*1 in Lee—a confession gory summarized CALDWELL, Richard Petitioner- a crimi- which incriminates accomplice

an Appellant, not come within a nal defendant —does hearsay exception.”) Fur- firmly rooted thermore, expected respondent if the Ricky BELL, Warden, Respondent- notwithstanding argument that,

his chief — Appellee. Cruz, Lee, Gray, and Bru- holdings ton, out of court state- a co-defendant’s No. 00-5310. of a as evidence defendant’s ment used Appeals, United States Court of firmly hearsay in a rooted guilt falls with Sixth Circuit. prevail, certainly he exception—would However, approach. once entitled to 29, Argued: Nov. fails, may respondent argument this April Decided and Filed: court to entertain then call on the district attempt This to stra- additional defenses. they until are

tegically reserve defenses why courts have precisely the state must assert

held that harmless or waive the defense

error at the outset Greer, Granberry v.

entirely. e.g., See 129, 132, 107 95 L.Ed.2d

U.S. (1987). not, as a This Court should policy, encourage poorly planned

matter of improper

lawyering strategy, nor respondent’s to do the

should this Court

job by raising him harmless error appropriately. to do so

where he has failed respondent

I that the has troubling find it much,

essentially asked this Court do as sweep

particularly given the broad of re- to the re-

sponsibilities that is accorded proceedings and the

spondent these lib-

erty interests stake. reasons, I con-

For the aforementioned judgment

cur

opinion. *2 (briefed), Columbus,

David C. Stebbins OH, briefed), (argued Paul R. Bottei Climer, Office, telling while did not know Climer’s Nash- Public Defender’s Federal Illinois, TN, Petitioner-Appellant. having ville, mother that her son was petitioner’s run off with wife. (ar- Lustre, R. Pruden B. Glenn Alice briefed), Attorney- Office gued later, was arrest- petitioner weeks Seven *3 Moore, General, Nashville, TN, Michael E. public drunkenness and taken ed for (briefed), Attorney Tennessee Solicitor jail. Virgil, who County His son Chester Office, Litigation & State Civil General’s him, next was also detained. The was with Div., Nashville, TN, Respon- Services led law enforce- morning Virgil Caldwell dent-Appellee. to an isolated area Deca- ment officers partial County they where found the tur MERRITT, NORRIS, and Before That after- remains of a man. skeletal CLAY, Judges. Circuit noon, interrogated by authori- being while MERRITT, J., opinion the delivered ties, petitioner confessed to Climer. CLAY, J., court, joined. in which had left He told authorities that Climer 845-846), NORRIS, a (pp. J. delivered him Peti- the dance hall with and his son. opinion. separate dissenting provoked claimed that had tioner Climer first, him, to- by making sexual advances OPINION petition- ward him and his son en route to MERRITT, Judge. Circuit home, whiskey by “slapping” er’s and later penalty This is another Tennessee death good eye. one As a result petitioner’s into case from the 1980’s which State said, provocation, petitioner he of this argues error concedes constitutional crazy” and shot Climer with a shot- “went that the error was harmless and that the body then took Climer’s to Decatur gun, petition- go execution should forward. At County clothing. and burned Climer’s trial, state er Richard Caldwell’s presume petitioner’s leading offi- given an instruction to malice While son remains, deadly weapon, a which had from use of to the skeletal other officers cers shifting the unconstitutional effect of they petitioner’s home. There went proof on malice burden of onto Caldwell. stains on the found unidentifiable blood conclude that the constitutional error We walls, shells in shotgun three .410 caliber harmless and therefore RE- was not yard, the front and burned fabric that was of the District judgment VERSE having as come from the shirt identified and remand with instructions to is- Court wearing night disap- he Climer was sue the writ. peared. Dental records later showed the Climer’s, and an skeletal remains were Background Factual and Procedural autopsy revealed he was killed two 6, 1981, Tony Friday, February On shotgun to the back of the head. blasts parents Moody’s Climer went with his trial, prosecution told petitioner’s At Disco, community dance hall in Chester closing argument that it had its there, County, Tennessee. While he was every “each and element of the established petitioner, Richard talking seen degree.” of murder the first offense Caldwell, Virgil. and his son Climer was element of Concerning J.A. p.m., last seen alive about 11:15 and no one malice, that “not prosecution said days him hall. In the saw leave the dance it come from the use of does come—can disappearance, petitioner after Climer’s away a weapon, “[bjlowing ...” but that rela- gave conflicting stories about their definition, ... being [is] that he tionship, telling the disco’s owner human granted partial summary at The district court malice.” J.A. of the word embodiment judgment 863-64. favor of the State on Decem- 2, 1996, summary judg- granted ber instructions, told the the court In ment favor of the State on remain- convict Richard Caldwell jury that it could 29,1999.1 ing claims on December possible first-degree crimes: of four of one murder, murder, voluntary second-degree manslaugh-

manslaughter, involuntary Analysis Tennessee, “malice” an essential ter. a district court’s decision We review both first- and element of proceeding habeas de novo. Harris v. See murder, For murder. (6th Cir.2000).2 Stovall, F.3d jury the correct definition gave court *4 murder, malice. For of in country, In a criminal trial this instructed that “[w]hen court elementary principle process it is an of due to have used a defendant is shown the crime be every element of must have weapon, clearly and death is shown to proven by prosecution beyond a rea use, resulted from its Montana, v. sonable doubt. Sandstrom maliciously, was done law 510, 520, 2450, 442 99 61 U.S. S.Ct. is, sup- with the (1979). An L.Ed.2d 39 instruction in the port a conviction of murder second presume any element of a tells a at 279. degree.” J.A. unconstitutional, crime without evidence is guilty Richard Caldwell The found guaran for “the Fourteenth Amendment’s and, separate in a prohibit shifting tees a State from him to proceeding, sentenced sentencing disproving defendant the burden of an ele death. Id., charged.” ment of the crime 442 U.S. his conviction timely appealed Caldwell J., 527, (Rehnquist, at 2450 con 99 S.Ct. court, on in and it was affirmed state curring). Supreme has made Court Caldwell, appeal. v. 671 direct See State clear that an instruction that a should denied, (Tenn.1984), 469 459 cert. S.W.2d deadly weap presume malice from use of a 873, 231, 160 105 83 L.Ed.2d U.S. S.Ct. prohibi on falls under this constitutional (1984). pursued then state remedies He Evatt, 391, 401-02, v. 500 tion. Yates U.S. relief, de post-conviction for which were (1991); 1884, 111 114 L.Ed.2d 432 S.Ct. State, v. 917 nied. See Caldwell S.W.2d 307, 317, 105 Franklin, Francis v. 471 U.S. denied, (Tenn.1996), 853, 662 cert. 519 U.S. (1985); 1965, L.Ed.2d 344 see also S.Ct. 85 (1996). 148, 117 136 L.Ed.2d 94 He (6th Dutton, 381, 50 F.3d 385 Houston v. petition corpus a writ of habeas filed a for Cir.1995). pre mandatory A rebuttable § in the under 28 U.S.C. 2254 United sumption equally unconstitutional. for the Western Dis States District Court 317, 8, Francis, 471 105 S.Ct. 1965. on U.S. trict of Tennessee October by filing § amended the Antiterror- long delay U.S.C. 2254 as 1. The between Caldwell's Penalty Death Act of 1996 a writ court’s dismissal of his ism and Effective district (1994 (the "Act”), 2254(d) § & decision to see 28 U.S.C. claims resulted from Caldwell’s 2001), his habeas pursue post-conviction Supp. state remedies VI Caldwell filed further filing, district date of petition prior his initial which led the to the Act’s effective after 24, 1996, stay proceedings pending res- not April court to habeas and therefore the Act does 320, claims. apply. Murphy, olution of Caldwell’s state v. 521 U.S. See Lindh 327, 2059, (1997) L.Ed.2d 481 117 S.Ct. 138 (holding provisions of the Act do the relevant Although review of a state federal habeas retroactively). apply generally governed court’s decision is stan- agreed part because the Kotteakos instructions to the judge’s “The how the evidence “places prosecutors to the law and the burden on jury as dard a fair harmless”).3 are crucial to should be assessed why ... errors were explain jury’s guide the delib They trial. should O’Neal, that, in held assess- Court are not mere technicalities erations and error, we must follow the ing harmless Houston, 50 F.3d at legal system.” our approach more restrictive somewhat error 885. When faced with Sandstrom opinion in concurring Justice Stevens’s not assume it is harmless a court should Brecht, explicitly that which “stated case under the but must review the entire entirety.” applied its Kotteakos standard Supreme harmless-error standard O’Neal, 439, 513 U.S. at 115 S.Ct. See recently expounded Brecht Court most (emphasis original) (noting that Brecht Abrahamson, 619, 507 U.S. 113 S.Ct. v. controlling to the extent it failed was not (1993), 1710, 123 L.Ed.2d 353 O’Neal adopt Kotteakos standard its the. McAninch, 992, v. 513 U.S. 115 S.Ct. citing approval Justice entirety (1995). adopt 130 L.Ed.2d 947 These cases concurrence). Stevens’s principles set out Kotteakos Unit “appropriate- standard is The Kotteakos States, that an error is not ed which held Brecht, ly demanding.” if it “sub to be deemed harmless had a *5 (Stevens, injurious or effect or influence concurring). stantial 113 1710 J. S.Ct. Brecht, determining jury’s the verdict.” done, If, when all is said and the [court] 622, (quoting 507 U.S. at 113 S.Ct. 1710 sure that the error did not influence is States, 750, Kotteakos v. United 328 U.S. effect, very sight or had jury, the (1946)). 776, 1239, 66 S.Ct. 90 L.Ed. 1557 judgment the verdict and the should reviewing “grave the court has When if say, stand.... But one cannot with fair error, as to the harmlessness of an doubt” assurance, pondering hap- after all that O’Neal, the writ should issue. 513 U.S. at pened stripping without the erroneous 435, 115 S.Ct. 992. whole, judg- action from the that the decision, Brecht a 5^4 four Although was swayed by substantially ment was not the members of the Court deviated from error, impossible it is to conclude the assessing harmless Kotteakos standard of rights that were not affected. substantial they petition- held that habeas error when inquiry merely The cannot be whether “are not entitled to habeas relief unless ers result, enough support there was the they can establish that it resulted actual by apart phase from the affected the O’Neal, 438, prejudice.” 513 at 115 U.S. rather, so, error. It is even whether Brecht, 637, 507 at (quoting S.Ct. 992 U.S. If error itself had substantial influence. 1710). Stevens, 113 Justice who S.Ct. so, doubt, if grave one is left joined majority opinion but who also cannot conviction stand. opinion, differed concurring authored a Kotteakos, 764-65, at 66 S.Ct. 328 U.S. respect, from the in that and Houston, 1239; see 50 F.3d at 386 n. also separately explicate wrote the Kotteakos O’Neal, 439, 1(noting assessing that whether error is 513 at 115 standard. U.S. harmless, “quoted Supreme that Court has (stating S.Ct. 992 Justice Stevens 411, Johnson, (2d Cir.1996) ("Although Brecht im- v. 237 F.3d 502 n. 5 See also Soffar (5th Cir.2000) placed upon (explaining plied proof that "the Su- that the burden of 460 defendant, Supreme Court later clari- preme rejected the notion that under Court Brecht, question petitioner in O’Neal ... that if the the habeas must bear the fied establishing prejudice equipoise, writ of habeas whether the error was is in burden of Johnson, 499, granted.”). prejudicial”); Lyons be 99 F.3d should

843 ly to consider the theory the standard from Kottea- defense’s of acci- approval” with above). test we This is the jury kos outlined dent. This left the apply. must theory killing State’s that was first- result, degree murder. aAs this court

Here, jury was instructed held jury instructions were not to have the defendant is shown “[w]hen harmless. weapon, clearly used a death use, it is a to have resulted from its shown trial, At Caldwell’s was

presumption killing of law that was told during closing arguments is, maliciously, that with the malice done for first-degree murder can “come from support a conviction of mur necessary deadly weapon,” the use of a and the degree.” in the second J.A. at 279. der instructed the court that then when concedes, vio As the this instruction State killing deadly weapon, is done with a “it the rule laid down Sandstrom lated is a of law that the 401-02, Yates, at Yates. See 500 U.S. is, maliciously, done with the malice 1884; Sandstrom, 442 U.S. S.Ct. support mur a conviction of before us there question S.Ct. 2450. result, der in the degree.” second As a as instruction, whether this considered fore is case, in the Houston there is a reasonable other instructions and the light of the likelihood that concluded that use of whole, trial as a had a “substantial record deadly weapon raised a injurious” effect on the verdict. malice for murder as well as Brecht, 1710; 507 U.S. at 113 S.Ct. pre murder. Absent the Kotteakos, 764-65, 776, sumption, had member of this case entertained a reasonable doubt that *6 directly point. Houston v. Dutton is on malice, proved juror the State had Houston, In the defendant was found required acquit would have been to as to jury murder after a guilty degree first and second murder. Once the pre- had been instructed that however, faulty given, instruction was a proves beyond if a rea- sumed the State juror have entertained conscientious could occurred, killing sonable doubt that a had a reasonable doubt that State weapon by party that “the use of a proved malice and still voted to convict killing ... raises a of malice murder, trial Caldwell of because the charge sufficient to sustain a of Second presume him malice from judge had told to Houston, Degree Murder.” 50 F.3d at prosecutor indi gun the use of 385. On review we found the instruction proved all the cated that the State had presume to malice from these facts harm- degree elements of first murder and prevented jury ful from because deadly of a malice can come from use alternative theo- considering the defense’s weapon. given The erroneous instruction ry killing. of the Houston the state prose judge, coupled the trial with the contended that the defendant had “execut- comment, arguably had the same cutor’s station, gas robbing ed” his victim after jury effect on the in Caldwell’s case argued instead that he while the defense presume malice from the instruction to accidentally, strug- had shot the victim in a given certain facts in Houston had on the “In gun. over a Id. at 386-87. both gle jury in that case. are unable to find We sense, accident and mal- law and common in relation to ev unimportant this “error incompatible.” Id. at conceptually ice are on the erything jury else the considered jurors had instructed to 386. Once been malice, rec- question, as revealed presume they were unable serious- issue malice, Yates, express without either 111 S.Ct. another ord.” § Ann. 39-2409 implied.” Tenn.Code (1981) added); (emphasis also see State colleague’s argument to dissenting Our (Tenn.2001) Williams, 38 S.W.3d contrary unpersuasive. argues He (discussing the distinction between jury clearly somehow distin- manslaughter pre under Tennessee’s different forms of guished between two code). criminal deadly weapon of a to kill malice—the use jury the intent to kill. The another and jury The unconstitutional instructions required that “malice” was told trumped prov- effect defense of Caldwell’s murder, degree first and second both Houston, ocation. As in once the instruc- jury degree was not told that first jurors fairly to given, tion was were unable pre- not murder could be based on provoca- theory consider the defense’s sumption of malice from the use of a dead- leading manslaughter to because man- tion ly weapon. There is no obvious common would with mal- slaughter be inconsistent think that the sense reason for the to jurors already ice and had been instructed operate of malice did not uni- presume deadly malice from use of a malice, formly respect with to all forms of weapon. prosecutor, just and the before instruc- argues pages 20-22 of its State just given, argued tion was had brief that this instruction was harmless degree for first murder because to convict “[provocation ‘conceptually because is not deadly weapon of a is the “embodi- the use malice, incompatible’ readily but can ment of the word malice.” Hence most it,” killing coexist with since a from a jurors think that normal would the use of provocation trivial can be done with malice. weapon gives the inference rise to are, however, in- manslaughter Malice and to kill. At it is unreason- of intent least compatible, provocation because real ne- think that able to some did concept malice. gates the Once deadly weapon believe that the use of a malice, presume it would was instructed equivalent to an intent to kill after reject “substantially swayed” have been listening judge’s to both the instructions theory defense’s prosecutor’s argument. and the provocation adequate produce there was *7 particular We believe the instruction did manslaughter. of left it verdict This by undermining alter- damage Caldwell’s only prosecution’s theory the theory the killing native of based on killing: first-degree that it was murder. trial, “provocation.” claim of At Caldwell’s Thus, in- substantially the instruction and confession was admitted into evidence and verdict, juriously affected in resulting counsel conceded that shot his Caldwell prejudice petitioner. contended, however, Climer. Caldwell . judge pro a federal in a habeas “When in rage being that he shot Climer after ceeding grave is in doubt about whether a provoked by by homosexual advances and trial error of federal law had ‘substantial having whiskey “slapped” good in his one injurious in and effect or influence deter eye. strategy trial to con- Caldwell’s verdict,’ that not mining jury’s error is provoked that had so vince the Climer And, petitioner harmless. must win.” in killing him that the was not “malicious” O’Neal, 436, 115 513 U.S. S.Ct. 992. We eyes Manslaughter of the law. in un grave are doubt about whether the incompatible malice are because trial, given constitutional instruction time of the Tennessee law defined rights. manslaughter prejudiced as the of Caldwell’s substantial “unlawful reasons, contrast, grant peti supports we the evidence in this case foregoing For the prosecution’s and remand with instructions plea theory tioner’s that the murder corpus.4 deliberate, a writ of habeas issue and it is provo- defendant’s theory cation that is “doubtful.” NORRIS, Judge, dissenting. Circuit Implicitly recognizing this first difficul- majority correctly states that The ty, prosecu- reasons that the the uncon question this case is whether during tor’s statement closing argument presumption contained stitutional that malice can come from the use of a second-degree murder instruction “consid deadly weapon created “a reasonable like- of the other instructions and light ered jurors lihood that concluded that use of a the trial record as a whole had a ‘substan deadly weapon presumption raised the injurious’ verdict.” tial and effect on the malice for first-degree murder as well as Supreme explained Court has The second-degree murder.” This conclusion presumption standard reflects the “[t]his First, problematic for two reasons. it is finality legality that attaches to a contrary presumption re conviction at the conclusion of direct Washington follow instructions. See v. protects the sovereign view. It State’s (6th Cir.2000). Hofbauer, 228 F.3d in punishing interest offenders and its Second, ignores language it of the in- attempts good-faith to honor constitutional struction itself. ensuring that the extraordi rights, while determining In the effect that an uncon nary remedy corpus of habeas is available stitutional instruction has had on a verdict society grievously to those whom has we are bound Coleman, wronged.” Calderon v. “juries follow their instructions.” Id. This 141, 145-46, 119 500, 142 L.Ed.2d 521 can be overcome where (1998) (internal citations quotations and ‘overwhelming probability “there is an omitted). view, my appear In does will be unable to follow the court’s any that the error this case had effect ” (quoting instructions.’ Id. United States certainly on the verdict and not a substan Ford, (6th 872 F.2d Cir. injurious tial and one. 1989)). spe The instructions this case majority primarily relies on our de- cifically distinguished the standard for the cision in v. Dutton. The instruc- Houston required malice for murder tion that we addressed Houston is clear- stringent from the more standard for the ly distinguishable from the one here for required murder: First, two reasons. the instruction in this ingredient Malice is an essential specifically case was confined to second- degree may the second Houston, degree murder. “the same implied. express be either definition of malice was [unconstitutional] *8 charge used to cover first and sec- Therefore, necessary the malice to degree

ond murder.” at 385. F.3d degree constitute murder in the second Second, in Houston we found that kill is not confined to an intention to “probably accept instruction led the slain, person actually ordinarily as is prosecutor’s theory” which we de- true in the ease murder in the light scribed as “doubtful” of the evi- first presented By degree, dence at trial. Id. at includes an intention to do writ, petition 4. Caldwell's raises a number of result in issuance of the we see no other However, claims for our review. inasmuch need to reach these other claims at this time. disposition as our on the Sandstrom error will view, my these instruc- murder. may probably gree act which any unlawful It did not consid- person a of life. is indicate that the depriving tions result its spirit spite reaching malevo- at all in strictly presumption a er the so individual, as particular Therefore, have lence toward the error did not verdict. in murder in the generally required the verdict. any effect on design evil is an degree, but first reasons, respectfully I dissent. For these general.... added). (J.A. 278) This distinc- (emphasis the unconstitutional logically

tion limits mal- generalized the more

presumption to second-degree necessary

ice for supporting the malice it from and excludes Petitioner-Appellee, TAYLOR, Eric W. murder. While necessary for manifests “an inten- gun use of a itself may any unlawful act which to do tion WITHROW, Respondent- Pamela depriving person probably result Appellant. life,” necessarily indicate “an it does not No. 01-1908. person actually kill slain.” intention to unnecessary rely on the clear It is Appeals, Court of United States however, because language, logic of this Sixth Circuit. ex- presumption itself

the unconstitutional 24, 2002. Argued Jan. only to the malice neces- plicitly applies second-degree murder: sary for and Filed March Decided to have the defendant is shown When Rehearing Rehearing Suggestion weapon, and death is used a 5, 2002. En Banc Denied June have resulted from its clearly shown to use, of law that the it is a is, maliciously, that

killing was done con- support

with malice degree. murder in the second

viction of added).

(J.A. 279) I see no (emphasis any jury would have had why

reason instructions and

difficulty following these presumption ap-

understanding that murder.1

plies presume must

Given we very clear lan-

follow instructions and to sec-

guage restricting instructions, I murder in these

ond-degree justified that the

do not think jury applied this concluding of first-de-

presumption to the elements *9 only be over- instructions can acknowledges that there followed majority itself 1. The probability” "overwhelming prob- that the only a "reasonable is an come where there applied the jury ignored this limitation ability” unable to do so. See it was first-degree murder. Howev- presumption to Hofbauer, 228 F.3d at 706. above, er, pointed as out