Spisak v. Mitchell, No. 03-4034.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtClay
Citation465 F.3d 684
PartiesFrank G. SPISAK, Jr., Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Decision Date20 October 2006
Docket NumberNo. 03-4034.
465 F.3d 684
Frank G. SPISAK, Jr., Petitioner-Appellant,
v.
Betty MITCHELL, Warden, Respondent-Appellee.
No. 03-4034.
United States Court of Appeals, Sixth Circuit.
Argued: March 14, 2006.
Decided and Filed: October 20, 2006.

[465 F.3d 687]

ARGUED: Alan C. Rossman, Cleveland, Ohio, for Appellant. Carol Ann Ellensohn, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, Ohio, for Appellee. ON BRIEF: Alan C. Rossman, Cleveland, Ohio, Kreig J. Brusnahan, Law Offices of Kreig J. Brusnahan, Avon Lake, Ohio, for Appellant. Carol Ann Ellensohn, Charles L. Wille, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, Ohio, for Appellee.

Before: MARTIN, MOORE, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.


This appeal is brought by death-sentenced Ohio prisoner, Frank G. Spisak, Jr., from the judgment of the district court dismissing Defendant's application for a § 2254 writ of habeas corpus. Defendant challenges his sentence and convictions on the following grounds: (I) that the trial court improperly struck the testimony and reports of expert witnesses and refused to submit Defendant's insanity defense to the jury; (II) his trial counsel rendered ineffective assistance during the mitigation phase of his trial; (III) the unanimity and "acquittal-first" jury instructions infringed

465 F.3d 688

Defendant's constitutional rights; (IV) there was a Clemons violation where the trial court upheld Defendant's death sentence after re-weighing the aggravating and mitigating circumstances; and (V) that there was prosecutorial misconduct during various stages of the culpability and mitigation phases of the trial.

For the reasons set forth below, we AFFIRM in part and REVERSE in part. We AFFIRM the judgment of the district court as it relates to issues I, IV, and V, but we REVERSE the district court's judgment as to issues II and III, and REMAND with instructions to grant Defendant's petition as to these issues.

BACKGROUND

I. Procedural History

On March 29, 1983, the Cuyahoga County Grand Jury indicted Defendant 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.

Defendant pled not guilty by reason of insanity, claiming to be a follower of Adolf Hitler, as to all counts on April 8, 1983. Before trial, the court ordered Defendant to be evaluated by Dr. Phillip Resnick ("Resnick"), to determine his competency to stand trial. Defendant also requested, and was granted psychiatric evaluations by four other psychiatrists: Dr. Sandra McPherson ("McPherson"), Dr. Kurt Bertschinger ("Bertschinger"), Dr. S.M. Samy ("Samy"), and Dr. Oscar Markey ("Markey"). Thereafter, the trial court held a competency hearing, wherein it was determined, based on Resnick's recommendation, that Defendant was competent to stand trial.

A jury convicted Defendant on July 27, 1983 of all counts and specifications, except for one of the aggravated robbery counts. After the mitigation phase of the trial, the jury recommended a sentence of death, which was accepted by the trial court, and Defendant was sentenced to death on August 10, 1983. Defendant was also sentenced to terms of seven to twenty-five years imprisonment on each attempted murder and aggravated robbery conviction.

Defendant timely appealed his convictions and sentence to the Ohio Court of Appeals for the Eighth District. The court found that Defendant was improperly convicted of two counts of aggravated murder for the death of Timothy Sheehan, and vacated one of the two convictions. The court affirmed the conviction and death sentence on the other aggravated murder charges, as well as the five specifications attached thereto, leaving Defendant with three aggravated murder convictions, and fifteen death penalty specifications. State v. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio Ct. App.1984).

After a number of intervening appeals to the Eighth District Court of Appeals, and requests for remand to the Ohio Supreme Court, Defendant finally filed his merits brief with the Ohio Supreme Court on November 24, 1986, in which he raised sixty-four proposed errors of law. The Ohio Supreme Court issued an abbreviated opinion on April 13, 1988, affirming Defendant's convictions and sentence. State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (1988).

Defendant then petitioned the U.S. Supreme Court for a writ of certiorari, but

465 F.3d 689

the petition was denied. Spisak v. Ohio, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). Defendant spent the next six years filing and appealing denials of countless motions for post-conviction relief.

On December 15, 1995, Defendant filed a Notice of Intent to File a Petition for Writ of Habeas Corpus with this Court. Subsequent to filing the petition, Defendant filed a motion with this Court on June 13, 1997 to stay his execution, which was granted.

Defendant filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 9, 1997, raising thirty-three grounds for relief. The district court issued an Opinion and Order denying the petition on April 18, 2003, but the court granted Defendant a certificate of appealability as to thirteen of his claims. Defendant filed a Rule 59 motion to alter or amend judgment on July 29, 2003. In response to that motion, the district court granted an additional certificate of appealability as to one sub claim. Defendant timely appealed to this Court on July 31, 2003.

II. Factual History

In its rejection of Defendant's direct appeal, the Ohio Supreme Court set forth binding factual findings with respect to the overwhelming evidence adduced at Defendant's trial. Under 28 U.S.C. § 2254(e)(1), Defendant has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Defendant does not challenge these factual findings, so we adopt them below.

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 the appellant, 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 the appellant, holding a gun, who ordered her back into the stall. Instead, Dartt shoved appellant out of the way and ran down the hallway. Appellant shot at her, but missed. A pellet was later removed from a wall in the hallway. Dartt identified the appellant 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

465 F.3d 690

shots from a window at 1367 East 53rd Street. The police were directed to appellant's apartment and appellant, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Appellant 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. Appellant 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. Appellant was later arrested, hiding in the basement of a friend's house. During a brief search of appellant's suitcase at the scene, police discovered the beeper pager belonging to Sheehan.

Appellant later admitted to shooting Rickerson for allegedly making a homosexual advance toward him; to killing Sheehan as a possible witness to the Rickerson shooting; to killing Warford while on a "hunting party" looking for a black person to kill; and finally, to shooting at Dartt and to shooting Hardaway. He also told police he had replaced the barrel of the .22 caliber handgun in order to conceal the murder weapon.

Spisak, 521 N.E.2d at 800-01.

STANDARD OF REVIEW

In habeas appeals, we review the district court's legal conclusions de novo and the factual findings for clear error. Jordan v. Hurley, 397 F.3d 360, 362 (6th Cir.2005). However, following the...

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31 practice notes
  • Rhea v. Jones, Case No. 1:06-cv-41.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 2008
    ...at the time [the petitioner's] conviction became final." Onifer v. Tyszkiewicz, 255 F.3d 313, 318 (6th Cir.2001); see Spisak v. Mitchell, 465 F.3d 684, 690 (6th A decision of the state court may only be overturned if (1) it applies a rule Page 579 that contradicts the governing law set fort......
  • Ferensic v. Birkett, No. 06-2342.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 4, 2007
    ...This would have been a scientific, professional perspective that no one else had offered to the jury. Compare Spisak v. Mitchell, 465 F.3d 684, 696, 699 (6th Cir.2006) (upholding under Rock the exclusion of multiple expert defense witnesses principally because "[t]heir testimony, however re......
  • Hartman v. Bagley, No. 04-4138.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 10, 2007
    ...address instructions analogous to those at issue here.) The instructions in those cases and, more recently, in Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), all began by explaining to the jury that "if all twelve members of the jury find . . . that the aggravating circumstances . . . out......
  • Jones v. Bradshaw, No. 1:03CV1192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 21, 2007
    ...found a jury instruction constitutionally infirm because the court found it to be an "acquittal-first" instruction. Spisak v. Mitchell, 465 F.3d 684, 709 (6th Cir.2006). The Spisak court held that the instruction the trial court provided prior to the sentencing phase of the petitioner's tri......
  • Request a trial to view additional results
31 cases
  • Rhea v. Jones, Case No. 1:06-cv-41.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 2008
    ...at the time [the petitioner's] conviction became final." Onifer v. Tyszkiewicz, 255 F.3d 313, 318 (6th Cir.2001); see Spisak v. Mitchell, 465 F.3d 684, 690 (6th A decision of the state court may only be overturned if (1) it applies a rule Page 579 that contradicts the governing law set fort......
  • Ferensic v. Birkett, No. 06-2342.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 4, 2007
    ...This would have been a scientific, professional perspective that no one else had offered to the jury. Compare Spisak v. Mitchell, 465 F.3d 684, 696, 699 (6th Cir.2006) (upholding under Rock the exclusion of multiple expert defense witnesses principally because "[t]heir testimony, however re......
  • Hartman v. Bagley, No. 04-4138.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 10, 2007
    ...address instructions analogous to those at issue here.) The instructions in those cases and, more recently, in Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), all began by explaining to the jury that "if all twelve members of the jury find . . . that the aggravating circumstances . . . out......
  • Jones v. Bradshaw, No. 1:03CV1192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 21, 2007
    ...found a jury instruction constitutionally infirm because the court found it to be an "acquittal-first" instruction. Spisak v. Mitchell, 465 F.3d 684, 709 (6th Cir.2006). The Spisak court held that the instruction the trial court provided prior to the sentencing phase of the petitioner's tri......
  • Request a trial to view additional results

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