Biros v. Bagley

• Decision Date: 09 September 2005
• Docket Number: No. 03-3067.,No. 03-3107.,03-3067.,03-3107.
• Parties: Kenneth BIROS, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 379

422 F.3d 379

Kenneth BIROS, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.

No. 03-3067.

No. 03-3107.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2005.

Decided and Filed: September 9, 2005.

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ARGUED: Daniel R. Ranke, Office of the Attorney General, Cleveland, Ohio, for Appellant. John Patrick Parker, Cleveland, Ohio, for Appellee. ON BRIEF: Daniel R. Ranke, Office of the Attorney General, Cleveland, Ohio, for Appellant. John Patrick Parker, Cleveland, Ohio, Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellee.

Before: SILER, GIBBONS, and SUTTON, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

An Ohio state jury convicted Kenneth Biros of aggravated murder with two death penalty specifications, felonious sexual penetration, aggravated robbery, and attempted rape. The trial court followed the jury's recommendation and sentenced Biros to death. His convictions and sentence were affirmed on direct appeal, State v. Biros, 78 Ohio St.3d 426, 678 N.E.2d 891 (1997), and he unsuccessfully sought post-conviction relief in state court, State v. Biros, No. 98-T-0051, 1999 WL 391090 (Ohio Ct.App. May 28, 1999). Biros later filed an application to reopen his appeal, which the Ohio Supreme Court denied on the merits. State v. Biros, 93 Ohio St.3d 250, 754 N.E.2d 805 (2001).

In September 2001, Biros filed a petition for writ of habeas corpus in federal district court, alleging twenty-five claims of error. The district court granted the writ as to his sentence of death and denied the writ as to his remaining claims. Margaret Bagley, a warden for the State of Ohio, appeals the district court's judgment and order granting a partial writ of habeas corpus under 28 U.S.C. § 2254 vacating Biros's death sentence. Biros cross-appeals from the district court's denial of his petition as to the claims challenging his underlying convictions. For the reasons set forth below, we reverse in part and affirm in part.

I.

In 1991, an Ohio state jury convicted Biros of the aggravated murder (with two death penalty specifications), felonious sexual penetration, aggravated robbery, and attempted rape of Tami Engstrom. Engstrom left work early due to illness on the night of February 7, 1991, and drove from Hubbard, Ohio, to the Nickelodeon Lounge in Masury, Ohio, to visit her uncle, Daniel Hivner. Engstrom consumed several alcoholic drinks at the Nickelodeon. Petitioner, Kenneth Biros, arrived at the Nickelodeon around 11:00 p.m., approximately one hour after Engstrom's arrival. Biros knew Hivner but had never met Engstrom. By midnight Engstrom had passed out at the Nickelodeon. At approximately 1:00 a.m., Hivner and Biros assisted Engstrom in moving from the bar to the parking lot. Once outside, Engstrom insisted on driving herself home, but Hivner determined that she was too intoxicated to drive and took her keys away from her. According to Hivner, it was at this point that Biros offered to take Engstrom for coffee in order to counteract the effects of the alcohol. Biros and Engstrom left the Nickelodeon parking lot at approximately 1:15 a.m. in Biros's car. Hivner waited at the bar past closing time for Biros to return with Engstrom, but Biros never returned.

The following day Andy Engstrom, Tami Engstrom's husband, drove to Biros's home after learning that Engstrom was last seen with Biros. Biros claimed that he tapped Engstrom on the shoulder while they were in the car and she "freaked out, got out of the car and started running through these people's yards on Davis Street" in Sharon, Pennsylvania. Biros told similar stories to several other people on February 8.¹ Several of the individuals Biros spoke to observed cuts and scratches on Biros's hands and a fresh wound over his right eye. Biros explained that he injured his hands when he locked himself out of his house and had to break a window and cut his eye while chopping wood. Biros assisted Engstrom's relatives in searching for her in the area where he claimed to have last seen her.

Biros lived in Brookfield Township, Ohio, with his mother and brother. On the morning of February 8, Biros's mother found a gold ring on the bathroom floor of their home. Biros first told his mother that he knew nothing about the ring when she questioned him, but later said that it might belong to the woman who jumped out of his car early that morning. Biros then took the ring and told his mother he would return it to the Nickelodeon. Rather than returning the ring to the bar, Biros hid it in the ceiling of his house.

On February 9, police officers called Biros's home and left a message requesting that he come to the police station for questioning. Upon hearing the message, Biros drove to the police station to discuss Engstrom's disappearance with Brookfield Township, Ohio, and Sharon, Pennsylvania, police officers. The officers informed Biros that he was not under arrest and was free to leave at any time. Biros repeated the same story that he had previously told Engstrom's family and friends. Specifically, Biros told police that he left the Nickelodeon with Engstrom early in the morning on February 8 to get coffee and food in Sharon, Pennsylvania. Biros claimed that Engstrom passed out in his car, but later woke up while Biros was withdrawing money from an automated teller machine. According to Biros, Engstrom insisted that he drive her back to the Nickelodeon. Biros told police that as he was driving on Davis Street in Sharon, Pennsylvania, Engstrom jumped from the vehicle and ran away. When asked whether Engstrom might have left her purse in his vehicle, Biros responded that he had cleaned the vehicle and found no purse.

During the interview, Captain John Klaric began to question Biros's account of the events leading up to Engstrom's disappearance. Klaric suggested that perhaps Biros had made a sexual advance toward Engstrom, which might have caused her to flee from the vehicle. Biros denied making any sexual advances. Klaric also suggested that perhaps Biros had made a sexual advance and Engstrom jumped from the vehicle and struck her head. Biros also denied this hypothesis. After further questioning, Klaric suggested that maybe an accident had occurred during which Engstrom fell out of the car and struck her head. It was at this point that Biros responded "yes," and admitted that he had done something "very bad." Klaric offered to speak to Biros alone and Biros agreed. According to Klaric, after the other police officers left the room, Biros told him, "It's like you said, we were in the car together. We were out along the railroad tracks. I touched her on the hand. Then I went further. I either touched or felt her leg. She pushed my hand away. The car wasn't quite stopped. She opened the door and fell and struck her head on the tracks." Biros told Klaric that Engstrom was dead and that the incident occurred along the railroad tracks near King Graves Road in Brookfield Township. At that point, police informed Biros of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Biros signed a written waiver of his Miranda rights and then repeated his story to Detective Rocky Fonce of the Brookfield Township Police Department. Biros told police that Engstrom's body was in Pennsylvania. When police requested that Biros give them an exact location, Biros asked to speak to an attorney. After consulting with an attorney, Biros agreed to show police the location of Engstrom's body.

Ohio authorities discovered several of Engstrom's severed body parts in a desolate wooded area of Butler County, Pennsylvania on February 10. Police found other portions of Engstrom's body in a desolate wooded area of Venango County, Pennsylvania, approximately thirty miles north of the Butler County site. Engstrom's head and right breast had been severed from her torso. Her right leg had been amputated above the knee. The body was completely naked except for what appeared to be remnants of black leg stockings that had been purposely rolled down to Engstrom's feet or ankles. The torso had been cut open and the abdominal cavity was partially eviscerated. The anus, rectum, and all but a small portion of her sexual organs had been removed and were never recovered by the police.

Forensic technicians and law enforcement investigators searched the area of the railroad tracks where Biros had indicated that the incident with Engstrom occurred. The investigators discovered a large area of bloodstained gravel near the tracks, blood spatters on the side of one of the steel tracks, and numerous other bloodstains in the same general area. Bloodstains and swabbings of blood collected at the scene were tested and found to be consistent with Engstrom's blood. Investigators also found what appeared to be part of Engstrom's intestines in a swampy area near the railroad tracks. DNA testing confirmed that the intestines recovered were part of Engstrom's remains. Approximately one month later, investigators found Engstrom's black leather coat partially buried near the tracks. There were two cuts or slash marks on or near the collar of the coat. Engstrom's house keys and a tube of lipstick were also found in a shallow hole near the coat. One of Engstrom's black leather shoes was also found in the area near the tracks.

A number of items were also recovered by police during a search of Biros's house including a bloodstained pocket knife, another much larger knife, a bloodstained coat later identified as the coat Biros wore to the Nickelodeon, and a pair of size eleven tennis shoes. The bloodstains from Biros's pocket knife and coat were tested and found to be consistent with Engstrom's blood. Additionally, a hair found embedded in a seam near the tread of one of the tennis shoes was tested and found to be consistent with known...