Leonard v. Warden, Ohio State Penitentiary

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0015p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PATRICK LEONARD, ┐

Petitioner-Appellant, │

│

> No. 15-3653

v. │

│

│

WARDEN, OHIO STATE PENITENTIARY, │

Respondent-Appellee. │

┘

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: October 20, 2016

Decided and Filed: January 23, 2017

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

_________________

COUNSEL

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.

_________________

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

No. 15-3653 Patrick Leonard v. Warden Page 2

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

No. 15-3653 Patrick Leonard v. Warden Page 3

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.

No. 15-3653 Patrick Leonard v. Warden Page 4

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.

No. 15-3653 Patrick Leonard v. Warden Page 5

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

No. 15-3653 Patrick Leonard v. Warden Page 6

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.

No. 15-3653 Patrick Leonard v. Warden Page 7

DISCUSSION

I. Standard of Review

We review a district court’s grant or denial of a petition for a writ of habeas corpus de

novo. Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012). The district court’s findings of

fact are reviewed for clear error and its legal conclusions on mixed questions of law and fact are

reviewed de novo. Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th Cir. 2014). Leonard filed his

habeas corpus petition in July 2009, so it is subject to the requirements of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), which became effective on April 24, 1996.

See Keeling v. Warden, 673 F.3d 452, 458 (6th Cir. 2012). 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 of the United States; 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 proceeding.

28 U.S.C. § 2254(d). A federal habeas court may grant the writ under the “contrary to” clause

“if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law, or if the state court decides a case differently than the Supreme Court on a set of

materially indistinguishable facts.” Van Tran v. Colson, 764 F.3d 594, 604 (6th Cir. 2014)

(citing Brown v. Payton, 544 U.S. 133, 141 (2005)). “Under the ‘unreasonable application’

clause, a federal habeas court may grant the writ if the state court identifies the correct governing

legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the

facts of the petitioner’s case.” Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007) (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)). “[R]elief is available under § 2254(d)(1)’s

unreasonable-application clause if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no fair-minded disagreement on the question.”

White v. Woodall, 134 S. Ct. 1697, 1706–07 (2014). “[T]he habeas petitioner has the burden of

rebutting, by clear and convincing evidence, the presumption that the state court’s factual

findings were correct.” Henley, 487 F.3d at 384 (citing 28 U.S.C. § 2254(e)(1)).

No. 15-3653 Patrick Leonard v. Warden Page 8

II. The Requirement to Wear a Stun Belt

Leonard’s first ground for habeas relief concerns the use of a stun belt at trial, which he

was made to wear beneath his clothes. Leonard contends that the trial court’s order requiring

him to wear a stun belt throughout trial without conducting an individualized determination of

dangerousness denied him due process. Prior to trial, counsel for Leonard filed motions with the

trial court requesting that Leonard be able to appear without restraints and in civilian clothing.

Without conducting an individualized determination assessing the necessity of such restraints,

the trial court adopted the recommendation of the sheriff’s department and required Leonard to

wear a stun belt. Throughout trial, Leonard wore a stun belt strapped to his lower back, over

which he wore a large blue button-down shirt.

Leonard first attacked the constitutionality of the Ohio trial court’s decision to compel

him to wear a stun belt in his post-conviction petition with the Ohio state court. After the trial

court denied relief, the Ohio Court of Appeals remanded on this issue. On remand the trial court

held a lengthy evidentiary hearing and determined that the stun belt was at most visible to the

jury for twelve seconds throughout the multi-day trial; and even then only in the form of an

unidentified bulge revealed through his shirt. The trial court found no indication that the jury

was aware that the bulge was in fact a stun belt. Nor did the court find that the stun belt had any

impact upon Leonard’s ability to communicate with counsel or assist in his own defense.

On appeal, the Ohio Court of Appeals affirmed the decision on a separate basis finding that

“[t]he record of the hearing provides competent and credible evidence to support the common

pleas court’s conclusion that the circumstances surrounding Leonard’s trial demonstrated a

compelling need for exceptional security in the form of a stun belt.” Leonard, 2007 WL

4562881, at *3.

In Holbrook v. Flynn, the Supreme Court set forth the guidelines for a federal court to

review a challenge to extraordinary security measures undertaken during a criminal trial:

All a federal court may do in such a situation is look at the scene presented to

jurors and determine whether what they saw was so inherently prejudicial as to

pose an unacceptable threat to defendant’s right to a fair trial; if the challenged

practice is not found inherently prejudicial and if the defendant fails to show

actual prejudice, the inquiry is over.

No. 15-3653 Patrick Leonard v. Warden Page 9

475 U.S. 560, 572 (1986). Addressing the use of physical restraints on a criminal defendant

during trial, the Supreme Court held in Deck v. Missouri that “the Constitution forbids the use of

visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that

use is ‘justified by an essential state interest’ . . . such as the interest in courtroom security—

specific to the defendant on trial.” 544 U.S. 622, 624 (2005). On the basis of Deck, Leonard

contends that the trial court deprived him of his right to a fair trial by failing to perform an

individualized determination prior to forcing him to wear restraints. We disagree.

At the outset, we note that the Ohio Court of Appeal’s legal analysis was incorrect with

respect to the trial court’s decision to compel Leonard to wear restraints. The Constitution

mandates an individualized assessment in every case prior to the imposition of visible restraints

upon a defendant. For purposes of this appeal, however, “visible” marks the key inquiry for us

because a claim based on Deck “rises or falls on the question of whether the stun belt was visible

to the jury.” Earhart v. Konteh, 589 F.3d 337, 349 (6th Cir. 2009); see also Mendoza v.

Berghuis, 544 F.3d 650 (6th Cir. 2008) (denying relief where the petitioner’s shackles were

rendered invisible to the jury by brown paper surrounding counsel table). Earhart reasoned that

if the stun belt were “a visible restraint, due process mandates an individualized finding of

necessity before the state courts could require” its use, but if it were not visible, “there is not a

violation of clearly established federal law sufficient to grant the writ.” 589 F.3d at 349 (citing

Mendoza, 544 F.3d at 654). Earhart rejected the petitioner’s assertion that the stun belt had been

visible to the jury where the state appellate court had found as a factual matter that the belt was

not visible, and denied relief on this claim. Id.; see also Adams v. Bradshaw, 826 F.3d 306, 317

(6th Cir. 2016) (“Here, at least in the guilt phase, there is no evidence that the jury knew that [the

petitioner] was wearing a stun belt”).

Even though the Ohio Court of Appeals appears to have incorrectly framed the issue, it

did not disturb the findings of the post-conviction trial court, which found no evidence that the

jury actually saw the stun belt, much less recognized it as a restraint. Accordingly, Leonard still

cannot establish grounds for relief under AEDPA. In reviewing the pooled video evidence and

the affidavit testimony from the state trial court, we see no basis for overturning the trial court’s

factual findings. The bulge created by a stun belt appears to have been at most only momentarily

No. 15-3653 Patrick Leonard v. Warden Page 10

visible. Nor do we find any indication, and certainly are not convinced by the evidence put

forward by Leonard, that a jury—absent pure speculation—could have realized that this bulge

constituted a restraint. Absent such evidence, we conclude that Leonard’s stun belt was not a

visible restraint. Conversely, we cannot find any Supreme Court precedent that speaks to the

psychological impact of non-visible restraints and their interference with a defendant’s ability to

present a fair defense. Consequently, Leonard has not established an unreasonable application of

clearly established federal law.

Moreover, even assuming that any restraints were visible to the jury, this Court has

previously engaged in harmless error review, affirming sentences when evidence of guilt is

“overwhelming.” Lakin v. Stine, 431 F.3d 959, 966 (6th Cir. 2005) (shackles created

constitutional violation but any error was harmless in light of overwhelming evidence of guilt);

Robinson v. Gundy, 174 F. App’x 886, 893 (6th Cir. 2006) (same). Overwhelming evidence,

including Leonard’s own confession and evidence collected from the crime scene, supported the

convictions here. Accordingly, this claim for relief was properly denied.

III. Trial Counsel’s Conflict of Interests

Leonard contends that he was denied his Sixth Amendment right to conflict-free counsel.

Specifically, he asserts that trial counsel, Michael H. Strong and William M. Welsh, labored

under the following conflicts of interest: (1) they were retained and paid by Leonard’s family;

(2) Strong was a personal friend of the Leonard family; and (3) they represented LTS Builders, a

company owned by two of Leonard’s brothers, in civil suits brought by the Flick estate and by

Gries and Minges while counsel also represented Leonard in his criminal action.

On state post-conviction review, the trial court denied this claim. On appeal, the Ohio

Court of Appeals affirmed. Leonard, 813 N.E.2d at 58–60. The court determined that the trial

court was under no obligation to address the possibility of a conflict of interest as “the defendant

offered no objection to his counsel’s dual representation, and the record of the proceedings at

trial contained no suggestion of a conflict of interest.” Id. at 59. The court also determined that

trial counsel’s concurrent representation did not constitute an actual conflict because “the

evidence disclosed no duty incurred by counsel in defending the company in the civil action that

No. 15-3653 Patrick Leonard v. Warden Page 11

might be said to have been adverse to or in conflict with counsel’s duties in defending Leonard

against the criminal charges.” Id. Additionally, the court found that the personal relationship

between trial counsel and the Leonard family did not constitute an actual conflict of interest

because Leonard did not present any evidence of the “critical information” that only counsel

could have provided. Id. at 60. Finally, the court concluded that trial counsel’s retention by the

Leonard family was not an actual conflict of interest because the trial record “demonstrated that

counsel had presented the case in mitigation competently in view of the facts available to them.

And nothing in the evidentiary material submitted by Leonard in support [of] his claim suggested

the contrary.” Id.

A petitioner asserting that he received ineffective assistance of counsel must demonstrate

that counsel performed deficiently and that the deficient performance resulted in prejudice to the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient

performance, a petitioner must “show[] that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

To demonstrate prejudice, a petitioner must “show[] that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The Sixth Amendment

guarantees a criminal defendant the effective assistance of counsel and, in doing so, secures him

the assistance of counsel free from conflicts of interest.

When a petitioner asserts counsel’s ineffectiveness arising from a conflict of interest,

“[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented

conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s

performance.’” Id. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 345–50 (1980)). To prevail

on a claim that he was denied his right to conflict-free counsel, a defendant must demonstrate

“an actual conflict of interest.” Wood v. Georgia, 450 U.S. 261, 273 (1981). An “actual

conflict,” for purposes of the Sixth Amendment, is “a conflict of interest that adversely affects

counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002). “[T]he possibility of

conflict is insufficient to impugn a criminal conviction.” Sullivan, 446 U.S. at 350. This Court

has observed that “[i]n Mickens v. Taylor, the Supreme Court found that the presumed standard

of Sullivan was clearly established only in the situation of a conflict of interest due to multiple

No. 15-3653 Patrick Leonard v. Warden Page 12

concurrent representation,” and therefore “has consistently held that, for § 2254 cases, the

Sullivan standard does not apply to claims of conflict of interest other than multiple concurrent

representation; in such cases, including successive representation, the Strickland standard

applies.” Stewart v. Wolfenbarger, 468 F.3d 338, 350–51 (6th Cir. 2006) (collecting cases).

The Supreme Court in Mickens stated that “as a general matter, a defendant alleging a

Sixth Amendment violation must demonstrate a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 535 U.S. at 166.

The Supreme Court recognized, however, that there are exceptions to this general standard where

the burden is lessened. For example, “a defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not demonstrate prejudice in order to obtain

relief.” Id. at 171 (quoting Sullivan, 446 U.S. at 349–50) (emphasis added). However, the

Supreme Court stated that “when the trial judge is not aware of the conflict (and thus not

obligated to inquire) . . . prejudice will be presumed only if the conflict has significantly affected

counsel’s performance—thereby rendering the verdict unreliable, even though Strickland

prejudice cannot be shown.” Id. at 172. Given the fact that the trial judge was not aware of the

conflicts asserted and Leonard neglected to raise any such issues during his trial, Leonard must

establish both that his trial counsel suffered from an actual conflict of interest and that the

conflict of interest adversely affected the quality of representation. With this in mind, we review

each putative conflict in turn.

1. The payment of Leonard’s attorneys by the Leonard family

Leonard first asserts that because his attorneys were paid by his family, this created a

conflict of interest. According to Leonard, a successful mitigation strategy required trial counsel

to present unsavory facts about the Leonard family to show that family dysfunction contributed

to his decision to kill Flick. He contends that trial counsel deliberately selected a mitigation

strategy so as to avoid embarrassing or offending the individuals responsible for paying their

legal fees. Even assuming the plausibility of such a theory, which we by no means endorse,

ample evidence exists in the record to show that the requested evidence was in fact presented to

the jury.

No. 15-3653 Patrick Leonard v. Warden Page 13

James Hawkins, M.D., a board-certified psychiatrist qualified in forensic psychiatry,

testified at the penalty phase that trial counsel retained him to evaluate Leonard. Dr. Hawkins

met with Leonard twice and administered psychological tests to him. Leonard earned the

following scores on an IQ test: performance, 117; verbal, 93; and full-scale, 103; Dr. Hawkins

explained the results: “That’s a pretty big spread and you normally will see that in people who

have a learning disability. They don’t learn through their senses, through their eyes and their

ears, as well as they learn through their hands.” (R. 61-15, Tr., PageID # 8590–91). According

to Dr. Hawkins, Leonard’s results showed that he “is a bit mistrustful and suspicious,” “like[s] to

be outdoors,” “tends to bottle up his emotions,” “feels somewhat personally inadequate,” and “is

a loner, that he is sensitive to criticism, and that he’s sensitive to humiliation and rejection.” (Id.

at 8592–93). Dr. Hawkins attributed those characteristics to Leonard’s upbringing:

I said—or believe that he never was allowed to learn how to deal with anger. So

he bottled it up. And he, as a kid, he was raised in a rigid household, in that

emotions just weren’t allowed. The best he could do was wrestle with his

brothers on the living room floor, never got in a fight, never crossed his mother.

He was pretty much a regimented, rigid kid.

(Id. at 8596.)

In the state post-conviction proceedings, Nancy J. Schindler, Psy.D., conducted a

psychological evaluation of Leonard and disclosed her findings in a written report. Dr. Schindler

stated:

Patrick has a diagnosable learning disability which contributed to his feeling

inadequate and feeling rejected in his family and at school. In addition, Patrick’s

learning style interfered with his processing verbal information in many areas.

Patrick grew up in a family that tended to be emotionally distant and could not

provide emotional constancy to allow Patrick to develop a secure sense of

himself. Nor could he develop internal processes for modulating intense

emotions. Patrick’s parents, in particular his mother, substituted religion and

religious functions for emotional holding and availability. This substitution

caused Patrick to be more alienated from his internal feeling experience.

(R. 61-4, Tr., PageID # 4010.)

The Ohio Court of Appeals found “nothing in the evidentiary material submitted by

Leonard in support of his claim suggested” that trial counsel had performed their mitigation

duties less than competently on the available facts and that Leonard had accordingly “failed to

No. 15-3653 Patrick Leonard v. Warden Page 14

demonstrate a causative link between the alleged conflict of interest and an inadequacy in his

counsel’s representation.” Leonard, 813 N.E.2d at 60. The decision of the Ohio Court of

Appeals regarding the evidence submitted at the post-conviction stage—consisting largely of

unpersuasive, partly-handwritten affidavits from Leonard’s family—is not at all unreasonable.

Certainly, we recognize that third party funding of litigation can create adverse incentives

throughout any given trial. But on this record, the possibility that Leonard’s counsel altered their

choice of strategy is the sort of “mere theoretical division of loyalties” that Mickens dismissed as

insufficient to reverse a conviction. 535 U.S. at 171. The Ohio Court of Appeals did not

unreasonably apply federal law in denying this theory. Nor has Leonard presented evidence that

was substantially different to that presented at trial by Dr. Hawkins. Therefore, he is not entitled

to relief. See Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (“[I]n order to establish

prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way—in

strength and subject matter—from the evidence actually presented at sentencing.”).

2. Leonard’s trial counsel’s status as a family friend

Leonard next argues that because Strong, an old summer camp friend of Leonard’s who

had personal information about the family, could not testify on Leonard’s behalf, the jury was

deprived of significant mitigation testimony concerning Leonard’s upbringing that would have

helped explain the murder. Leonard neglects to specify for this Court precisely what information

he believes the jury was deprived of. In any event, the record contains trial testimony from two

witnesses who had a relationship with Leonard’s family and were not family members—both

individuals even met Leonard at summer camp.

First, Dale Siegel testified that he was not Leonard’s brother and first met Leonard in

1984 when he worked in the riding department of a summer camp called Fort Scott, which

Leonard attended. Siegel testified that he visited the Leonard family in Indianapolis: “I went up

to see a few of the family members, all of them. I got to be good friends with all of them, as a

matter of fact. But specifically two people I worked with, which was Ted and Sue Leonard.”

(R. 61-15, Tr., PageID # 8683.) Siegel stated that “[e]very time I was there they would have

foster kids, anywhere, to my knowledge, from infants up to age five or so . . . . All the kids were

expected to help in the care of the foster kids” and that Leonard “had a willingness to always

No. 15-3653 Patrick Leonard v. Warden Page 15

take care of them, as did all the kids. They were brought up that way.” (Id. at 8684.) After

Leonard moved to Cincinnati, Siegel saw him “a couple of times a year, generally at [Leonard]

family gatherings, which they graciously invited me to many of those, and other Fort Scott

gatherings, that happened a couple times a year.” (Id. at 8685.)

Patrick Michael O’Neill, a lawyer, testified he has known the Leonard family since he

was sixteen years old and at one time worked as a carpenter for Steve and Dave Leonard before

attending law school. He offered his insight about Leonard and Leonard’s family:

He was a good kid. I mean, the family was a good family. They are good. You

know, I’m from a large Catholic family. Pat was from a large Catholic family and

had a lot in common. I knew—like I said, I know most of his brothers and sisters.

They are good people. I knew Pat when Pat—or started to get to know Pat a little

better when he actually moved from—to Cincinnati from Indianapolis and began

working with him. But I knew Pat to be a good and decent person.

(R. 61-15, Tr., PageID # 8691.) O’Neill also provided insight into working with Leonard while

both worked for Leonard’s brothers:

Pat started out with very limited knowledge of carpentry but his brother was very

good with him. And we all knew Pat and we all knew the family. So we weren’t

probably as tough on him as we were on other laborers at other times.

(Id. at 8692.)

Leonard has, again, failed to demonstrate that trial counsel performed deficiently. It is

unclear what insight, if any, Strong could offer and how this would have impacted the trial in a

material way.

3. Trial counsel’s alleged conflict of interest stemming from an unsettled civil case

Leonard claims that he received inadequate representation from trial counsel because

they simultaneously represented LTS Builders—a company owned by Leonard’s two brothers—

in a civil suit. Prior to Leonard’s criminal trial, Dawn Flick’s estate and Gries and Minges filed

separate civil lawsuits against both Leonard and his brothers’ closely held corporation, LTS

Builders, based on the theory that Leonard had been driving an LTS vehicle on the night of the

murder. The docket sheet for the Gries/Minges suit shows that the civil suit was dismissed as to

LTS on January 31, 2001, several months before the criminal trial began. However, the Flick

No. 15-3653 Patrick Leonard v. Warden Page 16

suit was still pending at trial, and was voluntarily dismissed by the Flick estate as to LTS

Builders on June 6, 2001, just six days after the jury returned a death sentence in the criminal

trial. Thus, given the timeline, Leonard correctly points out that the Ohio Court of Appeals

incorrectly stated that “the plaintiffs in each action had voluntarily dismissed their claims against

the company before trial.” Leonard, 813 N.E.2d at 59. The Ohio Court of Appeals appears to

have premised its decision on an erroneous finding that both lawsuits had been dismissed prior to

trial. At the time of trial, Welsh and Strong were representing Leonard in his criminal case;

Leonard in the Gries/Minges lawsuit; and Leonard and LTS Builders simultaneously in the Flick

estate lawsuit.

On appeal, Leonard attempts to argue that his counsel’s real loyalty, including during the

criminal trial, was to LTS, and the division of loyalties caused counsel’s “fail[ure] to investigate

and elicit mitigation testimony from a major shareholder and a director of LTS, Ted Leonard,

with whom he [had] worked closely as corporate counsel for the past eight years.” (Pet.’s Br. at

36). However, Leonard never explains how obtaining dismissal of a civil suit against LTS

Builders created an adverse interest for trial counsel in Leonard’s criminal suit. “To prove actual

conflict, a defendant must ‘point to specific instances in the record’ and ‘make a factual showing

of inconsistent interests.’” United States v. Kilpatrick, 798 F.3d 365, 375 (6th Cir. 2015)

(quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987)). Perhaps, as a matter of

professional integrity, trial counsel should not have represented LTS Builders in the civil suit.

But Leonard offers no more than speculative arguments in service of his broader theory that

counsel’s mitigation strategy was woefully deficient. For purposes of habeas review, however,

Leonard does not point to any Supreme Court case that has held this sort of simultaneous

representation was improper. And he cannot establish that the purported conflict actually

“affected the adequacy” of counsel’s representation, as required under Mickens. 535 U.S. at 168.

Therefore, we reject this claim.

IV. Ineffective Assistance of Counsel

Leonard next argues that trial counsel were ineffective. He proffers several theories,

regarding both the guilt phase and the penalty phase of the trial. First, Leonard claims that trial

counsel were ineffective by failing to impeach the testimony of Gries and Minges, and failing to

No. 15-3653 Patrick Leonard v. Warden Page 17

investigate and present evidence regarding the relationships between Leonard and Flick, as well

as between Gries and Flick. Second, Leonard contends that during the mitigation phase, counsel

were ineffective because counsel neither retained a mitigation specialist to investigate and

present mitigation evidence nor prepared Dr. Hawkins to testify. We reject both claims.

Ineffective assistance of counsel claims are subject to the standard of Strickland, which

requires a showing of deficient attorney performance and resulting prejudice rendering the result

of the proceeding unreliable. “[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.” Knowles v. Mirzayance,

556 U.S. 111, 124 (2009) (quoting Strickland, 466 U.S. at 690). When considering such a claim

in the sentencing context, “the question is whether there is a reasonable probability that, absent

the errors, the sentencer—including an appellate court, to the extent it independently reweighs

the evidence—would have concluded that the balancing of aggravating and mitigating

circumstances did not warrant death.” Strickland, 466 U.S. at 695.

On direct appeal, the Ohio Supreme Court ruled that:

Leonard also argues that counsel failed to effectively cross-examine Gries and

Minges. The extent and scope of cross-examination clearly fall within the ambit

of trial strategy, and debatable trial tactics do not establish ineffective assistance

of counsel. See State v. Campbell, 90 Ohio St.3d at 339, 738 N.E.2d 1178; State

v. Otte, 74 Ohio St.3d at 565, 660 N.E.2d 711; accord State v. Bradley, 42 Ohio

St.3d at 142–144, 538 N.E.2d 373. Leonard claims that there were several

inconsistencies in the testimony of Gries and Minges and that more effective

cross-examinations could have bolstered the defense’s argument that Flick had

consented to having sex with Leonard. But Leonard does not explain what the

alleged inconsistencies are or how they could have shown that Flick had

consented. Nor are the inconsistencies clear from the record. Thus, we reject

Leonard’s argument.

Leonard, 818 N.E.2d at 262–64.

As a threshold matter, because the state court correctly identified and attempted to apply

the Strickland standard, under AEDPA, we apply a doubly deferential standard. Van Tran,

764 F.3d at 624. “The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 89 (2011). In

order to gain relief, Leonard must satisfy both Strickland prongs: he must prove both that his

No. 15-3653 Patrick Leonard v. Warden Page 18

counsel were objectively deficient and that he was prejudiced by his counsel’s deficient

performance.

Because the state post-conviction court’s determination that the performance of

Leonard’s counsel was not deficient was a reasonable application of the Strickland test, and the

court relied on a reasonable determination of the facts, Leonard must be denied habeas relief.

Counsels traditionally enjoy “discretion over deciding which witnesses to call and how to

examine them.” Carter v. Mitchell, No. 13-3996, 2016 WL 3770282, at *12 (6th Cir. July 13,

2016) (citation omitted). Accord Rayborn v. United States, 489 F. App’x 871, 878 (6th Cir.

2012) (“[w]hether to call a witness and how to conduct a witness’ testimony are classic questions

of trial strategy that merit Strickland deference”).

Furthermore, there is no indication that trial counsel’s failure to call witnesses caused

Leonard to suffer any prejudice. Any minor inconsistencies Leonard now points out—including

the specter of a past relationship with Gries—could not possibly have changed the impact of

Leonard’s confession, which included admitting to having intercourse, coupled with his bringing

a loaded gun to the victim’s house and her disturbing state of half-dress when shot. Introducing

evidence of the purportedly “volatile” relationship between Leonard and Flick, which allegedly

entailed physical violence, did not necessarily help Leonard’s defense. Rather, the proposed

testimony of Leonard’s sister describing such lewd sexual proclivities, including the preference

for the couple to use handcuffs, might instead have supported the State’s theory of premeditation.

None of the evidence Leonard now seeks to offer establishes Flick’s consent to the sexual

intercourse on the night of her murder. Accordingly, there is no indication that either of the

Strickland prongs has been satisfied.

As to the claims that Leonard raises with respect to the penalty phase of the trial, these

are equally unpersuasive. Leonard contends that trial counsel were ineffective during the penalty

phase because they neither retained a mitigation specialist to investigate and present mitigation

evidence nor prepared Dr. Hawkins to properly testify. Leonard submits that had trial counsel

retained a mitigation specialist, they would have learned that he “was more than a little slow,

needed lots of help, had learning disabilities and was the only child in the home who went to

public, not private, school, and that Leonard was never taught to deal with emotions by distant

No. 15-3653 Patrick Leonard v. Warden Page 19

and angry parents.” (Pet.’s Br. at 62). In analyzing his argument, the Ohio Court of Appeals

stated as follows:

Leonard directed his seventh claim and the balance of his fifth claim against the

adequacy and effectiveness of counsel’s preparation for and presentation of the

case in mitigation. The defense presented at trial a mitigation theory that

proposed that Leonard was a good person who had acted out of character when he

killed Dawn Flick. The evidentiary material offered by Leonard in support of his

claims of counsel’s ineffectiveness merely supported an alternative theory of

mitigation. When, as here, counsel presented the case in mitigation competently,

in view of the facts available to them, evidence offered to prove the existence of

mitigation evidence that counsel had failed to present at trial, and that supported

an alternative theory of mitigation, did not provide proof of counsel’s

ineffectiveness.

Leonard, 813 N.E.2d at 57. Because the Ohio court correctly identified the governing standard

under federal law, this Court applies the deferential standard of § 2254(d). Strategic decisions of

defense counsel are “virtually unchallengeable.” Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir.

2001). Accordingly, the choice of one mitigation strategy over another does not appear

unreasonable to this Court. But in any event, the record belies Leonard’s argument.

The record reveals that even without calling a mitigation specialist, the jury was

presented with ample evidence concerning the dysfunctional nature of the Leonard household.

Throughout the penalty phase, witnesses testified as to the dynamics of the Leonard household.

Leonard responds that what jurors heard about Leonard was a “paltry patchwork—a life story

incoherent, inconsistent, and incomplete.” (Pet.’s Br. at 58). To the contrary, the testimony

presented by the family and friends at mitigation was remarkably consistent in its portrayal of the

Leonard family. Leonard grew up in a family that was strict, and not long on outward displays

of emotion, but hardly underprivileged; his parents sent the children to camp each summer, gave

them pet rabbits, and sought to instill in them a sense of service to the community and to the

Catholic Church.

Moreover, much of the information Leonard faults his counsel for not introducing would

have been cumulative of the testimony of the mitigation expert, Dr. Hawkins, retained by the

State, who described the Leonard household to the jury as being “rigid” and “like the Army.”

Dr. Hawkins testified at the penalty phase that Leonard “has an average IQ and that’s pretty

No. 15-3653 Patrick Leonard v. Warden Page 20

consistent with the learning disability. And, in fact, he did have a learning disability and had

some special educational experiences to compensate for that.” (R. 61-5, Tr., PageID # 8591).

He further provided insight into Leonard’s family dynamic and the difficulty Leonard had in

controlling his emotions. He explained that Leonard was someone who did not “do well with

intimacy” and “never really learned how to manage anger so he bottle[d] it up” and would “get

angry and punch a wall or throw a hammer.” (Id. at 8596–97.) Simply because Dr. Hawkins

was engaged by the court, and not counsel, is not by itself, sufficient grounds for a finding of

ineffective assistance of counsel. Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir. 2002)

(“We have never found counsel to be ineffective solely because the expert used was on the State

payroll.”). We find nothing unreasonable in the state court’s application of Strickland denying

Leonard’s post-conviction claim.

V. Prosecutorial Misconduct

On appeal, Leonard contends that the prosecution made a number of statements that

denied him a fundamentally fair trial requiring habeas relief. Specifically, he points to the

following remarks made by the prosecution at the close of the guilt phase:

The defense has asked you to find the defendant guilty of Count One and Two, of

murder and gun spec., but not of either of the specifications that would take us to

the second part of the trial where you would decide what the appropriate penalty

is as we talked about in voir dire.

By finding the defendant guilty of murder and a gun specification and felonious

assault, we would not get to that second part were more evidence would be

presented, and then you would deliberate again to decide what the appropriate

penalty is.

Remember, only by finding Patrick Leonard guilty of either Count One or Count

Two, and either Specification One or Specification Two to either of those counts,

will we even get to the penalty phase where his future will be decided.

The evidence in this case is very clear. It’s overwhelming. It conclusively proves

that Patrick Leonard is guilty of every count in the indictment.

(R. 61-15, Trial Tr. at PageID # 8430–31.) Leonard’s counsel did not object. Additionally,

Leonard highlights, in the closing argument of the penalty phase, the following statement from

the prosecution:

No. 15-3653 Patrick Leonard v. Warden Page 21

What is the next thing we heard about the attempted rape at trial? She was

handcuffed at the time. She was held against her will. You heard she struggled

against the handcuffs. What a scene that must have been, ladies and gentlemen,

the terror in that house the last few minutes of her life.

(Id. at 8780–81.) The prosecution continued:

The Judge will tell you, if you find beyond a reasonable doubt that Mr. Tieger and

I proved that the aggravated circumstances outweighs [sic] the mitigation, then

you shall return a verdict for the death sentence. Shall. That means it’s your

duty.

Ladies and gentlemen, we have done that. You know what is important. You

know what to give weight to. You follow the law. You said you would follow it.

You said you could apply it to him. Also be fair to the State. We talked about

that in voir dire. By following the law you are fair to the State and you are fair to

the victim. We feel like we have done our job, ladies and gentlemen, the rest is up

to you.

(Id. at 8784–85.) Counsel for Leonard again did not object. At the end of both phases, the

district court issued a curative instruction informing the jury that statements from the prosecution

were not evidence.

The Ohio Supreme Court addressed each of these remarks in its decision on direct appeal.

As to the alleged misconduct in the guilt phase, the Ohio Supreme Court noted that trial counsel

did not object to the comment and found no plain error, reasoning that: (1) “the trial court

instructed the jurors to decide the case on the evidence alone and explained that arguments of

counsel were not evidence”; (2) “the weight of the evidence against Leonard, including his

confession, was substantial and ‘reduced the likelihood that the jury’s decision was influenced by

argument’”; (3) “the prosecutor’s comments did not manipulate or misstate the evidence, nor did

they implicate other specific rights of the accused”; and (4) “the prosecutor’s comments should

not be taken out of context and given their most damaging meaning.” Leonard, 818 N.E.2d at

267 (quoting Darden v. Wainwright, 477 U.S. 168, 182 (1986)). As to the alleged misconduct

during the penalty phase, the court again noted that trial counsel did not object to the statement

and found no plain error because commenting on “the victim’s mental anguish and asking the

jury to be fair to the victim were improper but not prejudicial.” Id. at 268.

No. 15-3653 Patrick Leonard v. Warden Page 22

As an initial matter, there is some ambiguity over whether we apply AEDPA deference to

Leonard’s prosecutorial misconduct claim because the Ohio Supreme Court applied plain error

review and in turn considered the issue procedurally waived. In the context of a discussion of

procedural default, this Court has held that plain error analysis should be “viewed as a court’s

right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a

review of the merits.” Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); see also Frazier

v. Jenkins, 770 F.3d 485, 496 n.5 (6th Cir. 2014) (“We have repeatedly held that plain error

review is not equivalent to adjudication on the merits, which would trigger AEDPA deference”).

However, in Fleming v. Metrish, a split panel of this Court held that “none of the cases . . .

decide the question of whether a claim reviewed for plain error by a state court dispenses with

our obligation to apply AEDPA deference to the merits of the decision reached by that court,”

but “instead discuss the analytically prior question of whether a federal court is permitted to hear

an issue in the first place under the doctrine of procedural default.” 556 F.3d 520, 530 (6th Cir.

2009). The Court concluded that AEDPA deference applied because of the statutory interests in

comity, finality, and federalism. Id. at 532. At this point, we need not address this ambiguity

because even if we assume, without deciding, that de novo review applies, Leonard still cannot

prevail under this more lenient standard.

The Supreme Court cases of Donnelly v. DeChristoforo, 416 U.S. 637 (1974), and

Darden v. Wainwright, 477 U.S. 168 (1986), establish that, upon review of claims of

prosecutorial misconduct in closing arguments, “[t]he relevant question is whether the

prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a

denial of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). As in

this case, Donnelly concerned a remark in the closing argument in which the prosecution alluded

to the sentence that the defense might be seeking: “[t]hey (the respondent and his counsel) said

they hope that you find him not guilty. I quite frankly think that they hope that you find him

guilty of something a little less than first-degree murder.” 416 U.S. at 640. Stressing the

curative instruction issued by the trial court that the arguments of counsel were not evidence, the

Supreme Court held that the petitioner was not deprived of a fair trial. Id. at 644. Similarly, in

Darden, the Supreme Court described certain comments by the prosecution in closing argument

as “improper” but held that they did not deprive the petitioner of a fair trial where they “did not

No. 15-3653 Patrick Leonard v. Warden Page 23

manipulate or misstate the evidence” or “implicate other specific rights of the accused such as

the right to counsel or the right to remain silent.” 477 U.S. at 182.

Similarly, we find that the remarks by the prosecution do not rise to the level

necessitating relief. “[P]rosecutors ‘must be given leeway to argue reasonable inferences from

the evidence.’” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting United States v.

Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)). Additionally, “a prosecutor has no less right to

discuss a jury’s duty to impose the death penalty if legally warranted than a defense counsel has

the right to discuss a jury’s duty to acquit (or give a life sentence) if legally warranted.” Strouth

v. Colson, 680 F.3d 596, 606 (6th Cir. 2012). Not unlike the prosecutor in Donnelly, the

prosecution, by discussing the gun and rape specifications and their relationship to the possible

penalty phase, remarked on the possible strategy of the defense—its preferred verdict would

result in a sentence of less than death. Perhaps referencing of the possibility of the penalty phase

was imprudent. However, the comments at issue were, like the comments made in Darden,

“responsive” to the defense, see 477 U.S. at 182, and like those in Donnelly, “but one moment in

an extended trial.” 416 U.S. at 645. And in the context of the trial as a whole, the “weight of the

evidence against petitioner was heavy,” which “reduced the likelihood that the jury’s decision

was influenced by argument.” Darden, 477 U.S. at 182. Nor was it a secret to the jury from voir

dire that Leonard was facing the death penalty. Accordingly, the prosecution’s argument—

which was followed by a limiting instruction—that the defense was trying to evade the penalty

phase did not make Leonard’s conviction a denial of due process. For the same reasons, the

prosecution’s speculation at the penalty phase as to the victim’s suffering and the comment that

“by following the law you are . . . fair to the victim” (R. 61-15, Trial Tr. at PageID # 8785) were

improper stray comments that nonetheless did not so infect the proceedings as to render

Leonard’s death sentence a violation of due process.

VI. Ohio’s Method of Conducting Proportionality Review

Leonard challenges the constitutionality of Ohio’s scheme for performing proportionality

review. He asserts that although the Ohio Supreme Court is obliged by statute to consider

whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, its

practice of comparing the facts of any given case only to other cases in which death was

No. 15-3653 Patrick Leonard v. Warden Page 24

imposed—and not to cases in which the jury or panel opted for a lesser penalty—is

unconstitutional. Ohio Rev. Code § 2929.05(A).1

The Ohio Supreme Court rejected his arguments raised on direct appeal regarding the

constitutionality of the state’s death penalty scheme without any substantive discussion:

In his 16th proposition of law, Leonard raises various constitutional challenges to

Ohio death-penalty statutes. We reject these challenges. Ohio’s capital-

sentencing scheme is constitutional . . . . Leonard also argues that Ohio’s death-

penalty laws violate international treaties. We rejected the same argument under

proposition of law seven. Therefore, we summarily overrule propositions of law

13 and 16.

Leonard, 818 N.E.2d at 269 (internal citations omitted). Citing legislative history and broad

statements from death penalty jurisprudence, Leonard argues that, in the absence of any

comparison to cases in which death was not imposed, this practice fails to “eliminat[e] the

arbitrariness that infected death penalty schemes” such as that struck down in Furman v.

Georgia, 408 U.S. 238 (1972).

Federal habeas courts apply the deferential standard of § 2254(d), which governs issues

adjudicated on the merits, even when state courts “withhold explanations for their decisions,” as

in this case. Harrington, 562 U.S. at 99. Thus, we address whether the Ohio Supreme Court

unreasonably applied clearly established federal law in denying Leonard’s challenge to Ohio’s

proportionality review scheme. We believe that it did not.

Leonard bases his argument on Justice Stevens’ statement regarding the denial of

certiorari in Walker v. Georgia, 129 S. Ct. 453 (2008). Justice Stevens considered the “court’s

practice never to consider cases in which the jury sentenced the defendant to life imprisonment”

to be potentially problematic under the Constitution. Id. at 457. He took care to distinguish the

Georgia proportionality scheme upheld in Zant v. Stephens, 462 U.S. 862, 880 n.19 (1983), in

1

The district court ruled that this claim was procedurally defaulted because Leonard “assert[ed] that he

raised this claim as his nineteenth proposition of law on direct review” but “in that proposition of law Leonard

alleged that his death sentence was excessive and disproportionate compared to sentences in other cases” and the

district court therefore “d[id] not interpret Leonard’s direct appeal claim to include an attack on the constitutionality

of Ohio’s proportionality review scheme in general.” (R. 67, Order, PageID # 9485). This appears to be incorrect.

On direct appeal, Leonard raised this challenge in his sixteenth proposition of law. (R. 61-2, Direct App. Br., PageID

# 2516–17). Therefore, Leonard has “fairly presented” his claim to the state court and his claim is accordingly not

procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

No. 15-3653 Patrick Leonard v. Warden Page 25

which the state asserted that it compared death sentences to cases resulting in lesser sentences.

Justice Stevens opined that “[t]hat approach seemed judicious because, quite obviously, a

significant number of similar cases in which death was not imposed might well provide the most

relevant evidence of arbitrariness in the sentence before the court.” Walker, 129 S. Ct. at 454–

55 (emphasis added).

This statement regarding certiorari has no precedential effect, and only serves to

underscore the lack of clearly established Supreme Court law on precisely this point. See Teague

v. Lane, 489 U.S. 288, 296 (1989) (holding that “opinions accompanying the denial of certiorari

cannot have the same effect as decisions on the merits”). Leonard also fails to mention Justice

Thomas’ statement concurring in the denial of certiorari in Walker that “[t]here [was] nothing

constitutionally defective about the Georgia Supreme Court’s determination” where the Georgia

Supreme Court “examined 21 cases in which a defendant received the death penalty for a

‘deliberate plan to kill and killing for the purpose of receiving something of monetary value’”

and “concluded that petitioner’s death sentence was proportional to other death sentences

imposed in Georgia.” Walker v. Georgia, 129 S. Ct. 481, 482 (2008). Justice Thomas

emphasized that “[p]roportionality review is not constitutionally required in any form. Georgia

simply has elected, as a matter of state law, to provide an additional protection for capital

defendants.” Id. at 482–83 (citing Pulley v. Harris, 465 U.S. 37, 45 (1984)).

As we have previously recognized, “[t]he Supreme Court has held that the Constitution

does require proportionality review, but that it only requires proportionality between the

punishment and the crime, not between the punishment in this case and that exacted in other

cases.” Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003) (citing Pulley, 465 U.S. at 43–44).

This Court has upheld the constitutionality of the Ohio proportionality review system on

numerous occasions. See, e.g., Williams v. Bagley, 380 F.3d 932, 962 (6th Cir. 2004); Wickline

v. Mitchell, 319 F.3d 813, 824 (6th Cir. 2003); Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir.

2001). In fact, we explicitly stated that in “limiting proportionality review to other cases already

decided by the reviewing court in which the death penalty has been imposed, Ohio has properly

acted within the wide latitude it is allowed.” Buell, 274 F.3d at 369. Because Leonard has not

provided any contrary Supreme Court precedent, he is not entitled to relief.

No. 15-3653 Patrick Leonard v. Warden Page 26

VII. Constitutionality of Post-Conviction Framework

In his post-conviction petition in state court, Leonard argued that the Ohio post-

conviction framework was unconstitutional because Ohio Rev. Code § 2953.21, which governs

post-conviction procedures, failed to provide an “adequate corrective process.” He raises that

argument once more, claiming that Ohio’s post-conviction regime unconstitutionally violates his

due process and equal protection rights. The Ohio Court of Appeals denied relief on this claim.

Objecting to this holding, Leonard argued before the district court that the recent

Supreme Court decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler,

133 S. Ct. 1911 (2013), “while not recognizing post-conviction state collateral review in and of

itself [as] a constitutional right[,] . . . recognize that defendants have a constitutional right to have

the fair opportunity for review of the claims that can only be brought for the first time on post-

conviction.” (R. 53, Obj. to R&R at PageID # 1437). On appeal, he suggests that the

inadequacy of the corrective process is clear because of this Court’s frequent grant of habeas

relief to Ohio state prisoners. Whether or not Leonard is correct that post-conviction review is

“little more than a ritual,” he cannot surmount the legal barriers to achieving habeas relief on this

ground. (Pet.’s Br. at 86).

This Court has held that “habeas corpus cannot be used to mount challenges to a state’s

scheme of post-conviction relief.” Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (citing

Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)); see also Cress v. Palmer, 484 F.3d 844, 853

(6th Cir. 2007) (“the writ is not the proper means” to challenge “collateral matters” as opposed to

“the underlying state conviction giving rise to the prisoner’s incarceration”) (internal citations

omitted). Leonard acknowledges as much, but asks this Court to “revisit that conclusion.” (Pet.’s

Br. at 87). We decline to do so because “a published prior panel decision ‘remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision.’” Stein v.

Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 789 (6th Cir. 2016)

(quoting United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014)). Leonard has not pointed to

any decision by an en banc court or any Supreme Court decision to undermine the logic of Kirby

No. 15-3653 Patrick Leonard v. Warden Page 27

that attacks on post-conviction proceedings “address collateral matters and not the underlying

state conviction giving rise to the prisoner’s incarceration.” 794 F.2d at 247.

More to the point, in the absence of Supreme Court precedent evaluating the

constitutional adequacy of state post-conviction review proceedings,2 Leonard cannot establish

the necessary precondition for issuance of the writ—namely, that the decision of the Ohio Court

of Appeals, which clearly evaluated the merits of his claim, “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” See 28 U.S.C. § 2254(d)(1).

VIII. Sufficiency of the Evidence

In Leonard’s final claim for relief, he states that the prosecution did not present sufficient

evidence to obtain a conviction for rape or attempted rape. On direct appeal, the Ohio Supreme

Court rejected Leonard’s argument that insufficient evidence supported his rape or attempted

rape conviction, correctly identifying Jackson v. Virginia, 443 U.S. 307 (1979), as adopted in

subsequent Ohio case law, as the appropriate Supreme Court precedent to be applied.

It concluded that sufficient evidence was introduced at trial to support these convictions.

Recounting the evidence, the court stated:

On the night of the murder, Leonard twice followed and stopped Flick in her car.

After stopping her car the second time, Leonard ordered Flick to return to her

house. Leonard followed Flick to her home, where he handcuffed her and held

her at gunpoint. Leonard confessed to firing three shots into Flick’s head from

close range. Leonard also told police that just before he shot Flick, he had been

on top of her with his pants down because they had “decided to [have sexual

intercourse] on the floor.”

Although Leonard’s confession suggests that Flick had consented, there was

substantial evidence of forcible sexual conduct, and a rational trier of fact could

find Leonard guilty of attempted rape. See, e.g., State v. Williams (1996),

74 Ohio St.3d 569, 576, 660 N.E.2d 724; State v. Scudder (1994), 71 Ohio St.3d

2

In the context of a 42 U.S.C. § 1983 action, the Supreme Court explained that given the previous verdict

of guilty for the criminal defendant, “[t]he State accordingly has more flexibility in deciding what procedures are

needed in the context of postconviction relief. ‘[W]hen a State chooses to offer help to those seeking relief from

convictions,’ due process does not dictat[e] the exact form such assistance must assume.” District Attorney’s Office

for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009) (quoting Pennsylvania v. Finley, 481 U.S. 551, 559

(1987)). “Federal courts may upset a State’s post-conviction relief procedures only if they are fundamentally

inadequate to vindicate the substantive rights provided.” Id. Leonard has made no such showing.

No. 15-3653 Patrick Leonard v. Warden Page 28

263, 274–275, 643 N.E.2d 524. But cf. State v. Davis (1996), 76 Ohio St.3d 107,

114–115, 666 N.E.2d 1099 (holding that evidence that victim’s body was found

naked, that victim had been seen pushing the defendant away before she was shot,

and that there were possible finger marks on one of the victim’s thighs was

insufficient evidence to support attempted-rape conviction). Police found Flick’s

body lying in a pool of blood on her living room floor, partially nude. She had

been shot three times in the head, her panties had been pulled down to her thighs,

one pant leg had been pulled off, the other had been pulled down to her calf, and

one shoe had been removed. Her hands were bound by handcuffs, and bruising

on her wrists indicated that she had struggled while handcuffed. Marks on her

neck and petechiae on her face indicated that she had been strangled.

Leonard, 818 N.E.2d at 252.

According to Leonard, the decision of the Ohio Supreme Court was “objectively

unreasonable” because the “record provided nothing more than speculation with respect to the

allegation of attempted rape.” (Pet.’s Br. at 92). Leonard asserts that no rational trier of fact

could have found that the State met its burden of proof because “[t]he State’s evidence of rape or

attempted rape was purely circumstantial, and in his statement to the police Leonard explained

that he and Flick had engaged in consensual sexual activity immediately prior to the homicide.”

(Id. at 91). We disagree.

To determine whether sufficient evidence was presented to support a jury’s verdict, this

court must consider “whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Phillips v. Bradshaw, 607 F.3d 199, 220 (6th Cir. 2010) (citing

Jackson, 443 U.S. at 319).

Ohio law defines an “attempt” to commit a crime as follows: “[n]o person, purposely or

knowingly, and when purpose or knowledge is sufficient culpability for the commission of an

offense, shall engage in conduct which, if successful, would constitute or result in the offense.”

State v. Heinish, 553 N.E.2d 1026, 1034 (Ohio 1990) (quoting Ohio Rev. Code § 2923.02(A)).

Ohio’s “definition of rape is ‘engag[ing] in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force.’” State v. Kirkland,

15 N.E.3d 818, 839 (Ohio 2014) (quoting Ohio Rev. Code § 2907.02(A)(2)). Here, the coroner

testified that there were “no injuries” to Flick’s genitalia. However, the coroner also testified

No. 15-3653 Patrick Leonard v. Warden Page 29

that Flick was placed in handcuffs before she died and suffered injuries to her wrists that were

consistent with a struggle. Additionally, Flick’s neck revealed signs of strangulation, along with

signs of injury throughout her body manifesting in the form of contusions on her right breast,

shoulder, thighs and legs. These injuries create a reasonable inference that she was resisting

whatever activity was occurring at the time. The condition of Flick’s body when she was found

suggested an attempt at sexual contact by Leonard. A police officer testified about how he found

her body:

Observing her, her panties were down about her knees. She had one shoe or a

brown boot that was off and about maybe two feet from the body. Her pants

were—it was one leg where the pants were off and the other leg where the pants

was still on and the boot was still on.

(R. 61-14, Tr., PageID # 8160–61). We believe that this evidence, together with other evidence

previously described in this opinion, is amply sufficient in order for a reasonable jury to convict

Leonard of rape or attempted rape. Therefore, the state court’s resolution of this claim was not

an unreasonable application of, or contrary to, Supreme Court precedent.

CONCLUSION

For the reasons stated above, we AFFIRM the order of the district court denying

Leonard’s petition for a writ of habeas corpus.