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Leonard v. Warden, Ohio State Penitentiary

United States Court of Appeals, Sixth Circuit

January 23, 2017

Patrick Leonard, Petitioner-Appellant,
v.
Warden, Ohio State Penitentiary, Respondent-Appellee.

          Argued: October 20, 2016

         Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:09-cv-00056-Susan J. Dlott, District Judge.

         ARGUED:

          Nadia 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.

         ON BRIEF:

          Sharon A. Hicks, Jacob A. Cairns, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus, Ohio, for Appellant.

          David M. Henry, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

          Before: CLAY, McKEAGUE, and KETHLEDGE, Circuit Judges.

          OPINION

          CLAY, Circuit Judge.

         Petitioner 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 court's order.

         BACKGROUND

         Factual Background

         In its 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 into custody.
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 handcuffs.
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 penetrated Flick.
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] [2]), and kidnapping in Count Six (R.C. 2905.01[A] [2]).
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 taken seriously.
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 2004).

         Procedural History

         On 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.

         Leonard 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).

         In 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 (2008).

         On July 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.

         DISCUSSION

         I. ...


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