Robidoux v. O'brien, 10–1239.

• Citation: 643 F.3d 334
• Decision Date: 28 June 2011
• Docket Number: No. 10–1239.,10–1239.
• Parties: Jacques ROBIDOUX, Petitioner, Appellant,v.Steven J. O'BRIEN, Superintendent, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

643 F.3d 334

Jacques ROBIDOUX, Petitioner, Appellant,

v.Steven J. O'BRIEN, Superintendent, Respondent, Appellee.

No. 10–1239.

United States Court of Appeals, First Circuit.

Heard March 8, 2011.Decided June 28, 2011.

Janet Hetherwick Pumphrey, for appellant.Susanne G. Reardon, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief, for appellee.Before BOUDIN, Circuit Judge, SOUTER,^* Associate Justice, and SELYA, Circuit Judge.BOUDIN, Circuit Judge.

Jacques Robidoux was convicted in Massachusetts state court for the murder of his eleven-month-old son for which he is serving a life sentence. He now seeks review of the district court's denial of his federal petition for habeas corpus. 28 U.S.C. § 2254 (2006). The central question is whether his trial counsel, Francis O'Boy, provided competent representation. A brief summary of background events and earlier proceedings is a preface to several difficult legal issues.¹

Robidoux's father led a religious sect that included Robidoux and his wife, Karen. One of his father's beliefs was that a number of ordinary institutions, including the legal system, the medical system, and mainstream religion, were invalid—indeed, among “Satan's seven counterfeit systems”—and members of the sect were instructed to eschew doctors and medicines.

On April 29, 1998, Robidoux's son, Samuel, was born without complication to his wife Karen. Samuel was healthy: he was described by family members as “active” and “robust”; in January 1999, when he was eight months old, he was reported to eat “willingly anything that was put in front of him”; and he was able to sit and had begun walking by grabbing onto furniture.

In early March 1999, one of Robidoux's sisters claimed to receive a “leading”—what the sect deemed a revelation from God to live life in a certain manner—that Karen was to nurse Samuel for ten minutes on each breast every hour and eliminate all other sources of food from Samuel's diet. This regime, endorsed by Robidoux's father, was adopted by Robidoux and his wife.

In consequence, Samuel began to fail from lack of proper nourishment. Samuel's deterioration was manifest—and its dreadful character and his suffering were portrayed at the later trial—but Robidoux and Karen did not take Samuel to a doctor or relax his dietary restrictions. Rather, Robidoux called a special meeting of the sect in late April 1999 to pray in the hope of improving Samuel's condition.

The next day, Robidoux informed the sect of Samuel's death. He concealed the body in the bulkhead of a sister's home and months later buried it in Baxter State Park in Maine. The police learned of events from an ex-member of the sect and recovered Samuel's remains about a year after the secret burial. A state grand jury in Massachusetts indicted Robidoux for first-degree murder; his wife was indicted for second-degree murder. Robidoux was tried, separately from Karen, in a nine-day trial in June 2002. O'Boy, who had practiced law in Massachusetts for nearly forty years, served as trial counsel for Robidoux.

At trial, O'Boy's main defense was to argue that starvation was not the proven cause of death. Robidoux's expert witness, a pediatric forensic pathologist, testified that Samuel may have died from any number of causes other than starvation. For the state, Maine's chief medical examiner testified that Samuel's cause of death was severe malnutrition due to starvation; a forensic anthropologist pointed to abnormalities in Samuel's bones consistent with malnutrition; and a pediatrician described Samuel's deterioration as consistent with malnutrition.

Robidoux himself chose to testify, admitting some facts helpful to the prosecution but also offering statements that might induce some sympathy. He admitted seeing adverse changes in Samuel after the dietary restrictions began and conceded that Samuel's deteriorating health was “based on his not getting enough nourishment.” However, Robidoux denied any intent to harm the child, saying that the death was a “product of mistakes and misunderstandings,” and he took responsibility for Samuel's death, saying that “[t]he buck stops here.”

During his closing argument, O'Boy attempted to turn Robidoux's candor to the defense's advantage, arguing that Robidoux was courageously attempting to “take the bullet for the rest of the family.” O'Boy implored the jury not to let Robidoux become the scapegoat for the prosecution, but rather to “judge the man.” He concluded his closing statement suggesting that Robidoux did not cause Samuel's death, that the cause of death remained debatable, and that, given his candor, Robidoux was no hardened criminal.

On June 14, 2002, one day after the case went to the jury, the jury found Robidoux guilty of first degree murder by reason of extreme atrocity or cruelty, and on that same day, the trial court sentenced Robidoux to life imprisonment. Robidoux ultimately filed two post-trial motions for relief; both were denied by the trial judge.

The first, prepared shortly after the verdict by O'Boy, was a motion for a required finding of not guilty or for a new trial; it alleged, inter alia, that the judge failed properly to charge the jury on Massachusetts' “third prong” malice element, discussed below. The second motion, prepared in 2005 by new counsel for Robidoux, was also for a new trial, and charged, inter alia, that O'Boy had provided inadequate representation. The second motion included three affidavits pertinent here.

One was by a psychologist who gave his opinion that Robidoux was unable to appreciate or understand that it was wrong to deprive his son of solid food, although he admitted that he had never interviewed Robidoux.² A second affidavit was by Robidoux himself, who stated that O'Boy “discussed with [him] the various ways to try [his] case, including the insanity defense,” but that there was “simply no way that [Robidoux] would talk to a doctor or a psychotherapist” prior to the trial because of his religious beliefs.

The third affidavit was by the director of the New England Institute for Religious Research, who had been the court-appointed guardian ad litem in the care and protection case brought by Massachusetts against the sect. Based on interviews with Robidoux and other materials, the affiant gave his opinion that undue influence was being exercised over Robidoux by his father and other sect members that made it impossible for counsel to present an adequate defense.

In rejecting the motion, the state trial judge found that trial counsel had properly defended the case. The judge said that, based on her own observation of Robidoux in court and the cogency of his answers and trial testimony, he was entirely competent to stand trial. The trial judge also had earlier said that Robidoux's rambling eve-of-trial motion to represent himself—described in more detail below—was a tactic to secure a delay. On direct appeal, the SJC upheld Robidoux's conviction.

Robidoux then sought federal habeas relief, 28 U.S.C. § 2254, which the federal district court in turn denied. Robidoux v. O'Brien, Civ. No. 08–11046–RGS, 2010 WL 559107 (D.Mass. Feb. 11, 2010). However, the court granted a certificate of appealability, 28 U.S.C. § 2253(c), as to whether O'Boy had provided ineffective assistance in failing “to request a mental evaluation and a competency hearing”; on Robidoux's motion, we expanded the certificate to include trial counsel's failure to press a defense based on insanity or diminished capacity.

All three of these issues were addressed by the SJC on the merits and the claims were rejected; indeed, the SJC affirmed that Robidoux had been competent to stand trial. Customarily, where the state court has addressed the constitutional issues and applied standards at least as generous to the defendant as those imposed by the federal constitution, federal review is limited in two respects by the current habeas statute.

First, as to law or the application of legal standards to settled facts, habeas relief cannot be granted unless the defendant shows that the state court's decision was “contrary to” or “involved an unreasonable application of” clearly established federal law. 28 U.S.C. § 2254(d)(1). Second, if the issue is one of fact, the defendant must show that it “was based on an unreasonable determination of the facts” in light of the record before it. Id. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) (clear and convincing evidence standard).³

Robidoux's competency. Each of the three certified questions on appeal concerns O'Boy's representation rather than Robidoux's competence to stand trial. And, while the second motion in state court focused primarily on O'Boy's failure to pursue an insanity defense, Robidoux's brief in this appeal has shifted the emphasis to O'Boy's failure to seek a competency hearing. Robidoux's competency itself is not the issue before us, save as evidence as to how it may bear on O'Boy's responsibilities or might furnish a basis for finding a lack of prejudice.

The governing federal standard for all three of Robidoux's claims is that set forth in Strickland, which requires proof both that counsel fell below minimum standards of representation and that there is a reasonable probability that the deficiency altered the outcome of the case. See Strickland v. Washington, 466 U.S. 668, 687–96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The choice whether to pursue an insanity or diminished capacity defense turns in part on defense counsel's choice of strategy, and for obvious reasons counsel's strategy judgments are ordinarily given special deference. See id. at 689, 104 S.Ct. 2052; Genius v. Pepe, 147 F.3d 64, 66 (1st Cir.1998), cert. denied, 526 U.S. 1121, 119 S.Ct. 1773, 143 L.Ed.2d 802 (1999).

By contrast, where there are substantial indications that the defendant is not competent to stand trial, counsel is not faced with a strategy choice but has a settled obligation...