United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
On February 18, 2015, the Court denied David Lee Sanders' petition for a writ of habeas corpus under 28 U.S.C. § 2254. See R. 113. Sanders has since filed a motion to reconsider. See generally R. 115. Specifically, Sanders asks the Court to revisit the following issues: (1) whether the treatment of claims related to the trial court's failure to hold competency hearings (Claim 10.7 and Claim 22.6) was inconsistent; (2) whether Sanders' trial counsel rendered ineffective assistance by failing to present an adequate mitigation case (Claim 27(I)); (3) whether Sanders' trial counsel was ineffective for failing to discover a psychiatric report (Claim 27(B)); and (4) whether Sanders' counsel provided ineffective assistance by failing to produce a video taken of Sanders after his arrest (Claim 27(E)). Id. In support, Sanders identifies recent cases in the dynamic field of habeas law. See id. at 21-34 (citing to cases not mentioned in Sanders' habeas petition or reply memorandum in support of his habeas petition). In light of the new authority, justice requires the Court to reconsider its decision as to Claim 27(I).
The Court has previously summarized the facts of this case. See R. 113 at 2-6. The essential details related to the claims at issue in this order are as follows. On January 28, 1987, Sanders shot and killed the proprietor and a customer of a convenience store in Madison County, Kentucky, and took money from behind the counter. When police initially questioned him about his activities on that day, Sanders admitted to driving to Madison County but maintained that he did not kill anyone. On February 2, 1987, the police transported Sanders to the local jail. There, Sanders manifested troubling behaviors: he repeatedly hit his head against the cell wall and stated that he wanted to kill himself. Sanders' appointed counsel, Ernie Lewis, videotaped Sanders' bizarre actions. In his next interview with the police-on February 3, 1987-Sanders admitted to the murders. He explained that, during the murders, he could see himself shooting the men and was unable to stop himself.
Soon after Sanders confessed to the shootings, a grand jury indicted him on two charges of capital murder and two charges of first-degree robbery. Sanders' retained counsel, Kevin Charters, moved to evaluate Sanders' mental health and psychiatric condition. The trial court ordered the Kentucky Correctional Psychiatric Center ("KCPC") to evaluate Sanders. As part of the evaluation, the trial court directed the KCPC to determine whether Sanders was competent to stand trial and whether he was insane at the time he committed the shootings. The KCPC conducted a series of tests and examinations over six weeks, employing multiple psychiatrists. The lead KCPC investigator, Dr. Candace Walker, summarized the team's collective findings in a report. The KCPC report concluded that, though Sanders may suffer from a mixed personality disorder, he was competent to stand trial and did not suffer from a mental condition that compromised his capacity to conform his behavior to the law. But the report did not mention the findings of one KCPC psychologist, Dr. Frank Flenning, whose findings were inconsistent with those from the other KCPC team members. In his individual report, Dr. Flenning had documented the physical abuse that Sanders experienced throughout his childhood at the hands of his parents. Dr. Flenning also concluded that Sanders experienced dissociative states, suffered from a fragmented personality, and had the potential for "brief psychotic episodes wherein he would experience a loss of contact with reality."
After his KCPC evaluation, Sanders went to trial, where he presented an insanity defense. At the conclusion of a week-long proceeding, the jury convicted Sanders of both murder counts and both robbery counts. After a weekend recess, the trial court conducted the penalty phase of the trial. Charters introduced mitigation testimony from the assistant principal of Sanders' former school, Sanders' neighbor, his boss, and his sister. After hearing this testimony, the jury deliberated and sentenced Sanders to death.
Sanders appealed the decision, but the Kentucky Supreme Court upheld the verdict. See Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990) ( Sanders I ). He then filed a motion for post-conviction relief under Kentucky Rule of Criminal Procedure ("RCr") 11.42. That, too, was denied. See Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 2002) ( Sanders II ). Sanders filed a petition for a writ of habeas corpus in this Court. Soon afterward, he obtained leave to present additional unexhausted claims to the state court. R. 32. The Kentucky Supreme Court again completely denied relief, determining that Sanders could have presented his latest batch of claims in his prior appeals. See Sanders v. Commonwealth, 339 S.W.3d 427 (Ky. 2011) ( Sanders III ). After his third and final trip to the Kentucky courts, Sanders withdrew some claims from his federal habeas petition. When this Court denied relief on his amended petition, Sanders filed the present motion for reconsideration under Federal Rule of Civil Procedure 59.
Sanders may move to alter or amend the Court's judgment under Rule 59(e) based on previously unavailable evidence or an intervening change in controlling law. See GenCorp. Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); see also McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999). The Court may also grant a Rule 59(e) motion in order to prevent manifest injustice. See Besser v. Sepanak, 478 F.Appx. 1001 (6th Cir. 2012) (per curiam) (citing GenCorp., 178 F.3d at 834). But Sanders may not use his Rule 59(e) motion as a vehicle for re-arguing the case. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) ("[P]arties should not use [Rule 59(e) motions] to raise arguments which could, and should, have been made before judgment issued.").
Sanders does not satisfy the Rule 59(e) standard to overturn the Court's judgment on four of the five disputed claims. Sanders does, however, present new authority that supports reconsidering Claim 27(I). The new authority reflects recent developments in the law following the Supreme Court's decisions in Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013). In light of these changes, the Court must revisit its previous decision.
I. Sanders does not meet the Rule 59(e) standard for vacating the Court's judgment as to Claims 10.7, 22.6, 27(B), and 27(E).
Sanders asks the Court to clarify its ruling on two claims related to the trial court's failure to order competency hearings. See R. 115 at 1-2 (identifying Claim 10.7 and Claim 22.6). He argues that the Court both decided that the claims were procedurally defaulted and resolved on the merits in the Kentucky courts. Id. This, he notes, is not possible. Sanders does not present new evidence or law related to these claims, so the Court will not overturn its previous decision as to these issues. And to clarify, the Court determined that Sanders procedurally defaulted on both Claim 10.7 and Claim 22.6. See R. 113 at 12-13. Not only that, but Sanders conceded that he procedurally defaulted those claims. See id. (citing to R. 111 at 4-5). Sanders misquotes the opinion to conclude that the Court determined that these claims were resolved on the merits. He cites to pages describing how the Kentucky state courts reached the merits of different claims: that Sanders' appellate counsel was ineffective because he failed to challenge the lack of competency hearings before trial and sentencing. See R. 113 at 119-20.
Next, Sanders objects to the Court's decision on Claim 27(B)-that his counsel failed to obtain Dr. Flenning's psychiatric report. See R. 115 at 34-38. But Sanders merely rehashes arguments that he could have raised-and that he did raise-in his initial habeas petition. Compare R. 115 at 35-37 (arguing in his Rule 59 motion that Charters' conduct was "materially indistinguishable from what the Supreme Court found unreasonable in" Wiggins v. Smith, 539 U.S. 510 (2003)), with R. 73 at 312 (citing to Wiggins and other cases for the proposition that a "legion" of courts have found that the failure to present mitigation evidence amounted to ineffective assistance of counsel). For the same reasons articulated in the previous opinion, those arguments do not satisfy Sanders' burden to show that the Kentucky Supreme Court's decision was unreasonable. See R. 113 at 89-90. Because Sanders does not offer any previously unavailable new law and does not demonstrate a clear error of law in the Court's decision, the Court will not reconsider Claim 27(B).
Finally, Sanders contends that the Court "should have reviewed [Claim 27(E)] on the merits"-without any deference to the Kentucky Supreme Court. See R. 115 at 39. While Sanders' briefing is unclear, he appears to argue that the Court should have reviewed the claim de novo because he complied with Kentucky's procedural rules. See id. But, as the Court previously held, the Kentucky Supreme Court properly resolved Claim 27(E) on the merits. See R. 113 at 90-93 (applying deference to the state court's merits determination); Sanders II, 89 S.W.3d at 390 (concluding that "there is nothing to complain about related to ineffective assistance"). As a result, the Court may grant relief only if that decision was unreasonable. See 28 U.S.C. § 2254(d). Once again, however, Sanders' arguments do not rest on any new law or facts suggesting that the Kentucky Supreme Court's decision was unreasonable. Nor does Sanders establish any clear error requiring reconsideration. So Sanders' Rule 59(e) motion as to Claim 27(E) fails.
Sanders also asks the Court to consider new arguments for granting relief on Claim 27(E). See R. 115 at 39 (arguing that Sanders should receive an evidentiary hearing because the state decision was based on a "materially incomplete record"). But Sanders may not use his Rule 59(e) motion as a vehicle to raise new arguments. See Sault Ste. Marie Tribe of Chippewa Indians, 146 F.3d at 374. Because Sanders could have raised this argument in his habeas petition or reply-but elected not to do so-he may not use a Rule 59 motion to raise them now.
II. Sanders points to recent case law signaling changes in habeas jurisprudence that support reconsideration of Claim 27(I).
Claim 27(I) concerns the failure of Sanders' trial counsel to prepare and present appropriate mitigation evidence during the penalty phase of the trial. Sanders objects to the Court's resolution of Claim 27(I) on two broad grounds: the procedural default analysis and the alleged resolution of the merits. See generally R. 115 at 2-34. Before delving directly into the substance of Sanders' arguments, it is helpful to briefly review four issues related to Claim 27(I): (1) the factual background, (2) the Kentucky Supreme Court's decision, (3) Sanders' federal habeas petition and reply brief, and (4) this Court's previous decision.
The relevant factual background is short. Sanders' trial attorney, Charters, presented a total of ten minutes of mitigation testimony from four witnesses during the penalty phase of Sanders' trial. None of the witnesses spoke about the physical and emotional abuse that Sanders claims he suffered at the hands of his parents throughout his childhood. Nor did any of the witnesses testify about Sanders' previous head injuries. In the RCr 11.42 motion, Sanders' post-conviction counsel claimed that Charters' failure to develop robust mitigation evidence amounted to ineffective assistance of counsel. See Motion to Vacate, Set Aside, or Correct Sentence Pursuant to RCr 11.42 at 50-52, Madison Circuit Court, No. 87-CR-018 (Feb. 9, 1993), Appellate Proceedings at 550-52; see id. at 551 ...