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Sanders v. White

United States District Court, E.D. Kentucky, Central Division, Lexington

February 18, 2015

DAVID LEE SANDERS, Petitioner,
v.
RANDY WHITE, Warden, Respondent.

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

In June 1987, a Kentucky jury convicted Petitioner David Lee Sanders of murdering James Brandenburg and Wayne Hatch. The jury sentenced Sanders to death. Sanders admits that he killed both men, but claims that he was insane at the time. He alleges in his habeas petition that numerous errors-errors by the judge, jury, appellate courts, and counsel alike-produced an unconstitutional conviction and death sentence. R. 73. He seeks to supplement those allegations through motions for additional discovery, R. 78, an evidentiary hearing, R. 79, funds for a clinical psychologist, R. 80, and an expansion of the record, R. 97 (collectively, the "evidentiary motions"). The Court denied the motions without prejudice, choosing instead to address them concurrently with Sanders' habeas petition. See R. 110. Sanders presents a litany of claims, some with multiple subparts. All told, he identifies thirty-three errors that he believes entitle him to relief. On all thirty-three, Sanders is not entitled to habeas relief, nor is he entitled to the additional evidence he seeks.

BACKGROUND

On January 28, 1987, Sanders walked into Boone Variety Store to buy a few items and to use the phone. He called his parents to find out if he needed to help his father work on a barn that day-he did-then called his wife to let her know that he would be helping his father and spending the night with his parents. Finished with his business in the store, he walked outside to his truck, retrieved two guns, and reentered the store. He shot and killed the proprietor, James Brandenburg, and a customer, Wayne Hatch. Sanders killed both men with a single shot to the back of the head. Sanders got in his truck and went home, tossing some of Hatch's items out of the window and off of a bridge along the way.

On January 31, Kentucky State Police Detectives Skip Benton and Robert Stephens, along with Madison County Commonwealth's Attorney Tom Smith, drove to Flemingsburg, Kentucky, to question Sanders-the first of several police interrogations. They interrogated Sanders about the Madison County murders and a similar shooting that occurred a few weeks before in Lincoln County. Sanders steadfastly denied killing Brandenburg and Hatch or having any part in the Lincoln County shooting. Sanders admitted that he did drive to Madison County that afternoon and showed Detective Benton where he parked the day of the murders. Later that day, Detective Benton had Sanders' truck taken to the state police post in Madison County to be searched for evidence.

On February 2, Sanders and his wife called the Kentucky State Police to see when the truck would be released. Detective Benton told them that it could be released to someone whose name was on the Bill of Sale. Sanders went to retrieve the truck that evening. Upon Sanders' arrival at the state police post, Detective Benton Mirandized him and, along with Stephens and Smith, interrogated him again. They arrested Sanders between 8:30 p.m. and 9:00 p.m. that night and put him in the drunk tank.

Before long, Sanders began to break down. He started hitting his head against the wall and would later report that he wanted to kill himself. He finally told one of the jailors to find Detective Benton. When Benton arrived early the next morning, Sanders confessed to killing Brandenburg and Hatch. Sanders also admitted to the Lincoln County shooting.

A grand jury indicted Sanders on two charges of capital murder and two charges of first-degree robbery. Sanders retained Kevin Charters as defense counsel. Two weeks after his arrest, Sanders asked for psychiatric help; so the court sent him to the Kentucky Correctional Psychiatric Center ("KCPC") for evaluation. Though Sanders requested treatment for his neurological health, the court directed KCPC to also evaluate whether Sanders was competent to stand trial and whether he had been insane when he committed the murders. After a forty-day evaluation by a team of psychologists, psychiatrists, and social workers, the KCPC concluded that Sanders was competent to stand trial and was not insane at the time of the murders. In late May, a week before Sanders' trial, he secured the pro bono services of Dr. Stuart Cooke, a clinical psychologist. Dr. Cooke spent an afternoon evaluating Sanders and concluded that Sanders was insane when he shot Brandenburg and Hatch.

Sanders' trial took place during the first week of June 1987. He offered insanity as his sole defense. During the Commonwealth's case-in-chief, Detective Benton testified about his interrogations of Sanders, including Sanders' inconsistent stories and confession. He also testified about the similarities between the Lincoln County and Madison County shootings. A firearms examiner testified that the bullet removed from Brandenburg and the bullet removed from the Lincoln County victim, Ethel Rankin, were fired from the same gun-a gun Sanders admitted he borrowed from his brother.

The Commonwealth called Sanders' wife to testify. She detailed Sanders' actions the morning of the shooting, recounted some of his past, and declared that he was a good father to her two children. She insisted that he would not hurt anyone and said that their marriage had been happy. She also described two incidents where Sanders hit her-she said that she provoked him and that he felt awful for doing it.

Sanders testified in his own defense. He admitted that he killed Brandenburg and Hatch and shot Rankin. He recounted the events of both shootings, testifying that he felt like he was watching himself commit the crimes from outside his own body.

Dr. Cooke also testified for the defense. Dr. Cooke concluded that Sanders had a depersonalization disorder-a disorder where a person feels like he has lost control over his own body. He believed that this illness prevented Sanders from conforming his conduct to the law.

In rebuttal, the Commonwealth presented testimony from Dr. Candace Walker, the clinical psychologist who led the KCPC evaluation team. She described the evaluation and presented the team's findings. Though Sanders had some type of personality disorder, Walker concluded, he was not insane. She said that the team considered but quickly rejected Dr. Cooke's diagnosis. Throughout the KCPC's extensive evaluation, Walker's team could not find evidence of psychosis or the type of mental illness that would prevent Sanders from understanding the criminality of his conduct. In Walker's opinion, Sanders showed no remorse and was motivated by a desire for money.

The jury found Sanders guilty on both counts of murder and on both counts of robbery. The penalty phase of trial was short; the Commonwealth moved and the court agreed to incorporate all of the guilt-phase evidence into the sentencing phase. Sanders presented a total of about ten minutes of mitigation testimony from four witnesses. Sanders also took the stand himself. He cried throughout his eight-minute statement, stated he did not understand what happened or why, and blamed the KCPC for not giving him the help he needed. After the close of evidence and arguments, the jury found two aggravating circumstances supporting a death sentence: (1) the murders were committed during the course of a robbery, and (2) the murders were intentional and resulted in multiple deaths. The jury recommended and the court imposed a sentence of death.

After trial, Sanders completed three rounds of appeals over the course of two decades. On direct appeal, Sanders presented forty separate grounds for relief. He challenged everything from voir dire to the constitutionality of Kentucky's death-penalty and execution scheme. The Kentucky Supreme Court ultimately denied relief on all claims. Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990) (" Sanders I "). Sanders then moved for postconviction relief, alleging that his attorney had provided deficient representation. The Kentucky Supreme Court again denied relief. Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 2002) (" Sanders II "), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). In 2003, Sanders filed a claim for federal habeas relief in this Court. R. 9. A little over one year later, the Court held proceedings in abeyance to allow Sanders to exhaust several claims in state court. R. 32. Sanders presented dozens of grounds for relief to the Kentucky courts. The Kentucky Supreme Court denied Sanders' third relief effort, concluding that each claim should have been presented in either of his prior appeals. Sanders v. Commonwealth, 339 S.W.3d 427 (Ky. 2011) (" Sanders III "). Sanders then returned to this Court. He now presents thirty-three separate claims that he argues entitle him to relief.

DISCUSSION

I. Federal Habeas Corpus for State Prisoners

A. Anti-Terrorism and Effective Death Penalty Act

Federal court is the forum of last resort for prisoners convicted in state courts. Federal habeas corpus is not a mechanism for ordinary error correction; that process is better left in the hands of the sovereign state responsible for the petitioner's conviction. Rather, federal courts "guard against extreme malfunctions" of the state system. Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (internal quotation marks omitted).

This principle is reflected in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs federal review of state-court criminal convictions. Under AEDPA, where the state court adjudicated a prisoner's claims on the merits, a federal court may grant relief only if the state court decision (a) was "contrary to" clearly established Federal law, as defined by the Supreme Court; (b) involved an "unreasonable application" of clearly established Federal law, as defined by the Supreme Court; or (c) was based on an "unreasonable determination" of the facts, in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d). AEDPA's standards are difficult to meet-this is a feature of the habeas structure, not a bug. Richter, 131 S.Ct. at 786.

Under AEDPA, a state court's decision is measured against then-existing federal law. Cullen v. Pinholster, 131 S.Ct. 1388');"> 131 S.Ct. 1388, 1398-99 (2011). Under § 2254(d)(1), a state court's decision is "contrary to" clearly established law if it applies a rule that "contradicts the governing law set forth" in applicable Supreme Court decisions. Williams v. Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J.).[1] A decision is also contrary to federal law if the state court analyzes "materially indistinguishable" facts from the relevant Supreme Court decision and then reaches the opposite conclusion. Id. at 406. But, generally, so long as a state court identifies and applies the correct Supreme Court rule to the facts of the case, the resulting decision is not "contrary to" clearly established federal law. Id.

The "unreasonable application" prong of § 2254(d)(1) is similarly weighted in favor of state court decisions. For a petitioner to succeed under this prong, the state court's application of clearly established federal law "must be objectively unreasonable." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks omitted). Indeed, a federal court applying this standard does not ask whether the state court decision was incorrect-for a decision might be incorrect but not unreasonable. See Richter, 131 S.Ct. at 785. "[E]ven clear error' will not suffice" to render a state court decision unreasonable. Woodall, 134 S.Ct. at 1702. Rather, a petitioner must show that the state court's decision was "so lacking in justification" that the error was "beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. at 786-87.

Along the same lines, § 2254(d)(2) allows for relief if the state court based its decision on an "unreasonable determination of the facts." A state court's "factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). Where "[r]easonable minds reviewing the record might disagree" about the correctness of the state court's factual findings, a federal court cannot grant relief. Id. (alteration in original) (internal quotation marks omitted).[2]

AEDPA deference applies even if the state court opinion summarily denies habeas relief. See Richter, 131 S.Ct. at 784-85 (holding that AEDPA deference applied to a "onesentence summary order" denying relief). Even though a state-court decision might have no discussion or reasoning, reviewing federal courts must "presume[] that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. Indeed, a state court "need not cite or even be aware of" Supreme Court precedent to receive AEDPA-deference. Id. at 784 (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). The absence of explanation from the state court does not relieve habeas petitioners of their burden. They must still demonstrate that "there was no reasonable basis for the state court to deny relief." Id.

The Richter standard also applies where a state court addresses state-law issues but "rejects a federal claim without expressly addressing that claim." Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). When a state court discusses only some of the petitioner's claims, federal habeas courts must still "presume that the federal claim was adjudicated on the merits." Id. Either the petitioner or the state may rebut the presumption. The Supreme Court outlined several possible routes of rebuttal. For instance, a petitioner could show that the state standard is less protective than the federal standard or that the "state court had overlooked his federal claim." Id. at 1097. The state could rebut the presumption by demonstrating that the petitioner forfeited his federal claim by not developing it. Id. at 1096.

B. State Rules

AEDPA is not the only limit on federal habeas relief. A federal habeas court cannot reevaluate state-court decisions based on matters of state law or grant relief based on an alleged state law error. See 28 U.S.C. § 2241; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Nor may federal courts or habeas petitioners ignore state procedural rules. When a state court declines to address a claim because the petitioner did not comply with state procedural rules, then that claim is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). With two exceptions, a federal habeas court may not grant relief on a procedurally defaulted claim. Id .; Edwards v. Carpenter, 529 U.S. 446, 451 (2000). The first exception allows a prisoner to raise a defaulted claim in federal court if he can demonstrate both (a) cause for the default and (b) prejudice from the violation of federal law. Coleman, 501 U.S. at 750. The other exception, while not at issue here, allows the prisoner to raise such a claim if the federal court's failure to consider the claim "will result in a fundamental miscarriage of justice." Id.

A state post-conviction attorney's error-whether through ignorance or inadvertence-is not "cause" to excuse procedural default. Coleman, 501 U.S. at 752-54. In the absence of a constitutional right to the assistance of an attorney in state post-conviction proceedings, there can be no attendant constitutional right to the effective assistance of an attorney in those proceedings. Id. at 752 (citing Wainwright v. Torna, 455 U.S. 586 (1982)).

The Supreme Court carved out exceptions to the Coleman bar: post-conviction attorney error may establish the "cause" prong of a defaulted ineffective assistance of trial counsel ("IATC") claim either where IATC claims may only be raised in post-conviction proceedings, Martinez v. Ryan, 132 S.Ct. 1309, 1318-21 (2013), or where it is "highly unlikely" that a defendant would have a "meaningful opportunity to raise" an IATC claim in his direct appeal, Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013). Martinez and Trevino are limited to IATC claims- Coleman controls all other claims. Martinez, 132 S.Ct. at 1316 (" Coleman held that an attorney's negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial."); Hodges v. Colson, 727 F.3d 517, 540 (6th Cir. 2013) (holding that post-conviction attorney error cannot excuse procedural default of a competency claim).[3]

C. Relation Back

Sanders filed his initial habeas petition in December 2003. R. 9. In October 2013, Sanders filed an amended habeas petition. R. 73. In order to meet the statute of limitations for new claims in his amended petition, Sanders contends that his new claims "relate back" to his original habeas petition pursuant to Federal Rule of Civil Procedure 15. R. 73 at 90-95.[4] Because the Court determines that Sanders is not entitled to relief on any of the claims he presents in his amended petition, it need not decide whether those claims relate back to the original habeas petition. The Court will assume that the claims relate back to the original habeas petition.

D. Procedural Default

After Sanders filed his federal habeas petition, he moved to stay the case. R. 29; R. 32 (order granting motion to stay). While the Court held his case in abeyance, Sanders returned to the Kentucky Supreme Court and presented over thirty-six claims for habeas relief in a motion under Rule 60.02 of the Kentucky Rules of Civil Procedure. See Sanders III, 339 S.W.3d at 431. Sanders already raised a number of the claims on direct appeal and in his Kentucky Rule of Criminal Procedure ("RCr") 11.42 motion. See Sanders I, 801 S.W.2d at 669, 671, 672-74, 676-77, 679-80, 683 (resolving eleven claims for constitutional error that Sanders maintains occurred during trial); Sanders II, 89 S.W.3d at 385-91 (raising nine claims based on ineffective assistance of counsel and one claim related to the prosecution's Brady obligations). The Kentucky Supreme Court did not evaluate the claims individually. 339 S.W.3d at 437.

In its response to Sanders' federal habeas petition, the Commonwealth argues that Sanders procedurally defaulted on each of these thirty-six claims. See R. 85 at 7-9. The Commonwealth notes that the Sanders III court rejected the claims for not having been brought during the direct appeal or the RCr 11.42 proceeding. Accordingly, the Commonwealth claims that the Sanders III court relied on an adequate and independent state law of procedure that foreclosed federal review. Id. But that rule does not apply to the claims that Sanders did present on direct appeal and in his RCr 11.42 motion but presented again in his Rule 60.02 motion. In Cone v. Bell, the Supreme Court held that a claim is not procedurally defaulted where-like here-it is presented to the state court more than once. See 556 U.S. 449, 467 (2009); see id. at 466-67 ("When a state court refuses to readjudicate a claim... the court's decision does not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication.").

Sanders properly presented his eleven claims of constitutional error, nine claims for ineffective assistance of trial counsel, and his Brady claim on direct appeal and collateral review. That he again raised the issues in his Rule 60.02 motion has no effect on the availability of federal habeas relief. Bell, 556 U.S. at 466-67. Accordingly, the Commonwealth cannot successfully argue that Sanders procedurally defaulted on those claims that he brought before the Kentucky Supreme Court on multiple occasions. So the Court may consider those claims in Sanders' federal habeas petition.

II. Procedurally Defaulted Claims (Claims 8.5, 10.5, 10.6, 10.7, 10.8, 10.9, 22.5, 22.6, and 29).

Sanders concedes that the following claims are procedurally defaulted: His Fourteenth Amendment claims based on the prosecution's definition of "reasonable doubt" during voir dire, which also implicates the Sixth Amendment right to a jury trial (8.5), the denial of a defense-based psychiatric expert and improper disclosures from the neutral psychiatric expert (10.5), Sanders' incompetence to stand trial (10.6), the trial court's failure to hold a trial competency hearing (10.7), Sanders' incompetence at sentencing (22.5), the trial court's failure to hold a sentencing competency hearing (22.6), and the prosecution's failure to correct Dr. Walker's false testimony at trial (29); a Fifth Amendment claim based on the introduction at trial of statements made during Sanders' KCPC evaluation (10.9); and a Sixth Amendment claim based on Charters' conflict of interest (10.8). R. 111 at 4-5. None of the claims, with the exception of claim 10.8, is itself an IATC claim. Sanders "relies solely on ineffective assistance of initial-review collateral proceeding counsel to excuse the [procedural] default" of the above claims. Id. For the defaulted claims that are not IATC claims, the Coleman bar applies, meaning that post-conviction attorney error cannot excuse his default. Consequently, the Court will deny Sanders' petition for relief, R. 9, R. 73, and the evidentiary motions as to those claims, R. 78, R. 79, R. 111.

That leaves claim 10.8, in which Sanders alleges that Charters had a conflict of interest. R. 73 at 148. According to Sanders, his family gave his original court-appointed attorney $2, 000.00 to hire a psychologist or psychiatrist. Id. at 149. After replacing the court-appointed attorney, Charters used the money for his fee instead of for hiring a psychologist or psychiatrist-or so Sanders claims. Id. This arrangement created a pecuniary conflict of interest, Sanders argues, because Charters had to choose between hiring an expert to help Sanders and pocketing the money for himself. Id. at 152-55.

An attorney's conflict of interest may establish the "denial of the right to have the effective assistance of counsel'" guaranteed by the Sixth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (quoting Glasser v. United States, 315 U.S. 60, 76 (1942)). Because a conflict of interest is a form of ineffective assistance, Sanders may escape procedural default only by showing cause through the Martinez-Trevino gateway and prejudice.

Under Martinez and Trevino, Sanders may satisfy the "cause" prong if he establishes the following: (1) his IATC conflict-of-interest claim is "substantial"; (2) his state postconviction counsel was ineffective; (3) the state post-conviction proceeding was the "initial" review for the IATC claim; and (4) the state's post-conviction procedures "makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise" the IATC claim. Trevino, 133 S.Ct. at 1921. In this case, the trial court proceeding in Sanders II was the initial review for the IATC claim. See Martinez, 132 S.Ct. at 1320.

The Court cannot reach Sanders' Trevino argument because Sanders' gateway to the merits-ineffective assistance of post-conviction counsel-is itself procedurally barred. When a habeas petitioner relies on ineffective assistance of counsel to excuse a procedural default, his argument of ineffective assistance must still follow the rules regarding procedural default and exhaustion. Both of those rules are relevant to Sanders' claim here. First, he must exhaust. That requires presenting the ineffective-assistance argument "to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 489 (1986). Second, "a procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the cause and prejudice' standard with respect to the ineffective-assistance claim itself." Carpenter, 529 U.S. at 450-51. Here, Sanders has not exhausted and has procedurally defaulted on his ineffectiveassistance-of-post-conviction-counsel argument.[5]

On exhaustion, Sanders had the opportunity in Sanders III to argue that his postconviction counsel in Sanders II was ineffective. Sanders III, 339 S.W.3d at 435. Indeed, Sanders made two specific arguments that his Sanders II counsel was ineffective: (1) counsel was ineffective for failing to argue that evidence of a prior crime admitted at trial was improper and (2) counsel was ineffective for failing to argue that Sanders' trial counsel was ineffective for not removing a victim from the courtroom. Id .; see Brief for Appellant at 32-34, Sanders III, 339 S.W.3d 427 (Ky. 2011). Sanders also broadly contended that he was effectively without an attorney while his post-conviction motion was pending in Sanders II. Id. None of those points encompassed a claim that Sanders' trial counsel was ineffective due to a pecuniary conflict-of-interest. The Sanders III court rejected Sanders' claims of ineffective assistance of post-conviction counsel, explaining that such claims were "limited to counsel's performance on direct appeal" and did not extend to post-conviction relief. 339 S.W.3d at 435.

Sanders failed to exhaust the available state remedies because he did not take advantage of the opportunity, in Sanders III, to present his argument to the Kentucky courts. As Sanders recognized, he could have brought his ineffective assistance of post-conviction counsel claims in Sanders III. And he brought two such claims. But Sanders left out any claim that his attorney was ineffective for failing to cite his trial counsel's conflict of interest. Because Sanders omitted that claim, he failed to exhaust the available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). That the Kentucky Supreme Court rejected the other post-conviction-counsel claims in Sanders III does not relieve Sanders of his obligation to make use of his only opportunity to present that specific argument to the state court. See Engle v. Isaac, 456 U.S. 107, 130 (1982); Johnson v. Beckstrom, Civil No. 08-194-ART, 2011 WL 3439135, at *1 (E.D. Ky. Aug. 5, 2011).

Additionally, Sanders' failure to exhaust renders his argument that post-conviction counsel was ineffective procedurally defaulted. Where a petitioner does not exhaust "and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, " the petitioner has procedurally defaulted. Coleman, 501 U.S. at 735 n.1; see also Awkal v. Mitchell, 613 F.3d 629, 646 (6th Cir. 2010) (en banc) ("If an unexhausted claim would be procedurally barred under state law, that claim is procedurally defaulted for purposes of federal habeas review." (internal quotation marks omitted)). Kentucky courts would now find Sanders' contention that his post-conviction counsel was ineffective procedurally barred. At this time, Sanders could exhaust his ineffective-assistance-of-post-conviction-counsel argument only by proceeding under Kentucky Civil Rule 60.02 in Kentucky courts. As the Kentucky Supreme Court has explained, that avenue of relief is solely for errors that "were unknown and could not have been known to the moving party by exercise of reasonable diligence and in time to have otherwise been presented to the court." Sanders III, 339 S.W.3d at 437 (internal quotation marks omitted). But Sanders knew about this issue. As discussed above, he could have raised his argument that post-conviction counsel (in Sanders II ) was ineffective during Sanders III. Moreover, Sanders was aware of the underlying conflict-of-interest issue during Sanders III because he included that claim (a separate claim from the allegation that his postconviction counsel was ineffective for not raising the conflict-of-interest claim) in his briefing in Sanders III. See Motion for Relief from Judgment at 112-13, Sanders III, 339 S.W.3d 427 (Ky. 2011).

Because Sanders did not present this argument to the Kentucky courts in Sanders III, the Kentucky Supreme Court would find an attempt to bring that claim now procedurally barred. That results in Sanders procedurally defaulting his argument in this court. Additionally, the Court gave Sanders the opportunity to present all his unexhausted claims to the Kentucky courts in 2004. See R. 32. Sanders cannot now have another chance at Kentucky courts.

Even if the Court could reach the Martinez-Trevino factors, Sanders has not established that his conflict-of-interest claim is "substantial." Trevino, 133 S.Ct. at 1921. A conflict of interest requires the petitioner to "show[] that his counsel actively represented conflicting interests" and that the conflict impaired his interests. Cuyler, 446 U.S. at 350. Conclusory allegations will not suffice; rather the petitioner must "point to specific instances in the record to suggest an actual conflict or impairment of [his] interests." United States v. Hall, 200 F.3d 962, 965-66 (6th Cir. 2000) (internal quotation marks omitted). Only after such a showing is prejudice presumed. Cuyler, 446 U.S. at 349-50. But the Supreme Court has not expanded the Sixth Amendment conflict-of-interest doctrine to include pecuniary conflicts, see Mickens v. Taylor, 535 U.S. 162, 174 (2002), and the Sixth Circuit has cautioned against applying Cuyler broadly, Moss v. United States, 323 F.3d 445, 473 n.25 (6th Cir. 2003) ("[T]he Mickens rationale compels our strong hesitation to apply [ Cuyler v. ] Sullivan to conflicts of interest cases arising outside of the joint representation context."). Indeed, the conflict Sanders alleges-between an attorney's funds and his client's interests- "is the same theoretical conflict that exists... in any pro bono or underfunded appointment case." Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995). Such claims are more appropriately viewed as fee disputes, which are usually adjudicated under Strickland, not Cuyler. See United States v. O'Neil, 118 F.3d 65, 72 (2d Cir. 1997) ("To the extent that the attorney shirks his ethical obligation to dutifully represent his client as a result of a fee dispute, we believe Strickland provides the appropriate analytic framework."); Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995) ("[A]n assertion of conflict based on the fact that payment for any investigation or psychiatric services could have come from counsel's pocket forc[ing] counsel to choose between [the client's] interests and his own... do[es] not typically create actual conflicts under Cuyler. " (internal quotation marks omitted)); United States v. Taylor, 139 F.3d 924, 932 (D.C. Cir. 1998); Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993). Under Strickland, Sanders has not presented a substantial claim. Sanders does not demonstrate how it was unreasonable for Charters to use the services of the KCPC and Dr. Cooke, nor does Sanders attempt to show prejudice under Strickland. As a result, his claim of ineffective assistance is not "substantial" for purposes of Martinez-Trevino and his underlying conflict-of-interest claim is procedurally defaulted.

III. Claim 26: Kentucky's Death Penalty Proportionality Review.

Sanders objects to Kentucky's death penalty proportionality review under the Eighth and Fourteenth Amendments. R. 73 at 204. Consistent with its standard practice, the Kentucky Supreme Court compared Sanders' case to only those cases where a death penalty was imposed, not to cases where the jury found similar aggravating factors but did not impose a death sentence. Sanders contends that this practice is unconstitutional. Id. at 204-05. He also argues that Kentucky improperly considered verdicts handed down before the Supreme Court declared the death penalty unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972), and cases where the death sentence was later reversed or where clemency was granted. R. 73 at 208.

This Court considered and rejected similar objections in Bowling v. Parker , Civil No. 03-28-ART, 2012 WL 2415167, at *8-10 (E.D. Ky. June 26, 2012). The same analysis applies here. A death sentence is unconstitutional if it "is grossly out of proportion to the severity of the crime." Coker v. Georgia, 433 U.S. 584, 592 (1977). But "when a life has been taken deliberately by the offender, " the death penalty is not "invariably disproportionate to the crime." Gregg v. Georgia, 428 U.S. 153, 187 (1976). In determining whether one defendant's death sentence is proportional, a comparative proportionality review is not constitutionally required. See Pulley v. Harris, 465 U.S. 37, 50 (1984); McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th Cir. 1996), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174, 179-82 (6th Cir. 2004) (en banc) ("There is no federal constitutional requirement that a state appellate court conduct a comparative proportionality review."). Indeed, a defendant "cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987). And Sanders admits that "[p]roportionality review in capital cases is generally not required." R. 73 at 211.

Kentucky's framework-requiring a comparative proportionality review-goes beyond the Constitution's mandate. Kentucky law requires the Kentucky Supreme Court to consider "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Ky. Rev. Stat. § 532.075(3)(c). In doing so, the Kentucky Supreme Court must "include in its decision a reference to those similar cases which it took into consideration." Id. § 532.075(5). The Supreme Court has explained that similar appellate procedures from Georgia were "a check against the random or arbitrary imposition of the death penalty." Gregg, 428 U.S. at 206. By going beyond what the Constitution requires, Kentucky's framework does not create an Eighth Amendment violation.

Sanders also contends that Kentucky's decision to set up a comparative proportionality review afforded him a due process right. Kentucky has violated this due process right, he argues, because the review relies on pre- Furman cases and analyzes only cases where the death penalty was imposed. R. 73 at 212. This Court dealt with the same issue in Bowling. 2012 WL 2415167, at *8-10. As an initial matter, it is unlikely that Kentucky's proportionality review established a due process right. See Bowling v. Parker, 344 F.3d 487, 521-22 (6th Cir. 2003). Even assuming Sanders had a due process right emanating from the proportionality review, there was no clearly established federal law in 1990 requiring consideration of cases where the defendant did not receive a death sentence. See Bowling, 344 F.3d at 522. Nor did the Kentucky Supreme Court commit error by considering pre- Furman cases. The court could have viewed those cases as evidence of the sentences juries handed down in similar cases. Indeed, the Kentucky Supreme Court would have violated state law by failing to consider pre- Furman cases. As a result, Sanders is not entitled to relief based on a due process violation stemming from Kentucky's comparative proportionality review.

IV. Juror and Voir Dire Claims: 2, 3, 5, 8, and 9.

The Sixth and Fourteenth Amendments guarantee to a criminal defendant a trial by an impartial jury. Morgan v. Illinois, 504 U.S. 719, 726-27 (1992) (quoting Irvin v. Dowd, 366 U.S. 717, 721-22 (1961)). Due process requires only "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). In deciding whether juror bias violates due process, courts perform a two-prong analysis: (1) whether the juror swore that he "could set aside any opinion he might hold and decide the case on the evidence" and (2) whether the trial court should have believed the juror's declaration of impartiality. Patton v. Yount, 467 U.S. 1025, 1036-37 (1984). The answer to those questions, the Supreme Court says, "is plainly one of historical fact." Id. As such, a state court's answer is entitled to deference. Id. at 1037 n.12; Rushen v. Spain, 464 U.S. 114, 120 (1983).

A. Claim 2: Failure to remove jurors Meinzer and Warren.

Sanders asserts that the seating of jurors John Meinzer and George Warren violated his right to an impartial jury, though he did not challenge either juror during voir dire. Sanders first challenged Meinzer on direct appeal in Sanders I. He challenged Warren for the first time as part of an ineffective-assistance-of-counsel claim in Sanders II. In both cases, the Kentucky Supreme Court found that the jurors were qualified to sit on the jury. See Sanders I, 801 S.W.2d at 669 (Meinzer); Sanders II, 89 S.W.3d at 388 (Warren). Sanders alleges that the Kentucky Supreme Court mishandled the law and took an unreasonable view of the facts in reaching that conclusion. R. 73 at 107-110. In his federal petition, Sanders requests an evidentiary hearing to rectify the factual errors and omissions. In any event, he argues, he is entitled to federal habeas relief on the law. See R. 110. But Sanders is wrong. He is not entitled to the relief he seeks.

Meinzer. Meinzer approached the bench twice in response to questions during general voir dire. After general voir dire, counsel and the court questioned him in individual voir dire. During his first visit to the bench, Meinzer informed the court that he knew of one of the victims, Mr. Brandenburg. VR 06/01/87, 10:04:13-10:05:33 (Tape 3, 01:04:41-01:06:02).[6] Meinzer worked the third shift as a respiratory therapist at the hospital, while Mr. Brandenburg's wife worked the day shift in the hospital's business office. Id. Meinzer advised the court and counsel that he met Mr. Brandenburg at a hospital Christmas party and had "a couple drinks" with him at the party, which Meinzer said "was about the extent" of their acquaintance. Id. According to Meinzer, the whole interaction lasted "a couple minutes." Id. In response to a question from the court, Meinzer stated that his acquaintance with Mr. Brandenburg would not affect his ability to render a fair and impartial verdict based solely on the evidence. Id. Defense counsel inquired whether Meinzer's acquaintance with Mrs. Brandenburg would make him "embarrassed if [he] did not return a guilty verdict." Id. Meinzer replied that he did not know Mrs. Brandenburg well, but was aware she worked at the hospital. Id. As the Kentucky Supreme Court described the exchange, counsel was "evidently satisfied with a negative response" and declined to challenge Meinzer for cause or by peremptory strike. Sanders I, 801 S.W.2d at 669.

When the court called Meinzer back to the bench a few minutes later for further questioning, Meinzer stated that he had heard "the talk" around the hospital about the murder. VR 06/01/87, 10:17:48-10:18:23 (Tape 3, 01:18:15-01:18:50). He again stated that he could render a verdict based solely on the evidence presented in court, putting aside anything he "might have heard at the hospital." Id. Defense counsel again declined to challenge Meinzer's inclusion in the jury pool.

After general voir dire of the jury pool, the court called the potential jurors into chambers for individual voir dire. During individual voir dire, the court asked Meinzer if he had heard, read, or seen anything about the case that he would not be able to put out of his mind. VR 06/01/87, 10:33:16-10:38:23 (Tape 3, 01:33:42-01:38:50). Meinzer replied, "not that I know of." Id. Meinzer then volunteered that he had read articles on the case in the local newspaper, but did not remember much except a photo of the roped-off store. Id. The court closed individual voir dire by asking if there was any reason Meinzer could not give both sides a fair trial; Meinzer said "no." Id. Defense counsel did not inquire any further about potential bias or challenge Meinzer's seating on the jury.

Sanders finally challenged Meinzer on direct appeal. The Kentucky Supreme Court noted that Sanders' argument was unduly belated, but addressed the challenge anyway. The court held that counsel "reasonably and responsibly found [Meinzer] to be competent, qualified, and impartial." Sanders I, 801 S.W.2d at 669. The court went on to hold that even if counsel had moved to excuse Meinzer, the trial court's denial of that motion would not have constituted reversible error. Id. The court based its holding on a determination that Meinzer's "passing acquaintance" with the Brandenburgs and "passing familiarity with the reported circumstances of the crime" did not suffice to imply bias. Id.

Sanders asserts that the Kentucky Supreme Court's factual determinations were unreasonable. In his federal petition, Sanders presents a distorted recitation of the facts that is inconsistent with the record evidence. Sanders converts Meinzer's statement that he had "a couple drinks" with Mr. Brandenburg at a party into "Juror Meinzer... used to have drinks with the victim." R. 73 at 105. Meinzer and Mrs. Brandenburg worked different shifts in different departments in the hospital; but Sanders describes this relationship as Meinzer "work[ing] with" Mrs. Brandenburg. Id.

Though Sanders offers an alternative description of the facts, he presents no basis for finding that the Sanders I recitation was unreasonable. Meinzer said he did not know Mrs. Brandenburg well and just had "a couple drinks" at a party with Mr. Brandenburg. See Sanders I, 801 S.W.2d at 669. The Kentucky Supreme Court was hardly unreasonable in taking Meinzer at his word-as defense counsel evidently did at the time. This is especially true given that trial counsel had the opportunity to explore potential bias during voir dire and was satisfied as to Meinzer's impartiality. Given the evidence before it, the Kentucky Supreme Court was not unreasonable in finding that Meinzer had a "passing acquaintance" with the Brandenburgs.

Sanders' strongest claim for relief might be Meinzer's statement that he heard "the talk" around the hospital about the trial, which Sanders characterizes as "Juror Meinzer had heard so much at the hospital about the case that he referred to it as the talk' at the hospital." R. 73 at 105. But the Constitution does not guarantee a panel of jurors who have heard nothing about the case before trial. See Skilling v. United States, 561 U.S. 358, 380-81 (2010) ("[J]uror impartiality ... does not require ignorance. "); Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("[S]carcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case."). Rather, due process requires that the jury be "capable and willing to decide the case solely on the evidence before it." Smith, 455 U.S. at 217. Confronted with possible juror bias via pretrial publicity, the ultimate question for the court is whether the juror should be believed when he says he can render an impartial verdict. Mu'Min v. Virginia, 500 U.S. 415, 425 (1991). The trial court here asked Meinzer four times, in four different ways, if he could render an impartial verdict. Meinzer affirmed that he could. In the crucible of the courtroom, where one can see a juror's responses, body language, and the like, the trial court-and defense counsel-both believed Meinzer's assurances. See Skilling, 561 U.S. at 396 (holding that the defendant's failure to challenge a juror for cause was "strong evidence" that the defendant was convinced the juror was unbiased). Sanders does not offer any basis for rejecting that on-the-scene determination.

Sanders also contends that that the Kentucky Supreme Court unreasonably applied "the law." R. 73 at 110. Sanders does not cite or identify the relevant law that the Kentucky Supreme Court allegedly applied unreasonably. According to Sanders, the fact that Meinzer had "knowledge of the case" and a "relationship with the victim and his wife" required Meinzer's dismissal. Id. But Sanders does not point to any clearly established law mandating that result. Rather, the relevant Supreme Court law requires courts to ask whether the juror swore he could be impartial and, if so, whether the court should have believed him. See Smith, 455 U.S. at 217; Patton, 467 U.S. at 1036-37. The Kentucky Supreme Court accurately applied the Smith and Patton standard to the facts it found. As a result, habeas relief is not appropriate under the unreasonable application prong. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Warren. According to Sanders, the trial court's failure to remove Warren from the jury amounted to a violation of Sanders' due process rights. R. 73 at 107. Sanders' mother had alerted the court that she had seen Warren speaking with Colonel Hatch at some point during trial. Colonel Hatch was the prosecution's last witness and the father of one of the victims. The court, prosecution, and defense counsel met with Warren. In that meeting, Warren volunteered that he knew Colonel Hatch "a long time ago;" Hatch was an administrator at a hospital when Warren's mother died. Warren stated that Hatch "did [Warren's family] a lot of favors, I mean, ya know he talked to us when my mother died." Warren stated that he did not know the victim, that he did not know Colonel Hatch was the victim's father until trial, and that his prior acquaintance would not "weigh on his mind in any manner." Rather, he kept "[his] own mind." VR 6/04/87, 12:30:30-12:31:55 (Tape 6, 1:11:12-1:13:20).

Sanders did not object to Warren's presence on the jury at trial or on direct appeal. In Sanders II, Sanders alleged that counsel was ineffective for failing to question and challenge Warren. Finding no prejudice from the alleged error, the court denied the claim. Sanders II, 89 S.W.3d at 388. In Sanders III, Sanders presented the Sixth-and-Fourteenth-Amendments version of his challenge to Warren, which he presses in his federal petition, alleging that the court should have removed Warren. The court denied the claim, holding that Sanders should have presented the claim in Sanders II. Sanders III, 339 S.W.3d at 435, 438. Despite having two opportunities to present the claim, he failed to do so. On the third try, the Kentucky Supreme Court held that he failed to meet state procedural requirements and denied relief. That holding would ordinarily constitute procedural default of the claim and bar federal habeas relief. See Coleman, 501 U.S. at 729-30.[7]

In his federal petition, Sanders argues that the Sanders II consideration of his IATC claim counts as an "adjudication on the merits, " and so the claim is not procedurally defaulted. This position has some merit. The Third Circuit has held that a claim is adjudicated on the merits where the state court considered the claim under the prejudice prong of an IATC claim. See Moore v. Penn. Dep't of Corr., 457 F.Appx. 170, 178 (3d Cir. 2012) (citing Albrecht v. Horn, 485 F.3d 103, 116 (3d Cir. 2007)). The court reasoned that where the state court identifies the correct legal principle and applies it to the petitioner's claim, the court has adjudicated the claim on the merits for AEDPA purposes. Id. (citing Richter, 131 S.Ct. at 783-85). Even if Moore is correct and Sanders' claim is not procedurally defaulted, he would still not be entitled to relief.

According to the Sanders II court, Sanders failed to establish any prejudice because he did not demonstrate what bias further questioning of Warren might have revealed. Sanders II, 89 S.W.3d at 388. The court went on to hold that Warren did not have a close enough acquaintance with Colonel Hatch to establish bias. Id.

Sanders argues that the Kentucky Supreme Court unreasonably determined the facts surrounding Warren's bias. See 28 U.S.C. § 2254(d)(2). He argues that the Kentucky courts should not have believed Warren's declarations of impartiality. Jurors were asked during voir dire if they knew any of the victims or witnesses; Warren said that he did not. Sanders claims this was not an oversight; rather, Warren "intentionally failed to disclose" his acquaintance with Colonel Hatch. R. 73 at 107. Why would Warren do such a thing? Because, the argument goes, he wanted to get on the jury to secure a conviction. The Kentucky Supreme Court's failure to recognize this, Sanders argues, means its decision was based on an unreasonable determination of the facts.

Sanders' argument is unpersuasive. Though Warren did not disclose his acquaintance with Colonel Hatch during voir dire, he offered a reason for the omission: he did not know the victim and did not realize that Colonel Hatch was the victim's father. As in his objections to Meinzer, Sanders offers an inflated recitation of the facts. For example, Sanders quotes Warren as saying that Hatch "did a lot of favors" for Warren's family, but ignores the context of that quotation. Evidently, doing "a lot of favors" amounted to talking to Warren's family when his mother died-a more limited relationship than Sanders insinuates. Sanders focuses on the fact that Warren appears to say he knew Hatch "a long time." R. 73 at 109. But Warren says that he knew Hatch "a long time ago." While the video recording is not a model of clarity, the latter phrase is more consistent with the rest of Warren's testimony. Warren talks about his relationship with Hatch only in the context of a few events at a hospital-it is unlikely that Warren would say he knew Hatch "a long time" based solely on those instances.

Given that Warren discussed only a few interactions with Hatch around the time Warren's mother died, the Kentucky Supreme Court could reasonably conclude that their limited interactions did not rise to the level of juror bias. And Warren stated that his acquaintance with Hatch would not impact his decision-making "in any way" and that he "keeps [his] own mind." The trial court believed him. While Sanders came to disagree almost two decades after the fact, he offers no basis for declaring that the Kentucky Supreme Court was unreasonable in reaching the same conclusion as the trial court. Because Warren affirmed his impartiality and had limited interactions with Hatch, the Kentucky Supreme Court reasonably found that their relationship was not sufficient to "imply bias." Sanders II, 89 S.W.3d at 388. Warren's presence on the jury does not entitle Sanders to the relief he seeks.

Sanders also contends that the Kentucky Supreme Court unreasonably applied clearly established law by failing to consider the impropriety of both Warren speaking to a witness and the content of that conversation. But no clearly established federal law requires specific consideration of these points. As discussed in relation to Meinzer, the inquiry for juror bias is whether the juror swore he could be impartial, and if so, whether the court should believe him. See Smith, 455 U.S. at 217; Patton, 467 U.S. at 1036-37. Warren said that he could be impartial. The court and defense counsel were evidently satisfied with that answer. See Skilling, 561 U.S. at 396. Under the facts found by the Kentucky Supreme Court, it was not objectively unreasonable, and in fact was likely correct, to conclude that Sanders' "allegation of bias on the part of the juror is merely speculative." Sanders II, 89 S.W.3d at 388.

Nor is Sanders entitled to the evidentiary hearing he seeks on this claim. The Supreme Court held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388');"> 131 S.Ct. 1388, 1398 (2011). Because Sanders must meet his burden under § 2254(d)(1) using only the state-court record, the Court cannot grant him an evidentiary hearing to expand that record. See id. at 1399-1400. And Sanders cannot receive a hearing by relying on § 2254(d)(2)'s "unreasonable determination of the facts." That section is specifically limited to "the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2); see also Pinholster, 131 S.Ct. at 1415-16 (Sotomayor, J., dissenting) (explaining that § 2254(d)(2) "more logically depends on the facts presented to the state court"); Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012). Both §§ 2254(d)(1) and 2254(d)(2) restrict this Court's scope of consideration to the facts that were before the state court. Accordingly, Sanders is not entitled to an evidentiary hearing.

Ineffective Assistance of Trial Counsel. In his discussion of jurors Meinzer and Warren, Sanders briefly asserts that "trial counsel's failure to request their excusal was deficient performance that prejudiced Sanders." R. 73 at 109. Sanders does not elaborate on this Strickland claim. See Strickland v. Washington, 466 U.S. 668 (1984). With no further argumentation (or even a citation to Strickland ), the Court need not consider Sanders' argument. See Frazier v. Jenkins, 770 F.3d 485, 501 n.9 (6th Cir. 2014) ("This cursory argument has been waived, for issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." (internal quotation marks and alterations omitted)). In fact, he does not identify which Kentucky Supreme Court decisions on ineffective assistance were unreasonable, and, as a result, makes no argument as to why they were unreasonable. Nor does Sanders elaborate on either prong of the ineffective-assistance analysis. With no developed argumentation on this Strickland claim, Sanders is not entitled to relief.

B. Claim 3: The trial judge improperly commented ex parte to the prosecutor about juror Meinzer.

Sanders argues that the trial judge abandoned his role as a neutral arbiter by making an ex parte comment to the prosecutor about juror Meinzer after his second bench conference. The record reflects just that. After Meinzer and defense counsel left the bench and were out of earshot, the trial judge turned to the prosecutor. The judge lowered his voice, partially shielded his mouth with his hand, and uttered five words about Meinzer- "He's dying to get on." VR 06/01/87, 10:18:27-10:18:30 (Tape 3, 01:18:56-01:18:59).

On direct appeal, the Kentucky Supreme Court concluded that it could not condone the trial judge's comment. But the court declined to find that his remark amounted to a constitutional violation and held that there was no prejudice to Sanders' rights to due process, a fair trial, or rational sentencing. Sanders I, 801 S.W.2d at 669-70. This Court agrees. While there is no question that the trial judge's ex parte comment was inappropriate, under federal law, it amounted to exactly what Sanders claims it is: an ex parte comment.

Sanders, however, contends that by finding some justification in his complaint and perceiving no prejudice on direct appeal, the Kentucky Supreme Court found a constitutional violation and applied harmless error analysis. R. 73 at 113-114. But he is mistaken in his assessment of the Kentucky Supreme Court opinion. Acknowledging "some justification" to Sanders' complaint is not the same as finding a constitutional violation. The court simply noted that, as a general matter, the trial judge should not have made the comment. Any number of things can happen during a trial that should not happen-judges are not above making mistakes-but not all such mistakes have a constitutional dimension. See, e.g., Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009) ("[M]ost matters relating to judicial disqualification do not rise to a constitutional level." (quotations and alterations omitted)); Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974) (stating that erroneous jury instructions do not always "rise to the level of constitutional error").

The Kentucky Supreme Court's holding does not contradict or unreasonably apply clearly established federal law. No Supreme Court opinion squarely addresses ex parte communication between the judge and prosecutor or articulates a constitutional right to a trial free from such ex parte comments. Sanders cites to Justice Marshall's dissent in Rushen v. Spain, 464 U.S. 114 (1983), and two Sixth Circuit opinions: United States v. Barnwell, 477 F.3d 844 (6th Cir. 2007) (concluding that ex parte communications between the trial judge and government deprived the defendant of constitutional rights) and United States v. Minsky, 963 F.2d 870 (6th Cir. 1992) (same). However, a dissent is not clearly established federal law-for AEDPA purposes or otherwise. Nor are decisions from the courts of appeals clearly established law under AEDPA.[8] See 28 U.S.C. § 2254(d)(1); Lopez v. Smith, 135 S.Ct. 1, 2 (2014) ("We have emphasized... that [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is clearly established.'"). With no clearly established law, there is nothing for the Kentucky Supreme Court to contradict or apply-unreasonably or not-meaning that Sanders cannot obtain relief.

Unlike Rushen, this case involves an ex parte comment between a trial judge and a prosecutor-not between a judge and a juror. But even if Rushen could be analogized to this case, Sanders I is not "contrary to" or an "unreasonable application of" the Rushen decision. Why? Because the Supreme Court did not even analyze the constitutional dimensions of ex parte communication between a judge and juror in that per curiam opinion. See 464 U.S. at 117 n.2 ("Whether the error was of constitutional dimension in this case is not before us. Because we find that no actual prejudice was shown, we assume, without deciding, that respondent's constitutional rights to presence and counsel were implicated in the circumstances of this case."). Rushen merely reiterated that while ex parte judge-juror communications should be disclosed to the parties, a failure to do so does not always require reversal. 464 U.S. at 119. So Rushen does not clearly establish that a judge's ex parte communication with a juror necessarily amounts to a constitutional violation-let alone a judge's ex parte communications with a prosecutor. And Sanders I is consistent with that ruling because the Kentucky Supreme Court concluded that the challenged ex parte communication was inappropriate without rising to a constitutional violation.

The Rushen Court contemplated that any prejudicial effect of an undisclosed ex parte conversation could be ascertained by a post-trial hearing. Id. at 119-20. However, nothing in the Rushen opinion requires state courts to hold such a hearing. So the Kentucky Supreme Court did not misapply Rushen by forgoing an evidentiary hearing before concluding that the judge's ex parte comment did not prejudice Sanders. In the absence of a clear rule-as opposed to a non-binding statement of best practices-it is difficult to say that the Kentucky Supreme Court incorrectly applied Rushen, much less did so unreasonably. See Richter, 131 S.Ct. at 786 ("It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]." (quotation marks and alteration omitted)). Moreover, Sanders has not even alleged that the constitutional violation stems from the lack of a hearing. He has not requested an evidentiary hearing on the claim in his federal proceedings, nor has he indicated what a hearing would have revealed. See R. 110. In short, he offers no basis to conclude that he suffered any prejudice from the lack of a post-trial hearing.

Sanders' last avenue for relief is § 2254(d)(2)'s "unreasonable determination of the facts" standard. But that claim also fails. Neither party disputes that the trial judge told the prosecution that Meinzer was "dying to get on" the jury. The Kentucky Supreme Court recognized this comment in its opinion. Sanders I, 801 S.W.2d at 669. The court explained that the remark was "brief" and did not specify whether Meinzer was disposed to "serve and convict, or to serve and acquit." Id. This, too, is consistent with the record. The video recording of the ex parte communication reveals that the statement consisted of five words ("He's dying to get on") spanning all of two seconds. VR 06/01/87, 10:18:27-10:18:29 (Tape 3, 01:18:56-01:18:58). The Kentucky Supreme Court reasoned that the remark merely conveyed the judge's own opinion about Meinzer's attitude-one that was as observable by counsel as by the trial judge. Sanders I, 801 S.W.2d at 669. This conclusion is also consistent with the record. The video recording shows that counsel for both sides were present for Meinzer's bench approaches and individual voir dire. VR 06/01/1987, 10:04:14-10:05:37; 10:17:47-10:18:24 (Tape 3, 01:04:42-01:06:06; Tape 3, 01:18:15-01:18:52). On these facts, it was not unreasonable for the Kentucky Supreme Court to conclude that the trial court merely said out loud what both parties could see for themselves. While the Kentucky Supreme Court also concluded that it could not condone the trial judge's statement, Sanders I, 801 S.W.2d at 669, this admonition does not demonstrate that it unreasonably characterized the ex parte comment.

Sitting as the reviewing court in the first instance, the Court may have described the facts surrounding the ex parte comment differently. But that is not grounds to find that the Kentucky Supreme Court's description was "unreasonable" or to grant relief on a federal habeas petition. See Wood, 558 U.S. at 301 ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.").

The trial judge's ex parte remark to the prosecutor was unnecessary and inappropriate. Judges function as neutral arbiters, not as advocates. Much like umpires who simply call balls and strikes and do not themselves line up to bat for a team, judges must stay neutral in litigation. However, federal law does not clearly establish that ex parte comments by trial judges deprive defendants of constitutional rights. Given the state of the law, the Kentucky Supreme Court was reasonable in finding that the trial judge's ex parte comment, while improper, did not impair Sanders' constitutional rights.

C. Claim 5: The trial court failed to permit adequate voir dire of juror King on the death penalty.

In individual voir dire, Sanders' counsel sought to ask juror Ronnie King the following question: "If a person were found guilty, based on the facts, of a double murder, would you give more consideration to the death penalty than any of the other three alternatives?" The Commonwealth objected. The trial court sustained the objection because, in its view, Kentucky law prohibited hypothetical questions. Sanders' counsel attempted to ask another death-penalty related question. The Commonwealth again objected, and the trial court sustained the objection. The trial court then asked King "Do you feel that there are certain cases where a murder might be involved where twenty years might be appropriate, certain cases where life in prison might be appropriate, certain cases where life in prison without parole for twenty-five years might be appropriate, and certain cases where the death penalty might be appropriate?" King responded that "after hearing the evidence and then instructions from you, I would weigh all of it." The court asked again: "well would you go back and just because it was a murder case, ... say death penalty is the only thing I am going to recommend." King answered "no sir, I would just have to hear, you know, the evidence and how the crime was committed" before reaching a decision. VR 6/1/1987 14:50:42-14:53:01 (Tape 3 4:42:40-4:45:00); Sanders I, 801 S.W.2d at 671-72.

On direct appeal, the Kentucky Supreme Court held that the court should have allowed the "double murder" question because Sanders was on trial for two charges of murder. Sanders I, 801 S.W.2d at 671-72. The court then concluded that the subsequent voir dire questions from the court and King's answers to those questions served to both eradicate "any possible prejudice" to Sanders and demonstrate that King was qualified. Id. at 672.

Sanders first argues that de novo review, as opposed to the strictures of § 2254(d), applies because the Sanders I decision employed harmless error. But the Kentucky Supreme Court did not apply harmless error after finding a constitutional violation.[9] Rather, the court found that the error did not violate Sanders' constitutional rights. Specifically, the Kentucky Supreme Court said that, as a general matter, the trial court should have allowed the doublemurder question. Sanders I, 801 S.W.2d at 672. But this acknowledgment does not mean that the error was automatically one of constitutional magnitude. See, e.g., Caperton, 556 U.S. at 876; Donnelly, 416 U.S. at 645. And, here, the error was not of constitutional magnitude: the Sanders I court concluded that the juror was qualified, which is the relevant constitutional inquiry. See Morgan, 504 U.S. at 729 ("[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors."). Because the Kentucky Supreme Court did not find a constitutional error, the Court applies § 2254(d) to its decision.

Under § 2254(d), the Kentucky Supreme Court's decision was not contrary to, nor an unreasonable application of, clearly established law. In looking at whether a juror's views on capital punishment are grounds for exclusion, the relevant standard is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted). In applying that broad standard, the Kentucky courts receive "more leeway... in reaching outcomes in case-by-case determinations." Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). By finding that King was qualified and that Sanders was not prejudiced by the trial court's erroneous curtailment of Sanders' voir dire, the Kentucky Supreme Court applied the correct standard. See Morgan, 504 U.S. at 729. King said that he would determine the appropriateness of the death penalty based on the evidence and gave no indication of any bias. The Kentucky Supreme Court emphasized that King gave "definite responses" that he would decide based "upon the evidence and the court's instructions." Sanders I, 801 S.W.2d at 672. Indeed, there is no evidence that King had any bias. Accordingly, the Kentucky Supreme Court's decision that King was qualified was not unreasonable.

Nor did the Kentucky Supreme Court or the trial court unreasonably determine the facts under § 2254(d)(2). In the context of juror voir dire, the Supreme Court (pre-AEDPA) explained that a federal habeas court must determine only whether the factual findings are "fairly supported by the record." Wainwright, 469 U.S. at 433. Under AEDPA, the court can grant relief only if the factual findings were unreasonable. Wood, 558 U.S. at 301.

Nothing in King's statements to the trial court suggested that he would be partial or biased. In fact, he stated to the court, multiple times, that he would weigh the evidence to determine whether the death penalty or prison would be appropriate. Even though Sanders' counsel could not ask King about his views on double murder, the Kentucky Supreme Court reasonably concluded that the rest of King's responses sufficed to demonstrate his impartiality. Because King explained, in no uncertain terms, that he would sentence a defendant based solely on the evidence at trial, the Kentucky Supreme Court acted reasonably in its factual determination. Accordingly, Sanders is not entitled to relief on Claim 5.

D. Claim 8: The prosecutor violated Sanders' rights by defining "reasonable doubt" during voir dire.

During voir dire, the prosecutor asked potential jurors if they understood that the Commonwealth's burden of proving Sanders' guilt beyond a reasonable doubt "does not mean beyond all doubt or a shadow of a doubt?" Sanders I, 801 S.W.2d at 671; see also VR 6/2/1987 13:32:50-13:33:15 (Tape 4 2:23:03-2:23:25). The prosecutor then asked if any of the jurors would "hold the Commonwealth to a higher standard of proof than the reasonable doubt standard?" Id. These are common questions asked during voir dire. Unsurprisingly, defense counsel did not object. Id. On direct appeal, Sanders argued that the prosecutor violated Kentucky law by attempting to define "reasonable doubt" when the prosecutor used "beyond all doubt" and "shadow of a doubt" in comparison. Sanders I, 801 S.W.2d at 671. Despite counsel's failure to object at trial, the Kentucky Supreme Court "[a]ssum[ed], without deciding" that the prosecutor's questions were erroneous but the court was "wholly unconvinced" that the error had any impact on the jury's verdict or sentence. Id.

In his federal petition, Sanders claims that the prosecutor's questioning amounted to prosecutorial misconduct and violated his rights in two ways. R. 73 at 118. First, the comments contravened Kentucky law, which bars defining "reasonable doubt." See Commonwealth v. Callahan, 675 S.W.2d 391 (Ky. 1984). Second, the prosecutor impermissibly lowered the government's burden of proof. The Constitution requires proof of a criminal charge beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 361-63 (1970). According to Sanders, the prosecutor's comments violated Sanders' constitutional rights by lowering that burden.

Sanders' claim suffers from three flaws. Each flaw is fatal to Sanders' claim for relief: Sanders cannot get federal relief for state-law violations, did not exhaust his claims in state court, and does not present a claim that could prevail under AEDPA. The first is a McGuire problem: to the extent that Sanders alleges that the prosecutor violated state law, he cannot obtain federal habeas relief. McGuire, 502 U.S. at 67 ("[F]ederal habeas corpus relief does not lie for errors of state law." (internal quotation marks omitted)). State law violations appear to have formed the substance of Sanders' claim before his federal petition. In Sanders I, Sanders' two-paragraph argument focused entirely on the state law issue. See Appellant's Brief at 69-70, Sanders I, 801 S.W.2d 665 (1990). His only reference to federal law was the undeveloped assertion that he was "denied... due process, " without any argument or explanation as to how.[10] Id. The Kentucky Supreme Court certainly appeared to think his claim was based on state law as its two-sentence opinion on the claim framed the issue as a state-law error.

The second flaw in Sanders' petition on this claim is lack of exhaustion. Failure to exhaust a claim in state court bars consideration of the claim in federal habeas proceedings. 28 U.S.C. § 2254(b)(1)(A). Sanders did not present a substantive allegation of a constitutional violation until his federal petition. While exhaustion does not require "citing book and verse on the federal constitution" to the state court, a petitioner must present the state court with his federal habeas claim. Picard v. Connor, 404 U.S. 270, 277-78 (1971). This requirement means presenting the state court with the same claim he later raises in federal court. Id. at 276. Sanders has not done so. He presented no substantive constitutional argument in state court. His premised his entire appeal on Kentucky's prohibition on defining "reasonable doubt, " which is not sufficient to exhaust his federal claim. See Anderson v. Harless, 459 U.S. 4, 6-7 (1982) (finding that a federal claim was not "fairly presented" to the state court because the argument focused entirely on alleged violations of state law). The statement that he was "denied... due process" is not a developed argument, and therefore is not a fair presentation of his claim to the state court. See Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (holding that simply citing to a constitutional amendment is not enough to exhaust). His failure to exhaust bars federal relief.

Finally, even assuming that Sanders sufficiently presented his federal claim in state court, he is still not entitled to habeas relief. See Baldwin v. Reese, 541 U.S. 27, 31 (2004) ("A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim federal.'"). While Sanders I does not explicitly address the federal claim, the Court still applies AEDPA deference pursuant to Johnson and Richter. Johnson, 133 S.Ct. at 1096 (deferring to a state court's decision under AEDPA even where the state court "rejects a federal claim without expressly addressing that claim"). Sanders could get de novo review only by demonstrating that the Kentucky courts overlooked his claim. See id. at 1097. Because Sanders makes no such argument, the Court will proceed under the regular AEDPA framework.

The Kentucky Supreme Court's holding does not contravene or unreasonably apply clearly established federal law.[11] A prosecutor's comments violate due process only if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Darden rule "is a very general one, " which gives state courts "more leeway... in reaching outcomes in case-by-case determinations." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012). Because of the rule's generality, habeas relief is appropriate only if there is "no possibility [that] fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Richter, 131 S.Ct. at 786.

Fairminded jurists would likely all agree that the Kentucky Supreme Court's decision did not conflict with then-existing Supreme Court precedent. Sanders does not direct the Court to any Supreme Court cases from or before 1990 forbidding prosecutors from attempting to define "reasonable doubt" at trial, let alone barring such attempts during voir dire. Nor does Sanders cite to any Supreme Court cases holding that "beyond any doubt" or "beyond a shadow of a doubt" are unconstitutional ways to distinguish "beyond a reasonable doubt." Cf. Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (holding that the combined effect of the phrases "such doubt as would give rise to a grave uncertainty" and "an actual substantial doubt" resulted in unconstitutional definition of "reasonable doubt"), overruled on other grounds by McGuire, 502 U.S. at 72 n.4.

Then-existing Supreme Court case law on reasonable doubt, as set out in Boyde v. California, 494 U.S. 370 (1990) (not cited by Sanders), involved jury instructions, not voir dire. The standard from Boyde turns on whether there is a reasonable likelihood that, given the instructions presented, the jury applied a lower standard of proof than "reasonable doubt." See id. at 380; McGuire, 502 U.S. at 72 & n.4. Boyde, however, noted that "prosecutorial misrepresentations... are not to be judged as having the same force as an instruction from the court." Boyde, 494 U.S. at 384-85. Even assuming that Boyde applies to voir dire, Sanders has offered no reasons why the prosecutor's comparison unreasonably applied or contravened Boyde. He provides no basis for concluding that the prosecutor articulated a lower standard of proof, or that the prosecutor's comments led the jury to apply a lower standard of proof. While the Supreme Court has questioned the wisdom of attempting to define "reasonable doubt, " it has not gone so far as to hold that the conduct ...


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