] at the plea hearing, and directed him in everything that he should say.” “Everytime a question was asked by the court, [he] would look over at counsel, and counsel would direct [him] to nod his head and say ‘yes.’ ” The state opposed Hibbler's petition, and Hibbler responded by requesting an evidentiary hearing on this claim. On August 15, the Clark County court denied the petition without holding an evidentiary hearing, concluding that Hibbler's allegations were “bare or belied by the record and otherwise unworthy of belief.”

Hibbler appealed to the Nevada Supreme Court, which affirmed in a reasoned decision. As to Hibbler's ineffective assistance claim, the court concluded that the evidence did not support Hibbler's assertion “that defense counsel ... had reason to doubt appellant's competency when he entered his plea.” Hibbler had “appropriately responded to the district court's questions” during the plea hearing “and requested clarification when he did not understand the...