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 _________________

STANLEY FITZPATRICK,

Petitioner-Appellant,

v.

NORM ROBINSON, Warden,

Respondent-Appellee.

X

-

-

-

-

>

,

-

-

N

No. 09-4515

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

_________________

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 three1
No. 09-4515 Fitzpatrick v. Robinson Page 2

1

At the same time, Petitioner’s trial counsel moved for the appointment of a mitigation specialist,

James Crates, which was also granted.

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.
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 threejudge 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 threejudge 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 “substanceinduced 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

2

He has abandoned most of these grounds before our Court.

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.
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

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).

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).
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

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).

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
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.