1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0140P (6th Cir.)

File Name: 04a0140p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOHN G. SPIRKO, JR.,

Petitioner-Appellant,

v.

BETTY MITCHELL, Warden,

Respondent-Appellee.

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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: BATCHELDER, DAUGHTREY, and GILMAN,

Circuit Judges.

_________________

COUNSEL

ARGUED: Thomas C. Hill, SHAW PITTMAN,

Washington, D.C., for Appellant. Charles L. Wille,

ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus,

Ohio, for Appellee. ON BRIEF: Thomas C. Hill, SHAW

PITTMAN, Washington, D.C., John J. Callahan, McHUGH,

DeNUNE & McCARTHY, Sylvania, Ohio, for Appellant.

2 Spirko v. Mitchell No. 00-4385

Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF

OHIO, Columbus, Ohio, for Appellee.

BATCHELDER, J., delivered the opinion of the court, in

which DAUGHTREY, J., joined. GILMAN, J. (pp. 21-28),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. John G. Spirko

appeals the order of the district court denying his petition for

a writ of habeas corpus. 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 direct appeals of his conviction and sentence,

his petition for a writ of certiorari in the United States

Supreme Court and his petitions for post-conviction relief

were unsuccessful. On March 31, 1995, he filed a petition for

habeas corpus in the district court; he filed an amended

petition and a request for an evidentiary hearing on March 10,

1999, alleging fifteen separate grounds for relief, each of

which the district court addressed and found to be without

merit. The district court denied the petition, and Spirko

timely appealed.

Before us, Spirko argues that 1) the prosecution denied

Spirko due process by knowingly presenting false evidence

and a false theory of the case at trial; 2) the prosecution

denied Spirko due process by violating the requirements of

Brady 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 prosecution probably suborned perjury

at trial; 5) the district court erred in denying Spirko’s actual
No. 00-4385 Spirko v. Mitchell 3

1

The district court held that although Spirko filed his habeas petition

prior to the effective date of the Anti-terrorism and Effective Death

Penalty Act (“AEDPA” or “the Act”), the AEDPA is retroactively

applicable to the petition. The district court noted that Spirko did not

argue to the contrary; the court also held, in the alternative, that the

outcome of the case was not affected by the retroactive application of the

Act. The district court’s retroactive application of AEDPA to this petition

was error. We have reviewed the petition under the pre-AEDPA standard,

see Lindh v. Murphy, 521 U.S. 320, 326 (1997), however, and conclude

that the district court was correct in its conclusion that the outcome of this

case is the same when the pre-AEDPA standard is applied, and therefore

we hold that the error is harmless.

innocence claim; 6) Spirko was denied due process by the

prosecution’s use of a suggestive photo array and

hypnotically refreshed testimony, and by his trial in an

improper venue; 7) the district court erred in denying Spirko’s

request for discovery and an evidentiary hearing; 8) Spirko

was denied due process as a result of several errors during the

sentencing phase of the trial. After reviewing the district

court’s exhaustive opinion, we conclude that we agree with its

findings and its conclusions1, and we will not separately

address any of Spirko’s claims except those relating to the

alleged Brady violations. We think that the Brady claims,

although ultimately meritless, deserve specific attention.

The only Brady claim that Spirko actually argues in his

brief is that the state withheld from him evidence that an

individual named Delaney Gibson, who was indicted with

Spirko for the murder but escaped and remained a fugitive

until well after Spirko had been tried and convicted, could not

have been present when the murder was committed. It is

useful to recount the facts relevant to this claim.

At approximately 8:30 a.m. on August 9, 1982, Betty Jane

Mottinger was discovered to be missing from her post as

postmistress of the Elgin, Ohio, Post Office in Van Wert

County. Also missing were Mrs. Mottinger’s purse and

approximately $750 in cash, postage stamps and money

orders. Some three weeks later, her decomposing body was

4 Spirko v. Mitchell No. 00-4385

found in a bean field in neighboring Hancock County. The

body, bearing between fourteen and eighteen stab wounds to

the chest and stomach, was fully clad, wrapped in a paintsplattered curtain which appeared to have been used by

painters as a drop-cloth, and tied with a cord similar to a

clothesline.

The investigation into the abduction and death of Mrs.

Mottinger was massive. Authorities interviewed over three

thousand people and spent countless man hours seeking

information to solve the crime. The prosecution followed

anonymous leads, tips based on old hearsay, and any trail that

might lead to probative evidence. The record is enormous

and contains reports from the interviews and documents from

the investigative efforts. Among the interviews documented

in the record are the many interviews of the petitioner, John

Spirko.

In October of 1982, Spirko initiated contact with law

enforcement officers, including postal inspectors. Spirko,

who was then in jail in Lucas County, Ohio, on unrelated

charges, told the officers that he had information about Mrs.

Mottinger’s killing, and suggested that in exchange for the

officers’ help on those charges, he could help them in the

Mottinger case. Over the next several weeks, Spirko gave a

series of differing accounts of the murder. His tales included

persons named “Rooster,” “Dope Man,” “Spooky” and “Dirty

Dan.” Early in his “cooperation” with the postal inspectors,

he told Inspector Paul Hartman that he had been at a party

where an unnamed person had told him that three white males

had murdered Mrs. Mottinger after the three had gone to the

post office to claim a package containing heroin, had gotten

into some kind of scuffle, and had been forced to kidnap the

postmistress. According to Spirko, while he was at the party,

he saw a cream-colored handbag with brown trim, containing

coins, some money orders and gold jewelry. He changed his

story a few days later, telling Inspector Hartman at the outset

of the interview, “Look Paul, I’ve thrown you a few curves

and you have thrown me a few curves. From now on, it’s
No. 00-4385 Spirko v. Mitchell 5

2

The Ohio Supreme Court refers to “someone named Vito” in

relating this rendition of Spirko’s story, which appears to us to be

attributable to a court-reporting error. Throughout this part of Hartman’s

trial testimony he refers to “The Dope Man,” but on page 13 of Hartman’s

testimony—which is also page 2391 of the trial transcripts—the transcript

reads: “The defendant was ultimately commissioned by Vito man to

recover this parcel containing the narcotics.” No other reference to

anyone named “Vito” appears.

going to be straight down the line.” Spirko went on to say

that he himself had been commissioned by The Dope Man2 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 already bound; that one of the men in

the house had unwrapped it to recover a cigarette lighter; and

the body had 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

man named “Swartz,” who told him that Rooster and Dirty

Dan had killed Mrs. Mottinger because she had bitten Rooster

when he forced her to perform oral sex 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 was a

cream-colored purse with brown trim, containing money

orders, change and gold jewelry.

The next day, December 9, Spirko again changed his story.

This time, he said it was in fact Rooster who had told him

how the murder took place, and that Rooster had said that the

only thing that bothered him about the murder was the

“whoosh” sound that the knife made when he stabbed 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 deposited in a swamp in Florida. And on December 10,

Spirko described to Inspector Hartman the clothing that Mrs.

Mottinger had been wearing when she disappeared.

Hartman next interviewed Spirko on December 13, 1982.

Spirko now claimed that he and Swartz had actually been

present when Mrs. Mottinger was killed. First, Spirko said

that while he was watching television in the house, Rooster

had chased Mrs. Mottinger outside where Rooster and Dirty

Dan had stabbed her. Later in the day, Spirko told Hartman

that an unknown biker, along with Rooster and a man named

Dean or Dino, had taken turns raping Mrs. Mottinger, and

when she tried to escape Spirko stopped her and held her

down while Rooster repeatedly stabbed her in the stomach.

When interviewed on December 15, 1982, Spirko claimed

that he and Dino, Dirty Dan, Rooster and the biker, had spent

the night of August 8th sleeping in a roadside park. The next

morning, Rooster, Dino and the biker went in to Elgin,

kidnapped Mrs. Mottinger and brought her back to where

Spirko and Dirty Dan were parked on a road near the

farmhouse where Spirko claimed the murder took place.

Faced with the necessity of doing something with the victim

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 house and in front of

Spirko and Dino, stabbed her repeatedly. Rooster, the biker

and Dan rolled the body onto a piece of curtain they had in

the car, removed the jewelry from the body and pried the

stone from a ring on the victim’s hand, and, bringing the

curtain down over the victim’s head, wrapped the body endto-end. Because Rooster had carelessly dropped his cigarette

lighter into the curtain during this process, they unwrapped

the body, recovered the lighter, and wrapped it up again.

Investigator Hartman testified that several aspects of this

evolving tale were of particular significance: the detail about

the victim’s purse and its contents; the description of the
No. 00-4385 Spirko v. Mitchell 7

clothing the victim had been wearing; the description of the

curtain in which the body was wrapped, including the detail

that part of the curtain had been torn off; the description of

the way in which the body had been wrapped in that curtain;

and the fact of the stone’s having been pried from the victim’s

ring. These factually accurate details were not matters that

had been made public.

On January 11, 1983, Hartman interviewed Spirko again.

By now, Spirko was in the federal penitentiary in

Leavenworth, Kansas, having been admitted into the federal

witness protection program. This time, Spirko advised

Hartman that there had been no narcotics involved in the

abduction and murder of Mrs. Mottinger, but that he had

heard that the entire incident began as a robbery attempt.

When Hartman refused to believe any of this allegedly thirdhand account, Spirko admitted that it was not true, but said

that he couldn’t tell the truth because he had to protect “the

only friend he ever had in his whole life.” Spirko went on to

say that this friend had been in the Elgin area immediately

after the crime was committed, and that Spirko had seen the

proceeds from the post office robbery.

The following day, Spirko identified his friend as Delaney

Gibson; Spirko said that on August 11 or 12, 1982, he had

gone drinking with Gibson and two individuals named Clyde

Cravens and Eugene Sizemore, and had learned that those

three had robbed the post office and murdered Mrs.

Mottinger. Spirko said 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 containing a collection of guns, including a chromeplated .357 magnum with ivory handles, and a cream-colored

canvas purse containing money orders and change. Spirko

said that he saw a rolled-up gray curtain on the floor of the

back seat of Gibson’s car. He also stated that, a couple of

weeks later, Gibson offered to pay Spirko to kill Clyde

Cravens, whom Gibson called “Rooster,” because he could

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. When the postmistress

began to scream, Gibson went to the post office and helped

the other two abduct Mrs. Mottinger. They then raped her

and when she tried to escape, they stabbed her and dumped

the body. Spirko said that Gibson explained that they stabbed

the victim rather than using the guns to kill her because

“where they were at, 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 got

was change; he also explained that because the money orders

were traceable, they had burned them rather than cashing

them.

Of particular significance to Inspector Hartman were the

details about the .357 magnum (the investigation having

revealed that Gibson possessed such a firearm), 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

primarily yielded change, and the fact that the money orders

had been destroyed. Also important were the names of

Cravens and Sizemore, both of whom the investigators

determined were real individuals; the inspectors found no

evidence connecting either of them to the robbery and

murder. Inspector Hartman also testified that the

investigators looked into the other individuals whom Spirko

had named—in his pre-Leavenworth interviews—and had

determined that they were either real people who had no

connection with the murder, or were people who apparently

did not exist.

While he was in jail, Spirko wrote a letter to his girlfriend

in which he said, “[T]here are some things that I told him

[Inspector Hartman] that only the persons who did this shit

know, there are no if and ands about that.” Spirko was right.

He had given the authorities facts about the crime that had not

been disseminated by the authorities and were not generally

known by the public, including the number and location of

stab wounds on Mrs. Mottinger’s body; a description of the
No. 00-4385 Spirko v. Mitchell 9

clothing Mrs. Mottinger had been wearing when she was

abducted; the fact that a stone had been pried from a ring she

had been wearing; a description of the type 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 who had been in the vicinity of the

post office around the time Mrs. Mottinger was abducted

were interviewed. One of them, after viewing a photo array,

identified Delaney Gibson as a man she had seen getting out

of a car with a “cinnamon top and a bronzish-brown bottom,”

in front of the post office at 8:30 that morning. In the picture,

Gibson was clean-shaven. Asecond witness identified—with

about 70% certainty—Spirko from a photo array as the man

he had seen at 8:30 that morning, standing by a copper-toned

late 1970s car with a lighter top.

The investigators conducted a comprehensive investigation

into Delaney Gibson. They discovered that 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 him

into custody. Gibson denied any involvement in the

abduction or murder claiming that he was employed as a

migrant worker in North Carolina during the time period

surrounding the incident. Gibson admitted to his friendship

with Spirko but claimed that he had not seen Spirko for years.

In August of 1983, Gibson escaped from police custody. He

was indicted in September 1983, along with Spirko, for the

murder of Mrs. Mottinger, recaptured, and shortly before the

date scheduled for Spirko’s trial, escaped again. Gibson

remained a fugitive until well after Spirko’s trial had been

completed.

The investigators interviewed Gibson’s sometime crew

chief, Juan Flores, who confirmed that he employed Gibson

in North Carolina as a produce picker and that Gibson was in

his employ from June, 1982, until October, 1982. Flores

10 Spirko v. Mitchell No. 00-4385

stated that he thought he remembered three or four days

during that period when Gibson was absent from work but he

could not remember when, exactly, the absences occurred.

Postal inspectors interviewed Gibson’s wife, Margie, on

December 21, 1983. Margie told them that sometime during

the month of August, 1982, her sister and brother-in-law,

Brenda and Michael Bentley, had visited the Gibsons in North

Carolina, staying for a couple of days. Margie showed the

inspectors pictures—allegedly taken during the visit—of the

Bentleys with Margie and a bearded Delaney Gibson. The

inspectors also interviewed the Bentleys, who said that they

had visited the Gibsons in North Carolina on Saturday,

August 7 and Sunday, August 8, 1982; had left North

Carolina around 6:00 p.m. on August 8; and had driven north

to Newport, Tennessee, where they had stayed in a motel the

night of August 8. The Bentleys also had pictures that they

said were taken during the visit. The postal inspectors were

able to verify the Bentleys’ overnight stay at a motel in

Newport on Sunday night, August 8, 1982, as well as Brenda

Bentley’s statement that she had dropped off two rolls of film

for processing on August 10.

On January 11, 1984, the inspectors again interviewed

Margie Gibson and obtained from her the photographs that

she claimed had been taken during the August, 1982, visit.

The inspectors subsequently determined that Margie Gibson

had taken film to be processed on August 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 that this evidence demonstrates that Gibson

could not have been in Elgin, Ohio, on the morning of

August 9, 1982, and that on that day Gibson was not clean

shaven but wore a full beard. Spirko reasons that because the

theory of the state’s case against Spirko was that Gibson and

Spirko had acted together in the abduction and murder of Mrs.

Mottinger, evidence that Gibson was not in Ohio at the time
No. 00-4385 Spirko v. Mitchell 11

of the murder is evidence that also is exculpatory of Spirko.

The state’s failure to turn this evidence over to him, Spirko

argues, violated the state’s obligations under Brady v.

Maryland, 373 U.S. 83 (1963).

Brady established that “the suppression by the prosecution

of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87. Brady does not grant broad discovery

powers to the defendant, but is instead intended only to

ensure that the defendant has access to impeachment evidence

and evidence favorable to him, suppression of which would

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 Brady violation is Brady’s

requirement that the withheld evidence be “material either to

guilt or to punishment.” Brady, 373 U.S. at 87. In Kyles v.

Whitley, 514 U.S. 419 (1995), the Supreme Court elaborated

upon Bagley’s materiality requirement, explaining:

Bagley’s touchstone of materiality is a “reasonable

probability” of a different result, and the adjective is

important. The question is not whether the defendant

would more likely than not have received a different

verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a

verdict worthy of confidence. A “reasonable probability”

of a different result is accordingly shown when the

government’s evidentiary suppression “undermines

confidence in the outcome of the trial.”

Id. at 434. The Court went on to emphasize that materiality

is not determined by looking at the sufficiency of the

evidence; rather we must determine whether the favorable

evidence could reasonably be viewed as putting the entire

case “in such a different light as to undermine confidence in

12 Spirko v. Mitchell No. 00-4385

the verdict.” Id. at 435. The Court noted that if the

suppression of evidence in fact violated Brady, then the error

is not subject to harmless error review, since a failure to

disclose evidence that could reasonably be viewed as casting

the entire case in a different 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 violation by showing

only that the prosecution was aware of but did not disclose an

item of evidence favorable to the defendant. Id. at 436-37.

More recently, the Supreme Court reviewed the elements of

a Brady violation, reminding us that, “strictly speaking, there

is never a real ‘Brady violation’ unless the nondisclosure was

so serious that there is a reasonable probability that the

suppressed evidence would have produced a different

verdict,” and summarizing the components of a “true” Brady

violation:

The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by

the State, either willfully or inadvertently; and prejudice

must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In

Strickler, the Court’s focus was on the third component,

“whether petitioner has established the prejudice necessary to

satisfy the ‘materiality’ inquiry.” Id. at 282. To satisfy this

requirement, the Court reiterated, the petitioner “must

convince us that ‘there is a reasonable probability’ that the

result of the trial would have been different if the suppressed

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

Like several of our sister circuits, this circuit has held that

because Brady did not alter the rule that defendants have no

general constitutional right to discovery in criminal cases, a

prosecutor violates his constitutional duty of disclosure only

if “his omission is of sufficient significance to result in the
No. 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 Cir. 1990) (quoting United

States v. Agurs, 427 U.S. 97, 108 (1976)), and where the

defendant was “aware of the essential facts that would enable

him to take advantage of the exculpatory evidence,” the

government’s failure to disclose it did not violate Brady. Id.

In Todd, we found no Brady violation where the prosecutor

had disclosed to the defense the fact that two witnesses

possibly possessed exculpatory evidence but did not disclose

what that evidence was. See also United States v. Clark, 928

F.2d 733, 738 (6th Cir. 1991) (quotations and citation

omitted) (holding that there is no Brady violation if the

defendant “knew or should have known the essential facts

permitting him to take advantage of any exculpatory

information or where the evidence is available to defendant

from another source”). The Fourth Circuit has held that “the

Brady rule does not apply if the evidence in question is

available to the defendant from other sources,” United States

v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) (quoting United

States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)); and

“where the exculpatory information is not only available to

the defendant but also lies in a source where a reasonable

defendant would have looked, a defendant is not entitled to

the benefit of the Brady doctrine. Id. at 381. The Second

Circuit (United States v. Grossman, 843 F.2d 78, 85 (2d Cir.

1988)) and the First Circuit (Lugo v. Munoz, 682 F.2d 7, 9-10

(1st Cir. 1982)) have similarly ruled.

Spirko contends that the state violated the requirements of

Brady by failing to turn over to his counsel all of the

investigative reports and photographs regarding Delaney

Gibson’s whereabouts at the time of the abduction and murder

of Mrs. Mottinger. It is undisputed that Spirko’s defense

counsel stipulated prior to trial that they had received from

the state memoranda of interviews of Gibson done on

April 21, 22 and 29, 1983; the “Interview Concerning

Delaney Gibson. a) Roger Burress [the owner of one of the

farms on which Gibson worked picking tomatoes during the

summer of 1982] b) Margie Gibson;” a photograph of

14 Spirko v. Mitchell No. 00-4385

Delaney Gibson; and “Information concerning Delaney

Gibson: Mr. Michael Bentley, Box 425, Ary Kentucky

41712, has stated that Delaney Gibson was 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 before

the murder, and Spirko was given the identity and location of

some of the witnesses to Gibson’s whereabouts on that day.

The state court made factual findings that Spirko’s counsel

had notice of this evidence; those findings are amply

supported by the record and are binding on the federal habeas

court under the pre-AEDPA 28 U.S.C. § 2254(d).

Spirko’s complaint is essentially that he was entitled to

have all of the state’s evidence with regard to the North

Carolina alibi turned over to him. But this is not the law.

Like the defendant in Todd, 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 reasonable

defendant would have pursued that inquiry—unless, of

course, he already knew that the inquiry would not in fact

result in exculpatory information—but Spirko did not do so.

We hold, consistent with Todd, Clark and Wilson, that

because the evidence was available to Spirko from other

sources than the state, and he was aware of the essential facts

necessary for him to obtain that evidence, the Brady rule does

not apply.

We hold further that Spirko has not demonstrated that this

evidence was of a kind that the state would have been

required to disclose under Brady. Spirko cannot demonstrate

that the evidence regarding Gibson’s alibi—that is, the claim

that Gibson was not and could not have been in Ohio on the

morning of August 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 argues that the evidence was favorable to him

because, like the undisclosed evidence in Jamison v. Collins,

291 F.3d 380 (6th Cir. 2002), it undermined the theory of the

prosecution’s case. In Jamison, we held that evidence

withheld from the defendant was 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 committed, impeach the testimony of key

prosecution witnesses, and, in fact, point to the chief

prosecution witness and another individual as potential

suspects. Id. at 389-391. Here, however, the evidence

regarding Gibson’s whereabouts neither contradicts nor

undermines the state’s theory of the crime. While it is true

that Gibson was indicted for the murder, and the state viewed

him as probably having been the chief perpetrator, the state’s

case against Spirko was not dependent upon Gibson’s being

proven to be part of the crime. The state’s case against Spirko

was based principally on Spirko’s own statements to the

investigators demonstrating intimate knowledge of facts that,

in Spirko’s own words, “only the persons who did this shit

know.” Spirko knew.

The Gibson evidence does not prove that Gibson could not

have been in Elgin, Ohio, on the morning that the crime was

committed. More relevant to Spirko’s Brady claim, however,

is the fact that the Gibson evidence not only does not

eliminate Spirko as the perpetrator, it eliminates his best

defense. If Gibson was not a participant in the murder, then

he was not, as Spirko told the investigators and claimed at

trial, the source of all of Spirko’s detailed knowledge of the

crime. And if Spirko did not learn the details of this crime

from Gibson, from whence did all of that detail come?

Spirko cannot demonstrate that he was prejudiced by the

government’s failure to disclose the Gibson information.

Prejudice for Brady purposes, the Supreme Court said in

Strickler, is necessary to establish the “materiality”

requirement. Spirko may demonstrate that prejudice only by

16 Spirko v. Mitchell No. 00-4385

“convinc[ing] us that ‘there is a reasonable probability’ that

the result of the trial would have been different if the

suppressed documents had been disclosed to the defense.”

Strickler, 527 U.S. at 290. But here, even if Spirko could

demonstrate that the Gibson evidence proved beyond question

that Gibson could not have been part of the crime, he cannot

show a reasonable probability that by presenting that evidence

to the 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 result of the trial would have been

different.” Strickler, 527 U.S. at 289. As we have already

noted, if the jury had concluded that Gibson could not have

been one of the perpetrators, then the jury would also have

concluded that Gibson could not have been the source of

Spirko’s detailed knowledge of the crime. And, alternatively,

Spirko has certainly not demonstrated that if he had been

aware of this evidence—and thus had known that Gibson was

not involved in the crime—he could have come up with a

better story about how he came to know so much about the

murder. This evidence was simply not material.

In the statement of facts contained in his brief on appeal,

Spirko claims that the state also failed to provide him with

investigative records from the massive investigation.

Specifically, Spirko points to those containing information

allegedly inculpating other individuals in the abduction and

murder of Mrs. Mottinger, and detailing the interviews of

persons who failed to place either Gibson or Spirko at the

post office at the time of the abduction. His brief does not,

however, contain any legal argument with regard to any of

these individuals or demonstrate that any of the evidence he

points to meets the Kyles and Strickler requirements of

materiality.

By failing to provide the court with any developed legal

argument with regard to the individuals, Spirko has waived

any argument he might have. “It is a ‘settled appellate rule

that issues adverted to in a perfunctory manner,
No. 00-4385 Spirko v. Mitchell 17

unaccompanied by some effort at developed argumentation,

are deemed waived.’” United States v. Elder, 90 F.3d 1110,

1118 (6th Cir. 1996) (quoting United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990)). We have nonetheless reviewed

the record with regard to these claims, and we conclude that

they are entirely without merit. Looking first at the

interviews of individuals 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 demonstrates that

these individuals did not see anyone or anything out of the

ordinary. That there were people on the scene who did not

notice anything out of place or any strange faces is neither

favorable to Spirko nor exculpatory of him, nor would the

disclosure of all of the state’s information about these people

have been reasonably likely to bring about a different result

at trial.

We have also carefully reviewed Spirko’s claims that

various individuals interviewed or investigated were potential

suspects such that the investigative reports should have been

disclosed to him by the state. The district court concluded,

and we agree, that the record does not support the readings of

these reports that Spirko urges; the record does support the

state’s conclusions that no credible evidence supported any

further investigation into any of them as potential suspects.

Most importantly, nothing revealed in any of the investigative

reports about these individuals in any way undermines the

state’s case against Spirko because nothing in these reports

eliminates Spirko as a participant in the crime or provides a

plausible and innocent explanation for his detailed knowledge

of it. This information is neither favorable to Spirko nor

material to his defense.

The one piece of information to which Spirko points that,

at first blush, might give us pause, is his claim that one of the

prosecution’s witnesses, Debbie Young, the sister of John

Willier, was intimately involved during the trial with the

prosecution’s chief investigator. On closer review, however,

this information is no more exculpatory or impeaching than

18 Spirko v. Mitchell No. 00-4385

any other that Spirko proffers as evidence that the state

violated the requirements of Brady. Before the district court,

Spirko theorized that Willier had killed Mrs. Mottinger in

Willier’s trailer. Spirko has provided virtually no factual

basis in his brief on appeal for this theory of the crime; he has

developed no legal argument in his brief for his claim that

evidence of Willier’s sister’s relationship with the

investigator would have been either exculpatory or

impeaching; he provides no explanation of how Ms. Young’s

testimony was affected by the alleged relationship with the

investigator or, indeed, the substance of that testimony, and

none of Ms. Young’s testimony appears in the Joint

Appendix. Neither is there any evidence in the record that

would support Spirko’s theory that Mrs. Mottinger was killed

in Willier’s trailer.

A review of the record of the prior proceedings in this

matter establishes that Spirko bases this entire Brady claim on

wholly unsupported speculation. Spirko testified at trial that

sometime after the time of the murder, he and Gibson had

gone to a trailer in a trailer park, and that he had seen a large

quantity of “thick, gooey blood in the bathtub” of the trailer.

Spirko did not testify that the trailer belonged to or was lived

in by John Willier, and the record contains no evidence

whatsoever that Spirko was ever in John Willier’s trailer.

Only if the record established that Spirko was in John

Willier’s trailer around the time of the murder could we even

possibly draw the inference that Spirko apparently believes

we should draw, namely that Mrs. Mottinger was killed in

John Willier’s trailer.

We learn from reviewing the record of prior

proceedings—because Spirko’s brief contains neither facts

nor argument with regard to this testimony—that Ms. Young

testified that she had been in her brother John Willier’s trailer

every day for several days after the murder and saw no

evidence of blood in the bathtub. Spirko’s father testified to

the same effect. Spirko would have us infer that Ms. Young’s

testimony was false, apparently because of her relationship
No. 00-4385 Spirko v. Mitchell 19

with the chief investigator. But only if there were evidence

that Spirko was ever in John Willier’s trailer would any

testimony by Ms. Young that there was no blood in the

bathtub in that trailer have any relevance to the charges

against Spirko. The record contains no such evidence.

The district court concluded that none of this information

was of sufficient probative value to create any doubt about the

verdict against Spirko. While we do not entirely subscribe to

the district court’s conclusion that Ms. Young’s relationship

with the investigator would have had no impact on the jury’s

assessment of her credibility, we find no error in the court’s

overall assessment of this Brady claim. Spirko has wholly

failed to demonstrate a reasonable probability that if the

information to 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 Brady claim, like all of the others,

is without merit.

Finally, we must consider whether, even if any of this

evidence met the Brady requirements, Spirko would have

been convicted on evidence unaffected by that which was not

disclosed. We hold that clearly he would. As we have

repeatedly pointed out, Spirko’s conviction rested in large

measure on his knowledge of non-public facts about the

crime, all of which he volunteered to the investigators. The

evidence from his own mouth was accompanied by the

testimony of two of his cellmates who testified that Spirko

told them about the murder and his part in it. There is no

reasonable probability that anything that he now complains

the state failed to disclose to him would have made any

difference in the result of the trial.

To summarize, we hold that the state did not violate the

requirements of Brady with regard to any of the evidence of

which Spirko complains. The Brady rule does not apply to

the evidence of Gibson’s whereabouts the day before the

murder because Spirko was on notice of the essential facts

necessary to permit him to obtain it through other sources.

20 Spirko v. Mitchell No. 00-4385

Even if that evidence should have been disclosed, Spirko has

not demonstrated that it or any of the undisclosed evidence to

which he points was favorable to him or that he was

prejudiced by its nondisclosure. The Brady claims are

without merit. The district court carefully and correctly

assessed each of the other claims of error raised in this appeal,

and we now affirm in its entirety the district court’s judgment

denying the petition for a writ of habeas corpus.
No. 00-4385 Spirko v. Mitchell 21

_______________

DISSENT

_______________

RONALD LEE GILMAN, Circuit Judge, dissenting.

I. OVERVIEW

As conceded in the appellate brief of Spirko’s counsel,

“John Spirko lied.” This incontestible conclusion is welldocumented in the majority opinion’s recitation of the many

inconsistent stories that Spirko told to Inspector Hartman.

But lying is not a capital offense. And while the record leaves

no doubt about Spirko’s falsifications, it leaves me with

considerable doubt as to whether he has been lawfully

subjected to the death penalty in light of the state’s alleged

Brady violation.

The case against Spirko is far from overwhelming. It is

substantially based upon three evidentiary pillars: (1) an

eyewitness who was “100% sure” that Spirko’s best friend,

Delaney Gibson, was at the Elgin, Ohio post office when the

postmistress was abducted, (2) another eyewitness who was

“70% sure” that Spirko was also at the scene, and (3) Spirko’s

knowledge of factual details concerning the murder that were

not known to the general public. Each of these pillars,

however, has a foundation of sand. The “certain”

identification of a clean-shaven Gibson is cast in grave doubt

both by photographs 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 statements made to investigators by several people

who said that Gibson had a full beard during the entire

summer of 1982. As for Spirko’s presence at the scene, a

confidence level of only 70% is far from “beyond a

reasonable doubt.” Finally, Spirko’s knowledge could have

come from second-hand repetition rather than first-hand

participation.

22 Spirko v. Mitchell No. 00-4385

A striking fact about the record in this case is the complete

absence of any forensic evidence linking Spirko to the crime.

There are no fingerprints, footprints, fibers, blood, or stolen

items to bolster the state’s case. Nor is there any written or

recorded confession of guilt by Spirko or incriminating

testimony by a witness who turned state’s evidence.

(Although two of Spirko’s former cellmates testified at trial

that Spirko admitted to them that he murdered Mottinger,

those cellmates have subsequently recanted their testimony,

either directly or indirectly.) We are thus left with nothing

other than the three shaky pillars described above. This does

not negate the fact that a jury could, in a fairly conducted

trial, find Spirko guilty beyond a reasonable doubt; but the

closeness of the question obviates the possibility of harmless

error and requires us to be more sensitive to any material

procedural violations by the state. See Lindsey v. King,

769 F.2d 1034, 1042 (5th Cir. 1985) (stating that “petitioner

should receive the benefit of the doubt” in a capital case

where “there is a real possibility that the wrong man is to be

executed”).

II. ALLEGED BRADY VIOLATION

The alleged procedural violation that is key to this appeal

is the very one discussed by the majority opinion—Spirko’s

claim that the state failed to turn over to him exculpatory and

impeachment information that would have materially aided

his defense. Pursuant to Brady v. Maryland, 373 U.S. 83

(1963), “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process

where the evidence is material either to guilt or to

punishment.” Id. at 87. The Supreme Court has summarized

the components of a Brady violation as follows:

The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by

the State, either willfully or inadvertantly; and prejudice

must have ensued.
No. 00-4385 Spirko v. Mitchell 23

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice

exists “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 682 (1985). 

On habeas review, a federal court must ask whether the

defendant “received a fair trial, understood as a trial resulting

in a verdict worthy of confidence. A reasonable probability

of a different result is accordingly shown when the

government’s evidentiarysuppression undermines 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. Bell, 218 F.3d 581, 591 (6th Cir. 2000)

(parallel citations omitted).

Because Spirko initiated his federal habeas corpus action in

March of 1995, prior to the effective date of AEDPA, we

apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v.

Murphy, 521 U.S. 320, 336 (1997). Federal courts, prior to

AEDPA, were required to hold an evidentiary hearing

“[w]here the facts are in dispute” and “the habeas applicant

did not receive a full and fair evidentiary hearing in a state

court, either at the time of the trial or in a collateral

proceeding.” 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 Brady issue is to ask whether

the withheld evidence is favorable to Spirko as either

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

case was that Spirko and Gibson jointly abducted and

murdered Mrs. Mottinger. In support of this theory, the state

elicited the testimony of Opal Siebert, who lived across 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 office on the morning of August 9, 2002. When

interviewed on the day of the incident, Siebert described the

man she had seen as clean-shaven. She also selected a

photograph of a clean-shaven Gibson from an array in late

January of 1983, more than five months after the crime

occurred.

The withheld evidence directly contradicts both the

government’s theory of the case and Siebert’s testimony.

Gibson told investigators that he was in North Carolina on

August 9, 1982. His story was at least partially corroborated

by interviews with Gibson’s wife, Margie, and with Margie’s

sister and brother-in-law, Brenda and Michael Bentley, who

accompanied the Gibsons on the trip to North Carolina. The

Bentleys told investigators that they had last seen the Gibsons

in Asheville, North Carolina at approximately 6 p.m. on

August 8. Asheville is roughly 500 miles away from Elgin,

Ohio. 

Although the state informed Spirko that investigators had

spoken with Margie Gibson and Michael Bentley, it failed to

disclose the fact that the investigators had received physical

evidence during those interviews. The Bentleys provided the

investigators with receipts from an automotive store in North

Carolina dated August 7 and from a hotel in Newport,

Tennessee where the Bentleys stayed on the night of

August 8, along with 40 photos of themselves and the

Gibsons that were allegedly taken that weekend. Margie

Gibson provided investigators with 18 similar photos

allegedly taken during the same period of time. All of the

photos showed Gibson with a full beard. These photos and

the receipts corroborate Gibson’s alibi and therefore tend to

prove, although they cannot conclusively demonstrate, that

both the government’s theory of the case and Siebert’s

eyewitness identification were faulty. Because the withheld

physical evidence appears to be both exculpatory and

impeaching, it is favorable to Spirko within the meaning of

Brady.
No. 00-4385 Spirko v. Mitchell 25

B. Was the evidence at issue suppressed by the state?

Brady next requires us to determine whether the evidence

in question was suppressed by the state. This court has held

that Brady is not violated where the defendant is “aware of

the essential facts that would enable him to take advantage of

the exculpatory evidence,” even if the government does not

disclose the evidence itself. United States v. Todd, 920 F.2d

399, 405 (6th Cir. 1990). 

In Todd, the government refused to disclose reports

prepared after FBI interviews with Todd’s brother and the

brother’s girlfriend. Id. at 404. This court concluded that no

Brady violation occurred because Todd was informed before

trial that both interviewees had potentially exculpatory

information, and Todd had an opportunity to interview them.

Id. at 405. The “essential facts” in Todd, then, were the

identities of the two potential witnesses; once Todd had that

information, he was free to interview them in order to obtain

the exculpatory evidence. 

In the present case, in contrast, the issue is not whether

Spirko could have interviewed the Gibsons and the Bentleys,

but whether he could have obtained the photos and receipts

that they had given to the state. The prosecution informed

Spirko only that “pictures are purported to have been taken of

the weekend in question.” This statement is misleading. A

statement informing Spirko that investigators had received

pictures that were purportedly of the weekend in question

would have been accurate; but it was entirely incorrect for the

prosecution to say that “pictures are purported to have been

taken . . . .” At the time the statement was made, the

prosecution knew that photos had in fact been taken and were

in the state’s possession. 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 Bentley’s receipts that tended to corroborate

Gibson’s presence 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 evidence.” 920 F.2d at 405. The “essential

facts” in this case appear to be that the state possessed

material photos and receipts, and these facts were not

disclosed to Spirko. Todd is therefore distinguishable.

Spriko has thus presented a prima facie case that the physical

evidence at issue was suppressed by the state, satisfying the

second component of a Brady violation.

C. Was Spirko prejudiced by the suppression of the

favorable evidence?

The final step in the Brady analysis is to determine whether

Spirko was prejudiced by the state’s suppression of evidence

favorable to his defense. In other words, does the suppression

of the pertinent evidence “undermine[] confidence in the

outcome of the trial”? Kyles v. Whitley, 514 U.S. 419, 434

(1995) (quotation marks omitted). This question effectively

requires us to assess the probability of a different outcome if

the state had disclosed its possession of the photos and

receipts to Spirko. Spirko has presented some evidence on

this point. His trial counsel have signed affidavits stating that

they doubted the credibility of Gibson’s alibi and therefore

did not pursue that line of defense. The lawyers contend that

if they had known about the evidence corroborating Gibson’s

alibi, they would have used that evidence to attack the state’s

case at trial.

Whether this would have been sufficient to change the

jury’s verdict or Spirko’s sentence is very much in dispute.

The majority contends that using the Gibson alibi evidence

would have actually increased Spirko’s chances of conviction

and a death sentence because

the Gibson evidence not only does not eliminate Spirko

as the perpetrator, it eliminates his best defense. If

Gibson was not a participant in the murder, then he was

not, as Spirko told the investigators and claimed at trial,
No. 00-4385 Spirko v. Mitchell 27

the source of all of Spirko’s detailed knowledge of the

crime. And if Spirko did not learn the details of this

crime from Gibson, from whence did all of that detail

come?

Maj. Op. at 15. But Spirko presents an equally plausible, but

very different, outcome:

If the prosecution had fulfilled its Brady obligations, Mr.

Spirko would not have testified as to Delaney Gibson’s

alleged involvement. . . . Moreover, had the prosecution

turned over the Brady material, Mr. Spirko’s attorneys

could have used it to show that his statements to

investigators concerning Delaney Gibson—like all of his

other statements—were not true. . . . Armed with this

evidence, the defense would have destroyed the

prosecution’s fundamental theory of the case, wouldhave

completely undermined Mrs. Siebert’s testimony, and

would have discredited Mr. Spirko’s statements to

investigators concerningDelaneyGibson. Such evidence

plainly would have had a significant impact on the

overall trial . . . .

Spirko further states that

even if [his] statements to investigators included

information that only someone involved in the crime

could know, such statements do not demonstrate that [he]

was involved in 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

information from the investigators themselves.

Spirko’s arguments are at least plausible. I am therefore

unable to say with confidence that the prosecution’s failure to

disclose the photos and receipts was harmless. Because “the

government’s evidentiary suppression undermines confidence

in the outcome of the trial,” “[a] reasonable probability of a

28 Spirko v. Mitchell No. 00-4385

different result is accordingly shown.” Kyles, 514 U.S. at 434

(quotation marks omitted).

The Fifth Circuit made this point in a similar case involving

an alleged Brady violation: “This is a capital case . . . and one

moreover in which our reading of the evidence shows there is

a real possibility that the wrong man is to be executed. In

such a case, if ever, petitioner should receive the benefit of

the doubt.” Lindsey v. King, 769 F.2d 1034, 1043 (5th Cir.

1985); see also Kyles, 514 U.S. at 422 (stating that a federal

court’s “duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital

case”). Like the Fifth Circuit in Lindsey, we are dealing with

a capital case where the defendant’s conviction and death

sentence rests on relatively weak evidence—the three shaky

pillars discussed above. I therefore 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, this court should

remand the case to the district court for an evidentiary hearing

on Spirko’s Brady claim. Under pre-AEDPA law, which we

must follow in this case, a habeas petitioner is entitled to an

evidentiary hearing if “for any reason it appears that the state

trier of fact did not afford the habeas applicant a full and fair

fact hearing.” Townsend v. Sain, 372 U.S. 293, 313 (1963),

overruled on other grounds by Keeney v. Tamayo-Reyes, 504

U.S. 1, 6 (1992). Spirko points out that, despite his requests,

he has not received an evidentiary hearing on his Brady claim

in any state or federal court. An evidentiary hearing would

allow the district court to determine whether the state in fact

violated Spirko’s constitutional rights by not turning over to

the defense the photos and receipts in its possession.

Accordingly, this court should vacate the judgment of the

district court and remand the case for an evidentiary hearing

on Spirko’s Brady claim.