David Sanders v. Laura Plappert

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0064p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

DAVID LEE SANDERS,

│

Petitioner-Appellant, │

│

v. │

> No. 16-6152

│

LAURA PLAPPERT, Warden, │

Respondent-Appellee, │

│

│

UNITED STATES OF AMERICA, │

Intervenor. │

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:03-cv-00455—Amul R. Thapar, District Judge.

Argued: January 29, 2025

Decided and Filed: March 3, 2026

Before: SILER, GIBBONS, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Brian M. Pomerantz, Carrboro, North Carolina, for Appellant. Kristin L. Conder,

OFFICE OF THE SOLICITOR GENERAL, Frankfort, Kentucky, for Appellee. David

Lieberman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Intervenor. ON BRIEF: Brian M. Pomerantz, Carrboro, North Carolina, David M. Barron,

KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

Kristin L. Conder, Christopher Henry, Stephanie L. McKeehan, OFFICE OF THE SOLICITOR

GENERAL, Frankfort, Kentucky, for Appellee. David Lieberman, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.

GIBBONS, J., delivered the opinion of the court in which SILER, J., concurred.

STRANCH, J. (pp. 40–78), delivered a separate dissenting opinion.

No. 16-6152 Sanders v. Plappert Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Petitioner David Lee Sanders was sentenced

to death for the murder and robbery of two men inside a Kentucky convenience store in 1987. A

jury rejected Sanders’s only defense: that he was not guilty by reason of insanity. After

Sanders’s initial sentencing, a protracted series of proceedings followed, which yielded four

Kentucky Supreme Court decisions, three denials of certiorari from the U.S. Supreme Court, and

a federal district court decision (and reconsideration). Before us now, Sanders makes two main

arguments. First, he argues that the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

which narrows our ability to grant habeas relief when a state court decision has already decided a

petitioner’s claim on the merits, is unconstitutional. Second, he argues that ambiguous jury

instructions regarding his insanity defense, deficient performance by trial counsel, and

cumulative error violated his constitutional rights.

We hold that AEDPA is constitutional and, applying it to Sanders’s claims, the Kentucky

Supreme Court’s decisions on jury instructions and several of Sanders’s ineffective assistance of

counsel claims were not contrary to law and did not involve an unreasonable application of

federal law. As for Sanders’s claims not accorded AEDPA deference, we hold that they still fail

under de novo review because Sanders fails to show prejudice. Finally, Sanders’s cumulative-

error claim was procedurally defaulted and otherwise lacks merit. Thus, we affirm the district

court’s denial of Sanders’s habeas petition in its entirety.

I.

On January 28, 1987, a customer stopped by the Boone Variety Store near Richmond,

Kentucky. Upon entering the store, she was confronted with a horrific scene. Behind the

counter, Jim Brandenburg lay slumped over. Near the door, Wayne Hatch was face down,

gurgling in a pool of his blood. Both men had bullet holes in the back of their heads. Two bank

bags had been taken from the store, and the men’s wallets had been stolen. Less than an hour

earlier, Sanders had stopped by the store. After paying for his purchases, Sanders asked

No. 16-6152 Sanders v. Plappert Page 3

Brandenburg, who was behind the counter, if he could use the phone. Brandenburg directed

Sanders to the payphone. Sanders then called his mother and confirmed he would come over on

Thursday evening. Then he called his wife to let her know he would not come home until

Friday.

Sanders then went into his truck and retrieved two loaded guns. He reentered the store,

where he saw Brandenburg behind the counter with his back to him. Sanders walked to the

counter, placed the barrel of one of his guns against the back of Brandenburg’s head, and pulled

the trigger, killing him. Sanders then took Brandenburg’s wallet, as well as a bag of money

sitting on the counter. Hatch then entered the store through the front door while Sanders still had

his gun out. Although it is uncertain how Hatch got on the floor, Sanders shot Hatch in the back

of the head while he was lying face down on the floor and took his wallet. Sanders then drove

home, tossing some items he had stolen out the window.1

A.

Based on the timing of the murders and outgoing calls from the store’s telephone, it did

not take long for officers to suspect Sanders was responsible. When police first interviewed

Sanders, he denied committing the murders and told various stories supporting his innocence.

However, as the evidence accumulated, Sanders eventually confessed. After Sanders’s

confession, concerns about his mental health developed. On the day of his confession, the jail

psychologist, Dr. John Moffit, wrote a letter to the trial judge stating that he felt that Sanders “

[was] suicidal at this time, and hence, all precaution should be taken to prevent him from acting

on these impulses.”2 DE 165-1, Moffit Ltr, Page ID 2813. A few weeks later, Sanders’s

attorney, J. Kevin Charters, moved to commit Sanders to a state institution for a mental health

examination, believing that he might be mentally ill. In response, the Kentucky state trial court

ordered Sanders to be moved to the Kentucky Correctional Psychiatric Center (“KCPC”), where

he was to be evaluated for competence to stand trial, competency at the time the crimes were

committed, and for any other mental issues.

1

These facts, which were presented to the jury before it recommended a sentence of death, are undisputed.

2

The next day, Moffit also wrote a notarized letter reiterating his concerns and describing Sanders as

“possibly of the dissociative [d]isorder type.” DE 167-1, Moffit Ltr., Page ID 4020.

No. 16-6152 Sanders v. Plappert Page 4

A month and a half later, Dr. Candace Walker from KCPC sent her report to the trial

court. The report concluded that Sanders suffered from no mental illness that could absolve him

of responsibility for his crime. According to the report, Sanders understood the proceedings

against him, was of at least average intelligence, and could cooperate with his attorney in his

defense. The report also concluded that Sanders did not suffer from any mental disease or defect

that could prevent him from conforming his conduct to the law and that there was no evidence

that he was suffering from a mental defect when he committed the alleged crimes. Finally, the

report also noted that Sanders described his background, particularly his childhood, differently to

various KCPC members.

One of the KCPC team members involved in the report was Dr. Frank Flenning.

Flenning wrote an independent report that was not included in the ultimate Walker report.

Flenning’s report was more mixed and concluded that there was some evidence to suggest that

Sanders suffered from a mental deficiency resulting from traumatic experiences in his childhood.

But notably, the existence of this report was never made known to any of the parties or presented

to the jury. This is likely due to Walker’s report that they had “found no medical evidence to

indicate that he was suffering from such a disorder at the time of the alleged crime.” DE 165-4,

Walker KCPC Pretrial Competency Evaluation Rep., Page ID 2819. Such a statement indicated

that Walker’s team was unanimous in its conclusion.

Sanders’s attorney also did not interview Walker or any member of her team. Instead,

Charters opted to retain Dr. Stuart Cooke, a clinical psychologist, to testify on Sanders’s behalf.

Cooke interviewed Sanders and administered various tests—all within two and a half hours.

Cooke also interviewed Sanders’s brother and read the Walker report. With this information,

Cooke concluded that Sanders suffered from a depersonalization disorder during the time of the

crime and could not control his actions.

B.

At trial, Sanders asserted an insanity defense. The defense called two witnesses: Sanders

himself and Cooke. Sanders admitted to shooting and killing Brandenburg and Hatch but

insisted he could not control himself. Sanders testified that as he went to his truck, he felt

No. 16-6152 Sanders v. Plappert Page 5

“funny” and remembered telling himself: “Oh God no. Not – not again. You are not going to do

it again.” DE 166-3, Trial Tr., Page ID 3781. Sanders testified that he tried to stop himself but

could not. Sanders further told the jury: “I watched my left hand raise, and it had a loaded gun in

it. I could not stop it. . . . I didn’t watch that man fall, I didn’t want that to happen. I didn’t want

any of that to happen.” Id. at 3782–83.

Next, the defense called Cooke to the stand. Cooke corroborated Sanders’s testimony

and told the jury that Sanders suffered from a depersonalization disorder, causing him to lose

control of his body and his awareness of reality. In response, the prosecution called Walker to

the stand. Walker described the full battery of psychological tests performed on Sanders. After

a month and a half of testing, Walker testified that, while Sanders likely had a personality

disorder, he did not suffer from any disease that would impair his competence. She noted that

Sanders had never presented any evidence of depersonalization disorder. Instead, Walker

suggested that Sanders’s shifting stories and attempts to manipulate staff members suggested that

he may have been attempting to fabricate a mental illness to avoid responsibility.

According to Sanders, Cooke’s credibility was significantly undermined in the

prosecutor’s closing argument in several ways that support ineffective assistance of counsel

argument. First, Cooke mispronounced his last name as “Saunders,” a fact the prosecution

pointed out to the jury. Second, Cooke made a few factual mistakes such as testifying that he

saw Sanders on a date and time when Sanders was unquestionably in court. Third, Cooke only

interviewed and tested Sanders for two and a half hours, far less than the one and a half months

of extensive testing Walker and her team had conducted.

After all the testimony was completed, the court gave the jury instructions on four

offenses: two counts of murder and two counts of first-degree robbery. Sanders did not object to

any of these instructions. The court listed each count and told the jury it could only find Sanders

guilty “if they believe[d] from the evidence beyond a reasonable doubt [that he committed the

crimes.]” DE 166-4, Trial Tr., Page ID 3914–16. After listing these offenses, the court further

told the jury that they “shall find [Sanders] not guilty” for reasons of insanity if they “believe[d]

from the evidence” that Sanders could not control his actions. Id. 3917. This is a different

standard than the beyond a reasonable doubt standard. Under Kentucky law, trial courts instruct

No. 16-6152 Sanders v. Plappert Page 6

juries that they can find insanity under the lower standard of “from the evidence.” Gall v.

Commonwealth, 607 S.W.2d 97, 110 (Ky. 1980), overruled on other grounds by Payne v.

Commonwealth, 623 S.W.2d 867 (Ky. 1981). The jury instructions, as the jury heard and read

them, were as follows:

Even though you might otherwise find the defendant guilty of the offenses

mentioned in instructions number 2, 3, 4 and 5, [(murder and robbery

instructions)] if you believe from the evidence that at the time David Lee Sanders

committed these offenses, if he did so, he was of unsound mind, you shall find

him not guilty and say in your verdict that you find him not guilty on the ground

of insanity. Before the defendant can be excused from the ground of insanity, you

must believe from the evidence that at the time of the act in question the defendant

as a result of mental disease or defect, A, did not have substantial capacity to

appreciate the criminal nature of the act or, B, if he did have such capacity he did

not have substantial capacity to conform his conduct to the requirements of the

law. The term “mental disease” or “defect” does not include an abnormality

manifested only by repeated criminal or otherwise anti-social conduct.

DE 166-4, Trial Tr., Page ID 3916–17 (emphases added).

The jury found Sanders guilty on all counts.

C.

Having been found guilty of the murders, Sanders’s trial proceeded to the penalty phase.

The entire penalty proceeding, including the closing argument by Charters, lasted about an hour.

Sanders first presented testimony from his employer, his neighbor, the assistant principal of his

high school, and his sister. All expressed shock that Sanders had committed these crimes and

told the jury that he was a good person. After these four witnesses, Sanders himself testified.

Sanders testified that he could not control his actions and did not even need the money he stole.

Sanders also told the jury that the evaluators at KCPC did not appropriately understand him or

his mental issues. Sanders did not testify to, and was not asked by his counsel, about any

childhood abuse that he had suffered. The jury recommended, and the court imposed a sentence

of death for Sanders’s killing of Brandenburg and Hatch. Sanders v. Commonwealth, 801

S.W.2d 665, 668 (Ky. 1990) (“Sanders I”).

No. 16-6152 Sanders v. Plappert Page 7

D.

After Sanders’s conviction and sentence, a series of appeals and collateral attacks

followed. First, Sanders directly appealed to the Kentucky Supreme Court, which affirmed his

sentence. Sanders I, 801 S.W.2d at 684. The Kentucky Supreme Court rejected his argument

that the trial court had failed to specify the burden of proof, noting that in Kentucky, the common

insanity instruction is “believed ‘from the evidence.’” Id. at 679 (citing Gall, 607 S.W.2d at

110). Sanders subsequently petitioned for a writ of certiorari, which the U.S. Supreme Court

denied. Sanders v. Kentucky, 502 U.S. 831 (1991).

Sanders then pursued several postconviction proceedings in Kentucky state court, seeking

to vacate his death sentence. 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); see

also Ky. Rule of Crim. Pro. 11.42 (Kentucky criminal procedure rule for modifying a

defendant’s sentence). In Sanders II, the Kentucky Supreme Court considered and rejected all of

Sanders’s arguments that his counsel was constitutionally defective. Sanders II, 89 S.W.3d at

394. Sanders filed another petition for a writ of certiorari, which the U.S. Supreme Court again

denied. Sanders v. Kentucky, 540 U.S. 838 (2003).

Sanders then petitioned for a writ of habeas corpus in federal court in 2003. The district

court held Sanders’s petition in abeyance, so Sanders could exhaust his state court claims. In

2011, the Kentucky Supreme Court again rejected all of Sanders’s claims for post-conviction

relief. Sanders v. Commonwealth, 339 S.W.3d 427 (Ky. 2011) (“Sanders III”). Sanders filed a

third petition for a writ of certiorari, which the U.S. Supreme Court denied once again. Sanders

v. Kentucky, 566 U.S. 907 (2012).

Having exhausted all his state claims, Sanders returned to federal court to file a

supplemental petition for writ of habeas corpus. In February 2015, the district court denied

Sanders’s petition on all grounds. In June 2016, the district court first granted Sanders a

Certificate of Appealability (“COA”) for his argument that Charters had provided

constitutionally ineffective assistance of counsel by failing to appropriately prepare and present

mitigating evidence at the trial’s penalty phase. Then, in May 2017, the district court granted

No. 16-6152 Sanders v. Plappert Page 8

Sanders a COA for his claims that the jury instructions on insanity had violated due process, that

the Kentucky Supreme Court had unreasonably applied Strickland v. Washington, 466 U.S. 668

(1984), and that Sanders had sustained cumulative prejudice due to his counsel’s deficiencies.

We later granted additional COAs concerning whether Charters had rendered ineffective

assistance of counsel for (1) “failing to retain an adequate mental-health expert”; (2) “not

pursuing leads relating to the evaluation of a mental-health expert”; (3) “inadequately preparing

Sanders to testify during the trial’s sentencing phase”; and (4) “repeatedly failing to move for

additional evaluation of Sanders’s competency.” CA6 R.34-1, Order of the Court, at 3–4.

At this point, we again held Sanders’s case in abeyance while he pursued a new claim in

Kentucky state court arising from a recent Kentucky Supreme Court decision, which Sanders

argued called into question the correctness of the state trial court’s previous ruling denying his

motion to reopen. Ultimately, the Kentucky Supreme Court rejected Sanders’s request to reopen

his case. Sanders v. Commonwealth, 2022 WL 3640912, at *4 (Ky. Aug. 18, 2022) (“Sanders

IV”).

Now back before us, Sanders argues in his supplemental briefing that § 2254(d) of

AEDPA is unconstitutional. See 28 U.S.C. § 2254(d). Because the constitutionality of a federal

statute was called into question, the United States exercised its statutory right to intervene as an

independent party. See 28 U.S.C. § 2403(a). Thus, we are now presented with two general

claims: (i) whether AEDPA is unconstitutional and (ii) whether Sanders’s constitutional rights

were violated during his state trial proceedings under AEDPA review.

II.

Sanders brings a habeas petition under § 2254(d) of AEDPA, which limits our ability to

grant remedial relief to a state prisoner whose claims were previously adjudicated on the merits

in the state court. Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020). Under AEDPA, we may

only grant a writ of habeas corpus if the claim disputed in the underlying state court proceeding

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States” or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light

No. 16-6152 Sanders v. Plappert Page 9

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The

Supreme Court has regularly “reminded” courts that this test is “difficult to meet.” White v.

Woodall, 572 U.S. 415, 419 (2014) (citation omitted).

Under § 2254(d)(1), or the “contrary to” clause, “a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme] Court has on a

set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

State prisoners must make two basic showings. See Bergman v. Howard, 54 F.4th 950, 957 (6th

Cir. 2022), cert. denied, 143 S. Ct. 2445 (2023). First, they must identify a “clearly established”

principle of “Federal law” that the “Supreme Court” has pronounced. 28 U.S.C. § 2254(d)(1).

This language allows prisoners to seek relief based on just one source: Supreme Court decisions.

Id. Even more narrowly, prisoners must rely on the “holdings” of those decisions; the Court’s

dicta does not clearly establish binding law. Woodall, 572 U.S. at 419 (citation omitted).

Second, once a prisoner has identified a clearly established holding with specificity, the prisoner

must show that a state court’s denial of relief was “contrary to” or an “unreasonable application”

of this holding. 28 U.S.C. § 2254(d)(1); Bergman, 54 F.4th at 961. “A state decision cannot be

‘contrary to’ a Supreme Court holding unless it adopts a conflicting legal rule or reaches the

opposite result in a case with materially identical facts.” Fields v. Jordan, 86 F.4th 218, 232 (6th

Cir. 2023) (en banc) (citation omitted), cert. denied, Fields v. Plappert, 144 S. Ct. 2635 (2024).

Under § 2254(d)(2), or the “unreasonable application” clause, “a federal habeas court

may grant the writ if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

[petitioner’s] case.” Williams v. Taylor, 529 U.S. at 413. “[T]he state court’s factual findings are

presumed correct unless rebutted by the habeas petitioner by clear and convincing evidence.”

Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013) (citation omitted). In short, federal habeas

relief is available only if the state court’s decision was “objectively unreasonable.” Lockyer v.

Andrade, 538 U.S. 63, 75 (2003); Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir. 2006). A federal

court sitting in habeas review may not supersede a state court’s factual determination just

because “[r]easonable minds reviewing the record might disagree about the finding in question.”

No. 16-6152 Sanders v. Plappert Page 10

Brumfield v. Cain, 576 U.S. 305, 314 (2015) (citation omitted). In fact, under the “unreasonable

determination of the facts” prong, the burden is higher than “clear error.” Davis v. Ayala, 576

U.S. 257, 271 (2015).

Under either clause, the petitioner must show that the state court’s ruling was “so lacking

in justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Thus, the state court’s determination also cannot be unreasonable if “fairminded jurists” could

disagree on the decision. See id. at 101. Section 2254(d) is a “purposefully demanding

standard,” and it requires that state court determinations “be given the benefit of the doubt.”

Haight v. Jordan, 59 F.4th 817, 831 (6th Cir. 2023) (quotations omitted), cert. denied, 144 S. Ct.

578 (2024). That is because habeas under AEDPA is not for ordinary error correction; it is a

way for federal courts to police the edges of the Constitution and “guard against extreme

malfunctions in the state criminal justice systems[.]” Harrington, 562 U.S. at 102. Ultimately,

we are prohibited from issuing a remedy merely because we conclude in our independent

judgment that the state court reached a mistaken, or even clearly erroneous, result. Price v.

Vincent, 538 U.S. 634, 641 (2003); Fields, 86 F.4th at 232.

Because the district court did not conduct an evidentiary hearing and relied exclusively

on the state court record in its habeas decision, we review both the district court’s legal and

factual findings de novo. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir.

2015).

III.

Before applying AEDPA, we must address its constitutionality. Sanders contends that

the deference provision of AEDPA, see 28 U.S.C. § 2254(d), is unconstitutional for two

distinctive, but overlapping reasons. First, Sanders argues that in eliminating “Chevron

deference,” Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) also renders “AEDPA

deference” unconstitutional. See 603 U.S. at 413. In particular, Sanders directs us to the

concurrences of Justices Thomas and Gorsuch, which claim that Chevron deference violates our

Constitution’s separation of powers. See id. at 413–16 (Thomas, J., concurring); id. at 416–48

No. 16-6152 Sanders v. Plappert Page 11

(Gorsuch, J., concurring). Second, Sanders argues that even putting Loper Bright aside, AEDPA

intrudes upon our Article III powers by forcing us to abdicate our constitutional responsibility to

“say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We disagree and join

every court that has addressed this issue and affirm the constitutionality of AEDPA.

A.

AEDPA deference is constitutional. The Supreme Court has dealt with AEDPA several

times and has never cast doubt on its constitutionality. In Williams v. Taylor, the Supreme Court

explicitly noted the constraints AEDPA places on the power of a federal habeas court, holding

that “the writ may issue only if” the decision “was contrary to clearly established Federal law, as

determined by the Supreme Court of the United States” or “involved an unreasonable application

of clearly established Federal law, as determined by the Supreme Court of the United States.”

529 U.S. 362, 412 (2000) (citation modified) (citing § 2254(d)(1)). After saying so, the Supreme

Court applied AEDPA—and has continued to do so for decades. Just a few years ago, the

Supreme Court explicitly stated that “[w]hen Congress supplies a constitutionally valid rule of

decision, federal courts must follow it. In AEDPA, Congress announced such a rule.” Brown v.

Davenport, 596 U.S. 118, 127 (2022); see also Renico v. Lett, 559 U.S. 766, 769 (2010)

(applying AEDPA deference and holding “that the Michigan Supreme Court’s application of

federal law was not unreasonable” so no habeas relief was available).

The argument that AEDPA deference is unconstitutional has been rejected in every

circuit to consider the question.3 Backing up our precedent are many cases in the district courts

of our circuit upholding AEDPA deference.4 And the Constitution commands us “to construe

3

For example, Lindh v. Murphy, 96 F.3d 856, 868–71 (7th Cir. 1996), rev’d on other grounds by Lindh v.

Murphy, 521 U.S. 320 (1997); Green v. French, 143 F.3d 865, 874–75 (4th Cir. 1998); Crater v. Galaza, 491 F.3d

1119, 1121–29 (9th Cir. 2007); Evans v. Thompson, 518 F.3d 1, 12 (1st Cir. 2008); Cobb v. Thaler, 682 F.3d 364,

376–77 (5th Cir. 2012). The Tenth Circuit has also rejected the claim that AEDPA is unconstitutional in two

unpublished opinions. See Bonomelli v. Dinwiddie, 399 F. App’x 384, 387 (10th Cir. 2010); Olona v. Williams, 13

F. App’x 745, 747 (10th Cir. 2001). We recently held that AEDPA deference was constitutional, albeit in an

unpublished decision with minimal briefing. Miles v. Floyd, No. 24-1096, 2025 WL 902800 (6th Cir. Mar. 25,

2025).

4

For example, Bowling v. Parker, 882 F. Supp. 2d 891, 899 (E.D. Ky. 2012); Parrish v. Simpson, No. 3:09-

CV-254-H, 2010 WL 750204, at *2 (W.D. Ky. Feb. 26, 2010); Byrd v. Trombley, 580 F. Supp. 2d 542, 551 (E.D.

Mich. 2008); Dennis v. Mitchell, 68 F. Supp. 2d 863, 875 (N.D. Ohio 1999), aff’d on other grounds, Dennis v.

Mitchell, 354 F.3d 511 (6th Cir. 2003); Norris v. Warden, NCI, No. 2:08-cv-732, 2010 WL 883847, at *1–2 (S.D.

No. 16-6152 Sanders v. Plappert Page 12

the law with ‘[c]lear heads . . . and honest hearts,’ not with an eye to policy preferences that

ha[ve] not made it into the statute.” Loper Bright, 603 U.S. at 403–04 (quoting 1 Works of

James Wilson 363 (J. Andrews ed. 1896) (first and second alterations in original)).

B.

“The writ of habeas corpus indisputably holds an honored position in our jurisprudence.”

Engle v. Isaac, 456 U.S. 107, 126 (1982); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000)

(“The writ of habeas corpus plays a vital role in protecting constitutional rights.”). But the scope

of the writ of habeas corpus has been limited by Congress. The Supreme Court has “long

recognized that ‘the power to award the writ by any of the courts of the United States, must be

given by written law,’ and we have likewise recognized that judgments about the proper scope of

the writ are ‘normally for Congress to make.’” Felker v. Turpin, 518 U.S. 651, 664 (1996)

(quoting Bollman, 8 U.S. at 94 and Lochnar v. Thomas, 517 U.S. 314, 323 (1996)) (citation

omitted). Of course there are still some constraints. See Boumediene v. Bush, 553 U.S. 723, 745

(2008). Therefore, by no means should our opinion today be read to say that Congress has

complete control over habeas. Like the Supreme Court, we acknowledge that in a few instances

there may be limits.

We cannot ignore the Constitution’s longstanding history of allowing significant—but

not plenary—limiting factors on habeas relief in our constitutional analysis. See Zivostofsky ex

rel. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In separation-of-powers cases this Court has

often ‘put significant weight upon historical practice.’”) (citation omitted). It should not escape

our attention that the ebb and flow—restrictions and extensions—of habeas can be

conceptualized as both judicially created and congressionally created depending on which ebb

and which flow we are examining. Here, we focus on Congress’s role in extending or restricting

habeas, not the courts. In so doing, we see no indication that Congress has ever been

Ohio Mar. 9, 2010). And further still are mountains of caselaw in the district courts of the other circuits that have

not yet ruled on this question, all adhering to the same analysis—too many to list in full. See, e.g., McCoy v. Smith,

No. 17-2162, 2018 WL 3304343, at *4 (E.D. Pa. July 5, 2018); Atkins v. Pringle, No. 3:22-cv-110, 2023 WL

11996936, at *9 (D.N.D. Mar. 14, 2023); Nelson v. Williams, No. 20-cv-00757-CMA, 2021 WL 7161830, at *35

(D. Colo. Dec. 14, 2021); Ingram v. Stewart, No. 1:17-cv-01464-LSC, 2021 WL 1208867, at *7 (N.D. Ala. Mar. 31,

2021).

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constitutionally required to extend habeas beyond AEDPA (although they are certainly allowed

to).

C.

Against this backdrop, Sanders claims that the history of the Madisonian Compromise

indicates that AEDPA cannot stand. In so doing, he misapplies the Madisonian Compromise,

which, properly understood, provides significant support for the idea that Congress can regulate

habeas with respect to jurisdiction and remedies. We draw three important principles from the

Madisonian Compromise, and all three of them support AEDPA. One, the Constitution

presumes state courts are competent to adjudicate federal constitutional rights. Two, Congress

has broad powers to regulate the jurisdiction of inferior federal courts. Three, Congress has

broad powers to regulate our ability to grant remedies.

1.

Underlying the Madisonian Compromise was an explicit understanding that state courts

had a role in interpreting the federal Constitution. This was the understanding at the Founding:

“When . . . we consider the State governments and the national governments, as they truly are, in

the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive

that the State courts would have a concurrent jurisdiction in all cases arising under the laws of

the Union, where it was not expressly prohibited.” The Federalist No. 82, at 403 (Alexander

Hamilton) (Dover Thrift Edition 2014). And this is the understanding today: “[S]tate courts have

inherent authority, and are thus presumptively competent, to adjudicate claims arising under the

laws of the United States.” Tafflin v. Levitt, 493 U.S. 455, 458–59 (1990).

Sanders interjects and raises the specter of state courts acting inappropriately, citing

Federalist No. 22 and the risk of “bias[ed] local views and prejudices.” The Federalist No. 22, at

105 (Alexander Hamilton) (Dover Thrift Edition 2014). There are a few things to note about this

passage. First, it is included in the discussion of the Supreme Court of the United States, not in

that of inferior federal courts. Id. at 105. Additionally, Hamilton’s example related to the

interpretation of federal treaties, which could be subject to many different interpretations and

local biases. The fear was that (as was a problem with the old Articles of Confederation, see

No. 16-6152 Sanders v. Plappert Page 14

Smith v. Turner, 48 U.S. 283, 569 (1849); Medellín v. Texas, 552 U.S. 491, 543–44 (2008)

(Breyer, J., dissenting)) there would be no uniform treaty interpretation. Without a single

Supreme Court engaged in uniform interpretation, Hamilton rhetorically asked: “[i]s it possible

that foreign nations can either respect or confide in such a government?” The Federalist No. 22

at 106 (Alexander Hamilton).

It is incorrect to view the federal writ of habeas corpus as a constitutionally required

instrument by which the lower federal courts serve as courts of special review for every state

court criminal judgment pursuant to adequate jurisdiction. Not only does such a view conflict

with explicit Supreme Court precedent, but it also undermines our federalist system.

Intervention under habeas is “an affront to the State and its citizens who returned a verdict of

guilt after considering the evidence before them.” Shinn v. Ramirez, 596 U.S. 366, 390 (2022).

To continue, an understanding of habeas unable to be regulated in any way by Congress does not

accord with the purpose of habeas as articulated by our history or the Supreme Court; habeas

relief is not intended for “ordinary error correction,” but to police the bounds of

constitutionality—i.e., to ensure clear egregious constitutional violations do not stand.

Harrington, 562 U.S. at 102 (citation omitted). Not to grapple with this conception of AEDPA is

to upset the delicate federal system created by our Constitution and the Supreme Court. See

Calderon v. Thompson, 523 U.S. 538, 555–56 (1998). Congress’s decision in limiting habeas

remedies serves the “well-settled meaning and function of habeas corpus in the federal system.”

Harrington, 562 U.S. at 104. Sanders had three opportunities to petition the U.S. Supreme Court

for direct review of his federal constitutional issues, and his petitions were denied each time.

See, e.g., Sanders, 502 U.S. at 831; Sanders, 540 U.S. at 838; Sanders, 566 U.S. at 907.

Congress is not constitutionally required to give him de novo review in the federal district court

and this court of appeals on top of the de novo review he already received in the Supreme Court.

The Madisonian Compromise left the decision of the reach of federal courts to Congress,

not to the judiciary and no matter how much we may desire the writ of habeas corpus to be

unlimited, its scope is not solely within our control. And while Article III grants power to the

federal courts, it also serves as a check on our power. See Kaplan v. Cent. Bank of the Islamic

Republic of Iran, 896 F.3d 501, 517 (D.C. Cir. 2018) (Edwards, J., concurring) (“Under Article

No. 16-6152 Sanders v. Plappert Page 15

III, jurisdiction is limited both by the bounds of the ‘judicial power’ as articulated in Article III,

§ 2, and by the extent to which Congress has vested that power in the lower courts, see U.S.

Const. art. III, § 1.”).

2.

Lastly, Congress can regulate a federal court’s ability to grant remedies. For example,

the Supreme Court case of Lauf v. E.G. Shinner & Co. concerned a federal law under which no

federal court “shall have jurisdiction to issue a temporary or permanent injunction in any case

involving or growing out of a labor dispute[.]” 303 U.S. 323, 329 (1938). The Supreme Court

held that this remedy-stripping provision of the law comported with Article III, specifically

stating that “[t]here can be no question of the power of Congress thus to define and limit the

jurisdiction of the inferior courts of the United States . . . It follows that in issuing the injunction

[the district court] exceeded its jurisdiction.” Id. at 330. So, we know that Congress can limit

remedies.

Within habeas, even valid constitutional rules do not necessarily have retroactive effect.

Teague v. Lane, 489 U.S. 288, 310 (1989). Relief can be restricted for successive habeas

petitions. McCleskey v. Zant, 499 U.S. 467, 494–95 (1991). Habeas review can be limited for

issues not fully preserved. Wainwright v. Sykes, 433 U.S. 72, 87, 97 (1977). Thus, the

proposition that habeas remedies for adjudged violations can be restricted is unsurprising and

fairly uncontroversial. The Supreme Court has explicitly told us so. See Felker, 518 U.S. at 658

(upholding the constitutionality of habeas restrictions even “[]though the Act impose[s] new

conditions on our authority to grant relief[.]”); see also Lonchar, 517 U.S. at 322 (explicitly

noting that restrictions on the writ of habeas corpus can be made by Congress).

AEDPA is a statute that limits relief and jurisdiction except when the underlying decision

was contrary to Supreme Court precedent or involved an unreasonable application of its

precedent. This represents a constitutionally sound and permissible policy decision taken by

Congress that (1) adheres to the structure of Article III and (2) balances the importance of the

finality of state judgments with Congress’s belief that federal courts should still police the

No. 16-6152 Sanders v. Plappert Page 16

outward bounds. Cf. Dretke v. Haley, 541 U.S. 386, 393 (2004) (noting the importance of

“States’ finality and comity interests” in dealing with habeas).

Sanders seems to misunderstand what federal courts do in AEDPA review. According to

him, we are forced to take in the state court’s constitutional interpretation as our own. That is

not true. We undertake our own legal analysis under AEDPA. Then we ask whether the

Constitutional violation was so egregiously wrong that habeas relief is merited under AEDPA. If

not, we exercise restraint. That end result—judicial restraint in the face of reasonable competing

views—is not a subversion of the Constitution; instead, it upholds core constitutional principles:

Congressional control over jurisdiction and remedies and leeway for state courts to analyze their

own criminal law, Shinn, 596 U.S. at 390, particularly so if that is what Congress desires.5

Congress has the power to delineate our lines of habeas review. The existence of AEDPA

deference is in the hands of Congress, not the judiciary.

D.

Next, Sanders points to United States v. Klein to argue that AEDPA violates our

independent adjudicatory powers. 80 U.S. 128 (1871). But if anything, Klein and its progeny

help further bolster our conclusion that AEDPA is constitutional. In Robertson v. Seattle

Audubon Society, the Supreme Court held that Klein’s holding did not invalidate a Congressional

law that targeted a specific case by name and substituted in new environmental standards to

replace old ones. 503 U.S. 429, 434–35, 441 (1992).

Next came Bank Markazi v. Peterson, in which Congress passed a specific statute

designating a particular set of assets owned by Iran at a New York bank that would be available

to satisfy specific judgments for victims of terrorism sponsored by Iran. 578 U.S. 212 (2016).

The Supreme Court read Klein narrowly and held that this statute was fine because Congress can

5

In upholding AEDPA, the Seventh Circuit has said the following: “How much leeway does the

“unreasonable application” language create? None on questions of interpretation. It does not authorize or permit

state courts to deviate from the Constitution. Federal courts acting within their jurisdiction are always entitled to

interpret the law independently. Section 2254(d)(1) as we read it does no more than regulate relief. It tells federal

courts: Hands off, unless the judgment in place is based on an error grave enough to be called ‘unreasonable.’

Historical practice [] likewise counseled restraint in use of the writ. Other rules limiting the remedy abound.”

Lindh, 96 F.3d at 870.

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direct courts to “apply a new legal standard to undisputed facts.” Id. at 230. One sees the

comparison between AEDPA habeas relief and that “new legal standard” to “undisputed facts”

immediately. AEDPA is merely Congress’s articulation of a “new legal standard” for habeas.

Going further, the Supreme Court in Bank Markazi even noted that this “new legal standard”

created by Congress could leave “only one possible outcome” to the case and still be permissible

under Klein and the Constitution. See id. Thus, Klein and its progeny, if anything, support the

constitutionality of AEDPA. Congress has the power to articulate new legal standards even if

the articulation of these new legal standards changes the odds of victory. And Congressional

grants of jurisdiction are a prerequisite to judicial power.

E.

The caselaw and the history show that AEDPA is constitutional. In response, Sanders

contends that the Supreme Court’s holding in Loper Bright wipes the slate clean and eliminates

all the aforementioned precedent and history. We disagree.

Loper Bright concerned an interpretation of the APA and did not hold that all sorts of

deference are unconstitutional. See 603 U.S. at 398 (“Chevron defies the command of the APA

that ‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant

questions of law’ and ‘interpret . . . statutory provisions.’” (quoting 5 U.S.C. § 706) (alterations

in original)). Moreover, AEDPA is a poor comparator for agency deference—AEDPA does not

mandate deference to a state court’s constitutional determination; it just states that a court cannot

grant habeas relief merely because its own independent interpretation differs.

The issue with Chevron deference was that it mandated the Court to accept an

interpretation of the law that was not its own. See id. at 427–28, 430–31 (Gorsuch, J.,

concurring). AEDPA does not mandate that federal courts accept a state court’s federal

constitutional interpretation as their own, it only prevents those federal courts from intervening

when the state courts make reasonable decisions as opposed to Chevron, which forced a court to

defer to an agency decision so long as it is reasonable before even being allowed to engage in its

own independent statutory analysis. See id. at 397 (noting that so long as the agency’s

interpretation of the statute is reasonable, the court “had to set aside the traditional interpretive

No. 16-6152 Sanders v. Plappert Page 18

tools and defer to the agency”); see also Chevron, 467 U.S. at 840. With AEDPA, even if a

circuit court decides a state court’s interpretation of the Constitution is “reasonable” that state

supreme court’s interpretation will not be considered binding law in the circuit. For AEDPA to

be unconstitutional, the law would have to state that if a state court’s interpretation of a federal

constitutional right is reasonable, the federal court must adopt it as its own. But AEDPA does

not say that.

The Supreme Court has repeatedly warned circuit courts against such behavior: “[i]f a

precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de

Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). For these reasons, we join every

other circuit to address this issue and reaffirm AEDPA’s constitutionality.6

IV.

Moving to the application of AEDPA, Sanders’s various claims can be consolidated into

three issues: (1) the jury instructions incorrectly defined the burden of proof for insanity defenses

and violated Sanders’s due process rights; (2) Sanders’s trial counsel was ineffective in failing to

(a) obtain an adequate mental health expert; (b) present mental health testimony from a

psychologist and guard who observed Sanders after his arrest; (c) investigate and present

mitigating evidence about Sanders’s childhood abuse; (d) prepare for the penalty phase

testimony; and (e) request more competency evaluations as Sanders’s health deteriorated; and

(3) the cumulative prejudice of trial counsel’s ineffectiveness prejudiced him at trial. None of

these arguments has merit.

A.

As discussed, Sanders’s insanity was his sole defense at trial. In giving its instructions to

the jury, the trial court repeatedly reiterated that Sanders’s crime had to be proven “beyond a

6

And we reiterate that our analysis is solely confined within habeas constituting collateral attacks on state

court judgments. Our opinion does not speak to the Supreme Court’s direct review of state supreme court decisions

on federal constitutional law. See Martin v. Hunter’s Lessee, 14 U.S. 304, 323 (1816).

No. 16-6152 Sanders v. Plappert Page 19

reasonable doubt.” DE 166-4, Trial Tr., Page ID 3914–15. But in dealing with the insanity

defense, the judge told the jury that the defense would be established if the jury “believe[d it had]

from the evidence.” Id. 3914–17. While the words of the two jury instructions are different and

create different standards, Sanders contends that they were improperly blended so as to imply

that his insanity defense—like his criminal offenses—must be established beyond a reasonable

doubt. Because of these ambiguous jury instructions, Sanders argues that his Fourteenth

Amendment due process rights were violated, and that the Kentucky Supreme Court clearly erred

in holding otherwise. We disagree.

1.

In Kentucky, while the prosecution must prove the crime beyond a reasonable doubt, the

defendant’s insanity defense need only be proven by a preponderance of the evidence. Ball v.

Commonwealth, 81 Ky. 662, 664 (1884). But Kentucky does not use the phrase “preponderance

of the evidence” and instead prefers the phrase “[believe] from the evidence.” Gall, 607 S.W.2d

at 110; see, e.g., Hall v. Commonwealth, 645 S.W.3d 383, 404 (Ky. 2022) (noting that a “believe

from the evidence” instruction “appropriately incorporated the preponderance standard”). The

question we must decide is whether this Kentucky rule, which was used to affirm the jury

instructions that led to Sanders’s conviction, was unconstitutional as applied to Sanders and

whether it was contrary to or involved an unreasonable application of clearly established federal

law as articulated by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

There is no due process requirement with respect to a state’s choice of a burden of proof

for establishing an insanity defense. See Leland v. Oregon, 343 U.S. 790, 798–99 (1952). That

decision is left up to the states. See Engle v. Isaac, 456 U.S. 107, 120 (1982). However, once

the state has settled on the burden of proof, the defendant has a due-process interest in having the

appropriate burden of proof applied. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980).

2.

The Kentucky Supreme Court’s ultimate disposition of Sanders’s claims regarding the

jury instruction issue was short. In its entirety, the court reasoned as follows:

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It is further submitted that the instructions failed to specify the burden of proof

regarding the defense of insanity. The jury was instructed that it might find the

defendant not guilty by reason of insanity if it believed “from the evidence” that

he was insane at the time of the offenses. We find no error in this instruction.

Sanders I, 801 S.W.2d at 679 (citing Gall, 607 S.W.2d at 110).

A relevant and on-point case is Boyde v. California. 494 U.S. 370 (1990). There, the

U.S. Supreme Court held that the proper inquiry when determining whether ambiguous jury

instructions were unconstitutional is “whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents the consideration of constitutionally

relevant evidence.” Id. at 380. With this case available (although not cited), the Kentucky

Supreme Court held that the jury instructions were not erroneous. Sanders I, 801 S.W.2d at 679.

To be sure, the court did not elaborate on its reasoning. Nonetheless, “[w]hen a state court

rejects a federal claim without expressly addressing that claim, a federal habeas court must

presume that the federal claim was adjudicated on the merits[.]”7 Johnson v. Williams, 568 U.S.

289, 301 (2013). And because the claim was adjudicated on the merits, AEDPA deference

applies. Robinson v. Howes, 663 F.3d 819, 822–23 (6th Cir. 2011). Sanders fails to show that

the Kentucky Supreme Court’s decision “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).

As the district court noted, fair-minded jurists can conclude that the jury instructions were

not confusing in this instance. In our system of justice, we presume that jurors are fitted for their

duty “by their natural intelligence and their practical knowledge[.]” Aetna Life Ins. v. Ward, 140

U.S. 76, 88 (1891). This is particularly true in criminal trials. Francis v. Franklin, 471 U.S. 307,

324 n.9 (1985). The rule in Kentucky applies a similar presumption and thread of logic. The

two standards of “beyond a reasonable doubt” and “believe from the evidence” are arguably

materially different. Kentucky, trusting the natural abilities of its citizens—an undeniably fair

choice—has crafted a rule that replaces “preponderance from the evidence” with “believe from

the evidence.” In so doing, Kentucky made the reasonable decision that it would be

7

Although a defendant can rebut that presumption subject to certain requirements, Sanders does not attempt

to do so here. See Johnson, 568 U.S. at 301.

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unnecessarily redundant to include the phrase “preponderance of.” See also Pryor v. Rose, 724

F.2d 525, 530 n.3 (6th Cir. 1984). Ultimately, the trial court accurately stated the law, and a

defendant is not entitled to his specific choice of words. United States v. Frederick, 406 F.3d

754, 765 (6th Cir. 2005).

Thus, the question in applying Boyde and similar cases here is whether it is unreasonable

for the Kentucky Supreme Court to conclude that the jury instructions, which had no conflict on

their face and expressly conformed to its longstanding practice, prevented the jurors from

considering constitutionally relevant evidence at Sanders’s guilt or mitigation proceedings. We

hold that a fair-minded jurist could take the position that the jury instructions were

constitutionally valid.

B.

We turn to Sanders’s claims of ineffective assistance of counsel. Under the Sixth

Amendment, criminal defendants have a “right to the effective assistance of counsel.” Strickland

v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). To establish a violation of this right,

Sanders must prove two things. First, he must show that his counsel “made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth

Amendment.” Id. at 687. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. We must be careful to avoid needlessly second-guessing strategic

decisions made by counsel on the ground. Id. Second, Sanders must show that his counsel’s

deficient performance prejudiced his defense. Id. at 687.

In confronting most of Sanders’s Strickland claims, we apply AEDPA review. Even

without AEDPA, we are already “highly deferential” to the performance of the underlying

counsel. Id. at 689. Habeas review, itself highly deferential, adds another layer of deference. So

our review of Sanders’s ineffective assistance of counsel habeas claims under AEDPA must be

“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Thus, “it is no longer

enough for [Sanders] to show that his attorney made a decision that no reasonable lawyer would

have made. He now must show that ‘every fairminded jurist would agree that every reasonable

No. 16-6152 Sanders v. Plappert Page 22

lawyer would have made a different decision.’” Fields, 86 F.4th at 240 (quoting Dunn v. Reeves,

594 U.S. 731, 739–40 (2021)) (citation modified).

Sanders makes five ineffective assistance of counsel claims. He asserts that Charters

failed to (1) obtain an adequate mental health expert; (2) present mental health testimony from a

psychologist and guard who observed him after his arrest; (3) investigate and present mitigating

evidence about his childhood abuse; (4) prepare for the penalty phase testimony; and (5) request

additional competency evaluations as his health deteriorated. We ultimately find that the

Kentucky Supreme Court did not contravene clearly established federal law in rejecting

ineffective assistance of counsel arguments in claims one, three, and four. As to claim two,

while the Kentucky Supreme Court may have contravened clearly established law in its analysis ,

we need not address that issue as Sanders’s claim would still fail under de novo review because

he cannot show prejudice. And although the Kentucky Supreme Court did not reach claim five,

he also fails to show prejudice under de novo review. We address each claim in turn.

1.

When insanity is a defense, a mental health expert must be provided to an indigent

defendant.8 See Ake v. Oklahoma, 470 U.S 68, 83 (1985). We give trial counsel broad discretion

in selecting a mental health expert and determining how much time to dedicate to the expert’s

preparation. See Dunn, 594 U.S. at 739. This is because we recognize that there are many ways

to try a case and counsel may sometimes choose to prioritize resources differently depending on

the specifics of a given case. See Harrington, 562 U.S. at 106; Yarborough v. Gentry, 540 U.S.

1, 5–6 (2003). Ultimately, “counsel [is] entitled to formulate a strategy that was reasonable at

the time and to balance limited resources in accord with effective trial tactics and strategies.”

Harrington, 562 U.S. at 107 (citation modified). Sanders’s first claim—failure to obtain an

adequate mental health expert—has two parts. The first part concerns Charters’s failure to

interview or retain Flenning. The second part concerns Charters’s failure to adequately prepare

Cooke for his testimony.

8

Note, however, that Sanders is not an indigent defendant.

No. 16-6152 Sanders v. Plappert Page 23

a.

As a reminder, Sanders was evaluated for one and a half months by Walker and her team,

who concluded that Sanders suffered from no mental defect that would prevent him from being

responsible for the murders. Unbeknownst to Sanders or his counsel, one of the members of

Walker’s team—Flenning—produced a personal sub-report that was more sympathetic to

Sanders’s insanity defense. Flenning concluded that the evidence showed that Sanders suffered

from a mental deficiency. Sanders argued to the Kentucky Supreme Court in Sanders II that

Charters’s failure to interview and retain Flenning constituted ineffective assistance of counsel.

89 S.W.3d at 385–86. The Kentucky Supreme Court disagreed, noting that Charters had access

to the full report and there may have been reasons he did not pursue the leads in Walker’s report

because the “report did not support the defense of insanity and could actually damage

Sanders[.]” Id. And relatedly, the Kentucky Supreme Court held that there was likely no

prejudice because the Flenning report would have been likely used by the prosecution to

convincingly argue to the jury that Sanders changed his story depending on who he was talking

to, as stated in the Walker report.

Under the “doubly deferential” standard, Knowles, 556 U.S. at 123, under which we

evaluate AEDPA Strickland claims, we cannot ignore the Kentucky Supreme Court’s legal

reasoning on this issue. The Walker report gave Charters no indication that any evidence existed

that might contradict it. If anything, the report’s use of the pronoun “we” in setting out its

conclusion would indicate to a reasonable attorney that further digging into the members of

Walker’s team would only lead to more information that would be prejudicial and not helpful to

Sanders’s defense. In hindsight, Charters may have been mistaken not to inquire further into any

potential disagreement among team members. “But hindsight bias is the very thing that

Strickland’s deferential standard counsels against[.]” Hale v. Cool, 122 F.4th 637, 649 (6th Cir.

2024). An attorney in Charters’s position had limited time and resources and was presented with

a report that, by all indications, was prejudicial to his client. Rather than interviewing individual

team members, Charters opted to retain a counter-expert. We do not believe that every

fairminded jurist would agree that no reasonable lawyer would have done something differently.

For that reason, we deny habeas relief on this claim. See Fields, 86 F.4th at 240.

No. 16-6152 Sanders v. Plappert Page 24

b.

Ultimately, rather than pursue the Walker report, Charters opted to retain Cooke, who

offered to provide his services pro bono. Cooke evaluated Sanders only a little over a week

before trial and only for around two and a half hours. Based on the information obtained from

this short examination, Cooke testified during trial that Sanders could not control his actions.

The contrast between Cooke’s short, cursory evaluation and Walker’s long, multi-member

evaluation was highlighted by the prosecution and likely significantly hurt Cooke’s credibility

with the jury.

According to Sanders, Charters’s extremely limited preparation constituted ineffective

assistance of counsel. The Kentucky Supreme Court disagreed. See Sanders II, 89 S.W.2d at

387–88. The court noted that Cooke’s testimony had the intended effect: Cooke reduced the

negative impact of the Walker report by disagreeing with it. Id. at 387. Analyzing the U.S.

Supreme Court case of Ake v. Oklahoma, the Kentucky Supreme Court noted that Sanders was

merely entitled to a state-provided psychiatrist, not to multiple examinations merely because he

did not like the results of the state-provided psychiatrist. Id. at 387–88. Ultimately, Cooke

testified that, in his opinion, Sanders could not control his actions, and that his work—along with

Walker’s comprehensive team—satisfied Sanders’s right to have access to qualified mental

health experts. Id.

In Ake, the U.S. Supreme Court was presented with the question “whether the

Constitution requires that an indigent defendant have access to the psychiatric examination and

assistance necessary to prepare an effective defense based on his mental condition, when his

sanity at the time of the offense is seriously in question.” 470 U.S. at 70. The Court answered

that a psychiatrist must be provided. Id. at 80. In particular, “the State must, at a minimum,

assure the [indigent] defendant access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

Id. at 83; see also McWilliams v. Dunn, 582 U.S. 183, 198 (2017).

From the outset, Sanders was not an indigent defendant, thus making it unclear if Ake’s

command applies here. See 470 U.S. at 83; see also Durr v. Mitchell, 487 F.3d 423, 433 (6th

No. 16-6152 Sanders v. Plappert Page 25

Cir. 2007) (stating Ake’s holding as applying to indigent defendants). We need not decide Ake’s

reach, however, as Sanders’s claim can be resolved even if Ake applies. Cooke was a licensed

psychologist with extensive educational and clinical experience. He testified in Sanders’s

defense, using his expert knowledge to conclude that Sanders was not responsible for his actions.

Given the significance of the proceedings against Sanders, it is understandable that he

would believe that if Cooke had spent more time on his case, the result might have been more

favorable to him. But Cooke was apparently given enough time to come to a clear conclusion.

Considering our doubly deferential standard of review under AEDPA and Strickland, we cannot

conclude that every fair-minded jurist would conclude that every reasonable lawyer would have

acted differently from Charters. Therefore, we cannot grant habeas relief on Sanders’s habeas

claim that Charters was constitutionally defective in his preparation of Cooke.

c.

Sanders further draws our attention to Rogers v. Dzurenda. 25 F.4th 117 (9th Cir. 2022).

In Rogers, the Ninth Circuit was not reviewing Rogers’s Strickland claim under AEDPA.

Instead, it was reviewing his Strickland claim de novo. See Rogers, 25 F.4th at 1181 (“On

appeal, the State does not challenge the district court’s decision not to apply AEDPA deference

to the state court’s adjudication of Rogers’s ineffective assistance of counsel claim. Because the

ineffective assistance of counsel claim before the district court was never adjudicated on the

merits by the Supreme Court of Nevada, we review Rogers’s [Strickland claim] de novo.”

(footnote omitted)). From our perspective, this greatly affects the relevance of Rogers to Sanders

as AEDPA deference is among the narrowest forms of review compared with de novo—the most

lenient. See Burt v. Titlow, 571 U.S. 12, 19 (2013) (“AEDPA erects a formidable barrier to

federal habeas relief[.]”). Thus, we are not persuaded by Rogers.

2.

Second, we address Sanders’s ineffective assistance of counsel claim arising from

Charters’s failure to present testimony from the jail psychologist and two prison guards

regarding Sanders’s behavior after his arrest. When Sanders was initially arrested, the jail

psychologist wrote a letter to the trial judge requesting that Sanders be taken to a psychiatric

No. 16-6152 Sanders v. Plappert Page 26

hospital because he was showing signs that he could be suicidal. According to Sanders, three

witnesses during his time in his initial jail cell could have testified to his disturbed mental state.

The deputy jailers could have testified that Sanders was in tears and banging his head against the

wall and that the jail psychologist, Moffit, could have testified that Sanders was suffering from

major psychological problems. Charters did not follow up, and Sanders alleges that such actions

constituted ineffective assistance of counsel. The Kentucky Supreme Court disagreed, reasoning

that this evidence was needlessly cumulative given that Sanders had testified to his mental state

and that counsel’s decision not to present cumulative testimony was not ineffective assistance of

counsel. See Sanders II, 89 S.W.3d at 391.

Even if the Kentucky Supreme Court erred on this point, Sanders’s claim still fails under

de novo review because he has not provided any evidence of what the two jailers or

psychologists would have said and thus, cannot prove prejudice under Strickland. To establish

prejudice, a defendant must introduce evidence establishing what would have been said (such as

an affidavit). See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005). This is the defendant’s

burden. See Hale, 122 F.4th at 646. Sanders claims there is evidence in the form of a video

recording of his behavior immediately after his arrest. But it is still unclear whether the jailers

saw the contents of this videotape. The question is not what happened, but what the jailers’

testimony would be. Without this evidence, Sanders fails to satisfy his burden.

Sanders’s allegations regarding Moffit are supported by some evidence. There is the

February 3, 1987, letter Moffit wrote asking that Sanders be placed in psychiatric care. There is

also a February 4, 1987, notarized letter reiterating concerns raised in the prior letter and noting

that Sanders might be dissociative. However, while this is some evidence, Sanders still fails to

show how it would have affected the proceedings’ outcome. Sanders claims that calling Moffit

would have strengthened Cooke’s testimony and his diminished capacity defense, but the letter

makes no such assertions. Instead, the letter merely states that Moffit had reason to believe that

Sanders suffered from mental deficiency; the letter does not suggest that Moffit would have

supported Sanders had he testified. Because we do not know, Sanders has not satisfied his

burden. See Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004).

No. 16-6152 Sanders v. Plappert Page 27

Nor was Charter’s failure to use Moffit as an expert witness ineffective assistance of

counsel. Moffit’s letters merely recommend that Sanders be examined for mental deficiencies.

The letters do not represent a diagnosis—just an initial concern. Charters chose instead to use

his own independent expert, given his limited resources. See Clardy v. Pounds, 126 F.4th 1201,

1210 (6th Cir. 2025) (noting the latitude we give counsel in how they secure expert witnesses

with limited resources); see also Mammone v. Jenkins, 49 F.4th 1026, 1052 (6th Cir. 2022)

(“[S]electing an expert is the classic example of a strategic choice made by counsel.”). In sum,

even putting aside AEDPA deference, Sanders still cannot show that failure to introduce

corroborating testimony from the two jailers or psychologist prejudiced him or that Charters’s

decision not to use Moffit as a witness was ineffective assistance of counsel.

3.

During the penalty phase of his trial, Sanders’s employer, neighbor, assistant principal of

his high school, and his sister testified. Sanders himself also testified. He claims that had

Charters engaged in any real preparation as required under Strickland, he would have

interviewed his family and friends and discovered an abundance of additional mitigating

evidence. In so doing, Sanders asks us to consider evidence not in the state court record. We are

barred from doing so and find that the Kentucky Supreme Court’s decision on this issue cannot

be disturbed under AEDPA.

a.

The Kentucky Supreme Court rejected Sanders’s claim on what, at first blush, appeared

to be procedural grounds. See Sanders II, 89 S.W.3d at 390–91. The court noted that Sanders

failed to offer the content of any testimony from the additional witnesses and thus failed under

Kentucky state procedural rules. See id. at 3909). But then the Kentucky Supreme Court went

on to discuss Strickland and held that Charter’s decision not to call these additional witnesses

could have been a strategic one that should not be second-guessed. See id. at 390. The district

9

The procedural rule refers to Ky. Rule of Crim. Pro. 11.42(2), which states that “[t]he motion shall be

signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged

and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall

warrant a summary dismissal of the motion.”

No. 16-6152 Sanders v. Plappert Page 28

court initially held that this was a procedural decision by the Kentucky Supreme Court that relied

exclusively on state procedural law and that Sanders failed to attach any affidavits to show why

the state court’s procedural bar should be ignored. Therefore, the district court dismissed

Sanders’s habeas claim because the question of his procedural default was an independent

decision that could support the state judgment. See Lovins v. Parker, 712 F.3d 283, 295–96 (6th

Cir. 2013) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

But after reflecting on its decision, the district court sua sponte ordered both parties to

brief the issue. Both parties agreed that the Kentucky Supreme Court’s decision was on the

merits. Therefore, the district court re-analyzed its decision regarding the mitigation evidence

under AEDPA deference and, after applying AEDPA, held that the state court’s application of

Strickland did not overcome AEDPA deference.

Generally, a federal habeas court is precluded from hearing claims that were

“procedurally defaulted” on state procedural grounds. Shinn, 596 U.S. at 371. But procedural

default can be overcome if the prisoner can “demonstrate ‘cause’ to excuse the procedural defect

and ‘actual prejudice’ if the federal court were to decline to hear his claim.” Id. (citation

omitted). In so doing, “[o]ften a prisoner with a defaulted claim will ask a federal habeas court

not only to consider his claim but also to permit him to introduce new evidence to support it.”

Id. But under AEDPA, we are prohibited from expanding the factual record developed in the

state court. Id.; see Frazier v. Huffman, 343 F.3d 780, 797 (6th Cir. 2003); see also 28 U.S.C.

§ 2254(e)(2). That is unless the petitioner’s “claim relies on” “(i) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court[] that was previously

unavailable” or “(ii) a factual predicate that could not have been previously discovered through

the exercise of due diligence” and this new fact must “be sufficient to establish by clear and

convincing evidence that but for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(A)–(B); see also Shinn,

596 U.S. at 371.

Under procedural default, in determining whether an exception applies, a federal court

considers what new evidence would be presented. So, before the district court ordered more

briefing on whether the Kentucky Supreme Court’s decision was on the merits, it also slightly

No. 16-6152 Sanders v. Plappert Page 29

changed its position on the procedural default issue and allowed Sanders to file various affidavits

so it could decide whether there was an exception to procedural default. As a result, before the

district court decided that the Kentucky Supreme Court decision was on the merits, Sanders filed

six affidavits.10

These affidavits were not before the Kentucky Supreme Court. They could be relevant if

we were considering procedural default. The district court initially analyzed the Kentucky

Supreme Court’s analysis on mitigation evidence and held that the claim was procedurally

defaulted, and Sanders did not present sufficient affidavits to overcome procedural default. The

district court then changed its mind on the affidavits and allowed Sanders to submit new

affidavits to consider whether this new evidence could be looked at by the habeas court. But

then the district court had second thoughts about whether this was even a procedural default case

and asked for further briefing. After briefing, the district court reversed itself and held that the

Kentucky Supreme Court’s decision was on the merits.

b.

Because the Kentucky Supreme Court’s decision was on the merits, we cannot consider

the new affidavits. But even if it were not, these new affidavits cannot overcome the barrier

from Shinn. The district court correctly held that the Kentucky Supreme Court’s decision on

Sanders’s Strickland claim was a merits analysis.

When a state court is presented with a federal claim, “it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington, 562 U.S. at 99. To overcome this presumption the state

court must “clearly and expressly” state in its decision that the judgment is because of a state

procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989) (quotation omitted). But the court

analyzed Sanders’s claim under Strickland without any indication that his claim could solely be

decided on state procedural grounds. See Sanders II, 89 S.W.3d at 390. Given the presumption

10

These affidavits are from people who did not testify at Sanders’ penalty phase. In order, they are from

his aunt, his sister, his younger brother, his older brother, his neighbor, and his maternal cousin.

No. 16-6152 Sanders v. Plappert Page 30

that the state court decided the merits unless it states otherwise, the Kentucky Supreme Court

decided Sanders’s Strickland claim on the merits.

c.

Sanders suggests that we should consider these six affidavits in our analysis, regardless of

whether the ineffective assistance of counsel claim was a merits or procedural decision, because

his new evidence is so substantial that it has created a “new” claim not yet adjudicated by the

Kentucky Supreme Court.

Sanders lost in the Kentucky Supreme Court, in part, because there was insufficient

evidence in the Kentucky 11.42 motion at the trial level. See Sanders II, 89 S.W.3d at 390. If

that is true, according to Sanders, then the new affidavits so changed the facts that a new claim

before the federal district court is created under habeas and there is no AEDPA deference to

apply. Essentially, Sanders’s claim is a new one not considered by the Kentucky Supreme Court,

which had an incomplete record. Therefore, we need not apply AEDPA deference as the

principles of “comity, finality, and federalism” are not implicated. See Gordon v. Braxton, 780

F.3d 196, 202 (4th Cir. 2015) (quotation omitted). Alternatively, Sanders asserts that he is

bringing a separate ineffective assistance of counsel claim based on evidence not raised in the

prior ineffective assistance of counsel claim because of that prior post-conviction counsel’s

incompetence. Because this separate collateral attack is a habeas claim not attacking a state

supreme court’s decision on the merits, AEDPA deference does not apply.

To further clarify, a state prisoner challenging the merits of a state court’s constitutional

decision cannot rely on new evidence to assess the state court’s claim under AEDPA.11 Upshaw

v. Stephenson, 97 F.4th 365, 372 (6th Cir. 2024). Therefore, we cannot consider these affidavits

to challenge the Kentucky Supreme Court’s merits decision. Sanders argues that if the Kentucky

Supreme Court’s decision was on the merits with respect to the evidence before it, then the new

evidence in federal court substantially improved his Strickland allegations to create a new claim.

11

This is different from a procedural default, where new evidence can be considered subject to a few

exceptions. See Shinn, 596 U.S. at 371.

No. 16-6152 Sanders v. Plappert Page 31

Thus, Sanders argues, because his claim was not technically considered on the merits in the state

courts, AEDPA deference does not apply.

There are two problems with this. First, “AEDPA requires habeas petitioners to exhaust

their claims in state court before turning to a federal court for relief.” Stermer v. Warren, 959

F.3d 704, 720 (6th Cir. 2020). Therefore, if it is true that the new evidence has transformed

Sanders’s ineffective assistance of counsel claim on mitigation into a new claim, then Sanders

has failed to exhaust that new habeas claim anyway. Thus, his claim is now procedurally

defaulted. See Shinn, 596 U.S. at 371.

Second, Sanders’s new evidence does not fundamentally alter his ineffective assistance of

counsel claim. New evidence does not transform a claim into a new one just by strengthening

the thrust of the original argument. See Franklin v. Jenkins, 839 F.3d 465, 474 (6th Cir. 2016).

“Simply put, for purposes of AEDPA, ‘[n]ew evidence does not usually give rise to a new claim;

it merely provides additional proof of a claim already adjudicated on the merits.’” Id. at 474–75

(citation modified). But here, the “new” evidence is simply more evidence for the same

ineffective assistance of counsel claim he already brought to the Kentucky Supreme Court—that

Charters failed to do appropriate research and obtain mitigating testimony. For these two

reasons, there is no “new” habeas claim outside the scope of AEDPA.

d.

Having established that we cannot consider these six affidavits, we now analyze

Sanders’s ineffective assistance of counsel claim that Charters did not develop appropriate

mitigation evidence, based solely on evidence from the state record and through the doubly

deferential lens of AEDPA and Strickland.

i.

There are three reports to consider on this issue. The first is Walker’s KCPC report. The

report notes Sanders’s inconsistent statements. At times, Sanders described his life as very good;

other times, he said otherwise particularly with respect to his childhood. To Flenning, Sanders

said he was forced to work at age four and did not get to play with other children. Sanders also

No. 16-6152 Sanders v. Plappert Page 32

described conflict with his parents. He said they beat him with a “tobacco stick” or “barbed

wire.” DE 165-4, Walker Rep., Page ID 2823. Sanders also said his father was a “heavy

drinker” and that he had been charged in the recent past with “Assault 3rd degree and several

other charges.” Id. at 2824. From this, the report ultimately concluded that Sanders may have

suffered some degree of abuse as a child. This report was available to Charters at the time of the

trial.

The second report was produced by Dr. Roger H. Fisher in 1994, during state post-

conviction proceedings. Fisher, along with a few other experts, had evaluated Sanders in another

case. Fisher illuminates Sanders’s background even more. Fisher notes that, according to

Sanders, his father essentially used him and his siblings as a captive work force while he was

drinking. Sanders’s father hit him constantly—often when he was drunk, but also sometimes

when Sanders did not complete a job in the way his father wanted. The third report is the

Flenning report. Flenning reiterates Sanders’s abusive childhood. The report also states that

Sanders’s mother abused him as well. Essentially, Sanders grew up alienated from his family

and spoke only to his dog and himself.

ii.

Before Sanders’s trial and penalty phase, Charters had access to the Walker report that

indicated the potential of abuse. Charters did not investigate further or use this evidence at the

mitigation phase of the trial. The Kentucky Supreme Court applied Strickland and found that

this did not constitute ineffective assistance of counsel. See Sanders II, 89 S.W.3d at 390–91.

Sanders cites several Supreme Court cases concerning the duty to conduct thorough

investigations of the evidence to argue that the Kentucky Supreme Court’s holding contradicted

clearly established law. But most of these were decided after Sanders II and therefore, cannot be

used to show that the Kentucky Supreme Court’s decision was contrary to clearly established

federal law. See Stewart v. Wolfenbarger, 468 F.3d 338, 346 (6th Cir. 2006). Only one—

Williams v. Taylor—was decided before Sanders II. 529 U.S. at 362 (plurality opinion). In

Williams, the Supreme Court held that counsel was ineffective under Strickland when counsel

“failed to introduce available evidence” that the defendant had a horrible upbringing, was

intellectually disabled, and was non-violent in prison. Id. at 396.

No. 16-6152 Sanders v. Plappert Page 33

Williams also elaborated on the proper standards for evaluating claims under AEDPA.

First, interpreting the “the contrary to” prong of AEDPA, the Supreme Court held that a state

court decision conflicts with clearly established law if it applies a rule that contradicts the

governing law in a previous decision. 28 U.S.C. § 2254(d)(1); see 29 U.S. at 405 (plurality

opinion). Or it is contrary if it applies the correct law to “materially indistinguishable” facts

from a prior Supreme Court decision but arrives at a contrary result. Id. at 406. However,

Williams notes that a state court decision that identifies the correct Strickland rule and applies it

to reject the prisoner’s claim is not “diametrically different,” or “opposite in character or nature,”

or “mutually opposed” to Strickland. Id.

Second, interpreting the “unreasonable application” prong, Williams concluded that a

state court’s decision is contrary to federal law when it identifies the correct legal principle but

unreasonably applies it to the facts. 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 413. It

was not until 2011 that the Supreme Court established the rule that federal habeas relief is

precluded so long as “fairminded jurists could disagree” on whether the law was unreasonably

applied.12 See Harrington 562 U.S. at 101 (quotation omitted).

Per Williams, a state court decision can also conflict with federal law if it reaches a

different conclusion despite confronting “materially indistinguishable facts” from a prior

Supreme Court decision. See 529 U.S. at 405. In Williams, the Virginia Supreme Court erred in

misreading Strickland as being supplemented by Lockhart v. Fretwell, 506 U.S. 364 (1993) to

require a separate inquiry into fundamental fairness even after a Strickland claim is satisfied.

See Williams, 529 U.S. at 393 (plurality opinion). By contrast, the Kentucky Supreme Court did

not misapply Strickland here. The Virginia Supreme Court also had access to a wealth of

mitigating evidence that should have been presented. Id. at 370. Here, the mitigation evidence

consisted of just three reports—one of which Charters could not have known existed; another

created after the conviction; and the third potentially prejudicial to his own client. And all three

12

Part II of Justice Stevens’s opinion in Williams rejects that idea stating that a decision can be

unreasonable even if jurists disagree. See 529 U.S. at 377. But that part of the decision was not joined by Justices

Kennedy and O’Connor, so it constituted only a plurality. See id. at 367. Instead, Justice O’Connor’s concurrence

became the majority opinion on the unreasonable interpretation prong. Id. at 399. Justice O’Connor noted the

difficulty in defining that term and narrowly held that a decision can be incorrect but not unreasonable. Id. at 411.

No. 16-6152 Sanders v. Plappert Page 34

contain second-hand reports of Sanders’s abuse with no verification in the state court record. Cf.

Mitchell v. The Hartford, No. 3:05CV-432-H, 2006 WL 1548956, at *5 (W.D. Ky. June 2, 2006)

(“These statements are second hand and completely unverified.”) There are no direct reports in

the record now before us. Accordingly, we cannot grant habeas relief for Charters’s failure to

offer more mitigation evidence at the penalty stage of Sanders’s trial.

4.

Sanders next argues that Charters rendered ineffective assistance of counsel because he

failed to appropriately advise and prepare him for his penalty phase testimony. The Kentucky

Supreme Court rejected this claim because Sanders presented nothing but speculation as to why

he was inadequately prepared to testify. See Sanders II, 89 S.W.3d at 391. The district court

denied Sanders’s habeas petition because he failed to show prejudice under Strickland and the

Supreme Court of Kentucky reasonably denied him relief. We agree.

After Sanders’s conviction, there was little time to prepare for the penalty stage. In fact,

the first thing the state trial court said after Sanders’s conviction was, “I didn’t have any idea we

would get to this stage this quickly.” DE 166-4, Trial Tr., Page ID 3956. Because Charters was

unprepared to begin the penalty phase testimony, he asked the court to recess that day (Friday) so

he could prepare over the weekend. The trial court hesitated, and Charters stated that he already

“put on what would normally be the mitigation stuff,” but just wanted to check with a few family

members if they wanted to testify about the personal effects the death penalty would have on

them. Id. 3958. In response, the trial court told Charters that this type of mitigation is likely

inadmissible. After a brief recess, Charters reiterated that he wanted the court recessed until

Monday and that he could bring in several people from the community who knew Sanders

growing up to testify about his childhood. The court obliged.

On Monday, Charters presented four witnesses in Sanders’s defense (his employer,

neighbor, assistant principal of his high school, and sister). The entire questioning took less than

20 minutes. Because Sanders had not testified, the court wanted the record to reflect that he

knew he had the right to testify but did not want to. So, the trial court conducted a colloquy,

reminding Sanders of his rights. The court then asked Sanders whether he wanted to testify, to

No. 16-6152 Sanders v. Plappert Page 35

which he responded, “I don’t know.” DE 166-5, Trial Tr., Page ID 3978. The court then

recessed so Sanders and Charters could discuss whether Sanders would testify. After four

minutes, the court readjourned, and Sanders testified.

Sanders’s testimony on the stand was scattered. He testified that he was not guilty of the

crimes and that his mental health professionals failed to help him. Charters asked Sanders if he

would cooperate with mental health professionals if offered treatment, but Sanders equivocated

and insisted he had already cooperated. Sanders ended his testimony stating, “I just – I just don’t

understand what happened to me. Those people at KCPC told me I might not ever understand

what happened. I asked those people to help me, and they didn’t have time. They had a lot of

people there, more people coming in all the time, and they didn’t have time to talk to me.” DE

166-5, Trial Tr. Page ID 3982–83.

The prosecution seized on Sanders’s testimony at closing. It noted that Sanders

continued to blame others. The prosecution also stated that Sanders did not say he would

cooperate with future treatments and asked the jury, “[d]oesn’t that scare you[?]” Id. 3991. The

prosecution also pointed out that Sanders never once expressed any remorse for his crime: “No

remorse at all. He told you today he might be a little bit guilty, but he was mostly not guilty,

much of him was not guilty. How scar[]y is that, to know that that man would be allowed to

live?” Id. 3997.

Sanders argues that Charters’s preparation fell short under the Strickland standard and

that it prejudiced him. The Kentucky Supreme Court disagreed, holding that Sanders presented

nothing but speculation that he was not fully informed of his rights and had not been adequately

prepared to testify. See Sanders II, 89 S.W.3d at 391. Strickland has two prongs: (1) ineffective

assistance of counsel and (2) prejudice, which Sanders must satisfy. See 466 U.S. at 687. In

Sanders’s postconviction proceedings, the Kentucky Supreme Court reasonably concluded that

Sanders had failed to indicate what Charters should have done and what would have been

different. See Sanders II, 89 S.W.3d at 391.

No. 16-6152 Sanders v. Plappert Page 36

The same holds true today. Sanders presents no evidence about what would have gone

differently had Charters served as adequate counsel.13 Contra Rogers v. Mays, 69 F.4th 381, 390

(6th Cir. 2023) (to show Strickland prejudice the petitioner must “show a reasonable probability

that the trial would have gone differently but for counsel’s errors”). Instead, Sanders only

theorizes as to what would have gone differently, such as he would have shown more remorse

during his testimony or would not have testified at all, which presumably would have made the

jury not recommend the death penalty. But this only leaves us “with pure speculation on

whether the outcome of the trial or the penalty phase could have been any different, [which is] an

insufficient basis for a successful claim of prejudice.” Baze, 371 F.3d at 322. This is not to say

that a defendant can never show prejudice when his counsel fails to prepare him to testify, and he

then testifies. We conclude only that the Kentucky Supreme Court’s conclusion that Sanders did

not show prejudice based on the record before it, which included overwhelming aggravating

evidence against Sanders, was reasonable and not contrary to federal law. Accordingly, we

cannot grant Sanders habeas relief on this claim.

5.

Sanders argues that Charters’s failure to call for a second competency evaluation for

Sanders constituted a Strickland violation. Although we review this claim de novo, and not

under AEDPA, we disagree.

After confessing to the crime and being arrested, Sanders began displaying signs of

mental incompetence. This led Charters to move to commit Sanders to a state institution and

have his mental health evaluated. The Kentucky state court granted the motion and ordered

Sanders moved to KCPC. There, after one and half months of study, Walker produced her report

finding Sanders competent. Despite being found competent, Charters continued to have

concerns. At the beginning of Sanders’s trial, Charters asked the judge if he could get a doctor

visit for Sanders, stating that Sanders had “gone two nights now unable to sleep and he’s – I’m

losing him. I’m losing his attention. He can’t concentrate.” DE 166-2, Trial Tr., Page ID 3725.

The state court permitted Charters to make “arrangements” with the jail, but Charters did not

13

Inadequate preparation, by itself, does not show prejudice. See Wise v. Bowersox, 136 F.3d 1197, 1207

(8th Cir. 1998).

No. 16-6152 Sanders v. Plappert Page 37

request a new competency evaluation. After Sanders was found guilty, Charters told the court

that Sanders was physically unable to testify that day, although after the weekend Sanders could

testify.

After the jury’s recommendation of death, the state court asked Charters and Sanders

whether there was any reason that it should not impose judgment at that time. In response

Charters stated: “I do not believe that Mr. Sanders is competent at this stage of the proceedings.

I don’t believe that he understands the nature of what is happening right now. I think he

understands what you are doing, but he does not understand why. And I question whether he has

the ability to go through this stage.” DE 166-6, Trial Tr., Page ID 4007. So, the trial court

conducted its own colloquy and asked Sanders whether he understood what was happening.

Sanders said that he did, but that he did not “understand how it’s come this far.” Id. 4008. The

trial court continued, asking Sanders if he understood that he had been found guilty of the crimes

of murder and robbery and that it was the state court’s job to sentence him. Sanders said that he

understood. Satisfied, the court found him competent.

In Sanders I, the Kentucky Supreme Court held that, under these facts, the trial court

“was not required to order a competency hearing pursuant to RCr 8.06.” 801 S.W.2d at 682

(citing Ky. Rule. Crim. Pro. 8.06)). In Sanders II, the Kentucky Supreme Court held that

because Sanders had already brought his claim that Charters should have requested another

competency evaluation in Sanders I, Sanders could not re-raise it. See 89 S.W.3d at 391. In so

doing, the Kentucky Supreme Court misread Sanders I, which concerned the trial court’s

independent responsibility to order another competency evaluation; in Sanders II, Sanders

brought a separate claim that Charters should have requested one. Therefore, the Kentucky

Supreme Court in Sanders II did not reach the merits on this issue and AEDPA does not apply,

and we review Sanders’s Strickland claim de novo.

Constitutionally, trying an incompetent defendant violates due process. See Godinez v.

Moran, 509 U.S. 389, 396 (1993). . The test is whether the defendant has “sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding[s] of the proceedings against him.”

Drope v. Missouri, 420 U.S. 162, 170 n.7 (1975) (quotation omitted). Otherwise, someone who

No. 16-6152 Sanders v. Plappert Page 38

became “‘mad’ after the commission of an offense . . . should not be tried, ‘for how can he make

his defense?’” Id. at 171 (quoting 4 W. Blackstone Commentaries, *24)). Charter’s failure to

seek another competency hearing is governed by Strickland. Thus, Sanders must show both

deficient performance and prejudice. See United States v. Dubrule, 822 F.3d 866, 881 (6th Cir.

2016). To demonstrate prejudice, Sanders must show that if Charters had sought a new

competency hearing, there is a reasonable probability that the outcome of the proceeding would

have been different. Id. at 881–82.

We agree with the district court’s finding that Sanders has failed to establish a reasonable

probability that he would have obtained a second competency hearing if Charters requested one.

Sanders had already received a comprehensive, six-week evaluation before trial. From this

evaluation, he was found competent to stand trial. “There is no right to a continual succession of

competency hearings in the absence of some new factor.” Pate v. Commonwealth, 769 S.W.2d

46, 47 (Ky. 1989). To obtain another competency evaluation, Sanders would have had to

convince the judge that a new factor or change in his condition warranted one. See id. The only

new factors were a statement that Sanders was having trouble paying attention and that, before

sentencing, Charters believed Sanders understood what was happening but not why. But it is

understandable that Sanders may have been stressed and indecisive about whether to testify. See

Cox v. Compton, No. 98-6209, 2000 WL 84458, at *3 (6th Cir. Jan. 12, 2000) (“[C]onfusion and

indecision do not seem to us inconsistent with legal competence, which requires only an ability

to understand the proceedings and to consult rationally with defense counsel.”); United States v.

Van Dyke, 605 F.2d 220, 226 (6th Cir. 1979) (“[S]ome degree of emotional strain exists in every

criminal proceeding[.]”).

In addition, before sentencing, when Charters raised the issue of competence again, the

state court conducted its own colloquy and was satisfied that Sanders was competent. Thus,

these three situations together with the fact that Sanders already had an intensive six-week

mental health evaluation and was found by the trial court to be competent, indicate that there is

no reasonable possibility that, if Charters had asked for another mental competency evaluation, it

would have been granted. Therefore, under de novo review, Sanders cannot satisfy the prejudice

No. 16-6152 Sanders v. Plappert Page 39

prong of Strickland. Accordingly, no Strickland violation arises from Charters’s failure to ask

for a second competency evaluation.

C.

Finally, Sanders argues that the cumulative effect of Charter’s errors prejudiced him.

According to Supreme Court precedent, while we analyze each Strickland claim individually, we

should aggregate each alleged ineffective assistance of counsel violation and consider, as a

whole, whether there was prejudice. See Rompilla, 545 U.S. at 393; Williams, 529 U.S. at 399;

see also Mackey v. Russell, 148 F. App’x 355, 368–69 (6th Cir. 2005). Sanders did not initially

raise his cumulative prejudice argument in state court. He later brought it before the Kentucky

Supreme Court in Sanders III. See 339 S.W.3d at 436 (“(36) cumulative prejudice”). There, the

Kentucky Supreme Court held that this claim, among many others, was barred for Sanders’s

failure to bring it in either Sanders I (direct review) or Sanders II (the initial collateral attack).

See id. at 437. Therefore, the Kentucky Supreme Court relied “on a procedural bar to dispose of

the claim at hand,” and Sanders’s cumulative prejudice claim was not adjudicated on the merits.

See Barton, 786 F.3d at 464.

As a result, Sanders’s claim for cumulative prejudice was procedurally defaulted, and we

cannot hear his claim unless he shows cause. Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir.

2007). To show cause, Sanders must establish “some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477

U.S. 478, 488 (1986). No such cause exists in this record. Sanders’s cumulative prejudice claim

thus fails.

V.

Accordingly, we uphold the constitutionality of AEDPA. Applying AEDPA to some

claims and reviewing other claims de novo, we deny Sanders’s habeas petition.

No. 16-6152 Sanders v. Plappert Page 40

_________________

DISSENT

_________________

JANE B. STRANCH, Circuit Judge, dissenting. In my view, the majority opinion

misinterprets Supreme Court caselaw regarding the appropriate role of federal courts and thereby

errs in holding constitutional a law that requires courts to abdicate the authority the founders

vested in the federal courts. Longstanding precedent demonstrates that AEDPA is

unconstitutional. Further, regardless of the standard of review issue in this case, Sanders is

entitled to habeas relief. Therefore, I respectfully dissent.

I. BACKGROUND

A. State Conviction

On January 28, 1997, David Lee Sanders, by his own admission, shot two men at the

Boone Variety Store in Madison County, Kentucky. He walked into the store and purchased

orange juice and candy. He used the store’s pay phone. He walked out to his car, got his gun

from the car, and returned to the store. He approached the store’s counter where the store’s

owner was standing. The owner was writing something with his back towards Sanders. Sanders

shot him in the back of the head. When another customer entered the store, Sanders shot that

man too. He took money from both men.

Shortly after Sanders was arrested, he began showing disturbing mental health symptoms.

The psychiatrist at the jail where Sanders was initially held after his arrest wrote a letter to the

court expressing concern for Sanders’s emotional state, worrying that Sanders was suicidal.

Sanders’s retained counsel moved for Sanders to be committed to a state institution for

evaluation of competence and “neurological health” because he was in such a state of mental

anguish that he was having difficulty assisting with his own defense and displaying symptoms

including pain, dizziness, and sensitivity to light.

The court ordered that Sanders be transferred to the Kentucky Correctional Psychiatric

Center (KCPC) where he would be evaluated for competency to stand trial, competency at the

No. 16-6152 Sanders v. Plappert Page 41

time of the crime, and any physio-neurological defects or deficiencies. After observing Sanders

for a month and a half, a team of mental health professionals from KCPC produced a report. The

KCPC team of psychiatrists concluded that Sanders did not suffer from a psychotic illness or

major affective disorder, that he did not suffer from hallucinations, delusions, or paranoia, and

that there was no evidence of central nervous system dysfunction. As a result, the KCPC Report

indicated that Sanders had no condition that would render him not criminally responsible. The

Report further concluded that Sanders understood the nature of the proceedings against him and

was competent to stand trial.

In the lead up to trial, Sanders’s counsel failed to interview any of the professionals who

had treated or evaluated Sanders either at the jail or at KCPC. Instead, during the week before

trial, counsel contacted Dr. Cooke, an independent expert who met with Sanders for three hours

just days before testifying, to do an evaluation. Dr. Cooke reviewed the KCPC Report and

police reports and interviewed one of Sanders’s brothers but was not provided with any other

psychiatric information about Sanders. Dr. Cooke concluded that Sanders suffered from

“depersonalization disorder” at the time of the crime.

At trial, the defense presented an insanity defense based on the testimony of exactly two

witnesses: Dr. Cooke and Sanders himself. Sanders admitted to having shot both victims as well

as to having shot another woman in an earlier incident. He described significant amnesia

regarding the incident and testified that, at the time he was unsure why he was acting the way he

was and was unable to stop himself. Dr. Cooke then testified briefly. He was accepted as an

expert and testified that Sanders suffered from depersonalization disorder at the time of the

crime. He explained that a person with such a disorder will “feel[] that they are not themselves

any longer, that they are somehow outside of their body, watching themselves do something . . .

[and] that they do not have any control any longer over their body.” R. 166-3, Trial Tr., PageID

3857-58. Such symptoms, Dr. Cooke explained, can strike suddenly, without any warning. He

concluded that, at the time of the crime, Sanders “did not have any control over what was

happening to him.” Id. at PageID 3858.

Several key facts undermined Dr. Cooke’s credibility. First, he had only evaluated

Sanders for three hours (as compared to the KCPC doctors who had evaluated him over a month

No. 16-6152 Sanders v. Plappert Page 42

and a half). Second, perhaps because of his rushed preparation, he was caught in several errors

at trial, which the prosecutor made a point of highlighting to the jury at closing argument. He

misstated the date on which he had evaluated Sanders, testifying to having evaluated Sanders at a

time when the jury knew Sanders had been in trial. He even misstated Sanders’s name, calling

him “Saunders.”

After testimony, the jury was instructed. The court began with a series of instructions

setting out the elements of the State’s burden for each crime with which Sanders was charged.

Each began with uniform language instructing the jury that “You will find the defendant, David

Lee Sanders, guilty under this instruction if and only if you believe from the evidence beyond a

reasonable doubt all of the following[.]” The court then instructed the jury on the insanity

defense:

Instruction number seven, Insanity. Even though you might otherwise find the

defendant guilty of the offenses mentioned in instructions number 2, 3, 4 and 5, if

you believe from the evidence that at the time David Lee Sanders committed

these offenses, if he did so, he was of unsound mind, you shall find him not guilty

and say in your verdict that you find him not guilty on the ground of insanity.

Before the defendant can be excused on the ground of insanity, you must believe

from the evidence that at the time of the act in question the defendant as a result

of mental disease or defect, A, did not have substantial capacity to appreciate the

criminal nature of the act or, B, if he did have such capacity he did not have

substantial capacity to conform his conduct to the requirements of the law. The

term “mental disease” or “defect” does not include an abnormality manifested

only by repeated criminal or otherwise anti-social conduct.

R. 166-4, Trial Tr., PageID 3916-17. Sanders was found guilty and sentenced to death. Sanders

v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990).

B. Post-Trial Proceedings

Sanders appealed his convictions, raising a host of issues. Id. Relevant here, Sanders

argued that the jury instructions given at his trial were misleading as to the burden of proof for

insanity because the instructions failed to explain a burden other than “beyond a reasonable

doubt.” Id. at 679. The Kentucky court analyzed the issue in its entirety as follows:

It is further submitted that the instructions failed to specify the burden of proof

regarding the defense of insanity. The jury was instructed that it might find the

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defendant not guilty by reason of insanity if it believed “from the evidence” that

he was insane at the time of the offenses. We find no error in this instruction. See

Gall v. Commonwealth, Ky., 607 S.W.2d 97 at 110.

Id. The court affirmed Sanders’s conviction. Id. at 684.

Sanders then initiated postconviction proceedings in the Kentucky courts pursuant to

Kentucky Rule of Criminal Procedure 11.42. He raised multiple claims of ineffective assistance

of counsel, including the claims that counsel was ineffective for failing to acquire competent

psychiatric testimony either from a Dr. Flenning who had worked on the KCPC team of

psychiatrists, or by better preparing Dr. Cooke. Sanders v. Commonwealth, 89 S.W.3d 380, 385-

88 (Ky. 2002).

During his post-conviction proceedings, Sanders introduced evidence that Dr. Flenning

had prepared a separate report from the one produced by the KCPC team as a whole. This report

had never been acquired by the State and was not turned over to the defense. Id. at 385-86. It

was not referenced in the KCPC Report. In fact, the KCPC Report represented itself as

summarizing all of the findings of the team of psychologists including Dr. Flenning. The

Flenning Report came to conclusions more favorable to Sanders than the KCPC Report,

including that there was “strong evidence for an atypical psychosis” such as “pseudo-neurotic

schizophrenia.” R. 165-16, PageID 3346-47. Dr. Flenning also concluded that “[u]nder unusual

stresses and circumstances he has the potential for brief psychotic episodes wherein he would

experience a loss of contact with reality and possibly delusional thinking.” Id. at PageID 3347.

Sanders also introduced evidence that he had been evaluated for a different murder case

by a team of independent experts who, unlike Dr. Cooke, had time to adequately evaluate

Sanders and prepare reports with conclusions. Two experts examined Sanders over the course of

several sessions, and both concluded, as Dr. Cooke did, that Sanders suffered dissociative

episodes characterized by depersonalization in which his ability to control himself was impaired.

Both concluded that Sanders lacked the capacity to conform his conduct to the requirements of

the law at the time of Sanders’s other crimes. The state trial court denied Sanders’s post-

conviction claims. Sanders, 89 S.W.3d at 384.

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Sanders’s appeal from his post-conviction proceedings again reached the Kentucky

Supreme Court. Id. The Kentucky court reasoned that, even if Sanders’s counsel should have

acquired Dr. Flenning’s report, there was no prejudice because “[t]he use of the Flenning report

to cross-examine Dr. Walker, or by calling Dr. Flenning as a witness would have resulted in a

reinforcement of the argument by the prosecutor about inconsistencies in Sanders’[s] statements

and illustrate that Sanders repeatedly changed his version of various events as he was

interviewed by different evaluators.” Id. at 386.

As for Sanders’s claim that his counsel had failed to provide him with adequate expert

representation in the form of Dr. Cooke, the court reasoned:

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), commented

that “Psychiatry is not, however, an exact science, and psychiatrists disagree

widely and frequently on what constitutes mental illness, on the appropriate

diagnosis to be attached to given behavior and symptoms, on cure and treatment,

and on the likelihood of future dangerousness.” Sanders was sent on his own

motion to KCPC for a six-week psychiatric evaluation by a team of social

workers, psychologists, a psychiatrist and a neurologist. . . . The fact that an

additional evaluation might be beneficial to the defense does not add credibility to

his claim. The trial judge stated that Sanders submitted reports from a

psychologist, a psychiatrist and a Ph.D. These experts were retained in connection

with a defense of charges resulting from a 1986 shooting in Lincoln County. As

correctly observed by the trial judge, the reports and the testimony would have

made no difference in the outcome of the trial. The jury rejected the opinion

offered by Dr. Cooke and there is no reason to believe they would have accepted a

similar opinion simply because it came from a different defense expert. Dr. Cooke

indicated that he was willing to testify that in his opinion Sanders satisfied the

legal standard for insanity. Thus, Sanders had access to qualified mental health

experts to establish his insanity defense. His complaints about ineffectiveness are

without merit.

Id. at 387-88. The Kentucky Supreme Court affirmed the district court’s decision to deny

Sanders’s postconviction claim. Id. at 394.

Sanders filed a petition for a writ of habeas corpus in federal district court on December

18, 2003, alleging that the Kentucky Supreme Court had acted unreasonably under or contrary to

federal law. The district court denied the petition.

No. 16-6152 Sanders v. Plappert Page 45

II. STANDARD OF REVIEW

Because the district court did not hold an evidentiary hearing, we review both the district

court’s legal conclusions and the district court’s factual finding’s de novo. Barton v. Warden, S.

Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015). The majority opinion concludes that,

because this is a habeas action, this court’s ability to grant relief is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). See generally 28 U.S.C. § 2254. AEDPA

prohibits a federal habeas court from granting relief on “any claim that was adjudicated on the

merits in State court proceedings unless” the state court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law,” as determined by the Supreme

Court of the United States, id. § 2254(d)(1), or the state court’s decision “was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).

The first fundamental question we must answer is whether this so called “AEDPA

deference” is constitutionally permissible. The majority opinion holds that it is. I would hold

that the § 2254(d) standard is unconstitutional. Analysis of this issue begins with the fact that

Congress has granted federal courts jurisdiction to determine whether a prisoner is being held in

violation of the Constitution. The fundamental issue is whether, when a federal court exercises

that grant and finds the imprisonment unconstitutional, Congress can make that court’s ability to

grant relief dependent on deference to a state interpretation of the Constitution. As explained

below, I would hold that such a rule is not constitutional and would, therefore, review Sanders’s

constitutional claims de novo without deference to the state courts.

A. Unconstitutional Deference

In The Federalist Papers No. 78, Hamilton recognized that the judiciary must be “truly

distinct from both the legislative and executive. For I agree that there is no liberty, if the power

of judging be not separated from the legislative and executive powers.” The Federalist No. 78

(quotation omitted). He noted that “[t]he interpretation of the laws is the proper and peculiar

province of the courts. A constitution is, in fact, and must be regarded by the judges, as a

No. 16-6152 Sanders v. Plappert Page 46

fundamental law. It therefore belongs to them to ascertain its meaning.” Id. The historical

development of that stark separation of powers sheds light on the force it should have.

The current text of Article III of the Constitution is the result of a compromise between

two factions at the constitutional convention. James Madison originally proposed a federal

judiciary that would exclusively resolve all questions of federal law at least at the appellate level.

Letter from James Madison to George Washington (Apr. 16, 1787), in 9 The Papers of James

Madison 382, 384 (Robert A. Rutland, et al. eds., 1975) [hereinafter Madison Papers]. His

opponents wanted to leave federal question jurisdiction to the state courts, giving them a duty to

apply national law, and to exclude lower federal courts entirely. 1 The Records of the Federal

Convention of 1787, at 244-45 (Max Farrand ed. 1911) [hereinafter 1 Farrand]. At the same

time, there was significant debate as to whether there should be a national legislative veto for

state laws not in the national interest. Compare Letter from James Madison to Thomas Jefferson

(March 19, 1787), in Madison Papers 317, 318-19 (setting forth a case for a national negative),

and 2 The Records of the Federal Convention of 1787, at 27 (Max Farrand ed. 1911) [hereinafter

2 Farrand] (arguing that the negative is “essential to the efficacy [and] security of the”

government), with id. at 28 (arguing that the negative would “disgust” all states and noting that it

failed three states to seven). The compromise between these positions was to delegate to judges

(including federal judges) the task of voiding unconstitutional state law. See 2 Farrand 28-29

(proposing a prototype of the Supremacy Clause immediately after the failure of the national

negative); id at 38-39 (unanimously approving the addition of inferior federal courts the day after

the failure of the national negative to review questions of federal law).

The express purpose of allowing federal judges this power was to avoid situations in

which state judges, loyal to state law, would misapply national law to preserve their own state

law. Letter from James Madison to George Washington (Apr. 16, 1787) in Madison Papers 382,

384. Even those opposed to Madison’s positions acknowledged that there was a need for federal

courts to protect “national rights.” 1 Farrand 124 (noting that Rutlidge and Sherman, staunch

opponents of Madison’s schemes, agreed that there was a need for a federal judiciary to protect

national rights). Madison argued that the purpose of lower federal courts was to ensure there

was a remedy “after improper [v]erdicts in State tribunals obtained under the [biased] directions

No. 16-6152 Sanders v. Plappert Page 47

of a dependent Judge” and to step in when the states persisted in behavior violative of the

Constitution. Id. This history indicates that the Founders would have objected to a rule that

required federal courts to subject their interpretation of the Constitution, even in a single case, to

that of the state courts. Doing so would undermine the very purpose of lower federal courts—

stopping biased state judges from circumventing the Constitution.

The Court in Loper Bright Enterprises v. Raimondo1 recognized the problems with a

federal court deferring to non-Article III actors:

The Framers also envisioned that the final “interpretation of the laws” would be

“the proper and peculiar province of the courts.” . . . To ensure the “steady,

upright and impartial administration of the laws,” the Framers structured the

Constitution to allow judges to exercise that judgment independent of influence

from the political branches. . . . This Court embraced the Framers’ understanding

of the judicial function early on. In the foundational decision of Marbury v.

Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the

province and duty of the judicial department to say what the law is.”

603 U.S. 369, 385 (2024) (citations omitted). But the Court in Loper Bright was by no means

setting out a new argument regarding the special role of Article III courts. Stern v. Marshall

teaches that “[A]rticle III could neither serve its purpose in the system of checks and balances

nor preserve the integrity of judicial decisionmaking if the other branches of the Federal

Government could confer the Government’s ‘judicial Power’ on entities outside Article III. That

is why we have long recognized that, in general, Congress may not ‘withdraw from judicial

cognizance any matter which, from its nature, is the subject of a suit at the common law, or in

equity, or admiralty.’” 564 U.S. 462, 484 (2011). As far back as 1824, the Supreme Court in

1

Although Loper Bright’s explanation of the role of federal courts is instructive, I agree with the majority

opinion that the holding of Loper Bright has no bearing on the constitutionality of AEDPA. Loper Bright did deal

with deference, but in a different context. The Supreme Court’s decision in Chevron, U.S.A., Inc. v Natural

Resources Defenses Council, Inc. read the Administrative Procedure Act (APA) to permit Article III courts to defer

to reasonable agency interpretations of statutes even where those statutes did not expressly delegate authority to the

agency. 467 U.S. 837, 842-43 (1984). In other words, Chevron read the APA as creating a rule of decision for

Article III courts interpreting other statutes. Loper Bright overturned Chevron on statutory grounds, holding that the

APA creates no such rule of decision. 603 U.S. at 412. That holding is not applicable to habeas cases, because

habeas cases are not decided under the APA. Additionally, Justices Thomas and Gorsuch both wrote concurrences in

which they expressed the belief that Chevron style deference—i.e., a rule of decision by which Article III courts

must defer to a non-Article III entity as to the reading of a document that did not expressly delegate interpretive

authority to the entity—would be unconstitutional even if Congress had actually dictated it in the APA. Id. at 413-15

(Thomas, J., concurring); id. at 433 (Gorsuch, J., concurring). But the Supreme Court majority did not reach a

conclusion as to this reading of the Constitution.

No. 16-6152 Sanders v. Plappert Page 48

Cohens v. Virginia held that it would be “treason[ous] to the [C]onstitution” for Article III courts

to defer to a state reading of the Constitution and decline to provide an independent reading

simply because the matters were doubtful. 19 U.S. (6. Wheat.) 264, 404 (1821). Presumably,

Congress cannot mandate that courts commit treason against the Constitution.

Of those courts that have upheld AEDPA, most have conceded that a rule requiring the

federal courts to defer to a non-Article III actor as to the proper interpretation of the Constitution

would be unconstitutional. In the words of the Seventh Circuit, “Congress lacks power to revise

the meaning of the Constitution or to require federal judges to ‘defer’ to the interpretations

reached by state courts. Once the judicial power is brought to bear by the presentation of a

justiciable case or controversy within a statutory grant of jurisdiction, the federal courts’

independent interpretive authority cannot constitutionally be impaired.” Lindh v. Murphy, 96

F.3d 856, 872 (7th Cir. 1996) (en banc). And the majority opinion in this case does not contend

that Congress can mandate that Article III courts accept state interpretations of the Constitution.

Maj. Op. at 16.

B. Unconstitutional Dictation of Remedies

The next question, then, is whether Congress can create an end run around the

unconstitutionality of deference to the state courts by saying that Article III courts can recognize

a state’s unconstitutional actions but cannot do anything about them unless the state acted

unreasonably. Congress can, of course, limit the types of cases in which courts can grant

remedies, and what types of remedies courts may give, even for constitutional violations. Felker

v. Turpin, 518 U.S. 651, 658 (1996) (“We conclude that although the Act does impose new

conditions on our authority to grant relief, it does not deprive this Court of jurisdiction to

entertain original habeas petitions.”). Thus, it is possible that, in some cases, a state court could

violate a defendant’s rights and a reviewing federal court would be unable to grant a remedy. As

multiple circuits reviewing this issue have noted, the idea that Article III courts would be

confronted with a constitutional violation and unable to remedy the issue is not new:

Plain error doctrine authorizes courts to correct forfeited errors only in rare

circumstances. The harmless error rule plays a similar, albeit less severe,

function. Qualified immunity can prevent meritorious constitutional plaintiffs

No. 16-6152 Sanders v. Plappert Page 49

from recovering. In the habeas context, the Supreme Court’s retroactivity

doctrine creates a chasm between valid claims and the right to relief. Supreme

Court precedent similarly forecloses federal habeas relief for state prisoners

convicted on the basis of evidence obtained in an unconstitutional search and

seizure. In short, federal courts routinely deny relief even for known

constitutional violations. The distinction between rights and remedies is

fundamental.

Cobb v. Thaler, 682 F.3d 364, 375 (5th Cir. 2012) (citations omitted).

What AEDPA does, however, is subtly different from what occurs in all those other types

of cases. It does not just provide a limit on relief for the underlying constitutional violation; it

makes relief dependent on the state law regarding that violation—which state law may, itself, be

unconstitutional. In the situations discussed above, it is the nature of the violation (e.g.,

retroactivity, qualified immunity, Fourth Amendment violations on habeas) or some fact with no

constitutional valence that determines whether relief may be granted (e.g., the strength of the

evidence in harmless error cases, or the lack of an objection in plain error cases). AEDPA makes

a federal court’s decision to grant habeas relief dependent on the substance, not only of the

underlying constitutional violation, but on the rule of decisional law the state announces when it

decides the prisoner’s case. As Judge Ripple noted when the Seventh Circuit considered this

issue:

There is a qualitative difference—a constitutional difference—between fixing the

time frame at which federal law will be applied and requiring that the federal

court defer to any application of constitutional principle that cannot be

characterized as unreasonable. Under the latter approach, mandated by the

amended statute, the federal court must be content with a careful application of

the Constitution, even if it is wrong. In essence, the federal court is free to have

its own opinion of what federal law requires, but it must grant or deny the writ on

the basis of another non-federal tribunal’s view.

Lindh v. Murphy, 96 F.3d 856, 889 (7th Cir. 1996) (Ripple, J., dissenting).

To see this distinction, consider two hypothetical prisoners: Joe and Bob. In Joe’s case,

a constitutional violation, X, happens under circumstances A, B, and C. The state supreme court

takes up Joe’s case and decides that X was not a constitutional violation and that, in any case, it

was harmless under circumstances A, B, and C. In Bob’s case, the same constitutional violation,

X, occurs, under the same circumstances, A, B, and C. The state supreme court takes up Bob’s

No. 16-6152 Sanders v. Plappert Page 50

case and decides that X was not a constitutional violation and never reaches the harmlessness

analysis. Imagine further, that, in fact, under the Constitution, X is a constitutional violation and

is not harmless.

Despite the fact that the same constitutional violation, X, occurred under the same

circumstances, A, B, and C, in Joe’s and Bob’s trials, a federal court’s ability to grant relief is

materially different in each case due to the different handling by the state courts. In Joe’s case,

even if the federal court finds that there was a constitutional violation and that the state court

acted unreasonably in holding otherwise, that court cannot grant relief unless the state court was

also unreasonable in analyzing harmlessness. Brown v. Davenport, 596 U.S. 118, 122 (2022). In

Bob’s case, if the federal court reaches harmlessness, it can grant relief after mere de novo

review. Rompilla v. Beard, 545 U.S. 374, 390 (2005). The rule of decisional law announced by

the state supreme court in Joe’s case but not in Bob’s—that violation X is not harmless under

circumstances A, B, and C—is, therefore, playing a material role in the federal court’s

decisionmaking separate from the role played by the underlying violation.

The question, then, is not merely whether there can be a constitutional violation for which

Congress prohibits Article III courts from granting relief—clearly there can be. It is whether

Congress can make a court’s ability to grant relief for a constitutional violation dependent on the

existence of a reasonable state law saying that the act in question is not a violation. More

broadly, can Congress say that Article III courts cannot grant relief for a constitutional violation

for which they could otherwise grant relief if a particular non-Article III actor happens to have a

different interpretation of the Constitution?

First of all, the idea that we can simply say “Congress has broad powers to regulate the

jurisdiction of inferior federal courts . . . [and] to regulate our ability to grant remedies” and have

done with the question would have absurd results. Maj. Op at 13. Taken to its logical extreme,

this reasoning would allow Congress to pass a law saying that, while federal courts have

jurisdiction to decide whether the laws of Congress (or of some state) are constitutional, Article

III courts can only grant relief where there is no reasonable interpretation of the Constitution that

would permit such a law. After all, in cases where the law was unconstitutional but reasonable,

courts would not be prohibited from saying whether the law was constitutional, only from

No. 16-6152 Sanders v. Plappert Page 51

granting relief. But Marbury v. Madison teaches that Congress cannot do that. 5 U.S. 137, 177-

78 (1803). Congress cannot pass a law requiring courts to give effect to an unconstitutional law:

It is emphatically the province and duty of the judicial department to say what the

law is. Those who apply the rule to particular cases, must of necessity expound

and interpret that rule. If two laws conflict with each other, the courts must

decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution

apply to a particular case, so that the court must either decide that case

conformably to the law, disregarding the constitution; or conformably to the

constitution, disregarding the law; the court must determine which of these

conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to

any ordinary act of the legislature; the constitution, and not such ordinary act,

must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered,

in court, as a paramount law, are reduced to the necessity of maintaining that

courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It

would declare that an act, which, according to the principles and theory of our

government, is entirely void; is yet, in practice, completely obligatory. It would

declare, that if the legislature shall do what is expressly forbidden, such act,

notwithstanding the express prohibition, is in reality effectual.

Id. In other words, Article III courts cannot recognize that a law is unconstitutional and then

apply it anyway to a particular case, letting it—rather than the Constitution—dictate the outcome

of the case. At the very least, this teaches that, while Congress can prohibit Article III courts

from granting relief for a constitutional violation in some cases, the fact that Congress dictates

relief rather than directly dictating a rule of constitutional decision does not automatically make

permissible Congress’s attempts to interfere with constitutional adjudication by Article III courts.

So, there must be some intermediate rule governing when Congress can and cannot prohibit

Article III courts from granting relief that distinguishes between cases like plain error review and

cases like the hypothetical in which Congress simply prohibits courts from granting relief from

any of its reasonable but unconstitutional laws.

Two decisions provide some guidance on the matter. First, in United States v. Klein,

certain kinds of relief were due to individuals residing in the South who had not participated in

No. 16-6152 Sanders v. Plappert Page 52

the Civil War. 80 U.S. 128, 137 (1871). The Court ruled that, under the Constitution, those who

had been pardoned were, likewise, entitled to relief. Id. at 141-42. Unhappy with that ruling,

Congress tried to use its ability to strip courts of jurisdiction to deny jurisdiction where there was

evidence of a pardon. Id. at 143-44. The Court reasoned:

Undoubtedly the legislature has complete control over the organization and

existence of that court and may confer or withhold the right of appeal from its

decisions. And if this act did nothing more, it would be our duty to give it effect.

If it simply denied the right of appeal in a particular class of cases, there could be

no doubt that it must be regarded as an exercise of the power of Congress to make

“such exceptions from the appellate jurisdiction” as should seem to it expedient.

But the language of the proviso shows plainly that it does not intend to withhold

appellate jurisdiction except as a means to an end. Its great and controlling

purpose is to deny to pardons granted by the President the effect which this court

had adjudged them to have. The proviso declares that pardons shall not be

considered by this court on appeal. We had already decided that it was our duty

to consider them and give them effect, in cases like the present, as equivalent to

proof of loyalty. It provides that whenever it shall appear that any judgment of

the Court of Claims shall have been founded on such pardons, without other proof

of loyalty, the Supreme Court shall have no further jurisdiction of the case and

shall dismiss the same for want of jurisdiction. The proviso further declares that

every pardon granted to any suitor in the Court of Claims and reciting that the

person pardoned has been guilty of any act of rebellion or disloyalty, shall, if

accepted in writing without disclaimer of the fact recited, be taken as conclusive

evidence in that court and on appeal, of the act recited; and on proof of pardon or

acceptance, summarily made on motion or otherwise, the jurisdiction of the court

shall cease and the suit shall be forthwith dismissed.

It is evident from this statement that the denial of jurisdiction to this court, as well

as to the Court of Claims, is founded solely on the application of a rule of

decision, in causes pending, prescribed by Congress. The court has jurisdiction of

the cause to a given point; but when it ascertains that a certain state of things

exists, its jurisdiction is to cease and it is required to dismiss the cause for want of

jurisdiction.

It seems to us that this is not an exercise of the acknowledged power of Congress

to make exceptions and prescribe regulations to the appellate power.

The court is required to ascertain the existence of certain facts and thereupon to

declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is

this but to prescribe a rule for the decision of a cause in a particular way? In the

case before us, the Court of Claims has rendered judgment for the claimant and an

appeal has been taken to this court. We are directed to dismiss the appeal, if we

find that the judgment must be affirmed, because of a pardon granted to the

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intestate of the claimants. Can we do so without allowing one party to the

controversy to decide it in its own favor? Can we do so without allowing that the

legislature may prescribe rules of decision to the Judicial Department of the

government in cases pending before it?

Id. at 145-46. From Klein we can draw a simple principle: Congress cannot use its power to

regulate procedure to functionally effectuate an unconstitutional rule of decision. Congress can

regulate relief in some ways, just as it can regulate jurisdiction. But Congress cannot use its

power to regulate relief to functionally create an erroneous rule of decision any more than it can

tailor jurisdiction to do the same. Tracking the logic of Klein, if Congress is permitted to require

courts to ascertain the existence of an incorrect but reasonable non-Article III interpretation of

the Constitution prohibiting relief and, as a result, declare that no relief can be provided, then

Congress is permitted to functionally create an unconstitutional rule of decision.

Congress can create rules of relief like plain error that are just that: rules of relief.

Similarly, Congress can strip the courts of jurisdiction to hear certain types of cases as

acknowledged in Klein. Id at 145. But Congress can gerrymander neither relief nor jurisdiction

as a “means to an end” to force courts to functionally decide cases by an unconstitutional rule of

decision put forward by a non-Article III actor (in Klein’s case Congress, in AEDPA’s the state

court). Id.

Second, in Reynoldsville Casket Co. v. Hyde, after the Supreme Court had already found

an Ohio “tolling” provision of its statute of limitations unconstitutional, Court precedent

indicated that such prior ruling applied to all pending cases. 514 U.S. 749, 750-71 (1995). The

Supreme Court of Ohio, however, held that the prior ruling “may not be retroactively applied to

bar claims in state courts which had accrued prior to the announcement of that decision.” Id. at

751-72. Hyde argued, as the defenders of AEDPA do today, that the Court should “look at what

the Ohio Supreme Court has done, not through the lens of ‘retroactivity,’ but through that of

‘remedy.’” Id. at 752. The plaintiff’s stance was that the State could simply decline to provide

to the defendant any remedy for the unconstitutionality of the tolling provisions. Id. As

examples, she cited both qualified immunity and Teague. Id. at 757. The Court reasoned,

however,

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Thus, Hyde asks, why not look at what the Ohio Supreme Court has done in this

case as if it were simply an effort to fashion a remedy that takes into consideration

her reliance on pre-Bendix law? Here, the remedy would actually consist of

providing no remedy for the constitutional violation or, to put the matter more

precisely, of continuing to toll the 2-year statute of limitations in pre-Bendix

cases, such as hers[.] . . . [W]e do not see how, in the circumstances before us, the

Ohio Supreme Court could change a legal outcome that federal law, applicable

under the Supremacy Clause, would otherwise dictate simply by calling its refusal

to apply that federal law an effort to create a remedy. The Ohio Supreme Court’s

justification for refusing to dismiss Hyde’s suit is that she, and others like her,

may have reasonably relied upon pre-Bendix law[.] . . . But, this type of

justification—often present when prior law is overruled -- is the very sort that this

Court, in Harper[ v. Virginia Dept. of Taxation, 509 U.S. 86 (1993)], found

insufficient to deny retroactive application of a new legal rule (that had been

applied in the case that first announced it). If Harper has anything more than

symbolic significance, how could virtually identical reliance, without more, prove

sufficient to permit a virtually identical denial simply because it is characterized

as a denial based on ‘remedy’ rather than ‘nonretroactivity’?

Id. at 753-54 (emphasis added). The upshot of this case is similar to the upshot of Klein: courts

cannot simply substitute an unconstitutional reading of the law for a constitutional one by

couching what they are doing in the language of “remedy” or “jurisdiction.” Where the effect of

the choice of “remedy” is functionally the application of a different rule of decision, the choice

of “remedy” is as unconstitutional as the original rule of decision was.

The full impropriety of AEDPA deference under the reasoning of Klein and Reynoldsville

Casket Co, is evidenced by an analogous hypothetical. Suppose Congress appointed a partisan,

political body to decide constitutional questions (e.g., a committee of partisan constitutional

scholars) and then empowered courts to grant relief only in cases where that body’s

interpretation of the Constitution would suggest that the court could grant relief or where that

body’s interpretation was unreasonable. True, under that framework courts could still “decide

what the law is,” but in close questions they could grant relief only where the partisan political

body interpreted the Constitution in the same way.

In this hypothetical, the “relief,” owed to a plaintiff whose rights were violated under an

Article III court’s reading of the Constitution but not under the partisan body’s would be like the

“remedy” in Reynoldsville Casket Co. For all practical purposes, the “remedy” would be

whatever the plaintiff would have received under the partisan body’s interpretation of the

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Constitution, just as Hyde’s “remedy” was effectively the continued application of the

unconstitutional tolling provision. Id. at 753-54. As in Klein, our ability to grant relief would be

“founded solely on . . . a rule of decision” prescribed by a non-Article III actor. 80 U.S. at 146.

Neither situation could stand, and if common sense did not tell us that Congress’s insertion of a

partisan body of constitutional arbiters into the decisionmaking of the court system was

unconstitutional, Reynoldsville Casket Co. and Klein would.

Crucially, this hypothetical is identical to AEDPA except that the non-Article III body to

whose musings Article III courts must subject their ability to grant relief is different. That

difference is immaterial. As the history described above demonstrates, the Continental Congress

expressly rejected the idea that States should be treated as though their interpretations of

constitutional law were equal to the federal courts’ interpretations in finality and independence.

Letter from James Madison to George Washington (Apr. 16, 1787) in Madison Papers 382, 384.

The framers considered state courts to be just as much political entities as federal legislative and

executive bodies. Id. Thus, the fact that the hypothetical above involves a panel of partisan

experts and AEDPA involves state courts makes no difference. The necessary conclusion, then,

is that Congress cannot use its power to regulate relief to, for all practical intents and purposes,

force Article III courts to defer to state courts’ interpretation of the Constitution any more than

Congress could simply mandate directly that Article III courts defer to state law.

One final case draws together these principles and applies them to a closely analogous set

of facts. In St. Joseph Stock Yards Co. v. United States, the Court considered the

constitutionality of an order of the Secretary of Agriculture fixing maximum rates for the stock

yard’s services. 298 U.S. 38 (1936). The stock yards alleged that the rates were

unconstitutionally “confiscatory” under the Fifth Amendment, but a representative of the

Secretary of Agriculture had already concluded that they were not after conducting his

investigation and hearing. Id. at 46. The district court that initially reviewed the case thought

that, under the Packers and Stockyards Act, it could not reject the findings of the Secretary of

Agriculture regarding the constitutionality of the rates if those findings were “supported by

substantial evidence.” The Court explained why the district court was wrong:

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[T]he Constitution fixes limits to the rate-making power by prohibiting the

deprivation of property without due process of law or the taking of private

property for public use without just compensation. When the legislature acts

directly, its action is subject to judicial scrutiny and determination in order to

prevent the transgression of these limits of power. The legislature cannot

preclude that scrutiny or determination by any declaration or legislative finding.

Legislative declaration or finding is necessarily subject to independent judicial

review upon the facts and the law by courts of competent jurisdiction to the end

that the Constitution as the supreme law of the land may be maintained. Nor can

the legislature escape the constitutional limitation by authorizing its agent to

make findings that the agent has kept within that limitation. Legislative agencies,

with varying qualifications, work in a field peculiarly exposed to political

demands. Some may be expert and impartial, others subservient. It is not

difficult for them to observe the requirements of law in giving a hearing and

receiving evidence. But to say that their findings of fact may be made conclusive

where constitutional rights of liberty and property are involved, although the

evidence clearly establishes that the findings are wrong and constitutional rights

have been invaded, is to place those rights at the mercy of administrative officials

and seriously to impair the security inherent in our judicial safeguards. That

prospect, with our multiplication of administrative agencies, is not one to be

lightly regarded. It is said that we can retain judicial authority to examine the

weight of evidence when the question concerns the right of personal liberty. But,

if this be so, it is not because we are privileged to perform our judicial duty in that

case and for reasons of convenience to disregard it in others. The principle

applies when rights either of person or of property are protected by constitutional

restrictions. Under our system there is no warrant for the view that the judicial

power of a competent court can be circumscribed by any legislative arrangement

designed to give effect to administrative action going beyond the limits of

constitutional authority.

Id. at 52 (emphases added). Congress, with AEDPA, has attempted to do the same thing the

Court found impermissible in St. Joseph Stockyards: using a “legislative arrangement” designed

to give effect to an unconstitutional action of a non-Article III entity on grounds that the same

non-Article III entity reviewed the action and said it was not unconstitutional. Such a law cannot

stand.

AEDPA deference is unconstitutional. The fact that it uses a limitation on relief rather

than an explicit decisional rule to force Article III courts to subordinate their understanding of

the Constitution to that of state courts does not make it any less unconstitutional. Congress may

place some limitations on Article III courts’ ability to grant relief in habeas cases, but it may not

No. 16-6152 Sanders v. Plappert Page 57

make the ability of those courts to grant relief for a constitutional violation dependent on the

existence of a state law saying that the act in question is not a violation.

C. The Developing Law Regarding AEDPA’s Constitutionality

As noted above, there exists a long history of historical and legal discussion regarding the

separation of power between our judicial and legislative branches of government. The principles

undergirding that discussion address the relationship between Article III courts and state law as

well as the role of legislative enactments such as AEDPA deference and have given rise to much

scholarly and judicial debate. See, e.g., Anthony G. Amsterdam & James S. Liebman, Loper

Bright and the Great Writ, 56 Colum. Hum. Rts. L. Rev. 54 (2024); Transcript of Oral Argument

at 80, 114, 127, Relentless, Inc. v. Dep’t of Com. 603 U.S. 369 (2024) (No. 22-1219) (companion

case to Loper Bright). Drawing from these debates, the majority opinion puts forward a series of

arguments in favor of the constitutionality of AEDPA deference.

It first suggests that Supreme Court precedent dictates that AEDPA is constitutional.

Maj. Op. at 11. But the Supreme Court has never squarely considered whether AEDPA is

constitutional. Indeed, it has declined to do so. Although the issue of AEDPA’s constitutionality

was presented in Williams v. Taylor, 529 U.S. 362 (2000), the Court declined to grant certiorari

on that issue. Compare Petition for a Writ of Certiorari, Williams, 529 U.S. 362 (No. 98-8384)

(presenting four proposed questions for the Supreme Court’s review, the fourth being the

constitutionality of § 2254(d)), with Williams v. Taylor, 526 U.S. 1050 (1999) (granting certiorari

only as to the first three questions). While the Supreme Court has often applied AEDPA

deference, it has merely assumed its constitutionality. See, e.g., Brown v. Davenport, 596 U.S.

118, 127 (2022). But the Court has never held that it is constitutional. And while other circuits

have addressed and rejected the argument that AEDPA deference is unconstitutional, our circuit

has not done so in a published opinion.2

2

Nor are jurists quite as unanimous as is suggested. Most circuits that have found the deference provision

of AEDPA constitutional had at least one voice raising the alarm of unconstitutionality, and often multiple voices.

See, e.g., Evans v. Thomas, 524 F.3d 1 (1st Cir. 2008) (Lipez, J., dissenting from denial of rehearing en banc);

Crater v. Galaza, 508 F.3d 1261, 1261 (9th Cir. 2007) (Reinhardt, J., dissenting from denial of rehearing en banc);

Irons v. Carey, 505 F.3d 846, 854 (9th Cir 2007) (Noonan, J., concurring); Davis v. Straub, 445 F.3d 908, 908 (6th

Cir. 2006) (Martin, J., dissenting from denial of rehearing en banc); Lindh, 96 F.3d at 885 (Ripple, J., dissenting). In

No. 16-6152 Sanders v. Plappert Page 58

The Second argument raised is that restrictions on the writ of habeas corpus are

consistent with historical tradition. Maj. Op. at 12. Because the scope of habeas review has

historically been quite narrow, the argument goes, any newly gerrymandered limit on habeas

relief that narrows the scope of the relief closer to historical levels must be acceptable. But to

frame the historically narrow scope of habeas review as an indication that Congress can restrict

habeas in novel ways now is to misread our nation’s constitutional history. As Justice O’Connor

made clear, there is a reason habeas review was historically narrow, and it has nothing to do with

congressional narrowing of the scope of relief to vindicate unconstitutional state actions:

While it is true that [prior to the 1900s] a state prisoner could not obtain the writ if

he had been provided a full and fair hearing in the state courts, this rule governed

the merits of a claim under the Due Process Clause. It was not a threshold bar to

the consideration of other federal claims, because, with rare exceptions, there

were no other federal claims available at the time. . . . [T]he guarantees of the

Bill of Rights were not yet understood to apply in state criminal prosecutions.

The only protections the Constitution afforded to state prisoners were those for

which the text of the Constitution explicitly limited the authority of the States,

most notably the Due Process Clause of the Fourteenth Amendment. And in the

area of criminal procedure, the Due Process Clause was understood to guarantee

no more than a full and fair hearing in the state courts. See, e.g., Ponzi v.

Fessenden, 258 U.S. 254, 260, 66 L. Ed. 607, 42 S. Ct. 309 (1922) (“One accused

of crime has a right to a full and fair trial according to the law of the government

whose sovereignty he is alleged to have offended, but he has no more than that”).

Thus, when the Court stated that a state prisoner who had been afforded a full and

fair hearing could not obtain a writ of habeas corpus, the Court was propounding

a rule of constitutional law, not a threshold requirement of habeas corpus. This is

evident from the fact that the Court did not just apply this rule on habeas, but also

in cases on direct review.

Write v. West, 505 U.S. 277, 297-98 (1992) (O’Connor, J., concurring). In other words,

historical limits on habeas did not exist due to some congressional restriction. There existed no

provision for courts to say “the state acted unconstitutionally, but our hands are tied because

Congress says so.” It was because habeas then, as today, was only available for violations of

circuits that have not decided the issue, there are district courts that have expressed grave reservations. See, e.g.,

Figueroa v. Walsh, No. 00-CV-1160, 2008 WL 1945350, at *6-8 (E.D.N.Y. May 1, 2008) (denying relief because

the habeas petition was a successive motion but noting that AEDPA deference is probably unconstitutional). In the

First Circuit, moreover, district courts have expressed concern that, while AEDPA deference has been held

constitutional in the circuit, the way it is actually applied may not be. See Woods v. Medeiros, 465 F. Supp. 3d 1, 15-

16 (D. Mass. 2020).

No. 16-6152 Sanders v. Plappert Page 59

federal law. The state could violate constitutional law only if it violated the Due Process Clause,

and the Due Process Clause was violated only if the state failed to give the prisoner a full and

fair hearing. Id. If habeas was unavailable, it was because the state was not understood to have

acted unconstitutionally in the first place, not because the state acted unconstitutionally and the

federal courts were prohibited from granting relief. Id. Thus, the historical tradition argument

tells us nothing about what restrictions Congress can impose when there is genuine

unconstitutional conduct.

The third argument reminds us that state courts have “a role in interpreting the federal

Constitution.” Maj. Op. at 13 (quoting Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990)). The

majority opinion is quite right to note that state courts have traditionally been conceived of as

competent evaluators of the Constitution. See The Federalist No. 82. But it is one thing to find

that the state courts are competent to do so in the first instance, and another to say that a federal

court must enforce an admittedly erroneous state court reading of the Constitution once a federal

court is presented with that interpretation. The history demonstrates that the balance struck by

the Madisonian compromise included the concession that state courts could interpret the

Constitution, along with the creation of federal courts to correct improper applications of federal

law by state courts. 2 Farrand 28-39; see also James S. Liebman & William F. Ryan, “Some

Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts,

98 Colum. L. Rev. 696, 730-33 (1998) (summarizing the conception of the Supremacy Clause by

the convention as a substitute for a national negative to handle unconstitutional state actions).

The Supreme Court, moreover, rejected the argument that state court competence has any

bearing on a federal court’s responsibility to correct unconstitutional state actions in 1821.

Cohens, 19 U.S. 264. In Cohens, the defendants had been convicted of selling lottery tickets in

violation of Virginia law. Id. at 375. The defendants argued that their convictions were illegal

under federal law, and the Virginia courts rejected their arguments. Id. Virginia argued that,

because state courts have concurrent authority to interpret the Constitution, a reviewing federal

court should not re-examine the state court’s decisions and overturn them. Id. at 320-21. The

Supreme Court rendered a full-throated rejection of this argument:

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