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ATION: 2004 FED App . 0140P (6th C ir.) File Name: 04a01 40p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

J OHN G. S PIRKO , J R ., Petitione r-Appell ant,

v.

B ETTY M ITCHELL , Warden, Respondent-Appellee. X

- - - -

> , - - N No. 00-4385

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 95-07209—James G. Carr, District Judge.

Argued: April 30, 2002

Decided and Filed: May

17, 2004

Before: BATCHEL

DER, DAUGHTREY, and GIL MAN, Circuit Judg es.

_________________ COUNSEL

ARGUED: Tho ma s C. Hill, SHAW PITTMAN, Washing to n, D.C., for Appellant. Charles L. Wille, ATTORNEY GENERAL’S OFFI CE OF OHIO, C olumbus, Ohio, for Appel lee. ON BRI EF: Thomas C. Hill, SHAW PITTMAN, Was hin gton, D .C. , Joh n J. Callahan, McHUGH, DeN U NE & McCART HY, Sy lvania, Ohio, for A

ppellant

. 2 Spirko v. Mitchell No. 00-4385

Charles L. Wille, ATTORNEY GENERAL ’S OFFICE OF OHIO, Columbus, Ohio, for Appellee.

BAT C HELD ER, J., deliver ed the opi nion of the

court, in whichDAU GHT RE Y, J ., j oi ned . GILM AN, J. (pp. 21-28), delivered a separate dissenting opinion.

_________________ OPINION

_________________ ALI CE M. BATCHELDE R, Circuit Judge. John G. Spirko appeals the order of the district c ourt deny ing his petition for

a writ of ha

beas cor pus. An Ohio jury found

Spirko guilty of aggravated

murder with specifications and recommended that he be sentenced to death. The state trial court accepted that recommendation

and sentenced Spirko to death on September

24, 1984. Spirko’s motion for a new trial was denied, and his dir

ect appe als of

his conviction and sentence, his pe tition for

a writ of

certior ari in the United Sta

te s Supreme Court and his petitions for post-c onvi ction relief

were unsuccessful. On March 31, 1995, he filed a petition for habeas corpus in the d istrict court; he filed an amended petition and a request for an evidentiary hearing on March

10, 1999, alleging fifteen separ ate ground s fo r relief, each of whichthe distri ct court addres sed and found to be without merit. The district court denied the petition, and Spirko timely appealed.

Before us, Spir

k o argues that 1) the prosecution denied Spirko due proc es s by knowingly presenting false evidence and a false theory

of the c as e at trial; 2) the prosecution denied Spirko due

process by v io lating the requirements of Bra dy v. Maryland , 373 U.S. 83 (1963); 3) Spirko’s trial counsel were ineffective

because they

did not investigate the alibi claim of Delaney

Gibson, who was indicted with Spirko for the murder; 4) the pr

osecutio n probab ly

suborned perjury at trial; 5) the distri ct court erred i n deny in g Sp irko’s actualNo. 00-4385 Spirko v. Mitchell 3

1 The dist

rict court he ld tha t al though Spi rko fi led his habeas peti ti on prior to th e eff

ecti ve dat e of the An ti-terrorism and E ffective D eath Pen alty Act (“AEDPA” or “the Act ”), t he A EDPA i s retroa ctively
app licable to the p etiti on. The dis tri ct c ourt note d tha t Spi rko di d not
argue to the contrary; the court als o held, in the al ternative, that t he
out come of

the cas e was not

aff ected by the retroacti ve application of t he Act. Th e district c ourt’s retroa ctive ap plicatio n of A ED PA to thi s pet it ion

was error. We hav e r evi ewe d t he p et it io n u nde r t he p re -AE DPA st andard,

see Lindh v. Murphy , 521 U.S. 320, 326 (1997), howeve r, a nd concl ude that the distr ict courtwas correct in i ts conclusi on that the outco me o f this

case is the s ame when the pre-AED PA standard is applied, and therefore we hold that the erro r is harmless. innocence claim; 6) Spirko was denied due proces s by the prosecution’s use of a suggestive photo arra y and hypnotically

refres hed testimony, and by his trial in an improper venue; 7) the district court erred in deny ing Spirko’s request for discovery

and an ev identiary hea

ring; 8) Spirko

was denied du

e proce ss as a re sult

of several errors during the sentencingphase of the trial . After reviewing the district court’s exhaustive

opinion, w e conclu

de that we agree with its findi ngs and its conclusions 1

, and we will not sepa rately ad dres s any of Spirko’s cla ims except those relating to the alleged Bradyviolation s. W e think that the Bradyclaims, although ultimately meritless, dese rve specific attention.

The on ly Bradyclaim that Spirko actually ar gues i n his brief is tha t the state withheld from him evidence that an individual named De laney Gi bson, who was indicte d with Spirko for the mu

rder but esc aped an d remained a fugitive until well after Spirko had been tried and convicted, could not have been pre sent whe

n the murd

er was c ommitted. I

t i s useful to recount the fac ts releva

nt to this cl aim.

At approxima

tely 8:30 a.m. on August

9, 1982, Betty Jane Mottinger was discovered to be missing from her post as postmistre ss of the Elg

in, Ohio, Po st Offic e in

Va n Wert Co un ty. Also mi ssing were Mrs. Mottinger’s purse and approxima

tely $750 in cash, postage stamps and money ord ers

. Some three weeks later, her decomposing body was 4 Spirko v. Mitchell No. 00-4385

found in a bea n field i n neighboring Hancock County . The bo dy, bearing

between fourtee n and eig hteen sta b wounds to the chest and stomach

, was fully clad, wr apped in a

paintsplattered cur tain w hich appeared to have been used by painters as a drop -cloth , andtied with a cord similar to a clothesline.

The investigation into the ab du ction and death of Mrs. Mottinger was massi

ve. Authorities interv iewed over three thousand peopl e and spent countless man hours seeking informationto solve the crime. The prosecu t ion followed anonymous leads, tips based on old hearsay , and any tra il that might lead to probative evidence. The recor d is enormous and contains reports from

the interviews and documents from the investigative efforts. Among the interviews documented inthe rec ord are

the many intervie ws of th e pet itioner, John Spirko.

InOcto ber

of 1982, Spirko initiated contact with law enforcement

office rs, inclu ding pos tal insp e ctors. Spirko, who was then

in jailin Luca s County, Ohio, on unrelated charges, told the officers that he had infor mation ab out Mrs. Mottinger’s kill ing, an d sugges ted th at in e xcha nge for the office rs’ help on those charges, he c ould help them in the Mottinger case. O ver the next sever al week s, Spirko gave a series of differing accounts of the murder. His tales included persons named “Rooster,” “Dope Man,” “S pooky ” and “D irty Dan.” Early

in his “cooperation” with the po stal inspe ctors, he told I nspecto r Paul H artman that he had been at a party where an unnamed person had told him that three white males had murdered Mrs. Mottinger after the thr ee had gone to the post of fice to claim a package containing heroin, had gotten into some kind of scuffle, and had been forced to kidnap the postmistre ss. According to Spirko, while he was at the pa rt y, he saw a cream- colored

handbag with brown trim, containing coins, some money

orders a nd gold je welry . He cha

nged hi s story a few days later, te lling Inspector Har tman at the outset of t he interview, “Look Paul, I ’ve thrown you a few cur ve s and you have thrown me

a few c urves. From now on, it’sNo. 00-4385 Spirko v. Mitchell 5

2 The Ohio Suprem e Court refers to “s omeone nam ed V ito” in relating thi s ren diti on of S pirk o’s stor y, whi ch appea rs t o us t o be attributa ble to a court-reporti ng error . Thr ough out this part o f Har tman’s tri al testi mony he refers to “The Dope M an,” but on page 13 of Ha rtman ’s
test imony—which is also page 2391 of the tri al t rans cri pts—the transcr ipt reads: “The defendant was ul timat el y com mission ed b y Vito man to

recover this parc el con tain in g the na rcotic s.” No other r eferen ce to anyone na med “V ito” appe ars. goingto be straight down the line.” Spirko wen t on to say that he himself had been commissioned by The Dope Man 2 to retrieve a package containing heroin from

a man named Rooster, and claimed that Spirko and another man had driven to a house where Spirko saw Mrs. Mottinger’s body. Spirko said that the body was a

lready bound; that one of the me n in the house had unwrapped it to recover a cigare

tte lighter; and the bo dy h ad about 15 stab wounds. Spirko related further that the Dope Man decided that Rooster should be killed, and that Spirko had driven Rooster and two other persons to an undisclosed

location where Rooster was shot and buried in a marsh.

A few days later, Spirko expanded his story to include a
mannamed “Swartz,” who told him th at R ooster a nd Dirty Dan had killed Mrs

. Mottinger because she had bitten Rooster when he forced her to perform oral se x on him. Spirko claimed that he and Swartz had

gone to the house where the murder was committed; there he saw Rooster and Dirty Dan with blood on their clothes and a gray curtain which was torn at the end; he also saw a brown car, inside of which wa s a cream-colored

purse with brown trim, containing money

or de rs , c ha ng e a nd go ld je we lr y.

The ne xt da y, D ec em be r 9 , S pi rk o a ga in ch an ge d h is st or y. This time , h e said it w as in fact Rooster w ho had told

him how the murder

took place, and

that Rooster had said that the

o nly th ing that bothered him about the murder was the “whoosh” sound t hat the kn ife made when he s tabbed Mrs. Mottinger. Although Spirko stuck to his claim that Rooster 6 Spirko v. Mitchell No. 00-4385

himself had been killed, he now said that Rooster’s body had been deposite d in

a swamp in Florida. And on December 10, Spirko described to Inspector H artman the clothing that Mrs. Mottinger had been wearing when she disappeared.

Hartman next interv

iewed Spi r ko on December 13, 1982. Spirko no w c la im ed th at he an d S wa rt z h ad ac tu al ly b e en present when Mrs. Mot tinger

was kille d. First, Spirko sai d that whi le he was watching television in the house, Rooster had chased Mrs. Mottinger outside where Rooster and Dirty Dan had stabbed her. Late

r i n the day, Spirko told Hartman that an unknown biker, along with Rooster and a man named Dean o r Dino, had taken turns raping Mrs. Mottinger, and whe n she tried to escape Spirko stopped her and hel d he r down while Rooster repeatedly stabbed her in the stomach.

When interviewed

on December 15, 1982, Spirko claimed that he and Dino, Dirty Dan, Rooster a nd the biker, had spent the nigh t of A ugus t 8th s leep ing i

n a ro adsid

e par k. The next morni ng, Rooster, D ino and the biker we

nt i n to El gin, kidnapped

Mrs. Mottinger and brought her back to where Spirko and Dirty Dan were parked on a road ne ar the farmhou se where Spirko claimed the murde rtook place. Faced with the necessity of

doing somethingwith the vi ctim because she could identify them, Rooster, the biker and Dirty Dan first raped her—apparently

out of the presence of Spirko and Dino—and then, outside of the ho use and in front of Spirko and Dino, stabbed he r r ep ea te dl y. Rooster, the biker and Dan rolled the body

onto a pie ce of cu

rtain the y ha d in the car, removed the jewelry from the body and pried the st one from a ring on the victim’s hand, and, bringing the curtain down over the victim’s head, wrapped the body endto-end. Becau se Rooster ha d carel essly

dropped his ciga rette lighter into the curtain duri ng t his process, they unwr apped the body, rec overed the lighter, and wrapped it up again.
Investigator

Hartman testifie d that sev eral as

pects of this evolving tale were of particular significance: the detail about the vic tim’s purse and its contents; the description of theNo. 00-4385 Spirko v. Mitchell 7

clothing the vict i m had been wearing; the description of the curtain in which the bod y w as wrap ped, incl uding the detail th at part of the curta

in had bee

n torn off ; the desc rip tion o f the way inwhich the body had be en wrapped in that curtain; and the fact of the stone’s having been pried from the victim’s ring. These f

actu ally acc

urate details were not matters that had been made public.

OnJanuary 11, 1983, Hartman inter viewed Spirko again. By now, Spirk

o was in the

federa l peniten tiary in Leavenworth, Ka

nsas, having been admitted into the federal witness protection program. This time, Spirko ad vi sed Hartman that there had been no narcotics involved in the abductionand murde

r of Mrs. Mottinge

r, but that he had heard that t he entir e incide nt bega n as a rob

bery attempt. When Hartman

refuse d to believe any

of this allegedly

thirdha nd acc ount, Spirk

o admitted

that it wa s not true , but said that he c ou ldn’t tell the truth because he had to protect “the only friend he ever had in his whole life.” Spirko we nt on to say th at this fr

iend had b een in the

Elgin ar ea immedi ate l y after the crime was committed, and that Spirko had seen the pr oc ee ds fr om th e p os t o ff ic e r ob be ry.

The following day , Spirko identified his friend as Delaney Gibson; Spirko said that on A ugust 11 or 12, 1982, he had gone drinking with Gibson and two individuals named Clyde Cravens and Eugene Sizemore , and had lear ned that t hose three had robbed the po st office and murde

red Mrs. Mottinger. Spirko sai d

that Gibson had showed him the trunk of the car where they

had put the body; the

trunk was stained and emitted a strong odor. Gibson also showed him a duffel bag conta inin g a col lection of guns, including a chromeplated .357 mag num with ivory handles, and a cream-colored

canvas purse containing money orders and change. Spirko said t hat he saw a rolled-up gray curtain on the floor of th e back seat of Gibson’s car. He also stated that, a coupl e of weeks later, Gibson offered to pay Spirko to ki ll Cl yd e Cravens
, whom Gibson called “Rooster,” becau se he cou ld identify Gibson. According to Spirko, Gibson explained that 8 Spirko v. Mitchell No. 00-4385

Rooster and Sizemore had attempted to rob the post office while Gibson drove the get-away car. Whe n the postm

istress began to scream, Gibs on wen t to the post office and helped the other two

abduct Mrs. Mottin ger. They then ra ped her and when she tried to escape , they stabbed her and dumped the body. Spirko said that Gibson explained that they stabbed th e victim rather than using the guns to kill her becaus e “where they

were a t, if they had shot her, it would have been their ass.” Gibson said that robbing the post office had been stupid because there was no real money in it, and all they g ot

was change; he also explained that because the money orders

were traceable, they

had bur ned t hem rather than cashing them.

Of particular significance to I nspector Hartman were the details about the .357 magnum (the investigation having revealed that Gibson possessed s uch a firear m), the creamcolored purse and its contents , the description of the gray curtain in the back seat of

the car, the fact that the robbery had primaril y yielded cha

nge, and the fact that the money

orders had bee n de stroyed. Also important were the names of Cravens and Sizemore, b oth o f whom the investigators de ter mined

were real individuals; the inspectors found no evidence connecting either of them to the robbery and murder. Insp ector Ha rtman als o tes tified that the investigators looked into the other ind ividuals whom Spirko had named—in his pre-Leave nworth interviews —a nd had determined

that they were

ei the r real people who had no connection

with the murder, or were pe o ple who a pparent ly did not exist.

While he wa s in jail, Spirko wrote a letter to his girlfriend inwhich he

said, “[T]h ere ar

e some thin

gs that I told him [Inspector Hartman] that only the persons w ho did this s hit know, there are no if and

ands about that.” Spirko was rig ht. He had given the author

ities facts about the crime that had not been disseminated by the authorities and w ere not gener ally knownby the public, incl ud ing the number and location of stab wounds on Mrs. Mottinger’s body ; a d escription of theNo. 00-4385 Spirko v. Mitchell 9

clo thing Mrs. Mottinger had been wearing when she w a s abducted; the fact that a stone had been pri ed from a

ring she had been wearing; a description of the ty pe of fabric the body

was wrapped in as well as a description of the way the body

was wrapped; a description of her purse; and a description of the contents of the purse.

A number of

persons w

ho had be en in the v

ic ini ty of the post office around the time Mrs. M otti nger was abducted

were intervie

wed. One

of them, after viewing

a photo ar ra y, identified Delane y G ibson as a

man she had seen getting out of a car with a “cinnamon top and a bronzish-brown bottom,” infront of the post office at 8:30 that morning. I n the picture, Gibson was clean-shaven. A sec ond witne ss identif ied—with about 70% certainty

—Spirko from a photo arra y as the man he had seen at 8:30 that morning, standing by a copper-toned late 1970s car with a lighter top.

The investig ators conducted a compreh ensive in

vest igat ion into Delaney

Gibson. They discover

ed tha t Gibson was, as Spirko claimed, a close friend and, in fact, one of Spirko’s prior cellmates. After locating Gibson in North Carolina, police investigators interviewed him, eventually taking h im int o custody. Gibson denied any involvement in the abductionor murde

r claimin g that he was employe d as a migrant worker in North Carolina dur in g the time period surrounding the incident. Gibson admitted t o his frie

ndship with Spirko but claimed that he had not seen Spir ko for y ears. InAugust of

1983, Gibson escaped from police custody . He

was ind ict ed in September 1983, along with Spirko, for the murder of Mrs. Mottinger, recaptured, and shortly before the da te scheduled for Spirko’s trial, escaped ag ain. G ibso n remained a fugit ive until w ell afte

r Spirko’ s tr ial had been completed.

The investig ators inte

rviewed Gibson’s s o metime crew chief, Juan Flores, who confirmed tha t he employed Gibson inNorth Car

olina as a produce picker a

nd that Gib son was in his employ from June, 1982, until Octob er, 1982. Flores 10 Spirko v. Mitchell No. 00-4385

stated th at he th ou gh t h e r em em be re d t hr ee or fo ur da ys during that period when Gibson was absent from work buthe could not remember when, exactly , the absences occurred.

Postal inspectors i nterviewed Gibson’s wife, Margie, on December

21, 1983. Margie told them that sometime during the month of August, 1982, her sister a nd bro ther-in-law, Brenda and Michael Bentley

, had visit ed the Gib sons in

North Carolina, staying f

or a couple of da

ys. Mar gie showed the inspectors pictures—allegedly taken duringthe visit—of the Be nt le ys with Margie and a bearded De laney Gibson. The inspectors also inter

viewed the Bentl ey s, who said that they ha d visited the Gibsons in North Carolina on Saturday

, August 7 and Sunda

y, A ugust 8, 1982; had

left Nor th Carolina around 6:00 p.m. on August 8; and had drive n north to Newport
, Tennessee, wherethey had stay ed in a motel the night of August 8. The Bentley s also had pictures that they said were taken duringthe visit. The postal inspectors were able t o verify the B entleys’ over night stay at a

motel i n Newport on Sunday

night, A ugust 8, 1982, as well as Brenda Bentley’ s statemen

t that she had dropp ed off two rolls of f ilm for processing on August 10.

OnJanuary 11, 1984, the inspectors a gain interviewed Margie Gibson an

d obtaine d from he r the photographs that she claim ed had be en taken during t he Augu st, 1982, visit. The inspectors subsequently dete rmined that

Margie Gibson had take n film to be

process ed on Aug

ust 17, 1982, and that

a receipt from an automotive store in North Carolina near the Gibson’s home, issued to “Jim Gibson” (one of Delaney Gibson’s aliases) on August 7, 1982, was authentic.
Spirko claims tha

t this evidence demonstrates that Gibson could not h ave bee n in El gi n, Ohio , on the morning of A ugust 9, 1982, a

nd that on t

hat day Gibson wa s not c lea n shaven butwore a full beard. Spirko reasons that because the theory of the state’s case against Spirko was that Gibson and Spirko had acted

togethe r in the abduc tion and mu

rder of Mrs. Mottinge r, evide nce that Gibson wa s not in Ohio

at the timeNo. 00-4385 Spirko v. Mitchell 11

of the murde

r is evide nce that also is excu

lpatory of Spir ko

. The state’s f

ailure to turn this e

vid ence over

to him, Spirko argue s, violated the state’s obligations und er Bra dy v. Maryland , 373 U.S. 83 (1963).
Bradyestablished

that “the suppression by the prosec ution of evidenc e favor

able to an accused upon request violates due pro cess where the eviden ce is mate

rial eith er to gu

il t or t o punishmen

t, irrespective of the good faith or bad faith of the prosecution.” Id. at

87. Bradydoes not grant broad discovery powers to the def

endant, b ut is inste ad intend

ed only to

ensure that the d

efenda nt has ac cess to impeachment evidence and evidence favorable t o him, suppr ession of which wou

ld deprive him of a

fair trial. United States v. Bagley , 473 U.S. 667, 675 (1985).

Essential to the determination of whether the state’s failure to disclose evidence is a Bradyviolation i s Brady ’s requirement

that the withheld evidence be “material either to guil t o r to punishment.” Brady , 373 U.S. at 87. In Kyles v. Whitley

, 514 U.S. 419 (1995), the Supreme Court elaborated upon Bagley ’s mat erial ity requi rement , exp laini ng: Bagley ’s touchstone of materiality is a “r easonab le pro ba bi li ty” of a diff

erent r esult, an d the adje ctive is important

. The ques tion is not w heth e r the defendant would more likely than not have r eceived a different verdict with the evidence, but whether inits absence he received a fair trial, understoo d as a trial resulting in a verdict worthy of conf

idence. A “reasonabl e probabilit y” of a diffe rent re sult

is accordingly

shown when the government’s evidentiary suppre ssion “ u ndermines confidence in the outcome of the trial.”

Id. at 434. Th e Court we nt on to emphasize tha

t ma teriality is not deter

mi ned by looking a

t the sufficiency

of the

e vidence; rather we must determine whether the fa vo rabl e evidence c ou ld reasonably be viewed as putting the entire case “in such a

different light as to underm

ine conf idence i n 12 Spirko v. Mitchell No. 00-4385

the ver dic t.” Id. at 435. The Court noted that if the suppressionof

evidence in fact

violated Brady , then the error is not subject to harmless error review, since a fa ilure t o disclose evidence that could reasonably be viewed as casting the entire case in a di fferent light could hardly be

viewed as harmless error. The Court

stressed that

suppressed evidence is to be viewed collectively , rather than item by item, and a defendant does not establish a Brady vio lation by showing only that the prosecution was aware of but did not disclose an item of evidence favorable to the defe ndant. Id. at 436-37.

More re ce nt ly, the Supreme Court reviewed the elements of

a Bradyviolation, reminding us that, “strictly spea king, there is never a real ‘ Bradyviolation’ unless the nondisclosure was

so s er ious that there is a reasonable probability that the sup pres sed

evidence would have produced a diffe rent verdict,” and

summarizing the components of a “true” Brady violation:

The evidence at issue must be favorable to the acc used, either bec ause it is e

xculpator y, or becau se it is impea ching; that

evidenc e must

have been suppressed by the State, either willfully or inadver tently; and prejudice must have ensued.

Strickler v. G reene , 527 U.S . 26 3, 2 81- 82 ( 199 9). In Stric kler

, the Court’s focus was on the third component

, “whether petitioner has established the pr

ejudice necessa ry to satisfy the ‘materiality’ inquiry .” Id. at 282. To satisfy this require ment, the Court r

eiterat ed, the pe

tit io ner “mus t convince us tha t ‘there is a reasonable probability ’ that the result of the tri al would

have been

different if the suppressed [evidence] had been disclosed to the defense.” Id. at 289.

Like several of our

sister ci rcuits, th is circui t has held that because Bradydid not alte r th e rule that defendants have no general constituti onal rig

ht to disco very

in crimin al cas es, a prosecutor

violates h

is constitu

tional duty

of disclo sure only if “hi s omission is of sufficient significance to result in th eNo. 00-4385 Spirko v. Mitchell 13

denial of defendant’s right to a fair trial,” United States v. Todd

, 920 F. 2d 399 , 405 ( 6th C ir. 19 90) (q uoti ng Unit e d States v. Agurs , 42 7 U.S. 97, 108 (1976)), and where the defendant was “aware of the essential facts tha t would enable him to take advantage of t

he exculpatory evidence ,” the government’s failure to disclose it did not violate Brady

. Id. In Todd , we found no Bradyviolation w here the prosecu to r had disclosed to the de fense the fact that two witnesses possibly possessed exculpatory

evidence but did not d

isclose what that evid ence wa s. See also U

nited State

s v. Clark , 928 F.2d 733, 738 (6th Cir. 1991) (quotations and citation omitted) (holding that there is no Bradyviolati o n if the defendant “knew or

sh oul d have known the e ssential f acts permitting him to take advantag e of any exculpatory informationor where the evidence i s av ailable to defendant fromanother source”). The Fourth Circuit has held that “the Bradyrule doe s not apply if the evidence i

n question

is availab le to the defendant from other sources,” United States

v. Wilson , 901 F.2d 378, 380 (4th Cir. 1990) (quot ing United States v. Davis
, 787 F.2d 1501, 1505 (11th Cir. 1986)); and “where the exculpatory information is not only avai lable to the defendant but also lies in a s ource w

here a r easonab le defendant would h a ve looked , a defe ndant is no t entitled

to the benefit of the Bradydoctrine. Id. at 381. The Second Circuit ( United States v. Grossman , 843 F.2d 78, 85 (2d Cir. 1988)) and the First Cir

cuit ( Lugo v. Munoz , 682 F.2d 7, 9-10 (1st Cir. 1982)) have similarly rule d.
Spirko contends that

the state violated the requirements of Bradyby f

ailing to turn over to his counsel all of the i nv estigative reports and photographs reg arding Delaney Gibson’s whereabo uts at the time of the abduction and murder of Mrs. Mottinger. It is undi sputed that Spirk o’s defe nse counsel stipulated prior to trial that they had re ceived from th e state memoranda of interviews of Gibson done o n April21, 22 and 29, 1983; the “Interview Conce rning Delaney Gibson. a) R oger Bu rress [the owner of one of the farms on which Gibson worked picking tomatoes during the

summer of 198 2] b) Margie Gibso n;” a p hoto gr a ph of 14 Spirko v. Mitchell No. 00-4385

Delaney Gibson; and “Information conce rning Delaney Gibson: Mr. Michael Bentley , Box 425, Ary Kentuc ky 41712, has state d that Del aney Gibson wa s with him

and his wife in North Carolina on 8/7/82 and 8/8/82 and that pictures

are purported

to have been taken

of the weekend in question.”
Spirko was thus on notice that there was evidence that Delaney Gibson had been

in North Carolina on the day be fore the murder, and Spirko was given the identity a nd location of

some of the witnesses to Gibs on ’s wh er ea bo ut s o n t ha t d ay. The state co

urt made factua l f indings that Spirko’s counsel had notice of

this evide

nce; thos e finding s are am ply supported by the rec ord and

are binding on the federal habeas court under the pre-AEDPA 28 U.S.C. § 2254(d).
Spirko’s complain

t is essentia lly t

hat he wa s entitled

to have all of t he s tate’s e vidence with reg ard to the

North Carolina alibi turned over t

o him . B ut this is not the law. Like the defendant in T odd , Spirko was “aware of the essential facts that would enable him to take advantage of the exculpatory

evidence.” Todd , 920 F.2d at 405. A re asonable defendant wou ld ha ve pursued that inquiry—unless, of
course, he already

knew that the inquiry would not in fact result inexculpatory information—but Spirko did not do so. We hold, consistent with Todd

, C lark and Wilson , that because the evidence was available t o Spir ko from other

sources than the state, and he was awa

re of the essentia l facts necessary for him toobtain that evidence, the Bradyrule does

no t a pp ly.

We hold further that Spirko has not demons trated that this evidence was of a

kind that the state

woul d have been required to disclose under Brady

. Spirko cannot de monstrate that the evidence regar

ding Gib son’s alib i—that is, t he claim that Gibson was not and could not have been in Ohio on the morning of A ugus t 9, 1982—is favorable to Spirko, and he cannot demonstrate that he was prejudiced by the state’s failure to disclose

it.No. 00-4385 Spirko v. Mitchell 15

Spirko argue s that th e evidenc e was fa vorable to him because, like the undisclosed evidence in Jamison v. Collins

, 291 F.3d 380 ( 6th Cir. 200 2), it undermined the theory

of the prosecut ion ’s case. In Jamison , we held that evidence withheld from the defenda

nt w as favorable to him because, while it did not eliminate him as the perpetrator of the crime, it did contradict the testimony of the chief prosecution witness, undermine the prosecution ’s theory of how the murder was commi

tted, imp e ach the testimony of ke y prosecution

witnesse s, and, in f

act, poi nt to the chief prosecution

witness and ano ther

individual as potential suspects

. Id . at 3 89-391. Here, however, the evidence

r egarding Gibson’s whereabouts neither contradicts no r undermines the state’s theory of th e crime. While it is true that Gibson was indicted for the murder, and the state viewed him as probably ha

ving been the chief perpetrator, the state’s case ag ainst

Spirko was not dependent upon Gibson’s being proven to be part of the crime. The state’s case against Spirko

was based pri ncipally on Spirko’s own statements to the investigators demonstr

ating in timate knowledge

of fact s that, inSpirko’s own words, “only the pe rsons who di d this shit know.” Spirko knew.

The Gibson evidence does not prove that Gibson could not have been in Elgin, Ohio, on the morning that thecrime was committed. More relevant to Spirko’s Bradyclaim, however, is the fac t that the Gibson evid ence no t only

does n o t eliminate Spirko as t

he perpe trator, i telim inates his

best defense. If G ibson was

not a par ticipant i n the murder, then he wa s not, a s Spirko told the investigators and claimed at trial, the source of

all of S pirko’s detailed knowledge of the crime. And i f Spirko di d not lear n the deta ils of this c

rime from Gibson, from whence did all of that detail come?
Spirko canno t demonstrate that he was prejudiced by the government’s failure

to dis cl ose the Gibson information. Prejudice for Bradypurposes, the Supreme Court sa id in Strickler

, is neces sa ry t o e st ab li sh th e “ ma te ri al it y” require ment. Spirko may demonstrate that pre judice only by 16 Spirko v. Mitchell No. 00-4385

“conv inc[ ing] us that ‘there is a reasona ble proba bil it y’ that the result of the trial wo uld have been different if the suppressed

documents had been disclosed to the defense.” Strickler

, 527 U.S. at 290. But here, ev en i f Spirko c ould demonstr ate that the G ib son evidence prov ed beyond que stion that Gibson could not have been part of the crime, he cannot show a r ea so na bl e p ro ba bi li ty t ha t b y p res enting that evidence to t he jury, he could have cast the entire case “ in such a different light as to undermine confidence in the verdict,” Kyles

, 514 U.S. at 435, or that, if the evidence had been disclosed to him, “the res ult of the trial would have been different.” Strickler , 527 U.S. at 289. As we have alre ady noted, if the jury had c oncluded that Gibson could not have been one of the perpetrators, then the jury woul d also have concluded

that Gibson could not have been the source of Spirko’s detailed knowledge of th e c ri me . A nd , a lt er na ti ve ly, Spirko has certainly

not demonstrated that if he had been

aware of this evidence—and thus had known that Gibson was notinvolved in t he crime—he could have come up with a b etter story about how he c ame to know so much about th e murder. This evide

nce was simply not mater

ial.

Inthe st atement o f facts c ontained in his brie f on appe al, Spirko claims that the state also failed to provi de him with investigative records from the massive i nve stigation. Specifical ly, Spirko points to those containing information allege dly inculpating other individuals in the abduc tion and murder of Mrs. Mottinger, and detailing the intervi e ws of persons who failed to plac e either Gibson or Spirko at the po st office at the time of the abduction. His brief doesnot , however, con tain an y leg al argument with regard to a ny of theseindividua

ls or demonstrate that any of the evidence he points to meets the Kyles and Strickler requirements of

ma te ri al it y.
By failing to provide t

he courtwith any develope d legal argument wit h r egard to the individuals, Spirko has waived any argument he might have. “I t is a ‘settled appellate ru l e that issues adverted to in a p erf unctory manner ,No. 00-4385 Spirko v. Mitchell 17

unaccompanied

by some effor

t at developed argumentation,

are deemed

waived.’” United States v. Elder , 90 F.3d 1110, 1118 ( 6th C ir. 19 96) (q uoti ng United States v. Zannino , 895 F.2d 1, 17 ( 1stCir. 1990)). We have nonetheless reviewed the record

with reg ard to the se claims, and we conclude that the y are ent irely without me

rit. L ooking f

irst at th e interviews of individ

uals who did not see either Gibson or Spirko in the vicinity of

the post office on the morning of the abduction, we find that the record clearly de m onstrates that theseindividuals did not see anyone or a nything out of the

or di na ry. That there w ere peopl e on the scene who did not notice anything out of pla ce or any strange faces is neither favora ble to Spirko nor exculpatory o f him, nor would the disclosure of

all of the state ’s information abo ut these p eople have bee n reason ably

likely to bring about a di ffere

nt result at trial.

We have als o care fully reviewe d Spirko’s claims that various individuals interviewed or investigated were pote ntial suspects such that the inves tigative

reports should have been disclosed to him by the state. The district court con clud ed, and we agree, that

the record

does not support the readings of thesere ports t

hat Spirko urges; the record does support the state’s conclusi ons that no credibl e eviden

ce su ppo rted any further in ve st ig at io n i nt o a ny of them as po tential su spects. Most importantly, nothing

revealed in any of the investig ative reports about these individuals in any way undermines the state’s case against Spirko becau se no thing in t hese re ports eliminates Spirko as a

particip ant in the

crime or provides a plausible and innocent explanation for his detai led know ledge of it. This information is neither favorable t o Spirko nor material to his defense.

The one piec e of informati on to which Sp irko point s that, at first blush, might give us pause, is his claim that one of the prose cution’s witnesses, Debbie Young, the sister of John Willier, was intim atel y involved during the trial with the prosecution’s chief investigator. On closer review, however, this informat

ion is no mor

e exculpa tory or imp eachin g than 18 Spirko v. Mitchell No. 00-4385

any other that

Spirko proffe

rs as evi dence that the sta te violated the requirements of Brady . Before the district c ourt, Spirko theorized that

Wil lier had

killed Mrs . Motting er in Willier’s trailer. Spirko has provided virtually no fa ctual basis in his brie f on appe al for thi s theory of the crime; he has develop ed no legal argument in his brief for his cla im that evidence of Willier’s sister’s relationship with the investigator

would have be en either exculpatory or impea ching; he provides no explanation of how Ms. Young’s testim ony was affected by

the alleged relationship with t h e investigator

or, indeed, the substanc e of that testimony, and

none of Ms. Young’s testimony appea rs in the Joint Append ix. N either is there any evidence in the record that would support Spirko’s theory that Mrs. Mottinge r was killed in Willier’s trailer.

A review of the r ecord

of the pr

ior proc eeding s in this matter establishes that Spirko bases this entire Bradyclaim on wholly unsupported

speculation. Spirko testified at trial that sometime after the time of the murder, he and Gibson had gone to atrailer

ina trai ler par k, and that h e had s een a la rge quantity of “thick, gooey

blood in the bathtub” of the trailer. Spirko did not

testify that the trailer be longed to or was lived inby Joh

n Wil lier, and the record contains no evidence whatsoever

that Spirk

o was e ver in John Willier’s trailer. Only if the reco rd established that Spirko was in John Willier’s trailer around the time of the murder could we eve n possibly draw the infere nce that Sp irko a pparently believe s
we should dra

w, namely

that Mrs. M ottinge

r was kill ed in John Willier’s trailer.

We learn from re viewin g the record of prior procee dings—b ecause

Spirko’s brie f co ntains ne ither fa cts

nor argume nt with regar d to this testimony—that Ms. Young testified that she had been

in her brother John Willier’s trailer every day for seve ral day s after t he mu rd er and saw no evidence of blood

inthe batht

ub. Spirko ’s fathe

r testifie d to the same ef

fect. Spi rko would

have us infer that

Ms. Young’s testimony was f a lse, appa rently because of her r elationsh ipNo. 00-4385 Spirko v. Mitchell 19

withth e chief investigator. But only if there were evide nc e that Spirko was ever in John W illier’s trailer would any testimony by Ms. Young tha

t there was no blood in the bathtub in that trailer have any relev ance to the charges against Spirko. The record contains no such evidenc e.

The district c ou rt concluded that none of this information

was of sufficient probative value to create any doubt about

the verdict agains tSpirko. Whil e we do not e ntirely subscrib e to the district

court’s conclusion that

Ms. Young ’s relat

ionship with the inves tigator

would have had no impact on the jury’s assessment

of her credibility , we find no error in the court’s overall assessme nt of this Bradyclaim. Spirk o has whol ly failed to demonstrate a reasonable probability that if the informationto which he points had been disclosed to him “the result of the trial would have been different.” Strickler , 527 U.S. at 289. This alleged Bradyclaim, like all of the others, is without me

rit.

Fi na ll y, we must consider whether, ev en if any of this evidence met the Bradyrequire ments, Spirko would have been convicted on evidence unaffecte d by that which was not disclosed. We hold that clearly he would. As we have repeat edly pointed out, Spirko’s convi c tion reste d in l arge
me asure on his knowledge of non-public facts about the crime, all of which he volunteered to the investigators. The evidence from his own mouth w as accompanied by the testimony of two of h

is cellm ates who testified that Spirko told them ab out the m urder and his part in it. There is no

reasona ble p robability that any

thing that he now complains t he state failed to disclose to him would have made an y differe nce in the result of the trial

.
To summarize, we hold that the state d id not violate the require ments of Bradywith regard to any of the evidence of whichSpirko complains. The Bradyrule doe s n o t apply to the evidenc e of Gibson’s wher eabouts the day bef

ore the murder because Spirko wa s on notice

of the es senti al fac ts

necessar y to permit h

im to obtain

it throug h other so

urces. 20 Spirko v. Mitchell No. 00-4385

Even if that evidence should have been disclosed, Spirko has notdemonstr

ated tha t it or any of the

undisclosed

evidenc e to whichhe points was favorable to him or that he was prejudiced

by it s nondisclosure. The Bradyclaims are withoutmerit. The district court carefully and correc tly assessed each of the other claims of error r aised in th is appea l, and we now affirm in its entir ety the district court’s judgment deny ing the p etition for a writ o f habea s corpus.No. 00-4385 Spirko v. Mitchell 21

_______________ DISSENT

_______________ RONALD LEE G ILMAN, Cir cuit J udge, d issen ting.

I. OVERVIEW

As conceded in the appella te brief of Spirko’ s counsel

, “John Spirko lied.” Th is inc ontestible conclusi on is welldocument ed in the majority

opinion’s recitation of

the many inconsistentstories that Spirko told to Inspect o r Hartman. But lying is not a capital offense. And while the record leave s
no doubt abo

ut Spirko’ s falsifi cations, it le aves me with consider a ble doubt as to whether he has be en lawfu

lly subjected to the dea

thpenalty

in light of the state’s alleged Bradyviolation.

The case against Spirko is far from ove rwhelmin g. I t is substantia lly b a sed upon three evidentiary pillars: (1) an ey ewit ness who was “100% sure” that Spirko’s best friend, Delaney Gibson, was at the Elgin, Ohio post office when the postmistre ss was abducted, (2) anothe r eyew itness who was “70% sure” that Spirko was also at the scene, and (3) Spirko’s knowl edge of factual details concerning the murder that were not known to the gene

ral public . Each of

these pill ars, however, has a foundation of sand. The “ c ertain” identificationof a cle an-shav en Gibson is cast in grave doubt both by ph oto graphs and receipts in the possession of the state, but not disclosed

to the defense, indicating that Gibson had a full beard immediately

before the date of the abduction, and by s tatement s made to in vestiga tors by severa l people who said that Gibson had a full beard during the entire

su mmerof 1 982. As for Spirko’s presence at the scene, a confidence level of on ly 70% is far fr om “beyond a

reasona ble doubt.” Finally, Spirko’s knowledg e could have

come from second-hand repetition rather than first-hand participation. 22 Spirko v. Mitchell No. 00-4385

A striking fact ab out the re cord in th is case is the complete absence of

any fore nsic evidence linking Spirko to the crime. There are no fingerprints, footprints, fibers, blood, or stolen items to bolster the state’s cas e. Nor is there any w ritten or recorded confession of gui lt by Spirko or incriminating testimony by a witness w

ho turned state’s evidence. (Altho ugh two of Spir

ko’s for mer cell mates tes tified at

tria l that Spirko adm

i t ted to them that he murdered Mottinger, those ce ll ma te s h av e s ub se qu en tl y re ca nt ed th ei r t es ti mo ny, either directly or indirec

tly.) We are thus left with nothing other thanthe three shaky

pillars described above. This does notnegate

the fac t that a jur

y c ould, in a f

air ly conducted trial, find Spirko guilty bey o nd a reasonable doubt; but the closene ss of the questionobviates the possib ility

of harmle ss
error and requires us to be more sensitive to any material procedural violations by the state. See Lindsey v. King

, 769 F.2d 1 034, 1042 ( 5th Cir. 1985) (stating that “petitioner should receiv e the benefit o f

the doubt”

in a capi

tal case where “there is a rea

l possibility

that the w

rong ma n is to be executed”).

II. ALLEGED

BRADY VIO LATION

The alleged procedural violation t ha t is key to this appeal is the very one

di sc ussed by the majority opinion—Spirko’s claim that the state failed to turn over to him exculpatory a nd impeachmen t in formation that would have materially aided his d efense. Pursuant to Brady v. Maryland, 373 U.S. 8 3 (1963), “ the su

ppression by the prosec ution of evidence favora ble to anaccuse d upon re quest viol ates due process where the evidence is material either to guilt or to punishment.” Id . at 87. Th e Supreme Courthas summarized the components of a Bradyviolation a s follows:

The evidence at issue must be favorable to the acc used, either bec ause it is exculpa tory , or beca

use it is impea ching; that evidence must have been suppressed by the State, either willfully or inadver tantly; and prejudice must have ensued.No. 00-4385 Spirko v. Mitchell 23

Strickler v. Greene
, 527 U.S. 263, 281-82 (1999). Prejudice exis ts “only if there

is a reasonable probability that, ha d th e evidence been disc losed to th e defen se, the r esult of the proceedi ng w ould have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985).

Onhabeas review, a federa l co u rt must ask whether the defendant “received a fair trial, understood as a trial resulting ina verdict worthy

of confidence. A reas onable pr obability of a diffe rent re sult is accord ingly shown whe n the government’s evidentiary suppression undermi nes confidence in the outcome

of the trial.” Kyles v. Whitley , 514 U.S. 419, 434 (1995) (quotation marks omitted). “Allegations of violations of Brady v. Maryland, 373 U.S. 83 (1963), present mixed questions of law and fact which this Court reviews de novo.” Carter v. B ell , 218 F.3d 581, 591 (6th Cir. 2000) (parallel citations omitted).

Becau se Spirko initiatedhis federal habeas corpus action in March of 1995, prior to the

effec ti ve dateof AEDPA, we apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v. Murphy

, 521 U .S. 32 0, 336 (19 97). Fe deral c ourts, pr ior to A EDP A, were required to hold an evidentiary hearing “[w]here the facts are in dispute” and “the habeas applicant did not rece ive a ful l and fair evidentiar y he aring i

n a state court, either at

t he time of the trial or in a collateral pro ceedin g.” Townsend v . Sain , 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes , 504 U.S. 1, 6 (1992).
A. Is the evidence in question favorable to Spirko?

The first step in analyzing the Bradyissue is to ask whether the withheld e

vidence is f avor able to Spirko as either exculpatory

or impeaching. At trial, the state’s theory of the

casewas that Sp irko and Gibso n joi ntly abducted and murdered Mrs. Mot ti nge r. In support of this theor y, t he state elicited the testimony of Opal Siebert, who lived a c ros s the street from the Elgin post office. Siebert testified that she was 24 Spirko v. Mitchell No. 00-4385

“100% sure” that she saw Spirko’s friend Gibson outside the post offic e on th e morn ing o f August 9, 2002. When interviewed on the day

of the incident, Siebert described the

manshe had seen as clean-shaven. She also sele cted a photograph

of a cle an -shaven

Gibson fr

om an arr ay in late Jan uary of 1983, more than f

ive months

after the crime occurred.

The withhe ld evidence directly contradicts both the government’s th eo ry o f t he ca se an d S ie be rt ’s te st im on y. Gibson to ld investigators that he was in North Carolina on August 9, 1982. His story was at least partially cor

roborated by interviews with Gibson’s wife, Margie, and with Margie’s sister and brother-in-law, Brenda a nd Michael Bentley , who accompanied

the Gibsons on the trip to North Carolina. The Be nt le ys told investigators that they had last see

n the Gibsons inAsheville, Nor

th Carolina at approximately 6 p.m. on August 8. Ashevi l le is roughly 500 miles away from Elgin, Ohio.

Alth ough the state

i nformed Spirko that investigators had spokenwith

Margie Gibson an

d Michae l Bentle

y, i t failed t o disclose the fact that

the i nvestigators had received phy sical evidence during t

hose inte rviews. The Bentley s provided the investigators with

receip ts from an

automotive

store in N orth Carolina dated Au

gust 7 an

d from a hotel in Ne

wport, Tennessee where the Bentley s stayed on the nig

ht of August 8, along with 40 photos of themselves an d the Gibsons t hat wer e alleg edly taken tha

t weeke nd. Margie Gibson provided

investig ators wit

h 18 sim ila r photos allege dly taken during the same p eriod of time. All of the photos showed G ibson with a full bea rd. Thes e ph otos and the receipts corroborate Gibson’s alibi an d theref ore tend to prove, although they

cannot conclusively de

monstrate, tha t both the government’s theory of the case and S i ebert’s ey ewitness

identificationwere faulty . Beca use the withheld physical evidence ap p ears to be both exculpatory a nd impea ching, it is favorable to S p irko within the meaning of Brady

.No. 00-4385 Spirko v. Mitchell 25

B. Was the evidence at issue suppressed by the state?
Bradyne x t requires us to determine whether the evidence in questio n was suppressed by th e state. This cour t has held that Bradyis not violated where the defendant is “aware of the essential facts that would enable him to take advantag e of the exculpator

y ev idence,” even if the gover nment does not disclose the evidence itself. United States v. Todd , 920 F.2d 399, 405 (6th Cir. 1990).

In Todd , the gov ernment refuse d to disclo se repor ts prepared after F BI i

ntervie ws with Todd’s brother and the brother’s girlfriend. Id. at 404. This court concluded that no Bradyviolation occurred because Todd was informed before trial that both interviewees had p ote ntially exculpatory information, and

Todd had an opportunity to interview them. Id. at 405. Th e “esse

ntial facts”in Todd , then, were the identities of the two potential witnesses; once Todd had that information, he was f

ree to interviewthem in ord er to obta in the exculpatory evidenc e.

In the present case, in contrast, the issue is not whether Spirko could have interviewed the Gibsons and the Bentley s, butwhether he could have ob tained t he photos a nd rece ipts that th ey h ad given to the state. The prosecution informed Spirko only that “pictures a re purported to have been taken of the weeken

d in questi on.” This

statemen t is misleading. A statement informing

Spirko tha

t investig ators had received pictures that were purportedly of the weekend in question would have been

accurate; but

it was entirely incorr

ect for the prosecution

to s ay that “picture s are purported to have been taken . . . .” At t

he tim e the statement was made, the prosecution

knew that photos had in fact been taken and were inthe state ’s poss ession. There was nothing “purported” about those facts. But the statement to Spirko suggested that the state possessed no photos. And the prosecution made no mention of the B entle y ’s rece ipts that te nded to corrobora

te Gibson’s p resence in North Carolina on the date of the abduction. 26 Spirko v. Mitchell No. 00-4385

Unlike the situation in Todd , Spirko was not “aware of the essential facts that would enable him to take advantage of the exculpatory

evi d ence.” 920 F.2d at 405. The “essential facts” in this case appear to be that th e state possessed materia l pho tos and receipts, and these facts were not disclosed to Spirko. Todd

is therefor e di stinguishable. Spriko has thus presented a prima facie case that the phy

sical evidence at issue was suppressed by the sta te, satisfying the second component of a Bradyviolation.

C. Was Spirko prej ud ic ed by the suppr ession of the favorable evidence?

The final step in the Bradyanaly sis is to determine whether Spirko was prejudiced by

the state’s suppression

of evidence favora ble to his defense. In other words, does the suppre ssion of the p er tinent evidence “undermine[] confidence in the outcome of the tri al ”? Kyl es v. Whitley , 514 U.S. 419, 434 (1995) ( quotation

marks omit

ted). Thi s question

effec tively requires us to asse ss the pro bability of a diff erent ou tcome if the state ha

d disclo sed its possession of the photos and recei pts to Spirko. Spirko has presented some evidence on this point. His t

rial cou nsel have signed a ffidavit s stating that they doubted the credibility of Gibson’ s alib i and therefore did notpursue that line of

defense. The lawy

ers contend that if they had known a

boutthe evidence corroborating Gibson’s alibi, they would have use d that evidence to attack the state’s case at trial.

Whether this would have been sufficient to chan g e the jury’sverdict or Spirko’s sentence is very much in dispute. The majority

conte nds t hat using the Gibson alibi evidence would ha ve ac tu al ly increased

Spirko’ s ch ances of conviction and a de ath sente

nce bec ause

the Gibson evidence not only does not eliminate Spirko

as the per pet rat or, it eli mi nat es h is bes t d efe nse . If Gibson was not

a participant in the murder, then hewas not, as Spirko told the investigators and claimed a

t trial,No. 00-4385 Spirko v. Mitchell 27

the source of all of Spirko’s detailed kno wledg e of the crime. And if Spirko did not lea rn the details of this crimefrom Gibs on, from w hence d id all of that detail come?
Maj. Op. at 15. But Spirko presents an equally plausible, but very diffe rent, outcome:

If the prosecution had fulfilled its Bradyobligations, Mr. Spirko would not h ave test ified as to Del aney Gibson’s alleged involveme

nt. . . . Moreover, had the prosecution turned over the Bradymat er ia l, Mr . S pi rk o’ s a tt or ne ys
c ould have use d it to show t hat his sta

tements t o investigators concerning

Delaney Gibson—like all of his other statements—were not true. . . . Armed with t hi s evidence, th e d ef

en se wo ul d h av e d es tr oye d the prose cution’s fundamental theory of the case, would hav e complete ly

undermined Mrs. Siebert’s testimony, a nd would have discre dite d Mr. Spirk o’s state ments to investigators c oncerning Delaney Gib son. Such evidence plainl y wo uld have had a significant impact on the overall trial . . . .
Spirko further states that

even if [his] statements to investigators included informationtha t on ly s omeone in volved in t

he crime could know, such st atements do not demonstrate that [he]

was involved i

n the crime. He could well have obtained the information from someone who was (or even was not) involved in the crime or he could have obtained the informat ion from the investigators the mselves.
Spirko’s argume

nts are a t least pl ausible. I am therefor e unable to say with confidenc e that the prosecution’s failure to disclose the photos and receipts was harmless. Because “the government’s evide ntiary

suppress ion under

mi nes confidenc e in the ou tcome of the trial,” “[a] reasonable probability of a 28 Spirko v. Mitchell No. 00-4385

different result is a ccordin gly shown.” Kyles , 514 U.S. at 434 (quotation marks omitted).

The Fifth Circuit made this point in asimilar c ase involving

analleged Bradyviolation: “This is a capital case .

. . and one

moreover in which o

ur read ing of th e eviden

ce shows there is

a real pos si bility tha

t t he w ron g ma n i s t o be ex ecu ted . In such a case, if ever, petitioner should receive the benefit of the doub t.” Lindsey v. King , 769 F.2d 1034, 1043 (5th Cir. 1985); see also Kyles

, 514 U.S. at 422 (stating that a federal

cour t ’s “duty to searc

h for con stitutiona

l error w

ith painstaking care is

never more exact

ing than it is in acapital case”). Like the Fifth Circuit in Lindsey , we are dealing with

a cap ita l case where the

defenda nt’s conv iction and death sent enc e rests on relatively w eak evidence—the three shaky pillars discussed abo v e. I therefor e believe that any

doubt about whether there is a reasonable probability of a different result should be resolved in favor of Spirko.

III. EVIDENTIARY HEARING

For all of the

reasons set forth above, th

is court sho uld remand the case to the district court for an evidentiary

hearing

on Spirko’s Bradyclaim. Under pre-AEDPA law, which we must follow in t

his case , a habe as petitione r is entitled to an evidentiary

hearing if “for a ny r eason it a ppears t hat the sta te trier of fact did not

afford the habeas applica nt a full a nd fair fact hearing.” Townsend v

. Sain , 372 U.S. 293, 313 (1963), overruled on ot he r g ro un ds by Keeney v. Tamayo-Reyes , 504 U.S. 1, 6 (1992). Spirko poin ts out that, despite h

is reque sts, he has not received an evidentiary hearing on his Bradyclaim inany state or fede ral cou rt. An evide ntiar y hearing w oul d allow the distri ct court

to determine whether the state in fact violated Spirko’s constitutional rightsby n ot turning over to the defense

the photos

and rec eipts in its possession. Ac co rd in gl y, this cour

t should va

cate th e judgment of the district court and remand

the case for an evidentiary

hearing on Spirko’ s Bradyclaim.