Sanborn v. Parker

629 F.3d 554

Parramore L. SANBORN, Petitioner-Appellee/Cross-Appellant,

v.Phil PARKER, Warden, Kentucky State Penitentiary, Respondent-Appellant/Cross-Appellee.

Nos. 07-5309, 07-5310.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 22, 2010.

Decided and Filed: Dec. 21, 2010.

Rehearing and Rehearing En Banc Denied Feb. 17, 2011.

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.

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

OPINION

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 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 noticedstreaks 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 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 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'sblouse 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 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

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