Argued: October 20, 2016
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:09-cv-00056-Susan J.
Dlott, District Judge.
V. Wood, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus,
Ohio, for Appellant.
Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
A. Hicks, Jacob A. Cairns, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbus, Ohio, for Appellant.
M. Henry, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
Before: CLAY, McKEAGUE, and KETHLEDGE, Circuit Judges.
Patrick Leonard, who was convicted and sentenced to death on
June 28, 2001, appeals the order of the district court
denying his petition for a writ of habeas corpus, which he
had sought pursuant to 28 U.S.C. § 2254. For the reasons
that follow, we AFFIRM the district
decision affirming Leonard's conviction and sentence on
direct appeal, the Ohio Supreme Court described the facts
giving rise to this case as follows:
On July 29, 2000, Patrick T. Leonard, defendant-appellant,
followed Dawn Flick, his former fiancée, while she was
driving her car, forced her to a stop, and ordered her to
return to her home. Leonard followed Flick to her house, and,
once inside, Leonard handcuffed Flick, attempted to rape her,
and then shot her three times in the head. Leonard was
convicted of the aggravated murder, attempted rape, and
kidnapping of Flick and was sentenced to death.
Leonard and Flick became engaged in the fall of 1995. During
their engagement, Leonard fathered a son by Penny McBride.
Leonard and Flick ended their engagement in 1998 but
continued to date. Leonard also continued his relationship
with McBride. Approximately nine months before Flick was
murdered, a second child was born to Leonard and McBride.
Leonard tried to conceal from Flick and others that he was
the child's father.
The evidence presented at Leonard's trial indicated that
Flick had intended to end her relationship with Leonard. In
his confession, Leonard stated that he had a "broken
heart" because he was losing Flick. On Friday, July 28,
2000, the day before the murder, Leonard told Alvie Woods, a
friend of Leonard's and Flick's, that if he caught
Flick "fooling around" with anyone, Leonard would
kill somebody. According to Woods, Leonard had said,
"[I]f I can't have her, no one can."
Flick tended bar at her family's restaurant, Les
Flick's Home Like Inn, on the evening of July 28 and
early morning of July 29. After the restaurant closed for the
night, Flick drove to Snow's Lake Bar to meet some
friends. Leonard followed Flick and, according to his
confession, "got her to pull over." Leonard then
confronted Flick about her earlier statement that she would
be staying home for the evening. Leonard left Flick alone
after she agreed to call him when she returned home. When she
arrived at Snow's, Flick appeared upset, according to
Woods, Deborah Schroeder, and Reva Ketterer, and she told
them that Leonard had just run her car off the road.
When Snow's closed for the night, Flick planned to go to
the house of her friend, Ryan Gries. Leonard followed Flick
as she drove to Gries's house and again stopped her car.
Leonard ordered Flick to return to her home, and he followed
her there. Once inside, Leonard handcuffed her wrists.
Leonard then pointed a gun at Flick as she called to tell
Gries that she was not coming to his house. During their
telephone conversation, Gries was able to elicit from Flick
that she was with Leonard and was in danger.
Gries and his friend Frank Minges rushed to Flick's
house. When Leonard heard Gries's truck drive up, he shot
Flick three times in the head. He then fired through the
door, striking Gries in the chest. Gries and Minges left to
call the police, and Leonard fled in his truck.
Leonard then called a friend, Sergeant Nick Chaplin, a deputy
sheriff in Campbell County, Kentucky. Leonard told Chaplin
that he had shot and killed Flick, and he agreed to surrender
to Chaplin. Leonard drove to Kentucky, where he was taken
After being advised of his Miranda rights, Leonard
gave a taped statement confessing to Flick's murder. In
his confession, Leonard admitted that before shooting Flick,
he had restrained her with handcuffs. Leonard said that he
and Flick had talked about "making love [and had]
decided to do that on the floor." Leonard said that when
he had heard Gries's truck drive up, he jumped up off of
Flick, pulled his pants up, and shot Flick three times in the
head. Leonard also admitted having shot at Gries and Minges
through Flick's front door.
Police officers investigating the shooting found Flick's
partially clothed body lying in a pool of blood in her living
room. Flick's panties were down to her thighs, one pant
leg was completely off, the other pant leg was around her
calf, and one shoe was off. Her wrists were bound by
Dr. Robert Pfalsgraf, chief deputy coroner, determined that
the cause of death was a gunshot wound to the head. Flick had
been shot once in the face, once in the back of the head, and
once in the back of her neck at the hairline. The shot to the
back of Flick's head was fatal.
Pfalsgraf found no injuries to Flick's vagina or anus and
no semen in those areas. Pfalsgraf noted, however, that this
lack of evidence did not preclude a finding that Leonard had
Pfalsgraf also testified that the pattern of bruising on
Flick's wrists corresponded to the handcuffs found on her
wrists. Petechiae were found on her face and neck, indicating
ruptured blood vessels caused by strangulation. Flick also
had ligature bruising on her neck that matched the pattern of
the necklace she was wearing. Based on these injuries, the
coroner concluded that Flick had been strangled and had
struggled with her assailant while she was handcuffed.
Leonard was indicted on two counts of aggravated murder. The
first count charged Leonard with purposely causing
Flick's death while committing or attempting to commit
rape. R.C. 2903.01(B). The second count charged Leonard with
purposely and with prior calculation and design causing
Flick's death. R.C. 2903.01(A). Leonard was also indicted
for attempted murder in Counts Three and Four (R.C. 2903.02
and 2923.02), rape in Count Five (R.C. 2907.02[A] ), and
kidnapping in Count Six (R.C. 2905.01[A] ).
The aggravated-murder counts each contained two death-penalty
specifications. The first specification charged aggravated
murder as part of a course of conduct to kill or attempt to
kill two or more persons. R.C. 2929.04(A)(5). The second
specification charged aggravated murder during a rape or an
attempted rape. R.C. 2929.04(A)(7). Gun specifications were
included with all counts except Count Six, kidnapping.
At trial, the defense presented testimony from five witnesses
and other documentary evidence. Leonard did not testify.
During defense counsel's opening statement, counsel
conceded that Leonard had shot Flick. However, the
defense's theory was that Leonard had been trying to
salvage his relationship with Flick, had not intended to kill
her, and had not acted with prior calculation and design. The
defense also contested the charges of rape and kidnapping and
denied that Leonard had attempted to murder Gries and Minges.
The defense introduced evidence to show that Leonard had
purchased a planter with flowers from Renck's Garden
Center and had given it to Flick as a gift on the afternoon
before the murder.
Eddie Sayers, an employee of Sam's Corner Store in New
Baltimore, Ohio, testified that both Leonard and Flick had
been in the store the day before the murder: Leonard in the
morning, and Flick in the afternoon. Sayers testified that
Leonard had not seemed upset and that Flick had appeared
happy. On cross-examination, Sayers stated that he had not
seen Leonard and Flick together that day and admitted that he
did not know how Leonard acted later that day.
Rick Schoeny, a life-long friend of Leonard's, testified
that Leonard always had guns and carried a gun in his jacket.
Leonard's brother Ted testified that Leonard had
sometimes threatened to kill people when he was upset. Ted
noted, however, that this was "the way [Leonard] always
voiced his opinion" and that these threats were never
Other testimony indicated that Leonard and Flick had spent
time together in the days leading up to the murder and had
plans to go horseback riding the following day. In his
confession, Leonard claimed that he and Flick had begun to
engage in consensual sex before he shot her. He also said
that he "went blank" just before shooting her.
Leonard also confessed to having shot at Flick's front
door to keep Gries and Minges from entering the home.
Evidence at trial indicated that Leonard had fired only one
shot at the door.
State v. Leonard, 818 N.E.2d 229, 241-43 (Ohio
August 7, 2000, a grand jury in Hamilton County, Ohio
indicted Leonard on two counts of aggravated murder with
capital specifications, two counts of attempted murder, and
one count each of rape and kidnapping. Trial commenced on May
15, 2001. On May 24, 2001, the jury found Leonard guilty of
both counts of aggravated murder, one count of kidnapping,
one count of attempted rape, and two counts of felonious
assault. The jury acquitted Leonard of rape and both counts
of attempted murder; the attempted rape and felonious assault
convictions were for lesser included offenses. The penalty
phase of the trial began on May 29, 2001. On May 31, 2001,
the jury recommended a death sentence. The trial court
adopted the jury's recommendation and imposed a death
sentence on June 28, 2001.
appealed directly to the Ohio Supreme Court, which affirmed
his convictions and sentence in 2004. Leonard, 818
N.E.2d 229. In 2005, Leonard attempted to reopen his direct
appeal pursuant to Ohio S.Ct. Prac. R. XI. The Ohio Supreme
Court denied the application in a summary order on June 29,
2005. State v. Leonard, 830 N.E.2d 342 (Ohio 2005).
2002, while his direct appeal was being briefed to the Ohio
Supreme Court but before it was heard, Leonard initiated
post-conviction review proceedings in the state trial court.
On June 3, 2003, the trial court denied relief as to all
claims. The Ohio Court of Appeals affirmed the denial of
relief on all but Leonard's claim regarding the use of a
stun belt at trial, which it remanded for an evidentiary
hearing. State v. Leonard, 813 N.E.2d 50 (Ohio Ct.
App. 2004). The Ohio Supreme Court declined to accept further
appeal or cross-appeal. State v. Leonard, 821 N.E.2d
577 (Ohio 2005). After a lengthy evidentiary hearing, the
trial court on remand denied relief as to the stun belt
claim, and the Ohio Court of Appeals affirmed. State v.
Leonard, No. C-061025, 2007 WL 4562881 (Ohio Ct. App.
Dec. 31, 2007). The Ohio Supreme Court declined jurisdiction
and dismissed the appeal as not presenting any substantial
constitutional question. State v. Leonard, 889
N.E.2d 1025 (Ohio 2008). The United States Supreme Court
denied certiorari. Leonard v. Ohio, 555 U.S. 1075
8, 2009, Leonard filed a petition for habeas relief in the
United States District Court for the Southern District of
Ohio alleging some thirty grounds for relief. In March 2013,
the magistrate judge issued a report recommending that the
petition be denied. The warden raised no objections to the
magistrate judge's report and recommendation. Leonard
filed objections to the report and recommendation. In May
2014, the magistrate judge issued a supplemental report and
recommendation. Leonard filed objections. In May 14, 2015,
the district court issued an opinion and order in which it
adopted the magistrate judge's reports and
recommendations, overruled Leonard's objections, and
denied the petition. The district court certified nine claims
for appellate review: (1) whether the trial court's
decision to have Leonard wear a stun belt denied him a
fundamentally fair trial; (2) whether prosecutorial
misconduct throughout the guilt and penalty phases denied
Leonard a fundamentally fair trial; (3) whether trial counsel
labored under a conflict of interest and therefore denied
Leonard the effective assistance of counsel; (4) whether
trial counsel was ineffective during the guilt phase
concerning the failure to impeach Gries and Minges, the lack
of an investigation, and the failure to present
Hutcherson's testimony; (5) whether trial counsel was
ineffective during the penalty phase concerning the scope of
the mitigation investigation; (6) whether Ohio's death
penalty scheme provides a constitutionally adequate system of
appellate and proportionality review; (7) whether
Leonard's rape or attempted rape convictions were
supported by sufficient evidence and consistent with the
manifest weight of the evidence; (8) whether Ohio's
post-conviction process provides a constitutionally adequate
opportunity for review of federal constitutional claims; and
(9) whether Ohio's death penalty scheme is
unconstitutional. Judgment was entered that same day. Leonard
filed a timely appeal challenging the district court's
decisions on all counts except for his constitutional
challenge against the death penalty.