Smith v. Spisak

• Decision Date: 12 January 2010
• Docket Number: No. 08–724.,08–724.
• Citation: 558 U.S. 139,78 USLW 4031,130 S.Ct. 676,175 L.Ed.2d 595
• Parties: Keith SMITH, Warden, Petitioner, v. Frank G. SPISAK, Jr.
• Court: U.S. Supreme Court

558 U.S. 139

130 S.Ct. 676

175 L.Ed.2d 595

78 USLW 4031

Keith SMITH, Warden, Petitioner,

v.Frank G. SPISAK, Jr.

No. 08–724.

Supreme Court of the United States

Argued Oct. 13, 2009.

Decided Jan. 12, 2010.

Syllabus^*

After the Ohio courts sentenced respondent Spisak to death and denied his claims on direct appeal and collateral review, he filed a federal habeas petition claiming that, at his trial's penalty phase, (1) the instructions and verdict forms unconstitutionally required the jury to consider in mitigation only those factors that it unanimously found to be mitigating, see Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384, and (2) his counsel's inadequate closing argument deprived him of effective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The District Court denied the petition, but the Sixth Circuit accepted both arguments and ordered relief.

Held:

1. Because the state court's upholding of the mitigation jury instructions and forms was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by [this] Court,” 28 U.S.C. § 2254(d)(1), the Sixth Circuit was barred from reaching a contrary decision. The Court of Appeals erred in holding that the instructions and forms contravened Mills, in which this Court held that the jury instructions and verdict forms at issue violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist, 486 U.S., at 380–381, 384, 108 S.Ct. 1860. Even assuming that Mills sets forth the pertinent “clearly established Federal law” for reviewing the state-court decision in this case, the instructions and forms used here differ significantly from those in Mills: They made clear that, to recommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously. Nor did they say anything about how—or even whether—the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall question of balancing the aggravating and mitigating factors, and they repeatedly told the jury to consider all relevant evidence. Thus, the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the constitutional error in the Mills instructions. Pp. 680–85.

2. Similarly, the state-court decision rejecting Spisak's ineffective-assistance-of-counsel claim was not “contrary to, or ... an unreasonable application” of the law “clearly established” in Strickland. § 2254(d)(1). To prevail on this claim, Spisak must show, inter alia, that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, at 694, 104 S.Ct. 2052. Even assuming that the closing argument was inadequate in the respects claimed by Spisak, this Court finds no “reasonable probability” that a better closing argument without these defects would have made a significant difference. Any different, more adequate closing argument would have taken place in the following context: Spisak's defense at the trial's guilt phase consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. Counsel, apparently hoping to demonstrate Spisak's mentally defective condition, called him to the stand, where he freely admitted committing three murders and two other shootings and repeatedly expressed an intention to commit further murders if given the opportunity. In light of this background and for the following reasons, the assumed closing argument deficiencies do not raise the requisite reasonable probability of a different result but for the deficient closing. First, since the sentencing phase took place immediately after the guilt phase, the jurors had fresh in their minds the government's extensive and graphic evidence regarding the killings, Spisak's boastful and unrepentant confessions, and his threats to commit further violent acts. Second, although counsel did not summarize the mitigating evidence in great detail, he did refer to it, and the defense experts' more detailed testimony regarding Spisak's mental illness was also fresh in the jurors' minds. Third, Spisak does not describe what other mitigating factors counsel might have mentioned; all those he proposes essentially consist of aspects of the “mental defect” factor that the defense experts described. Finally, in light of counsel's several appeals to the jurors' sense of humanity, it is unlikely that a more explicit or elaborate appeal for mercy could have changed the result, either alone or together with the foregoing circumstances. The Court need not reach Spisak's claim that § 2254(d)(1) does not apply to his claim, because it would reach the same conclusion even on de novo review. Pp. 684–88.

512 F.3d 852, reversed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined, and in which STEVENS, J., joined as to Part III. STEVENS, J., filed an opinion concurring in part and concurring in the judgment.

Richard Cordray, Attorney General, Columbus, Ohio, for petitioner.

Michael J. Benza, appointed by this court, Chagrin Falls, Ohio, for respondent.

Richard Cordray, Attorney General of Ohio, Benjamin C. Mizer, Counsel of Record, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, David M. Lieberman, Deputy Solicitor, Columbus, Ohio, for Petitioner Keith Smith, Warden.

Michael J. Benza, Counsel of Record, Chagrin Falls, Ohio, Alan Rossman, Assistant Federal Public Defender, Cleveland, Ohio, for Respondent.

Justice BREYER delivered the opinion of the Court.

Frank G. Spisak, Jr., the respondent, was convicted in an Ohio trial court of three murders and two attempted murders. He was sentenced to death. He filed a habeas corpus petition in federal court, claiming that constitutional errors occurred at his trial. First, Spisak claimed that the jury instructions at the penalty phase unconstitutionally required the jury to consider in mitigation only those factors that the jury unanimously found to be mitigating. See Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Second, Spisak claimed that he suffered significant harm as a result of his counsel's inadequate closing argument at the penalty phase of the proceeding. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Federal Court of Appeals accepted these argumentsand ordered habeas relief. We now reverse the Court of Appeals.

I

In 1983, an Ohio jury convicted Spisak of three murders and two attempted murders at Cleveland State University in 1982. The jury recommended, and the judge imposed, a death sentence. The Ohio courts denied Spisak's claims, both on direct appeal and on collateral review. State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (1988)(per curiam);State v. Spisak, No. 67229, 1995 WL 229108 (Ohio App., 8th Dist., Cuyahoga Cty., Apr. 13, 1995); State v. Spisak, 73 Ohio St.3d 151, 652 N.E.2d 719 (1995)(per curiam).

Spisak then sought a federal writ of habeas corpus. Among other claims, he argued that the sentencing phase of his trial violated the U.S. Constitution for the two reasons we consider here. The District Court denied his petition. Spisak v. Coyle, Case No. 1:95CV2675 (ND Ohio, Apr. 18, 2003), App. to Pet. for Cert. 95a. But the Court of Appeals accepted Spisak's two claims, namely, his mitigation instruction claim and his ineffective-assistance-of-counsel claim. Spisak v. Mitchell, 465 F.3d 684, 703–706, 708–711 (C.A.6 2006). The Court of Appeals consequently ordered the District Court to issue a conditional writ of habeas corpus forbidding Spisak's execution. Id., at 715–716.

The State of Ohio then sought certiorari in this Court. We granted the petition and vacated the Court of Appeals' judgment. Hudson v. Spisak, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257 (2007). We remanded the case for further consideration in light of two recent cases in which this Court had held that lower federal courts had not properly taken account of the deference federal law grants state-court determinations on federal habeas review. Ibid.; see 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). On remand, the Sixth Circuit reinstated its earlier opinion. Spisak v. Hudson, 512 F.3d 852, 853–854 (2008). The State again sought certiorari. We again granted the petition. And we now reverse.

II

Spisak's first claim concerns the instructions and verdict forms that the jury received at the sentencing phase of his trial. The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, “require[d]” juror “unanimity as to the presence of a mitigating factor”—contrary to this Court's holding in Mills v. Maryland, supra.465 F.3d, at 708. Since the parties do not dispute that the Ohio courts “adjudicated” this claim, i.e., they considered and rejected it “on the merits,” the law permits a federal court to reach a contrary decision only if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Unlike the Court of Appeals, we conclude that Spisak's claim does not satisfy this standard.

The parties, like the Court of Appeals, assume that Mills sets forth the pertinent ...