Sanborn v. Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0389p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellee/Cross-Appellant, -

PARRAMORE L. SANBORN,

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Nos. 07-5309; 07-5310

v.

,

>

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PHIL PARKER, Warden, Kentucky State

Respondent-Appellant/Cross-Appellee. -

Penitentiary,

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Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 99-0678—Jennifer B. Coffman, Chief District Judge.

Argued: January 22, 2010

Decided and Filed: December 21, 2010

Before: MERRITT, BOGGS, and MOORE, Circuit Judges.

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COUNSEL

ARGUED: William Robert Long, Jr., OFFICE OF THE KENTUCKY ATTORNEY

GENERAL, Frankfort, Kentucky, for Appellant. Jennifer M. Kinsley, Cincinnati, Ohio,

for Appellee. ON BRIEF: Ian G. Sonego, David A. Smith, OFFICE OF THE

KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellant. Jennifer

M Kinsley, Cincinnati, Ohio, Armand I. Judah, JUDAH & McLEOD, Louisville,

Kentucky, for Appellee.

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OPINION

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BOGGS, Circuit Judge. Warden Phil Parker (“Parker”) of the Kentucky State

Penitentiary appeals the judgment of the district court granting in part the application for

a writ of habeas corpus of Parramore Sanborn (“Sanborn”). That judgment was entered

on the grounds that the admission of certain testimony at the penalty phase of Sanborn’s

1

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 2

capital-murder trial constituted unconstitutional governmental interference with the right

to counsel in violation of the Sixth Amendment. Sanborn himself cross-appeals from

the district court’s denial with prejudice of several alternative grounds for habeas relief.

For the reasons discussed below, we reverse the judgment of the district court insofar as

it granted habeas relief, and affirm it in all other respects.

I

Like many cases in which a habeas petitioner has been convicted of a capital

offense, this one comes to us with a lengthy and intricate factual and procedural history.

On October 12, 1983, Sanborn murdered and sexually assaulted

Barbara Heilman. Sheriff Ray Powell and Deputy Sheriff Franklin

“Hoss” Sanders were dispatched to Ms. Heilman's home, where they

found her car sitting in the driveway. They found hair curlers and a pair

of eyeglasses just outside one of the car’s doors and more curlers a few

feet from the car. There was also blood on the ground. The gear-shift

indicator had been ripped from the steering wheel, there were blood spots

inside the car, the ignition was still in the “on” position, and the keys

were covered with mud. There was long hair wrapped around the turn

signal on the steering column. Detective Robert Perkins testified that

some of the curlers on the ground had been stomped into the ground and

that bobby pins and longs strands of hair were still attached to many of

them. An umbrella was wedged into the driver’s side door, and in

addition to the ignition being “on,” the transmission was in “drive.”

Detective Perkins also found a small piece of human flesh on the armrest

of the driver’s door and a large amount of mud on the panel of the

driver’s door. He also found blood in a grassy area about five feet from

the rear bumper toward the home.

During the police canvas of the neighborhood, Sanborn answered

the door at the Carder home,1 and he invited them inside. Sanborn kept

his hands tucked underneath his crossed arms while the officers were

speaking with him, so Officer Glen Smith shook Sanborn’s hand and

asked to examine his hands. Sanborn consented, and Smith observed

blood around Sanborn’s cuticles and noticed streaks of blood on

Sanborn’s right pants’ leg. After advising Sanborn of his constitutional

rights, Smith asked to see the clothes he had worn the previous evening.

When Sanborn showed him his boots, Smith saw bloodstains on the right

1

Sanborn lived with the Carders at the time.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 3

boot. Officers who had remained outside saw a significant amount of

blood in Sanborn’s car.

Sanborn was taken into custody at approximately 12:50 p.m. on

October 13, 1983. Police officers swabbed Sanborn’s mouth, penis, and

fingernails; collected hairs from his head; and took a blood sample.

Sanborn confessed that Ms. Heilman was “hurt bad” and that he had left

her near Sulphur Dam on Martini Lane in Henry County, Kentucky.

When her body was discovered approximately four to seven feet from the

road, she was wearing only a yellow blouse, a tan bra, and blue socks.

She had sustained multiple stab wounds to the right side of her body, in

her neck area, and in her left hip area. Her shoes, jacket, jeans, and

panties were found approximately three to four miles away on the

following day.

Evidence was recovered from Sanborn’s vehicle and home. From

his car, the police collected blood from the passenger seat, a

blood-soaked paper towel from the passenger’s side floorboard, hair, seat

cushion foam, fibers from the car seat and carpet, and a towel with hair

wrapped in it. There were also muddy footprints and scuffs on the

passenger-side dashboard, and the passenger seat cover was torn and

parts from that seat were lying loose on the front seat. The trunk

contained a red t-shirt, white jockey shorts, a blue flowered towel, a

white towel, portions of the front seat cover, and a paper towel, all of

which were soaked or smeared with blood. From Sanborn’s residence,

the police took the boots and jeans he had worn the night of the murder,

a Shrade lockback knife and sheath, a leather belt, several pocket knives,

a Maxim hunting knife and sheath, and a stag-handled knife and sheath.

Sanborn v. Parker, No. 99-678-C, 2007 WL 495202, at *1–2 (W.D. Ky. Feb. 14, 2007)

(“Sanborn IV”).

Sanborn was tried on charges of murder, first-degree kidnaping, first-degree rape,

and first-degree sodomy in the Henry County Circuit Court from January to March 1984.

Sanborn v. Commonwealth, 892 S.W.2d 542, 545 (Ky. 1995) as modified on denial of

reh’g (“Sanborn II”). He was convicted on all counts, and sentenced to death for the

murder and to life imprisonment for each of the other three felonies. Ibid. On appeal,

that conviction was reversed by the Kentucky Supreme Court for prosecutorial

misconduct and for errors committed regarding the admissibility of evidence. Id. at

545–46 (citing Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) (“Sanborn I”)).

The matter was remanded for a new trial; on remand, the original trial judge recused

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 4

himself and granted a change of venue to Jefferson County, Kentucky, where the case

was presided over by Special Judge William L. Shadoan. Sanborn II, 892 S.W.2d at

546.

At the [second] trial, a forensic scientist testified that fibers found

on Ms. Heilman’s blouse matched those from the car seat, seat cover, and

bluish-green foam of Sanborn’s vehicle. Red fiber embedded in a pubic

hair that was found in her mouth matched the fibers from the red t-shirt

taken from Sanborn’s car trunk. Fibers from the t-shirt were also found

on Ms. Heilman’s panties. The blue fibers found on her blouse matched

the fibers from the carpet in Sanborn’s car. Other fibers from her blouse

matched the fibers from the white towel taken from the trunk of

Sanborn’s car. Fibers from the victim’s blouse were found on a piece of

seat cover that was in Sanborn’s trunk. Fibers matching the carpet from

Sanborn’s car were found under Ms. Heilman’s fingernails. Finally,

fibers found on her jacket matched the fabric taken from the seat of

Sanborn’s car.

A serologist testified that Sanborn’s pubic hairs were found in

Ms. Heilman’s pubic area, between her lower lip and chin, on her blouse,

and on her nose. Two pubic hairs found inside her mouth were identified

as hers, and two others were Sanborn’s. A hair from Sanborn’s head was

found on her blouse, and a hair from Ms. Heilman’s head was found on

a towel confiscated from Sanborn’s car. Ms. Heilman’s blood was found

on Sanborn’s fingernails, his right palm and fingers, the white jockey

shorts in his trunk, the buckle of the belt taken from his trunk, a Sharp

knife and sheath and the Maxim hunting knife and sheath, the passenger

seat in his car, the foam from the passenger seat in his car, and the paper

towel found in his trunk, and also in the Heilmans’ driveway.

The Commonwealth’s Assistant Chief Medical Examiner,

Dr. Barbara Weakley-Jones, performed an autopsy on Ms. Heilman.

Weakley-Jones testified that Ms. Heilman died from multiple stab

wounds. She had defensive wounds on her hands. There were three

postmortem stab wounds to her left side and back hip area, which were

similar in location to cuts found in the jeans she had been wearing that

night. Organic material and leaves were found in the victim’s vagina,

indicating vaginal penetration, although there was no sperm in or injury

to her vagina or mouth, and there was no evidence of trauma to her

vagina. Weakley-Jones testified that the absence of vaginal injury is not

inconsistent with the theory that she was sexually assaulted while she

was alive, given her age and marital status.

There was also testimony of incriminating statements, other than

his confession, that Sanborn made. Rodney Tingle, who was incarcerated

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 5

with Sanborn, testified that during an altercation with another inmate,

Sanborn had said “I killed but once but they can’t kill me but once.”

Reverend Barclay Brown testified that, in response to his question

whether Ms. Heilman was alive when he raped her, Sanborn said,

“Preacher, that doesn’t make any sense,” and, “All I remember is, that

she was screaming.”

Sanborn moved for a directed verdict of acquittal on all charges

at the close of the prosecution’s case, and the trial court denied the

motion.

Although Sanborn had intended to establish that he had murdered

Ms. Heilman as a result of extreme emotional disturbance (“EED”)

through the testimony of Dr. Phillip Johnson, the court prohibited

Johnson from testifying to the “triggering event” that purportedly caused

the EED or to any “self-serving” statements made by Sanborn. Johnson

testified by avowal. The evidence offered in Sanborn’s defense consisted

largely of his having been drinking the evening of the murder.

Defense counsel moved for a mistrial based on an article in the

Louisville Courier-Journal and a local television news story that stated

that Donna Boyce, co-defense counsel, had stolen the prosecutor’s voir

dire notes at the beginning of Sanborn’s second trial. The trial judge

overruled the motion after he polled the jury and determined that none of

the jurors had read the story or seen the broadcast.

The jury was instructed on rape, sodomy, and abuse of a corpse.

The jury found Sanborn guilty of intentional murder, first-degree

kidnaping, first-degree rape, and first-degree sodomy. The jury fixed a

sentence of 95 years each for kidnaping, rape, and sodomy. The penalty

phase for the capital murder conviction followed.

....

Sanborn did not testify during the penalty phase, although he

offered several character witnesses. Sanborn is the youngest of ten

children, and two of his siblings, Clifford and Maxine, testified on his

behalf. Clifford, who is fifteen years older than Sanborn, testified that

the family lived in a small fishing village and was quite poor. He stated

that Sanborn’s paternity was always questioned, and he described

Sanborn as a loner who essentially raised himself. He commented that

Sanborn stuttered and was frequently teased because of his impediment.

Clifford described Sanborn’s relationship with their older brother Jack

as “the worst kind there could possibly be,” because Jack was hostile and

physically violent toward Sanborn. Maxine confirmed that Jack

frequently humiliated Sanborn and that their mother never wanted him.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 6

Doctor Johnson commented on the uncertainty of Sanborn’s

parentage and the abusive nature of his childhood environment. Sanborn

had no contact with his biological father, his mother was psychologically

and physically abusive, and his brother Jack was physically and verbally

abusive. Johnson testified that Sanborn’s stuttering was aggravated by

stress and that he was teased about his problem as a child. Johnson also

opined that Sanborn suffered from poor self-esteem, did not feel valued,

and drank to relieve his depression and social anxiety. Johnson stated

that Sanborn had poor impulse control when he was drinking alcohol.

Johnson diagnosed Sanborn with a full-scale IQ of 84, alcohol

dependency, amphetamine abuse, antisocial personality disorder, and

avoidant personality disorder. Johnson’s diagnosis of antisocial

personality disorder was rendered on the basis of Sanborn’s inability to

hold a job, conform to social and legal norms, honor financial

obligations, remain faithful in relationships, or plan for his future. He

described Sanborn’s irritability and aggression as also indicative of the

disorder. Johnson further testified that the disorder typically results in

a lack of regard for the truth, physical recklessness, financial

irresponsibility, and lack of remorse for wrongdoing. Because of

Sanborn’s avoidant personality disorder, Johnson testified, he feels

uncomfortable in social situations and is easily hurt by criticism or

disapproval.

According to Sanborn, said Johnson, Ms. Heilman’s husband,

Jack, was verbally abusive toward Sanborn and was unfair with regard

to some financial arrangements. Johnson believed that Sanborn’s anger

toward Jack Heilman was actually misplaced anger Sanborn felt toward

his brother Jack. Johnson believed this misplaced anger was a critical

factor in Ms. Heilman’s murder. Johnson’s testimony at the penalty

phase as to Sanborn’s account of Ms. Heilman’s murder is substantially

similar to the testimony he gave by avowal at the guilt phase, which is

detailed below. Additionally, he testified that Sanborn denied that there

was any sexual contact. Johnson also related Sanborn’s claim that Ms.

Heilman had told Sanborn that if she ever died, she wanted to die naked

in his arms; Johnson found that story to be “farfetched.”

Doctor Victoria Skelton, a forensic psychiatrist from the

Kentucky Correctional Psychiatric Center, testified in rebuttal. . . .

Skelton stated that in one of Dr. Johnson’s reports, Sanborn had claimed

that his mother was “very loving,” and refuted the claim that she had

been physically abusive with the assertion that she had been a “strict

disciplinarian.” Skelton diagnosed Sanborn with alcohol dependency

and amphetamine abuse, and she agreed with Johnson that he suffered

from antisocial personality disorder. Although she agreed that Sanborn

had traits that were consistent with avoidant personality disorder, she did

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 7

not believe he suffered from the disorder itself, and she did not find any

signs of major depression.

The jury recommended that Sanborn be sentenced to death. The

trial court conducted a sentencing hearing on May 14, 1991, and

sentenced Sanborn to 95 years each on the counts of kidnaping, rape, and

sodomy, for a maximum term of 285 years. The trial court sentenced

Sanborn to death on the count of intentional murder.

....

The Kentucky Supreme Court affirmed the conviction and the

imposition of the death penalty on direct appeal [in Sanborn II].

....

Sanborn unsuccessfully sought post-conviction relief under

Kentucky Rule of Criminal Procedure 11.42. Sanborn v.

Commonwealth, 975 S.W.2d 905 (Ky.1998) as modified on denial of

reh’g (“Sanborn III”). Sanborn then filed the present federal habeas

corpus petition, arguing that errors relating to both trials mandate federal

habeas corpus relief.

Sanborn IV, 2007 WL 495202, at *1–5 (internal citations and one footnote omitted).2

In his federal habeas petition, Sanborn alleged thirty-two points of error. Id. at

*5. Following a magistrate judge’s recommendation that the petition be denied, Sanborn

filed objections to the magistrate judge’s report with the district court on ten grounds.

Id. at *6. Although the district court ultimately adopted the magistrate judge’s report,

it did so only after modifying that report so as to grant Sanborn’s habeas petition on the

grounds that the admission of Dr. Skelton’s testimony at the penalty phase of Sanborn’s

second trial constituted unconstitutional governmental interference with the right to

counsel in violation of the Sixth Amendment. Id. at *34. The district court denied all

of the other claims presented by Sanborn’s habeas application, vacated his sentence of

death, affirmed his convictions, and remanded to the state trial court for further

proceedings. Id. at *34–35. At the same time, the district court granted Sanborn a

2

As a summary of the various prior “Sanborn” opinions cited to this point, we note that the

Kentucky Supreme Court opinion vacating Sanborn’s first conviction was Sanborn I, the Kentucky

Supreme Court opinion affirming his second conviction was Sanborn II, the Kentucky Supreme Court

opinion affirming the denial of state postconviction relief was Sanborn III, and the district court opinion

denying federal habeas corpus was Sanborn IV.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 8

Certificate of Appealability (“COA”) as to three issues, all of which related to the use

of Reverend Brown’s testimony during Sanborn’s second trial.

On March 7, 2007, Warden Parker and the Attorney General of the

Commonwealth of Kentucky filed a Notice of Appeal from the district court’s judgment

granting habeas relief to Sanborn.3 On March 14, 2007, Sanborn followed with his own

notice of appeal as to the three issues on which the district court had granted a COA. We

subsequently granted a motion to expand Sanborn’s COA to include four additional

issues. The Warden’s appeal was designated Case No. 07-5309; Sanborn’s appeal was

designated Case No. 07-5310. Both appeals were consolidated for briefing and

argument, and we decide them both now.

II

“We review de novo a district court’s decision to grant or deny a petition for a

writ of habeas corpus.” Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006). A habeas

application that is made by a person in custody pursuant to the judgment of a state court

may be entertained “only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

Because Sanborn’s habeas petition was filed in October 1999, it is subject to the

standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). AEDPA provides

that:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim--

(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

3

No COA was required for the Commonwealth of Kentucky to appeal from the district court’s

judgment granting Sanborn’s application in part. See Fed. R. App. P. 22(b)(3).

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 9

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

In determining what constitutes “clearly established Federal law” for the

purposes of § 2254(d), a federal court may look only to the holdings of the Supreme

Court’s decisions, as distinct from dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000).

“A state-court decision is contrary to clearly established federal law if the state

court applies a rule that contradicts the governing law set forth in the Supreme Court’s

cases or if the state court confronts a set of facts that are materially indistinguishable

from a decision of the Supreme Court and nevertheless arrives at a result different from

that precedent.” Joseph, 469 F.3d at 449–50 (citation, internal quotation marks, and

alteration marks omitted).

A state-court decision involves an unreasonable application of clearly established

federal law, on the other hand, if it “correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case,” Williams, 529 U.S.

at 407–08, or if it “either unreasonably extends or unreasonably refuses to extend a legal

principle from Supreme Court precedent to a new context,” Seymour v. Walker, 224 F.3d

542, 549 (6th Cir. 2000). However, “[a] federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the state-court

decision applied [a Supreme Court case] incorrectly.” Price v. Vincent, 538 U.S. 634,

641 (2003). Rather, “[i]n order for a federal court to find a state court’s application of

[Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been

more than incorrect or erroneous. The state court’s application must have been

‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citations

omitted).

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 10

III

We first examine the issue raised in Appeal No. 07-5309, in which Warden

Parker appeals the district court’s judgment to the extent it granted Parramore Sanborn’s

petition for a writ of habeas corpus and vacated Sanborn’s death sentence.

A

Prior to his state-court retrial, Sanborn, through counsel, notified the prosecution

that he would seek to establish that his actions were precipitated by an extreme

emotional disturbance (EED). Under Kentucky law, proof that a defendant acted under

an EED “for which there is a reasonable explanation or excuse” renders the defendant

not guilty of murder (he is instead guilty of manslaughter in the first degree) if such

proof is presented at the guilt stage of the trial. Ky. Rev. Stat. § 507.020(1)(a).

Moreover, a jury must be instructed to consider evidence that the capital offense was

committed while the defendant was under the influence of extreme mental or emotional

disturbance at the penalty phase if the evidence supports such an instruction, even if the

influence of the EED was not sufficient to constitute a defense to the crime; the jury may

then consider the EED as a mitigating factor when evaluating whether a capital sentence

is appropriate. Ky. Rev. Stat. § 532.025(2)(b)(2).

Following Sanborn’s notice of his intent to present EED evidence, the

prosecution sought and obtained a court order permitting them to have Sanborn

examined by their own mental health expert, Dr. Victoria Skelton, a psychiatrist at the

Kentucky Correctional Psychiatric Center. Dr. Skelton examined Sanborn on Friday,

March 8 and Monday, March 11, 1991. In accordance with the court’s order, Sanborn’s

own mental health expert, Dr. Phillip Johnson, attended Dr. Skelton’s sessions with

Sanborn.4

4

The split session (three hours on March 8 and three hours on March 11) was done to

accommodate the schedule of Dr. Johnson. The report itself was transmitted to Judge Shadoan on March

14, 1991, with copies to both defense counsel and the prosecution.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 11

Dr. Skelton’s interviews resulted in a twenty-nine page report, some twenty-five

of which dealt with Sanborn’s family dynamics, substance abuse problems, employment

history, schooling, and other background matters. In the first page of the report,

however, Dr. Skelton indicated that, during their meeting on Friday, March 8, 1991,

Sanborn told her that he had been “nowhere around the vicinity or near the alleged

victim at the time in question, instead stating that he had gone to Carrollton on three

different occasions during the time in question in order to buy alcohol.”

Skelton’s report then noted that Sanborn’s story changed on March 11, and that

on that occasion Sanborn said he wanted to “clarify” what he had said on March 8.

Sanborn then went on to relate a story in which he happened to drive his car through a

water-filled hole, causing his car to stall at the foot of the victim’s driveway. Sanborn

further told Skelton that he and Ms. Heilman had been having an affair for

approximately four years, about which he was feeling guilty. Nevertheless, he said, he

knocked on the Heilmans’ door and asked Ms. Heilman for a ride home. She agreed,

and they got into her car, at which point Heilman (according to Sanborn) began “teasing

him in a sexual fashion” and saying that she wanted to have sex with him. When

Sanborn refused, Heilman allegedly became “hateful,” called Sanborn an alcoholic, and

slapped him. The rest of Sanborn’s March 11 story was somewhat disjointed; he told

Skelton that there was a struggle, that he remembers having his knife out but not using

it, and that he remembers putting Heilman (who “would not wake up”) in his car and

driving her to another location in the county. He further told Skelton that Heilman had,

on one occasion, said that she wanted to “die naked in his arms,” so he took her clothes

off and began carrying her down a road, but that he tripped and her body fell off the

road. After being unable to find the body, Sanborn told Skelton, he threw Heilman’s

clothes away.

Of central importance to this issue is a single paragraph in Skelton’s report

following her description of Sanborn’s March 11 story:

When I asked him why he had not told me the second version on

Friday when I asked him about the alleged incident, he said, “I was going

to and somehow or another I got off onto something else.” I then asked

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 12

Mr. Sanborn who he had had contact with between my two evaluations

and he stated that the only person who visited him was his defense

attorney, Mr. Oleh Tustaniwsky. I also asked him about his defense

strategy, he stated that his defense was that the act was done under

emotional distress.

At trial, Dr. Johnson was not permitted to testify as to the existence of a

“triggering event” of the EED that allegedly caused Sanborn to act the way he did,

because Dr. Johnson conceded that his knowledge of those events was based only on

what Sanborn had told him. Kentucky law requires proof of such a triggering event in

order to establish an EED defense at the guilt phase. See Greene v. Commonwealth, 197

S.W.3d 76, 81–82 (Ky. 2006). Therefore, the defense did not put on an EED defense at

the guilt phase, despite telling the jury during opening statements that Sanborn had acted

because he was under EED, and the prosecution did not have occasion to introduce the

testimony of Dr. Skelton to rebut that defense.

At the penalty phase, however, in which the jury was permitted to consider

evidence of EED that would not have been sufficient to reduce the crime for which

Sanborn was convicted from murder to manslaughter, both Dr. Johnson and Dr. Skelton

testified. At the point in Dr. Skelton’s testimony following her description of Sanborn’s

attempt to “clarify” his story on March 11, the following is reflected in the transcript:

Q And after that what, if anything, did you ask him, ma’am?

A I asked him why didn’t you tell me this - - - -

FEMALE DEFENSE COUNSEL: May we approach the bench, Your

Honor?

YOUR HONOR: Come up.

(COLLOQUY BETWEEN ATTORNEYS AND YOUR HONOR.)

MR. TUSTANIWSKY: I object to any testimony about the fact

that I visited him between the two visits because that is no business of the

jurors when I visited my client and second of all, it’s clearly being

introduced for the inference that I had–that I coached him into changing

his story.

YOUR HONOR: Did he tell him that?

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 13

MR. JASMIN [the prosecutor]: (Inaudible)

MR. TUSTANIWSKY: I strenuously object to that because I

talked to my client. I have an attorney/client conversation with him and

I object to any implication that I coached him.

YOUR HONOR: I understand that. I know that - (Inaudible)

MR. TUSTANIWSKY: None of that should come out. I don’t see

where any of that should come out. That he told them that I came to visit

him.

The remainder of the colloquy appears to have been off the record.

Shortly after Dr. Skelton’s testimony resumed, the following exchange took

place:

Q Dr. Skelton, don’t give me any names of anybody you talked to.

Okay? Did you ask him if he had talked to anyone between the 8th and

the 11th? What did he say? Yes or no? Just answer yes or no.

A Yes. He said yes.

Q And after he gave you that answer, did you ask him anything

about his strategy?

A Yes.

Q Just tell me what he said his strategy was.

A That the act was done under emotional distress.

Q All right. In dealing with your evaluations, Doctor, in addition---

MR. TUSTANIWSKY: May I approach?

YOUR HONOR: Yes.

MR. TUSTANIWSKY: I move for a mistrial on the grounds that

the answer that Mr. Jasmin—I move for a mistrial on the grounds that the

answer to Mr. Jasmin elicited [sic] clearly implies that the attorney came

to visit Mr. Sanborn between the two visits.

MR. JASMIN: Didn’t imply anything. How else am I going to do it?

MR. TUSTANIWSKY: Well, who else would be visiting him?

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 14

MR. JASMIN: Nita Carter5 could visit him. Anybody could be visiting

him.

YOUR HONOR: Overruled. Let’s go.

This testimony occurred approximately ten minutes into Dr. Skelton’s testimony, which

itself lasted about eighty minutes in total. No other testimony about the visit or about

Sanborn’s reasons for changing his story was elicited.

On his direct appeal to the Kentucky Supreme Court, Sanborn argued that the

trial court’s ruling permitting Skelton to testify as indicated violated his right to counsel.

Sanborn II, 892 S.W.2d at 553. Sanborn argued that the Supreme Court’s decision in

Estelle v. Smith, 451 U.S. 454 (1981), supported his position that Dr. Skelton’s

testimony should have been excluded because it went beyond the scope of the discovery

order, and that the information was self-incriminating and was obtained without defense

counsel’s knowledge.6 The Kentucky Supreme Court distinguished Estelle, however,

on the grounds that the defendant in that case had not introduced psychiatric evidence,

but rather submitted to psychiatric examination for the sole purpose of determining his

competence to stand trial. Ibid. The Kentucky Supreme Court held that Sanborn’s case

was more similar to an exception articulated by the Estelle Court, that being “where a

defendant introduces psychiatric evidence into the record, as Sanborn did, he must also

submit to examination by the prosecution’s expert for rebuttal purposes. . . . If the

statements are necessary for the expert to formulate and explain her opinion, then the

statements are admissible and are not violative of the defendant’s rights.” Ibid.

In specifically applying the Estelle exception, the Kentucky Supreme Court

advanced the following rationale:

5

This appears to be a reference to Lela Carder, from whom Sanborn was renting a room at the

time of the murder. Carder was called as a witness for the Commonwealth.

6

In his current appeal, Sanborn explicitly disclaims any argument that the use of Skelton’s

testimony violated his Fifth Amendment privilege against self-incrimination. Cross-Appellant’s Br. at

23–24 (“It is not . . . Sanborn’s Fifth Amendment privilege against self-incrimination that has been

violated; it is his Sixth Amendment right to counsel.”).

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 15

The record shows that the trial court went to great lengths to

prevent the jury from hearing that the defense counsel visited the

appellant in the time between his two interviews with Dr. Skelton. Also,

it was not improper for Dr. Skelton to inquire of the appellant as to why

he changed his version of the facts between interviews. This information

was helpful to Dr. Skelton in her evaluation of the appellant.

Furthermore, the explanation was necessary for Dr. Skelton to explain

the inconsistencies in the stories told to her by Sanborn. Granted, it

would have been improper for Dr. Skelton to question Sanborn about his

defense strategy per se, but at most it was harmless error. The testimony

complained of was given during the penalty phase at which time guilt

had already been determined. It is not improper for a jury to be informed

of a change in a story by a defendant so that they may consider the

motivation behind the change while determining the appropriate

punishment for a crime.

Ibid. Thus the Kentucky court’s position was that there was no constitutional error, and

that even if there had been, no harm had resulted from it.

On consideration of Sanborn’s habeas petition, Judge Coffman disagreed and

granted Sanborn partial relief on the basis of this issue, vacating his sentence of death

and remanding to the Kentucky trial court for further proceedings.7 In so doing, the

district court looked to Weatherford v. Bursey, 429 U.S. 545 (1977), which it

characterized as requiring both a showing of an intrusion into the attorney–client

relationship and a showing of prejudice before Sanborn could successfully make out a

claim that the government’s conduct had violated his right to effective assistance of

counsel in this case. Sanborn IV, 2007 WL 495202 at *20.

With respect to the first inquiry under Weatherford, intrusion, the district court

argued that

While not necessarily improper when considered independently,

Skelton’s conjoined questions–about (1) Sanborn’s meeting with his

attorney and (2) his defense strategy–were tantamount to her asking what

he and his attorney had discussed in that meeting. The unnecessary

question about the meeting with counsel was not critical to her

7

Judge Coffman denied the petition with respect to Sanborn’s convictions for intentional murder,

first-degree kidnaping, first-degree rape, and first-degree sodomy. Sanborn IV, 2007 WL 495202, at *34.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 16

assessment of Sanborn’s credibility and was a clear intrusion into the

attorney-client relationship.

Ibid. The district court specifically held that Skelton’s inquiry as to whom Sanborn had

met between their sessions intruded into Sanborn’s attorney–client relationship, even if

her more general questions regarding the reason for his inconsistent stories did not. Id.

at *21. In a footnote, the district court noted that two other opinions—one by the Sixth

Circuit and one by the U.S. Supreme Court—had concluded that intrusions had occurred

in roughly similar situations. The first of these cases involved the unexpected discovery

of an attorney–client communication by prison officials searching a prisoner’s cell, and

the second involved an undercover informant’s presence at an attorney–client meeting

at the invitation of the attorney. Id. at *21 n.6. (citing Bishop v. Rose, 701 F.2d 1150,

1151 (6th Cir. 1983) and Weatherford, 429 U.S. at 548). From those two cases, the court

reasoned that “if an intrusion can occur by chance or even at the invitation of defense

counsel, the court has no trouble concluding that an intrusion occurred here as the result

of Skelton’s direct questioning, even assuming the answer to her question was

unexpected.” Ibid. Moreover, the district court held, Skelton already knew that Sanborn

had given a different version of his story and that he was presenting an EED defense, and

therefore “[s]he had no reason to delve into his meeting with his attorney.” Id. at *21.

With respect to the prejudice prong of Weatherford, the district court held that

the Kentucky Supreme Court’s argument that any error was harmless because Skelton’s

testimony “was given during the penalty phase at which time guilt had already been

determined” was “contrary to Sixth Circuit precedent.” Sanborn IV, 2007 WL 495202,

at *21. Specifically, the district court applied a four-factor analysis that took into

account (1) whether the intrusion was the result of purposeful government conduct or

was inadvertent; (2) whether the government obtained any information as a result of the

intrusion that it later used at trial; (3) whether any information was otherwise used to the

defendant’s detriment; and (4) whether the government learned details of the defendant’s

trial preparation strategy by way of the intrusion. Id. at *22 (citing United States v.

Steele, 727 F.2d 580, 586 (6th Cir. 1984)). The district court noted that both Steele and

Weatherford found no prejudice in cases in which undercover agents had overheard

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 17

conversations between the defendant and defense counsel, but not relayed that

information to the government nor testified as to what they had heard. However, the

district court distinguished Sanborn’s case on its facts, in that the prosecution did make

a conscious effort to convey details about Sanborn’s meeting with his attorney to the

jury.

The district court then extensively discussed and applied our decision in Bishop.

In that case, the district court argued, we noted that Weatherford had been construed as

holding that “a Sixth Amendment violation occurs if the government intentionally

invades the attorney–client relationship or privileged information resulting from an

unintentional intrusion is disclosed and prejudice results.” Sanborn IV, 2007 WL

495202, at *23 (citations omitted) (emphasis added by Sanborn court).8 According to

the district court, the Bishop court found that “the obvious way to establish prejudice

resulting from a disclosure is to show that the information was used for the benefit of the

government or the detriment of the defendant.” Ibid. Therefore, because Dr. Skelton’s

testimony suggested that Sanborn was not actually acting under EED but had instead

conjured up his second story after learning that his original story was not consistent with

his attorney’s proposed defense, the testimony was used to his detriment and was thus

prejudicial. Having satisfied itself that there had been both an intrusion and prejudice,

the district court concluded that the government had violated Sanborn’s right to effective

assistance of counsel under Weatherford.

B

Our review of the Kentucky Supreme Court’s decision on this issue is informed

by the “contrary to” clause of 28 U.S.C. § 2254(d). Although the Kentucky Court relied

upon the Supreme Court’s decision in Estelle to reach its own conclusion, the portion

of Estelle it cited was dicta. See Estelle, 451 U.S. at 472 (“In addition, a different

situation [than the one before the Court] arises where a defendant intends to introduce

psychiatric evidence at the penalty phase”); Seminole Tribe of Fla. v. Florida, 517 U.S.

8

The decision construing Weatherford in this way was United States v. Dien, 609 F.2d 1038 (2d

Cir. 1979).

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 18

44, 67 (“When an opinion issues for the Court, it is not only the result but also those

portions of the opinion necessary to that result by which we are bound.”). Hence the

portion of Estelle relied upon by the Kentucky court was not “clearly established Federal

law,” and a fortiori could not have been an “unreasonable application”—or, for that

matter, a “reasonable application”—of such law.

Therefore, the relevant question as to this issue is whether the Kentucky Supreme

Court’s decision was contrary to the clearly established federal law embodied in

Supreme Court’s holdings in Weatherford.

C

Weatherford, however, presented a significantly different question with respect

to intrusion than the one before us now. In that case, an undercover agent attended

sessions between the defendant and the defendant’s attorney at the invitation of defense

counsel, who believed that the agent was also being prosecuted for the same offense.

Although the agent sat in on these sessions, he did not disclose any information he

learned therein to his superiors or to the prosecution. The Court of Appeals for the

Fourth Circuit held that the agent’s actions violated the Sixth Amendment, because

“whenever the prosecution knowingly arranges and permits intrusion into the attorney-

client relationship the right to counsel is sufficiently endangered to require reversal and

a new trial.” Weatherford, 429 U.S. at 549 (quoting Bursey v. Weatherford, 528 F.2d

483, 486 (4th Cir. 1975)).

The Supreme Court reversed, on the grounds that a Sixth Amendment violation

in this context requires not just intrusion but prejudice as well. In so doing, the Court

presumed that the presence of an undercover agent in an otherwise-privileged meeting

was an “intrusion,” which is not surprising, but also not remotely analogous to Sanborn’s

case. Sanborn, like the district court, argues that if intrusion can occur at the behest of

defense counsel, then surely it can occur via an unexpected disclosure; however, he

points us to no case in which the Supreme Court has ever said as much, nor can we find

one. Moreover, there is a clear difference between voluntarily attending a session

between a defendant and his attorney in which a privileged conversation can be expected

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 19

to occur, as happened in Weatherford, and asking follow-up questions in an unprivileged

conversation that produces answers that do not implicate Weatherford’s concerns.

This is particularly true in the context of our case. It seems illogical to believe

that Dr. Skelton could permissibly inquire as to the basis for Sanborn’s about-face, but

could not ask whether anyone else was involved, especially when Skelton did not

specifically mention Sanborn’s lawyer. See Geders v. United States, 425 U.S. 80, 89–90

(1976) (“A prosecutor may cross-examine a defendant as to the extent of any ‘coaching’

during a recess, subject, of course, to the control of the court. Skillful cross-examination

could develop a record which the prosecutor in closing argument might well exploit by

raising questions as to the defendant’s credibility, if it developed that defense counsel

had in fact coached the witness as to how to respond on the remaining direct examination

and on cross-examination.”). Indeed, the district court’s analysis would seem to indicate

that even Skelton’s initial inquiry as to why Sanborn had not told her the new version

of his story at their original meeting (which Sanborn answered “I was going to and

somehow or another I got off onto something else”) was on shaky ground; had Sanborn

answered “because my lawyer told me it would be better this way,” the district court’s

reading of Weatherford would make the question an intrusion retroactively.

In our case, the only question that could be considered problematic would be

Dr. Skelton’s third question “about his defense strategy,” but here too, our case is quite

different from Weatherford. Weatherford dealt only with an informant sitting in on

attorney–client conversations about which the informant would otherwise have been

ignorant. Here, however, Skelton was in control of the tenor of the conversation, and

because she already knew what defense Sanborn was asserting, her third question was

not obviously designed to elicit additional information. See Sanborn IV at *20 (“Skelton

knew of the reason for her appointment: the defendant’s notice that he would use the

EED defense. In other words, she could ask about his strategy because she already know

what his strategy was.”).

The district court also errs in its intrusion analysis when it argues that Skelton’s

question as to whether Sanborn had met with anyone was inappropriate because she “had

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 20

enough information to doubt Sanborn’s changed story from the two facts she already

possessed: that he had earlier given a different version and that he was presenting an

EED defense.” Doubt is not binary. Indeed, it would be a logical fallacy for Dr. Skelton

simply to assume that someone who changed his story could not increase or decrease the

amount of doubt thereby created, based on his explanation for the discrepancies between

the two versions. Because Skelton’s role was not merely to decide whether she doubted

Sanborn’s story but to what extent she doubted it, her follow-up question—which, we

note again, was not directed to whether Sanborn met with his lawyer—was appropriate.

Thus, because no intrusion occurred, the Kentucky Supreme Court’s decision on this

issue was not contrary to Weatherford, and does not justify habeas relief.

D

Moreover, it appears likely from the record that Sanborn was not prejudiced by

Dr. Skelton’s testimony on this issue; therefore, the Kentucky Supreme Court’s decision

would not have been contrary to Weatherford even if there had been intrusion. An

examination of the four Weatherford factors does not indicate that the state court made

an unreasonable application. Even if Skelton’s questions are considered purposely

designed to elicit information, purposeful intrusion alone is not a Sixth Amendment

violation. Steele, 727 F.2d at 586 (citing United States v. Morrison, 449 U.S. 361,

365–66 (1981)). The other three Weatherford factors, as well, do not support finding a

Sixth Amendment violation. The government did not obtain information from the legal-

defense question apart from what it already knew; the information about the existence

of the defense was not used to Sanborn’s substantial detriment; and the government did

not learn details about trial preparations.

The Kentucky Supreme Court also noted that the trial judge “went to great

lengths” to ensure that the identity of Sanborn’s visitor was not disclosed. Dr. Skelton

was not permitted to reveal the fact that Sanborn’s attorney visited him; at most, the jury

might have inferred that fact from the juxtaposition of the “did he talk to anyone”

question with the “what did he say about his strategy” question. As the prosecutor

pointed out during the bench colloquy, however, Sanborn’s visitor could have been

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 21

anyone. The AEDPA standard under which we evaluate the Kentucky Supreme Court’s

decision requires that we give that decision “the benefit of the doubt.” Woodford v.

Visciotti, 537 U.S. 19, 24 (2002). It is Sanborn’s burden to demonstrate that the

Kentucky court acted contrary to clearly established federal law in holding that the trial

court’s efforts to guard against the disclosure of Sanborn’s visitor’s identity prevented

him from being actually prejudiced, as opposed to merely being exposed to the

possibility of prejudice. He has failed to do so. See Morrison, 449 U.S. at 365–66

(requiring, in analogous context, “demonstrable prejudice” for a Sixth Amendment

violation to demand reversal).

E

Of course, even if it were error to permit Dr. Skelton to testify as she did, the

decision is subject to harmless-error review. See Brecht v. Abramhamson, 507 U.S. 619,

638 (1993) (holding that the harmless-error standard applies in determining whether

habeas relief must be granted because of constitutional error in trial proceedings). Under

Brecht, error is not harmless in a habeas case when it “had substantial and injurious

effect or influence in determining the jury’s verdict.” Id. at 637 (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)). Thus, we can ask whether, even if the jury

concluded that Sanborn’s visitor was his attorney, that conclusion would have had an

injurious effect on its decision to reject Sanborn’s EED mitigation argument.

Sanborn theorizes that the jury’s knowledge that he had met with his attorney

between sessions with Dr. Skelton caused them to discredit his second story, and thus

his EED mitigation argument. It seems clear, however, that this theory is seriously

jeopardized by the fact that Sanborn’s credibility had already been drastically

undermined by testimony in both the guilt phase and the penalty phase. In particular,

the jury had already heard that Sanborn had initially denied involvement to the police

investigating the incident, then admitted he had been present but that “two brothers” he

was with had performed the actual crimes, then admitted he had been alone at the time

but gave inconsistent accounts of what he had done or what he could remember. Perhaps

even more damning, Sanborn’s own psychologist, Dr. Johnson, testified that Sanborn

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 22

suffered from antisocial personality disorder, and that such persons “often times . . . can

tell a non-truth or they can tell a lie easily, maybe quickly, and they’re not going to feel

a lot of hesitation about that, they’re not going to feel any pain of conscience about

telling that lie.” Dr. Johnson went on to testify that “Mr. Sanborn has not always told

me consistent stories, and that’s problematic. . . . So I don’t have any doubts that Mr.

Sanborn has lied at different times in his life. And perhaps many people will tell a white

lie, if you will, occasionally. But that’s not the type of deception that we’re talking

about in this sort of situation.” Finally, of course, the jury also heard that Sanborn had

told Dr. Skelton one story and then another, which in and of itself would have been

evidence of a lack of credibility even if the testimony about his being visited by someone

in the interim had been omitted.

It beggars belief to think that a jury, knowing full well that Sanborn’s EED

argument was key to his avoiding the death penalty, would credit the story he told Dr.

Skelton on March 11, 1991, but for the inference that he had been coached into making

it. Having heard of his constantly shifting stories, and testimony from his own expert

that he was prone to deceit without remorse, a rational jury would surely have already

seriously doubted Sanborn’s credibility and inferred that his March 11 story was tailored

to fit the EED argument even without hearing that he had met with someone. The torrent

of already-presented evidence that Sanborn was untrustworthy simply swamps the trickle

of doubt that may have been raised by the inference that he met with counsel—if indeed

the jury made that inference. Because the alleged error has not been shown to have “had

substantial and injurious effect or influence in determining the jury’s verdict,” therefore,

we conclude that any such error was harmless, and did not warrant habeas relief.

F

Sanborn has not demonstrated that the use of Dr. Skelton’s testimony during his

trial was a constitutionally impermissible intrusion, nor that it was prejudicial. The

Kentucky Supreme Court therefore did not act contrary to Weatherford or any other

clearly established federal law in holding that the Commonwealth’s use of that testimony

did not violate his rights to counsel. Any error that might have occurred, moreover, was

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 23

harmless. We accordingly determine that Sanborn does not qualify for habeas relief on

those grounds, and reverse the district court’s judgment in Appeal No. 07-5309.

IV

Having determined that the district court erred in granting habeas on the above

issue, it remains for us now to determine if it also erred in denying the writ on any of the

other grounds presented to it. We conclude that no such error occurred.

A

Sanborn first argues that the district court erred in denying his habeas petition on

the grounds that the Commonwealth’s use of testimony by the Reverend Brown as

evidence that Heilman was alive at the time she was unlawfully penetrated violated

Kentucky’s attorney–client and priest–penitent privileges.

The question of precisely when Heilman died was of critical importance during

Sanborn’s trial. Kentucky law provides that a criminal defendant who is convicted of

murder may not receive the death penalty unless at least one statutorily–enumerated

aggravating factor is found to have been present; among these aggravating factors is that

“[t]he offense of murder . . . was committed while the offender was engaged in the

commission of . . . rape in the first degree, or sodomy in the first degree.” Ky. Rev. Stat.

§ 532.025(2)(a)(2). Under Kentucky law, however, rape and sodomy are offenses

against the living only; the same acts, performed after the victim has died, constitute

“abuse of a corpse”—an offense that is not among the aggravating factors that permit the

imposition of the death penalty in Kentucky.

In December 1983, before Sanborn’s first trial, defense attorney Bette Niemi

(“Niemi”) asked Reverend Brown “to serve as a defense expert regarding, among other

things, a theological perspective of the death penalty and Sanborn’s religious

upbringing.” Sanborn IV, 2007 WL 495202, at *7. To that end, Reverend Brown

engaged in several discussions with Sanborn “about what [Sanborn] was feeling

regarding the situation he was in (i.e. how he felt about being accused of murder.).” Id.

at *8. Niemi later testified that she told Reverend Brown that he was considered to be

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 24

part of the defense team, and that the conversations he had with Sanborn while acting

in that capacity were confidential. In January 1984, prior to the start of the trial, Niemi

told Reverend Brown that she no longer expected to call him as a witness, but “that

communications continue to be confidential even though he would not be a testifying

witness.”9

At some point—when, exactly, is disputed by the parties—Reverend Brown

asked Sanborn whether Heilman had been alive when Sanborn raped her. Reverend

Brown testified at Sanborn’s second trial that Sanborn “at first said, ‘Preacher, that

doesn’t make any sense,’” and later added that “[a]ll I remember is, that she was

screaming.” Sanborn IV, 2007 WL 495202, at *9.

Following the reversal of Sanborn’s first-trial conviction by the Kentucky

Supreme Court, Reverend Brown contacted a Kentucky county attorney and claimed that

he was troubled by some of the things Sanborn had told him. Reverend Brown was later

subpoenaed by the prosecutor in Sanborn’s second trial, and testified as to the substance

of the conversation in which Sanborn told him that Heilman had been screaming at the

time of the rape. When Sanborn’s second-trial counsel, Oleh Tustaniwsky, moved at the

close of evidence for a directed verdict on the rape and sodomy charges on the grounds

that insufficient evidence existed to prove that Heilman was alive when the unlawful

penetration occurred, that motion was denied on the grounds that Reverend Brown’s

testimony that Heilman was screaming was sufficient to send the issue to the jury.

Hence Sanborn now argues that, but for the Commonwealth’s interference with

attorney–client and priest–penitent privileges that existed at the time he made the

incriminating statement to Reverend Brown, there would have been no basis for a jury

to conclude that Heilman was alive at the time that she was unlawfully penetrated and

no basis on which he could have received a sentence of death.

9

Niemi also filed an affidavit in which she claimed that, after Rev. Brown was told in January

1984 that he would not be called as a defense witness, “he was again advised by [Niemi] that all

conversations he had with Pat Sanborn or with [Niemi] were privileged communications and were to

remain confidential.” Notably, neither Niemi’s affidavit nor her in-person testimony make clear whether

she was referring exclusively to the conversations that Brown and Sanborn had already had, or whether

she meant to include their future conversations as being among those that were to be considered

confidential.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 25

The Kentucky Supreme Court rejected these arguments on the grounds that the

incriminating statements made by Sanborn to Reverend Brown were made without a

clear understanding that they were confidential. The Kentucky court’s factual and legal

basis for that holding was explained as follows:

Bette Niemi, defense counsel at the first trial, testified that at the time

Rev. Brown talked to appellant she believed she might have Brown

testify offering a theological perspective on the death penalty. He agreed

to do so if called. At a later date, Niemi decided not to call Rev. Brown

and at that time told him his services would no longer be required. It is

clear from the record on this appeal that at the first trial it was not made

clear that Rev. Brown was only meant to be a consultant for the

appellant’s defense. It was in fact contemplated that he would be an

expert witness called to discuss the death penalty and any remorse shown

by the appellant. Because such was the case, the appellant cannot now

invoke an attorney–client privilege to disallow Rev. Brown’s

testimony.10

Sanborn II, 892 S.W.2d at 550. Hence the Kentucky court held, as a matter of state law,

that the statements made by Sanborn to Reverend Brown did not fall within the scope

of the attorney–client or priest–penitent privileges. Because the court did not apply

federal law in doing so, we review this issue to determine if it acted “contrary to” clearly

established federal law.11

10

The lack of an expectation of confidentiality was also the basis for the Kentucky Supreme

Court’s determination that no interference with that state’s priest–penitent privilege had occurred. Sanborn

II, 892 S.W.2d at 550.

11

Sanborn also attempts to argue that the Kentucky Supreme Court based its decision on an

unreasonable finding of fact, to wit, that Sanborn’s statements to Reverend Brown occurred before the time

that Brown was no longer considered a potential witness by the defense team. The district court appears

to have concluded that at least some of those statements did occur after Niemi decided not to call Brown

as a witness. See Sanborn IV, 2007 WL 495202, at *12 (concluding that Brown continued to speak with

Sanborn after the January 1984 decision not to use Brown as an expert, but “only for the purpose of

praying with and ministering to Sanborn.”) “[A] state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first instance,”

however. Wood v. Allen, 130 S. Ct. 841, 849 (2010). In our de novo review of Sanborn’s habeas petition,

we hold that the Kentucky Supreme Court’s determination as to the timing of Sanborn’s statements is not

unreasonable. Sanborn argues that Brown remembered Sanborn making his statements after the testimony

of a pathologist, and that therefore the statements must have been made after Brown was no longer being

considered as an expert witness because (1) the pathologist, Barbara Weakley-Jones, testified at trial; and

(2) Niemi testified that she told Brown that he would not be used as an expert witness “before the trial

actually started.” Sanborn ignores the fact that the pathologist also testified at a pre-trial hearing, at a time

when no evidence indicates that Brown was not still being considered as a witness. Moreover, Niemi

testified that Brown and Sanborn had no in-depth conversations once Sanborn’s first trial began. Given

that evidence, it would not be unreasonable for the Kentucky Supreme Court to conclude that the

statements in question were made after the pathologist testified at the pre-trial hearing.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 26

“In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.

McGuire, 502 U.S. 62, 68 (1991). Thus “it is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions.” Id. at 67–68. As a

result, “errors in application of state law, especially with regard to the admissibility of

evidence, are usually not cognizable in federal habeas corpus.” Walker v. Engle, 703

F.2d 959, 962 (6th Cir. 1983).

To be sure, “[i]t is not hyperbole to suggest that the attorney–client privilege is

a necessary foundation for the adversarial system of justice.” In re Lott, 424 F.3d 446,

450 (6th Cir. 2005). Nevertheless, the “attorney-client privilege is a creation of the

common law, not the Constitution.” Lange v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir.

1989). As such, a violation of the attorney–client privilege is not itself a “violation[] of

the United States Constitution or its laws and treaties,” as is required by § 2254 before

we may issue habeas on a given claim. See ibid. (“Even if a violation of the attorney-

client privilege occurred, this violation alone would be insufficient grounds for [habeas]

relief.”). The same may also be said for the priest–penitent privilege, saving only that,

unlike the attorney–client privilege, it is not even a creation of the common law. See

Cox v. Miller, 296 F.3d 89, 102 (2d Cir. 2002) (tracing the origins of the

cleric–congregant privilege from the Catholic sacrament of Penance, and observing that

“authorities generally agree” it was not a common-law rule in either England or in the

United States). Nor has the Supreme Court said differently. Thus Sanborn cannot argue

that any violation of the Kentucky attorney–client or priest–penitent privileges is

sufficient grounds for habeas relief per se.

Nevertheless, if a state evidentiary ruling is “so egregious that it results in a

denial of fundamental fairness,” it may violate the Due Process Clause of the Fourteenth

Amendment and warrant habeas relief. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.

2003). Though Sanborn argues vigorously that this is just such a case, we disagree.

Sanborn points to the lack of evidence apart from Reverend Brown’s testimony

that Heilman was alive at the time of penetration and contends that “[t]he damaging

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 27

nature of [Reverend Brown’s] testimony rendered the entire trial fundamentally unfair.”

Cross-Appellant’s Br. at 49. But mere prejudice to a defendant does not mean that such

prejudice is unfair; indeed, “all evidence tending to prove guilt is prejudicial to a

criminal defendant. If it were otherwise, the State would not produce it as evidence and

the court would not admit it as relevant.” Bey v. Bagley, 500 F.3d 514, 522 (6th Cir.

2007). In truth, clearly established federal law provides that, for prejudice to be unfair

in the constitutional sense, it must fit within a very narrow category of infractions. As

the Supreme Court has explained:

Beyond the specific guarantees enumerated in the Bill of Rights,

the Due Process Clause has limited operation. We, therefore, have

defined the category of infractions that violate “fundamental fairness”

very narrowly. As we observed in [United States v.] Lovasco, [431 U.S.

783 (1977)][,] [j]udges are not free, in defining “due process,” to impose

on law enforcement officials their personal and private notions of

fairness and to disregard the limits that bind judges in their judicial

function. They are to determine only whether the action complained of

violates those fundamental conceptions of justice which lie at the base of

our civil and political institutions, and which define the community's

sense of fair play and decency.

Dowling v. United States, 493 U.S. 342, 352–53 (1990) (citations, some quotation marks,

and alteration marks omitted).

The Kentucky Supreme Court’s decision was not contrary to Dowling. Its

rejection of Sanborn’s argument was predicated on its determination, as a matter of state

law, that neither Kentucky’s attorney–client privilege nor its priest–penitent privilege

extended to Sanborn. That determination, in turn, was based on a factual finding

supported by the lower court record that the statements in question were made at a time

when it was contemplated that Reverend Brown would be testifying as an expert witness,

and thus Sanborn had no expectation that they would remain confidential. It is no

offense to the “fundamental conception[] of justice which . . . define[s] the community’s

sense of fair play and decency” to admit into evidence the statement of a defendant when

the defendant had no expectation that it would remain confidential. To that extent,

Sanborn’s true complaint is that he disagrees with the Kentucky courts as to the

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 28

admissibility of his statements. As explained above, this is a matter over which we have

no authority; as a state-court interpretation of a state evidentiary rule, it forms no basis

for habeas relief.

B

State interference with the attorney–client relationship may implicate

constitutional issues other than the Fourteenth Amendment’s Due Process Clause. In

some instances, such interference may rise to the level of impermissibly denying a

defendant his Sixth Amendment right to counsel. See Gideon v. Wainwright, 372 U.S.

335, 342–43 (1963). Clearly established federal law requires that, for such an argument

to succeed, Sanborn must establish both that the government impermissibly intruded into

the attorney–client relationship and that prejudice resulted from that intrusion.

Weatherford, 429 U.S. at 550–59.

On appeal, Sanborn argues that intrusion into this relationship existed “because

Reverend Brown was a representative of defense counsel and communications made to

the Reverend after he was informed he would not be used as a witness were privileged.”

Cross-Appellant’s Br. at 53. This is the same argument Sanborn relied upon to claim

that the Commonwealth interfered with his Fourteenth Amendment right to Due Process,

however, and fails for the same reasons. It was not unreasonable for the Kentucky court

to conclude that the communications in question did not occur after the decision had

been made that Reverend Brown would not be used as a witness; hence, there was no

intrusion into the attorney–client privilege and no violation of Sanborn’s Sixth

Amendment rights.

C

Sanborn next argues that the evidence at his second state trial was

constitutionally insufficient to prove beyond a reasonable doubt the existence of the

aggravating factors of rape or sodomy.

Initially, we note that this panel issued a Certificate of Appealability on two

claims related to this issue. As numbered by the district court in Sanborn IV, these were

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 29

claims five and six: whether “[Sanborn’s] conviction for rape and sodomy at the second

trial was not proper, because there was no evidence to corroborate Brown’s testimony

that Ms. Heilman was alive when she was sexually abused,” and whether, “even if there

was corroborating evidence that Ms. Heilman was alive, there was insufficient evidence

at the second trial to support his conviction for rape and sodomy.” Sanborn IV, 2007

WL 495202 at *5.

1

On appeal, Sanborn takes a two-pronged approach to claim five by arguing that

habeas is warranted because (1) Reverend Brown’s testimony was inadmissible in the

absence of corroboration, and (2) without Reverend Brown’s testimony, there was

insufficient evidence for a jury to conclude that he raped or sodomized Heilman (as

opposed to abusing her corpse).

A conviction is supported by sufficient evidence if, “after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979).12 Yet even that level of deference does not adequately describe

the burden Sanborn faces in advancing this argument on appeal, because we must also

review this claim through the lens of AEDPA; thus the question that faces us is

ultimately whether “it was objectively unreasonable for the [state court] to conclude that

a rational trier of fact, after viewing the evidence in the light most favorable to the

[S]tate, could have found that [Sanborn] committed the essential elements of [the crime

charged] beyond a reasonable doubt.” Pinchon v. Myers, 615 F.3d, 631, 643 (6th Cir.

2010) (quoting Nash v. Eberlin, 258 F. App’x 761, 765 (6th Cir. 2007) (first, second, and

fourth alterations in Pinchon).

Sanborn disputes this “second level” of deference, arguing that we ought to

review this question de novo because the Kentucky Supreme Court did not address its

12

This standard also applies to determinations that an aggravating circumstance was present in

a capital-murder case. Lewis v. Jeffers, 497 U.S. 764, 781–82 (1990).

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 30

merits and that therefore this is not a matter that has been “adjudicated on the merits in

State court proceedings,” the predicate for AEDPA’s applicability. See Nields v.

Bradshaw, 482 F.3d 442, 449–50 (6th Cir. 2007) (“We . . . apply the de novo standard

of review where the . . . state courts have not ruled on the merits of a particular claim in

[a habeas] petition.”).

We disagree. It is true that the Kentucky Supreme Court’s decision on Sanborn’s

direct appeal did not explicitly address his sufficiency-of-the-evidence argument;

instead, it disposed of it en suite with several other claims by pointing out that

Some thirty assignments of error were set out in the appellant’s

brief, of which eight to ten were emphasized at oral argument. Although

we have considered each claim carefully, we found none to amount to

prejudicial error so as to require reversal of the convictions or sentences.

Sanborn II, 892 S.W.2d at 546. Such a disposition, however perfunctory, is nevertheless

“on the merits.” A finding that a claim does not “amount to prejudicial error so as to

require reversal” is directed not to a procedural infirmity or other non-merits-based

reason for dismissing that claim, but rather goes to the question of whether error

occurred at all—the quintessence of an “on the merits” determination. Hence this issue

is one in which the Kentucky courts have ruled on the merits without articulating their

analysis, a situation in which we apply so-called “modified AEDPA deference”; that is,

we “conduct an independent review of the record and applicable law to determine

whether, under the AEDPA standard, the state court decision is contrary to federal law,

unreasonably applies clearly established law, or is based on an unreasonable

determination of the facts in light of the evidence presented.” Howard v. Bouchard, 405

F.3d 459, 467 (6th Cir. 2005).

Having conducted such an independent review, we conclude that this claim fails.

Sanborn’s contention that Reverend Brown’s testimony was inadmissible for lack of

corroboration as a matter of state law, even if true, is irrelevant. Recently, in McDaniel

v. Brown, 130 S. Ct. 665 (2010), the Supreme Court summarized the proper analytical

framework for a sufficiency-of-the-evidence claim as follows:

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 31

An “appellate court’s reversal for insufficiency of the evidence is in

effect a determination that the government’s case against the defendant

was so lacking that the trial court should have entered a judgment of

acquittal.” Lockhart v. Nelson, 488 U.S. 33, 39 (1988). Because reversal

for insufficiency of the evidence is equivalent to a judgment of acquittal,

such a reversal bars a retrial. See Burks v. United States, 437 U.S.1, 18

(1978). To “make the analogy complete” between a reversal for

insufficiency of the evidence and the trial court’s granting a judgment of

acquittal, Lockhart, 488 U.S. at 42, “a reviewing court must consider all

of the evidence admitted by the trial court,” regardless whether that

evidence was admitted erroneously, id. at 41.

Id. at 672 (citations partially omitted) (emphasis added). In other words, Sanborn’s

burden on the sufficiency-of-the-evidence claims is not to demonstrate that insufficient

properly admitted evidence existed to demonstrate that Heilman was alive at the time

of Sanborn’s unlawful penetration, but rather whether any rational trier of fact could

have concluded that such was the case after considering everything admitted into

evidence by the trial court, whether it was otherwise proper or not. Because Sanborn’s

fifth claim depends on his assertion that the evidence of his guilt was insufficient without

Brown’s testimony, it necessarily fails because consideration of that testimony is

required for purposes of a sufficiency-of-the-evidence evaluation.

2

Hence we reach the habeas petition’s sixth claim, which argues that, even in the

presence of evidence corroborating Reverend Brown’s testimony, insufficient evidence

existed to convict Sanborn. Although originally stated in such a way as to presume that

corroboration of Brown’s testimony was necessary, which—as explained above—is not

required under McDaniel, we think it sufficiently obvious that Sanborn’s real argument

here is that insufficient evidence supported the finding that he raped and sodomized

Heilman even if one considers Brown’s testimony.

Even thus construing his claim, however, Sanborn fails to demonstrate that

habeas relief is warranted. We reach this conclusion in the first instance because the

argument was waived for failure to raise any form of it in Sanborn’s initial brief on

appeal. Instead, that brief focused exclusively on whether Brown’s testimony was

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 32

admissible, and whether, if that testimony were excluded, sufficient evidence existed to

conclude that Sanborn’s sexual activity occurred before Heilman’s death. These are

obviously not questions that go to the issue of whether that same conclusion could be

reached by any rational trier of fact if Brown’s testimony were included. Sanborn does

argue in his reply brief that “even if this [c]ourt elects to consider Rev. Brown’s

testimony in determining whether there was sufficient evidence of rape, Sanborn’s

statements to Rev. Brown are themselves insufficient to support his conviction.” Cross-

Appellant’s Reply Br. at 15. We have consistently held, however, that arguments made

to us for the first time in a reply brief are waived. See Am. Trim, L.L.C. v. Oracle Corp.,

383 F.3d 462, 477 (6th Cir. 2004). Sanborn sought an expansion of the COA to include

this issue, yet elected not to pursue it in his opening brief; we see no reason to excuse

his failure to do so.

Yet even if we were to indulge the argument, it would fail. Sanborn points to no

evidence introduced at trial that conclusively proved Heilman was dead at the time he

unlawfully penetrated her. He instead urges us to consider (1) the existence of

postmortem stab wounds that penetrated Heilman’s clothing, (2) the existence of

vegetation found inside Heilman’s vagina, (3) the presence of pubic hairs on her mouth

and nose, which he claims would have been dislodged if her body had been moved after

the unlawful penetration, (4) the lack of blood spatter at any location other than

Heilman’s driveway, and (5) the lack of a sex-related injury to, or semen in, the victim’s

mouth or vagina. At their weightiest, however, these are arguments that merely hint at

what Sanborn asks us to believe; indeed, Sanborn himself variously characterizes them

as “suggest[ing],” “impl[ying],” or “support[ing] the conclusion that” Heilman had died

before the rape and/or sodomy could occur. Even were we to accept Sanborn’s argument

that, taken together, these constituted “substantial evidence . . . that Heilman was dead

when the sexual activity occurred,” none of them, together or separately, would require

a rational trier of fact to reach that conclusion when considered in conjunction with the

evidence of the conversation between Sanborn and Brown. At trial, the Commonwealth

contested the factual basis and/or the import of each of Sanborn’s arguments. But the

dead do not scream. A rational juror who believed Sanborn’s statement to Brown would

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 33

thus be equally rational in concluding that the evidence to which Sanborn now points did

not foreclose the possibility that Barbara Heilman had still been alive when Sanborn

sexually penetrated her.

D

Sanborn next argues that habeas relief is warranted because his second state court

trial violated his Fifth Amendment rights by placing him in double jeopardy.

As in his sufficiency-of-the-evidence claims, Sanborn argues that this is not a

matter that has been “adjudicated on the merits in State court proceedings.” For the

same reasons set forth in Part IV-C of this opinion, he is mistaken; we evaluate this

claim using modified AEDPA deference.

Sanborn’s double jeopardy claim fails. The Double Jeopardy Clause of the Fifth

Amendment provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V. It applies to the States via the

Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969). The

Double Jeopardy Clause “protect[s] a defendant against governmental actions intended

to provoke mistrial requests and thereby to subject defendants to the substantial burdens

imposed by multiple prosecutions.” United States v. Dinitz, 424 U.S. 600, 611 (1976).

It also protects a defendant’s “valued right to have his trial completed by a particular

tribunal.” Wade v. Hunter, 336 U.S. 684, 689 (1949).

What the Double Jeopardy Clause manifestly does not do, however, is protect a

defendant from retrial after he has succeeded in obtaining a reversal on appeal because

of errors committed at trial, as distinct from a reversal that was based on the grounds that

insufficient evidence existed to support the judgment of the trial court. Burks v. United

States, 437 U.S. 1, 15–16; Patterson v. Haskins, 470 F.3d 645, 657 (6th Cir. 2006).

Sanders argues that the same considerations that protect a criminal defendant from

governmental actions intended to provoke trial-level mistrial requests counsel in favor

of extending the Fifth Amendment’s shield against double jeopardy to situations in

which no mistrial is declared, but in which an appellate court nevertheless holds those

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 34

actions to have rendered the trial constitutionally unfair. According to Sanborn, holding

otherwise would effectively punish a defendant for a trial court’s mistake, because, per

Dinitz, a mistrial declared at trial at the defendant’s behest can be the basis for a

subsequent double jeopardy claim if the motion for a mistrial was intentionally provoked

by the prosecution.

But such an extension of the Double Jeopardy Clause has never been made,

either in our circuit or by the Supreme Court of the United States. We, in fact, have

explicitly rejected Sanborn’s argument for some time. See Gully v. Kunzman, 592 F.2d

283, 288–90 (6th Cir. 1979). In Gully, we examined the double jeopardy claim of two

brothers who had originally been convicted of murder but whose convictions had been

reversed on appeal for reasons unrelated to the sufficiency of the evidence. Id. at 285.

In determining that a retrial would not offend the Double Jeopardy Clause, we concluded

that:

[Terry Lee Gully] argues that the State should be barred from retrying

him because its own misconduct led to the reversal of his first conviction.

Even accepting that characterization of the trial error which caused the

appellate reversal, it would not affect the State’s right to retry him. His

attempt to analogize his situation to cases where retrial has followed a

mistrial provoked by prosecutorial misconduct is unavailing. In such

cases, retrial is disapproved principally because the misconduct resulting

in a mistrial has deprived the defendant of the valued right to have his

trial completed by a particular tribunal. Terry Lee Gully’s first trial

proceeded all the way to verdict, and, consequently, he fully enjoyed that

right.

Id. at 289–90 (citations, internal quotation marks, and alteration marks omitted). It is

just so in Sanborn’s case. He, too, argues that the Commonwealth’s misconduct led to

the reversal of his first conviction; he, too, attempts to analogize that reversal to a

mistrial provoked by prosecutorial misconduct; yet he, too, fully enjoyed the right to

have his first trial proceed all the way to a verdict.

Moreover, even were our law extended in the way Sanborn would prefer, his

claim would still fall short because the Supreme Court has held that retrial in cases in

which the defense has moved for a mistrial is only barred by the Double Jeopardy Clause

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 35

when the prosecution’s misconduct is intended to provoke a motion for mistrial. Oregon

v. Kennedy, 456 U.S. 667, 676 (1982). Although the Kentucky Supreme Court found

the prosecutorial misconduct in Sanborn’s first trial to have been itself intentional, there

is absolutely no indication that the misconduct was intended to provoke a motion for

mistrial, and thus there is no reason to believe that the prosecution sought to “subject

[him] to the substantial burdens imposed by multiple prosecutions” contemplated by

Dinitz. Sanborn points to the Kentucky Supreme Court’s characterization of the

Commonwealth Attorney’s appeal to the sympathies and prejudices of the jury as being

“calculated to deny the accused’s right to a fair trial and due process of law,” Sanborn

I, 754 S.W.2d at 543, along with the pervasiveness of the prosecutor’s misconduct and

a lack of evidence that Barbara Heilman was alive at the time she was sexually violated

by Sanborn, and argues that they demonstrate the prosecution’s intent to goad Sanborn

into moving for a mistrial. We disagree; none of these are particularly indicative of such

an intent. Underhanded and constitutionally repugnant as these tactics might have been,

any one of them, or all of them together, might just as likely have been the consequence

of a Commonwealth Attorney’s attempt to win a guilty verdict at that trial. Without

more, they simply do not demonstrate a desire on the part of the prosecution to elicit a

motion for a mistrial.

The Kentucky Supreme Court’s decision was not contrary to the Fifth

Amendment, the holding of Dinitz, or any other clearly established federal law. Habeas

cannot be justified on those grounds.

E

In his final argument on appeal, Sanborn contends that habeas relief is warranted

in his case because his Sixth Amendment right to effective assistance of counsel was

violated at the guilt phase of his trial.

The Sixth Amendment guarantees a criminal defendant “the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. That right is satisfied,

however, only by the effective assistance of counsel. McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970). A convicted defendant who seeks to demonstrate that his

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 36

counsel’s performance was ineffective to the point of violating the Sixth Amendment

must demonstrate both that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984).

1

Performance of counsel is constitutionally deficient only if it falls “below an

objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. A reviewing

court “must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted).

Sanborn argues that the defense offered by his trial counsel was incoherent to the

point of constitutional deficiency. According to Sanborn, counsel’s opening argument

to the jury advancing the theory that Sanborn acted under extreme emotional

disturbance—and conceding that Sanborn had, in fact, killed Barbara Heilman—ignored

the fact that a critical portion of the testimony of the expert retained to buttress this

theory depended upon hearsay and was likely to be excluded from the guilt phase of the

trial. Thus when that testimony was, in fact, excluded, Sanborn was left defenseless.

The Kentucky Supreme Court addressed Sanborn’s ineffective-assistance

argument when it reviewed the denial of his state-law petition for postconviction relief

pursuant to Kentucky Rule of Criminal Procedure 11.42. Sanborn III, 975 S.W.2d at

912. In so doing, the Kentucky court noted that attorney Tustaniwsky sent Sanborn to

defense expert Dr. Johnson for evaluation and obtained a court order requiring

Dr. Johnson’s presence at Dr. Skelton’s interviews, both actions taken in preparation for

the contemplated EED defense. The Kentucky court also observed that the subsequent

exclusion of Dr. Johnson’s testimony as to the existence of a “triggering event” for

Sanborn’s EED defense was based on there being no factual foundation for Dr.

Johnson’s knowledge of that event other than Sanborn’s own statements to him (as

opposed to, for example, any failure by his attorney to elicit testimony as to another

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 37

basis Dr. Johnson might have had for that knowledge). Ibid.13 Hence the basis for the

Kentucky court’s decision was that Sanborn had failed to demonstrate the “deficiency”

requirement of Strickland, and we review that rationale for the decision accordingly

under the “unreasonable application” clause of the AEDPA standard. The question,

therefore, is whether the Kentucky Supreme Court was objectively unreasonable in its

application of Strickland to the facts of Sanborn’s case to hold that Sanborn had not

overcome the strong presumption that Tustaniwsky’s actions were sound trial strategy.

At bottom, Sanborn’s argument is that Tustaniwsky was constitutionally deficient

in failing to anticipate that Dr. Johnson’s testimony as to the presence of “triggering

event” would be ruled inadmissible hearsay. Yet it is far from clear that Tustaniwsky’s

plan to have Dr. Johnson testify was a dead letter from its conception. The trial

transcript reflects that the trial judge spent a significant amount of time listening to

arguments from both sides as to the permissible extent of Dr. Johnson’s testimony, a fact

that cuts against Sanborn’s argument that the eventual outcome of the argument was so

obvious that Tustaniwsky’s failure to anticipate it was constitutionally deficient.

Moreover, even after the nature of the proposed testimony and the relevant Kentucky

case law had been made clear to Judge Shadoan, he explicitly described the question as

novel, saying “[n]ow what I need is a case that has that the psychologist can testify to

[the existence of a triggering event]. I don’t know, I’ve never seen anything like this.

This is something new.” (emphasis added); id. Judge Shadoan later commented that “I’m

just trying to get something I don’t understand. I’ve never seen this before.”

Though Sanborn argues that the Kentucky Supreme Court’s decision in Stanford

v. Commonwealth, 793 S.W.2d 112 (Ky. 1990), made “the exclusion of the expert’s

hearsay testimony . . . entirely foreseeable under the case law in existence at the time,”

13

Dr. Johnson’s account of Sanborn’s statement to him as to the triggering event was offered “on

avowal,” which, in Kentucky at the time of the trial, was a process by which excluded testimony could be

placed into the record outside the presence of the jury for the purpose of facilitating review of the ruling

excluding that evidence. See Eilers v. Eilers, 412 S.W.2d 871, 872 (Ky. 1967) (discussing Kentucky’s

avowal rule, Ky. R. Civ. P. 43.10, deleted by Order 2004-5, effective Jan. 1, 2005). According to

Dr. Johnson’s account, Sanborn claimed that he had been drinking a great deal on the day in question.

Sanborn also claimed to Johnson that Heilman had made sexual advances to Sanborn after agreeing to

drive him home, but that Sanborn had refused; Heilman then began to tease Sanborn about his stuttering,

at which point Sanborn “lost control.” See Sanborn IV, 2007 WL 495202, at *16.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 38

Cross-Appellant’s Br. at 75 n.16, we note that Stanford was not a decision that directly

controlled the issue before the judge in Sanborn’s case. Rather, Stanford involved EED

evidence that had been excluded primarily because the defendant had not complied with

a requirement of Kentucky law that “a defendant who intends to introduce evidence of

his mental illness or insanity . . . file a written notice of his intention to introduce such

evidence at least twenty days before trial.” Stanford, 793 S.W.2d at 115 (citing Ky. Rev.

Stat. § 504.070(1)). Further, although the Stanford court noted that the evidence “was

subject to exclusion for hearsay and for failure to lay a proper foundation for its

admission,” ibid., such a holding was factually distinguishable from Sanborn’s case

because the evidence in Stanford, even if admitted, was held to have been legally

insufficient to establish the existence of a triggering event. Ibid. And ultimately, the

trial transcript in Sanborn’s case reflects that Judge Shadoan did not view the issue as

one controlled by precedent:

MR. TUSTANIWSKY: But, your Honor, what we are going to

do is certainly not a novel proposition. This has been done many times

throughout the Commonwealth.

THE COURT: Where? Show me one case, please.

....

THE COURT: I would like to see a Supreme Court or a Court of

Appeals ruling that indicates that a psychologist can produce evidence

and then testify that act is the extreme emotional disturbance.

[Co-counsel for Sanborn] MS. BOYCE: There is no opinion one

way or another that says it can or cannot come in that way. It did not

come up to the court. The issue has not been ever presented.

MR. TUSTANIWSKY: Nobody’s ever challenged it in court

because it’s done commonly.

THE COURT: Well, it’s challenged now and I have to rule on it.

It’s not just a simple little case. It’s very serious. I’m aware of that.

Even further, when Sanborn’s counsel complained to Judge Shadoan that no case

permitted the exclusion of an expert psychologist’s testimony as to the existence of a

triggering event, the judge replied, “[y]ou’ve got one now. . . . You’ve got one right now

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 39

that says it until otherwise.” (emphasis added). It was not objectively unreasonable for

the Kentucky Supreme Court to conclude that counsel’s failure to anticipate a ruling on

an issue that the judge himself recognized as complicated and novel was not a deficiency

of constitutional dimension.

Once Dr. Johnson’s testimony had been ruled inadmissible, moreover, it was not

constitutionally deficient for Tustaniwsky to have abandoned the EED defense at the

guilt phase. “[T]he Sixth Amendment does not require that counsel do what is

impossible or unethical. If there is no bona fide defense to the charge, counsel cannot

create one and may disserve the interests of his client by attempting a useless charade.”

United States v. Cronic, 466 U.S. 648, 657 n.19 (1984). Sanborn does not dispute that

Kentucky law required some evidence of a “triggering event” in order to successfully

mount an EED defense at the guilt phase, nor does he argue that he himself ought to

have taken the stand to testify as to the existence of the alleged triggering event, nor does

he contend that evidence of a triggering event could have been introduced via some other

source. Faced with an evidentiary ruling that precluded the use of the EED defense at

the guilt phase, Tustaniwsky appears to have quite rationally decided not to call

Dr. Johnson to testify until the penalty phase, at which point evidence of a triggering

event was not required. See Florida v. Nixon, 543 U.S. 175, 191 (2004) (“In [some

death penalty] cases, ‘avoiding execution [may be] the best and only realistic result

possible.’ Counsel therefore may reasonably decide to focus on the trial’s penalty phase

at which time counsel’s mission is to persuade the trier that his client’s life should be

spared.”) (citations omitted).14

14

On appeal, Sanborn argues that Nixon is inapposite because that case involved an attorney who

conceded guilt with the purpose of preserving his credibility, the better to argue for leniency in the penalty

phase. Sanborn contends that his attorney, by contrast, conceded guilt in order to argue a foredoomed EED

defense. In this case, however, this is a distinction without a difference. Even a successful EED defense

would have required precisely the same admission that would have been made by an attorney seeking to

“focus on the trial’s penalty phase” in an attempt to convince the jury to spare Sanborn’s life. In other

words, given that a decision to plead guilty in order to present an EED defense at the penalty phase is

within the presumption of reasonability, it follows that a decision to make the same argument at the guilt

phase—as long as it was without prejudice to Sanborn’s ability to make it at the penalty phase, as was the

case here—would also be within that presumption even if the admissibility of the EED evidence at the guilt

phase was unlikely.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 40

Sanborn’s trial counsel initially sought to present a defense that hinged on the

testimony of a particular witness. Though the admissibility of portions of that testimony

may have been in doubt, the judge in his case considered the question complex enough

to warrant arguments taking up dozens of pages of transcript, ultimately resulting in a

decision made without reference to controlling authority. Nothing in the record suggests

that this approach fell outside the presumption of sound trial strategy, and, once that

strategy was derailed, counsel took the rational option of presenting his EED defense at

the punishment stage. Because counsel’s actions were not constitutionally deficient,

Sanborn’s ineffective-assistance argument fails.

2

Sanborn’s ineffective-assistance argument also fails because he cannot

demonstrate prejudice. Because the Kentucky Supreme Court did not reach the question

of prejudice with respect to Sanborn’s counsel’s alleged deficiency in the presentation

of his EED defense, we review this portion of the Strickland requirement de novo.

Deficient performance of counsel only results in prejudice if “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

Sanborn argues first that Tustaniwsky’s concession of guilt during opening

remarks was presumptively prejudicial as a complete abdication of the responsibility to

mount a defense. See Cronic, 466 U.S. at 658–60. We disagree. Under Cronic, some

forms of deficient representation are indeed presumptively prejudicial, but only in

“circumstances that are so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified,” such as the complete denial of counsel or a

failure of counsel to subject the prosecution’s case to meaningful adversarial testing. Id.

at 658–59. No such circumstances were present in Sanborn’s case; his attorney may

have lost an admissibility battle critical to Sanborn’s defense, but he nevertheless fought

that battle, as well as arguing that Heilman was dead when the sexual assaults occurred,

presenting witnesses, objecting to the prosecution’s opening and closing arguments, and

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twice moving for mistrial. Thus we proceed to the question of whether Sanborn has

shown that Tustaniwsky’s alleged deficiencies prejudiced Sanborn in fact.

And indeed, having carefully reviewed the record, we conclude that he has not.

Sanborn first suggests Tustaniwsky’s failure to “develop exceptions to the hearsay rule

to fight for the testimony to be allowed,” to seek independent evidence to corroborate

Sanborn’s statements as to the alleged triggering event so that they would not be barred

as hearsay, or to “adequately plan[] for the contingency of presenting the EED defense

without Dr. Johnson’s testimony” prejudiced him in that, as a consequence, his EED

defense was not considered at the guilt stage. But Sanborn points to no such exceptions

in the hearsay rule, and no such independent corroborating evidence, and no way in

which the EED defense might have proceeded at all without the testimony of

Dr. Johnson.15 Because it is Sanborn’s responsibility to demonstrate that, had

Tustaniwsky taken those steps, “the result of the proceeding would have been different,”

Sanborn’s failure to explain how, precisely, Tustaniwsky could have proceeded along

any of those lines is fatal to his argument.

Sanborn also claims that Tustaniwsky could have researched “other plausible

legal defenses,” again without specifying what those might be, or explaining how they

would have altered the outcome of his trial. Had Tustaniwsky not presented the EED

defense, of course, he might have contested the question of whether Sanborn had

actually committed the acts that led to his convictions, but on that question the evidence

was overwhelming. Heilman’s blood was found in Sanborn’s car, and on his hands,

clothes, and knife. His hairs were found on her body. Scrapings from under Heilman’s

nails matched carpet fibers from Sanborn’s car. Testimony from the investigating

officers established that Sanborn told them that he knew the approximate location of

Heilman’s body and that she had been “hurt bad.” Reverend Brown testified that

Sanborn had confessed his guilt. Given those facts, and without any indication of how

guilt might have been contested, Sanborn’s current assertion that Tustaniwsky’s decision

15

Sanborn himself, of course, could have testified as to the existence of the triggering event, but

doing so would have exposed him to cross-examination, and he does not argue on appeal that he himself

should have taken the stand.

Nos. 07-5309; 07-5310 Sanborn v. Parker Page 42

to pursue an EED defense at the expense of some other, unspecified, defense is

unavailing.

Finally, Sanborn advances the theory that “[b]ut for defense counsel’s decision

to pursue an EED defense, Sanborn would not have been evaluated by Dr. Skelton,” and

therefore would not have been subjected to the damaging testimony from Dr. Skelton we

discuss above. Dr. Skelton’s testimony was permitted to rebut Dr. Johnson’s testimony

at the penalty phase of Sanborn’s trial, because, unlike at the guilt phase, Kentucky law

did not require that a defendant prove a “triggering event” for an EED episode. But

again, Sanborn cannot demonstrate that the outcome of the proceedings would have been

different but for that decision. Skelton did not testify at the guilt phase, so Sanborn was

clearly not found guilty as a result of that testimony. While Dr. Skelton’s testimony did

obviously damage Sanborn’s attempts to mitigate his sentence, moreover, he points to

no such damage done to any mitigation attempt other than the EED defense itself; thus

Sanborn appears to claim that “defense counsel’s decision to pursue an EED defense”

was prejudicial to his ability to pursue an EED defense. It needs hardly to be said that

this is nonsensical.

F

Because Sanborn cannot demonstrate that habeas relief is warranted on any of

the grounds rejected by the district court, we affirm the judgment of the district court in

Appeal No. 07-5310.

V

For the reasons discussed above, we REVERSE the judgment of the district

court insofar as it granted habeas relief to Parramore Sanborn. We AFFIRM the

judgment of the district court in all other respects. Accordingly, we REMAND these

causes to the district court with instructions to deny Sanborn’s petition for a writ of

habeas corpus.