621 F.3d 406 (6th Cir. 2010), 03-4085, Post v. Bradshaw

Docket Nº:03-4085.
Citation:621 F.3d 406
Opinion Judge:ALICE M. BATCHELDER, Chief Judge.
Party Name:Ronald POST, Petitioner-Appellant, v. Margaret BRADSHAW, Warden, Respondent-Appellee.
Attorney:Rachel Troutman, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Holly E. LeClair, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Rachel Troutman, Ohio Public Defender's Office, Columbus, Ohio, Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio,...
Judge Panel:BATCHELDER, C.J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 428-33), delivered a separate dissenting opinion. Before BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges. COLE, Circuit Judge, dissenting.
Case Date:September 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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621 F.3d 406 (6th Cir. 2010)

Ronald POST, Petitioner-Appellant,

v.

Margaret BRADSHAW, Warden, Respondent-Appellee.

No. 03-4085.

United States Court of Appeals, Sixth Circuit.

September 13, 2010

Argued: June 15, 2010.

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ARGUED:

Rachel Troutman, Ohio Public Defender's Office, Columbus, Ohio, for Appellant.

Holly E. LeClair, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Rachel Troutman, Ohio Public Defender's Office, Columbus, Ohio, Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio, for Appellant.

Holly E. LeClair, Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

BATCHELDER, C.J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 428-33), delivered a separate dissenting opinion.

Before BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Chief Judge.

Ronald Post, an Ohio death-row inmate, appeals from the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons that follow, we affirm the district court's denial of the petition for a writ of habeas corpus.

I.

During the early morning hours of December 15, 1983, Post robbed an Elyria, Ohio, hotel and murdered the clerk on duty, Helen Vantz. State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754, 756 (1987). He subsequently admitted his involvement in the crimes to numerous persons,1 including

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two Elyria police detectives and a fellow prisoner, Richard Slusher. Id. Several of these people had had no involvement in the crimes or their planning. See id.

Post was indicted by a Lorain County, Ohio, grand jury on April 17, 1984, on one count of aggravated robbery with a firearm specification (count one), and two counts of aggravated murder, each with two specifications: a firearm specification, and a specification that Post was the principal offender in an aggravated robbery that led to the murder, and that he committed the murder with prior calculation and design (counts two and three). Id. at 756-57. He pleaded not guilty.

Before trial, Post's counsel retained polygraph examiner Robert M. Holmok as a defense expert. In addition to his polygraph examination business, Holmok was a detective for the Lakewood Police Department, in an adjacent county. On May 21, 1984, Holmok interviewed Post in the Lorain County jail, while preparing to give him a polygraph test. No one else was present. During this interview, Post confessed to the robbery and murder, and signed a statement: " The following statement is only to be given to my attorney Ernie Hume & is not to be admitted in court against me. I did the robbery of the Slumber Inn & shot the clerk, Helen."

The prosecutor called Holmok some time after this interview and asked if Post had confessed, but Holmok refused to divulge that information. On July 16, 1984, the State added Holmok to its witness list.

On July 29, 1984, a jailhouse informant, Richard Slusher, wrote the prosecution that on that day, Post had confessed to Slusher his involvement in the murder. While Slusher's letter details Post's confession, it contains no reference to Holmok.

The State subpoenaed Holmok to appear before the grand jury on August 1, 1984, and ordered him to bring all documents relating to interviews he had with Post. Post moved to quash, and the State withdrew the subpoena, instead filing a motion in limine to determine whether Holmok could testify regarding his pre-polygraph interview with Post. Post moved to exclude Holmok's testimony.

At a pre-trial hearing on the matter, the State called Slusher as a witness; Slusher testified that: (1) Post told him in August that he had signed a written confession for Holmok; and (2) Post had admitted to Slusher that the confession was true. On November 29, 1984, the trial court ruled that the written confession and Holmok's testimony were admissible because Post's disclosure to Slusher waived any attorney-client privilege.

The following day, a plea hearing was held. Earlier, the State had offered Post a plea agreement in which, in return for his plea of guilty, Post would be given a life sentence. His counsel, in light of the evidence that Post had confessed to several different individuals, had urged him to accept that deal, but Post had refused to plead guilty. State v. Post, 1997 WL 10141, at *1-2 (Ohio Ct.App. Jan. 3, 1997) (unpublished). At the plea hearing, Post waived his right to a jury trial, agreed to proceed before a three-judge panel, and changed his plea to no contest, pursuant to an agreement with the State that he would be permitted to change his previously submitted motion in limine-to prevent the prosecution from using the Holmok evidence-to a motion to suppress. Post, 513 N.E.2d at 757. Post's counsel hoped that,

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inasmuch as there were no statutory mitigating factors Post could present to the court, the court might at least consider the no contest plea in mitigation.

At the beginning of the hearing before a three-judge panel, the State noted its intention to present a statement of facts to establish the elements of the offenses, after Post's plea had been accepted. Defense counsel, who had previously read the prosecutor's statement of facts, said that it omitted the fact that the court had ruled Holmok's testimony admissible. Defense counsel objected to the omission, describing it as " a crucial element involved in the entering of the plea," and " evidence which we intend to take up on appeal." The prosecutor responded that he did not intend to include the Holmok confession in his statement of facts. The court made no specific ruling on the objection.

The court, after interviewing Post to determine whether his plea was knowing, intelligent, and voluntary, accepted the no-contest plea. The prosecutor then read the statement of facts to which Post's counsel again objected, reiterating their view of the importance of the Holmok confession. The court found Post guilty on all counts.

On March 12, 1985, the three-judge panel heard evidence of the aggravating and mitigating factors and imposed sentence. The panel found that the State had proved one aggravating circumstance, that Post was the principal offender and had committed a murder while committing an aggravated robbery and in possession of a firearm. It considered Post's no-contest plea and found that it failed as an act of contrition. Finding that there were no other mitigating circumstances, the court imposed the death sentence. It also imposed a 10-25 year sentence for the aggravated robbery offense and a three year sentence for the firearm specification. Post, 513 N.E.2d at 757. The conviction and sentence were left undisturbed by direct appeal and state post-conviction proceedings.

In 1997, Post sought federal habeas relief, raising thirteen claims: (1) his counsel rendered ineffective assistance in the guilt phase; (2) his counsel's ineffectiveness rendered his no-contest plea involuntary; (3) an invalid jury waiver rendered the no-contest plea involuntary; (4) someone on the defense team leaked privileged information to the State, thus violating Post's rights to due process, fair trial, and the effective assistance of counsel; (5) the State's use of a jailhouse informant to elicit incriminating statements from Post violated his right to counsel, in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); (6) the State failed to disclose favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (7) his counsel were ineffective in the penalty phase; (8) his counsel were ineffective for failing to prepare an adequate social history for the psychological expert to use in evaluating Post; (9) the trial court improperly admitted victim-impact statements in the penalty phase; (10) due to various errors, the trial court's sentencing determination was improper; (11) the trial court erred in failing to hear evidence to determine whether the charged aggravator existed; (12) Ohio's capital scheme is unconstitutional on its face and as applied; and (13) the Ohio appellate courts failed to perform a meaningful proportionality review. The district court denied the habeas petition and dismissed it with prejudice, but granted a certificate of appealability (" COA" ) on seven claims, namely claims 1, 2, 5, 7, 9, 10, and 11. Post timely appealed, asking this court to expand the COA to include claims 4 and 6, and moved this court to remand

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the case to the district court for resolution of some discovery issues. We denied the motion, Post v. Bradshaw, 422 F.3d 419 (6th Cir.2005), but the Warden withdrew her opposition to Post's motion to expand the COA and asked this court to set a briefing schedule on the issues certified by the district court and on those that Post had asked this court to include in the COA. This court set a briefing schedule, thus impliedly granting the motion to expand the COA to include claims 4 and 6.

II.

We review a district court's denial of a petition for writ of habeas corpus de novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir.2010). But because Post filed his federal petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), the AEDPA standards govern. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a writ may not be granted unless the state court's adjudication...

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