                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          July 18, 2005
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

     v.                                                   No. 03-5148
                                                    (D.C. No. CV-02-862-C)
    LAWRENCE RINGER,                                      (N.D. Okla.)

                 Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.


          Appellant Lawrence Ringer appeals from the district court’s order denying,

without an evidentiary hearing, his pro se motion under 28 U.S.C. § 2255 seeking

to vacate, set aside, or correct the sentence that was imposed upon him pursuant

to his conviction of two counts of bank robbery and one count of carrying a



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
firearm during a crime of violence. In our March 23, 2004, order we granted

Ringer’s motion to proceed in forma pauperis on appeal and granted a certificate

of appealability on the issue of whether Ringer’s counsel was ineffective for

failing to pursue an insanity defense. Following review, we exercise our

jurisdiction under 28 U.S.C. § 2253(a) and hold the district court erred in denying

Ringer’s motion without an evidentiary hearing.    1



                                           I

      Ringer’s convictions arise out of two bank robberies he committed on

March 23, 1999, and May 21, 1999. Ringer was sentenced on May 15, 2000, to a

total of 204 months imprisonment. On direct appeal, this court affirmed Ringer’s

conviction in an unpublished Order and Judgment.         See United States v. Ringer , 9

Fed. Appx. 844 (10th Cir. May 22, 2001) (unpublished),        cert. denied , 534 U.S.

1032 (2001).

      Ringer then filed his § 2255 motion asserting, among other claims, that his

trial counsel was ineffective for failing to investigate the possibility of an insanity

defense. Ringer specifically requested that the district court hold an evidentiary

hearing on the question.


1
        Ringer’s notice of appeal was untimely, although he did file a motion for
extension of time under Fed. R. App. P. 4(a)(5) before the expiration of the filing
deadline. This court partially remanded the case to the district court for ruling
and the district court granted the same. Therefore, this court has appellate
jurisdiction. See Hinton v. City of Elwood , 997 F.2d 774, 778 (10th Cir. 1993).

                                          -2-
      The record shows that prior to his trial, Ringer was ordered to undergo a

competency evaluation at the Federal Medical Center in Springfield, Missouri.

The report from that evaluation, which Ringer attached to his § 2255 motion,

stated that Ringer reported that he “first began seeing a psychologist at age five,

after attempting to choke a girl in his kindergarten class”; that his first

hospitalization on psychiatric grounds was in 1988, following a manic episode;

and that he had been “‘hospitalized more than 150 times for this condition.’” R.

Doc. 72, Ex. B at 4. Under “Clinical Formulation” the report stated:

      Mr. Ringer has an extensive history of being hospitalized for a
      mental health condition, specifically, a bipolar disorder. My review
      of records from the Georgia Regional Hospital and Parkside
      Behavioral Health Services and Hospital, indicated he has
      consistently been diagnosed as suffering from a bipolar disorder.
      There have also been times in which he has exhibited possible
      psychotic symptoms such as delusions of persecution, delusions of
      grandiosity, and auditory hallucinations. He has received several
      medications for this condition, but typically has been prescribed
      various dosages of lithium, Prolixin, Ativan, and Cogentin. There
      was documentation that Mr. Ringer’s condition had at times,
      worsened such that he became very agitated, hostile, and combative.
      There was at least one report in which he assaulted another
      individual while actively manic.

      Documentation from previous hospitalizations suggested that he
      sporadically complied with medication and did not consistently
      attend scheduled therapy appointments. There were also notations
      suggesting that when Mr. Ringer does not comply with medication,
      he quickly decompensates and becomes extremely manic and
      potentially psychotic.




                                           -3-
Id. at 8-9. The evaluating psychologist’s diagnoses were “Axis I: Bipolar

Disorder[,] Cannabis Abuse” and “Axis II: Antisocial Personality Disorder.”         Id.

at 9.

        As to competency, the psychologist found that Ringer’s bipolar disorder did

not, at the time, prevent him from participating in his trial. The report went on,

however, to state:

        It should be noted . . . that predictions concerning [Ringer’s] future
        mental state and behavior are more difficult. Mr. Ringer has an
        extensive history of suffering from a bipolar disorder and becoming
        combative, assaultive, and psychotic when he is not receiving his
        medication. Based on my review of the records, Mr. Ringer has not
        received his medication for the bipolar disorder since March 1999.
        Throughout his evaluation, Mr. Ringer refused any medication for
        this condition. Thus, I would consider his prognosis to be guarded.
        Although it is anticipated that Mr. Ringer will remain competent to
        proceed for at least the near future, his condition is fragile, and he
        could decompensate before his competency hearing.

Id. at 11.

        In his § 2255 motion, Ringer alleged that his trial counsel “did nothing

except depend solely upon the FORENSIC REPORT” and that counsel “never

even had [Ringer] sign a Release Form to authorize his receipt of [Ringer’s]

Mental Health Records from [the hospitals in which Ringer was previously

treated].” R. Doc. 72 at 3a. Ringer went on to claim that his counsel failed to:

        consult with, hire, or utilize an independent Psychiatrist . . . in a
        reasonable investigation of the existence of an Insanity Defense . . . .
        All of this despite the fact that [Ringer] literally begged him to do so.
        It was [Ringer’s] persistent objection to the limited nature of the

                                           -4-
      ORDER FOR COMPETENCY EVALUTATION, as well as, the
      subsequent FORENSIC REPORT . . . that neither were concerned
      with the more pertinent question [Ringer] wanted presented to the
      Court and a Jury: Whether [Ringer] Was Insane [Or Not Legally
      Responsible] When He Committed The Crimes Charged?

Id. (emphasis in original).

      The district court did not require the government to file a response to

Ringer’s § 2255 motion and denied relief in its order dated June 11, 2003. The

district court found that Ringer’s ineffective assistance of trial counsel claims

were procedurally barred because he had not raised them on direct appeal. As we

noted in our March 23, 2004, order, this was error.      See Massaro v. United States ,

538 U.S. 500, 503-04 (2003);     United States v. Galloway , 56 F.3d 1239, 1240

(10 th Cir. 1995) (en banc). In its order, however, the district court proceeded to

address the merits of Ringer’s claim.   2
                                            The district court found that since Ringer

told the teller during the first bank robbery not to give him “bait money” and to

keep her hands where he could see them, and Ringer brandished a weapon and ran

from the scene of the crime after getting the money during the second bank

robbery, an insanity defense could not have been successful, and trial counsel’s




2
       After holding that Ringer’s claims were procedurally barred, the district
court attempted to determine whether Ringer could show (1) cause and prejudice,
or (2) a fundamental miscarriage of justice, such that the procedural bar should
not be enforced. It was in this erroneous context that the district court considered
the merits.

                                            -5-
failure to investigate such a defense was objectively reasonable. It therefore

denied relief.

                                             II

       “Review in a section 2255 habeas action entails a two-step inquiry: (1)

whether the defendant is entitled to relief if his allegations are proved; and (2)

whether the district court abused its discretion by refusing to grant an evidentiary

hearing.” United States v. Whalen , 976 F.2d 1346, 1348 (10th Cir. 1992). “When

reviewing a district court’s denial of a § 2255 petition, we review questions of

law de novo and questions of fact for clear error.”   United States v. Harms ,

371 F.3d 1208, 1210 (10th Cir. 2004).

       Ringer alleges his trial counsel was ineffective for failing to investigate the

possibility of an insanity defense.

       To prevail on a claim of ineffective assistance of counsel, a
       convicted defendant must show that counsel’s representation fell
       below an objective standard of reasonableness, and that the deficient
       performance prejudiced the defendant. To establish prejudice, the
       defendant must show that there is a reasonable probability that, but
       for counsel’s unprofessional errors, the result of the proceeding
       would have been different.

United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997) (quotations and

citations omitted). The district court correctly noted that “[t]o prevail on an

insanity defense in a federal criminal case, a defendant must show that, ‘at the

time of the commission of the acts constituting the offense, the defendant, as a


                                            -6-
result of a severe mental disease or defect, was unable to appreciate the nature

and quality or the wrongfulness of his acts.’” R. Doc 76 at 4 (quoting 18 U.S.C.

§ 17 (2003)). Despite the allegations made by Ringer, the district court found that

Ringer’s actions during the robberies showed conclusively that an insanity

defense could not prevail and that it was objectively reasonable for trial counsel

to refuse to investigate an obviously unviable defense. We disagree.

       [S]trategic choices made after thorough investigation of law and
       facts relevant to plausible options are virtually unchallengeable; and
       strategic choices made after less than complete investigation are
       reasonable precisely to the extent that reasonable professional
       judgments support the limitations on investigation. In other words,
       counsel has a duty to make reasonable investigations or to make a
       reasonable decision that makes particular investigations unnecessary.
       In any ineffectiveness case, a particular decision not to investigate
       must be directly assessed for reasonableness in all the circumstances,
       applying a heavy measure of deference to counsel’s judgments.

Strickland v. Washington , 466 U.S. 668, 690-91 (1984).

       Here the district court’s analysis rests entirely on its determination that

Ringer’s actions during the robbery made an insanity defense unviable despite the

fact that Ringer has a long history of mental illness–including bouts with

psychosis and auditory hallucinations–and that he apparently was discharged from

a mental institution with two weeks of medication a month prior to committing

the bank robberies. There is no per se rule that a trial counsel is excused from

investigating a possible insanity defense, in this case for an obviously mentally ill

client, if any evidence exists that he attempted to evade capture.   See, e.g. , United

                                             -7-
States v. Kauffman , 109 F.3d 186 (3d Cir. 1997) (trial counsel provided

ineffective assistance by not investigating insanity defense despite counsel’s

testimony that he thought the defendant’s actions in hiding stolen guns in a

remote barn and negotiating the sale of one showed the defendant appreciated the

wrongfulness of his conduct). Because of trial counsel’s failure to investigate,

there is no evidence–other than the materials from the competency evaluation

which did not address the time period in question–to counter Ringer’s allegation

that an investigation would have revealed he was legally insane during the

robberies.

      Which brings us to the second step of our analysis: Did the district court

abuse its discretion in failing to hold an evidentiary hearing? “Under the abuse of

discretion standard, a trial court’s decision will not be disturbed unless the

appellate court has a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.”   McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir.

1991) (quotation omitted). Section 2255 provides that, “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to

no relief, the court shall cause notice thereof to be served upon the United States

attorney, grant a prompt hearing thereon, determine the issues and make findings

of fact and conclusions of law with respect thereto.” Because Ringer’s actions


                                          -8-
did not conclusively make an insanity defense unviable, it is impossible to tell

whether Ringer should prevail on his ineffective assistance of counsel claim

without the aid of an evidentiary hearing. While an evidentiary hearing might

show the futility of an insanity defense or that trial counsel determined an

investigation was not needed for reasons other than Ringer’s actions during the

robberies, we cannot assume this to be the case.

      Therefore, we find the district court abused its discretion in refusing to

hold an evidentiary hearing, we    REVERSE the district court’s order denying the

motion without a hearing, and we     REMAND the case to the district court so that

counsel may be appointed to Ringer and an evidentiary hearing may be held.     3




                                                     Entered for the Court


                                                     Carlos F. Lucero
                                                     Circuit Judge




3
       Under Rule 8(c) of the Rules Governing Section 2255 Proceedings, “[i]f an
evidentiary hearing is required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g).”       See
Swazo v. Wyo. Dep’t of Corr. State Pen. Warden       , 23 F.3d 332, 333 (10th Cir.
1994) (“[T]here is a right to counsel in a habeas case when the district court
determines that an evidentiary hearing is required.”).

                                          -9-
