668 F.3d 307 (6th Cir. 2012), 07-4285, Wogenstahl v. Mitchell

Docket Nº:07-4285.
Citation:668 F.3d 307
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:Jeffrey A. WOGENSTAHL, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Attorney:Andrew P. Avellano, Columbus, Ohio, for Appellant. Justin M. Lovett, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Andrew P. Avellano, Columbus, Ohio, Gregory W. Meyers, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Justin M. Lovett, Office of the Ohio At...
Judge Panel:Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges. GIBBONS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 343 - 44), delivered a separate opinion concurring in the judgment. KAREN NELSON MOORE, Circuit Judge, concurring in judgment.
Case Date:February 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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668 F.3d 307 (6th Cir. 2012)

Jeffrey A. WOGENSTAHL, Petitioner-Appellant,

v.

Betty MITCHELL, Warden, Respondent-Appellee.

No. 07-4285.

United States Court of Appeals, Sixth Circuit.

February 2, 2012

Argued: Aug. 3, 2010.

Rehearing and Rehearing En Banc Denied April 12, 2012.

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ARGUED:

Andrew P. Avellano, Columbus, Ohio, for Appellant. Justin M. Lovett,

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Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Andrew P. Avellano, Columbus, Ohio, Gregory W. Meyers, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Justin M. Lovett, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 343 - 44), delivered a separate opinion concurring in the judgment.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner-appellant Jeffrey A. Wogenstahl appeals the district court's order denying his 28 U.S.C. § 2254 petition for writ of habeas corpus seeking relief from both his conviction for aggravated murder with death specifications and his resulting death sentence. For the following reasons, we affirm the district court and deny Wogenstahl's petition.

I.

The facts underlying Wogenstahl's habeas case, as determined by the Ohio Supreme Court, are as follows:

Peggy Garrett was first introduced to Jeffrey A. Wogenstahl, appellant, in October 1991. During October and November 1991, [Wogenstahl] and Peggy became casual acquaintances. At the time, Peggy resided in a two-bedroom apartment at 301 Harrison Avenue, Harrison, Ohio, with her five children: Eric Horn, age sixteen, Justin Horn, age fifteen, Amber Garrett, age ten, Matthew Garrett, age eight, and Shayna Perkins, age four. During October and November 1991, [Wogenstahl] visited the apartment on several occasions and came to know Peggy's family.

[Wogenstahl] went to Peggy's apartment on Saturday afternoon, November 23, 1991. He asked Peggy if she had any plans for the evening. Peggy told [Wogenstahl] that she had no plans, and [Wogenstahl] left following a brief conversation. That night, Peggy put her three youngest children (Amber, Matthew and Shayna) to bed for the evening. At approximately 10:30 p.m., she decided to meet a friend, Lynn Williams, at a local bar. Justin was spending the weekend at a friend's house. Peggy left sixteen-year-old Eric in charge of the other children.

Peggy met Lynn Williams at the " Escape" bar sometime between 11:00 p.m. and midnight. From there, the women drove Lynn's car to the Miamitown Lounge, which was also known as " Hornsby's." At Hornsby's, Peggy and Lynn saw [Wogenstahl] at the bar. He was wearing a brown leather jacket and jeans. [Wogenstahl] joined the women for drinks and conversation. [Wogenstahl] asked Peggy where Justin was and what Eric and the other children were doing. Peggy told [Wogenstahl] that Justin was away for the weekend, and that Eric was home baby-sitting the children. At some point, the trio went outside to [Wogenstahl's] car to smoke marijuana.

On Sunday morning, at approximately 2:15 a.m., [Wogenstahl], Peggy and Lynn drove Lynn's car to the Flicker Inn. Later, the women drove [Wogenstahl] back to Hornsby's, where appellant's car was parked. [Wogenstahl] invited the women to his apartment to smoke marijuana, but Peggy and Lynn told [Wogenstahl] that they were going

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to the Waffle House restaurant. Peggy and Lynn then separated from [Wogenstahl] and drove directly to the Waffle House. After the women had arrived at the restaurant, a witness saw a car resembling [Wogenstahl's] dark-brown four-door 1978 Oldsmobile Omega pull into and then out of the restaurant parking lot.

At approximately 3:00 a.m., while the women were at the Waffle House, [Wogenstahl] drove to Peggy's apartment and spoke with Eric. According to Eric, [Wogenstahl] claimed that Peggy needed to see him (Eric) at Troy Beard's house. Beard was Peggy's friend who lived approximately three blocks from the apartment. Eric locked the door to the apartment, leaving the children unattended, and drove with [Wogenstahl] to the vicinity of Beard's residence. [Wogenstahl] dropped Eric off approximately one block from Beard's apartment. According to Eric, [Wogenstahl] said that he would drive around the block and then pick Eric up to drive him home. When Eric arrived at the residence, Beard told Eric that he (Beard) had not seen Peggy at all that evening. Eric left Beard's apartment and waited for [Wogenstahl] to drive him home. [Wogenstahl] did not return. Eventually, Eric walked home and found that the door to the apartment was unlocked. He checked on the children and noticed that ten-year-old Amber was missing. However, Eric mistakenly assumed that Amber might have been spending the night at a friend's house. Thus, he mentioned nothing to Peggy when she returned home later that morning.

On the morning of November 24, 1991, Vickie Mozena was working at a United Dairy Farmers store in Harrison, Ohio, near the Ohio-Indiana border. At approximately 3:15 a.m., Mozena saw a car resembling [Wogenstahl's] Oldsmobile drive past the store in the direction of Bright, Indiana. Mozena observed the silhouette of a man driving the vehicle, and what appeared to be a young girl next to him in the passenger's seat. Between 3:45 and 4:00 a.m., Mozena saw the same vehicle parked at a car wash across the street from the United Dairy Farmers store. The vehicle pulled out of the car wash and into the farthest corner of the United Dairy Farmers parking lot. The driver did not exit the vehicle for several minutes, and Mozena thought that she was about to be robbed. However, [Wogenstahl] exited the vehicle, came into the store, and purchased a pack of cigarettes. At that time, Mozena noticed what appeared to be dirt or blood under [Wogenstahl's] fingernails. Later that morning, Mozena once again saw [Wogenstahl's] car parked across the street at the car wash. According to Mozena, there was a man inside the car, presumably cleaning the interior.

Harold Borgman lived on Jamison Road between Harrison, Ohio, and Bright, Indiana. Borgman's home was located in a rural area of West Harrison, Indiana, approximately four miles from Harrison. At 3:13 a.m. on the morning of November 24, 1991, Borgman got out of bed to use the bathroom. Sometime later, he looked out the window and saw a car driving very slowly on Jamison Road toward the direction of Harrison. The driver pulled off to the side of Jamison Road, stopped, and turned off the headlights. Borgman continued to watch for several minutes, and observed two or three vehicles pass the parked car on Jamison Road.

On November 24, at approximately 3:40 a.m., Brian Noel was driving on Jamison Road toward Bright, Indiana.

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While driving near the location of Borgmans residence, Noel saw a late 1970s-model, dark-colored four-door vehicle parked off to the side of Jamison Road, the vehicle facing the opposite direction. Noel came to a rolling stop alongside the vehicle and observed a man apparently retrieving something from the trunk of the automobile. The man was wearing a dark jacket and blue jeans. Noel later identified [Wogenstahl] as the man he had seen on Jamison Road in the early morning hours of November 24. He also identified [Wogenstahl's] 1978 Oldsmobile as the car that had been pulled off to the side of Jamison Road.

On November 24, at approximately 3:40 a.m., Kathy Roth was driving on Jamison Road toward Bright, Indiana. While driving near the location of Borgman's residence, Roth saw a man wearing a brown leather jacket and blue jeans standing near a parked car off to the side of Jamison Road. As Roth drove past the vehicle, the man turned to face her, dropped his head, and then turned around to face the woods. Roth later identified [Wogenstahl] as the man she had seen on Jamison Road.

Frederick G. Harms was driving on Jamison Road on November 24, at approximately 3:40 a.m. Harms also saw the vehicle parked off to the side of Jamison Road. According to Harms, the vehicle resembled [Wogenstahl's] 1978 Oldsmobile Omega.

On Sunday afternoon, November 24, Peggy Garrett finally realized that Amber was missing. At that time, Eric told Peggy about [Wogenstahl's] 3:00 a.m. visit to the apartment. Peggy and others went to [Wogenstahl's] residence and knocked on the door for over an hour. When [Wogenstahl] finally answered, Peggy asked him why he had taken Eric to Troy Beard's apartment earlier that morning. [Wogenstahl] stated that he had been " messing with Eric's head," and claimed to have no knowledge of Amber's whereabouts. On the evening of November 24, 1991, [Wogenstahl] gave a similar statement to Officer Charles Lindsey of the Harrison Police Department.

On Monday, November 25, 1991, police executed a search warrant at [Wogenstahl's] residence. During the search, [Wogenstahl] was questioned concerning his movements on the morning of November 24. [Wogenstahl] admitted to having visited the Harrison Avenue apartment on November 24 at approximately 3:00 a.m. [Wogenstahl] told police that he had duped Eric out of the Harrison Avenue apartment as a practical joke. However, [Wogenstahl] stated that he went directly home to bed after having taken Eric to the vicinity of Troy Beard's apartment. Police then requested that [Wogenstahl] accompany them to the Harrison Police Department. [Wogenstahl] agreed to go to the police station and asked for his leather jacket. Officer Lindsey retrieved the jacket from the bedroom closet...

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