Hollenbeck v. Estelle
| Decision Date | 05 April 1982 |
| Docket Number | No. 81-1141,81-1141 |
| Citation | 672 F.2d 451 |
| Parties | Kenneth Lee HOLLENBECK, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Albert S. Low, Jr., Houston, Tex., for petitioner-appellant.
Joe Foy, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before COLEMAN, POLITZ and GARWOOD, Circuit Judges.
Convicted of murder with malice in Texas state court, 1 Kenneth Lee Hollenbeck seeks federal habeas corpus relief under 28 U.S.C. § 2254, contending that he was denied the right to testify and his trial was marred by ineffective assistance of counsel. The district court denied relief. We affirm.
On the night of February 28, 1973, Hollenbeck inauspiciously engaged in an extended drinking bout in a Dallas bar with a former employee, Joe Hernandez. The two men left the bar in Hollenbeck's new car, with Hollenbeck driving. Hollenbeck had refused Hernandez permission to drive because of Hernandez's condition; he had been drinking for several hours before Hollenbeck joined him at the bar. 2
In response to Hernandez's inquiry, Hollenbeck revealed that there was a fifth of scotch in the glove compartment. Hernandez consumed approximately half of the bottle without pausing. He then took Hollenbeck's .357 magnum single-action revolver from the glove compartment and began waving it around. Hernandez cocked the pistol, pointed it at Hollenbeck and demanded that he be allowed to drive.
Hollenbeck stopped the vehicle, exited and walked around its rear. Hernandez slid over to the driver's side and placed the pistol on the console between the seats. After opening the passenger door, Hollenbeck picked up the pistol, pointed it at Hernandez and said, "Is this what you want or is this it?" Hernandez reached for Hollenbeck's hand. Hollenbeck fired, emptying the six-shot revolver. Five of the bullets struck and killed Hernandez. The sixth was found in the interior of the auto.
At the beginning of the murder trial, out of the presence of the jury, the judge told Hollenbeck that he had a right to testify on his own behalf or he could decline to do so. Hollenbeck chose not to testify, a decision concurred in by his retained counsel. Hollenbeck claims that during the course of the trial, he told his attorney he had changed his mind and wanted to testify. His counsel was opposed. Hollenbeck made no further effort to testify; he relied on his attorney's advice. Hollenbeck did not inform the trial judge that he desired to testify.
Hollenbeck maintains on appeal that he was improperly denied his right to testify, and that his counsel was ineffective, principally for failing to introduce evidence of self-defense.
The right to testify has been recognized. "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). See Faretta v. California, 422 U.S. 806, 834 n.45, 95 S.Ct. 2525, 2540 n.45, 45 L.Ed.2d 562 (1975); Wright v. Estelle, 572 F.2d 1071, 1074 (5th Cir. 1978) (en banc) (Godbold, J., dissenting).
The state trial judge informed Hollenbeck of his right to testify, in a model of appropriate judicial concern for the constitutional rights of a criminal defendant. The explication by Judge Thomas B. Thorpe is worthy of reproduction in full:
THE COURT: All right. Mr. Hollenbeck would you and your attorney come forward here, please, for just a minute?
Realizing that you have two very competent attorneys, there's not much reason for me to take this up with you, but out of an abundance of caution, I want to advise you that the law provides that you have a right to testify and no one can keep you from testifying if you want to. Do you understand that?
Now, if you choose not to testify, I will instruct the jury that they can't use that against you in any way and that they can't speculate as to why you did not testify or what you might have said had you chosen to testify.
Now, do you have any questions concerning that phase of the case, your right to testify or remain silent?
There can be no serious suggestion, in light of this exchange, that Hollenbeck was unaware of his right to testify or to remain silent. Nor can it be gainsaid, based on the facts reflected in the state court record and in the record of the federal habeas proceeding, that Hollenbeck knowingly and intelligently waived the right to testify....
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