Stanley Fitzpatrick v. Norm Robinson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0185p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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STANLEY FITZPATRICK,
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Petitioner-Appellant,
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No. 09-4515
v.
,
>
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Respondent-Appellee. -
NORM ROBINSON, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:06-cv-356—Susan J. Dlott, Chief District Judge.
Argued: May 1, 2013
Decided and Filed: July 19, 2013
Before: CLAY, McKEAGUE, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Mark A. Vander Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for
Appellant. David M. Henry, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Mark A. Vander Laan, DINSMORE &
SHOHL LLP, Cincinnati, Ohio, James Schuster, Cincinnati, Ohio, for Appellant.
Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
for Appellee.
_________________

OPINION
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CLAY, Circuit Judge. In June 2001, Petitioner Stanley Fitzpatrick murdered
three people, including his girlfriend and his girlfriend’s twelve-year old daughter.
During the opening stages of his capital trial in Hamilton County, Ohio, Petitioner
demanded that he be allowed to plead guilty to the charges. After inquiries into his
mental state were made, a state court accepted his plea, and shortly thereafter, a three-

1
No. 09-4515 Fitzpatrick v. Robinson Page 2

judge panel sentenced him to death. Ohio courts affirmed Petitioner’s convictions and
sentence, and denied him state postconviction relief. Petitioner now appeals the district
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the
following reasons, we AFFIRM the district court’s denial of Petitioner’s petition for a
writ of habeas corpus.

BACKGROUND

Petitioner Stanley Fitzpatrick pleaded guilty to the 2001 murders of his girlfriend,
his girlfriend’s twelve-year old daughter, and a neighbor. The facts underlying his
crimes are undisputed and, having been adequately laid out by the Ohio Supreme Court
in Petitioner’s direct appeal, State v. Fitzpatrick, 810 N.E.2d 927, 930–32 (Ohio 2004),
need not be repeated here since they do not bear on the issues we are asked to consider.
More relevant for our review are the circumstances surrounding Petitioner’s guilty plea
and the sentencing phase of his state trial.

State Trial Proceedings

From very early on in this case, there were questions about Petitioner’s mental
health. At a pretrial hearing on July 16, 2011 (about one month after Petitioner was
indicted), the trial court took up the issue of Petitioner’s competence. It did so because
of Petitioner’s confession to his cousin during which Petitioner stated that the devil had
made him commit the crimes. However, based on the representation of the lead
investigator that neither he nor other officers had any concerns about Petitioner’s
competence, the trial court took no action at that time. Similarly concerned with
Petitioner’s mental state, Petitioner’s trial counsel (Steven Wenke and Thomas Cutcher),
on September 5, 2011, moved the trial court for the appointment of a psychiatrist, Dr.
Emmett Cooper, which the trial court granted.1 Additionally, two weeks prior to trial,
Petitioner’s trial counsel obtained the mental health records from the jail where
Petitioner had been held for the eight months preceding the trial.

1
At the same time, Petitioner’s trial counsel moved for the appointment of a mitigation specialist,
James Crates, which was also granted.
No. 09-4515 Fitzpatrick v. Robinson Page 3

Petitioner’s trial began on February 5, 2002. After the jury was empaneled, the
prosecutor gave his opening statement, followed by Wenke’s opening statement on
behalf of Petitioner. At the conclusion of opening statements, however, something
unexpected occurred. Cutcher requested a sidebar to inform the trial court about
statements Petitioner had made to Cutcher during Wenke’s opening. During the sidebar,
Cutcher told the court that Petitioner had indicated his desire to plead guilty and that
while Cutcher recommended against such action, Petitioner “told [Cutcher] that if
[Cutcher] didn’t stop this proceeding, that [Petitioner] would.” (Pet’r App. at p. 441.)
The trial court explained that it was disinclined to “entertain” a guilty plea “at that time”
but advised that if Petitioner wanted to “give it some more consideration,” Petitioner
should talk further with counsel, then after the lunch break or the next day, the trial court
would “certainly listen to what [Petitioner] ha[d] to say.” (Id.)

The trial court then adjourned the sidebar and advised Petitioner in open court,
but without the jury present, of its disinclination to accept a guilty plea at that time.
Petitioner, however, insisted that he wanted to plead guilty right then and did not want
“to wait till no lunch or the next day or nothing.” (Id. at 445.) He told the trial court to
“just make it over with, man” and not “put his family through this.” (Id. at 446.) The
trial court responded, “I understand what you’re saying, okay. I do disagree with you
at this point. I’m telling you right now, that we’re going to proceed, at least at this
juncture.” (Id.) At this point, Petitioner interrupted the trial court and demanded to be
taken out of the courtroom and reiterated that he wanted to stop the trial. Wenke then
suggested a recess, which the trial court agreed to take.

Following the recess, Wenke relayed to the trial court Petitioner’s continued
desire to withdraw his not guilty plea and enter a guilty plea. Because Wenke “d[id] not
see any issues with regard to [Petitioner’s] competency,” he asked that the trial court
proceed to take Petitioner’s guilty plea. (Id. at 453.) Wenke then made mention of a
potential court-ordered competency examination under State v. Ashworth, 706 N.E.2d
1231 (Ohio 1999), and the trial court sought to clarify whether Wenke was requesting
such an examination. In response, Wenke stated that he did not see any issue with
No. 09-4515 Fitzpatrick v. Robinson Page 4

Petitioner’s competency, and because of that and Petitioner’s clear desire to plead guilty,
Wenke felt “bound” to honor Petitioner’s wish to plead guilty. (Id. at 454.) Wenke
again suggested the possibility of an Ashworth examination despite his personal feeling
that Petitioner was competent. Finally, when asked directly by the trial court whether
he was asking the trial court to conduct a competency hearing, Wenke answered that he
was not. No competency examination was ordered at that time.

Before the jury was brought back in, Wenke again presented Petitioner’s request
not to be present in the courtroom. The trial court asked Petitioner a series of questions
through which Petitioner agreed that he wanted to be taken out of the courtroom, despite
acknowledging that the trial court and Petitioner’s counsel recommended against such
a course, stating that he would be “disruptive” and might “jeopardize the safety of the
participants in the trial as well as the deputies.” (Id. at 463–64.) Based on Petitioner’s
responses, the trial court excused Petitioner. The trial court then broke for lunch.

After lunch, the trial court again took up the issue of Petitioner’s mental state,
without Petitioner present. Wenke suggested that because of his client’s desire to plead
guilty, “the next step would be to put a jury waiver on and then proceed from there.” (Id.
at 474.) Wenke again asserted that he did not think that Petitioner was incompetent,
stating that his belief was “based on conversations I have had with Dr. Emmett Cooper,
as of approximately 9:30 last night. Also conversations I have had with Dr. [James]
Hawkins, and also reviewing medical records from Dr. [Neal] Dunsieth and Dr.
[Michael] Newton, who are all psychiatrists. In addition, I have had discussions with
Dr. Bob Tureen, who is a psychologist.” (Id. at 474–75.) The prosecutor also
represented to the trial court that, based on, among other things, his “conversations with
the sheriff’s department, . . . there’s no indication [that Petitioner is] incompetent.” (Id.
at 477.) The trial court then concluded that Petitioner should be returned to the
courtroom so that the trial court could confirm that Petitioner indeed wished to waive his
right to a jury and plead guilty and that those decisions were “made knowingly,
intelligently, and voluntarily.” (Id. at 478.)
No. 09-4515 Fitzpatrick v. Robinson Page 5

Petitioner was brought back into court, and his desire to waive his right to a jury
was probed. Petitioner acknowledged that he had reviewed the jury waiver form and had
signed it with the desire to waive his right to a jury and to have the case tried by a three-
judge panel, as required by Ohio law. Additionally, the trial court questioned Petitioner
about the medications he was taking. Petitioner told the court that his medication did not
prevent him from understanding the proceedings, nor did it interfere with his thinking.
The trial court then accepted Petitioner’s jury waiver.

Pursuant to the trial court’s acceptance of Petitioner’s jury waiver and Ohio Rev.
Code § 2945.06, a three-judge panel was convened on February 8, 2002. The panel was
presented with the guilty plea form, drafted by Petitioner’s trial counsel wherein
Petitioner acknowledged waiving his right to a jury, that a three-judge panel would still
hear the state’s evidence on the capital charges, and that it was his wish to plead guilty.
Also contained in the plea form was a statement signed by Petitioner’s counsel and the
state prosecutors which states that they informed Petitioner of the rights he was waiving
and that in their opinion, Petitioner “is competent to enter this plea and now does so
knowingly, intelligently and voluntarily.” (Resp’t App. at p. 1354.) During the plea
hearing, the three-judge panel walked through the plea and its consequences with
Petitioner, including that the state would still put on evidence of his guilt, that the three-
judge panel would conduct the sentencing, and that a jury would no longer be involved
in his case.

The three judges then turned once again to the issue of Petitioner’s mental health.
The panel questioned Petitioner about the medications he was taking. Petitioner stated,
in response to the court’s questions, that the medications were helping, not hurting him,
and that they “stopped [him] from hearings voice [sic] and seeing things.” (Pet’r App.
at p. 549) When the judges asked whether the medication affected his ability to
understand the proceedings, Petitioner responded, “No.” (Id. at 552.) Satisfied that the
medications were not adversely affecting Petitioner, the three-judge panel allowed
Petitioner to enter his plea of guilty, which was then followed by the state putting on
evidence of Petitioner’s guilt, as required by Ohio Rule of Criminal Procedure 11(C)(3).
No. 09-4515 Fitzpatrick v. Robinson Page 6

The court recessed, and on February 11, 2002, the three-judge panel accepted
Petitioner’s guilty plea and found him guilty of all charges.

Having found Petitioner guilty, the state court began the sentencing phase of the
trial. In laying out what the mitigation case would be on Petitioner’s behalf, his trial
counsel stated, “We only have three witnesses. . . . We have had substantial discussion
with [Petitioner] this weekend, and he’s given us instructions with regard to his family
members. He did not want them called.” (Id. at 710.) The three witnesses called on
Petitioner’s behalf were the investigating officer, Detective Pat Dilbert; a co-worker,
Eric Mitchell; and the court-appointed psychiatrist, Dr. Cooper. The focus of
Petitioner’s trial counsel’s argument against the imposition of the death penalty was on
the mitigating factor laid out in Ohio Revised Code § 2929.04(B)(3)—that Petitioner,
“because of a mental disease or defect, lacked substantial capacity to appreciate the
criminality of [his] conduct . . . .” (See id. at 923.) On this point, Petitioner’s trial
counsel elicited testimony from the investigating officer that Petitioner, in his confession
to his cousin, had mentioned hallucinations about the devil, as well as testimony about
Petitioner’s “crack binge” that led up to the murders. (Id. at 724) Petitioner’s trial
counsel elicited consistent testimony from Petitioner’s co-worker about Petitioner’s use
of crack cocaine and hallucinations about the devil. Petitioner’s trial counsel discussed
Petitioner’s mental health generally with Dr. Cooper, who testified about his evaluations
of Petitioner as well as the numerous medications that Petitioner had been prescribed.
Dr. Cooper’s conclusion was that the murders were a result of Petitioner’s “substance-
induced psychotic disorder.” (Id. at 777.) The three-judge panel, however, eventually
sentenced Petitioner to death, finding that, in Petitioner’s case, the aggravating
circumstances outweighed the mitigating ones.

State Appeals and Post-Conviction Proceedings

Petitioner appealed both his convictions and sentence to the Ohio Supreme Court,
which affirmed the convictions and sentences. Fitzpatrick, 810 N.E.2d at 946. One
issue that the Ohio Supreme Court addressed on direct appeal was whether Petitioner
had knowingly and voluntarily entered his jury waiver and guilty plea. Id. at 936–38.
No. 09-4515 Fitzpatrick v. Robinson Page 7

On this issue, the Ohio Supreme Court found that Petitioner’s written plea agreement
and plea colloquy, including “express representations by [Petitioner] and his counsel that
the natures of the charges had been explained to him and that [Petitioner] understood
them,” demonstrated that his decision to plead guilty and waive his right to a jury were
knowing and voluntary. See id. at 937–38.

Following Petitioner’s direct appeals, on November 22, 2002, Petitioner filed for
state post-conviction relief in the Hamilton County Court of Common Pleas, asserting
fourteen grounds for relief. Relevant to this appeal, among the fourteen grounds for
relief were claims that Petitioner’s trial counsel were ineffective and claims about
Petitioner’s entry of his jury waiver and guilty plea. See generally State v. Fitzpatrick,
No. C-030804, 2004 WL 2367987 (Ohio Ct. App. Oct. 22, 2004). Petitioner supported
his claims with the introduction of evidence from outside the record. Specifically,
Petitioner attached fourteen exhibits to his state post-conviction petition, including jail
records concerning his medication and behavior while in pretrial custody, employment
records, articles about addiction, testimony about addiction from an unrelated case,
information about stun belts and the sheriff department’s stun belt policy, the three-judge
panel’s sentencing opinion, an affidavit by an attorney specializing in capital litigation,
documents about Petitioner’s mitigation specialist James Crates’ involvement at trial,
and an affidavit about the use of mitigation specialists.

The state post-conviction court denied Petitioner relief on all claims without oral
argument or an evidentiary hearing. Petitioner then appealed to the Ohio Court of
Appeals. See Fitzpatrick, 2004 WL 2367987. The court of appeals declined to reach
Petitioner’s claims about his jury waiver and guilty plea because it found those claims
barred by res judicata because they had been addressed by the Ohio Supreme Court on
direct appeal. See id. at *5, 8. It did, however, reach the merits of Petitioner’s
associated ineffective assistance of counsel at trial claims, that is, his trial counsel were
ineffective for failing to insist on a competency hearing, and rejected those claims. See
id. at *8. The Ohio Court of Appeals also rejected Petitioner’s ineffective assistance of
counsel at sentencing claims on the merits. Id. at *11–12. Subsequently, the Ohio
No. 09-4515 Fitzpatrick v. Robinson Page 8

Supreme Court declined to review Petitioner’s post-conviction case. State v. Fitzpatrick,
825 N.E.2d 623 (Ohio 2005).

Federal Habeas Proceedings

In June 2006, Petitioner filed his petition for a writ of habeas corpus under
28 U.S.C. § 2254(d) in the United States District Court for the Southern District of Ohio,
raising ten grounds for relief.2 Relevant for our purposes, Petitioner argued that (1) his
counsel were ineffective during (a) his trial and (b) his sentencing and that (2) he did not
knowingly and voluntarily waive his right to a jury and enter into his guilty plea.
Pursuant to 28 U.S.C. § 2254(e)(2), the district court held an evidentiary hearing with
respect to Petitioner’s ineffective assistance claims on October 29 and 30, 2007.

At that hearing, Petitioner’s habeas counsel introduced an affidavit from
neuropsychologist Dr. Tureen. In his affidavit, Dr. Tureen stated that he evaluated
Petitioner at the request of Petitioner’s trial counsel, and the evaluation included an IQ
test, on which Petitioner scored a 69, which is indicative of borderline mild mental
retardation. See Am. Psychological Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 41–42 (4th rev. ed. 2000). He explained that these results suggested that
Petitioner would have had substantial difficulty or would have been unable to validly
waive his rights. Finally, Dr. Tureen noted that he had offered to provide Petitioner’s
trial counsel with the results of the IQ test but that Petitioner’s trial counsel had refused
to learn about the results.

Petitioner next put on Dr. Dunseith, the jail psychologist who worked with
Petitioner. Dr. Dunseith testified that while he initially believed that Petitioner was
malingering, he later concluded Petitioner’s symptoms were genuine. He noted that
Petitioner appeared anxious and depressed, and diagnosed him as having an adjustment
disorder with symptoms similar to post-traumatic stress disorder. He also testified that,
contrary to Petitioner’s trial counsel’s representation, Petitioner was on four medications
(Trazodone, Benadryl, Ativan, and Seroquel) at the time of his trial.

2
He has abandoned most of these grounds before our Court.
No. 09-4515 Fitzpatrick v. Robinson Page 9

A third psychologist, Dr. Cooper, testified about Petitioner’s mental state around
the time of the trial. Dr. Cooper described the effects of the prescription cocktail that
Petitioner had been on, noting that Trazodone was an antidepressant and sleep aid and
would be extremely sedating at the dose taken; that Benadryl is used as a sleep aid and
would increase the sedation effect of Trazodone; that Ativan is an anti-anxiety, muscle
relaxant, and anti-convulsant that is sedating and can impair short-term memory; and that
Seroquel is an antipsychotic that is used to treat mood and thought disorders. Dr.
Cooper opined that it might have made sense to have had Petitioner examined for
competency. Further, despite never having been specifically asked to evaluate
Petitioner’s competency, Dr. Cooper expressed skepticism that Petitioner had the
requisite mental capacity to waive his rights, in view of his organic brain damage,
depression, psychosis, and psychotropic medications.

After weighing the new testimony, the district court accepted the magistrate
judge’s recommendation to deny Petitioner’s request for habeas corpus. Fitzpatrick v.
Bradshaw, No. 1:06-cv-356, 2009 WL 3734143, at *1 (S.D. Ohio Nov. 5, 2009). The
district court found that the state “trial court’s determination that Fitzpatrick’s plea was
intelligent, knowing, and voluntary is fairly supported by the record,” id. at *18, and that
the state court’s decision with respect to Petitioner’s jury waiver was “neither
unreasonable nor contrary in its application of federal law,” id. at *21. The district court
also found that Petitioner’s trial counsel did not perform ineffectively during at the trial,
id. at *29–31, or at sentencing, id. at *33–36. The district court did, however, issue
Petitioner a certificate of appealability. See Fitzpatrick v. Bradshaw, No. 1:06-cv-356,
2010 WL 2761578 (S.D. Ohio July 13, 2010).

STANDARD AND SCOPE OF REVIEW

On appeal of a denial of a petition for a writ of habeas corpus, we review the
district court’s conclusions of law de novo and its factual findings for clear error. Hanna
v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012). Such review is, however, subject to the
standards set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996). Id. Under 28 U.S.C. § 2254(d), a petitioner
No. 09-4515 Fitzpatrick v. Robinson Page 10

may not obtain federal habeas corpus relief with respect to any claim that was
adjudicated on the merits in state court proceedings unless the 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.

A state court’s decision is “contrary to . . . clearly established Federal law”3 if
it either “arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law [or] . . . confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at [the opposite result].” Williams v.
Taylor, 529 U.S. 362, 405 (2000); accord Hanna, 694 F.3d at 605. A state court
decision is “an unreasonable application of [clearly established federal law]” if it either
“identifies the correct governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case,” or makes an
unreasonable determination as to whether or not to extend a legal principle from the
Supreme Court’s precedent to a new context. Williams, 529 U.S. at 407.

The Supreme Court has explained that “[f]or purposes of § 2254(d)(1), an
unreasonable application of federal law is different from an incorrect application of
federal law.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785 (2011) (emphasis
in original) (internal quotation marks omitted). Further, “[a] state court’s determination
that a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.” Id. at 786 (internal
quotation marks omitted). This deference reflects the view that § 2254 is only to be used
to “guard against extreme malfunctions in the state criminal justice systems.” Id.
(internal quotation marks omitted).

3
The Supreme Court has made clear that the relevant “clearly established Federal law” is the
holdings of the Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor,
529 U.S. 362, 412 (2000).
No. 09-4515 Fitzpatrick v. Robinson Page 11

In addition to limiting the scope of our review, AEDPA encompasses an
evidentiary limitation on federal habeas review. “[R]eview under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (2011); see Ballinger v.
Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013). “Thus, even if a petitioner was granted an
evidentiary hearing pursuant to § 2254(e), the federal court must disregard newly
obtained evidence that supports a claim that was previously adjudicated on the merits
before the state court.” Hanna, 694 F.3d at 606. Pinholster’s evidentiary limitation
reflects the view that “§ 2254(d)(1) review focuses on what a state court knew and did.”
131 S. Ct. at 1399.

DISCUSSION

I. Ineffective Assistance of Counsel

Petitioner asserts that his counsel were ineffective both at his trial and at
sentencing. We will evaluate Petitioner’s trial counsel’s representation at each stage
individually.

Claims alleging ineffective assistance of counsel are governed under the familiar
performance-and-prejudice test from Strickland v. Washington, 466 U.S. 668 (1984).
To establish deficient performance under Strickland, Petitioner “must show that
‘counsel’s representation fell below an objective standard of reasonableness.’” Richter,
131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 688); accord Lafler v. Cooper, __ U.S.
__, 132 S. Ct. 1376, 1384 (2012). “A court considering a claim of ineffective assistance
must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.” Richter, 131 S. Ct. at 787 (quoting
Strickland, 466 U.S. at 689). Petitioner bears the burden of showing that counsel made
errors “so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment.” Richter, 131 S. Ct. at 787 (internal quotation
marks omitted).
No. 09-4515 Fitzpatrick v. Robinson Page 12

“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Cooper, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694). “‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S.
at 694). In the guilty-plea context, a petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also
Cooper, 132 S. Ct. at 1384–85. In the context of a mitigation proceeding, the inquiry
is “whether a reasonable probability exists that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and mitigating circumstances did
not warrant death.” Strickland, 466 U.S. at 695.

With respect to how AEDPA’s standard of review interacts with Strickland’s
performance-and-prejudice test, the Supreme Court’s decision in Harrington v. Richter
is instructive:

Surmounting Strickland’s high bar is never an easy task. . . . Even under
de novo review, the standard for judging counsel’s representation is a
most deferential one. . . .
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so. . . . [T]he question
is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

Richter, 131 S. Ct. at 788 (citations and internal quotation marks omitted).

A. Trial

Petitioner argues that his counsel were ineffective at trial because they failed to
adequately inform themselves and the trial court about Petitioner’s mental impairments.
In evaluating this claim on state post-conviction review, the Ohio Court of Appeals
considered both the transcript of Petitioner’s trial and the additional evidence submitted
No. 09-4515 Fitzpatrick v. Robinson Page 13

with Petitioner’s state post-conviction filing. See Fitzpatrick, 2004 WL 2367987, at *8.
After doing so, it concluded,

The record of the proceedings at trial confirmed defense counsel’s need
for substantial preparation time and disclosed rational reasons for
Fitzpatrick’s waiver of a trial before a jury. Nothing in the outside
evidence offered in support of [these] claims demonstrated a reasonable
probability that, but for counsel’s failure to insist on, or to secure, a
competency hearing, Fitzpatrick would not have waived his speedy-trial
or jury rights or pleaded guilty or would have been found incompetent to
do so. Thus, Fitzpatrick failed to sustain his initial burden of
demonstrating substantive grounds for relief. Accordingly, we conclude
that the common pleas court properly denied [these] claims.

Id. We must consider whether this was an “unreasonable application” of Strickland
based solely on the record before the state court. Pinholster, 131 S. Ct. at 1398. That
is, despite the elucidation of the testimony of Dr. Cooper, Dr. Dunsieth, and Dr. Tureen
before the district court, we must ignore that evidence in evaluating the reasonableness
of the state court’s decision. See Hanna, 694 F.3d at 606.

Of the additional evidence that Petitioner submitted to the state post-conviction
court, the only illuminating piece of evidence is the jail records. The jail records
advance Petitioner’s claim of ineffective assistance at trial in two ways: (1) they confirm
that although trial counsel stated at trial that Petitioner was only on one medication:
Risperdal, he was actually on four: Trazodone, Benadryl, Ativan, and Seroquel; and
(2) they provide further details about Petitioner’s mental impairments. That fuller
picture, however, is not necessarily helpful to Petitioner because the records have Dr.
Dunseith describing Petitioner as having “coherent cognition” and as being “fully
oriented [with a] memory intact [and] avg [sic] intelligence.” (Resp’t App. at p. 1431.)
They go on to document Dr. Dunsieth’s diagnosis of malingering psychosis due to the
“significantly exaggerated symptoms” that Petitioner displayed. (Id. at 1431–32.)

The crux of Petitioner’s claim is that had counsel adequately performed by
informing themselves and the trial court of Petitioner’s mental impairments, that court
would not have accepted Petitioner’s jury waiver and plea as knowing, intelligent, and
voluntary. However, on the record that the state post-conviction court had before it, we
No. 09-4515 Fitzpatrick v. Robinson Page 14

cannot say that the Ohio Court of Appeals unreasonably applied Strickland in denying
Petitioner’s claims.

1. Performance

Looking first to the performance prong of Strickland, Petitioner’s trial counsel
were clearly aware of Petitioner’s mental issues. Before trial, counsel had Petitioner
examined by two mental health professionals, Dr. Cooper and Dr. Tureen. Moreover,
Petitioner’s erratic behavior of interrupting the trial and demanding to plead guilty (and
then having to be excused from the courtroom) would further alert counsel that
something might have been amiss. Wenke indicated as much when he initially requested
that Petitioner be evaluated for his competency to enter a plea. Upon questioning by the
trial court, however, Wenke admitted that he did not believe Petitioner to be unable to
appreciate the consequences of his plea and waivers. Cf. Fare v. Michael C., 442 U.S.
707, 725 (1979) (The “capacity to understand the warnings given him, the nature of
his . . . rights, and the consequences of waiving those rights” is a factor in a court’s
determination of whether a plea is knowing and voluntary.). Both Wenke and the
prosecutor repeatedly reaffirmed their belief that Petitioner was competent. In the face
of Petitioner’s adamant and seemingly informed desire to plead guilty and forego a trial,
it is unclear, based on the record that the state court reviewed, what more counsel should
have done as none of the experts who evaluated Petitioner ever expressed doubts about
Petitioner’s competency or his ability to waive his rights. See Fautenberry v. Mitchell,
515 F.3d 614, 625–26 (6th Cir. 2008) (concluding that “it was objectively reasonable for
counsel to rely upon the doctor’s opinions and conclusions”); accord Campbell v. Coyle,
260 F.3d 531, 555 (6th Cir. 2001) (holding, in a case where there was “no evidence that
[the expert] was incompetent[ ] or that [the petitioner’s] lawyers had any reason to
question [the expert’s] professional qualifications,” that “it was objectively reasonable
for . . . trial counsel to rely upon [the expert’s] diagnosis”).
No. 09-4515 Fitzpatrick v. Robinson Page 15

2. Prejudice

Even assuming deficient performance, Petitioner has not shown any prejudice
with respect to his claim of ineffective assistance at trial. Because the essence of his
claim is that if he had effective trial counsel, there is a reasonable probability his plea
would have been different (i.e., not accepted), Petitioner needs to demonstrate that the
trial court would have probably found Petitioner unable to waive his rights. First, such
a probability seems remote when one considers that no expert ever opined to that effect.
Second, the three-judge panel engaged in a lengthy plea colloquy where Petitioner
responded lucidly and appropriately to all questions, including ones about his mental
state and medications. Third, the only potentially helpful evidence that Petitioner
submitted during state post-conviction proceedings to support his ineffective assistance
at trial claim was his jail records, but as discussed above, these records reflect an
additional diagnosis of malingering psychosis that would likely have been detrimental
to any claim of Petitioner’s inability to waive his rights. On the record before the Ohio
Court of Appeals, we cannot say that Petitioner has shown that there is a reasonable
probability that but for counsel’s alleged errors the trial court would have refused to
accept Petitioner’s plea and waiver, see Hill, 474 U.S. at 59, let alone that no fairminded
jurist could have come to the result reached by the Ohio Court of Appeals. See Richter,
131 S. Ct. at 786. Therefore, we cannot grant Petitioner relief on his ineffective
assistance at trial claim.

B. Sentencing

Similar to his ineffectiveness-at-trial claim, Petitioner contends that his trial
counsel were ineffective by failing to investigate and present to the three-judge panel
evidence about his mental impairments so as to mitigate his death sentence. On this
claim, the Ohio Court of Appeals concluded,

Fitzpatrick failed to submit in support of [this] claim evidence that he
had, as the mitigation specialist [(Crates)] had suspected, acted under
something other than a voluntary “[s]ubstance-induced psychotic
disorder.” Thus, he failed to demonstrate a reasonable probability that,
but for his counsel’s failure to employ a mitigation specialist, the [Ohio
No. 09-4515 Fitzpatrick v. Robinson Page 16

Rev. Code §] 2929.04(B)(3) mitigating factor would have been assigned
such weight as to compel the conclusion that the aggravating factors did
not outweigh the mitigating factors. Because Fitzpatrick failed to sustain
his initial burden of demonstrating substantive grounds for relief, we
conclude that the common pleas court properly denied this aspect of
[this] claim.

Fitzpatrick, 2004 WL 2367987, at *11 (footnote omitted). Unlike with the ineffective
assistance during the guilt-phase claim, the Ohio Court of Appeals appears only to have
decided this claim on the basis that Petitioner was not prejudiced by any error (assuming
one existed). Because the state court did not consider the performance prong of
Strickland, that prong will be analyzed de novo, Rayner v. Mills, 685 F.3d 631, 638 (6th
Cir. 2012), taking into account the evidence developed in the district court. Robinson
v. Howes, 663 F.3d 819, 823 (6th Cir. 2011) (“[I]f [a] claim was never adjudicated on
the merits in state court, the claim does not fall under 28 U.S.C. § 2254(d) and
Pinholster does not apply.” (internal quotation marks omitted)). However, because the
state court adjudicated the prejudice prong, that prong will be reviewed under AEDPA,
Rayner, 685 F.3d at 639, based solely on the record before the Ohio Court of Appeals,
Hanna, 694 F.3d at 606.

1. Performance

It is clearly established that an attorney’s failure to reasonably investigate the
defendant’s background and present mitigating evidence at sentencing can constitute
ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521–22 (2003).
While counsel is entitled to rely on the opinions of an expert, Fautenberry, 515 F.3d at
625–26, to be entitled to such reliance counsel cannot willfully blind himself to the
expertise of such an expert—which is exactly what happened here. In this case,
Petitioner’s counsel retained Dr. Tureen to determine if Petitioner was “psychotic and
not guilty by reason of insanity.” (R. 45-4, Tureen Aff., at PID# 776.) In the course of
his evaluation of Petitioner, Dr. Tureen conducted an IQ test on Petitioner, on which
Petitioner scored a 69 (borderline mild mental retardation). Despite Dr. Tureen’s offer
to provide Petitioner’s trial counsel with the results of the IQ test, which would clearly
have been mitigating, see Tennard v. Dretke, 542 U.S. 274, 287 (2004) (stating
No. 09-4515 Fitzpatrick v. Robinson Page 17

“impaired intellectual functioning is inherently mitigating” (citing Atkins v. Virginia, 536
U.S. 304, 316 (2002))), Petitioner’s trial counsel refused to receive the IQ test results.
Such a decision cannot be considered a “reasonable investigation into Petitioner’s mental
state.” See Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006). Therefore, upon
de novo review, we find Petitioner’s trial counsel’s performance to be unreasonable,
even given the wide latitude afforded by Strickland. See Richter, 131 S. Ct. at 787.

2. Prejudice

Whereas the performance prong can be evaluated de novo, the Ohio Court of
Appeals’ decision with respect to prejudice must be given AEDPA deference, Rayner,
685 F.3d at 639, and this Court cannot consider the evidence that Petitioner developed
in the district court, Pinholster, 131 S. Ct. at 1398; Hanna, 694 F.3d at 606. On the
record that the state post-conviction court had, i.e., not considering the later testimony
of Dr. Cooper and Dr. Dunsieth or Dr. Tureen’s affidavit, there was no prejudice under
Strickland. The evidence before the state court, as discussed above, confirmed the
representations made by Petitioner’s trial counsel that Petitioner was able to knowingly
and voluntarily enter into a plea and waive his rights. The Ohio Court of Appeals had
before it the representations of three attorneys, written waivers, lengthy colloquies by
the trial court about Petitioner’s mental state, as well as jail records that discuss
Petitioner as displaying malingering psychosis. It was not unreasonable, on that record,
for the state court to conclude that further investigation into Petitioner’s mental state
would not lead to information that would have caused the three-judge panel not to
impose the death penalty.

Even though our de novo review revealed deficient performance, we cannot grant
Petitioner relief on his ineffective assistance of counsel at sentencing claim, inasmuch
as Pinholster requires us to ignore the evidence of prejudice provided by the testimony
of Dr. Cooper and Dr. Dunsieth, as well as Dr. Tureen’s affidavit—because that
evidence was not provided to the state court or made a part of the state court record.
No. 09-4515 Fitzpatrick v. Robinson Page 18

II. Jury Waiver and Guilty Plea

In his second issue, Petitioner argues that his jury waiver and guilty plea were
not entered into knowingly, intelligently, and voluntarily.4 This claim was presented to
the Ohio Supreme Court on direct appeal, and that court found,

Nothing in the record suggests that Fitzpatrick’s jury waiver was
involuntary. When the trial court accepted Fitzpatrick’s written waiver,
Fitzpatrick affirmed that his decision was voluntary. He also affirmed
that his counsel had reviewed the waiver form with him and that he had
discussed his decision with them. A defendant’s having had the advice
of counsel is a factor supporting a finding of voluntariness. [State v.]
Bays, 716 N.E.2d 1126 [(Ohio 1999)].
Although Fitzpatrick was on medication when he executed the waiver,
he denied that the medication interfered with his ability to understand the
waiver form or the proceedings. Nothing in the record contradicts
this. . . .
Importantly, Fitzpatrick’s decision to waive a jury trial followed from his
decision to plead guilty. . . . It is clear from the record that his decision
to plead guilty was voluntary: Fitzpatrick initiated that decision, insisted
upon it against advice of counsel, and held to it through a lengthy plea
colloquy.
...
In this case, the record contains a representation by defense counsel that
they had explained the charged offenses to Fitzpatrick. At the end of
Fitzpatrick’s written guilty plea is the following statement, which was

4
Petitioner specifically notes that his “appeal is not [about] competency.” (Reply Br. at 2.) The
Supreme Court has explained the difference between competency and knowing-and-voluntary claims:
The focus of a competency inquiry is the defendant’s mental capacity; the question is
whether he has the ability to understand the proceedings. The purpose of the “knowing
and voluntary” inquiry, by contrast, is to determine whether the defendant actually does
understand the significance and consequences of a particular decision and whether the
decision is uncoerced.
Godinez v. Moran, 509 U.S. 389, 400–01 & n.12 (1993) (citations omitted).
Petitioner’s specificity on this point is understandable since the Ohio Court of Appeals found his
competency claim barred by Ohio’s res judicata rule because he had not raised it on direct appeal when
he could have. Fitzpatrick, 2004 WL 2367987, at *8; see also Williams v. Bagley, 380 F.3d 932, 967 (6th
Cir. 2004) (citing State v. Perry, 226 N.E.2d 104, 105–06 (1967)) (Ohio’s res judicata rule “provides in
relevant part that a final judgment of conviction bars a convicted defendant from raising in any proceeding,
except an appeal from that judgment, any issue that was raised, or could have been raised, at trial or on
appeal from that judgment.”). Therefore, had his federal habeas claim been based on competency, it would
have been procedurally defaulted. See Williams, 380 F.3d at 967; see also Coleman v. Thompson, 501 U.S.
722, 729–30 (1991); Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc).
No. 09-4515 Fitzpatrick v. Robinson Page 19

signed by his counsel: “We have explained to the Defendant, STANLEY
L. FITZPATRICK, prior to his signing this plea, the charge(s) in the
indictment, the penalties therefore [sic] and his constitutional rights in
this case.”
Moreover, both the written plea and the plea colloquy contained
representations by Fitzpatrick that he had spoken with his counsel and
understood the charges against him. Fitzpatrick asserted that he had
graduated from high school and could read without any problem. He also
agreed that he had talked to his attorneys about the case for “many, many
hours.” The written plea states: “I understand the nature of the charges
against me in the Indictment and the possible defenses I might have,” and
“I understand the nature of the charges to which I plead guilty.” During
the colloquy, the presiding judge asked: “[D]o you understand the
charges against you?” Fitzpatrick said, “Yes.” The judge asked: “Do you
want all or any part of any of the charges against you explained in any
way?” Fitzpatrick said, “No.”

Fitzpatrick, 810 N.E.2d at 934, 937. On the record before it, the Ohio Supreme Court
held that Petitioner’s jury waiver and guilty plea were knowing and voluntary. Id. at
936, 938.

AEDPA deference applies to our review of the Ohio Supreme Court’s decision
about the validity of Petitioner’s jury waiver and guilty plea. Both jury waivers and
guilty pleas must be entered knowingly, voluntarily, and intelligently in order to be
constitutionally effective. Brady v. United States, 397 U.S. 742, 748 (1970) (citing
Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942); Johnson v. Zerbst,
304 U.S. 458, 464 (1938)) (additional citations omitted). Such a determination is made
after “considering all of the relevant circumstances surrounding” the plea or waiver.
Brady, 397 U.S. at 749; Adams, 317 U.S. at 275. As to jury waivers, the defendant must
understand that the choice he faces is to be judged by a jury composed of people from
the community as opposed to having his guilt or innocence determined by a judge.
Haliym v. Mitchell, 492 F.3d 680, 698 (6th Cir. Cir. 2007); see also Adams, 317 U.S. at
278; Patton v. United States, 281 U.S. 276, 311–12 (1930), abrogated on other grounds
by Williams v. Florida, 399 U.S. 78 (1970). For a guilty plea to be valid, the defendant
is required to understand the nature of the charges against him and the consequences of
pleading guilty, including the possible punishments and loss of other rights. See Brady,
No. 09-4515 Fitzpatrick v. Robinson Page 20

397 U.S. at 749 (“[R]elevant circumstances surrounding” a plea include the “possibility
of a heavier sentence following a guilty verdict at trial,” such as the death penalty.);
Boykin v. Alabama, 395 U.S. 238, 243 (1969) (“Several federal constitutional rights are
involved in a waiver that takes place when a plea of guilty is entered in a state criminal
trial.”); see also Bradshaw v. Stumpf, 545 U.S. 175, 182–83 (2005).

Reviewing the record that the Ohio Supreme Court had before it, there is no basis
to upset the Ohio Supreme Court’s conclusion that Petitioner’s jury waiver and guilty
plea were entered knowingly, voluntarily, and intelligently. Before accepting
Petitioner’s jury waiver, the trial court reviewed the written waiver form with Petitioner,
asked whether Petitioner had any questions about the form, ensured that Petitioner
signed the form voluntarily, and confirmed that Petitioner’s trial counsel had discussed
the form and its consequences with Petitioner. Wenke then discussed the medication
that Petitioner was taking and represented to the court that he did not believe that the
medication affected Petitioner’s decision to waive his jury rights. Further, Petitioner
confirmed that the medication did not affect his ability to understand his jury waiver.

The eleven-page written plea form that Petitioner signed discussed Petitioner’s
charges and the maximum penalties associated with those charges (including the death
penalty), detailed the three-judge panel procedure under which the remainder of his trial
and sentencing would proceed, outlined the rights Petitioner was waiving by pleading
guilty, and contained an acknowledgment that Petitioner was pleading guilty
“knowingly, intelligently, and voluntarily” with counsel present. (Resp’t App. at pp.
1345–53.) The penultimate page of the plea form, which was a statement signed by
Petitioner’s trial counsel, Cutcher and Wenke, and the state prosecutor, states that they
informed Petitioner of the rights he was waiving and that in their opinion, Petitioner “is
competent to enter this plea and now does so knowingly, intelligently and voluntarily.”
(Id. at 1354.) In front of the three-judge panel, Petitioner engaged in a discussion of the
charges against him and the consequences of pleading guilty. The three-judge panel
reviewed the written plea form with Petitioner, who affirmed that it was his desire to
plead guilty and that he understood what he was doing. The three-judge panel also
No. 09-4515 Fitzpatrick v. Robinson Page 21

probed Petitioner about his medication and its effect on him. Throughout the
proceedings, Petitioner’s responses to questions were appropriate, even telling the court
that his medication controlled his hallucinations.

None of Petitioner’s written or oral statements gave the trial court reason to
believe that he did not understand the consequences of waiving a jury trial and pleading
guilty. Additionally, all three attorneys involved, Cutcher, Wenke, and the prosecutor,
consistently represented to the court that they thought that Petitioner was knowingly
waiving his rights. On this record, we cannot say that the Ohio Supreme Court erred in
finding that Petitioner’s jury waiver and guilty plea were entered knowingly,
intelligently and voluntarily. Therefore, we cannot grant Petitioner habeas relief on this
claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Petitioner’s
petition for a writ of habeas corpus.