                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                 File Name: 12a0333p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                              X
                                               -
 DAVID E. MILLER,
                                               -
                          Petitioner-Appellant,
                                               -
                                               -
                                                   No. 09-6171
         v.
                                               ,
                                                >
                                               -
                     Respondent-Appellee. -
 ROLAND COLSON,
                                              N
                Appeal from the United States District Court
             for the Eastern District of Tennessee at Knoxville.
             No. 01-00487—Robert Leon Jordan, District Judge.
                                Argued: April 27, 2011
                      Decided and Filed: September 13, 2012
              Before: SILER, GIBBONS, and WHITE, Circuit Judges.

                                 _________________

                                     COUNSEL
ARGUED: Stephen M. Kissinger, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Knoxville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Stephen M.
Kissinger, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Knoxville, Tennessee,
for Appellant. Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
        GIBBONS, J., delivered the opinion of the court, in which SILER, J., joined, and
WHITE, J., joined in part. WHITE, J. (pp. 15–21), delivered a separate opinion
dissenting from sections IV and V of the majority opinion.
                                 _________________

                                      OPINION
                                 _________________

       JULIA SMITH GIBBONS, Circuit Judge. David Miller appeals the district
court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.



                                           1
No. 09-6171         Miller v. Colson                                                Page 2


Miller was convicted of first-degree murder in 1982 and sentenced to death, a sentence
that was upheld by the Tennessee Supreme Court. He now claims that the state
improperly denied him assistance from an independent medical expert, in violation of
his clearly established constitutional right under Ake v. Oklahoma, 470 U.S. 68 (1985).
Miller also claims that the district court erred in finding that improper jury instructions
given by the state court amounted to harmless error. For the reasons that follow, we
affirm the decision of the district court.

                                             I.

        On May 20, 1981, Lee Standifer, a twenty-three-year-old woman diagnosed with
diffused brain damage and mild retardation, was murdered in Knoxville, Tennessee.
State v. Miller (Miller I), 674 S.W.2d 279, 280 (Tenn. 1984). A medical examiner
testified that Standifer had been stabbed repeatedly all over her body with both a large
knife and a fireplace poker; some stab wounds were so deep (including two that pierced
the ribcage) that the examiner speculated a hammer-like object had been used to drive
in the knife. Id. at 281. The evidence suggested that a large rope was used to bind the
victim’s body after the murder and drag it into a wooded area. An examination also
showed that Standifer had engaged in sexual intercourse shortly before her death.

        The evidence at trial established the following course of events. Miller and
Standifer had arranged to go on a date the night of May 20, and the two of them
eventually took a cab to the house of Benjamin Thomas, where Miller was staying. Id.
at 280. Later that evening, Thomas returned to his home and found Miller hosing the
basement floor; he also found streaks of blood inside the house. Id. The next day,
Thomas discovered Standifer’s body in his backyard, as well as a blue t-shirt belonging
to Miller stained with blood of the same type as Standifer’s. Miller, who had left
Knoxville, was apprehended in Columbus, Ohio, and transported back to Knoxville. Id.
at 281. After waiving his Miranda rights, he admitted to hitting Standifer with his fist
and then dragging her outside Thomas’s house after she was non-responsive and not
breathing. Id. at 281–82.
No. 09-6171           Miller v. Colson                                                          Page 3


         Miller was indicted for Standifer’s murder on August 3, 1981. On October 19,
1981, Miller’s counsel requested a psychiatric examination in order to investigate
Miller’s competency to stand trial. The trial court granted the motion and ordered that
Miller be examined by qualified staff members at the Helen Ross McNabb Mental
Health Center. The order explicitly provided the staff with two inquiries:

         The medical authorities . . . shall furnish the Court with a report of their
         findings and will advise the Court of their opinion as to whether the
         defendant is mentally ill to the extent that he cannot sufficiently
         understand the nature and object of the proceedings going on against
         him, and cannot advise with counsel in a rational manner. . . .
         Additionally, the medical authorities will make a determination as to
         whether the defendant was mentally competent and understood the nature
         and consequences of his act on or about May 21, 1981, and will report
         said findings to the Court.

Dr. George Gee, a psychiatrist at Helen Ross McNabb, prepared a letter in November
1981, which was presented to the court and shared with the government and defense
counsel. The letter stated that Miller’s affect and thought processes were normal, and
Gee concluded that he did not believe Miller was insane at the time of the offense.
Miller v. Bell, 655 F. Supp. 2d 838, 847 (E.D. Tenn. 2009).1

         On December 11, 1981, Miller filed a “motion for appointment of psychiatric
expert,” requesting that the trial court appoint a psychiatrist at the State’s expense to
assist in the preparation of Miller’s defense. The district court denied the motion,
concluding that Miller was not entitled to a second medical expert in addition to the
assistance that Dr. Gee could offer him. Miller’s trial was subsequently scheduled for
March 1982.

         At trial, Miller’s counsel argued that the circumstances of the crime were so
irrational that one could infer that Miller was insane; counsel, however, introduced no
expert to support the defense and instead tried to demonstrate insanity through lay


         1
          Gee had previously evaluated Miller on June 11, 1981, before the trial court ordered a formal
evaluation and before Miller was even indicted. Gee completed a written evaluation, dated June 12, 1981,
which described Miller as “sociopathic but certainly mentally competent to stand trial.” Miller, 655 F.
Supp. 2d at 847. This evaluation was also submitted to the court and the parties.
No. 09-6171            Miller v. Colson                                                           Page 4


testimony. The prosecution, aiming to prove Miller’s sanity, called Gee to the stand and
questioned him about the conclusions he drew based on his examinations. On direct
examination, Gee testified that he believed Miller was sane at the time of the offense and
did not suffer from a mental disease or defect. During the defense’s cross-examination,
Gee acknowledged that Miller disclosed during the June interview that he had previously
“heard some voices, someone call[ing] his name.” Gee, however, testified that Miller
told him in June that these voices had stopped three months before (and therefore prior
to the murder); Gee also explained that he did not consider these voices evidence of a
“psychotic hallucination.”2

         The jury convicted Miller of first-degree murder and sentenced him to death.
Miller appealed his conviction on multiple grounds, including the district court’s refusal
to provide him with an independent psychiatrist for trial. In May 1984, the Tennessee
Supreme Court remanded Miller’s case for resentencing on the grounds that the State
had impermissibly introduced evidence of two prior arrests for rape during the
sentencing phase, since Miller had never been convicted of either allegation. Miller I,
674 S.W.2d at 284. The court, however, affirmed Miller’s conviction. Id.

         Upon remand, Miller renewed his motion for a new trial, claiming that he was
entitled to the psychiatric assistance previously requested under the United States
Supreme Court’s recent decision in Ake v. Oklahoma, 470 U.S. 68 (1985). Ake,
according to Miller, “addressed the exact issue on psychiatric assistance which Mr.
Miller had presented” to the trial court and on his first direct appeal. As a result, Miller
claimed his conviction was predicated on a denial of his due process rights. Miller also
filed a state habeas corpus petition making the same argument about Ake. The trial court
denied both motions without explanation. A second jury sentenced Miller to death.




         2
          Miller’s counsel also argued that evidence of LSD use indicated that Miller lacked the requisite
mens rea for first-degree murder. Miller’s counsel introduced evidence of Miller’s use of LSD on the
afternoon of May 20, calling witnesses who testified to having seen Miller ingest a potent dose of the drug
that could have had effects hours later. He also questioned Gee extensively about the medical effects of
LSD. Gee acknowledged that a user of LSD experiences hyperactive emotional bouts or hallucinogenic
reactions when under the influence of the narcotic.
No. 09-6171         Miller v. Colson                                                  Page 5


        On a second direct appeal, Miller asked the courts “to reconsider two issues
involved in the guilt-innocent phase of the first trial, to wit, the trial judge’s instruction
allegedly shifting the burden of proof in violation of Sandstrom v. Montana, 442 U.S.
510 (1979)[,] and denial of appointment of a psychiatrist to aid defendant, allegedly in
violation of Ake[.]” State v. Miller (Miller II), 771 S.W.2d 401, 402–03 (Tenn. 1989)
(internal citations omitted). The Tennessee Supreme Court rejected Miller’s appeals,
concluding that “[a]ll of the issues relevant to the guilt or innocence of defendant . . .
were dealt with in this Court’s opinion released in 1984.” Id. at 403. The Tennessee
Supreme Court concluded that “the guilt-innocent issues were foreclosed when the 1984
opinion sustaining defendant’s conviction of first degree murder became final, except
such issues as are permissible in a post-conviction proceeding.” Id. The court then
affirmed the second death sentence. Id. at 405.

        In May 2002, Miller filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court rejected all of Miller’s claims and denied the petition. Miller
now appeals that denial.

                                             II.

        We review de novo a district court’s denial of a petition for a writ of habeas
corpus. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir. 2010). Because Miller filed his
petition after April 24, 1996, it is subject to the requirements of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Carter v. Mitchell, 443 F.3d 517, 524
(6th Cir. 2006). Under AEDPA, a writ may not be granted unless the state court’s
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; or (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
proceedings. 28 U.S.C. § 2254(d)(1)–(2). “A state court renders an adjudication
‘contrary to’ federal law when it ‘arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law’ or ‘decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.’” Biros v. Bagley, 422 F.3d 379,
No. 09-6171           Miller v. Colson                                                          Page 6


386 (6th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “A state
court unreasonably applies Supreme Court precedent ‘if the state court identifies the
correct governing legal rule . . . but unreasonably applies it to the facts of the particular
[defendant’s] case.’” Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 2003) (quoting
Williams, 529 U.S. at 407). Factual determinations made by state courts during the
underlying proceedings are presumed to be correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).

                                                  III.

         Miller first argues that he is entitled to habeas relief because he was denied state
funds to obtain assistance with his defense from an “independent mental health expert,”
in violation of Ake v. Oklahoma. The warden asserts two defenses to Miller’s Ake claim.
First, he alleges that Ake is not “clearly established Federal law” for purposes of this
case. Second, the warden argues that even if Ake is the controlling authority in this case,
the constitutional right to psychiatric assistance, as established by Ake, did not entitle
Miller to state funds for a second psychiatrist, when he had already been evaluated by
a competent psychiatrist appointed by the trial court.3

                                                  A.

         The first issue before us is whether the Supreme Court’s Ake decision is relevant
at all. The Supreme Court has clarified that under § 2254(d)(1), the relevant decision
for purposes of determining “clearly established Federal law” is the last state court
decision that adjudicated the claim on the merits. Greene v. Fisher, 132 S. Ct. 38, 44–45
(2011). This is because § 2254(d)(1) “requires federal courts to ‘focu[s] on what a state
court knew and did,’ and to measure state court decisions ‘against this Court’s
precedents as of the time the state court renders its decision.’” Id. at 44 (quoting Cullen
v. Pinholster, 131 S. Ct. 1388, 1399 (2011)). The state supreme court adjudicated the



         3
           The warden also argued before the district court that the Ake holding constituted a new rule
announced after Miller’s conviction became final in state court and was therefore barred under Teague v.
Lane, 489 U.S. 288 (1989). The warden does not pursue this argument on appeal, and we therefore do not
consider it.
No. 09-6171            Miller v. Colson                                                           Page 7


merits of Miller’s claim about psychiatric assistance in 1984, when it affirmed Miller’s
conviction. Miller I, 674 S.W.2d at 284. Although Miller raised his claim predicated
on Ake, which was issued in February 1985, in his second set of direct appeals following
his resentencing, the state supreme court very clearly declined to address the merits of
his claim. Miller II, 771 S.W.2d at 403. The court explained that “[a]ll of the guilt-
innocent issues were foreclosed when the 1984 opinion sustaining defendant’s
conviction of first degree murder became final, except such issues as are permissible in
a post-conviction proceeding . . . . [and] such issues are never relevant at a sentence
hearing or a resentence hearing.” Id. Although a post-conviction petition would have
been timely, Miller did not seek post-conviction review of his Ake claim. The relevant
state court decision, therefore, was issued before the Supreme Court’s decision in Ake
and Miller may not rely on Ake as clearly established federal law.4

                                                   B.

         Even if we were to look past the restrictions imposed by Greene and address the
underlying merits of Miller’s claim—that is, whether Ake established a due process right
to independent, non-neutral psychiatric assistance—Miller would still not be entitled to
relief on this ground.

         Miller claims that under Ake he was entitled to the assistance of an “independent
mental health expert.” In psychiatric assistance claims,“independent” has become a term
of art referring to a psychiatrist assigned exclusively to assist the accused in his defense.
See, e.g., Carter v. Mitchell, 443 F.3d 517, 526 (6th Cir. 2006). In contrast, a “neutral”
psychiatrist is “one whose report is available to both the defense and the prosecution.”
Powell v. Collins, 332 F.3d 376, 392 (6th Cir. 2003). In this case, the trial court
provided Miller with neutral psychiatric assistance—that of Dr. Gee—but denied Miller
his own hired psychiatric assistance.



         4
           In Miller I, however, the Tennessee Supreme Court remanded the case for resentencing; these
further proceedings, and the second set of direct appeals that resulted, meant that Miller’s conviction did
not become final until June 28, 1990, the date on which the United States Supreme Court denied Miller’s
certiorari petition to consider Miller II.
No. 09-6171            Miller v. Colson                                                           Page 8


                                                    1.

         Because Miller appeals under AEDPA, to obtain relief he must show that the
decision of the state court was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). We therefore consider whether the Supreme Court has
spoken to the issue of independent psychiatric assistance.

         The Supreme Court’s opinion in Ake does not speak to psychiatric assistance
retained by a defendant. Ake was arrested for murder; before trial, he was diagnosed by
a neutral psychiatrist as a paranoid schizophrenic and deemed temporarily incompetent
to stand trial. Ake, 470 U.S. at 71. After six weeks of hospitalization and medication,
the trial court concluded that Ake had become competent to stand trial. Id. at 71–72.
At that time, his counsel informed the court that he would pursue an insanity defense and
“asked the court either to arrange to have a psychiatrist perform the examination, or to
provide funds to allow the defense to arrange one.” Id. at 72. The trial court denied the
request, finding the Constitution did not require that an “indigent defendant receive the
assistance of a psychiatrist when that assistance is necessary to the defense.” Id.

         In setting aside the conviction, the Ake Court held that “the Constitution requires
that a State provide access to a psychiatrist’s assistance on this issue if the defendant
cannot otherwise afford one.” Id. at 74. The Ake Court, however, never addressed what
would constitute “access” and whether provision of a neutral psychiatrist would be
sufficient.5 Because Ake’s counsel had asked for either an independent or neutral
psychiatrist, the Court did not need to address whether assistance had to be independent.
The question therefore remained an open one subsequent to the Ake decision.

         After Ake, the Supreme Court passed on a chance to clarify whether due process
required independent psychiatric assistance. In Granviel v. Lynaugh, the Fifth Circuit
concluded that Ake was satisfied when the government provided a defendant with neutral


         5
         While a neutral psychiatrist had previously evaluated Ake to assess his competency to stand trial,
no medical professional had inquired into Ake’s mental state at the time of the offense. Id. at 71–72.
No. 09-6171           Miller v. Colson                                                        Page 9


psychiatric assistance. 881 F.2d 185, 191 (5th Cir. 1989); see also White v. Johnson,
153 F.3d 197, 200 n.2 (5th Cir. 1998) (treating Granviel as good law). In doing so, the
Fifth Circuit deviated from the decisions of other Courts of Appeals, which had held that
a defendant was entitled to independent, non-neutral psychiatric assistance. See United
States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985); United States v. Byers, 740 F.2d
1104, 1114 (D.C. Cir. 1984) (en banc).6 The Supreme Court, however, declined to hear
the case and resolve the circuit split, despite the urging of two justices to do so.
Granviel v. Texas, 495 U.S. 963, 963 (1990) (Marshall, J., dissenting from denial of
certiorari).

        Because the Supreme Court elected not to hear Granviel, the circuit split over the
scope of the right to psychiatric assistance remained unresolved when Miller’s
conviction became final in 1990. As we have previously noted, a disagreement among
the circuit courts is evidence that a certain matter of federal law is not clearly
established. Baranksi v. Fifteen Unknown Agents of Bureau of ATF, 452 F.3d 433, 449
(6th Cir. 2006) (“[T]his disagreement among the circuits . . . shows that the
[government] did not violate clearly established law.” ); see also Narlock v. Hofbauer,
118 F. App’x 34, 35 (6th Cir. 2004) (“At the time of the petitioner’s trial . . . using a
defendant’s pre-Miranda silence as substantive evidence had not been addressed by the
Supreme Court and was the subject of disagreement among the circuits. Hence . . . there
was no rule ‘clearly established’ by holdings of the Supreme Court that would have
applied . . . .”); Turnstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002) (“When the
federal circuits disagree on the application of [a Supreme Court precedent], it is difficult
to say the [state] court’s decision is contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court.”).




        6
          Subsequent to Granviel, at least two other circuits have held that due process requires
independent psychiatric assistance. Starr v. Lockhart, 23 F.3d 1280, 1288–89 (8th Cir. 1994); Smith v.
McCormick, 914 F.2d 1153, 1158–59 (9th Cir. 1990). The Fourth Circuit, in contrast, recently expressed
doubt regarding whether Ake required a court to appoint a “non-neutral expert.” Campbell v. Polk,
447 F.3d 270, 286 & n.5 (4th Cir. 2006).
No. 09-6171        Miller v. Colson                                               Page 10


                                            2.

        Our reading of Ake and the case law that subsequently interpreted it is supported
by an examination of our precedent involving the issue of independent psychiatric
assistance. This case law is relevant in that it reiterates the unsettled nature of a
defendant’s right to psychiatric assistance during the decades following Ake. While we
cannot “rel[y] upon [our] own decision[s]” to resolve a habeas case before us under
§ 2254, Renico v. Lett, --- U.S. ---, 130 S. Ct. 1855, 1865–66 (2010), in this case we
merely look to our precedent as “evidence” of whether “Supreme Court precedents
ha[ve] clearly established a rule as of a particular time.” 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and Procedure § 32.3, at 1585 n.10 (5th ed.
2005); see also Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003) (“Although only
Supreme Court case law is relevant under the AEDPA in examining what Federal law
is ‘clearly established,’ the decisions of the United States Courts of Appeals may be
informative to the extent we have already reviewed and interpreted the relevant Supreme
Court case law . . . .”). In this case, we feel that our own internal conflict about the
scope of Ake evidences the reasonableness of the state court decision.

        We first considered whether Ake demanded the appointment of an independent
psychiatric expert, in the en banc case Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.
1990). A number of judges in Kordenbrock opined that access to a neutral psychiatrist
did not satisfy the Ake right to psychiatric assistance. Id. at 1107–08 (plurality). Other
judges, however, concluded that provision of a neutral psychiatrist did satisfy Ake. Id.
at 1117–18 (Kennedy, J., dissenting) (“Ake merely requires that a competent psychiatrist
be provided to assist indigent defendants, not the psychiatrist of their choice.”). Both
positions, however, failed to garner a majority of votes. Id. at 1135 (Nelson, J.,
concurring) (finding that “[b]ecause it appears that a[n independent] psychiatric expert
will be provided on retrial, I do not think it is necessary for us to decide the issue” of
whether the provision of a neutral psychiatrist satisfies Ake). Because the Supreme
Court had also declined to hear Granviel the year before, the issue remained unresolved
in this circuit.
No. 09-6171        Miller v. Colson                                               Page 11


       Our decisions subsequent to Kordenbrock reached different conclusions about
the constitutional right to independent psychiatric assistance. In 2003, a panel of our
court concluded “that an indigent criminal defendant’s constitutional right to psychiatric
assistance in preparing an insanity defense is not satisfied by court appointment of a
‘neutral’ psychiatrist.” Powell, 332 F.3d at 392. The same year, however, a different
panel of our court deemed this language to be dicta and concluded Ake was satisfied by
the appointment of a neutral psychiatrist. Smith v. Mitchell, 348 F.3d 177, 208 n.10 (6th
Cir. 2003). In 2006, a third panel revived the Powell rule, noting that “this court has
extended Ake to require an ‘independent’ psychiatrist rather than a neutral,
court-appointed psychiatrist when a defendant’s mental health is in issue.” Carter,
443 F.3d at 526.

       This examination of our own precedent indicates that, while a defendant is today
entitled in this circuit to independent psychiatric assistance, this is a right that has
developed in the wake of Ake and was not established by Ake itself. Even in the cases
that acknowledge the right to independent psychiatric assistance, this court’s decisions
have framed this right as an extension of Ake, not as a rule established by the Supreme
Court’s own precedent. See Carter, 443 F.3d at 526 (noting Powell “extended Ake”);
Powell, 332 F.3d at 392 (“Today, we join those circuits that have held that an indigent
criminal defendant’s constitutional right to psychiatric assistance in preparing an
insanity defense is not satisfied by court appointment of a ‘neutral’ psychiatrist . . . .”
(emphasis added)); see also Smith, 348 F.3d at 208 n.10 (“Ake did not hold that due
process requires the State to provide an independent psychiatrist, merely a competent
one. The [Powell] panel’s holding is an extension of Ake.” (internal quotation marks
omitted)). And our failure to resolve the issue in Kordenbrock shows that the scope of
Ake was murky even years after the Supreme Court issued its decision in that case.

       The limited inquiry by the Ake Court, the subsequent circuit split that developed
in the wake of Ake, the Supreme Court’s decision not to resolve the circuit split, and our
own conflicted jurisprudence about the constitutional right to independent psychiatric
assistance all guide us to one inevitable conclusion: even if Ake were relevant, Ake did
No. 09-6171          Miller v. Colson                                                         Page 12


not represent “clearly established federal law” requiring the provision of independent,
non-neutral psychiatric assistance. The Tennessee court did not act unreasonably in
limiting Miller’s psychiatric assistance to Dr. Gee. We affirm the district court’s
decision denying Miller’s petition for habeas relief on this ground.

                                                 IV.

        Miller’s second claim is that the jury instruction on the subject of malice was
unconstitutional and did not amount to harmless error.7 This issue was addressed by the
Tennessee Criminal Court of Appeals during Miller’s petition for post-conviction relief.
The state court found that the instructions given by the trial court impermissibly shifted
the burden of proof to Miller, in violation of Sandstrom v. Montana, 442 U.S. 510
(1979). Miller v. State, No. 03C01-9805-CR-00188, 1999 WL 1046415, at *4–5 (Tenn.
Ct. Crim. App. Nov. 19, 1999). However, applying harmless error analysis, the court
concluded that the Sandstrom error did not compel setting the conviction aside. Id. at
*5. The Tennessee Supreme Court affirmed the appellate court’s decision without
further comment on the Sandstrom issue. Miller v. State, 54 S.W.3d 743, 748 (Tenn.
2001). These decisions are entitled to AEDPA deference.

        We have previously found, and the warden concedes, that the presumption-of-
malice instruction given in this case violated Sandstrom. Caldwell v. Bell, 288 F.3d 838,
841 (6th Cir. 2002); Houston v. Dutton, 50 F.3d 381, 385 (6th Cir. 1995). After a jury
instruction is found to be unconstitutional, the court must then conduct a harmless-error
analysis. Caldwell, 288 F.3d at 842. “[A]n error is not to be deemed harmless if it had
a ‘substantial or injurious effect or influence in determining the jury’s verdict.’” Id.
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). This court, however, “may
not grant [Miller]’s habeas petition . . . if the state court simply erred in concluding that



        7
          The trial court issued the following jury instruction regarding malice:
        Malice is an essential ingredient of murder, and it may be either expressed or implied.
        . . . If the State proves beyond a reasonable doubt that a killing has occurred, it is
        presumed to be malicious unless rebutted by other facts and circumstances to the
        contrary. . . . The use of a deadly weapon by the party killing, when shown, raises a
        presumption of malice sufficient to sustain a charge of second degree murder unless it
        is rebutted by other facts and circumstances to the contrary.
No. 09-6171         Miller v. Colson                                                Page 13


the State’s errors were harmless; rather, habeas relief is appropriate only if the [state
court] applied harmless-error review in an ‘objectively unreasonable’ manner.” Mitchell
v. Esparza, 540 U.S. 12, 18 (2003).

        Under Tennessee state law, malice is defined as an “intent to do harm or cause
injury to another, but not necessarily to cause death.” Welch v. State, 836 S.W.2d 586,
591 (Tenn. Crim. App. 1992). The state court concluded that the evidence presented at
Miller’s trial overwhelmingly showed a finding of “ill will” indicating malice:

        [t]he proof shows that [Miller] killed the victim by striking her twice
        with great force with a fire poker and indicates those blows were so hard
        they bent the poker. Prior to this, [he] had handled the victim with
        sufficient roughness to bruise her arms and legs. Further, [Miller]
        inflicted multiple lacerations of great force on the victim. The evidence
        clearly supports a finding of “ill will.”

Miller, 1999 WL 1046415, at *5. This assessment seems entirely reasonable. The
physical evidence presented of the killing—indicating that Standifer was killed with
immense force and that some of the blows were given by using a hammer-like object to
drive the knife into the victim—leads to the conclusion that the murder was committed
with an intent to do harm. The government also presented Miller’s post-arrest statement
in which he admitted hitting Standifer. This statement indicates that at least some of the
blows were maliciously inflicted.

        Miller argues that harmless error cannot be proven because the evidence as to his
“mental state” was in question; essentially, he tries to argue that he lacked the ability to
form the requisite intent. In support, Miller points to evidence suggesting that he was
under the influence of LSD and alcohol at the time of the crime. The state court
dismissed this argument by noting that the jury had explicitly rejected intoxication as an
affirmative defense and that the physical evidence overwhelmingly indicated evidence
of malice. Id. Again, this assessment seems entirely reasonable. While there was
testimony that Miller had taken alcohol and narcotics on the day in question, there was
also testimony at trial that he appeared cogent, indicating his ability to form the requisite
intent. Moreover, the physical evidence indicated that Miller had used a piece of rope
No. 09-6171         Miller v. Colson                                                 Page 14


to drag the body from the house in order to hide it, had hidden his bloodied shirt in the
backyard, had tried to clean up the murder scene, and had lied to Thomas, the
homeowner, about the source of the blood in the house (Miller claimed he received a
bloody nose in a fight). This evidence strongly indicates that Miller was in control of
his senses at the time of the crime and was aware of what was occurring; it seems
exceedingly improbable that he could have “los[t] contact with reality,” as Miller claims
he had, and yet have acted so deliberately to hide evidence of the crime.

        Based on these facts, it was reasonable for the state court to conclude that the
evidence of Miller’s intoxication was insufficient for a jury to conclude that he lacked
the intent to kill or seriously injure. It was therefore also reasonable for the state court
to conclude that the court’s errant jury instruction regarding malice was harmless. As
a result, the district court was correct to reject Miller’s petition for habeas corpus on this
ground.

                                             V.

        For the reasons stated above, we affirm the decision of the district court, and
Miller’s petition for the writ of habeas corpus is denied.
No. 09-6171           Miller v. Colson                                          Page 15


                                       ______________

                                          DISSENT
                                       ______________

       HELENE N. WHITE, Circuit Judge, dissenting. Because I am unable to
conclude that the Sandstrom1 error was harmless, I respectfully dissent from sections IV
and V of the majority opinion.

       During Miller’s trial, the court instructed the jury with respect to first- and
second-degree murder as follows:

       The indictment in this case charges the defendant with the offense of
       murder in the first degree. This charge, however, embraces four distinct,
       felonious homicides, namely: Murder in the first degree; murder in the
       second degree; voluntary manslaughter; and involuntary manslaughter.
       ...
       An individual commits murder in the first degree, as charged in this case,
       if he commits a willful, deliberate, malicious and premeditated killing.

       For you to find the defendant guilty of murder in the first degree, the
       State must prove beyond a reasonable doubt:
       (1) That the defendant unlawfully killed the alleged victim.
       (2) That the killing was malicious.
       (3) That the killing was willful. This means that the defendant must have
       intended to take the life of the alleged victim.
       (4) That the killing was deliberate; that is, with cool purpose.
       (5) That the killing was premeditated, premeditation being the principal
       element of this offense. This means that the intent to kill must have been
       formed previous to the act itself.
       ...
       If you find from your consideration of all the evidence that the State has
       proven each of the elements of first degree murder beyond a reasonable
       doubt, then you should find the defendant guilty of first degree murder.

       If on the other hand you find that the State has not proven each of the
       elements of first degree murder beyond a reasonable doubt, then you will
       proceed to inquire whether the defendant is guilty of the lesser included
       offense of murder in the second degree.


       1
           Sandstrom v. Montana, 442 U.S. 510 (1979).
No. 09-6171            Miller v. Colson                                                       Page 16


       An individual commits murder in the second degree if he commits a
       malicious killing. For you to find the defendant guilty of the lesser
       included offense of murder in the second degree, the State must prove
       beyond a reasonable doubt:
       (1) That the defendant unlawfully killed the alleged victim.
       (2) That the killing was malicious.

       Malice is an essential ingredient of murder, and it may be either express
       or implied. Express malice is actual malice against the party slain.
       Implied malice is not malice against the slain, but malice in general, or
       that condition of mind which indicates a wicked, deprived and malignant
       spirit, and a heart regardless of social duty and fatally bent on mischief.
       If the state proves beyond a reasonable doubt that a killing has occurred,
       it is presumed to be malicious unless rebutted by other facts and
       circumstances to the contrary.
       ...
       The use of a deadly weapon by the party killing, when shown, raises a
       presumption of malice sufficient to sustain a charge of second degree
       murder, unless it is rebutted by other facts and circumstances to the
       contrary.

       You should look to all the facts and circumstances developed by the
       evidence in this case to determine whether the State has proved beyond
       a reasonable doubt the existence of malice.

(Emphasis added).

       The government concedes that the italicized instruction, which allowed the jury
to presume the element of malice, is erroneous.2 Miller sought post-conviction relief in
the Tennessee Court of Criminal Appeals based on the Sansdstrom error on three
grounds: 1) there was no evidence of his ill will in general or specifically towards the
victim; 2) evidence of intoxicants negated the specific intent of express malice; and
3) evidence of insanity raised a jury question about Miller’s specific intent. Miller v.
State, 1999 WL 1046415, at *4 (Tenn. Crim. App. Nov. 19, 1999). That court rejected
Miller’s arguments for the following reasons:




       2
           This type of erroneous instruction is commonly referred to as a Sandstrom error.
No. 09-6171         Miller v. Colson                                               Page 17


        On the petitioner’s previous direct appeal to our state’s Supreme Court,
        that Court found “no evidence introduced by either the State or the
        defendant sufficient to raise a reasonable doubt as to defendant’s sanity,
        unless it be said that atrocious, brutal acts inflicted upon Standifer [the
        victim], in and of themselves, were sufficient to do so.” State v. Miller,
        674 S.W.2d 279, 282 (Tenn. 1984). Further, the trial court approved the
        jury verdict rejecting intoxication as negating premeditation, and the
        Supreme Court found no reason to overturn that finding. See id. at 282-
        83.
        We are also not persuaded by the petitioner’s assertion regarding ill will.
        “Malice has been defined as an intent to do harm or cause injury to
        another,” Welch v. State, 836 S.W.2d 586, 591 (Tenn. Crim. App. 1992),
        and the evidence clearly supports finding of such intent. The proof
        shows that the petitioner killed the victim by striking her twice with great
        force with a fire poker and indicates those blows were so hard they bent
        the poker. Prior to this, the petitioner had handled the victim with
        sufficient roughness to bruise her arms and legs. Further, the petitioner
        inflicted multiple lacerations of great force on the victim. The evidence
        clearly supports a finding of “ill will.”

Id. at *5.

        Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the
pertinent question is whether the foregoing analysis by the Tennessee Court of Criminal
Appeals was either contrary to, or an unreasonable application of, the Supreme Court’s
harmless-error standard outlined in Chapman v. California, 386 U.S. 18, 24 (1967). See
Wilson v. Mitchell, 498 F.3d 491, 503 (6th Cir. 2007). “Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the state court identifies
the correct governing legal principle from this Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S.
362, 413 (2000). In this Circuit, a finding that the error had a substantial and injurious
effect or influence in determining the jury’s verdict necessarily means that the state court
unreasonably applied the harmless error standard.            Wilson, 498 F.3d at 503.
Additionally, “[e]ven if there is only grave doubt about whether a trial error of federal
law has substantial and injurious effect or influence in determining the jury’s verdict,
that error is not harmless.” Campbell v. Bradshaw, 2012 WL 913788, at *14 (6th Cir.
Mar. 20, 2012) (internal quotation and citations omitted). “To determine the effect of
No. 09-6171        Miller v. Colson                                               Page 18


an error, the question to be answered is ‘whether the guilty verdict actually rendered in
this trial was surely unattributable to that error.’” Doan v. Carter, 548 F.3d 449, 459
(6th Cir. 2008) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).

       I first note that although the Tennessee Court of Criminal Appeals correctly
determined that Sandstrom errors are subject to harmless-error analysis, see Miller, 1999
WL 1046415 at *4, the court performed no such analysis. For Miller’s first two
arguments, the court simply cited the reasoning of the Tennessee Supreme Court over
a decade earlier with no discussion of harmlessness. With respect to Miller’s argument
regarding ill will, the court utilized a sufficiency-of-the-evidence analysis without
considering whether the erroneous presumption had any effect on the jury’s verdict. We
have previously rejected the contention that sufficient evidence as to a particular element
automatically renders an erroneous jury instruction harmless. In Houston v. Dutton,
notwithstanding the fact that the circumstantial evidence supported an inference of
premeditation and deliberation, we explained:

       The fact that the evidence was sufficient to allow a jury to convict, of
       course, does not end the matter. The judge’s instructions to the jury as
       to the law and how the evidence should be assessed are crucial to a fair
       trial. They should guide the jury’s deliberations and are not mere
       technicalities in our legal system. Errors in such matters may go to the
       heart of the question of guilt.

50 F.3d 381, 385 (6th Cir. 1995).

       The defendant in Houston stood trial in a Tennessee state court for the murder
of a gas-station attendant during a robbery. The defendant claimed that the shooting was
an accident that occurred when the defendant and victim were both struggling for the
gun. The court gave the same erroneous instruction at issue in this case. During closing
argument, the prosecutor stated that:

       [A]nybody that goes down there and arm robs a human being with a
       deadly weapon and then shoots them in whatever fashion is guilty of
       First Degree Murder, of premeditated, malicious, deliberate, willful,
       unlawful premeditated murder.
No. 09-6171         Miller v. Colson                                               Page 19


The defendant was convicted of first-degree murder. On habeas review, we rejected the
State’s contention that because the jury had independently found the elements of
premeditation, deliberation and willfulness, all elements inconsistent with accident, the
Sandstrom error was harmless. Instead, we agreed with the defendant’s argument that:

        [T]he malice instruction had the effect of telling the jury to presume that
        the killing was subjectively contemplated beforehand-and thus that the
        killing was not accidental—[which] utterly wiped out [the defendant’s]
        single and, on the evidence, substantial accident defense. Because
        accident would have negated not only malice but also willfulness,
        premeditation, and deliberation, removing the accident defense
        unconstitutionally left [the defendant] with no defense, and paved the
        way to a finding of all four mental elements.

Houston, 50 F.3d at 386.

        We also had an opportunity to consider the harmlessness of a similar instruction
in Caldwell v. Bell, 288 F.3d 838 (6th Cir. 2002). In Caldwell, the defendant confessed
to shooting the victim but claimed he was provoked and “went crazy” because the victim
made homosexual advances toward him and slapped whiskey into his eye. The jury was
given an erroneous presumption-of- malice instruction that read, “[w]hen the defendant
is shown to have used a deadly weapon, and death is clearly shown to have resulted from
its use, it is a presumption of law that the killing was done maliciously, that is, with the
malice necessary to support a conviction of murder in the second degree.” Id. at 843.
During closing argument, the prosecutor stated with respect to malice that “not only does
it come—can it come from the use of a weapon, . . .” but that “[b]lowing away a human
being . . .[is] the definition, the embodiment of the word malice.” We concluded that
erroneous instruction was not harmless because:

        Once the jury was instructed to presume malice, it would have been
        ‘substantially swayed’ to reject the defense’s theory of the killing that
        there was adequate provocation to produce a verdict of manslaughter.
        This left it with only the prosecution’s theory of the killing: that it was
No. 09-6171           Miller v. Colson                                                       Page 20


        first-degree murder. Thus, the instruction substantially and injuriously
        affected the verdict, resulting in prejudice to the petitioner.[3]

        During his trial, Miller argued both that the State had not proven the element of
premeditation and that the LSD that he ingested hours prior to the killing negated any
intent to kill Standifer. In closing argument, the prosecutor stated:

        When you talk about malice, what would it take? As the pathologist
        said, consistent with the jaw injury and the heart injury, what would it
        take for somebody to take a hammer that’s found near the clothes of the
        victim, to take this hammer and to drive a sharp object into a person’s
        body? What type of mind would that take? I don’t know. But I contend
        to you that it took the mind of an obsessed killer. David Earl Miller, not
        only has the grand jury indicted you for first-degree murder, but the
        evidence in this case clearly shows your guilt and you must suffer the
        consequences.
        ...
        And, ladies and gentlemen, those are the factors that I ask you to look at
        very closely. And I’ve attempted to illustrate to you the evidence as I see
        it in the case very fairly . . . I think that’s what you’ll find the evidence
        to be. And that’s what we mean when we say premeditation, willful,
        deliberate, and malicious killing.

Although the prosecutor vigorously advocated for a first-degree murder conviction on
the basis that Miller had the mind of an “obsessed killer,” Miller’s state of mind was a
highly contested issue throughout the trial with considerable evidence supporting
Miller’s defense of intoxication.           After closing argument, the jury received its
instructions. As in Houston, once the jury received the erroneous instruction it no longer
had to consider whether the evidence demonstrated Miller had the mind of an obsessed
killer. Rather, the jury could just presume that Miller’s state of mind encompassed the
actual intent to harm Standifer or a “condition . . . which indicates a wicked, deprived
and malignant spirit, and a heart regardless of social duty and fatally bent on mischief.”
In Caldwell we pointed out that:


        3
          Although neither Houston or Caldwell required us to use the deferential standard of review in
AEDPA, both cases were analyzed under the Brecht “substantial and injurious effect or influence”
harmless error standard and thus are pertinent to our review here. See Fulcher v. Motley, 444 F.3d 791,
822 (6th Cir. 2006) (“This Court has held that the Brecht standard survived the enactment of AEDPA”).
No. 09-6171        Miller v. Colson                                               Page 21


        [T]he prosecutor, just before the instruction was given, had just argued
       to the jury to convict for first degree murder because the use of a deadly
       weapon is the “embodiment of the word malice.” Hence most normal
       jurors would think that the use of a deadly weapon gives rise to the
       inference of intent to kill. At least it is unreasonable to think that some
       jurors did not believe that the use of a deadly weapon was equivalent to
       an intent to kill after listening to both the judge’s instructions and the
       prosecutor’s argument.

288 F.3d at 844 (emphasis added).

       Similarly, because the prosecutor in this case intertwined the other elements of
first-degree murder into his closing discussion of malice there is a strong likelihood that
once the jury was told to presume malice from the killing itself and Miller’s use of a
deadly weapon, it presumed the other elements of first-degree murder as well. In
addition to preventing the jury from considering Miller’s argument that the State had not
proven premeditation, with intent already presumed, the jury no longer needed to
consider whether Miller lacked the capacity to form the requisite intent due to his
intoxication. The presumption thus effectively foreclosed Miller’s primary defenses.
Under these circumstances, I conclude that the Sandstrom error had a substantial and
injurious effect on the jury’s verdict. For that reason, I would reverse the judgment of
the district court and grant Miller’s habeas petition.
