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Sanders v. White

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

May 16, 2017

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

          MEMORANDUM OPINION AND ORDER

          Amul R. Thapar United States District Judge

         David Lee Sanders shot two men execution-style in a convenience store. Although he admitted to the murders-and another shooting-he told the jury he was insane at the time. The jury nevertheless found him guilty and sentenced him to death, an outcome Sanders has been challenging ever since. Most recently, he brought a federal habeas petition stating over forty claims for relief, all of which this Court denied. R. 113; R. 150.

         Sanders now wants to bring many of those claims before the Sixth Circuit. To do so, he needs a certificate of appealability. 28 U.S.C. § 2253. As shown below, the Court has grounds for issuing one, but only as to Claim 18 and specific aspects of Claims 27(F) and 36. See id. § 2253(c)(3) (“The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required[.]”).

         I. The law

         This Court sits in essence as a court of third instance. In the first, the Kentucky state courts declined to grant Sanders relief. In the second, this Court declined to overturn that decision. Now the question is whether a reasonable jurist could disagree with this Court's decision about the state courts' decision. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). First of all, a reasonable jurist would need to know how the Court made its decision.

         a. AEDPA

         Sanders was sentenced in state court, first brought his habeas claims in state court, and first saw them denied in state court. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) tells the Court how to review state courts. 28 U.S.C. § 2254.

         AEDPA respects comity, i.e., it prevents federal courts from pretending to be what they are not: better than state courts at applying law. See Harrington v. Richter, 526 U.S. 86, 102-03 (2011). Since they are not, AEDPA makes it difficult for federal courts to overturn state-court decisions. The one time AEDPA permits a federal court to review a habeas claim de novo-deciding the merits of the claim for itself-is when the state court has not decided the merits of that claim for itself. See Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011) (“Claims that were not ‘adjudicated on the merits in State court proceedings' receive the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of law and fact), and clear error for questions of law.”). Sometimes, for example, a state court will improperly find a claim procedurally barred. See Walker v. Martin, 562 U.S. 307, 316 (2011) (noting that state procedural rules are inadequate unless “firmly established and regularly followed.” (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009))). And in that case, the federal court will review the claims de novo to ensure that someone does.

         Otherwise, federal-court review of state-court habeas decision is quite circumscribed. If a state procedural rule is adequate-firmly established, regularly followed-a federal court must respect it. Thus, if a petitioner “defaults” a claim by failing to comply with such a rule, a federal court must generally decline to hear it. Coleman v. Thompson, 501 U.S. 722, 731 (1991). If the state court reached the merits of the claim, a federal court may consider them, too. But it may overturn the state court's decision in only one of three limited circumstances: where that decision (1) “was contrary to . . . clearly established Federal law, ” (2) “involved an unreasonable application of[] clearly established Federal law, ” or (3) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         In the claims he seeks to appeal, Sanders argues that the state court either contradicted (circumstance one) or unreasonably applied (circumstance two) federal law. Not just any federal law will do, however. Sanders must show that the Kentucky Supreme Court either disregarded or mishandled some “clearly established Federal law[] as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). And that law must have been around when the Kentucky Supreme Court decided his habeas claims. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011).

         To have reached a decision “contrary to” that law, the state court basically must have missed an on-point Supreme Court case while doing its legal research. Specifically, the court must have either applied a rule that “contradicts” one that the Supreme Court has set forth or decided the opposite of what the Supreme Court did on “materially indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). As a corollary, if the state court identifies and applies the right rule-as articulated by the Supreme Court-it has not made a decision “contrary to” federal law. Id. at 406.

         But it still might have applied that rule unreasonably, in which case a federal court would have to grant habeas relief. For AEDPA purposes, however, a state court's decision must be deeply flawed to be considered unreasonable. A decision is not “unreasonable” just because a federal court disagrees with it. As the saying goes, reasonable minds can disagree; though they might disagree, they are both still reasonable. And AEDPA presumes that state courts are reasonable. When applying AEDPA, therefore, federal courts usually do not upset state-court decisions-even if a federal court believes a particular decision is “clear error.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Rather, to be considered “unreasonable, ” a decision must be “so lacking in justification” that its incorrectness is “beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Imagine every judge in the country picked up the state-court decision and that each of them is reasonable. If none could possibly disagree that the state court had misapplied Supreme Court law, the decision is unreasonable. Then, and only then, does a petitioner have a claim under AEDPA's third prong. But if some of those judges could disagree-in other words, if some could find the state court's reasoning reasonable-the petition does not have a claim. Id. at 101-02. As with any standard that considers what a reasonable person would do (while wearing robes or not), this standard is an “objective” one. Woodall, 134 S.Ct. at 1702. If a state-court decision was objectively reasonable, a federal habeas court may not displace it.

         b. Certificates of appealability

         The Court has already held that none of Sanders's claims meet either the contrary-to-or unreasonable-application-of-federal-law standards. R. 113; R. 150. Sanders now wants to appeal some of those claims.

         But AEDPA respects economy as well as comity. Thus, before appealing his claims, a petitioner needs a certificate stating that his claims are actually appeal worthy. Though this requirement “screens out issues unworthy of judicial time and attention, ” Gonzalez v. Thaler, 565 U.S. 134, 145 (2012), it does not foreclose the appellate process entirely. If a petitioner can make a “substantial showing” that he has been denied a constitutional right, he deserves a certificate of appealability. 28 U.S.C. § 2253(c)(2). Here again, courts apply an objective standard, asking that imaginary reasonable jurist sitting on our shoulders what she would do. If “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner, ” the petition is appealable. Slack, 529 U.S. at 483- 84. The standard demands modesty: Courts must acknowledge when they have ruled on a difficult issue that “deserve[s] encouragement to proceed further.” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

         With only a few exceptions-which the Court will explain as they arise-the Court reviewed and denied Sanders's habeas claims under AEDPA, specifically its unreasonable-application prong. Before addressing those claims once more, it is important to define how the Court must address them. The Court is not permitted to decide Sanders's claims anew: whether counsel was ineffective, whether the trial court mis-instructed the jury, and so on. The Kentucky Supreme Court has already decided those claims, and this Court has already found its decision objectively reasonable. Now Sanders must show that the Court was wrong or at least debatably wrong: that if another jurist were in the undersigned's place, he might not have let the state court's decision stand. Slack, 529 U.S. at 484. Sanders may appeal any claim for which this is true.

         II. The claims

         Sanders seeks to appeal twelve of his forty-plus habeas claims. R. 151. In eight of them he alleges that his trial attorney assisted him ineffectively; in one he challenges the trial court's jury instructions; in another he argues that the prosecution violated Brady; and in the last he contends that all these alleged errors prejudiced him cumulatively.

         The Court will address the claims in the order Sanders has raised them here.

         a. Ineffective-assistance claims

         To prove that his lawyer was so deficient as to deprive him of his Sixth Amendment right to effective assistance of counsel, Sanders must show more than that his lawyer made some bad calls. That's because the Sixth Amendment guarantees defendants effective-not perfect-counsel. And “effective” encompasses a broad range of attorneys. Thankfully, it normally does not include those who are (literally) asleep on the job. E.g., United States v. Ragin, 820 F.3d 609, 612-13 (4th Cir. 2016). But otherwise, courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” given that “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

         The Supreme Court has turned that presumption into the two-prong Strickland test. To get his conviction overturned on account of his lawyer's performance, a defendant must first show that his lawyer's performance was indeed deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Second, a defendant must show that his lawyer's deficient performance prejudiced him. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial[.]” Id. Unless he can make both showings, the claim will fail. Id. And thus, if a defendant fails to satisfy either prong, the court will deny relief without considering the other one. Id. at 697.

         As the Sixth Circuit has often said, “AEDPA, in conjunction with Strickland, requires [courts] to give double deference to the findings of the” state courts. Brown v. McKee, 460 F. App'x 567, 579 (6th Cir. 2012); see David v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011). Under Strickland, the Kentucky courts were required to give deference to Sanders's lawyer; under AEDPA, meanwhile, this Court is required to give deference to the Kentucky courts' assessment of his performance. Thus-assuming the state court applied the right standard (a.k.a. Strickland)-the question is not whether Sanders's lawyer stepped outside of the wide professional boundaries that Strickland draws, but whether the state court was reasonable in determining that he did not. See Richter, 562 U.S. at 101. This Court decided that it was. Now that Sanders seeks to appeal, the question is more attenuated still: Could reasonable jurists find this Court's decision about the state court's decision wrong or at least debatable? Slack, 529 U.S. at 484.

         i. Claim 27(L): Ineffective assistance for failure to seek competency proceedings.

         In Claim 27(L), Sanders argues that his trial attorney was ineffective for failing to request a competency evaluation after noticing that Sanders had lost the ability to concentrate at trial and sentencing. R. 73 at 313-316. Because the Kentucky Supreme Court denied this claim on erroneous procedural grounds, this Court reviewed it de novo. R. 113 at 114-15; see Robinson, 663 F.3d at 822. The Court assumed-without deciding-that counsel might have been deficient. R. 113 at 129. But this deficiency did not prejudice Sanders's case. Sanders had already gone through a six-week evaluation. His evaluators had found him competent to stand trial. See R. 113 at 117. And he was losing focus during trial largely because he was not getting enough sleep-not because he had suddenly become mentally incompetent. Id. Because “[n]othing in the record reveal[ed] that the trial court would have had any grounds to grant a new motion for a competency hearing after the trial began, ” Sanders could not “demonstrate that he was prejudiced by [his attorney's] failure to move for a competency hearing.” Id. at 118-19. Thus, he had no Strickland claim.

         Sanders contends that reasonable jurists could disagree with the Court in two ways. First, he argues that he must show “merely that he would have been entitled to a competency hearing if trial counsel had requested one, ” R. 151 at 11-and not, as this Court held, go the extra step of showing a “‘reasonable probability' that his verdict would have been different had [trial counsel] formally requested” such a hearing, R. 113 at 117. But Claim 27(L) is a claim of ineffective assistance of counsel.[1] To prove that claim, Sanders must show that his attorney acted unreasonably and that his unreasonableness prejudiced Sanders's case. Thus, Sanders cannot show that his attorney violated his Sixth Amendment rights without showing reasonable probability that his trial would have come out differently if his lawyer had done things differently. See, e.g., Hart/Cross v. United States, 89 F.3d 833 (6th Cir. 1996) (table). This case is therefore unlike the Eleventh Circuit case that Sanders cites, Davis v. Sec'y for Dep't of Corrs., 341 F.3d 1310, 1316 (11th Cir. 2003), which dealt with an attorney's failure to preserve an issue for appeal, not an attorney's alleged failure to halt-or at least delay- the trial itself by requesting a competency hearing.

         Even so, Sanders argues next, he can show that his lawyer prejudiced him. Because (he says) “reason existed to believe Sanders may have become incompetent” during his trial, the trial court would-or at least should-have granted a competency hearing had his lawyer asked for one. R. 151 at 7. In Kentucky, such a hearing is required “only” when a trial court sees “reasonable grounds to believe that the defendant is not mentally competent.” Pate v. Commonwealth, 769 S.W.2d 46, 47 (Ky. 1989). And Kentucky defendants have “no right to a continual succession of competency hearings in the absence of some new factor.” Id. Such “new factors” are difficult to show. See, e.g., id. (“The testimony of the psychiatrist that [the defendant] suffered from schizophrenia and was mildly retarded and defense counsel's statement that she could not communicate with the defendant as well as [the defendant]'s testimony that he did not remember confessing to the crimes was not sufficient to require the trial judge to hold a second competency hearing prior to sentencing.” (emphasis added)). Aside from alleging that he was “quite possibly” reaching a “boiling point” during trial, R. 151 at 8, Sanders offers no actual evidence of any new incompetence factor. Meanwhile, he had not only already undergone a six-week evaluation-where he was found competent- but he explicitly told the judge that he understood what was going on. See R. 113 at 116. The court would have had no reason (at least not that Sanders has shown) to grant another evaluation. And if the court had no reason to grant one, Sanders suffered no prejudice from his counsel's failure to ask for one.

         Sanders was therefore not deprived of his constitutional right to effective counsel. Because no reasonable jurist looking at the relevant facts and law could disagree, this claim does not warrant a certificate of appealability.

         ii. Claim 27(J): Ineffective assistance for failing to prepare Sanders to testify during sentencing.

         In Claim 27(J), Sanders asserts that his lawyer failed to tell him of his right to testify and, when Sanders decided to do so anyway during sentencing, failed to prepare him enough. R. 73 at 306-12. The Kentucky Supreme Court denied this claim as mere “speculation.” Sanders v. Commonwealth, 89 S.W.3d 380, 391 (Ky. 2002), overruled in part on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Because that court denied the claim on the merits, this Court reviewed it under AEDPA, concluding that the state court had reasonably applied the Strickland standard. Sanders himself stated on the record that counsel told him of his right to testify. And even if counsel prepared Sanders poorly for his moment on the stand, Sanders failed even to argue in state court that this preparation prejudiced him. Fairminded jurists could therefore agree with the state court that Sanders did not meet his burden to prove an ineffective-assistance claim. R. 113 at 112-14.[2]

         Sanders replies in three ways. First, he says reasonable jurists could debate whether his lawyer performed effectively-more specifically, (1) whether “an attorney could ever adequately prepare a defendant to testify” in just “three minutes, ” the amount of time he and his lawyer allegedly spent together right before he took the stand; (2) whether “a reasonable attorney would elicit the testimony trial counsel elicited from Sanders, ” putting aside that counsel asked Sanders no questions and instead opted to just let him speak; (3) whether “a reasonable attorney would have advised Sanders not to testify . . . that he was innocent and that everything was the state correctional psychiatric center's fault, ” as Sanders did; and (4) whether “Sanders suffered prejudice from the content of [his] testimony.” R. 151 at 15. Numbers one through three are deficiency arguments and thus do not help prove what Sanders needed but failed to prove in state court: that this deficiency prejudiced him.

         Number four goes to prejudice, in that it states simply that Sanders was prejudiced. But his failure to prove this statement in the state court-rather than for the first time here- is exactly why the statement does not entitle Sanders to habeas relief. On AEDPA review, the Court is constrained by its role. Its role is not to decide Sanders's claims; its role is to double-check the court that originally did so. And its oversight may not be too penetrating: As long as the state court's decision was not so unreasonable that no reasonable jurist could fail to spot the problem, the Court must deny relief. So what matters are not the prejudice arguments that Sanders presents here; federal habeas review is not a chance to hone claims. What matters is how the state court ruled on the arguments he presented there. Because he presented none about prejudice, it was not clearly unreasonable-indeed, it was reasonable- for the state court to decide that Sanders had failed to prove his ineffective-assistance claim. For AEDPA purposes, if a federal court can say that much, then that is all it may say.

         Second, Sanders contends that he actually presented prejudice arguments before the Kentucky Supreme Court. In his brief to that court, he says, he described his case taking a turn for the worse because of these aspects of his testimony: “that he feels guilty, ” “that he d[id]n't know what to say to the jury, ” and his “blaming the state psychiatric center [where he had been evaluated] for what happened and for not helping him.” Id. But these are all arguments that his testimony prejudiced him, not that his lawyer's conduct prejudiced him. To conclude that his lawyer's conduct prejudiced him-as the Court would need to conclude before ruling in his favor-the Court would need to believe that Sanders would have testified so differently had his lawyer prepared him differently that trial would have ended differently. And as the Kentucky Supreme Court explained, that belief could rest only on speculation- not a sufficient ground for habeas relief. See Richter, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just conceivable.”).

         Finally, Sanders argues that if this claim is speculative, it is speculative because Sanders has never received the evidentiary hearing to which he is entitled. R. 151 at 13-14. The Court has already explained why he is not entitled to such an additional hearing in this Court. R. 113 at 130-32. But Sanders still argues that he needs and deserves one for various claims. See infra Parts II.a.v-vii. This argument implies that the Court got things wrong because it did not have the facts necessary to get them right. So a recap is necessary. AEDPA “strongly discourage[s]” petitioners from “submit[ting] new evidence in federal court.” Pinholster, 563 U.S. at 186. Generally, if the state court adjudicated the claim on the merits, the federal court may only consider that claim “on the record that was before the state court.” Id. at 185. If AEDPA did not deny Sanders relief-because the state court did not adjudicate his claim on the merits-the Court would have some leeway to develop evidence; the Court might need that evidence as it considers the claim afresh. But even then, since Sanders “failed to develop” the “factual basis” for these claims in state court, the Court could let him do so here only if he qualified for one of the limited exceptions provided in 28 U.S.C. § 2254(e)(2). He fails to argue that he does. Plus, the analysis need not go even that far. The state court adjudicated these claims on the merits (and this Court upheld its decision). Thus, AEDPA denies relief, and this Court is constrained to the record that was before the state court.[3]

         But Sanders also asserts that the state court should have given him another chance to develop evidence. Its failure to do so, he says, shows that it denied his claim on improper procedural grounds. And so, the argument goes, this Court should have reviewed ...


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