Spivey v. Jenkins

• Decision Date: 30 November 2017
• Docket Number: CASE NO. 4:16CV0384
• Parties: WARREN SPIVEY, Petitioner, v. CHARLOTTE JENKINS, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

WARREN SPIVEY, Petitioner, v. CHARLOTTE JENKINS, Warden, Respondent.

CASE NO. 4:16CV0384

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

November 30, 2017

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND ORDER

[Resolving ECF Nos. 38 and 48]

Before the Court is Petitioner Warren Spivey's amended petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Through this petition, Spivey challenges the constitutionality of his convictions and death sentence, rendered by an Ohio court. ECF No. 38. Respondent Warden Charlotte Jenkins ("the State") filed an amended return of writ. ECF No. 40. Spivey then filed a traverse. ECF No. 46. The State filed a sur-reply. ECF No. 47. Spivey then filed a motion for discovery. ECF No. 48. For the following reasons, the Court denies Spivey's amended petition for writ of habeas corpus. ECF No. 38. The Court also denies Spivey's motion for discovery. ECF No. 48.

I. FACTUAL HISTORY

On January 18, 1989, an Ohio county grand jury indicted Spivey for the aggravated murder of Veda Eileen Vesper and related charges. The Ohio Supreme Court set out the following account of Spivey's crimes:

On January 3, 1989, Warren Spivey, appellant, broke into Veda Eileen Vesper's residence at 451 West Ravenwood Avenue in Youngstown, Ohio, attacked Vesper with a knife or knives, inflicting multiple stab and/or cut wounds, and brutally beat her to death. Appellant robbed Vesper of jewelry and other personal property and fled the scene in Vesper's automobile. Later that night, appellant was arrested by police in connection with the murder.

State v. Spivey,

81 Ohio St.3d 405, 405 (1998).

II. PROCEDURAL HISTORY

A. State-Court Proceedings

1. Trial Court

A Mahoning County Grand Jury indicted Spivey on January 18, 1989, on the following four counts: one count of aggravated murder, in violation of Ohio Rev. Code § 2903.01(B), with a death-penalty specification that the murder was committed while Spivey was committing, attempting to commit, or fleeing immediately after committing or attempting to commit aggravated robbery and/or aggravating burglary, in violation of Ohio Rev. Code § 2929.04(A)(7); one count of aggravated burglary, in violation of Ohio Rev. Code § 2911.11(A)(1)-(3); one count of aggravated robbery, in violation of Ohio Rev. Code § 2911.01(A)(1), (A)(2), and (B); and one count of grand theft motor vehicle, in violation of Ohio Rev. Code § 2913.02(A)(1), (B). ECF No. 19-1 at PageID #: 303-305.

Spivey entered an initial plea of not guilty to all charges at his arraignment held on January 24,1989. ECF No. 19-3 at PageID #: 612; ECF No. 20-1 at PageID #: 3481-86. Soon after, the trial court set a trial date of March 27, 1989. ECF No. 19-3 at PageID #: 615. At Spivey's request, however, the trial was later rescheduled for September 6, 1989. ECF No. 19-3 at PageID #: 643, 650.

On August 1, 1989, Spivey filed a motion to suppress any oral or written statement to the police on the ground that he did not knowingly, intelligently and voluntarily waive his constitutional rights. ECF No. 19-4 at PageID #: 727-28. The court held a hearing on Spivey's motion on August 23, 1989. See ECF No. 20-1 at PageID #: 3706.

On August 15, 1989, Spivey filed a motion with the trial court requesting an order allowing a defense expert to conduct DNA testing of certain items of bloodstained clothing (including a red sweatshirt and black-and-white vest) that had been seized by police during a January 4, 1989, search of Spivey's residence. ECF No. 19-4 at PageID #: 784-85. The trial court conducted a hearing on the motion on August 21, 1989, and granted it. ECF No. 19-4 at PageID #: 793. In addition, due to the scientific testing, the court reset the trial date for September 25, 1989, but cautioned that "[n]o further continuances shall be granted." ECF No. 19-4 at PageID #: 793; see also ECF No. 19-4 at PageID #: 808-809.

On August 31, 1989, Spivey moved to continue the September 25 trial date because the DNA testing was not complete. ECF No. 19-4 at PageID #: 811. On September 1, 1989, the trial court ordered the drawing of the special venire for the September 25 trial date. ECF No. 19-4 at PageID #: 813. Defense counsel objected to the drawing of the venire, as the defense had not yet received the DNA test results, which the trial court noted. Spivey,

81 Ohio St.3d at 406.

On September 20, 1989, Spivey entered written pleas of not guilty and not guilty by reason of insanity. ECF No. 19-4 at PageID #: 867-68. That same day, he also moved for an order for a psychological evaluation relating to his plea and requested the appointment of Dr. A.James Giannini to evaluate his mental condition at the time of the offenses. ECF No. 19-4 at PageID #: 869. The trial court ordered the Forensic Psychiatric Center of District Eleven, Inc. (the "Forensic Center"), and not Giannini, to conduct the examination of Spivey. ECF No. 19-4 at PageID #: 870. The next day, September 21, 1989, Spivey moved for an independent psychiatric expert to evaluate his mental state at the time of the offenses, such as Giannini or another psychiatrist chosen by the defense. ECF No. 19-4 at PageID #: 873-74. Also that day, Spivey moved for another continuance of the September 25 trial date; he supplemented the motion the following day. ECF No. 19-4 at PageID #: 871-72, 904-905.

On September 25, 1989, the trial court denied Spivey's motion to suppress his statements to police, finding Spivey "had the ability to comprehend the consequences of executing a waiver of rights form." ECF No. 19-5 at PageID #: 961-62. That same day, the court denied Spivey's motions for continuance and appointment of an independent psychiatric expert. ECF No. 19-5 at PageID #: 954, 963.

However, the next day, September 26, 1989, the trial court appointed Giannini to conduct a psychiatric evaluation of Spivey for purposes of the insanity plea. ECF No. 19-5 at PageID #: 965. Giannini completed his psychiatric evaluation of Spivey three days later, on September 29, 1989, finding Spivey was sane at the time of the murder and competent to stand trial. ECF No. 19-7 at PageID #: 1681-85 (Giannini competency and sanity evaluations). Dr. Stanley J. Palumbo, a psychologist at the Forensic Center, issued his report at that time, also finding Spivey was sane at the time of the offenses. ECF No. 19-7 at PageID #: 1686-90 (Palumbo sanity evaluation).

At a pretrial hearing conducted on October 2, 1989, Spivey waived his right to a trial by jury and elected to be tried by a three-judge panel. ECF No. 19-5 at PageID #: 973-74. The panel was designated on October 3, 1989, and the trial was set to commence on October 10, 1989. ECF No. 19-5 at PageID #: 975. On October 6, 1989, Spivey moved for a continuance of the October 10 trial date pending the completion of the DNA testing. Spivey,

81 Ohio St.3d at 406.

On October 10, 1989, the parties met in chambers before two of the empaneled judges. The Ohio Supreme Court set forth this account of the proceedings:

The chambers discussion involved, among other things, a plea agreement that had been reached between the state and the defense. The discussions indicated that appellant had agreed to plead no contest to the charges and specification set forth in the indictment. In exchange, the state agreed that, during the penalty phase, the prosecution would be limited to cross-examination of defense witnesses and would not introduce independent evidence during mitigation except to rebut false or perjured testimony. Additionally, the state agreed to refrain from making any recommendation concerning the death penalty. Following these discussions, appellant appeared before the three-judge panel, withdrew his pleas of not guilty and not guilty by reason of insanity, and entered a written plea of no contest to each count. Following an extensive Crim. R. 11 colloquy between the panel and appellant, the panel accepted appellant's pleas of no contest.

Id.

at 406-07; see also

ECF No. 20-3 at PageID #: 4165-82 (transcript of proceeding).

The panel then proceeded to conduct an evidentiary hearing to determine the underlying factual and evidentiary basis for the offenses and capital specification for which Spivey was charged. See ECF No. 20-3 at PageID #: at 4182-4270 (transcript of hearing). The panel found Spivey guilty of all charges and the specification. ECF No. 20-3 at PageID #: 4272-73; ECF No. 19-5 at PageID #: 997-98.

The panel scheduled Spivey's mitigation hearing for sentencing for October 30, 1989. ECF No. 19-5 at PageID #: 997-98. On October 20 and 24, 1989, Spivey moved to continue the mitigation hearing because a critical defense witness would not be available from October 28 through November 5. ECF No. 19-5 at PageID #: 1087-91.

Also on October 24, 1989, Spivey filed a motion with the trial court requesting that, based on "newly discovered evidence," it permit him to withdraw his pleas of no contest, vacate its findings of guilt, and proceed to a jury trial. ECF No. 19-5 at PageID #: 1092-94. Spivey attached to the motion a report from Cellmark Diagnostics Laboratory, indicating that the blood on the two articles of clothing seized by police from Spivey's home - namely, the red sweatshirt and black-and-white vest - was not the victim's blood. ECF No. 19-5 at PageID #: 1095. This finding contradicted testimony offered by the State at the October 10 evidentiary hearing on Spivey's no-contest pleas that the blood on this clothing was consistent with the victim's blood. Spivey,

81 Ohio St.3d at 407. That evidence, however, was based on non-DNA testing procedures. Id. The three-judge panel conducted a hearing on Spivey's motion to withdraw on October 26, 1989. ECF No. 20-4 at PageID #: 4428-80.

On October 27, 1989, the trial court denied Spivey's motion to withdraw his pleas and rescheduled his mitigation hearing for November 13, 1989. ECF No. 19-5 at PageID #: 1103-1106. It found the DNA testing results were not "newly discovered...