Varner v. Stovall

Decision Date11 September 2007
Docket NumberNo. 06-1255.,06-1255.
Citation500 F.3d 491
PartiesJanniss VARNER, Petitioner-Appellant, v. Clarice STOVALL, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James Sterling Lawrence, Royal Oak, Michigan, for Appellant. Debra M. Gagliardi, Office of the Attorney General, Lansing, Michigan, for Appellee.

ON BRIEF:

James Sterling Lawrence, Royal Oak, Michigan, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: GIBBONS and SUTTON, Circuit Judges; BECKWITH, Chief District Judge.*

OPINION

SUTTON, Circuit Judge.

A jury convicted Janniss Varner of assault with intent to commit murder after she hired a third party to shoot her abusive boyfriend. In her federal habeas petition, she claimed that the state courts (1) violated her rights under the Religion Clauses of the First and Fourteenth Amendments by admitting into evidence several journal entries that included prayers and an acknowledgment that she had tried to kill her boyfriend and (2) violated her Sixth and Fourteenth Amendment rights by refusing to allow her to introduce evidence of Battered Women's Syndrome in support of her theories of self-defense and provocation. Because she has not shown that the state courts unreasonably applied relevant Supreme Court precedent we affirm the district court's denial of the petition.

I.

On November 27, 1995, Varner attempted to murder her abusive boyfriend, Alvin Knight, by hiring a third party to kill him. Knight arrived at Varner's mother's home that morning to pick up his young son. Varner's mother told him to go to the garage, where a man came up from behind Knight and "started shooting at him." JA 196. Knight wrestled the gun away from the man and turned it over to the police. Knight could not identify the shooter.

Two-and-a-half years later, someone shot and killed Knight outside of his apartment complex. Police searched Knight's apartment for clues to the murder and uncovered Varner's journals linking her to the 1995 shooting. The journals identified the gunman of the 1995 shooting and disclosed Varner's responsibility for arranging the attempted murder. The journals also revealed that Knight had raped, choked and abused her in the past and noted that, two days prior to the shooting, "[h]e raped me and tied me up for three hours." JA 226. Her entries also expressed her wish that Knight had died in 1995, her lack of remorse for her actions and her determination to kill him in the future. The entries often were addressed "Dear God," see JA 122-28, sometimes contained prayers of supplication and thanks, see JA 128 ("Lord, give me guidance and insight concerning what I need to do. . . ."); JA 213 ("Lord I do thank you for helping me. God I thank you for saving me and keeping me in my right mind."), and in places expressed her disillusionment with organized religion and church services, see JA 126-27.

Varner was charged with and convicted of assault with intent to commit murder for her involvement in the 1995 shooting. At trial, the court admitted into evidence excerpts from her journals but denied her proffer of expert testimony on Battered Women's Syndrome to support her theories of self-defense and provocation and denied a mitigation instruction on provocation, reasoning that theories of self-defense and provocation are not available in cases involving "hired" third-party shootings. Varner received a sentence of 13 to 20 years' imprisonment for her conviction. The Michigan Court of Appeals affirmed her conviction and the Michigan Supreme Court denied leave to appeal.

After denying her federal habeas petition, the district court granted her a certificate of appealability on two issues: (1) whether her rights under the Religion Clauses of the First Amendment were violated when the state court admitted her private journal entries and (2) whether her due-process right "to present a defense based upon provocation and self-defense was curtailed improperly." JA 120.

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may grant Varner's habeas petition only if the state court rulings were "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); see Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A.

Varner argues that the state courts' application of Michigan's clergy-penitent evidentiary privilege violated her rights under the Religion Clauses of the First (and Fourteenth) Amendment"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. In doing so, she makes the following four-step argument. Step one: Michigan has created an evidentiary privilege for religious communications. Step two: the privilege applies only to religions that encourage their members to communicate with God through an intermediary. Step three: this limitation discriminates among religions because it disfavors belief systems in which individuals communicate directly with God. Step four: the solution to this First Amendment problem is not to strike the privilege (which would not benefit Varner) but to extend it to all religions, including those that do not use intermediaries, and thus to extend the privilege to any journal entry that might be construed as a prayer to God.

While we accept some of the premises of Varner's argument, we cannot accept her conclusion. A State, it is true, may not "enact [] laws that have the purpose or effect of advancing or inhibiting religion," Zelman v. Simmons-Harris, 536 U.S. 639, 648-49, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (internal quotation marks omitted); see McCreary County v. ACLU, 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). And a State, it is also true, may not "officially prefer []" "one religious denomination . . . over another," Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), a requirement that has roots in the Establishment and Free Exercise Clauses, see id. at 244-45, 102 S.Ct. 1673; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). But the clergy-penitent privilege was never designed to apply to private journal entries, and the confinement of the privilege to its historic purposes does not offend these or any other requirements of the Religion Clauses of the First Amendment.

Recognized as early as the fifth century, the clergy-penitent privilege "originated" with the "Catholic sacrament of Penance," though it "fell into desuetude after the Reformation." Cox v. Miller, 296 F.3d 89, 102 (2d Cir.2002). In the earliest known American case concerning the privilege, a New York court recognized a nonstatutory privilege resting in the clergy person, who is caught "between Scylla and Charybdis": "If he tells the truth he violates his ecclesiastical oath — If he prevaricates he violates his judicial oath. . . . The only course is, for the court to declare that he shall not testify or act at all." People v. Phillips (N.Y. Ct. Gen. Sess. 1813), reprinted in Privileged Communications to Clergymen, 1 Cath. Law. 199, 201, 203 (1955); see Developments in the Law — Privileged Communications, 98 Harv. L.Rev. 1450, 1556 (1985). Today every State has enacted some form of the clergy-penitent privilege. 1 McCormick on Evid. § 76.2 (6th ed.). Although the scope of the privilege varies from State to State, see Cox, 296 F.3d at 102, all States at a minimum "require that the communications be made in private, with an expectation of confidentiality, to a minister in his or her professional capacity as a member of the clergy." R. Michael Cassidy, Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, 44 Wm. & Mary L.Rev. 1627, 1645 (2003) (citations omitted).

Michigan has codified its clergy-penitent privilege, which appears in two statutes. One says: "Any communications . . . between . . . members of the clergy and the members of their respective churches . . . are hereby declared to be privileged and confidential when those communications were necessary to enable the . . . members of the clergy . . . to serve as such . . . member of the clergy. . . ." Mich. Comp. Laws § 767.5a(2). The other says: "No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination." Id. § 600.2156.

One of the two statutes, section 767.5a, does not apply just to religious communications. By its terms, it also applies to communications "between attorneys and their clients . . . and between physicians and their patients." Id. § 767.5a(2). The statute thus operates in secular and sectarian settings linked by a common purpose — the everlasting need of the individual to seek spiritual and worldly assistance from others on a confidential basis. See Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) ("The privileges between priest and penitent, attorney and client, and physician and patient . . . are rooted in the imperative need for confidence and trust."); In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir.1990) ("[T]he privilege protecting communications to members of the clergy, like the attorney-client and physician-patient privileges, is grounded in a policy of preventing disclosures that would tend to inhibit the development of confidential relationships that are socially desirable.").

Just as the clergy-penitent privilege protects "the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed...

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