                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 11a0102n.06

                                            No. 09-5916

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                      FILED
                                                                                       Feb 10, 2011
                                                                                 LEONARD GREEN, Clerk
CAROLYN BURDETTE,                                       )
                                                        )
       Petitioner-Appellant,                            )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
v.                                                      )    THE MIDDLE DISTRICT OF
                                                        )    TENNESSEE
                                                        )
UNITED STATES OF AMERICA,                               )
                                                        )
       Respondent-Appellee.                             )


Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

       SILER, Circuit Judge. A jury convicted Carolyn Burdette of conspiracy to murder her

husband Randy. After this court affirmed her conviction and sentence on direct appeal, Burdette

filed a petition under 28 U.S.C. § 2255 to vacate her sentence. The district court denied her petition

and she now appeals. For the following reasons, we AFFIRM.

                                         BACKGROUND

       After Burdette’s husband Randy joined the military, the couple was stationed in Texas where

they became acquainted with Army Sergeant Steve Adams. For some period of time between 1991

and 2000, Adams and Burdette maintained a romantic relationship. Eventually, Burdette sought

Adams’s help to kill her husband. After attempting unsuccessfully to kill Randy, at Burdette’s

insistence, Adams asked Michael Myott, a fellow serviceman and sniper, to kill Randy. Myott

reported the solicitation to John Massie, who arranged for a sergeant to contact and meet with
Adams, posing as a hitman. Adams’s efforts failed because, unknown to both Burdette and Adams,

Massie was an undercover Army Special Agent investigating the murder plot. Adams was tried and

convicted by a military court for his role in the conspiracy.

         Burdette was charged with conspiracy to commit murder-for-hire and with the use of

interstate facilities to commit murder-for-hire, in violation of 18 U.S.C. § 1958. At trial, in addition

to Adams’s testimony, the government also produced a number of letters sent by Burdette to Adams.

These letters reflected the romantic relationship between Burdette and Adams, and one letter

contained a coded reference to Burdette’s plan to kill her husband. Also at Burdette’s trial, Julie

Neuman and her husband John, acquaintances of the Burdettes, testified that Burdette admitted to

having a relationship with Adams. Both also testified to hearing Burdette and Adams discuss

possible ways to kill Randy. Finally, Massie testified that he contacted Burdette, portraying the hit

man hired by Adams to kill Randy. Burdette and Massie discussed possible ways to kill Randy, and

Burdette supplied Massie with her husband’s likely location and the vehicle he would be driving.

         Burdette testified at trial that her relationship with Adams was not consensual. She claimed

that Adams had raped her and that she was the victim of Adams’s delusional obsession. Burdette

denied ever knowing that Adams had attempted to have Randy killed. Burdette was convicted on

both counts and the district court sentenced her to 151 months’ imprisonment. On direct appeal, we

affirmed Burdette’s conviction and sentence. United States v. Burdette, 86 F. App’x 121 (6th Cir.

2004).

         Burdette then filed this motion pursuant to 28 U.S.C. § 2255 to vacate her sentence. She

argued that she was denied the effective assistance of counsel at trial because her counsel failed to

obtain certain impeachment evidence for use against Adams. In support, Burdette submitted the


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testimony of Dr. Joan Schleicher at Adams’s military sentencing hearing. Dr. Schleicher, a

psychologist, concluded that Adams suffered from a “schizoid personality disorder” and that he

possessed “deep, delusional beliefs about his role in the world.” As a result, Dr. Schleicher found

that Adams was unable to properly “weigh what[] [was] happening in his relationship with

[Burdette], or what[] [was] not happening.” Adams fantasized himself to be Burdette’s rescuer. Dr.

Schleicher concluded, however, that Adams was able to distinguish right from wrong and did not

suffer from hallucinations.

       By the time of Burdette’s trial, Adams had already been sentenced for his role in the

conspiracy, and Dr. Schleicher’s testimony would have been available for Burdette’s use. Despite

his close contact with Adams’s military counsel, Burdette’s trial counsel failed to obtain Dr.

Schleicher’s testimony. Burdette’s trial counsel could not explain why he failed to do so, but

concluded that the testimony would have been helpful, both to impeach Adams and to support the

defense’s theory that Burdette was the victim of violent treatment by Adams. The district court held

that the failure by Burdette’s counsel to obtain this impeachment evidence constituted deficient

performance but that the error did not prejudice Burdette. Accordingly, the district court denied

Burdette’s § 2255 motion.

                                          DISCUSSION

       We review a district court’s denial of a § 2255 motion de novo, but review the district court’s

findings of fact for clear error. Benitez v. United States, 521 F.3d 625, 630 (6th Cir. 2008).

       Burdette argues that the failure by her trial counsel to obtain Dr. Schleicher’s testimony

created sufficient prejudice such that, with the inclusion of this testimony, the outcome of her trial

would have been different. Whether a defendant is deprived of the effective assistance of counsel


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is determined under the two-pronged Strickland test. “First, the defendant must show that counsel’s

performance was deficient. . . . Second, the defendant must show that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the district

court found deficient performance, but not prejudice, we address only the second prong of the

Strickland inquiry.

        To demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. A “reasonable probability” is a probability “sufficient to undermine confidence in the

outcome.” Id.

        Burdette argues that, with Dr. Schleicher’s testimony, a reasonable jury could have

discounted Adams’s testimony as delusional—supporting her defense that Adams raped her—or

concluded that she and Adams shared a consensual affair but that Adams erroneously believed that

Burdette asked him to kill Randy. The amount and substance of other evidence admitted at

Burdette’s trial, however, in addition to Dr. Schleicher’s testimony, prevents us from reaching any

conclusion other than that this impeachment evidence would not have altered the outcome of

Burdette’s trial.

        Dr. Schleicher’s testimony would not have altered the trial’s outcome because it would not

necessarily have discredited Adams’s testimony. As the district court observed, Dr. Schleicher’s

testimony was a double-edged sword. Dr. Schleicher concluded that Adams did not suffer from

hallucinations and she considered him to be “a truthful, honest guy.” While Adams may have been

delusional, Dr. Schleicher testified that it was Burdette who manipulated an unstable Adams. The

other evidence at trial further bolstered Adams’s testimony. The letters sent by Burdette to Adams


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evidenced that a romantic relationship existed between the two. Burdette concluded nearly every

letter with the words “love and miss you” or “love always.” In addition to Adams, two other

witnesses at trial testified that Burdette herself admitted to the existence of a consensual, romantic

relationship with Adams.

       Furthermore, the ample amount of other evidence admitted at trial overwhelmingly proved

Burdette’s guilt, Dr. Schleicher’s testimony notwithstanding. Julie and John Neuman both testified

that they witnessed Adams and Burdette discuss various ways of killing Randy. Burdette’s other

letters also suggested her desire to have Randy killed. Burdette begged Adams to “please help me,”

and stated that she would be thankful “when this [was] ALL OVER.” Finally, Burdette was recorded

discussing the killing of her husband with a presumed hitman. Burdette suggested to Massie that

deer hunting season would begin soon. Massie and Burdette discussed the number of hunting

accidents that occurred each year, and Burdette provided Massie with the specific location where her

husband would be hunting.

       There was ample evidence to prove that Burdette participated in a conspiracy to have her

husband killed. Dr. Schleicher’s testimony fails to raise a reasonable probability that, with it, any

juror could have possessed a reasonable doubt respecting Burdette’s guilt. As a result, Burdette does

not show the prejudice required to demonstrate that she was deprived of the effective assistance of

counsel.

       AFFIRMED.




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