Nicholas Givens v. Jean Hill

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NICHOLAS W. GIVENS, No. 09-35465
Petitioner - Appellant, D.C. No. 1:07-cv-00829-PA
v.
MEMORANDUM*
JEAN HILL, Supintendent at SRCI,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted June 8, 2010
Portland, Oregon
Before: FERNANDEZ, McKEOWN and PAEZ, Circuit Judges.
Nicolas W. Givens (Givens) appeals the denial of habeas relief by the
district court on the ground that he was denied effective assistance of counsel.
Givens was convicted of kidnapping in the first degree (Or. Rev. Stat. § 163.235),
robbery in the first degree (Or. Rev. Stat. § 164.415), and assault in the second
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
degree (Or. Rev. Stat. § 163.175) and sentenced to 180 months following a bench
trial. Givens argues that he received ineffective assistance of counsel at trial and at
sentencing in violation of the Sixth Amendment when his attorney failed to
investigate and present information regarding his mental illness and receipt of
electroconvulsive therapy (“ECT”). Although counsel’s performance was
deficient, Givens cannot show prejudice. Consequently, we affirm the denial of
habeas relief.
We have jurisdiction under 28 U.S.C. § 2253, and we review de novo the
district court’s denial of a petition for a writ of habeas corpus. Musladin v.
Lamarque, 555 F.3d 830, 835 (9th Cir. 2009). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214, a writ of habeas corpus may be granted only if the state court’s decision
“was contrary to or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
First, Givens argues that the state post-conviction court’s conclusion that
defense counsel provided constitutionally adequate assistance at trial is contrary to
or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668(1984). Under Strickland, we consider whether (1) his counsel’s performance fell
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below an objective standard of reasonableness, and (2) whether there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 687.
Givens argues that defense counsel’s performance fell below objective
standards of reasonableness when counsel failed to contact Dr. Maletzky, his
treating physician at Pacific Gateway Hospital, regarding the ECT treatments he
received in the days leading up to the incident. Evidence of Givens’s ECT
treatments and the therapy’s related side-effects, Givens argues, would have
supported a diminished capacity defense. See Or. Rev. Stat. § 161.300.
With respect to the first prong of Strickland, we agree that Givens’s
counsel’s performance was objectively unreasonable. Defense counsel knew,
based on his own expert’s report, that Givens had a long and troubling history of
mental illness, had been released following a month-long commitment from a
mental health hospital the night before the crime, and had received seven ECT
treatments over the course of the two weeks preceding the crime. “[A]ny
reasonably competent attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible defenses . . . .” Wiggins
v. Smith, 539 U.S. 510, 525 (2003). Yet, “despite tantalizing indications in the
record” that Givens may have been operating at diminished capacity at the time of
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the crime, defense counsel never contacted Dr. Maletzky nor investigated the
effects of ECT. Stankewitz v. Woodford, 365 F.3d 706, 720 (9th Cir. 2004). His
failure to do so was unreasonable both because it fell below what defense counsel
conceded was standard practice and because it was insufficient “in light of what
counsel actually discovered in the . . . records.” Wiggins, 539 U.S. at 525.
In light of the other substantial evidence admitted at trial, however, we agree
with the district court that Givens was not prejudiced by his counsel’s deficient
performance. Under AEDPA’s standard, the state court’s decision was not an
unreasonable application of Strickland, and we affirm the district court’s denial of
this claim.
Givens further argues that counsel’s assistance was constitutionally
inadequate at sentencing. At the sentencing hearing, the court stated that unless it
“heard something truly startling,” the court would sentence Givens to 180 months.
The default under Oregon law is that sentences arising out of a continuous and
uninterrupted course of conduct run concurrently. Or. Rev. Stat § 137.123(4).
Here, however, the trial court found that Givens had exhibited the requisite
“willingness to commit more than one criminal offense” under Or. Rev. Stat.
§ 137.123(5)(a) and that his pertinent offense “caused or created a risk of causing
greater or qualitatively different” injury to the victim under Or. Rev. Stat.
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§ 137.123(5)(b). Accordingly, the trial court exercised its discretion and ordered
that the robbery and kidnapping convictions run consecutively and that the
sentence for assault run concurrently, for a total sentence of 180 months. See State
v. Trice, 976 P.2d 569, 571 (Or. Ct. App. 1999).
Defense counsel presented no evidence of Givens’s mental illness at
sentencing. However, even if counsel had presented evidence of Givens’s
contemporaneous treatment with ECT and its severe side-effects, Givens still
would have met the condition for the discretionary imposition of a consecutive
sentence at § 137.123(5)(b). Under AEDPA’s “highly deferential” standards of
review, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), we cannot conclude that
the state court unreasonably applied Strickland by holding that there was no
reasonable possibility the additional evidence would have altered the sentencing
judge’s exercise of discretion. Consequently, we affirm the denial of Givens’s
sentencing claim.
Givens further argues that the district court erred in denying his request to
expand the state court record. Givens is not entitled to an expansion of the record
or evidentiary hearing unless he diligently attempted to develop the evidence in
state court, but was unable to do so. See Williams v. Taylor, 529 U.S. 420, 432
(2000). Because the factual predicate for Givens’s request was available at the
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time of the state post-conviction proceeding, and he did not diligently seek to
expand the record at that time, we affirm the district court’s denial of this request.
See id. at 435.
AFFIRMED.
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FILED
No. 09-35465. AUG 25 2010
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring and dissenting: U.S. COURT OF APPEALS
I concur in the court’s disposition of Givens’s claim of ineffective assistance
of counsel (IAC) at trial. I respectfully dissent, however, from the denial of habeas
relief as to Givens’s IAC sentencing claim. In my view, there is a reasonable
probability that had the trial court been presented with evidence of Givens’s
contemporaneous electroconvulsive treatments (ECT) and their severe-side effects,
the court would not have exercised its discretion to impose consecutive sentences
under Oregon Revised Statute section 137.123(5). See Strickland v. Washington,
466 U.S. 668, 694 (1984).
As the majority notes, the default under Oregon law is that sentences arising
out of a continuous and uninterrupted course of conduct will run concurrently. See
Or. Rev. Stat § 137.123(4). Here, however, the trial court found that Givens’s
offense conduct met the requirements of Oregon Revised Statute section
137.123(5). The trial court, however, never had the benefit of any evidence
regarding Givens’s then recent ECT treatments.
Unbeknownst to the court at sentencing, Givens was released, against the
advice of his doctors, from Pacific Gateway Hospital just hours before he assaulted
the victim. An affidavit from Givens’s treating physician reported that “Givens
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received seven ECT treatments” from March 14 to March 24. And that after he
was released, Givens committed the assault, “just two days after his last ECT
treatment.” The doctor further explained that because Givens’s “ex-girlfriend
agreed to sign him out and supervise him for the next week, we released him. . . .
Had we known he would not have been supervised, we would not have released
him because of the temporarily confused state the ECT treatments had brought
upon him.”
With respect to Givens’s ability to form the requisite intent at the time of the
crime, the treating physician explained that
72 hours after his last ECT treatment, Mr. Givens was still
suffering from the effects of the series of ECT treatments.
The lingering effects of those treatments would have
included, among other things, confusion and memory loss.
. . . While the ECT may not have hampered his ability to
tell right from wrong, his ability to appreciate the
consequences of his actions would have been severely
impaired. It would have been difficult for Mr. Givens to
appreciate the consequences of his actions. His capacity for
executive functions, including decision making, would
have been impaired on the day in question. During that
time, his memory for day-by-day or moment-by-moment
events would also have been impaired. His thought process
would not have been sequential.
The ECT evidence is sufficiently startling and the therapy’s mental side-
effects sufficiently severe, that there is a reasonable probability that evidence of the
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treatments would affect a trier of fact’s assessment of the threat Givens posed to
others as well as the benefit to Givens of additional custody time. There is also a
reasonable probability that the evidence of Givens’s ECT treatments would affect a
trier of fact’s determination as to whether Givens was capable at the time of the
incident of forming the requisite mens rea to willingly commit more than one
criminal offense, as required under Oregon Revised Statute section 137.123(5)(a).
See State v. Anderson, 145 P.3d 245, 249 (Or. Ct. App. 2006) (noting that
“‘willingness to commit more than one criminal offense’ is, as with any other
determination of culpable mental states, innately factual”). Finally, although
circumstances support each of the section 137.123(5) findings, the court had
discretion not to make those findings. Had the court been fully informed about the
ECT treatments and the lingering effects of such treatments, there is a reasonable
probability that the court would not have imposed consecutive sentences.
In light of the statutory default for concurrent sentences and the discretion
the court had in imposing consecutive sentences, counsel’s failure to present such
evidence “undermine[s] confidence in the outcome” of the sentence proceeding.
Strickland, 466 U.S. at 694. For these reasons, I would conclude that Givens was
prejudiced by his counsel’s failure to present such evidence and reverse the district
court’s denial of habeas relief on this claim.
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