NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0273n.06 No. 10-1675 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OSEPH J . L EONARD, Petitioner

S

Appellant,

v. BLAI NE C. L AFL ER, Warden, Respondent – Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OPI NI ON

Be fore : GI BB ONS, KETHL EDGE, a nd STRANCH, Circuit J udg es. JANE B. STRANCH , Circuit J udg e. J oseph J

. L eo n ar d , a Michig an inmate who was convicted at jury trial of assault with intent to kill Paula Primm, appea ls the judgme nt of the district court de ny ing his pe tition for a writ of ha beas c orpus under

28 U.S.C. § 2254. W e AF FI RM. I. F ACTS AND P ROCEDURAL HISTORY Primm testified at trial that L eonar d rente d a room in he r home beg inning in J une 2003. A few wee ks later, on Aug ust 22, Primm asked L eonar d to move out of the house. He retre ated to his bedroom and did not come out. Primm went to the bedroom to “hurr y h i m up” and then returned to her chair in the living room. L eonar d suddenly appea red, g rabbe d her by the hair, put her in a headloc k, and dra g g ed her to a bedroom in the back of the house while he repe atedly punched he r fac e with his fist. Upon rea ching the bedroom, L eonar d knocked Primm down. She saw two butcher knives from her kitchen ly ing on the bed. L eonar d bound her arms, leg s, and head with masking tape

1and repe atedly kicked her over the next two hours as she lay helpless on the floor. Primm suffe red

sever e injuries to her fac e, including the loss of eig ht teeth. L eonar d broke Primm’s arm that she had

rec ently injured and he also used a knife to inflict minor cuts on her neck and near her ey e. L eonar d threatened to kill Primm beca use she could identify him and he did not want to return to jail. Primm did not ex pect to lea

ve the r oom alive. Primm’s friend, B arr

y Har ms, stopped by

the home. He thought it odd that Primm did not

answe r t he front door because there were signs she was home. As he walked arou nd the hous e to the back door, he hear d Primm scre aming

. Har ms could not ope n the back door beca use an object had bee n jammed bene ath t he door handle. L eonar d then opened the door and told Har ms that he thought Primm was having a seizure. L eonar d ran from the residenc e, stole a bicycle next door, and rode it to his vehicle parke d far ther up the s tree t. L eonar d jumped into his vehicle and s p ed from the sce ne. As she descr ibed her injuries for the jury , Primm ref err ed to photogr aphs that wer e taken of her at the hospital immediate ly afte r the assault. These photogr aphs wer e admitted into evidenc e. During her testimony , Primm admit ted a pr evious addiction to he roin. Har ms a lso a dmitted using marijuana with Primm

. Primm’s neig hbor, Kenne th Fe rns, testified that he ran outside afte r he hear d his son exclaim that someone had stolen his bicy cle. Fe rns saw Har ms chasing L eonar d from Primm’s hous e. Harms y elled to Fe rns that Primm had been sever ely beate n and direc ted him to call the poli ce , which Fe rns did. P ri m m t h en ran out of her house and collapsed on Fe rns’s front lawn. He descr ibed Primm’s injuries as “[a]bsol utely horrible. She was . . . tied, bound, her mouth was g ag g ed, she w as . . . bleeding , her face was just beat.” R. 15-8 Pag e I D 1026. Fe rns was not only

2conce rned about Primm’s condition, but horrifie d that his four children witnessed her injuries. Fe rns

disclosed on cr oss-examination that he had see n drug activity at Primm’s home. J oseph C lay

baug h testified t hat L eonar d jumped on his bicy cle and rode it to his vehicle a block awa

y . Clay baug h noticed L eonar d was not wea ring a shirt and he had blood on his f ace , but Clay baug h could not tell if L eonar d was c ut. Dr. J ames Sweene y , a g ener al surg eon, testified as a fac t witness and medical expert for the prosec ution. Dr. Sweene y did not provide direc t medical ca re to Primm; rathe r, he supe rvised the

su rgi ca l re s i dents who trea ted her. Be fore testify ing, he discussed Primm’s trea tment with the residents and revie wed her medical rec ords. The prosec ution did not offe r Primm’s medical rec ords into evidence

. Although Primm stated she was in the hospital a bout four day s, Dr. Sweene y clar ified that her stay extended to eleve n or twelve day s. She suffe red multipl e fra cture s to the orbit of the rig ht ey e, upper jaw, and nose, which require d three surg erie s to rea lign t h e facial bones. She also had

an upper arm fra cture and lace rations. Dr. Sweene y g ave his opinion that the fac ial fra cture s easily could have resulted in life-thre atening brain inj uries, such as subdural or epidural hematom a. On

cross-e x amination he reve aled that Primm did not have any skull fra cture s, stab wounds, or injuries to vital org ans; laboratory testing detec ted opiates and benzodiazepines in Primm’s blood, indicating likely heroin use; and her lace rations could have been cause d by something other than a knife. Dr. Sweene y did not know that Primm lost eig ht teeth, but he was not surprised, considering the extent of her jaw injuries. He ag ree d that fac ial wounds tend to bleed a lot, but he did not know how much blood Primm lost.

3L eonar d was a rre sted four da

y s after the assault. Detec tive Robert Ahre ns testified that he interviewe d L eonar d afte r rea ding him the Miranda rig hts. Acc ording to L eon a r d , Pr im m introduced him to heroin and then demande d a supply of the drug as part of his rent. On the day of the assault, P ri m m wa n t ed more heroin and alcohol, but he ref used to provide it. She beca me enra g ed and attacke d him. Detec tive Ahre ns noticed that L eonar d did not have any phy sical injuries. He showed L eonar d a photogr aph of Primm’s injuries and asked why she looked like she did when he was not injured. L eonar d replied that she must bruise easily

. At trial, defe nse counsel cross-e x amined the prosec ution’s w itnesses to bring out e vidence favor able to L eonar d, who waived his rig ht to t es t i fy

. Def ense counsel di d not call any witnesses beca use they would have of

fer ed cumulative te stimony

. Du ri n g t rial L eonar d complained to the court that his attorney did not provide him with various rec ords he wanted used in his defe nse, including medical rec ords, preli m i n ar y hear ing t ra n scripts, criminal history repor ts, and utilit y rec ords. L eonar d did not deny that Primm was injured, but he wanted his counsel to demonstrate that: he paid rent to Primm even though some of the utilit ies had been shut off; she d em an d ed m o ney , alcohol and drug s, which he provided; she started the incident by striking him in the head with an empty liquor bottle when he ref used to g ive her any more drug s and money ; the blow to his head explained why there was blood on his fac e; her conduct in striking him first allowed him to act in self-de fense ; Har ms lied about whether the back door was open; bot h Primm and Harms g ave prior i nconsistent statements t o the pol ice and at t he preliminary hear ing; and medical rec ords would show that Primm was not injured as sever ely as she claimed a nd she wa s using na

rcotics at the time of the assa ult, although she denied it.

4The co u rt revie wed the criminal history repor ts in came ra and found nothing in them to impeach Primm or Har

ms. The court noted that it had allowed defe nse counsel , “a n ex cellent attorney” who “did an excellent job,” to g o as far as the court would allow in bring ing out the prior drug history of Primm and Har ms. Def ense counsel provided L eonar d with the preliminary hear ing transcr ipts, but the court did n o t allow L eonar d to rec all Primm or Har ms to question them about inconsistencies in their t es t i m o n y . Counsel explained that he deliberately did not use the police repor t beca use Har ms told the police he did not confr ont L eonar d beca use he saw a larg e pocketknife sticking out of his back pocket. Howeve r, counsel broug ht out other aspec ts of the police repor t that

wer e fa vorable to L eonar d when he cross-e x amined De tective Ahr ens. Wit h reg ard to Primm’s medical rec ords, the court stated that any repor ts confirming Primm used narc otics wer e “absolute l y rele vant” and L eonar d was “entitled to them.” When Detec tive Ahre ns told the court that he possessed only the discharg e summary , the court direc ted him to make

s u re that Dr. Sweene y broug ht the entire medical file to court. The rec ord does not i n d i ca t e, howeve r, whether L eonar d and his counsel revie wed the medical rec ords befor e Dr. Sweene y g ave his testimony

. During closing argument, the prosec utor contende d that the sever i t y o f the fac ial injuries L eonar d inflicted by kicking and beating Primm over an extended period of time, combined with his express threats to kill her and his actua l use of a knife to cut her, confirme d that he had the specific intent to kill. The prosec utor postulated that Primm would have been killed if Har ms had not shown up. The defen s e at t o rney did not dispute that L eonar d committed the assault. He maintained, howeve r, that the evidenc e was insufficient to prove specific intent beca use L eonar d had the means to kill available to him for two hours, y et he did not employ those means to commit murder.

5The jury convicted L eonar d as char g ed. The trial court imposed a sentenc e of imprisonment

of ele ven y ear s and three months to t wenty y ear s. On direc t appea l, L eonar d argued that the evidenc e was insufficient for conviction and trial counsel rende red ineffe ctive assistance by fa i l i n g to reque st jury instructions on lesser- included offe nses and by failing to impeach Primm and Har ms with their prior inconsistent statements. Under People v. Ginther , 2 12 N.W.2d 922 (Mich. 1973), counsel reque sted rema nd for an evidentiar

y hear ing on the ineffe ctive assistance claims. Not satisfied with a ppellate counsel’s repr esentation, L eo n ar d submitt ed a pro se brief raising numerous additional claims, including that counsel was ineffe ctive for failing to reque st discovery of P ri mm’s medical recor ds, which would have shown that Primm was untruthful about the extent of her injuries. L eonar d also reque sted a Ginther hear ing. The Michig an Court of Appea ls a ffirme d the conviction and sentenc e. People v. Leonard , No. 254492, 2005 WL 3556116 (Mich. Ct. App. Dec

. 29, 2005) (per curiam). The court applied the standard applicable to ineffe ctive assistance claims initially announce d in Strickland v. W ashington , 466 U.S. 668, 687 (1984), see Leonard , 2005 WL 3556116, at *2 (c iting People v . Matuszak , 687 N.W.2d 342, 352 (Mich. Ct. App. 2004)), an d rul ed that its appellate revie w was limit ed to the fac tual rec ord prese nted bec ause L eonar d failed to move for a new trial or reque st an evidentiar y hear ing under Ginther in trial court. Id. (citing People v. Armendare z , 468 N.W.2d 893, 901 (Mich. Ct. App. 1991)). See also Hargrave- Thomas v. Y ukins , 374 F.3d 383, 391 n.1 (6th Cir. 2004) (“U nder Ginther , the Michig an Supreme Court require s a def endant on dire ct appea l to reque st a n evidentiar y hear ing in the state trial court when it intends to raise ine ffe ctive assistanc e of counsel and lacks the fac tual support in the rec ord.”) ; Ginther , 212 N.W.2d at 925 (“To the extent his claim

6depends on fac ts not of rec ord, it is incumbent on him to make a testimonial rec ord at the trial court

level in conne ction with a motion for a ne w trial”)

. Ba sed on the rec ord prese nt ed , t h e co urt specific ally addre ssed some of the ineffe ctive

as s i s t an ce claims. Leonard , 2005 WL 3556116, at *3. But it reje cted “other unmeritorious” claims—including L eonar d’s argument that trial counsel s h o u l d have obtained Primm’s medical

rec ords—on the g rounds that the court was “loath” to s e c o n d-guess trial counsel’s strateg ic decisions and L eonar d had not shown a rea sonable probability that the outcome of his tria l w ould ha ve been differ ent if his trial counsel ha d pursued a differ ent strateg y . Id. On a related issue, the Michig an Court of Appea ls ag ree d with L eonar d that Dr. Sweene y ’s expert opinions wer e inadmissible hear say under Michig an Rules of Evidence 703 beca use Primm’s medical r ecor ds were not admitted into evidence and the residents who trea ted her did not testify

. Id. at *6. The court revie wed the matter for plain err or, however, b ec ause L eonar d did not object at trial. Id. The c ourt observe d: I ndeed, defe ndant q u es t i o ned Dr. Sweene y on the basis of t he same impermissible evidenc e and established sever al fac ts in defe ndant’s favor , including the exis tence of heroin in Primm’s blood, a lack of injury to Primm’s skull or vital or g ans, a lack of stab wounds, a

lack of any indication that Primm lost a n unusually larg e amount o f b l o o d , and the fac t that the lace rations Primm rec eived could have come from fing erna ils other than a knife. Fur thermore , there was alre ady considera ble evidenc e that defe ndant inflicted substantial inju ry on Primm. Thus, althoug h admission of the testimony constituted plain err or beca use it was clea

rly inadmissible as a matter of law, the err or did not “re sult[ ] in the conviction of an actua lly innocent defe ndant” or “‘se riously aff

ect[] the fairne ss, integ ri t y o r public reputa tion of judicial proce eding s.’”.

. . Fu rt h er , we do not believe this testimony was misleading under MRE 403. Id. The Michig an Supreme Court denied L eonar d’s application for leave to appea l. People v. Leonard , 717 N.W.2d 887 (Mich. 2006).

7I n the fede ral habea s petition, L eonar d asser ted numerous claims. The district court denied the petition, Leon a r d v. W olfenbarger , No. 07-10836, 2010 WL 1526466 (E.D. Mich. Apr. 16, 201 0 ), b u t g rante d L eonar d a cer tificate of appea lability only on the claim that trial counsel was ineffe ctive for failing to investigate P rimm’s medical recor ds. L eonard v. W olfenbarger , No. 07- 10836, 2010 WL 2232248, *2 (E.D. Mich. J u n e 2 , 2010). This court declined to expand the

cer tificate of appea lability

. II. ST ANDAR D OF REVIEW I n a § 2254 habea s proce eding , we revie w th e d i strict court’s leg al conclusions de novo, apply ing the standards set forth in the Antiterror ism and Effe ctive Death Penalty Act of 1996 (“A EDPA”). See Mo o r e v. Berghuis , 700 F.3d 882, 886 (6th Cir. 2012). We may g rant a habea s petition on a claim that was adjudicate d on the merits in state court if the adjudication of the claim “re sulted i n a d ec i s i o n that was contra ry to, or involved an unrea sonable application of, clea rly established F eder al law, as de termined by the Supreme Court of the United States” or “ resulted in

a decision that was based on an unrea sonabl e d et ermination of the fac ts in light of the evidenc e p re sented in the State court proce eding .” 28 U.S.C. § 2254(d)( 1) & (2). A state court d ec i s i o n amounts to a

n unrea sonable application of clea rly established fede ral law if it acc urate ly identifies the g overning leg al rule but a pplies it in an unre asonable manner to the fac ts of the ca se befor e it. Moore , 700 F.3d at 886. L eonar d must show that the state court’s ruling on the claim “wa s so lacking in jus t i fi ca t i o n that there was an err or well understood and compre hended in exis ting law bey ond any possibili ty of fairminded disag ree ment.” Harrington v. Richter , 131 S. Ct. 770, 786–87 (2011).

8III. ANALYSIS

The familiar rule by which courts measure ineffe ctive assistance claims was set forth by the Supreme Court in Strickland , 466 U.S. at 687: First, the defe ndant must show that counsel’s perf orm an ce was defic ient. This require s sho wing that counsel made err ors so serious that counsel was not functioning as the “counse l” g uara nteed the d ef

en d an t by the Six th Amendment. Second, the defe ndant must show that th e defic ient perf ormanc e prejudice d the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable. Scrutiny of counsel’s perf ormanc e is highly defe rential. Id. at 689. The reviewing court must try t o el i minate “the distorting eff ects of hindsight,” rec onstruct the circ umstances of the challen ged conduct, and “e v al u at e the conduct from counsel’s perspe ctive.” Id. Fur ther, the court “must ind u l ge a s t rong presumption that counsel’s conduct falls within the wide rang e of rea sonable profe ssional assistance ; that is, the defe ndant must o verc ome the presumption that, under the circ umstances, the challeng ed action ‘mig ht be con s i d er ed s o und trial strateg y .’” Id. A strateg ic choice made “af

ter less than complete investigation [i s] rea sonable prec isely to the extent that

rea sonable profe ssional judgme nts support the limit ations on investigation.” Id. at 690–91. This

means that “counse l has a duty to make rea sonable investiga tions or to make a rea sonable decision that makes pa

rticular investigations unne cessa ry .” Id. at 691. A dec ision not t o investigate “must be direc tly assessed for rea sonablene ss in all the circ umstances, applying a heavy measure of defe renc e to counse l’s judgme nts.” Id. The Michig an Court of Appea ls reje cted L eonar d’s cla i m t h at trial counsel should have investi gat ed P rimm’s medical rec ords beca use it was “loath” to second- g uess counsel’s strateg ic decision and beca

use L eonar d did not demonstrate a rea sonable probability that the outcome of his

9trial would have been differe nt if h i s lawy er had pursued a differ ent s trategy . Leonard , 2005 WL

3556116, at *3. The district court ag ree d, noting that many of the fac ts L eonar d believed could have been established throug h further investigation and discovery wer e in fac t prese nted to the jury at trial, and L eonar d mere ly specula ted when he asser

ted that additional investigation into Primm’s medical

rec ords would have disclosed less sever e injuries. Leo n a r d , 2 0 1 0 W L 1526466, at *2–3. The district court conclude d that, “eve n if defe nse counsel’s perf ormanc e was d ef

i cient based on his failure to conduct further investigation or obtain discovery , any defic iency di d n o t p rejudice [L eonar d’s] defense .” Id. at *3. We defe r to the decision of the Michig an Court of Appea ls that L eonar d’s trial counsel made

a rea sonable strateg ic decision when he did not conduct further investigation into Primm’s medical

rec ords. L eonar d did not deny that he assault ed P ri m m . C o nsidering the sever ity of her fac ial injuries as documented in the photogr aphs seen by the jury , defe nse counsel rea sonably deter mined that L eonar d’s best chanc e for acquittal was to convince the jury that L eonar d did not intend to kill P ri m m. Be cause the trial rec ord clea rly confirms that defe nse counsel pursued this theor y fr o m opening s ta

te me n t th r oug h closing argument, the rec ord is sufficie ntly detailed that a Ginther hear ing in state court was not nece ssary . See W ashington v. Renico , 455 F.3d 722, 731 n.4 (6th Cir. 2006); People v. Bero , 425 N.W.2d 138, 142 (Mich. Ct. App. 1988) (re viewing claim without r emand for evidentiar y hear ing wher e available rec ord contains sufficie nt detail to permit the court to decide the issue); People v . Johnson , 373 N.W.2d 263, 266 (Mich. Ct. App. 1985) (same)

. I n support of the theory that L eonar d did not intend to kill, defe nse counsel e licited fac tual testimony from Dr. Sweene y that Primm did not sustain skull fra cture s, stab wounds, or injuries to major org ans, there by demonstrating that her injuries wer e not ne cessa rily life-thre atening , even if

10they wer e serious. By bring ing out these fac ts throug h the doctor’s own words, counsel impressed

t h e p o i n t on the minds of the jurors more eff ectively than if he had resor ted to complex med i ca l

rec ords to make the same point. I n addition to mitigating the sever ity of Primm’s injuries, counsel also succe ssfully informed the jury , ag ain throug h Dr. Sweene y , that Primm ar rived at the hospital with trac es of heroin or some other opi at e i n h er blood, thus calling her cre dibilit y into question. Throug h other witnesses, defe nse counsel drew a timeline indicating that L eonar d had more than ample time to murder Primm if that was his ultimate plan, but he did not kill her. The jury ’s decision to convict L eonar d does not war rant an infere nce that defe nse counsel’s perf ormanc e fell outside the wide rang e of rea sonable profe ssional assistance

. See Strickland , 466 U.S. at 689. Under the circ umstances prese nted, L eonar d failed to overc ome the presumption that his lawy er’ s action was soun d t ri al s t ra t eg y . Id. He also failed to show that his counsel’s perf ormanc e pre

judiced him—that is, “ that there is a rea sonable probability that, but f or counse l’s unprofe ssional err ors, the result of the p ro ce ed ing would have been differ ent.” Id. at 694. A

rea sonable probability is one “suff icient to undermine confide nce in the outcome.” Id. We are not persua ded that L eonar d met this standard beca use he offe red nothing to show that Primm’s medical

rec ords, if introduce d into evidence , would have sw ay ed the jury to acquit. Finally , the district court did n o t ab u s e its discretion in denying L eonar d an evidentiar y hear ing on his ineffe ctive assistance claim. We a re “limited to the rec ord that was befor e the state court that adjudicate d the claim on the merits.” Robinson v. Howes , 66 3 F. 3 d 8 1 9 , 823 (6th Cir. 2011).

11IV. CONCLUSION

For these rea sons, L eonar d is not entitled to fede ral habea s relief

. The state court’s adjudication of the claim did not result “in a decision that was contra ry to, or involved an

unrea sonable application of, clearly established Feder al l aw, as determined by the S upreme Court of the United States.” 28 U.S.C. § 2254(d)( 1); Moore , 700 F.3d at 886. Acc ording ly , we AFF I RM.

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