Katherine Dendel v. Heidi Washington, et al

Filing

Per Curiam OPINION filed: REVERSED, decision not for publication. Gilbert S. Merritt, Circuit Judge; Richard F. Suhrheinrich, (concurring in part and dissenting in part), Circuit Judge; and Bernice Bouie Donald, Circuit Judge.

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0248n.06
No. 15-2000
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KATHERINE SUE DENDEL,
Petitioner-Appellant,
v.
HEIDI E. WASHINGTON; STEPHEN
ROBINSON,
Respondents-Appellees.

)
)
)
)
)
)
)
)
)
)

FILED
May 09, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.
PER CURIAM.

Katherine Sue Dendel, a former Michigan state prisoner, appeals

through counsel a district court judgment denying her petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2254.
In 2003, Dendel was convicted of second-degree murder at a bench trial and was
sentenced to 90 to 180 months of imprisonment. On direct appeal, she raised a claim of
ineffective assistance of trial counsel, and the matter was remanded to the trial court for an
evidentiary hearing. At the conclusion of the hearing, the trial judge denied the claim. The
Michigan Court of Appeals, in a divided opinion, held that ineffective assistance of counsel had
been established and vacated the conviction. People v. Dendel, No. 247391, 2006 WL 2000148
(Mich. Ct. App. July 18, 2006). The Michigan Supreme Court, also in a divided opinion,
reversed that decision and reinstated the conviction. People v. Dendel, 748 N.W.2d 859 (Mich.
2008). The case was remanded for consideration of other issues. On remand, the Michigan

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 2

No. 15-2000, Dendel v. Washington, et al.
Court of Appeals held that a violation of the Confrontation Clause was harmless error and
affirmed the conviction.

People v. Dendel, 797 N.W.2d 645 (Mich. Ct. App. 2010). The

Michigan Supreme Court declined further review.
In this petition for a federal writ of habeas corpus, Dendel asserted her claims of
ineffective assistance of counsel and violation of the Confrontation Clause, as well as a claim of
insufficient evidence.

The district court denied the petition but granted a certificate of

appealability as to the first two claims. Dendel did not seek a certificate of appealability on the
claim of insufficient evidence. In her brief, she argues that her counsel was ineffective in failing
to investigate the cause of the victim’s death and to call an expert witness, and that her right to
confrontation was denied when a doctor was permitted to testify regarding lab results of tests that
he did not personally perform.
The evidence showed that Dendel was the caregiver for her common-law husband of
nearly thirty years, Paul Burley, who suffered from hepatitis, herpes, chronic obstructive
pulmonary disease, throat cancer, HIV, neuropathy, epilepsy, impaired vision, and dementia.
Dendel herself was diabetic, and she self-administered insulin injections twice a day. Dendel
had become overwhelmed by the responsibility of caring for Burley, who became increasingly
uncooperative. She received no help from his family, and he was neither old enough nor ill
enough to qualify for residential care. The day before his death, a visiting nurse had quit due to
Burley’s uncooperativeness. During that night, Dendel called the police because Burley was
running around their apartment with a knife, but when the police arrived he was sitting calmly,
and they declined to take him to the hospital.
Dendel claimed that Burley’s condition was normal the next day until lunchtime. When
she checked on him a few hours later, however, he was slumped over dead. Dendel did not call

-2-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 3

No. 15-2000, Dendel v. Washington, et al.
the police, but called a friend who came over and called the police. Despite talking to Burley’s
family members several times over the following week, Dendel did not tell them that he had
died.
An autopsy was performed, with the initial finding of death from natural causes.
However, Burley’s sister, when finally informed of his death, reported to the police that Dendel
had told her the week before Burley’s death that she was overwhelmed and was considering
injecting Burley with insulin. Dr. Pacris, who performed the autopsy, then asked for additional
lab tests. He testified that, on reexamination, he concluded that death was due to an insulin
overdose. He reported that the decedent’s brain and kidneys showed signs of deterioration
indicating that he had been in a coma for twelve hours before death. This would indicate that
Dendel administered the insulin shortly after the police left during the night, and that Burley
would have been in a coma thereafter, not the normal condition that she reported the following
day. The head of the laboratory that performed the testing, Dr. Evans, testified that the lab
results showed a zero glucose level, consistent with being injected with insulin. He also reported
that there was a high level of morphine, which might have been lethal in someone who had not
built up a tolerance to the drug. The defense argued that death could have been due to a
combination of the numerous medications the decedent was taking, or that he could have selfadministered insulin, although there was also evidence that he would not have been physically
capable of giving himself an injection. The trial court judge found Dendel guilty of seconddegree murder.
At the subsequent hearing on the claim of ineffective assistance, trial counsel testified
that he had asked a friend of his, who was a doctor, for a referral, and had then called the
recommended doctor and talked to him about the case, although he kept no notes of the

-3-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 4

No. 15-2000, Dendel v. Washington, et al.
conversation and did not give the doctor any of the decedent’s medical records. Trial counsel
indicated that Dendel had insisted that he pursue a defense that the victim self-administered an
overdose, and therefore he concluded that he did not need to challenge the state’s expert opinion
of the cause of death. Appellate counsel presented the testimony of an expert, who challenged
the conclusions of Dr. Pacris and opined that the cause of death could have been a combination
of the drugs that Burley was taking. However, Dr. Pacris could not rule out an insulin injection
as the cause. Dr. Pacris defended his original testimony that the changes in the brain and kidneys
indicated that Burley had been in a coma due to insulin shock.
Dendel argues that her trial counsel was ineffective in failing to investigate the cause of
death and to call an expert witness. To state a claim of ineffective assistance of counsel, Dendel
is required to show that her counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel’s errors, the result
of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694
(1984).

The district court found that the state court’s conclusion that Dendel had not

demonstrated prejudice from the alleged ineffective assistance was reasonable. See Schriro v.
Landrigan, 550 U.S. 465, 473 (2007).
The parties argue over the reasonableness of counsel’s performance. We have held,
however, that a lawyer who fails to adequately investigate information that might demonstrate
his client’s factual innocence or that might raise a question of guilt renders deficient
performance. Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007). In fact, it is the duty of
the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all
avenues leading to facts relevant to the merits of the case and the penalty in the event of
conviction. Rompilla v. Beard, 545 U.S. 374, 387 (2005).

-4-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 5

No. 15-2000, Dendel v. Washington, et al.
Here, Dendel’s trial counsel did not present any evidence of an independent investigation.
Although trial counsel testified that he spoke to a friend, Dr. Burgess, and asked for a referral
who could provide insight into the cause of Burley’s death, counsel could not recall the exact
details of the conversations and kept no notes of what he discussed with either Dr. Burgess or the
referral, Dr. Halsey. Dr. Halsey was not given any of Burley’s medical records to review, yet he
agreed with the prosecution’s medical expert’s opinion on the cause of death based on one phone
conversation with trial counsel. Without attempting to corroborate Dr. Halsey’s opinion by later
providing him with Burley’s medical records, trial counsel decided that investigating further into
the cause of death was unnecessary. We have made clear that an attorney cannot hire an expert,
give him whatever evidence he happens to have on hand (but not the evidence the client pointed
to) and accept the report without further discussion. Couch v. Booker, 632 F.3d 241, 246 (6th
Cir. 2011). A reliance on uncorroborated evidence dealing with a material issue, such as the
cause of death in a murder trial, constitutes as deficient performance. See id.
As to prejudice, the second prong of an ineffective assistance claim, the trial judge, who
presided over the post-conviction evidentiary hearing, concluded that there was no reasonable
probability that the expert’s testimony would have altered the result of the trial, given the weight
of the contrary evidence to demonstrate prejudice. However, a reasonable probability exists
where there is a probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694.
In Rompilla, the Supreme Court found that the defendant was prejudiced by the counsel’s
failure to obtain and investigate court files about Rompilla’s prior conviction. 545 U.S. at 383.
After concluding that the attorney’s failure constituted deficient performance, id. at 383, the
Court found prejudice. “If the defense lawyers had looked in the file,” the Court reasoned, “they

-5-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 6

No. 15-2000, Dendel v. Washington, et al.
would have found a range of mitigation leads that no other source had opened up.” Id. at 390.
“Further effort would presumably have unearthed much of the material post-conviction counsel
found, including testimony from several [potential witnesses], whom trial counsel did not
interview.” Id. at 391. “This evidence,” the Court concluded, “adds up to a mitigation case that
bears no relation to the [minimal mitigation evidence] actually put before the jury, and although
we suppose it is possible that a jury could have heard it all and still have decided [as it did], that
is not the test.” Id. at 393.
Similarly, here, trial counsel’s failure to adequately investigate into the cause of Burley’s
death was prejudicial to Dendel’s defense. There is a reasonable probability that had Dendel’s
trial counsel mounted the available expert evidence that Burley’s death could have been caused
by a combination of drugs as her appellate counsel did, it would have, at a minimum, raised
doubt about Dendel’s guilt and undermined the confidence in her conviction or sentence. See id.
The Michigan Supreme Court reasoned that Dendel was not prejudiced because the prosecution’s
medical expert’s theory that Burley died from an insulin injection still would not have ruled out
either of Dendel’s defense arguments: that Burley died of natural causes or killed himself.
However, evidence rebutting the prosecution’s insulin-injunction theory of causation would have
at least undermined confidence in the medical evidence used to convict her, which is the test for
reasonable probability. See id. Therefore, the state court’s rejection of the claim of ineffective
assistance of counsel was contrary to clearly established Supreme Court precedent. See Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).
Dendel’s second claim is that she was denied the right to confrontation by the testimony
of the head of the laboratory regarding test results that he did not personally perform. The state
court agreed that a violation had occurred but concluded that it was harmless error.

-6-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 7

No. 15-2000, Dendel v. Washington, et al.
Confrontation Clause violations are properly subjected to harmless error review. Vasquez v.
Jones, 496 F.3d 564, 574 (6th Cir. 2007).

The factors considered in deciding whether a

confrontation error was harmless include whether the evidence was cumulative, whether it was
corroborated, the extent of cross-examination permitted, and the strength of the prosecution’s
case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). In this case, the evidence to which
Dendel objects is the finding that the glucose level was zero, which was consistent with an
insulin injection. The district court properly noted that this evidence was cumulative, because it
was also reported by Dr. Pacris, and that it was not inconsistent with the theory of the defense.
Dendel does not raise any complaint about the extent of cross-examination that was permitted.
Finally, the strength of the prosecution’s case, including all of the circumstantial evidence,
weighs in favor of finding the confrontation violation harmless.
Accordingly, although Dendel’s confrontation clause claim fails, de novo review of the
district court’s decision supports the conclusion that the state courts’ rejection of Dendel’s
ineffective assistance claim was contrary to or an unreasonable application of clearly established
law. See Robins v. Fortner, 698 F.3d 317, 328 (6th Cir. 2012). Therefore, we REVERSE the
denial of this petition for habeas corpus relief based on Dendel’s claim of ineffective assistance
of counsel.

-7-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 8

No. 15-2000, Dendel v. Washington, et al.
SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part.
While I agree with the majority’s resolution of the Confrontation Clause issue, I disagree
with its conclusion that the Michigan state courts’ rejection of Dendel’s ineffective assistance of
counsel claim “was contrary to, or involved an unreasonable application of, clearly established
Federal law”—the standard state prisoners must overcome to receive habeas relief under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1).
This standard “severely constrains” our review. Smith v. Anderson, 632 F.3d 277, 281 (6th Cir.
2011).

For ineffective assistance claims, the clearly established federal law is of course

Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing that counsel’s
deficient performance prejudiced the defense. Id. at 687. But on AEDPA review, “the pivotal
question is whether the state court’s application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s performance fell below Strickland’s
standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). Because the Strickland standard is a
general one, the range of reasonable applications is substantial. Id. at 105. In fact, where both
Strickland and § 2254(d) apply, our analysis should be “doubly deferential.” Woods v. Donald,
135 S. Ct. 1372, 1376 (2015). In my view, the majority opinion does not adequately account for
these principles and, in doing so, reaches the wrong result.
The majority finds prejudice because Dendel’s counsel failed to investigate and call an
expert witness who could testify to an alternative cause of death. The Michigan Supreme Court,
however, affirmed the state trial court’s conclusion that Dendel was not prejudiced by this failure
because the new expert testimony presented at her post-conviction Ginther hearing did not
establish a reasonable likelihood of a different result at trial. Our rule for habeas petitions is to
give these state court decisions “the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773

-8-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 9

No. 15-2000, Dendel v. Washington, et al.
(2010) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The majority
instead (and in spite of AEDPA) appears to have engaged in a de novo review of Dendel’s
ineffective assistance claim. But it is the state court decisions we must examine to adjudicate
Dendel’s claim, not merely our own independent evaluation of the underlying evidence.
After the state trial court denied Dendel’s motion for a new trial, the Michigan Court of
Appeals remanded the case for a Ginther hearing to determine whether Dendel’s trial attorney
rendered ineffective assistance. See People v. Dendel, 748 N.W.2d 859, 863 (Mich. 2008). At
the Ginther hearing, the state trial judge heard new defense expert testimony from Dr. Simson.
Dr. Simson contested the prosecution’s theory that Burley died of hypoglycemic shock triggered
by an insulin overdose and proposed that Burley actually died of a multiple-drug (primarily
morphine) overdose. Dr. Simson conceded, however, that he could not rule out the possibility
that Burley died of an insulin injection. The trial court also heard the prosecution recall its
expert, Dr. Pacris, who defended his original testimony against Dr. Simson’s critiques. Dr.
Pacris also rejected a morphine overdose as the cause of death due to Burley’s history of
morphine use. At the close of the hearing, the state trial judge determined that defense counsel’s
performance was objectively reasonable and, furthermore, that the outcome of the trial would not
have been different had the defense offered Dr. Simson’s testimony because “there was a lot of
other evidence” besides the prosecution’s expert pointing to Dendel’s guilt. Id.
In reviewing the conflicting expert testimony presented in Dendel’s Ginther hearing, the
Michigan Supreme Court reasonably concluded that Dr. Simson’s testimony would not have
been substantially likely to produce a different result at trial. Id. at 865-68 & n.17. The
Michigan Supreme Court reasonably upheld the trial court’s implicit credibility finding that “Dr.
Simson was not more credible than the prosecution’s experts.” Id. at 867. The court highlighted

-9-

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 10

No. 15-2000, Dendel v. Washington, et al.
that Dr. Pacris strongly defended his position that Burley died of hypoglycemic shock against Dr.
Simson’s challenges. Id. The court further emphasized that Dr. Simson did not respond to Dr.
Pacris’s testimony and “Dr. Simson conceded the possibility that Burley had died from insulin
overdose.” Id. at 868. In addition, the court explained that Dendel herself made statements to
the police that Burley had injected himself with insulin, and these statements supported Dr.
Pacris’s theory of death—not Dr. Simson’s.

Id.

Lastly, the court outlined the extensive

circumstantial evidence supporting the guilty verdict, including Dendel’s inculpatory statements,
her difficulty with Burley in the months leading up to his death, her opportunity and motive to
inject Burley with insulin around 4 a.m.—the time Dr. Pacris testified Burley fell into a coma,
and Dendel’s suspicious behavior following Burley’s death. Id. at 868-70.
The showing required to satisfy Strickland’s prejudice prong is well-established. The
question is not “whether it is possible a reasonable doubt might have been established if counsel
acted differently. Instead, Strickland asks whether it is ‘reasonably likely’ the result would have
different.” Harrington, 562 U.S. at 111 (internal citations omitted). “The likelihood of a
different result must be substantial, not just conceivable.” Id. at 112.
It strains the notion of deference to read the Michigan state court decisions as an
unreasonable application of this flexible legal standard. In fact, the Michigan Supreme Court’s
thorough analysis reveals solid ground for finding a lack of prejudice. The Michigan Supreme
Court assessed the newly uncovered expert testimony and reasonably concluded, based on the
weight of the competing expert testimony and circumstantial evidence, that there was not a
reasonable probability that Dendel would have been acquitted even with the new expert
testimony. See Sears v. Upton, 561 U.S. 945, 955-56 (2010) (per curiam) (explaining that a
proper analysis of prejudice under Strickland requires a “probing and fact-specific analysis”

- 10 -

Case: 15-2000

Document: 21-1

Filed: 05/09/2016

Page: 11

No. 15-2000, Dendel v. Washington, et al.
whereby the state court takes into account “the newly uncovered evidence” along with the
evidence introduced during trial to assess whether there is a reasonable probability of a different
result).
Despite the majority’s suggestion, the Michigan Supreme Court decision is not contrary
to or an unreasonable application of Rompilla v. Beard, 545 U.S. 374 (2005). The Rompilla
Court found prejudice because the newly-discovered evidence in that case produced “a
mitigation case that [bore] no relation to the few naked pleas for mercy actually put before the
jury.” 545 U.S. at 393. The Michigan Supreme Court, in contrast, held that Dr. Simson’s expert
testimony did not substantially alter the case presented to the trial court in the form of Dr.
Pacris’s expert testimony and the significant additional evidence supporting Dr. Pacris’s theory
of death.
I therefore would affirm the district court’s decision denying the petition for a writ of
habeas corpus.

- 11 -