Weekley v. Jones, 94-2064

• Decision Date: 24 April 1996
• Docket Number: No. 94-2064,94-2064
• Citation: 76 F.3d 1459
• Parties: Jimmie L. WEEKLEY, Appellee, v. Jimmie JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1459

76 F.3d 1459

Jimmie L. WEEKLEY, Appellee, v. Jimmie JONES, Appellant.

No. 94-2064.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1995.

Decided Feb. 23, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied April

24, 1996. ^*

Appeal from the United States District Court for the Eastern District of Missouri; George Gunn, Judge.

Stacy Louise Anderson, Asst. Attorney General, Jefferson City, Missouri, argued, for appellant.

Michael Herman Maguire, Cape Girardeau, Missouri, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, and HENLEY, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This protracted litigation grew out of tragic events that occurred more than seventeen years ago when Jimmie L. Weekley evidently killed his wife with a shotgun and then turned the weapon on himself in an unsuccessful attempt to commit suicide. A jury convicted him of second-degree murder in 1980, a judge (the jury being unable to decide on a sentence) sentenced him to life in prison, and, after his conviction was affirmed on appeal, see State v. Weekley, 621 S.W.2d 256 (Mo.1981), Mr. Weekley twice petitioned for post-conviction relief on various grounds in the state courts of Missouri and was turned away.

Mr. Weekley then applied for habeas corpus relief in the appropriate federal district court under 28 U.S.C. § 2254(a), and his petition was denied. Our court reversed this denial on appeal, see Weekley v. Jones, 927 F.2d 382 (8th Cir.1991), and remanded to the district court for further proceedings with respect to whether Mr. Weekley's jury was constitutionally constituted, whether his mental condition was such that he was denied due process when he was put to trial, and whether his counsel was ineffective for not asserting that he was incompetent to stand trial and for not going forward with an insanity defense. On remand, Mr. Weekley abandoned his claim that his jury was unconstitutionally composed, but the district court granted the writ on his other claims. On appeal, a panel of our court affirmed the district court's grant of the writ on the ground that counsel was ineffective for not pursuing an insanity defense, but it reversed that portion of the district court's judgment that granted relief on other grounds. See Weekley v. Jones, 56 F.3d 889 (8th Cir.1995). We granted the state's petition for rehearing en banc and vacated the panel's decision.

I.

For the reasons stated in the original panel decision, we reverse the holding of the district court that Mr. Weekley was entitled to relief on his due process claim and because his counsel was ineffective for not asserting that he was incompetent to stand trial. See Weekley v. Jones, 56 F.3d 889, 894-95 (8th Cir.1995).

II.

A good deal more complex and troubling is Mr. Weekley's claim that his counsel was ineffective by persuading Mr. Weekley to withdraw his defense of "not guilty by reason of insanity" and proceeding to trial on a simple plea of "not guilty." Mr. Weekley has occasionally characterized his claim as one that his lawyer "coerced" him into changing his plea, but we think that what he means by that is that his lawyer did not properly investigate the viability of such a defense and did not advise him of the possibility of proceeding simultaneously with pleas of "not guilty" and "not guilty by reason of insanity."

Mr. Weekley's counsel tells an entirely different story. He asserts that it was Mr. Weekley himself who insisted on withdrawing the insanity plea because he did not want to run the risk of receiving an indeterminate sentence in a mental institution. Mr. Weekley preferred, his counsel said, to run the risk of a fixed sentence in a prison. The district court made no specific finding on this conflict in the testimony, although it at least intimated that it did not believe Mr. Weekley's counsel entirely, because it held that counsel "fell below the standard [of reasonably competent representation of his client] by deciding when he was first hired that the matter would be tried on a plea of not guilty." The district court also found counsel ineffective for not pursuing simultaneously a defense of "not guilty" and "not guilty by reason of insanity," especially since there was no plausible defense on the facts.

At the time that counsel took up his representation of Mr. Weekley, he knew that two psychiatrists, Dr. E. Corales and Dr. Sadashiv Parwatikar, had examined Mr. Weekley and that both of them had determined that he suffered from paranoid schizophrenia. Counsel also knew that Dr. Corales had been unable to make a determination as to Mr. Weekley's probable responsibility at the time that he committed the murder, but that Dr. Parwatikar had opined, in words that more or less tracked the relevant Missouri statute, that when Mr. Weekley committed the offense he "did not know or appreciate the nature, quality or wrongfulness of his conduct and, thus, he was incapable of conforming his conduct to the requirements of the law." See Mo.Ann.Stat. § 552.030.1 (subsequently amended to omit the last phrase). There was therefore some indication that a defense based on mental defect was available to Mr. Weekley.

We emphasize that all this is beside the point if counsel's intention was to protect Mr. Weekley from an indeterminate sentence in a mental institution and if such a strategy was a reasonable one from a professional perspective. The first condition seems to be admitted by all: No one has contradicted the fact that the avoidance of an indeterminate sentence was counsel's aim, and, indeed, the district court did not find otherwise. We see nothing inherently unprofessional, moreover, about such a strategy. At trial, counsel did make some effort to cast doubt on Mr. Weekley's guilt (there were no eyewitnesses), and Mr. Weekley did not admit that he had killed his wife (he testified that he blacked out), but counsel endeavoured mainly to make Mr. Weekley out a sympathetic character because of his self-inflicted wounds and evident physical difficulties in an attempt to influence the jury to give him a light sentence.

Such a strategy, it seems to us, would be professionally irresponsible only if Mr. Weekley were opposed to it or were not adequately informed of his choices, including the choice to proceed on a combined plea of "not guilty" and "not guilty by reason of insanity," and would have chosen to proceed on the basis of a combined plea. See LaRette v. Delo, 44 F.3d 681, 685-86 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995). Mr. Weekley testified below that his counsel did not adequately explain his options to him, but counsel asserted otherwise by way of deposition. The district court again made no finding of fact on this conflict in the testimony. But during trial, in a lengthy colloquy that has been extensively dissected in previous opinions of this court, and by the court below, Mr. Weekley admitted on the record that he did indeed understand his pleading options (which the trial court carefully described to him) and at no time expressed dissatisfaction with his attorney. Indeed, he affirmatively stated during this colloquy that he was relying on his counsel and later during the trial he expressed complete satisfaction with his counsel's representation. We think that in those circumstances a finding of fact that accepted Mr. Weekley's self-serving and late-blooming protestations would have been difficult to uphold on appeal. We mean it in all sincerity when we say that Mr. Weekley's sentence must necessarily have caused him some retroactive dissatisfaction with counsel's efforts.

Even if counsel in this case had failed to provide Mr. Weekley with effective assistance, however, we do not believe that he has shown prejudice. Mr. Weekley is not entitled to relief unless "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Despite the use of the word "probability" in this formulation, the Supreme Court has explained that a reviewing court does not have to believe that an alternative strategy would more likely than not have succeeded. Instead, the Court indicated that a "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. We are thus to assume in this case that counsel had pursued a defense that at least included a plea of "not guilty by reason of insanity" and ask ourselves whether success with it would have been reasonably probable. We do not believe that it would have been for the following reasons.

1. We are met at the outset with the difficulty that there are some material facts missing from the hypothetical posture into which we must put ourselves in order to answer the relevant question. For instance, we do not know what other psychiatrists might have said about Mr. Weekley's condition at the time he committed the offense. If counsel had had Mr. Weekley examined by another psychiatrist (as the district court indicated reasonably competent counsel was obligated to do), and that psychiatrist had found Mr. Weekley mentally sound at the time he committed the offense, that could have done considerable damage to Mr. Weekley's case, because, under Missouri law, that finding would have to have been communicated to the prosecution and could have been used against Mr. Weekley at trial. See Mo.Ann.Stat. § 552.030.3, § 552.030.5.

Nor do we know exactly how Dr. Parwatikar would have testified or, indeed, whether he would have testified at all. (Under Missouri law, Dr. Parwatikar's written report itself was admissible into evidence. See id.) Mr. Weekley has never made an offer of proof on Dr. Parwatikar's availability or on the contents of his testimony....