Spisak v. Coyle, Case No.: 1:95 CV 2675 (N.D. Ohio 4/18/2003), Case No.: 1:95 CV 2675.
| Decision Date | 18 April 2003 |
| Docket Number | Case No.: 1:95 CV 2675. |
| Parties | FRANK G. SPISAK, JR., Petitioner, v. RALPH COYLE, WARDEN, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Frank G. Spisak, ("Spisak" or "Petitioner") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Spisak submitted a Petition on April 9, 1997 (Doc. No. 19). Spisak challenges the constitutional sufficiency of his jury convictions for four counts of aggravated murder with nineteen death penalty specifications, three counts of aggravated robbery, and one count of attempted murder. Spisak also challenges the trial court's imposition of the death penalty for his murder convictions. The Respondent, represented by the Ohio Attorney General, filed a Return of Writ (Doc. No. 35), to which Spisak filed a Traverse on September 24, 1997 (Doc. No. 79).
For the reasons discussed below, the court denies Spisak's Petition for writ of habeas corpus.
On March 29, 1983, the Cuyahoga County Grand Jury indicted Spisak on four counts of aggravated murder in violation of Ohio Rev. Code § 2903.01; three counts of aggravated robbery in violation of Ohio Rev. Code § 2911.01; one count of attempted murder in violation of Ohio Rev. Code § 2903.02, and one count of receiving stolen property in violation of Ohio Rev. Code § 2913.51. Pursuant to Ohio Rev. Code § 2929.04(A), the aggravated murder counts contained nineteen death penalty specifications.
Spisak entered a plea of not guilty by reason of insanity as to all counts on April 8, 1983. Prior to trial, the court ordered Spisak to be evaluated by Dr. Phillip Resnick, a psychiatrist, pursuant to Ohio Rev. Code § 2945.39. Upon Spisak's request, the court ordered he also be evaluated by Dr. Sandra McPherson, Dr. Kurt Bertschinger, Dr. S.M. Samy and Dr. Oscar Markey. Thereafter, the court held a hearing to determine whether Spisak was competent to stand trial. Dr. Resnick determined that Spisak was competent to stand trial. The court agreed with Dr. Resnick's findings.
Spisak also moved to suppress evidence seized at the search of his home on September 4, 1982. The court held a hearing on the motion but subsequently denied it, finding that Spisak's Fourth and Fourteenth Amendment rights were not violated during the police search and seizure of guns found in Spisak's apartment.
Following trial, a jury convicted Spisak on July 27, 1983, of all counts and specifications, with the exception of one of the aggravated robbery counts. After the mitigation phase of the trial, the jury determined the aggravating circumstances outweighed the mitigating factors and recommended a sentence of death. The trial court accepted the jury's recommendation and sentenced Petitioner to death for each charge of aggravated murder on August 10, 1983. In addition, the trial court sentenced Spisak to terms of seven to twenty-five years on each conviction of attempted murder and aggravated robbery.
Spisak timely appealed his convictions to the Ohio Court of Appeals for the Eighth District.1 The Court of Appeals affirmed the conviction after vacating the aggravated murder conviction on the fifth count of the indictment as well as the five specifications attached thereto. State v. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio Ct. App. July 19, 1984).2 On September 12, 1984, Spisak filed a timely Notice of Appeal to the Ohio Supreme Court.
Thereafter, Spisak received new counsel from the Ohio Public Defender Commission, who filed a motion to remand the case based upon previous counsel's failure to have the entire trial transcript submitted to the appellate court as required by Ohio Rev. Code § 2929.03(G). The Ohio Supreme Court granted the motion and ordered the Court of Appeals to undertake a second review after receiving the supplemented record. Spisak then moved the Court of Appeals to permit him to raise additional assignments of error. The court denied the motion and reaffirmed Spisak's convictions and death sentence. Spisak again filed a motion to remand with the Ohio Supreme Court, requesting that court to instruct the Court of Appeals to permit Spisak's new counsel to raise additional issues. On November 6, 1985, the Ohio Supreme Court granted the motion "with specific instructions to the court that counsel for Appellant be permitted to participate in the review process as required by the Sixth and Fourteenth Amendments of the United States Constitution." Petition at 11.
After accepting a new twenty-page brief and holding two hearings in which Spisak's new counsel participated, the Court of Appeals again affirmed Spisak's convictions. State v. Spisak, No. 82884, slip op. . On July 21, 1986, Spisak moved the Ohio Supreme Court for a third remand, alleging that the Court of Appeals failed to follow the Supreme Court's November 6, 1985 Order. The Supreme Court, however, denied the motion.
On November 24, 1986, Spisak filed a merit brief with the Ohio Supreme Court raising sixty-four propositions of law.3 The Ohio Supreme Court affirmed Spisak's conviction. State v. Spisak, 521 N.E.2d 800 (Ohio 1988). Spisak then petitioned the United States Supreme Court for a writ of certiorari, but his petition was denied.4 Spisak v. Ohio, 489 U.S. 1071 (1989).
On November 1, 1989, Spisak filed a petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21.5 The trial court denied Spisak relief on June 12, 1992, State v. Spisak, No. CR 181411, slip op. (Ohio Ct. Common Pleas June 11, 1992). The Court of Appeals affirmed the trial court's decision. State v. Spisak, No. 67229, 1995 WL 229108 (Ohio Ct. App. Apr. 13, 1995). Thereafter, Spisak attempted to file an application to re-open his direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B). The Court of Appeals determined, however, that Spisak could not demonstrate "good cause," required under the statute, for filing his application more than ninety days after the journalization of his direct appeal. State v. Spisak, 652 N.E.2d 719 (Ohio Ct. App. 1995). Thus, the Court of Appeals denied Spisak's application.
Spisak next filed a Notice of Intent to file a petition for writ of habeas corpus with this court on December 15, 1995 (Doc. No. 1). After filing the Petition, Spisak moved the court to stay his execution on June 13, 1997 (Doc. No. 54). The court granted the motion (Doc. No. 60).
When the Ohio Supreme Court considered Spisak's direct appeal, it set out the factual history of the case as revealed by the evidence adduced at Spisak's trial. State v. Spisak, 521 N.E.2d 800, 800-01 (Ohio 1988). This court repeats that factual history here, using the Ohio Supreme Court's language.
On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Rickerson had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene.
On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as Petitioner, Frank G. Spisak. Three pellets and seven shell casings were recovered from the scene.
At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered Spisak, holding a gun, who ordered her back into the stall. Instead, Dartt shoved Spisak out of the way and ran down the hallway. Spisak shot at her, but missed. A pellet was later removed from a wall in the hallway. Dartt identified Spisak as her assailant.
On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Sheehan had been shot four times, and two pellets were retrieved from the scene.
On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Warford died from a single gunshot wound to the head, although five spent .22 caliber casings were recovered from the scene.
On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to Spisak's apartment and Spisak, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Spisak made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded.38 caliber handgun and a two-shot derringer under the couch cushions. Spisak was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond. The weapons, however, were confiscated. Early the next day, an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Spisak was later arrested, hiding in the basement of a friend's house. During a brief search of Spisak's suitcase at the scene, police discovered the beeper pager belonging to Sheehan.
Spisak later admitted to shooting Rickerson for allegedly making homosexual advances toward him; to killing Sheehan as a possible witness to the...
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