Spisak v. Coyle

Full title: FRANK G. SPISAK, JR., Petitioner v. RALPH COYLE, WARDEN, Respondent

Court: United States District Court, N.D. Ohio, Eastern Division

Date published: Apr 18, 2003

Case No.: 1:95 CV 2675 (N.D. Ohio Apr. 18, 2003)

Opinion

Case No.: 1:95 CV 2675

April 18, 2003

MEMORANDUM OF OPINION AND ORDER

SOLOMON OLIVER, Jr., United States District Judge

Frank G. Spisak, ("Spisak" or "Petitioner") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Spisak submitted a Petition on April 9, 1997 (Doc. No. 19). Spisak challenges the constitutional sufficiency of his jury convictions for four counts of aggravated murder with nineteen death penalty specifications, three counts of aggravated robbery, and one count of attempted murder. Spisak also challenges the trial court's imposition of the death penalty for his murder convictions. The Respondent, represented by the Ohio Attorney General, filed a Return of Writ (Doc. No. 35), to which Spisak filed a Traverse on September 24, 1997 (Doc. No. 79).

For the reasons discussed below, the court denies Spisak's Petition for writ of habeas corpus.

I. PROCEDURAL HISTORY

On March 29, 1983, the Cuyahoga County Grand Jury indicted Spisak on four counts of aggravated murder in violation of Ohio Rev. Code § 2903.01; three counts of aggravated robbery in violation of Ohio Rev. Code § 2911.01; one count of attempted murder in violation of Ohio Rev. Code § 2903.02, and one count of receiving stolen property in violation of Ohio Rev. Code § 2913.51. Pursuant to Ohio Rev. Code § 2929.04(A), the aggravated murder counts contained nineteen death penalty specifications.

Spisak entered a plea of not guilty by reason of insanity as to all counts on April 8, 1983. Prior to trial, the court ordered Spisak to be evaluated by Dr. Phillip Resnick, a psychiatrist, pursuant to Ohio Rev. Code § 2945.39. Upon Spisak's request, the court ordered he also be evaluated by Dr. Sandra McPherson, Dr. Kurt Bertschinger, Dr. S.M. Samy and Dr. Oscar Markey. Thereafter, the court held a hearing to determine whether Spisak was competent to stand trial. Dr. Resnick determined that Spisak was competent to stand trial. The court agreed with Dr. Resnick's findings.

Spisak also moved to suppress evidence seized at the search of his home on September 4, 1982. The court held a hearing on the motion but subsequently denied it, finding that Spisak's Fourth and Fourteenth Amendment rights were not violated during the police search and seizure of guns found in Spisak's apartment.

Following trial, a jury convicted Spisak on July 27, 1983, of all counts and specifications, with the exception of one of the aggravated robbery counts. After the mitigation phase of the trial, the jury determined the aggravating circumstances outweighed the mitigating factors and recommended a sentence of death. The trial court accepted the jury's recommendation and sentenced Petitioner to death for each charge of aggravated murder on August 10, 1983. In addition, the trial court sentenced Spisak to terms of seven to twenty-five years on each conviction of attempted murder and aggravated robbery.

Spisak timely appealed his convictions to the Ohio Court of Appeals for the Eighth District.¹ The Court of Appeals affirmed the conviction after vacating the aggravated murder conviction on the fifth count of the indictment as well as the five specifications attached thereto. State v. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio Ct.App. July 19, 1984).² On September 12, 1984, Spisak filed a timely Notice of Appeal to the Ohio Supreme Court.

1 Originally, Spisak's appellate counsel raised one claim on appeal: "Whether or not the trial court erred by ruling that before an expert doctor could testify before the jury that the expert doctor must have found the defendant-appellant to be 'legally insane.'" Petition at 8. Spisak's initial appellate counsel were the same counsel who represented him during trial.

2 The Grand Jury had indicted Spisak on two counts of aggravated murder for the murder of Timothy Sheehan pursuant to Ohio Rev. Code § 2941.25(A) which reads:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

Consequently, the Court of Appeals determined that although Spisak was properly indicted for two counts of aggravated murder in connection with Sheehan's death, he could only be convicted of one of those counts. The Court of Appeals, thus, vacated one of the convictions. Id. at *7.

Thereafter, Spisak received new counsel from the Ohio Public Defender Commission, who filed a motion to remand the case based upon previous counsel's failure to have the entire trial transcript submitted to the appellate court as required by Ohio Rev. Code § 2929.03(G). The Ohio Supreme Court granted the motion and ordered the Court of Appeals to undertake a second review after receiving the supplemented record. Spisak then moved the Court of Appeals to permit him to raise additional assignments of error. The court denied the motion and reaffirmed Spisak's convictions and death sentence. Spisak again filed a motion to remand with the Ohio Supreme Court, requesting that court to instruct the Court of Appeals to permit Spisak's new counsel to raise additional issues. On November 6, 1985, the Ohio Supreme Court granted the motion "with specific instructions to the court that counsel for Appellant be permitted to participate in the review process as required by the Sixth and Fourteenth Amendments of the United States Constitution." Petition at 11.

After accepting a new twenty-page brief and holding two hearings in which Spisak's new counsel participated, the Court of Appeals again affirmed Spisak's convictions. State v. Spisak, No. 82884, slip op. (Ohio Ct. App. May 27, 1986). On July 21, 1986, Spisak moved the Ohio Supreme Court for a third remand, alleging that the Court of Appeals failed to follow the Supreme Court's November 6, 1985 Order. The Supreme Court, however, denied the motion.

On November 24, 1986, Spisak filed a merit brief with the Ohio Supreme Court raising sixty-four propositions of law.³ The Ohio Supreme Court affirmed Spisak's conviction. State v. Spisak, 521 N.E.2d 800 (Ohio 1988). Spisak then petitioned the United States Supreme Court for a writ of certiorari, but his petition was denied.⁴ Spisak v. Ohio, 489 U.S. 1071 (1989).

3 In his brief to the Ohio Supreme Court, Petitioner raised the following propositions of law:

1. Instructing the jury in the penalty phase on nineteen separate aggravating circumstances to four aggravated murder charges where there were but three killings destroys the reliability of the sentencing procedure in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I, of the Ohio Constitution.

2. The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I, of the Ohio Constitution guarantee the accused the rights to cross-examine witnesses, have testimony adduced only when under oath, and to not be subjected to prosecutorial misconduct. The prosecutor's repeated testimony which was not subject to cross-examination nor under oath concerning appellant's sexual preferences, political beliefs and uncharged acts of misconduct violates these constitutional guarantees.

3. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution; Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the effective assistance of counsel at trial. The assistance of counsel appellant received at the guilt phase of trial failed to reach the minimum standard as established by the Ohio and federal Constitution.

4. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution; and Ohio Revised Code Section 2945.11 guarantee the accused a jury charge that instructs the jury as to the defense theory of the case. The failure of the trial court to instruct the jury as to the insanity defense violated these constitutional and statutory protections.

5. The trial judge denied appellant's Fourteenth Amendment right to due process, his Fifth Amendment right to a fair trial and his Sixth Amendment right to have compulsory process for obtaining witnesses in his favor by usurping the jury's fact-finding function and excluding all expert evidence of insanity.

6. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution; Ohio Evidence Rule 701; and Article I, Sections 10 and 16 of the Ohio Constitution guarantee the accused a right to a fair trial and the right to adduce testimony on his own behalf. The trial court's refusal to permit lay testimony as to appellant's insanity denied appellant these rights.

7. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee the accused a right to a fair trial at which he can testify on his own behalf. The trial court's refusal to permit appellant's testimony as to his delusional beliefs concerning God and his grandiose thoughts about his guns denied appellant these rights.

8. The Fifth and Fourteenth Amendments of the United States Constitution; Article I, Section 16 of the Ohio Constitution, and Ohio Revised Code Section 2940.02 guarantee an accused that a trial will be conducted in a fair manner in which the trial court bases its rulings upon the evidence and does [sic] comment to the jury concerning the credibility of the evidence. The trial court's exclusion and striking, in the presence of the jury of the expert's testimony which it had previously ruled admissible only after a lengthy voir dire, violated these constitutional guarantees.

9. The Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution; and Ohio Revised Code Section 2929.05 require that the trial court keep a complete and full transcript of all proceedings occurring during the trial court. The trial court's failure to maintain such a record during the voir dire and pretrial motions denied appellant his rights as guaranteed by the United States and Ohio Constitutions and Ohio Revised Code.

10. The Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution guarantee an accused the right of due process of law. The trial court erred when it placed upon appellant the burden of proof and the burden of going forward on appellant's motion to suppress evidence, which denied appellant his constitutional guarantees.

11. The Fourth Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment; and Article I, Section 14 of the Ohio Constitution prohibits the police from making a warrant less and non-consensual entry into a suspect's home. The trial court's failure to suppress evidence obtained in a warrant less and non-consensual entry into appellant's home denied appellant his rights guaranteed by the United States and Ohio Constitutions.

12. The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment; and Article I, Section 14 of the Ohio Constitution prohibit the police from making a warrantless and non-consensual entry into a third party's home without first obtaining a search warrant. The testimony and exhibits received into evidence by the court which had been obtained by the illegal entry into Ronald Reddish's house denied appellant his rights as guaranteed by the United States and Ohio Constitutions.

13. The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution prohibit the police from making a warrantless and non-consensual search and seizure of an automobile. The evidence obtained from the warrantless search and seizure of Ronald Reddish's automobile denied appellant his rights as guaranteed by the United States and Ohio Constitutions.

14. The Eighth and Fourteenth Amendments to the United States Constitution and Sections 19 and 16, Article I, of the Ohio Constitution protect an accused against the infliction of cruel and unusual punishment and guarantee an accused due process of law. The trial court's and prosecutor's repeated comments to the jury that the jury's death penalty verdict was only a recommendation and not binding upon the trial judge violated appellant's rights as guaranteed by the United States and Ohio Constitutions.

15. The Sixth and Fourteenth Amendments to the United States Constitution; Article I, Sections 10 and 16 of the Ohio Constitution and Section 2945.25(C) of the Ohio Revised Code guarantee an accused a fair trial and impartial jury. The trial court's exclusion of potential juror Thomas J. Schmitt, over defense counsel's objection denied appellant these constitutional guarantees.

16. The Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution require that jurors decide the case based upon evidence and testimony received inside the courtroom and not from conversation occurring outside the court room. The trial court's failure to sequester and admonish the potential jurors in the present case denied appellant his rights as guaranteed by the United States and Ohio Constitutions.

17. The Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution require the presence of the defendant at all stages of the trial absent compelling circumstances. The trial court's failure to have appellant present for the excusal for cause of jurors violated such rights.

18. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 10 and 16 of the Ohio Constitution guarantee an accused a right to a fair and impartial trial by jury. The ineffective assistance of counsel which appellant received during the jury selection process resulted in a denial of appellant's constitutional right to a fair and impartial trial by jury.

19. The Eighth and Fourteenth Amendment of the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution require that the jury impose the death penalty only when it is the appropriate penalty. The prosecutor's comments during voir dire that the jury must return such penalty when the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt violated such rights.

20. The Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution; and Ohio Revised Code Section 2929.05 require that the trial court keep a complete and full transcript of all proceedings occurring in the trial court. The trial court's failure to maintain such a record of the jury view denied appellant his rights as guaranteed by the United States and Ohio Constitutions and Ohio Revised Code.

21. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution guarantee a defendant a right to a fair trial. The trial court abused its discretion and denied appellant a fair trial by allowing the appellant to appear before the jury in shackles.

22. The Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee an accused a right to a fair trial. The trial court denied appellant his fair trial when he failed to give the jury an instruction on shackling.

23. The Fourteenth Amendment to the United States Constitution; Section 16, Article I, of the Ohio Constitution; and R.C. 2929.05 require the trial court to keep a complete record of all proceedings and its failure to maintain such a record during the guilt phase denied appellant his rights as guaranteed by the United States and Ohio Constitutions and Ohio Revised Code.

24. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused a fair trial whose outcome will be as free as possible from bias and sympathy. The state of Ohio, by calling Clem H. Sharkey, a friend and relative of the victim, Reverend Horace Rickerson, interjected sympathy and passion into the judicial process while contributing nothing to the matters in issue and, therefore, violated the above cited constitutional principles.

25. The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10 and 16 of the Ohio Constitution guarantee an accused a fair trial whose outcome will be as free as possible from bias and sympathy. The state of Ohio, by adducing testimony from the victim John Hardaway concerning his background and the extreme pain that the shooting caused him interjected sympathy and passion into the judicial process, thereby violating the above cited constitutional principles.

26. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 and 16 of the Ohio Constitution guarantee an accused a fair trial whose outcome will be as free as possible from bias and sympathy. The State of Ohio, by calling Kathleen Sheehan, the wife of the victim, Timothy Sheehan, interjected sympathy and passion into the judicial process while contributing nothing to the matters in issue and, therefore, violated the above cited constitutional principles.

27. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution guarantee a defendant a right to a fair trial. The trial court denied appellant a fair trial when it permitted the State of Ohio to elicit testimony from witness Charles Ronkas, the sole effect of the testimony was to elicit sympathy for the victim and to add no probative evidence to the elements of the crimes for which appellant was indicted.

28. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused a fair trial whose outcome will be as free as possible from bias and sympathy. The state of Ohio, by calling Barbara Chapman, the employer of the victim, Brian T. Warford, interjected sympathy and passion into the judicial process while contributing nothing to the matters in issue and, therefore, violated the above cited constitutional principles.

29. The Fifth and Sixth Amendments to the United States Constitution; Article I, Section 10 of the Ohio Constitution and Ohio Evidence Rule 802 guarantee a defendant the right to a fair trial through the right of cross examination of the state's witnesses. The trial court's admission of the results of the toxicologist's reports as to Horace Rickerson violated these rights guaranteed by the Ohio and United States Constitution and Ohio Rules of Evidence.

30. The Fifth and Sixth Amendments to the United States Constitution; Article I, Section 10 of the Ohio Constitution and Ohio Evidence Rule 802 guarantee a defendant the right to a fair trial through the right of cross-examination of the state's witnesses. The trial court's admission of the results of the pathologist's reports as to Timothy Sheehan violated these rights guaranteed by the Ohio and United States Constitutions and Ohio Rules of Evidence.

31. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution, guarantee an accused a fair trial whose outcome will be as free as possible from bias and sympathy. The state of Ohio, by requesting that pathologists speculate as to the order the bullets struck the victim and the impact each bullet had upon each victim interjected sympathy and passion into the judicial process while contributing nothing to the matters in issue and thereby violated the above cited constitutional principles.

32. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the rights of due process and a fair and impartial trial. The trial court erred to the prejudice of the appellant by allowing gruesome, prejudicial, and cumulative pictures into evidence when the prejudicial effect of these pictures clearly outweighed the probative value.

33. The Fifth and Fourteenth Amendments to the United States Constitution, Section 2945.35 of the Ohio Revised Code, and Article I, Section 16 of the Ohio Constitution guarantee the accused the right to a fair trial. The trial court's failure to exclude from the jury's consideration evidence which the trial court had already ruled was inflammatory and prejudicial violated appellant's rights as guaranteed by the federal and Ohio Constitutions and 2945.35 of the Ohio Revised Code.

34. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the rights of due process and a fair and impartial trial. The trial court erred to the prejudice of the appellant by allowing gruesome, prejudicial, and cumulative testimony concerning the death of Horace Rickerson when it was clear that the prejudicial effect of this testimony outweighed the probative value.

35. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the rights of due process and a fair and impartial trial. The trial court erred to the prejudice of the appellant by allowing gruesome, prejudicial, and cumulative testimony concerning the death of Timothy Sheehan when it was clear that the prejudicial effect of this testimony outweighed the probative value.

36. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the rights of due process and a fair and impartial trial. The trial court erred to the prejudice of the appellant by allowing gruesome, prejudicial, and cumulative testimony concerning the death of Brian Warford when it was clear that the prejudicial effect of this testimony outweighed the probative value.

37. The Fifth and Sixth Amendments to the United States Constitution; Article I, Section 10 of the Ohio Constitution and Ohio Evidence Rule 802 guarantee a defendant the right to a fair trial through the cross-examination of the state witnesses. The trial court's admission of the testimony of Theodore Budzik concerning the contents of a telephone conversation he had with an unidentified informant violated these rights as guaranteed by the Ohio and United States Constitutions and the Ohio Rules of Evidence.

38. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the rights of due process and a fair and impartial trial. The trial court erred to the prejudice of appellant by admitting testimony concerning appellant's prior acts of shooting out the window of his apartment.

39. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantees an accused the right to due process of law and a fair trial. The trial court's admission of testimony concerning firearms which were found among the belongings of appellant, but said weapons were not connected to the crimes for which appellant was charged, violated the above cited constitutional provisions and Ohio Evidence Rules 401, 402, and 403.

40. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantees an accused the right to due process of law and a fair trial. When a trial court allows testimony and evidence to be presented concerning property of the defendant, such as an anarchist cookbook which is inflammatory and prejudicial, violated the above cited provisions and Ohio Evidence Rules 401, 402, and 403.

41. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 and 16 of the Ohio Constitution guarantee an accused the right to a fair trial and due process of law. The trial court's repeated admission of prior uncharged acts of assaultive conduct by appellant violated these rights.

42. The Fifth and Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution, guarantee the accused the right to a fair trial and that the state will not suppress exculpatory or favorable evidence. The State of Ohio's suppression of evidence that Betty Braun was unable to select Ronald Reddish in a lineup was a violation of such constitutional guarantees.

43. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution guarantee that a custodial statement not be admitted in court unless the accused, prior to giving such statement has been informed of his Miranda rights. The admission of appellant's statement to Dr. Resnick violated such rights.

44. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee that an accused's post-arrest silence will not be used against him. When a prosecutor deliberately tells the jury that the accused exercised his Miranda right to remain silent, the accused's constitutional guarantees are violated.

45. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused a right to a fair trial and a right to confront witnesses. When a prosecutor testifies on his own and allows a witness to testify, without being sworn, the above cited rights are violated.

46. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution guarantee the accused the rights to cross-examine witnesses, have testimony adduced only when under oath, and to not be subjected to prosecutorial misconduct. The prosecutor's repeated testimony which was not subject to cross-examination nor under oath concerning appellant's political beliefs violates these constitutional guarantees.

47. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution; Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the right to a fair trial and due process of law. The trial court's repeated admission of prior uncharged acts of assaultive conduct by appellant toward his wife violated these rights.

48. The Fourteenth Amendment to the United States Constitution; Section 16, Article I, of the Ohio Constitution; and R.C. 2929.05 require the trial court to keep a complete record of all proceedings. Its failure to maintain such a record during the mitigation phase denied appellant his rights as guaranteed by the United States and Ohio Constitutions and Ohio Revised Code.

49. The Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee the defendant a fair trial free from prosecutorial misconduct. The repeated statements in the mitigation phase by the prosecutor that were not supported by the evidence violated these rights.

50. The defense has the burden of going forward with evidence at the penalty phase of a capital trial. The state may then only rebut specific evidence presented by the defense in mitigation. Where the state presents irrelevant and inflammatory evidence that does not rebut any evidence presented in mitigation, the delicate balancing system is upset and the reliability of the sentencing procedure is destroyed in violation of the Eighth and Fourteenth Amendments and Article I, Sections 9 and 16 of the Ohio Constitutions.

51. Failing to instruct the jury concerning the appellant's constitutional right not to testify at the penalty phase, denied appellant's rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I, of the Ohio Constitution.

52. Jury instructions that permit a finding of death where "you are firmly convinced of the truth of the charge" destroy the reliability of the sentencing procedure in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I, of the Ohio Constitution.

53. Charging the jury at the penalty phase that it could consider any factor it desired in determining the appropriate penalty violated appellant's rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution.

54. Jury instructions requiring unanimity for a life verdict at the penalty phase deny the accused his right to a fair trial and freedom from cruel and unusual punishment in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution.

55. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution guarantee the accused a fair trial and freedom from cruel and unusual punishment. The trial court's instruction in the mitigation phase prohibiting consideration of mercy and sympathy violated such rights.

56. Ohio's mandatory sentencing scheme prevented the jury from deciding whether death was the appropriate punishment in violation of appellant's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution.

57. Appellant was denied effective assistance of counsel in the mitigation portion of the trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I, of the Ohio Constitution.

58. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution guarantee an accused the right to a fair trial and to the effective assistance of counsel. When defense counsel fails to preserve error he is denied effective assistance of counsel as guaranteed by the above constitutional provisions.

59. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 10 and 16 of the Ohio Constitution guarantee an accused the right to effective assistance of counsel when entering a no contest plea. The assistance of counsel which appellant received when entering his no contest plea to attempted murder did not fall within the range of professionally acceptable conduct and thereby appellant was deprived of his right to effective assistance of counsel.

60. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution guarantee a convicted defendant a right to a fair appeal and effective assistance of counsel when such appeal is an appeal-of-right. The Eighth District Court of Appeals steadfast refusal to permit counsel for appellant to raise and brief any issues on either the first or second remand from the Ohio Supreme Court of this case violated such rights.

61. Appellant's original counsel by raising only a single issue in appellant's initial appeal violated appellant's rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

62. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 and 16 of the Ohio Constitution and Ohio Revised Code Section 2929.05 guarantee a convicted defendant a fair and impartial review of his death sentence. The statutorily mandated proportionality process in Ohio is fatally flawed thereby denying appellant the above rights.

63. The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 9 and 16, Article I, of the Ohio Constitution and Revised Code Section 2929.05 guaranteed that the sentence imposed in a capital trial will be reliable. When both the guilt and mitigation phases of a capital trial are replete with errors, the sentence of death is unreliable and inappropriate.

64. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 establish the requirements for a valid death penalty scheme. Ohio Revised Code Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, 2929.05, Ohio's statutory provisions governing the imposition of the death penalty do not meet the prescribed requirements and, thus, are unconstitutional, both on their face and as applied to appellant.

4 Spisak raised the following two claims to the United States Supreme Court:

1. Whether the Ohio Supreme Court's Failure to review any of the errors presented to it by a capitally convicted appellant, although review is required by Ohio Statute, constitutes a violation of the Eighth and Fourteenth Amendments and is contrary to this Court's rulings in Gregg v. Georgia and its progeny.

2. Whether an instruction, although "technically" accurate, stressing the preliminary nature of a jury's decision of a death sentence in a capital case so misleads a jury about the importance of its decisions and diminishes its sense of responsibility for that decision as to increase the likelihood of a death verdict, thereby destroying the reliability of sentencing procedure is unconstitutional.

On November 1, 1989, Spisak filed a petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21.⁵ The trial court denied Spisak relief on June 12, 1992, State v. Spisak, No. CR 181411, slip op. (Ohio Ct. Common Pleas June 11, 1992). The Court of Appeals affirmed the trial court's decision. State v. Spisak, No. 67229, 1995 WL 229108 (Ohio Ct. App. Apr. 13, 1995). Thereafter, Spisak attempted to file an application to re-open his direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B). The Court of Appeals determined, however, that Spisak could not demonstrate "good cause," required under the statute, for filing his application more than ninety days after the journalization of his direct appeal. State v. Spisak, 652 N.E.2d 719 (Ohio Ct.App. 1995). Thus, the Court of Appeals denied Spisak's application.

5 After amending his petition four times, Spisak raised the following causes for relief:

1. The judgment against Petitioner Spisak is void or voidable because the trial court instructed the Petitioner's jury in the penalty phase of Petitioner's trial on nineteen (19) separate aggravating circumstances to four aggravated murder charges when there were only three murders, thus destroying the reliability of the sentencing proceedings in violation of Petitioner's constitutional rights as guaranteed under the Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

2. The judgment against Petitioner Spisak is void or voidable because he was denied his constitutional rights to a fair trial, an impartial jury and the effective assistance of counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 5, 10 and 16, Article I of the Ohio Constitution when Petitioner's trial counsel failed to move the trial court for a change of venue and further failed to conduct voir dire of potential jurors to determine the impact and influence of the inflammatory and pervasive publicity attendant on potential jurors.

3. The judgment against Petitioner Spisak is void or voidable due to the error committed by the trial court in placing the burden of proof and the burden of going forward upon the Petitioner during a hearing on his motion to suppress evidence thereby violating Petitioner's rights as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Sections 14 and 16, Article I of the Ohio Constitution.

4. The judgment against Petitioner Spisak is void or voidable because evidence used against him during his trial was obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Sections 14 and 16, Article I of the Ohio Constitution.

5. The judgment against Petitioner Spisak is void or voidable because the arrest of the Petitioner and evidence obtained during the arrest violated the requirements of the Fourth and Fourteenth Amendments of the United States Constitution and Sections 14 and 16, Article I of the Ohio Constitution.

6. The judgment against Petitioner Spisak is void or voidable due to the illegal seizure and search of the 1975 Buick LeSabre.

7. The judgment against Petitioner Spisak is void or voidable because the trial court's and prosecutor's repeated comments to the jury that the jury's death penalty verdict was only a recommendation and not binding upon the trial judge violated the Petitioner's constitutional rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

8. The judgment against Petitioner Spisak is void or voidable because he was deprived of a fair trial and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution due to the trial court's exclusion of potential juror Thomas J. Schmitt.

9. The judgment against Petitioner Spisak is void or voidable due to the trial court's failure to sequester and admonish potential jurors.

10. The judgment against Petitioner Spisak is void or voidable because the trial court failed to ensure that Petitioner Spisak was present when jurors were excused for cause. (VD Tr. 411-416.)

11. The judgment against Petitioner Spisak is void or voidable because the jury's determination that death was appropriate in his case was impermissibly influenced by the prosecutor's comments during voir dire that the jury must return such penalty when the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt in violation of Petitioner's rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

12. The judgment against Petitioner Spisak is void or voidable due to the failure of the trial court to have the jury view recorded.

13. The judgment against Petitioner Spisak is void or voidable because the trial court abused its discretion by allowing Petitioner to appear before the jury in shackles in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.

14. The judgment against Petitioner Spisak is void or voidable due to the trial court's failure to insure that the jury's deliberations and verdict remained untainted by instructing the jury regarding the shackling of Petitioner.

15. The judgment against Petitioner Spisak is void or voidable due to the injection of bias and sympathy by the State of Ohio for victim Horace Rickerson.

16. The judgment against Petitioner Spisak is void or voidable due to the injection of bias and sympathy by the State of Ohio for victim John Hardaway.

17. The judgment against Petitioner Spisak is void or voidable due to the injection of bias and sympathy by the State of Ohio for victim Timothy Sheehan.

18. The judgment against Petitioner Spisak is void or voidable due to the injection of bias and sympathy by the State of Ohio for victim Brian Warford.

19. The judgment against Petitioner Spisak is void or voidable because Petitioner was denied his right to confrontation when the coroner testified concerning a toxicologist examination she did not perform.

20. The judgment against Petitioner Spisak is void or voidable because Petitioner was denied his right to confrontation when a coroner who had not performed the autopsy on Timothy Sheehan testified as to the autopsy.

21. The judgment against Petitioner Spisak is void or voidable due to the introduction of bias and prejudice into the proceedings in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

22. The judgment against Petitioner Spisak is void or voidable due to the introduction of eighty-one gruesome pictures during his trial.

23. The judgment against Petitioner Spisak is void or voidable because Petitioner's right to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution was violated due to the trial court's failure to exclude from the jury's consideration evidence that the trial court had already ruled was prejudicial and inflammatory.

24. The judgment against Petitioner Spisak is void or voidable due to the admission of prejudicial and cumulative testimony concerning the death of Horace Rickerson.

25. The judgment against Petitioner Spisak is void or voidable due to the admission of prejudicial and cumulative testimony concerning the death of Timothy Sheehan.

26. The judgment against Petitioner Spisak is void or voidable due to the admission of prejudicial and cumulative testimony concerning the death of Brian Warford.

27. The judgment against Petitioner Spisak is void or voidable due to the use of hearsay information by the State.

28. The judgment against Petitioner Spisak is void or voidable due to the admission of prejudicial evidence concerning prior acts committed by Petitioner.

29. The judgment against Petitioner Spisak is void or voidable due to the admission of testimony concerning firearms that were found among the Petitioner's belongings and unrelated to any of the crimes Petitioner was charged with.

30. The judgment against Petitioner Spisak is void or voidable due to the admission of irrelevant and prejudicial evidence admitted against Petitioner.

31. The judgment against Petitioner Spisak is void or voidable due to the admission of testimony concerning uncharged acts of assaultive conduct by Petitioner.

32. The judgment against Petitioner Spisak is void or voidable due to the State of Ohio's withholding of exculpatory or favorable evidence.

33. The judgment against Petitioner Spisak is void or voidable because he was denied the right to testify on his own behalf as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

34. The judgment against Petitioner Spisak is void or voidable because prosecutorial misconduct denied him the right to a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

35. The judgment against Petitioner Spisak is void or voidable due to the admission of Petitioner's post-arrest silence at his trial against him.

36. The judgment against Petitioner Spisak is void or voidable when the prosecutor testified without being sworn and allowed a witness to testify without being sworn.

37. The judgment against Petitioner Spisak is void or voidable because his rights to cross-examine witnesses and have testimony adduced only under oath as guaranteed under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution were violated by the prosecutor's repeated testimony which was not subject to cross-examination or under oath concerning Petitioner's political beliefs.

38. The judgment against Petitioner Spisak is void or voidable because the trial court usurped the jury's fact-finding function by excluding all expert evidence of insanity therefore denying Petitioner his rights to due process, a fair trial and compulsory process for obtaining witnesses in his favor as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

39. The judgment against Petitioner Spisak is void or voidable because he was deprived of his right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution when the trial court excluded and struck, in the presence of the jury, expert testimony that the court had previously ruled admissible after concluding a lengthy examination of the expert out of the presence of the jury.

40. The judgment against Petitioner Spisak is void or voidable because he was denied the right to a fair trial and to compulsory process as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

41. The judgment against Petitioner Spisak is void or voidable due to the introduction of evidence through cross-examination by the prosecutor concerning uncharged acts of assaultive conduct.

42. The judgment against Petitioner Spisak is void or voidable due to the admission of statements made to a psychiatrist without the benefit of Miranda warnings.

43. The judgment against Petitioner Spisak is void or voidable because he was denied a fair trial when the trial court failed to instruct the Petitioner's jury as to the insanity defense which constituted the defense theory of Petitioner's case in violation of Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

44. The judgment against Petitioner Spisak is void or voidable because he was denied a fair trial free from prosecutorial misconduct as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution due to the repeated statements in the mitigation phase by the prosecutor that were not supported by the evidence.

45. The judgment against Petitioner Spisak is void or voidable because at the mitigation phase of Petitioner's trial the State presented inflammatory and irrelevant evidence that did not rebut any evidence presented in mitigation, upset the delicate balancing system and destroyed the reliability of the sentencing determination in violation of Petitioner's rights under the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 10, Article I of the Ohio Constitution.

46. The judgment against Petitioner Spisak is void or voidable because the trial court failed to instruct the jury concerning the Petitioner's constitutional right not to testify at the mitigation phase as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution.

47. The judgment against Petitioner Spisak is void or voidable because the jury at Petitioner's trial was given an instruction that permitted a finding of death where the Petitioner's jury was "firmly convinced of the truth of the charge" thus destroying the reliability of the sentencing procedure in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

48. The judgment against Petitioner Spisak is void or voidable because the jury in his case, at the penalty phase, was charged that it could consider any factor it desired in determining the appropriate penalty in violation of Petitioner's rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

49. The judgment against Petitioner Spisak is void or voidable because the trial court instructed Petitioner's jury at the penalty phase of Petitioner's trial that the jury's recommendation as to a sentence had to be unanimous.

50. The judgment against Petitioner Spisak is void or voidable because the trial court's instruction at the mitigation phase of the trial, prohibiting the jury from considering mercy or sympathy, violated Petitioner's rights to a fair trial and freedom from cruel and unusual punishment pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

51. The judgment against Petitioner Spisak is void or voidable because the trial court failed to keep a complete and full transcript of all proceedings occurring in the trial court thus violating Petitioner's constitutional rights as guaranteed under the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.

52. The judgment against Petitioner Spisak is void or voidable because the Petitioner was denied the effective assistance of counsel at all phases of his capital trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

53. The judgment against Petitioner Spisak is void or voidable due to the mandatory nature of Ohio's capital statute.

54. The judgment against Petitioner Spisak is void or voidable because instructions given to the jury in the penalty phase of his capital trial misled the jury as to its sentencing role and the scope of its discretion.

55. The judgment against Petitioner Spisak is void or voidable because Petitioner was denied the effective assistance of counsel when he entered a no contest plea to the charge of attempted murder of John Hardaway in violation of Petitioner's rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 5, 10, and 16, Article I of the Ohio Constitution.

56. The judgment against Petitioner Spisak is void or voidable because he was denied his right to the effective assistance of counsel when Petitioner's original counsel raised only a single issue in Petitioner's initial appeal in violation of Petitioner's rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

57. The judgment against Petitioner Spisak is void or voidable because he was denied the effective assistance of counsel on his appeal of right when the Eighth District Court of Appeals refused to permit the Petitioner's counsel to raise and brief any issues on either the first or second remand from the Ohio Supreme Court in Petitioner's case and the Ohio Supreme's Court failure to address any of the issues raised there in violation of Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

58. The judgment against Petitioner Spisak is void or voidable because he was denied a fair and impartial review of his death sentence as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

59. The judgment against Petitioner Spisak is void or voidable due to the failure of the Ohio Supreme Court to provide the level of review constitutionally required in capital cases by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

60. The judgment against Petitioner Spisak is void or voidable because the guilt and mitigation phases of his trial were replete with errors, making his sentence of death unreliable and inappropriate in violation of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution. The errors and failures of counsel, the prosecutor, and the trial court were left uncorrected and were compounded by counsel's failures in the Court of Appeals, by the Court of Appeals' refusal to permit new counsel to raise errors on the two remands, and by the failure of the Ohio Supreme Court to give this case any more than a cursory and arbitrary review. The judicial system failed to give Frank Spisak a fair trial, a reliable sentencing determination, a fair review to insure against the arbitrary and capricious imposition of the death sentence, either in the Court of Appeals or the Ohio Supreme Court. Any death sentence imposed as the result of these numerous failures throughout the judicial system can never be deemed appropriate.

61. The Ohio death penalty scheme is unconstitutional on its face in violation of the United States Constitution and Ohio Constitution.

61(a). The death penalty violates the prohibition under the Eighth Amendment to the United States Constitution against cruel and unusual punishment and Section 9, Article I of the Ohio Constitution.

61(b). The death penalty in Ohio is applied in an arbitrary and capricious fashion since it permits prosecutors to exercise discretion in deciding who will be charged with capital offenses.

61(c). The Ohio death penalty scheme fails to require premeditation or deliberation as the culpable mental state for defendants in all capital cases.

61(d). R.C. 2929.03 sets forth no standard of proof to be applied in determining mitigating factors.

61(e). R.C. 2020.03 fails to give the jury a standard with which to balance mitigating factors against the aggravating circumstances.

61(f). The consideration of aggravating circumstances at the guilt phase of the trial is unconstitutional.

61(g). R.C. 2020.03 and 2929.04 are unconstitutional in that they treat felony murders more harshly than premeditated murder.

61(h). The Ohio death penalty scheme is unconstitutional in that it does not give the sentencing authority the option to impose a life sentence, or give mercy, when it finds that the aggravating circumstances outweigh the mitigating factors.

61(i). The Ohio death penalty scheme is unconstitutional because a bifurcated trial with the same jury denies the defendant an impartial jury and the effective assistance of counsel.

61(j). The Ohio death penalty scheme is unconstitutional because in conjunction with Crim. R. 11(C)(3), it encourages defendants to waive their fundamental rights and enter guilty pleas.

61(k). The Ohio death penalty scheme totally eliminates sentencing discretion.

61(l). The Ohio death penalty scheme is unconstitutional because it mandates that a jury must recommend death if it finds that the aggravating circumstances outweigh the mitigating factors at the sentencing phase of the trial.

61(m). The Ohio death penalty scheme fails to provide equal protection to persons convicted of the same or similar crimes.

61(n). The Ohio death penalty is applied in an arbitrary and discriminatory manner.

61(o). The Ohio death penalty is unconstitutional because Ohio has failed to show a legitimate and compelling state interest in executing persons.

61(p). The Ohio death penalty statute is unconstitutional because the statute impermissibly devalues the importance of mitigation because no method exists to ensure a proper "weighing and consideration" is accomplished.

61(q). The Ohio death penalty statute is unconstitutional because it requires a defendant to prove mitigation by a preponderance of evidence.

61(r). The Ohio death penalty statutes are unconstitutional because of the arbitrary and capricious application of appellate review procedures by the Courts of Appeals and Ohio Supreme Court resulting in no meaningful appellate review.

61(s). To execute the Petitioner pursuant to a death sentence secured under an unconstitutional death penalty scheme would be prejudicial to Petitioner and would violate the Eighth Amendment and the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

Spisak next filed a Notice of Intent to file a petition for writ of habeas corpus with this court on December 15, 1995 (Doc. No. 1). After filing the Petition, Spisak moved the court to stay his execution on June 13, 1997 (Doc. No. 54). The court granted the motion (Doc. No. 60).

II. FACTS

When the Ohio Supreme Court considered Spisak's direct appeal, it set out the factual history of the case as revealed by the evidence adduced at Spisak's trial. State v. Spisak, 521 N.E.2d 800, 800-01 (Ohio 1988). This court repeats that factual history here, using the Ohio Supreme Court's language.

On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Rickerson had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene.

On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as Petitioner, Frank G. Spisak. Three pellets and seven shell casings were recovered from the scene.

At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered Spisak, holding a gun, who ordered her back into the stall. Instead, Dartt shoved Spisak out of the way and ran down the hallway. Spisak shot at her, but missed. A pellet was later removed from a wall in the hallway. Dartt identified Spisak as her assailant.

On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Sheehan had been shot four times, and two pellets were retrieved from the scene.

On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Warford died from a single gunshot wound to the head, although five spent .22 caliber casings were recovered from the scene.

On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to Spisak's apartment and Spisak, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Spisak made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded .38 caliber handgun and a two-shot derringer under the couch cushions. Spisak was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond. The weapons, however, were confiscated. Early the next day, an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Spisak was later arrested, hiding in the basement of a friend's house. During a brief search of Spisak's suitcase at the scene, police discovered the beeper pager belonging to Sheehan.

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

Spisak was brought to trial under an eight-count indictment containing twenty specifications, including the aggravated murders of Rickerson, Sheehan and Warford and appurtenant death specifications. Spisak pleaded not guilty and not guilty by reason of insanity, claiming to be a follower of Adolf Hitler. He was found to have been competent, however, at the time of the acts, and the jury returned guilty verdicts on all counts and specifications, except the alleged aggravated robbery of Warford.

Following the mitigation hearing, the jury recommended that the sentence of death be imposed. In a separate opinion, the trial court concurred, imposing a death sentence. Spisak was also sentenced to terms of seven to twenty-five years on each conviction of attempted murder and aggravated robbery.

III. STANDARD OF REVIEW

Before considering the specific grounds for relief Spisak raised in the Petition, the court must determine whether the amendments to § 2254, requiring greater deference to state court decisions, apply to this case. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132 § 104, amending 28 U.S.C. § 2254 became effective on April 24, 1996. On September 3, 1997, this court determined that the amendments to 28 U.S.C. § 2254 et seq. were inapplicable to the instant case because the case was pending before the court before the AEDPA's effective date (Doc. No. 72). This court based its decision on Lindh v. Murphy, 521 U.S. 320 (1997), in which the United States Supreme Court held that amended § 2254(d) does not apply to habeas corpus cases that were "pending" when the AEDPA was passed. This court determined that a habeas case commenced when the Petitioner filed a notice of intent to file a petition. Thus, this court concluded, because Spisak had filed this Notice of Intent on December 15, 1995, (Doc. No. 1), the case was "pending" at the time of the AEDPA's enactment, and, therefore, the AEDPA was inapplicable.

In the same Order, the court determined that Section 107 (Chapter 154) of the AEDPA is not applicable to this proceeding because Ohio is not an "opt-in" state as defined by the terms of that Chapter (Doc. No. 72). Specifically, Ohio does not qualify as an "opt-in" state because it does not comply with the provisions of 28 U.S.C. § 2261, which requires a mechanism for appointment, compensation and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by an indigent prisoner. 28 U.S.C. § 2261(b).

Since the court issued that Order, however, the Sixth Circuit decided that a habeas corpus case commences with the filing of the petition. Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir. 1999). To determine what constitutes a "pending" habeas case for purposes of applying the AEDPA, the Sixth Circuit first determined that the word must be given its ordinary meaning. Id. at 1038 (citing Moskal v. United States, 498 U.S. 103, 108 (1990)). Noting the similarities between the filing of a habeas petition and the filing of a civil complaint, the court noted that Federal Rule of Civil Procedure 3 states that "[a] civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3.

The Sixth Circuit also looked to the language contained in § 2254 to support its finding. Specifically, § 2254(e) refers to "a proceeding instituted by an application for a writ of habeas corpus." Moreover, Section 1914(a) of Title 28 provides that the "district court shall require the parties instituting any civil action, suit or proceeding . . . to pay a filing fee of $150, except that on an application for a writ of habeas corpus the filing fee shall be $5." Thus, the statutes associate the commencement of a habeas corpus proceeding with the filing of the application or petition. Consequently, the Sixth Circuit determined that a habeas case "commences" when the petition is filed. Thus, for purposes of applying the AEDPA, a case may be "pending" only after it has been commenced by the filing of the petition. Id.

In the instant case, Spisak filed his Petition on April 9, 1997, (Doc. No. 19), almost a year after the AEDPA's effective date. In a previous Order, (Doc. No. 124), the court noted that the Williams decision required the court to amend its previous determination. While the court will utilize the AEDPA's statutory amendments to 28 U.S.C. § 2254 et seq. as found in Chapter 153, the court's prior determination that Ohio is not an "opt-in" state remains unaltered. Thus, Chapter 154 is inapplicable to this case.

The analysis does not end, however, with the determination that Chapter 153 of the AEDPA is the applicable standard to utilize. The court next must determine what level of deference to give to the Ohio Supreme Court's brief opinion. On April 13, 1988, the Ohio Supreme Court affirmed Spisak's conviction and sentence. State v. Spisak, 521 N.E.2d 800 (Ohio 1988). After reciting the facts adduced during trial, the Ohio Supreme Court addressed the merits of Spisak's claims. Noting that many of Spisak's claims were "time-worn legal arguments raised in a multiplicity of printed pages," the court addressed Spisak's sixty-four claims in a two-page, summary fashion. Id. at 801-02.⁶ The Ohio Supreme Court then concluded that none of Spisak's claims had merit. The court went on to re-weigh independently the statutory mitigating factors and aggravating circumstances, concluding that Spisak's death sentence was appropriate. Id. at 803-04.

6 Although the court will not reproduce the two pages addressing the claims here, the court notes, for purposes of illustration, the manner in which the Ohio Supreme Court addressed seven of Petitioner's sixty-four claims below:

In propositions of law one, nineteen, fifty-four through fifty-six, sixty-two and sixty-four, appellant raises arguments which have previously been raised and rejected in the following cases: State v. Jenkins, (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, certiorari denied (1985), 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643; Maurer, supra; State v. Buell, (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795, certiorari denied, (1986), 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165; State v. Williams (1986), 23 Ohio St.3d 16, 23 OBR 13, 490 N.E.2d 906, certiorari denied (1987), 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699; and State v. Steffen (1987), 21 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383.

Spisak, 521 N.E.2d at 802.

The AEDPA significantly altered the standard of review a habeas court must apply, requiring increased deference to a state court's decision. The relevant statute states:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). Recently, the United States Supreme Court interpreted this statute in Williams v. Taylor, 529 U.S. 362 (2000). According to Justice O'Connor, a habeas court may grant relief only if "the state court identifies the correct governing legal rule from this Court's cases, but unreasonably applies it to the facts of the particular state prisoner's case" or if the state court "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. 407. A fragmented Court also determined the "unreasonable application" language to mean something more than merely the state court's incorrect application of federal law. Id. at 411. While the Williams case was instructive to habeas courts in its interpretation of § 2254(d), it is not of practical guidance in a case such as this where the state court opinion lacks substantial analysis upon which a federal habeas court can analyze the application of law for "reasonableness."

Initially, the court notes that the Ohio Supreme Court opinion, while decidedly brief, was an "adjudication on the merits" pursuant to § 2254(d). Courts deciding habeas cases involving a state court's summary review have determined that a summary review is not "indicative of a cursory or haphazard review of a petitioner's claims." Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Thus, Spisak cannot escape the purview of the AEDPA on this basis.

The Sixth Circuit recently determined in Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001), that when reviewing a summary state court opinion, a habeas court is "obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." In that case, the Michigan Court of Appeals summarily issued an order granting the State's motion to affirm the conviction on appeal. Id. The Michigan Supreme Court denied the petitioner leave to appeal the Court of Appeals' decision. Id.

After reviewing the standards employed by other circuits for evaluating summary state court opinions, the Sixth Circuit determined that it would conduct an independent review of the petitioner's habeas claims. It went on to note: "[t]hat independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id. The court then applied the two-step approach of conducting an independent review then subjecting the state court holding to the "reasonableness" review that the AEDPA mandates.

Thus, if a habeas court determines that a petitioner has not demonstrated a constitutional violation in regard to a particular claim, then it must necessarily determine that a state court decision denying such a claim was not "unreasonable." If it determines that the petitioner's claim has merit and a constitutional violation occurred, then the habeas court must defer to the state court decision unless it was "unreasonable." This court will, thus, subject the claims in Spisak's Petition to an independent review. Thereafter, the court will determine if the state court holding was "reasonable."

IV. EXHAUSTION AND PROCEDURAL DEFAULT A. Exhaustion

A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509 (1982). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). If under state law there remains a remedy that petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust, 17 F.3d at 160.

B. Procedural Default

The Respondent argues that Spisak is precluded from raising "any claims brought in his post-conviction petition that are separate or different from his claims brought on direct appeal. . . ."⁷ Return of Writ at 30. Later in this opinion, the court will address the question of procedural default as to each individual ground for relief. Here, however, the court sets out the applicable law governing procedural default.

7 The court notes that Respondent failed to assert procedural default as to each individual claim. Petitioner contends that because Respondent made only vague and broad assertions of procedural default without specifically alleging why each claim is defaulted, he has waived the right to assert this defense as to all claims.
In Trest v. Cain, 522 U.S. 87 (1997), the Supreme Court addressed the question of whether a court must raise the issue of procedural default sua sponte even where the State has failed to assert it as a defense to a petitioner's claims. The Court held that because it is not jurisdictional, "procedural default is normally a 'defense' that the State is 'obligated to raise' and 'preserv[e]' if it is not to 'lose the right to assert the defense thereafter.'" Id. at 89 (quoting Gray v. Netherland, 518 U.S. 152, 166 (1996)). It therefore concluded that a court reviewing a habeas petition is not required to sua sponte address whether a petitioner has procedurally defaulted his claims. In so deciding, the Court explicitly left open the question whether a court may raise the issue sua sponte, noting that there was disagreement in the lower courts on this matter. Id. at 90.
Several years after Trest, the Sixth Circuit in Elzy v. United States, 205 F.3d 882 (6th Cir. 2000), answered the question left open by the Supreme Court in the affirmative. Id. at 886 ("While procedural default is not a jurisdictional bar to review of such a claim, . . . and the Government's failure to raise the default may operate as a forfeiture of its right to defend on that ground, . . . we nonetheless may raise the issue sua sponte.") (citations omitted). Because Respondent did, in fact, raise the issue of procedural default, albeit in a somewhat vague and conclusory manner, the court here chooses to conduct a sua sponte procedural default analysis.

For purposes of comity, a federal court may not consider "contentions of federal law which are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). If a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 749 (1991).

The Sixth Circuit Court of Appeals set out the analytical framework for determining the defaulted status of a claim. In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), it stated: "[w]hen a state argues that a habeas claim is precluded by the petitioner's failure to observe a state procedural rule, the federal court must go through a complicated [four-prong] analysis." Id. at 138. Specifically, the Sixth Circuit stated:

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . . Second, the court must decide whether the state courts actually enforced the state procedural sanction. . . . Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim. [Fourth, if] the court determines that a state procedural rule was not complied with and that rule was an adequate and independent state ground, then the petitioner must demonstrate . . . that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Id. (citations omitted).

Ohio Rule of Appellate Procedure 16(A)(3) requires an appellant to include in his brief a statement of the assignments of error presented for review. In State v. Perry, 226 N.E.2d 104 (Ohio 1967), the Ohio Supreme Court ruled that:

Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on appeal from that judgment.

Id. at 108; see also State v. Roberts, 437 N.E.2d 598, 601 (Ohio 1982) (holding policy behind Perry bars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, rather than constitutional, issues).

V. GROUNDS FOR RELIEF RAISED IN THE PETITION

The Petitioner has raised thirty-three grounds for relief in the Petition. While the court will address each claim, certain claims will be grouped together as they raise similar legal or factual issues.⁸ Spisak raised the following claims for relief in the Petition:

8 The claims are grouped similar to the manner that they are presented in the Petition. The court has renumbered the groups as they were misnumbered in the Petition.

A. Grounds for Relief Related to Petitioner's Plea of Not Guilty by Reason of Insanity

1. Mr. Spisak was denied his right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution when the Trial Court, in the presence of the jury, excluded and struck from the record expert psychiatric testimony that the Court had previously ruled admissible.

2. When the Trial Court usurped the jury's fact finding function by excluding all expert evidence of insanity, mental disease or defect, it denied the Petitioner his rights to due process, a fair trial and compulsory process for obtaining witnesses in his favor as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

3. Mr. Spisak was denied his right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution when the Trial Court denied the Petitioner the right to testify on his own behalf.

4. When, in spite of both expert and lay testimony as to Petitioner's insanity, the Trial Court refused to instruct the Petitioner's jury on the insanity defense, which constituted the Petitioner's sole theory of defense. Mr. Spisak was thereby denied his right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

B. Grounds for Relief Related to the Mitigation Phase

5. When the Trial Court instructed the jury in the penalty phase of Petitioner's trial on nineteen (19) separate aggravating circumstances to four aggravated murder charges arising out of three homicides, it destroyed the reliability of the sentencing proceedings, in violation of Petitioner's constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

6. When, during his mitigation phase closing argument, Mr. Spisak's counsel repeatedly and emphatically stressed the brutality of the crimes, and scathingly demeaned Petitioner, counsel acted in direct conflict with his duty to loyally represent Petitioner. As a result Petitioner was denied the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

7. When the Trial Court improperly instructed Petitioner Spisak's jury at the penalty phase of the trial that the jury's recommendation as to sentence had to be unanimous, Petitioner was prejudiced and his right under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

8. When the Trial Court instructed Petitioner Spisak's jury at the penalty phase of the trial that the jury was prohibited from considering mercy or sympathy, Petitioner was prejudiced and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

9. When the Trial Court instructed Petitioner Spisak's jury at the penalty phase of the trial that the jury could consider any factor it desired in determining the appropriate penalty, Petitioner was prejudiced and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

10. Mr. Spisak was denied the effective assistance of counsel during the mitigation phase of his trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

11. When the State presented inflammatory and irrelevant evidence that did not rebut any evidence presented in mitigation, the State upset the delicate balancing system and destroyed the reliability of the sentencing determination. Petitioner was prejudiced and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

12. When the Prosecutor repeatedly acted improperly in the mitigation phase of the Trial in clear effort to denigrate both the Petitioner, his mitigation that he suffered from a mental disease, and his witnesses, he was denied a fair trial free from prosecutorial misconduct as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution.

C. Grounds for Relief Relating to Petitioner's Appeals and Post-Conviction Review

13. When Petitioner's original appellate counsel raised only a single and solitary issue in Petitioner's initial appeal, counsel's performance was so seriously deficient that the attorneys were not functioning as counsel. As a result Petitioner was denied the right to the effective assistance of counsel in clear violation of Petitioner's rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

14. When Mr. Spisak's trial counsel and the trial court failed to keep a complete and full transcript of all proceedings occurring in the trial, Petitioner was prejudiced and his rights as guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

15. When the Eighth District Court of Appeals refused to permit the Petitioner's counsel to raise and brief any issues on either the first or second remand from the Ohio Supreme Court, and when the Ohio Supreme Court failed to address any of the issues raised in his appeal, Petitioner was denied the right to the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

16. When the Ohio Supreme Court failed to provide the level of review constitutionally required in capital cases by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution the Petitioner's rights were violated.

D. Grounds for Relief Relating to Search and Seizure Evidence

17. When evidence which had been illegally gathered from Petitioner's residence and seized was introduced against the Petitioner during his trial Petitioner's rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

18. When evidence which had been illegally gathered and seized was introduced against Petitioner during his trial, Petitioner's rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

19. When evidence which had been illegally gathered and seized was introduced against the Petitioner during his trial, Petitioner's rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

E. Grounds for Relief Relating to "Other Acts" Evidence

20. When the Trial Court received testimony concerning various firearms that were found among the Petitioner's belongings, and these firearms were unrelated to any of the crimes with which the Petitioner was charged, Petitioner's rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Evidence Rule 401, 402 and 403 were violated.

21. When the Trial Court received testimony concerning various items that were found among the Petitioner's belongings, and these items were unrelated to any of the crimes with which the Petitioner was charged, Petitioner's rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Evidence Rule 401, 402 and 403 were violated.

22. When the Trial Court received testimony concerning various uncharged allegations of violent behavior, Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

23. When the Prosecutor's misconduct permeated the record, including relentless attacks upon the Petitioner's character through allegations of 'other acts', Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

24. When the Prosecutor testified without being sworn and allowed a witness to testify without being sworn, Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

25. When the Prosecutor testified without being sworn regarding the Petitioner's political beliefs, Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

F. Grounds for Relief Relating to Admission of Exhibits Into Evidence

26. When the Trial Court failed to exclude from the jury's consideration evidence that the Trial Court had already ruled was prejudicial and inflammatory, the Petitioner's right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution was violated.

27. When the Trial Court failed to exclude from the jury's consideration gruesome photographs, both cumulative and prejudicial, lacking in significant probative value, the Petitioner's right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution was violated.

G. Grounds for Relief Relating to Fair Trial Issues

28. When Mr. Spisak was impeached with his post-arrest silence, he was denied due process under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

29. When, in the course of voir dire the jury was repeatedly informed by both the Trial Court and the prosecutor that their death penalty verdict was "only" a recommendation to the Trial Court and not at all binding upon the Trial Judge, the Petitioner's constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

30. When the Trial Court, improperly and over defense objection, excluded potential juror Thomas J. Schmitt because of his views about the death penalty, Petitioner was deprived of a fair trial and impartial jury as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

H. Ground for Relief Relating to Bias and Sympathy

31. When witnesses were permitted to testify about the victims and their families solely to arouse the sympathies and emotions of the jury, the Petitioner's right to a fair trial under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution was violated.

I. Ground for Relief Relating to Ineffective Assistance of Counsel

32. Mr. Spisak was denied the effective assistance of counsel during all phases of his trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

J. Ground for Relief Relating to the Constitutionality of Ohio's Death Penalty

33. The statutory provisions governing the Ohio capital punishment scheme suffer from multiple constitutional inadequacies, which render the entire scheme unconstitutional on its face.

VI. GROUNDS FOR RELIEF A. Grounds for Relief Related to Petitioner's Plea of Not Guilty by Reason of Insanity 1. First and Second Grounds for Relief

In his first and second grounds for relief, Spisak contends that the trial court violated his right to a fair trial and invaded the fact finding function of the jury when it excluded the testimony of Dr. Oscar Markey. Spisak contends the trial court violated his constitutional rights when, after initially permitting Dr. Markey to testify on Spisak's behalf, the court altered its decision and excluded the testimony. The court finds that neither ground is procedurally defaulted. Ground One was raised to the Ohio Supreme Court as Proposition of Law VIII. Ground Two also was raised to the Ohio Supreme Court as Proposition of Law V. Consequently, the court will address both claims on their merits.

After Spisak entered a plea of not guilty by reason of insanity, the trial court ordered Spisak to undergo a mental examination pursuant to Ohio Rev. Code § 2945.39 (current version at Ohio Rev. Code § 2945.371(E)). Thereafter, five doctors in the fields of psychiatry and psychology examined Spisak. Four explicitly found that Spisak's mental condition did not support an insanity plea. Dr. Markey, however, was ambivalent in his report and the defense sought to have him testify at trial. The trial court heard extensive in limine testimony from Dr. Markey in which he asserted that although Spisak did not suffer from a mental disease or defect, he did have a personality disorder and that he was unable to control his actions during the commission of the crimes. While Dr. Markey at times wavered as to his conclusion regarding Spisak's sanity at the times the crimes were committed, the court determined there was sufficient evidence to permit him to testify before the jury.

Upon cross-examination during trial, however, Dr. Markey's testimony, taken as a whole, was not ambivalent. He clearly indicated the defendant was not insane at the time of the commission of the crimes. The prosecutor questioned Dr. Markey:

Q: You said that he was unable to control his impulse to assault?

A: That's right.

Q: And what you are saying now, that is not the same thing as irresistible impulse?

A: That's right.

Q: But you are saying he had the ability to resist that impulse if he thought it was in his best interest to do so?

A: That's right. That's part of the personality disorder. That's right.

* * *

Q: My question, he was able to control his impulse to assault to the ability that you just said? He made a conscious decision at the time to shoot and he could just as easily have made a conscious decision not to shoot if it was in his mind to do that?

A: You are indicating that he was calculating.

Q: Well, that's what you are saying, too, isn't it?

A: He could at times control it; at other times he would decide that he didn't need to control it.

Q: Right. Are you agreeing with that?

A: Yes.

Q: Okay. So he was able to conform his conduct to the requirements of the law, if that's what he wanted to do? He just chose not to do it?

A: There must have been times and there were these times when that was true.

Q: And there were times that he chose to control it, there were times that he chose not to conform his conduct to the requirements of the law?

A: That appears to be the case.

Q: And that was his decision that he made?

A: Yes.

* * *

Q: I'm indicating to you, doctor, and asking for your opinion is that he made a conscious decision to shoot, or not to shoot on each case that we have in this indictment?

A: Yes, he was not in a frenzy where he didn't know what he was doing. He had a conception of what he was doing and he realized that he could have —

Q: He could have refrained from pulling the trigger on any of those five [occasions], had he chosen to do so?

A: Yes.

(Tr. 1992-1995). Although defense counsel tried to rehabilitate Dr. Markey's testimony, it only proved further damaging as he stated on re-direct:

The questions have been asked me before indicate that in every instance in which he did assault, whether he killed or not, he was calculating and knew whether or not he could go ahead, in his view, he was positive in doing it, that he had enough conscious control over it to do it at a time when it would be to his advantage. . . .

(Tr. 1997). The following day, outside the presence of the jury, the court concluded that Dr. Markey's testimony did not meet the "minimal standard" required for the submission of the testimony to the jury and subsequently directed the jury to disregard it. (Tr. 2017). Spisak argues that the trial court's decision to exclude Dr. Markey's testimony violated his right to a fair trial and unconstitutionally invaded the role of the jury as factfinder.

The Sixth Circuit addressed an issue similar to that raised herein in Matlock v. Rose, 731 F.2d 1236 (6th Cir. 1984). In that case, the petitioner claimed the trial court improperly excluded the testimony of a psychologist who testified that the petitioner knew right from wrong on the intellectual level of an eight or nine year old. The Sixth Circuit disagreed. First, the court noted that "[e]rrors of application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus actions." Matlock, 731 F.2d at 1242 (citing Bell v. Arn, 536 F.2d 123 (6th Cir. 1976); Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975), cert. denied, 423 U.S. 937 (1975)). Hence, a habeas court can grant relief only when the error effectively denies the defendant a fundamentally fair trial. Id. (citing Maglaya v. Buchkoe, 515 F.2d 265 (6th Cir. 1975), cert. denied, 423 U.S. 931 (1975); Gemmel v. Buchkoe, 358 F.2d 338 (6th Cir. 1966), cert. denied, 385 U.S. 962 (1966); Handley v. Pitts, 491 F. Supp. 597 (E.D.Tenn. 1978); aff'd, 623 F.2d 12 (6th Cir. 1980)).

The Sixth Circuit went on to examine Tennessee insanity law and noted that the excluded testimony would only have undercut the defense because the psychologist could not testify that the defendant did not know the wrongfulness of his conduct as the law required. Concluding that the excluded testimony would have, "[a]t best . . . shown that Matlock was retarded with some brain damage," the court affirmed the district court's denial of the writ. Id. at 1243.

Utilizing the guidance that Matlock provides, the court will analyze Spisak's claim under Ohio insanity law in light of the restrictions placed on a reviewing habeas court. Pursuant to the Ohio Revised Code, "a person is 'not guilty by reason of insanity' relative to a charge of an offense only if he proves . . . that at the time of the commission of the offense, he did not know, as a result of a severe mental disease or defect, the wrongfulness of his acts." Ohio Rev. Code § 2901.01(N) (current version at Ohio Rev. Code § 2901.01(A)(14)); State v. Staten, 267 N.E.2d 122, 124 (Ohio 1971).

Although a person is no longer presumed sane once he or she pleads not guilty by reason of insanity, Ohio Rev. Code § 2943.03, a defendant has the burden of proving this affirmative defense by a preponderance of evidence. Ohio Rev. Code § 2901.05. "Proof that a person's reason, at the time of the commission of an offense, was so impaired that the person did not have the ability to refrain from doing the person's act or acts, does not constitute a defense." Ohio Rev. Code § 2945.391.

In addition to the statutory law cited above, the court finds State v. Dotson, No. 43629, 1982 WL 2330 (Ohio Ct.App. Feb. 4, 1982), instructive. In that case, the defendant pleaded not guilty by reason of insanity for shooting a car salesman who sold him a car in need of many repairs. During trial, three expert witnesses found that the defendant suffered from paranoid schizophrenia but were unable to conclude that the defendant was legally insane during the murder. Id. at *3. Thus, the trial judge found "that the defense did not sustain the burden of proving insanity by a preponderance of the evidence" and excluded all such evidence from the jury. Id. (internal quotation marks omitted).

On appeal in that case, the Eighth District Court of Appeals determined that the trial judge acted properly. Contrary to Dotson's assertions that the trial court had invaded the fact finding function of the jury, the Eighth District held that "while issues of credibility and weight remain reserved for jury determination, issues pertaining to admissibility are vested in the discretion of the trial court." Id. at *4 (citations omitted). Therefore, the court determined that the trial court properly had excluded such evidence as irrelevant pursuant to Ohio Rule of Evidence 104. Id. at *5.

The court finds that Spisak's constitutional right to a fair trial was not violated when the trial court excluded Dr. Markey's testimony. Similar to the Dotson experts, Dr. Markey did not testify that Spisak was suffering from a mental disease or defect which caused him not to understand the wrongfulness of his acts at the time he committed the murders. Because Dr. Markey stated on cross-examination that Spisak could control his actions on each occasion, the court concurs with the Eighth District Court of Appeals, which determined: "It is difficult, if not impossible, to see how Markey's testimony would, in any fashion, have assisted the jury in reaching a conclusion on the legal insanity of [Spisak]. Primarily, the testimony reinforced the argument that the appellant was sane at the time of the acts." State v. Spisak, Nos. 47458, 47459, 1984 WL 13992, at *6 (Ohio Ct.App. July 19, 1984). Accordingly, the court finds that the Ohio Supreme Court's denial of this claim was not unreasonable and Spisak's first and second grounds for relief are not well-taken.

2. Fourth Ground for Relief

Also related to his insanity defense, Spisak asserts in his fourth ground for relief that he was denied the right to a fair trial when the trial court refused to instruct the jury on the insanity defense. After excluding Dr. Markey's testimony, the defense counsel called Spisak's sister and his ex-wife. Both testified that Spisak, on occasion, behaved strangely, particularly since his involvement in a near-fatal car accident. Spisak's sister noted that when he spoke of the murders he had "a glazed look" in his eyes (Tr. 2030). Additionally, Spisak's ex-wife testified that after the car accident he became more involved with Nazi activity and began dressing as a woman (Tr. 2075-76). Because of this testimony, defense counsel timely objected to the court's decision to exclude the insanity charge, asserting that the defense had supplied sufficient lay witness testimony to warrant it (Tr. 2400). Petitioner now reasserts that argument.

The court finds that this claim is not procedurally defaulted. Spisak raised this claim to the Ohio Supreme Court as Proposition of Law IV. Accordingly, the court will address this claim on the merits.

Because jury instructions errors typically are matters of state law, the standard for demonstrating that a jury instruction caused constitutional error in a habeas proceeding "is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). "The question in such a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned." Id. (citations and internal quotation marks omitted). Moreover, a habeas petitioner's "burden is especially heavy [when] no [affirmatively] erroneous instruction was given. . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155.

In this claim, Spisak fails to carry this burden. Although Ohio courts long have held that a defendant's insanity is a factual question for the jury, the defendant must meet some minimal threshold to justify consideration by the jury:

'Under a plea of not guilty by reason of insanity, the burden of establishing such a defense rests upon the defendant by a preponderance of the evidence. When from the evidence reasonable minds may reach different conclusions upon the question of insanity, such question of fact is for the jury. If, however, after giving the evidence the most favorable interpretations in favor of the defendant, reasonable minds can come to but one conclusion and that conclusion [is] adverse to [the] defendant, it is the court's duty to rule on the issue as a matter of law.' State v. Ross, 108 N.E.2d 77, 86 (Ohio Ct.App. 1952), appeal dismissed, 108 N.E.2d 282 (Ohio 1952).

State v. Gaines, 318 N.E.2d 857, 864 (Ohio Ct.App. 1974).

Ohio courts have determined that a defendant need not provide expert testimony to meet his or her burden of proof to send the insanity issue to the jury. State v. Reynolds, 550 N.E.2d 490, 495 (Ohio Ct.App. 1988). A review of Ohio decisions in which lay testimony established a defendant's burden of proof, however, reveals that such testimony involved much more significant evidence of the defendant's mental illness than that presented by Spisak's sister and ex-wife. For example, in Reynolds, evidence had been submitted that defendant suffered from a severe mental disorder that required constant use of anti-psychotic medication. Id. at 496. The defendant's sister testified that the defendant had been off his medication for three days prior to committing the offense. Id.

Moreover, Spisak's reliance on United States v. Smith, 437 F.2d 538 (6th Cir. 1970), is misplaced and only serves to undercut his assertion that lay testimony is sufficient to establish insanity. In Smith, the United States Commissioner⁹ in Cincinnati, before whom the defendant appeared several times, and a Federal Bureau of Investigations officer, who arrested defendant, testified in rebuttal to a defense psychiatrist that defendant "did not appear particularly abnormal." Id. at 541. The Sixth Circuit held the federal officials' testimony was of little probative value and should have been excluded because "[n]othing in their testimony even remotely suggested a basis for making a judgment whether appellant was able to conform his conduct to the requirements of the law." Id. Thus, Smith stands for the proposition that only lay testimony that tends to demonstrate a defendant's sanity at the time the crimes were committed is probative and therefore admissible.

9 The title "United States Commissioner" referred to in the text is the position which is currently held by United States Magistrates. The Magistrate System replaced the Commissioner system with the passage of the Federal Magistrate Act of 1979. L. Ralph Mecham, A Guide to the Legislative History of the Federal Magistrate Judges System 4-8 (1995).

Just as in Smith, Spisak's sister and ex-wife's testimony did nothing more than demonstrate Spisak occasionally behaved strangely. Their testimony did not support the conclusion that he was insane at the times the crimes were committed, i.e., that he suffered from a mental disease which caused him not to understand the wrongfulness of his acts. Consequently, the trial court properly determined that Spisak did not, as a matter of law, produce evidence sufficient to require a jury instruction on the insanity defense. Because the trial court's ruling does not violate the bounds of due process, the court finds the Ohio Supreme Court's decision was not unreasonable. Accordingly, Spisak's fourth ground for relief is not well-taken.

3. Third Ground for Relief

In Spisak's Third Ground for Relief, he claims that the trial court impermissibly infringed on his right to testify on his own behalf when it sustained numerous prosecutorial objections regarding his religious beliefs. Trial counsel based their insanity defense on assertions that Spisak felt God had guided him to kill and permitted him to escape from the murder scene undetected. Because the prosecution objected to, and the trial court sustained, some questions regarding Spisak's religious beliefs in relation to the murders, Spisak contends he was effectively denied the right to testify on his own behalf.

The court finds that this ground for relief is not procedurally defaulted as it was raised on direct appeal to the Ohio Supreme Court as Proposition of Law VII. The court, therefore, will address the merits of the claim.

"The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that "'are essential to due process of law in a fair adversary process.'" Rock v. Arkansas, 483 U.S. 44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806, 819, n. 15 (1975)). "The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony." Id.

Spisak cannot successfully claim that he was denied this testimonial right. As Respondent notes, Spisak's testimony spans over five hundred (500) pages of trial transcript. Moreover, Spisak was permitted to testify on numerous occasions regarding his religious beliefs. (Tr. 1362-63, 1396, 1401-02, 1405, 1429-30, 1449, 1453, 1482). Most significant was a court ruling that took place during sidebar. During direct examination of Spisak, defense counsel was attempting to demonstrate the relationship between Spisak's beliefs regarding Naziism and his religious beliefs (Tr. 1444). The prosecutor objected to this line of questioning and, thereafter, the following conversation took place:

The Court: Mr. Nugent.

Mr. Nugent: I have objected to the last question on the basis that I don't believe that it is relevant to the inquiry.

* * *

The objection — another thing, my impression of this testimony is that the defendant is explaining to this jury that not only is he guilty of the crimes charged, but that he is explaining to them why he is guilty and everything that surrounds it. It is a complete admission of his guilt. My objection is not only to the relevancy, but it is to make this record clear, I'm aware of what's going on, and if the defense has a reason, or motivation, that he wants to get all these admissions in front of them, that's their tactic, as long as the record is aware that's their purpose.

The Court: Mr. Shaughnessy.

Mr. Shaugnessy:

Your honor, rest assured that this examination is not a Kamikaze attempt to later claim foul to the Appellate proceedings. The record on Tuesday is replete, and we have the transcript, about the cross to bear, that God directed each of his operations. Unlike [the prosecutor], I think I share the view of almost everyone who heard and read that, that this guy is an absolute certified lunatic.

As far as we know, God didn't send him to do these things. His relationship with God and God giving him the cross, the job as he foresaw he, he explained the other day, God was right there on his right shoulder, so to speak, or he was on God's leash, if you will, directed certainly by God.

Now, we went into that the other day. He explained the thrust of the — the thrust of the State's case, and I might say this is in the evidence that has been admitted, and that should be in the record. There is just literally tons and tons of things that have to do with God, the Nazi Party, the White People's Party, the relationship with Jesus Christ and certainly we have got into that the other day as we still have three or four more — two more killings to explore. And we would like to —

The Court: I will overrule the objection.

(Tr. 1445-48.)

Thereafter, the court permitted Spisak to testify about the relationship between his Nazi beliefs and its affiliation with Jesus Christ and the Bible. Because, contrary to Petitioner's assertions, the trial court permitted substantial testimony regarding the religious forces he felt guided him towards murder, Spisak was neither denied the right to testify on his own behalf nor was he denied the right to present his insanity defense. Accordingly, the Ohio Supreme Court's determination regarding this claim was reasonable. Spisak's third ground for relief is without merit.

B. Grounds for Relief Related to the Mitigation Phase 1. Faulty Jury Instruction Claims

In his Fifth, Seventh, Eighth and Ninth Grounds for Relief, Spisak maintains that the trial court erred when charging the jury on several occasions during the mitigation phase of trial. The court will examine each claim individually, mindful that an incorrect jury instruction does not warrant federal habeas corpus relief if it was merely undesirable, erroneous or universally condemned. Instead, the instruction must violate a constitutional right. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Upon review, a court must determine whether there is a reasonable likelihood that the jury applied the instruction in a way that prevents consideration of constitutionally relevant evidence. Boyd v. California, 494 U.S. 370, 380 (1990). The impropriety of the instruction must be considered in the context of the instructions as a whole and the trial record. Id. Rarely will an erroneous jury instruction justify reversal in a criminal case when no objection was made during trial. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The court now turns to Spisak's individual claims for relief.

a. Fifth Ground for Relief

In his Fifth Ground for Relief, Spisak maintains the trial court erred when it instructed the jury on nineteen separate aggravating circumstances regarding four aggravated murder charges originating from three murders. Spisak asserts that the multitude of aggravating circumstances supplied by the trial court upset the "delicate balance" a jury must review during the weighing of aggravating circumstances and mitigating factors at the penalty phase of the trial, causing the jury to favor a death sentence.

Initially, the court notes this claim is not procedurally defaulted because Spisak raised this claim to the Ohio Supreme Court as Proposition of Law I. Accordingly, the court will address the claim on the merits.

Before releasing the jury to deliberate during the mitigation phase of trial, the court charged the jury on the definition of an aggravating circumstance:

Now, aggravating circumstance. What is an aggravating circumstance?

In this case the aggravating circumstances are the specifications upon which you returned guilty verdicts in four separate counts of the indictment.

(Tr. 2967). Thereafter, the court repeated all nineteen specifications.¹⁰

10 The specifications, as taken from the trial transcript, were as follows:

"One, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Horace Rickerson and also purposely killed Brian Warford.

"Two, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Horace Rickerson and also purposely killed Timothy Sheehan."

"Three, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender attempted to kill Coletta Dartt.

"Four, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of the course of conduct in which the offender attempted to kill John Hardaway."

In count five, aggravated murder, the murder of Timothy Sheehan while committing or attempting to commit or while fleeing immediately after committing or attempting to commit aggravated robbery, they are as follows:

"One, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely killed Horace Rickerson.

"Two, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely attempted to kill Coletta Dartt.

"Three, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely attempted to kill John Hardaway.

"Four, that the defendant committed the offense of aggravated murder and that such aggravated murder was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely killed Brian Warford.

"Five, that the defendant committed aggravated murder and that the victim of the aggravated murder was killed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.

"Six, that the defendant committed aggravated murder and that the offense was committed while the offender was committing or attempting to commit or fleeing immediately after committing or attempting to commit an aggravated robbery, and that the offender was the principal offender in the commission of the aggravated murder."

In count six, aggravated murder, the murder of Timothy Sheehan, with prior calculation and design, they are as follows:

"That the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely killed Horace Rickerson. "Two, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely attempted to kill Coletta Dartt.

"Three, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely attempted to kill John Hardaway.

"That the defendant committed the offense of aggravated murder and the offense was part of a course of conduct in which the offender purposely killed Timothy Sheehan and also purposely killed Brian Warford.

"Five, that the defendant committed the offense of aggravated murder and that the victim of the aggravated murder presented above was killed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender."

In count eight, aggravated murder, the murder of Brian Warford with prior calculation and design, they are as follows:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

"One, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Brian Warford and also purposely killed Horace Rickerson.

"Two, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Brian Warford and also purposely killed Timothy Sheehan.

"Three, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Brian Warford and also purposely attempted to kill Coletta Dartt.

"Four, that the defendant committed the offense of aggravated murder and that the offense was part of a course of conduct in which the offender purposely killed Brian Warford and also purposely attempted to kill John Hardaway."

(Tr. 2967-72).

On appeal, the Eighth District Court of Appeals determined that Spisak was improperly convicted of two counts of aggravated murder for the death of Timothy Sheehan. The court stated:

The appellant was indicted on four counts of aggravated murder for the murders of three people. Two counts of aggravated murder, the fifth and sixth counts of the indictment, were for the murder of one individual, Timothy Sheehan. The appellant was subsequently convicted for and sentenced on all four counts of aggravated murder.

R.C. 2941.25(A) provides:

Accordingly, while it was proper for the appellant to have been indicted on two separate counts of aggravated murder for the murder of Timothy Sheehan, he could only be convicted on one of those counts.

State v. Spisak, Nos. 47458, 47459, slip op., 1984 WL 13992, at *7 (Ohio Ct. App. July 19, 1984). Thus, the trial court should not have charged the jury on one set of specifications relating to Sheehan's death.

Moreover, the Ohio Supreme Court noted that the trial court incorrectly failed to merge the specifications. That court held that each aggravated murder count should have contained only one specification because they arose from one single course of conduct. State v. Spisak, 521 N.E.2d 800, 803 (Ohio 1988). Finally, Spisak alleges that the specification that he killed Sheehan to escape apprehension or punishment for the murder of Rickerson should also merge because it must be construed as a single course of conduct flowing from the Rickerson murder. Spisak does not, however, provide statutory support for such a conclusion.

Thus, according to Spisak, the trial court should have read only three specifications to the jury:¹¹ (1) that the defendant committed the offense of aggravated murder against Horace Rickerson that was part of a course of conduct to kill or attempt to kill two or more persons; (2) that the defendant committed the offense of aggravated murder against Timothy Sheehan that was part of a course of conduct to kill or attempt to kill two or more persons; and, (3) that the defendant committed the offense of aggravated murder against Brian Warford that was part of a course of conduct to kill or attempt to kill two or more persons. Petitioner asserts this failure to "merge" the specifications pursuant to state law violated his Fifth, Sixth, Eighth and Fourteenth Amendment rights to the United States Constitution.

11 Spisak does not elaborate on why the trial court should not have instructed the jury on the specification that Timothy Sheehan was killed during the commission of aggravated robbery.

Although no United States Supreme Court case is directly on point, Clemmons v. Mississippi, 494 U.S. 738 (1990), offers some guidance. In that case, the jury found that the state established two statutory aggravating circumstances and sentenced the petitioner to death. Id. at 742. The Mississippi Supreme Court later invalidated one of the aggravating circumstances as unconstitutionally vague but upheld the death sentence because the appellate court re-weighed the sentencing decision without the invalidated aggravating factor and found it appropriate. Id. at 743. The United States Supreme Court held that a death sentence could be upheld on appeal even when the jury had considered an invalid or

improperly defined aggravating factor. The court determined: Nothing in the Sixth Amendment as construed by our prior decisions indicates that a defendant's right to a jury trial would be infringed where an appellate court invalidates one or two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that one or more valid remaining aggravating factors outweigh the mitigating evidence. Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.

Id. at 745 (citations omitted). The Court remanded the case, however, because the Mississippi Supreme Court did not adequately explain its harmless error review after excluding the invalidated aggravating circumstance. Id. at 751.

The Court revisited the issue of vague aggravating circumstances in Stringer v. Black, 503 U.S. 222 (1992). In Stringer, the Court further clarified the state appellate re-weighing process necessary to uphold a death sentence resulting from a constitutionally impermissible aggravating circumstance. First, the Court divided states into "weighing" states or "finding" states. In the first category, a state's capital sentencing process requires the jury to find at least one aggravating circumstance, then weigh that evidence against any mitigating circumstances. Id. at 229. In "finding" states, however, a jury must find the existence of one aggravating circumstance before considering the death penalty but the aggravating circumstances do not have a specific function in the jury's decision to impose the death penalty. Id.

The Court determined appellate review in a "weighing" state would require closer scrutiny than a "finding" state. In weighing states, the Court opined, ". . . for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must determine what the sentencer would have done absent the factor." Id. at 230. Moreover, the Court cautioned appellate courts to subject a death sentence to even closer scrutiny when the trial court utilized a vague or imprecise factor. In those instances, a reviewing court must, ". . . at the very least [conduct a] constitutional harmless-error analysis or re-weighing in the state judicial system." Id. at 237.

Because the degree of a reviewing court's scrutiny depends heavily upon the type of state in which a petitioner was convicted, the court first must determine whether Ohio is a "weighing" state or a "finding" state. A brief review of the Ohio Revised Code reveals it is the former. The Revised Code provides:

(B) If one or more of the aggravating circumstances listed in division

(A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt . . . the court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following [mitigating] factors

Ohio Rev. Code § 2929.04(B) (emphasis supplied).

After concluding that Ohio is a weighing state, the court must next ascertain whether the Ohio Supreme Court sufficiently re-weighed the aggravating circumstances on review. The court finds that the Ohio Supreme Court did sufficiently articulate its re-weighing process. After concluding that it "independently determined that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt," State v. Spisak, 521 N.E.2d 800, 803 (Ohio 1988), the court went on to analyze the mitigation presented in light of the aggravating circumstances:

Of the mitigating factors specified in R.C. 2929.04(B) appellant relied solely on his allegation that he lacked, due to mental disease or defect, substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the law at the time of committing the offenses. R.C. 2929.04(B)(3). Although appellant had characteristics of borderline and schizotypal personality disorders, the bulk of the testimony, from both defense and rebuttal expert witnesses, established that appellant was sane at the time of the acts, that he could have refrained from committing them, had he so chosen, and that he understood the nature of his acts but elected to carry them out anyway.

Appellant admitted to being the principal offender in three murders and two attempted murders. He did not have a significant history of prior criminal convictions or juvenile adjudications, nor was his age a factor. He was not under duress, coercion or strong provocation at the time of the crimes. His victims neither facilitated nor induced the offenses. Nothing in the nature and circumstances of these deliberate murders tempers the gravity of the offenses. We concur with the jury and lower courts that the balance of these factors lies heavily, and beyond a reasonable doubt, on the side of the aggravating circumstances of which appellant was convicted.

Id. at 803-4.

Despite the Ohio Supreme Court's re-weighing after merging the aggravating circumstances, Petitioner contends that State v. Davis, 528 N.E.2d 925 (Ohio 1988), cert. denied, 488 U.S. 1034 (1989), mandates this court grant him relief. Davis, however, is easily distinguishable. In Davis, the Ohio Supreme Court vacated the appellant's death sentence because the three-judge panel had improperly made "prior calculation and design" an aggravating circumstance although it is not listed as such in the Ohio Revised Code. Id. at 935. Although the Ohio Court of Appeals attempted to "cure" this defect by conducting an independent re-weighing, the Ohio Supreme Court rejected "independent review as a cure in this particular action because [it could] not know if the result of the weighing process by the three-judge panel would have been different had the impermissible aggravating circumstances not been present." Id. at 372.

Ohio courts have limited the scope of the Davis holding to its facts. For example, in State v. Green, 609 N.E.2d 1253, 1260 (Ohio 1993), a three-judge panel considered the "nature and circumstances" of a capital murder but did not indicate specifically that it used those facts to comprise an aggravating circumstance as did the Davis trial court. The Ohio Supreme Court, inferring that the panel considered the "nature and circumstances" evidence in a proper manner, held that ". . . this court's independent assessment of the sentence would cure any deficiency in the trial panel's sentencing decision." Id. (citing Clemmons v. Mississippi, 494 U.S. 738 (1990)).

Both Clemmons and Stringer dealt with a jury's consideration of vague or improper aggravating circumstances. In the case, however, all nineteen aggravating circumstances were properly delineated before the jury. Spisak does not complain about the content of the questions given to the jury, but rather of the cumulative effect of otherwise constitutionally sound aggravating circumstances. The court finds this error less egregious than permitting a jury to consider an aggravating factor that exceeds constitutional bounds.

Moreover, unlike the Davis appellate court, in the instant case, the Ohio Supreme Court articulated its re-weighing process upon merging the aggravating circumstances. This court is not left to speculate what the Ohio Supreme Court would have done in its re-weighing once the aggravating circumstances were merged. Finally, if as the Supreme Court has determined, re-weighing can cure a defect produced when a jury considers an unconstitutional aggravating circumstance, then, a fortiori, a court can cure problems associated with the cumulative effect of constitutionally permissible aggravating circumstances. Consequently, the Ohio Supreme Court cured any defect occurring from the jury's consideration of the nineteen specifications.

Out of an abundance of caution, the court will, nevertheless, subject the trial court's failure to merge the specifications to a harmless error analysis. The test for determining if harmless error occurred during trial requires a reviewing court to ascertain whether "the error had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (internal quotation marks omitted). When a reviewing court is in "grave doubt" or equipoise about whether or not the error is harmless, the court must conclude that the error affected the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 435 (1995).

Subjecting the trial court's failure to merge the specifications to the harmless error test, the court finds this error harmless beyond a reasonable doubt. Given the facts upon which the aggravating circumstances were predicated — the nature and number of crimes Petitioner committed — the court finds the jury's verdict would not have been affected if the specification merger had occurred. The Ohio Supreme Court's decision to deny this claim was not unreasonable. Thus, Petitioner's Fifth Ground for Relief is not well-taken.

b. Seventh Ground for Relief

Spisak next asserts that the trial court erred because the it improperly instructed the jury that its sentencing recommendation had to be unanimous, yet failed to explain to the jury what action it should take in the event that it failed to reach unanimity. Spisak also claims that the verdict forms, requiring twelve signatures, i.e., unanimous agreement as to the verdict, prejudiced his proceeding. Instead, Spisak alleges, the trial court should have instructed the jury that if they were unable to unanimously agree to death, they must impose a life sentence.

The court finds that Spisak has not defaulted this claim because he raised it as the LIV (54th) Proposition of Law to the Ohio Supreme Court. The court now addresses the claim on its merits.

At the conclusion of the mitigation phase, the trial court instructed the jury in regard to sentencing as follows:

If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count outweighs the mitigating factors, then you must return that finding to the Court.

I instruct you, as a matter of law, that if you make such a finding, then you must recommend to the Court that a sentence of death be imposed upon the defendant, Frank G. Spisak, Jr.

A jury recommendation to the Court that the death penalty be imposed is just that, a recommendation. The final decision is placed by law upon the Court.

On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant, Frank G. Spisak, Jr., has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.

(Tr. 2974-75). The trial court also charged the jury regarding the verdict forms, in pertinent part, as follows:

Now, ladies and gentlemen, I may as well say something about the verdict form right now. There are two sets of verdict forms, one, "We the jury in this case, being duly impaneled and sworn, do find beyond a reasonable doubt that the aggravating circumstance which the defendant, Frank G. Spisak, Jr., was found guilty of committing was sufficient to outweigh the mitigating factors present in this case.

"We the jury recommend that the sentence of death be imposed and that the defendant Frank G. Spisak, Jr." — there is a spot for twelve signatures. All twelve of you will sign it if that is your verdict in this case.

There are four separate verdict forms for counts five, six and I believe it is eight. Now, there is also a set of verdict forms, same count numbers, read as follows:

"We the jury, being duly impaneled and sworn, do find that the aggravating circumstances which the defendant, Frank G. Spisak, Jr., was found guilty of committing are not sufficient to outweigh the mitigating factors present in this case.

"We the jury recommend that the defendant Frank G. Spisak be sentenced to life imprisonment with parole eligibility after serving" — there is an asterisk for a spot on the verdict form for you to fill in either 20 or 30 years of imprisonment. And again, all twelve of you must sign whatever verdict it is you arrive at must be signed in ink.

(Tr. 2975-76). Spisak claims both instructions are unconstitutional because the jury was left unenlightened about the consequences of a jury deadlock. He speculates that this failure to inform may have lead some jurors to believe he possibly could escape a sentence without juror unanimity, perhaps leading a jury towards deciding for a death sentence rather than permit him to escape punishment altogether.

Spisak's assertions have been rejected by the United States Supreme Court in Jones v. United States, 527 U.S. 373 (1999). In Jones, the Court held that the Eighth Amendment requirement against "cruel and unusual punishment" does not require that a jury be instructed on the consequences of deadlock. Id. at 383. In that case, Jones had requested that the trial court charge the jury that, "if the jury is unable to agree on a unanimous decision as to the sentence to be imposed, you should so advise me and I will impose a sentence of life imprisonment without possibility of release. . . ." Id. at 379. The trial court refused Jones's request and the jury unanimously recommended that he be sentenced to death. Jones argued that the trial court's failure to charge the jury on his proposed instruction violated his Eighth Amendment rights.

The Supreme Court disagreed. It first noted that "the proposed instruction has no bearing on the jury's role in the sentencing process. Rather, it speaks to what happens in the event that the jury is unable to fulfill its role — when the deliberations break down and the jury is unable to produce a unanimous sentencing recommendation." Id. at 382. While the Court noted that the Eighth Amendment requires that a death sentence not be imposed arbitrarily, it stated that the government in a capital case has a "'strong interest in having the jury express the conscience of the community on the ultimate question of life or death.'" Id. (quoting Lowenfield v. Phelps, 484 U.S. 231, 238 (1988)). The Court concluded that Jones's proposed instruction would thwart this interest. See id. at n. 5 (noting that it has thus approved the use of a supplemental charge to encourage a deadlocked jury, even a capital sentencing jury, to engage in further deliberations) (citing Allen v. United States, 164 U.S. 154 (1896), Lowenfield, 484 U.S. 231). Accordingly, the Court held that while a jury cannot be "affirmatively misled about its role in the sentencing process," the Eighth Amendment "does not require that the jury be instructed as to the consequences of their failure to agree." Id. at 381-82.

Jones is fatal to Spisak's claim in that it settled the question of whether a jury must be informed of the consequences of deadlock in the negative. Moreover, Spisak's assertion that a deadlocked jury would choose death, a more severe form of punishment, rather than life imprisonment, is based on pure speculation. Finally, Spisak cannot assert that the jury in his case was affirmatively misled about its role in the sentencing phase of his trial. Consequently, Spisak's seventh ground for relief is without merit.

Before moving to Spisak's next claim, the court feels compelled to address another issue related to the sentencing instruction given by the trial court. Though he did not challenge it on this basis, it is arguable that the instruction would be susceptible of a constitutional attack on the ground that it required the jury to first unanimously reject death, a so-called "acquittal first" instruction, before considering a life sentence. The Sixth Circuit has recently held that such an instruction is unconstitutional. Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003). Specifically, the Davis court held that an instruction requiring that a capital jury "must first unanimously reject the death penalty before it can consider a life sentence . . . precludes the individual juror from giving effect to mitigating evidence and runs afoul of Mills [v. Maryland, 486 U.S. 367 (1988)]." Id. at 689.¹² Consequently, the court conditionally granted a writ of habeas corpus as to the petitioner's sentence. Id. at 691.

12 The jury instruction given in Davis was similar in pertinent respects to the one given to Spisak's jury.

In this case, it is evident that the challenge Spisak raises with respect to the instruction given in his case relates only to the trial court's failure to charge the jury on the consequences of its failure to unanimously reach a verdict. He has not attacked the instruction as being constitutionally infirm for the reasons addressed by Davis. In fact, Spisak's briefs on the seventh claim do not even quote the language in the jury instruction that would relate to an "acquittal-first" instruction claim. See Traverse at 89. Even more importantly, Spisak did not cite in either his Petition or his Traverse either of the Supreme Court cases on which Davis was decided, Mills and McKoy v. North Carolina, 494 U.S. 433 (1990), both of which were decided long before Spisak filed his Petition. Therefore, the court declines to address whether Spisak's sentence was unconstitutional in light of Davis.¹³

13 Moreover, this issue is the subject of some discord in the Sixth Circuit. Compare Davis, supra, with Roe v. Baker, 316 F.3d 557, 564 (6th Cir 2002) (holding that instruction similar to that given in Davis did not violate Mills), Henderson v. Collins, 262 F.3d 615, 621-22 (6th Cir. 2001) (same), Scott v. Mitchell, 209 F.3d 854, 875-6 (6th Cir. 2000) (same), and Coe v. Bell, 161 F.3d 320, 338 (6th Cir. 1998) (same).

c. Eighth Ground for Relief

In Spisak's Eighth Ground for Relief, he claims that the trial court improperly admonished the jury not to consider sympathy or prejudice when formulating its sentencing decision. Consequently, Spisak argues, the jury could show no mercy for him. Spisak raised this claim as his LV (55th) Proposition of Law to the Ohio Supreme Court. As such, the court will consider the merits of the claim.

During trial, the court cautioned the jury:

Now, you must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings, and to render a verdict accordingly.

In fulfilling your duty, your efforts must be to arrive at a just verdict. Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried.

(Tr. 2976-77). Spisak maintains that the court's proscription against considering sympathy or prejudice prevented the jury from forming an individualized sentencing decision or basing that decision on mercy for the defendant.

A death-sentenced defendant made a similar argument in California v. Brown, 479 U.S. 538 (1987), asserting that an instruction preventing the jury from being swayed by "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" was unconstitutional. Id. at 542. The Supreme Court rejected this argument, holding that "[e]ven a juror who insisted on focusing on [the phrase 'mere sympathy'] in the instruction would likely interpret the phrase as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase." Id. Spisak cites Brown in his Traverse, attempting to distinguish it by noting, unlike the "catalog of the kind of factors that could improperly influence a jury's decision to vote for or against the death penalty" presented in the Brown instruction, Spisak's jury was told not to be influenced by a mere two factors; sympathy or prejudice. Traverse at 91 (quoting Brown, at 543)

The court disagrees with both Spisak's legal interpretation of Brown and the factual assessment of the trial court's instruction. First, Brown upheld the constitutionality of the jury instruction based not on the quantity of factors the jury was told to disregard, but on how, taken as a whole, a "reasonable juror" would interpret the instruction. Id. at 542-43. The Court concluded that when read in context, "a rational juror could hardly hear this instruction without concluding that it was meant to confine the jury's deliberations to considerations arising from the evidence presented, both aggravating and mitigating." Id. at 543.

Moreover, according to Spisak's interpretation of Brown, his claim must fail. Spisak relies on only a part of the instruction given by the trial court. Although the trial court did initially instruct the jury not to be influenced by sympathy and prejudice, the court went on, as noted above, to admonish the jury to consider all evidence with "intelligence and impartiality" and without "bias, sympathy or prejudice." Using this "catalog" of items that should and should not influence the jury served to marginalize the word "sympathy," placing it in its proper context. The Ohio Supreme Court's decision to deny this claim was reasonable. Accordingly, Spisak's eighth ground for relief is not well-taken.

d. Ninth Ground for Relief

In Spisak's Ninth Ground for Relief, he claims that the trial court improperly instructed the jury that it might consider any and all evidence in determining whether an aggravated circumstance existed. The court finds this claim is not procedurally defaulted as Spisak raised this claim as his LIII (53rd) Proposition of Law to the Ohio Supreme Court. Thus, the court will address the merits of the claim.

At the close of the mitigation phase, the trial court instructed the jury as follows:

Mitigating factors, what then are mitigating factors? Mitigating factors are those which, while not excusing or justifying the offense, or offenses, may, in fairness and mercy, be considered by you, as extenuating or reducing the degree of the defendant's responsibility or punishment.

These mitigating factors include, but are not limited to, the history, character and background of the offender and the following factors:

One, at the time of committing the offense the defendant because of mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Two, any other factors, that are relevant to the issue of whether the defendant should be sentenced to death.

(Tr. 2972-73) (emphasis supplied). Spisak extracts the above-emboldened language to claim that a juror might somehow unconstitutionally apply it to both aggravating and mitigating factors. Consequently, Spisak claims, the jury did not suitably limit the evidence it was permitted to access, resulting in an arbitrary and capricious sentencing.

The court disagrees. Supreme Court jurisprudence dictates that a capital sentencer must "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 605 (1978); see also Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (holding "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."). The court finds that the trial court comported with this constitutional mandate. When taken in context, rather than isolating portions of the mitigation charge as Spisak does in the Petition, it is clear that the trial court properly limited the jury's consideration of "any evidence" to mitigating evidence and a reasonable juror would interpret it as such. Therefore, Spisak's ninth ground for relief lacks merit and the Ohio Supreme Court reasonably concluded so.

2. Ineffective Assistance of Counsel Claims

In his sixth and tenth grounds for relief, Spisak asserts that his trial counsel provided ineffective assistance of counsel during the mitigation phase of trial and provides a litany of actions or inactions that he believes supports such claims.

The Sixth Amendment dictates that a criminal conviction must arise from "an adversarial process, rather than the ex parte investigation and determination by the prosecutor." Nix v. Williams, 467 U.S. 431, 453 (1984). As such, a criminal defendant is entitled to more than mere appointment of counsel. Counsel's performance during a criminal trial must be sufficient to ensure a defendant's trial was fair. Strickland v. Washington, 466 U.S. 668, 685 (1984). To determine whether a criminal defendant received the meaningful representation the Sixth Amendment mandates, a reviewing court must submit counsel's performance to a two-pronged analysis. Id. at 687. First, the petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the petitioner must show that he or she was prejudiced by counsel's errors. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

To successfully assert an ineffective assistance of counsel claim, a petitioner must point to specific errors in trial counsel's performance. United States v. Cronic, 466 U.S. 648, 666 (1984).

Thereafter, a reviewing court must subject the allegations to rigorous scrutiny, determining "whether, in light of all circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. As the Supreme Court stated, "'Judicial scrutiny of a counsel's performance must be highly deferential'" and . . . 'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Cone v. Bell, 535 U.S. ___, 122 S.Ct. 1843, 1852 (2002) (quoting Strickland, 466 U.S. at 689). A reviewing court must strongly presume that counsel's conduct was reasonable and might be part of a trial strategy. Strickland at 689.

When challenging a death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently re-weighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 694. A verdict "only weakly supported" would be more susceptible to influence of counsel error than one which is supported by an overwhelming record. Id. at 696.

Mindful of the above law, the court now turns to Spisak's grounds for relief.

a. Sixth Ground for Relief

Although Spisak did not divide this claim into sub-claims in his Petition, the court does so now for purposes of procedural default analysis.¹⁴ In the sixth ground for relief, Spisak asserts that trial counsel essentially committed four types of error during the closing argument of mitigation. These errors are: (1) counsel's depiction of the murders and references to the victim's families; (2) personal references to Spisak that Spisak asserts were demeaning; (3) stating to the jury that the only mitigation they could find was "within themselves"; and (4) referencing various of Spisak's acts as "aggravating circumstances." The court finds that Spisak's sixth ground for relief is not procedurally defaulted as all sub-claims were raised with the Ohio Supreme Court as Proposition of Law LVII. Consequently, the court will subject each sub-claim to a merit review.

14 For efficiency, the court has grouped similar claims together.

The Sixth Circuit's decision in Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), provides some guidance on evaluating a claim that trial counsel provided ineffective assistance by verbally attacking his own client during the trial. There, the court found that Rickman succeeded in showing both that his trial counsel's performance was deficient and that he was prejudiced by the deficient performance when counsel "convey[ed] to the jurors an unmistakable personal antagonism toward Rickman, characterized both by attacks on Rickman and by repeatedly eliciting information detrimental to Rickman's interests." Id. at 1158. For example, rather than attempting to disassociate Rickman from a hand grenade that allegedly belonged to him but was unrelated to the murder for which he was on trial, Rickman's counsel actually elicited testimony from several witnesses in an attempt to link Rickman to the grenade. He even presented one witness to describe Rickman's threats to commit crimes with the grenade, all of which were, again, unrelated to the crime for which he was charged.

In addition, counsel went to considerable effort to portray Rickman as crazed and dangerous. He repeatedly asked one witness if he believed Rickman was "nuts" and ridiculed the witness when he responded in the negative by saying, "You wouldn't know a psychiatric case if you saw one, would you?" Id. (quoting Rickman v. Dutton, 864 F. Supp. 686, 702 (M.D.Tenn. 1994)). He asked Rickman's girlfriend if Rickman ever "'act[ed] like a bull . . . I mean, violent. . . .'" Id. (quoting Rickman, 864 F. Supp. at 702). In response to testimony by one of Rickman's neighbors that he believed Rickman was a gentleman, counsel stated: "'[Nineteen] years in the Marines and you would think that a man that looked like that was a gentleman?'" Id. (quoting Rickman, 864 F. Supp. at 703). The Sixth Circuit believed the following statement by Rickman's counsel during the sentencing phase of the trial best evidenced his patent hostility toward his client:

I know this young woman was put in the trunk of that car. That's no secret. I know that. And I'm not happy about it. No sir, I'm not happy. I'm ashamed. I'm ashamed that we live in such a world. . . . I'm ashamed that this crime has been committed in our community. And I want the family of Debra Groseclose to know that. That I'm ashamed. I'm ashamed that this young woman died in this oven. Mr. Miller, I'm ashamed. I'm ashamed, Mr. Stanton. I don't condone murder. I know criminal defense lawyers suffer from what is called guilt by association. When I go to church Sunday, they are going to waylay me out at the Bellevue Baptist Church. . . .

[T]hat wild man [Rickman] over there with the gloves on — look at him. He's wild as a March hare, right now. He may take off after me in a minute. I don't know. He's crazy. I know he's crazy. Because if he's normal I can only say, thank you, God, I'm abnormal, an [sic] you are abnormal.

Id. at 1159 (quoting Rickman, 864 F. Supp. at 704 n. 9).

In addition to these attacks on his own client, the court found that Rickman's counsel had completely abdicated his duty to provide a defense for Rickman. Counsel assumed there was no defense to the charge of first-degree murder against his client and failed to conduct any investigation. He did not interview any witnesses, conduct any legal research, or obtain any records, including those regarding Rickman's employment, education, or mental health. By his own account, he spent only sixteen hours preparing for Rickman's trial. Indeed, even though counsel claimed that it was his strategy during the sentencing phase to show that Rickman was a "sick boy", he forwent an insanity defense during the guilt phase. Id. at 1157.

Taking into account counsel's "total failure to actively advocate his client's cause with his repeated expressions of contempt for his client", the court found that he was ineffective. In fact, the court found that because counsel's behavior was so outrageous, Rickman was "'[f]unctionally . . . totally denied counsel even though his attorney [was] physically present during the proceedings.'" Id. at 1157 (quoting Rickman, 864 F. Supp. at 701). Therefore, despite the overwhelming evidence of Rickman's guilt, the court determined that counsel's performance dispensed with the need for a separate showing of prejudice under Strickland because "what [counsel] did . . . [was] worse than no representation at all." Id. at 1159.

None of Shaugnessy's conduct of which Spisak complains rises to the level of counsel's conduct in Rickman. Indeed, each of the alleged errors that Spisak asserts Shaugnessy committed during the closing arguments of the mitigation phase can easily be attributed to a trial strategy such that counsel's performance cannot be said to be "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. For example, Shaugnessy's vivid portrayal of the murders and his own expressed sympathy for the victim's families were likely part of a strategy to ingratiate himself with the jury and to blunt the prosecutor's depiction of the murders in his forthcoming closing argument. Given the crimes for which Spisak had been convicted, the jury might have seen Shaugnessy as callous if he had not acknowledged their heinous and brutal nature. Once counsel persuaded the jury that he could identify with their emotions toward Spisak, he could then explain to them that their feelings were misplaced because Spisak suffered from a mental defect.

Shaugnessy's negative references to Spisak were also clearly part of the defense's strategy in mitigation, that is, to show that Spisak's mental defect was a mitigating factor to be considered in determining whether or not he should receive the death penalty. While Shaugnessy called Spisak "sick" and "demented", (Tr. at 2895), and similar adjectives throughout his closing, it is evident from reviewing these references in the context of the entire argument that they were made to support the claim that Spisak suffered from mental problems. Counsel's reference to "Jack the Ripper" likewise fails to support Spisak's claim of ineffective assistance. Although Spisak argues that counsel actually referred to him as Jack the Ripper, it is obvious from a reading of the entire statement at issue that this is not the case: "[E]ven Jack the Ripper didn't spend 24 hours a day strangling ladies in London with silk stockings." (Tr. at 2919). Furthermore, while cross examining the defense's experts, the Prosecutor attempted to undermine their findings that Spisak suffered from a mental defect by asserting that Spisak displayed rational behavior much of the time. Counsel's Jack the Ripper comment was plainly made in response to this assertion.

Next, counsel's statement that the only mitigation the jury could find was "within themselves" was not unreasonable. This statement was made as a preface to counsel's soliloquy on the values of American jurisprudence in which he believed each juror had been steeped. Specifically, after making this statement, counsel argued that:

our country has been founded on [the belief] . . . that you can't commit a sin if you didn't have the ability to intend to do it. . . . And the reason we have this [mitigation] hearing is because we are a humane people. . . . We are different, and that's why our Legislature has put [this mitigating factor, whether, at the time of the committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law], into the statute, because we are a humane people. So if we find a mitigating factor, ladies and gentlemen, it is nothing from within this sick tormented body, it is within ours. It is in the way we grew up, the things that we are proud of. The philosophies that we have, the beliefs that we are willing to stand up and be counted for, and we are different.

(Tr. at 2898 — 2900). Counsel then went on at great length about the testimony from each of the defense's three psychological experts and how such testimony demonstrated that Spisak's mental defect substantially reduced his ability to conform his conduct to the requirements of the law. In other words, there is simply no question that by the end of counsel's closing argument the jury would not have understood that Spisak was relying on his mental defect as a mitigating factor and that, pursuant to the Ohio statute on mitigation, such reliance was proper.

Finally, counsel did not fall below Strickland's standard for professional competence when he used the words "aggravating circumstances" while depicting the murder scenes. This blunder, Spisak asserts, violated the holding in State v. Jenkins, 473 N.E.2d 264, 308 (Ohio 1984), which states that a party may not introduce evidence regarding non-statutory aggravating circumstances. Like Shaugnessy's portrayal of the murder scenes, counsel was likely attempting to preempt the Prosecutor's closing argument, which Shaugnessy knew would focus on the aggravating circumstances at issue. There is nothing in the transcript that would suggest that counsel was attempting to introduce evidence regarding any aggravating circumstances other than the specifications with which Spisak was charged. Moreover, Spisak overlooks the fact that closing argument does not comprise "evidence" that a jury may consider during deliberations. State v. Brown, 679 N.E.2d 361, 371 (Ohio Ct.App. 1996 (citing State v. Turner, 631 N.E.2d 1117, 1120 (Ohio Ct.App. 1993); State v. McWhite, 597 N.E.2d 168, 171 (Ohio Ct.App. 1991). Spisak's jury was so instructed. (Tr. 2354).

From the foregoing, it is apparent that this case is a far cry from Rickman. Whereas the effect of counsel's conduct in Rickman was "to provide Rickman not with a defense counsel, but with a second prosecutor," Rickman, 131 F.3d at 1156, the same cannot be said of Spisak's counsel. Every move Rickman's counsel made had the effect of portraying his client as a "hated and violent freak." Id. at 1160. While counsel in the instant case made sporadic references to Spisak that certainly cast Spisak in a negative light, each such reference was made for a particular purpose. Although it may not have been necessary for counsel to speak negatively about Spisak to establish his defense, Spisak has not overcome the presumption that counsel's attacks on Spisak were part of an overall trial strategy. Moreover, counsel's negative references were flanked by his lengthy argument on the experts' testimony regarding Spisak's mental defect and the effect such defect had on his ability to conform his actions to the requirements of the law. Furthermore, in contrast to Rickman's attorney, who did nothing throughout either the guilt or the sentencing phase to provide his client with a defense, Spisak's counsel elicited testimony from numerous witnesses during the trial, including a number of psychological experts. As counsel's examination of these experts in the mitigation phase demonstrates, he was thoroughly familiar with each of their findings and the bases therefor. Moreover, he objected to numerous questions by the prosecution and made significant attempts to rehabilitate each of the witnesses on re-direct after cross examination.

Even assuming counsel's performance was deficient, Spisak cannot claim that he was prejudiced by counsel's behavior. For the reasons discussed above, the court cannot presume prejudice as did the court in Rickman. Unlike in that case, Spisak was not functionally denied counsel as each of the errors counsel allegedly made can be attributed to a trial strategy. Thus, the court must engage in the customary Strickland prejudice analysis. To ascertain whether counsel's performance prejudiced a criminal proceeding under Strickland, a reviewing court does not speculate whether a different trial strategy might have been more successful, but a court must "focus on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). On review, the court cannot find that any of counsel's alleged errors resulted in a fundamentally unfair proceeding.

Here, there is no question that Spisak committed the murders with which he was charged. Spisak spent a number of days testifying about the gruesome details of each. Therefore, this is not a situation where the verdict was "only weakly supported" and thus more susceptible to influence of counsel error than one which is supported by an overwhelming record. Strickland, 466 U.S. at 696. Moreover, had counsel portrayed Spisak with sympathy, depicting him as a victim of an unhappy childhood and identity crisis, as Spisak now suggests he should have, the jury still would have been well within its province to decide that death was the appropriate sentence. There simply is not a reasonable probability that, absent counsel's alleged errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. See id. at 694. Given the heinous nature of the murders, Spisak's self-admitted lack of remorse, and the totality of evidence, most of which Spisak supplied during his testimony, the court finds that any error counsel may have committed did not prejudice the fairness of Spisak's trial. The Ohio Supreme Court's decision to deny this claim was not unreasonable. Accordingly, Spisak's sixth ground for relief is not well-taken.¹⁵

15 With respect to Spisak's claims regarding counsel's comments that the only mitigation they could find was "within themselves" and his references to various of Spisak's acts as "aggravating circumstances" in particular, the court finds that the court's instructions to the jury on mitigating and aggravating circumstances alleviated any prejudice Spisak might have suffered from these comments. Specifically, after defining both terms, the court listed each of the aggravating circumstances at issue (i.e., the specifications charged in the indictment) and explicitly identified the mitigation circumstance on which Spisak was relying.

b. Tenth Ground for Relief

In Spisak's Tenth Ground for Relief, he asserts trial counsel's ineffectiveness for several acts or omissions during mitigation. Specifically, Spisak asserts that trial counsel erred when they failed to: (1) object to the trial court instructing the jury that it could consider nineteen specifications; (2) assert the statutory mitigating factor that Spisak had no criminal record pursuant to Ohio Rev. Code § 2929.04(B)(5); (3) prepare for the mitigation phase until after Spisak was found guilty; (4) assert Spisak's Nazi beliefs were a rationalization to cloak his personality disorder; (5) obtain records from the gender dysphoria clinic or interview the physicians who treated Spisak when he decided to undergo a sex change operation; (6) present evidence regarding Spisak's gender identification confusion and childhood sexual development; (7) meet with psychiatric and psychological experts before trial, (8) prepare mitigation experts; and, (9) object to the prosecutor's remarks.

The court finds that various sub-claims of Spisak's Tenth Ground for Relief were not raised to the Ohio Supreme Court and, thus, are procedurally defaulted. While sub-claims (3), (7), (8), and (9) were presented on direct appeal as part of Proposition of Law LVII, sub-claims (1), (2), (4), (5), and (6) were not presented on direct appeal although they were contained in the record.¹⁶ Thus, these claims are procedurally defaulted. Even assuming they were not defaulted, the court finds that they are not meritorious.

16 The court notes that Respondent was unable to supply Spisak's post-conviction relief brief in the Return of Writ. Consequently, the court is unable to determine precisely if Spisak raised any of these sub-claims as part of his post-conviction relief petition. The Eighth District Court of Appeals, in its decision denying post-conviction relief, noted that:

A review of the record before this court demonstrate clearly that defendant-appellant's claims of ineffective assistance of counsel have been raised and litigated twice before this court and once before the Ohio Supreme Court. Accordingly, this court will not delve into those claims once more as they are barred by the doctrine of res judicata.

State v. Spisak, Case No. 67229, 1995 WL 229108, at *4 (Ohio Ct.App. April 13, 1995) (citations omitted). The court notes, however, that any claim that could have been raised on direct appeal but was not is unexhausted and would be barred under the Perry rule if raised in the Ohio courts. Consequently, the court deems any claims not raised on direct appeal that were cognizable at that juncture of the proceedings procedurally defaulted.
Spisak does not allege cause and prejudice necessary to excuse the procedural default of these claims.

Sub-claims (1), (2), and (5) are not well-taken because Spisak fails to demonstrate he was prejudiced by counsel's behavior. The court addressed sub-claim (1) as a separate, independent claim, finding that it lacked merit. Thus, Spisak cannot be prejudiced by counsel's inability to object to the trial court's introduction of nineteen specifications.

Second, the court finds that counsel's failure to raise Spisak's lack of prior criminal record as a mitigating factor pursuant to Ohio Rev. Code § 2929.04(B)(5), sub-claim (2), similarly fails. As stated in Strickland, "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming support." Strickland, 466 U.S. at 696. In this case, there is a strong likelihood that the deluge of evidence supporting the aggravating factors would not have been countermanded by Spisak's prior lawful behavior. Moreover, the Ohio Supreme Court considered this mitigating factor in its re-weighing. State v. Spisak, 521 N.E.2d 800, 803-04 (Ohio 1988). Because the court finds the absence of this statutory mitigating factor does not undermine the court's confidence that the proceeding was fair, sub-claim (2) lacks merit.

Finally, the court finds counsel's failure to obtain and present to the jury records from the Gender Dysphoria Clinic of Cleveland Metropolitan General Hospital or interview physicians with whom Spisak met as a result of his inquiries there, sub-claim (5), did not prejudice Spisak. During both the guilt and mitigation phase of trial, counsel introduced evidence that Spisak experienced gender identity confusion. Moreover, while counsel did not consult the records or physicians at the Gender Dysphoria Clinic, Dr. Bertschinger did. During mitigation, Dr. Bertschinger testified that he reviewed the records from the Clinic and utilized them in diagnosing Spisak. Further investigation into Spisak's gender confusion was unnecessary as it was adequately presented to the jury. Further psychiatric testimony would have been cumulative. Consequently, the court finds that sub-claim (5) is not well-taken.

Similarly, the court finds sub-claim (6), that counsel failed to present evidence regarding Spisak's sexual development, lacks merit as it is factually incorrect. As stated above, Dr. Bertschinger testified during mitigation that the records from the Gender Dysphoria Clinic "certainly substantiated Mr. Spisak's statement that he was interested in and pursued a sex change operation." (Tr. 2564.) Moreover, Dr. Bertschinger's testimony regarding Spisak's psychiatric diagnosis was comprised of several reports. One such report was that of Mr. Williger, a social worker with Cuyahoga County Court Psychiatric Clinic. Mr. Williger interviewed members of Spisak's family and gathered information regarding his childhood. It was unnecessary for counsel to duplicate those efforts. Consequently, sub-claim (6) is not well-taken.

Finally, sub-claim (4), that counsel was ineffective for failing to portray Spisak's Nazi beliefs as part of his mental disorder and identity crisis, must fail as it merely represents the hindsight second-guessing that Strickland seeks to avert. During trial, counsel's strategy was to portray Spisak an insane person who felt he was driven by God to kill as part of his Nazi beliefs. While Spisak now would prefer that counsel had presented a strategy that cast him as an individual fraught with identity confusion and mental illness, thus turning to Naziism as a symptom of such, that preference is of no avail. Strickland prohibits this hindsight review of trial strategy. Thus, the court finds this sub-claim lacks merit.

Spisak asserts in his third sub-claim, a non-defaulted claim, that the trial counsel failed to prepare for the mitigation phase of trial prior to the jury's guilt determination. This is contrary to the evidence in the record. Spisak cites Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), cert. denied, 519 U.S. 910 (1996), in which the Sixth Circuit held such unpreparedness in presenting evidence of a defendant's mental history violated the petitioner's Sixth Amendment right to effective assistance of counsel, in support of his position. Several other Sixth Circuit cases have followed this reasoning. See Coleman v. Mitchell, 268 F.3d 417, 449-53 (6th Cir. 2001) (finding counsel acted unreasonably for failing to present evidence of petitioner's horrific childhood, which included physical and psychological abuse); Skaggs v. Parker, 235 F.3d 261, 266-75 (6th Cir. 2000) (holding counsel ineffective for failing to investigate and present mitigating evidence); Groseclose v. Bell, 130 F.3d 1161, 1169-71 (6th Cir. 1997) (finding counsel's failure to develop "any defense theory whatsoever" and failure to present mitigating evidence was constitutionally ineffective); Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) (same).

In other more recent decisions, the Sixth Circuit has clarified its previous holdings, stating that "the cases where this court has granted the writ for failure of counsel to investigate potential mitigating evidence have been limited to those situations in which defense counsel have totally failed to conduct [a mitigation] investigation." Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001). The court distinguished cases in which counsel failed to investigate altogether from those which "do not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation," noting that in the latter, the Strickland presumption of counsel's reasonableness will be hard to overcome. Id. See also Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002) (reversing district court and holding no ineffective assistance of counsel for failing to present mitigation evidence, particularly in light of habeas counsel's inability to demonstrate prejudice); Martin v. Mitchell, 280 F.3d 594 (6th Cir. 2002) (finding counsel not constitutionally ineffective for failing to present mitigating evidence when counsel did present some, albeit non-exhaustive, evidence in mitigation and petitioner failed to demonstrate prejudice); Williams v. Coyle, 260 F.3d 684 (6th Cir. 2001) (same).

Unlike in Glenn, counsel here contemplated the likelihood of a mitigation phase when he initially contacted Dr. Bertschinger, stating that the mitigation hearing "would probably be the 'ball game.'" (Tr. 2656.) More significant is the fact that the mitigation phase began on a Saturday, an unusual practice the trial court noted, so that defense counsel could present the testimony of three experts he had consulted before they went on vacation. (Tr. 2414.) Given the extensive expert testimony provided during mitigation, the court finds that counsel prepared for mitigation prior to the conclusion of the guilt phase. Thus, Spisak's third sub-claim is without merit.

In his seventh sub-claim, Spisak also asserts ineffectiveness because defense counsel never met with Drs. Bertschinger or Markey before trial. This fact is irrelevant, however, because counsel communicated with both experts on several occasions prior to trial and was aware of the their findings. In fact, Dr. Bertschinger testified that an actual face-to-face meeting with counsel was unnecessary and did not affect his contact or diagnosis with Spisak. (Tr. 2698-99.) As such, Spisak cannot now assert he was prejudiced by counsel's failure to meet with either doctor prior to trial. Consequently, the court finds sub-claim (7) is not well-taken.

Spisak also asserts counsel's ineffectiveness because counsel failed to supply Dr. Bertschinger with Dr. Markey's reports. This fact, claims Spisak, is a further indication of counsel's unpreparedness. Once again, however, Spisak fails to demonstrate the prejudice he suffered because of counsel's inaction. Given the fact that three experts testified regarding the state of Spisak's mental health, it is unclear how counsel's omission would have changed the outcome of the proceeding. Accordingly, Spisak's eighth sub-claim is meritless.

Finally, in sub-claim (9), Spisak contends that trial counsel were ineffective for failing to object to the prosecutor's remarks and questions. Specifically, Spisak argues that defense counsel should have objected to the following exchange between the prosecutor and Dr. McPherson:

Q: And everyone to a certain extent has a personality disorder?

A: No, I did not so testify.

Q: Well, I'm asking.

A: No.

Q: How about all the people in the penitentiary here?

A: There is a high proportion of persons in the penitentiary who would be diagnosed as having certain other personality disorders, notably conduct disorder unsocialized or conduct disorder socialized.

Q: And sure, that's what winds them up in the penitentiary. If they do that, if they shoot — if they realized if they go out, rob the guy at McDonald's, shoot him, I'm going to get the electric chair, that's stupid if I do that, if they realize those things beforehand, our police department would be out of business and our penitentiary would be out of people.

A: That would be nice.

(Tr. 2489-90.) Spisak further argues that this interchange somehow suggested to the jury "that non-statutory aggravating circumstances should be considered by the jury." Traverse at 40. The court finds it was not error for trial counsel to fail to object to the above interchange. At that point of the proceeding, the prosecutor was rebutting the defense's assertion that Spisak's personality disorder should, in some capacity, diminish the responsibility he should bear for committing the crimes. The prosecutor was attempting to demonstrate that many individuals who commit crimes suffer from various personality disorders yet society holds them responsible for their actions. This attempt at rebuttal through questioning Dr. McPherson's diagnosis was acceptable in light of defense counsel's assertion. Consequently, it was acceptable for defense counsel not to object to it. The court finds the Ohio Supreme Court's decision to deny these claims on direct appeal was not unreasonable. Thus, Spisak's ninth sub-claim is not well-taken.

3. Prosecutorial Misconduct Claims

In grounds for relief eleven and twelve, Spisak asserts prosecutorial misconduct during the mitigation phase of trial. To successfully assert a prosecutorial misconduct claim in a habeas proceeding it "is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnely v. DeChristoforo, 416 U.S. 637, 642 (1974)). This question must be answered in light of the totality of circumstances in the case. Lundy v. Campbell, 888 F.2d 467, 473 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). The prosecutor's comments must be so egregious as to render the trial fundamentally unfair. Fussell v. Morris, 884 F.2d 579 (6th Cir. 1989) (Table), 1989 WL 100857, at *4 (6th Cir. Sept. 1, 1989).

The Sixth Circuit engages in a two-pronged analysis when determining whether prosecutorial misconduct violated a defendant's due process rights. Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002). As the Macias court stated:

First, we must consider whether the prosecutor's conduct and remarks were improper. If we conclude that the remarks were improper, then we must apply the four-factor test set forth in United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994), to determine "whether the impropriety was flagrant" and thus violated the defendant's due process rights. The four factors are as follows: "(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the evidence against the defendant was strong." United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). Before proceeding to the four factors of the Carroll test, we must first determine whether the prosecutor's statements were improper. Although a prosecutor is allowed "to argue reasonable inferences from the evidence," Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000), he or she is not allowed to misstate the evidence. Carter, 236 F.3d at 784. It is thus "improper for a prosecutor, during closing arguments, to bring to the attention of the jury any purported facts that are not in evidence and are prejudicial." Byrd, 209 F.3d at 535 (internal quotation marks omitted).

Id. at 452 (further citations omitted). Only if the comments were both improper and flagrant will the petitioner be entitled to relief. Thus, a habeas court must review alleged prosecutorial misconduct not to determine the prosecution's culpability, but whether or not, despite any alleged misconduct, the petitioner received a fair trial. Smith v. Phillips, 455 U.S. 209, 219 (1982). Mindful of the above law, the court now turns to Spisak's individual grounds for relief.

a. Eleventh Ground for Relief

In the Eleventh Ground for Relief, Spisak asserts the prosecutor improperly introduced the testimony of Ms. Beverly Murphy, unduly prejudicing Spisak thereby. The court notes that Spisak raised this claim to the Ohio Supreme Court as Proposition of Law L. As such, the court will review the merits of the claim.

Murphy testified as a state rebuttal witness during mitigation. She was a prostitute with whom Spisak had a relationship. The state apparently sought Murphy's testimony to rebut Spisak's portrayal of their relationship as a romantic one. Dr. Bertschinger noted this fact as significant in arriving at his diagnosis because Spisak purportedly held a deep hatred for African-Americans yet maintained a relationship with Murphy, an African-American woman. Defense counsel objected to her testimony on the grounds that it did not rebut the evidence presented during the defense's case-in-chief- that Spisak was mentally ill. After a sidebar conversation, however, the trial court permitted Murphy's testimony.

On the witness stand, Murphy testified that the nature of her relationship with Spisak was "strictly business." When asked whether Spisak was mistaken in his belief that their relationship included anything more, Murphy replied, "Frank is definitely mistaken. Me and Frank never were girlfriends and boyfriends." (Tr. 2814.) On cross-examination, however, defense counsel attempted to demonstrate that a romantic relationship had developed. Although Murphy denied accompanying Spisak to specific places proffered by defense counsel, Murphy admitted that she may have misled Spisak:

Q: All right, and do you ever, do you ever fake [a romantic interest] at all if you got a really rich trick? Do you kind of make him think that you like him and you'd like to be with him . . .?

A: Yes, I do. I like to have the repeat business so quite naturally I would put on an act for them.

Q: Sure. And you put on an act for Frank, didn't you?

A: Yes, I did.

(Tr. 2849.) Thus, Murphy admitted that she simulated affection for Spisak.

Respondent alleges in the Return of Writ, that Murphy's testimony was necessary to counter Dr. Bertschinger's assessment that the seemingly paradoxical relationship with Ms. Murphy evidenced his mental illness. Instead, Respondent alleges, utilizing Murphy's services was yet another method by which Spisak could exploit African-Americans. Spisak correctly notes, however, that on cross-examination the prosecutor questioned Dr. Bertschinger regarding the Spisak-Murphy relationship. Dr. Bertschinger responded that his diagnosis would remain unaltered regardless of the nature of their relationship.¹⁷

17 Specifically, Dr. Bertschinger stated, "Whether he was with a black prostitute or someone that was a black prostitute that he was friendly with, none of that is consistent with the other side, if you will, of his history, do you see, hatred towards blacks." (Tr. 2605.)

Because Dr. Bertschinger's diagnosis would not have changed if Murphy's depiction of her relationship with Spisak were correct, it appears her testimony did not truly rebut Dr. Bertschinger's conclusions. Consequently, the trial court erred when it permitted Murphy to testify. The court will therefore treat this claim as a trial error claim, rather than one of prosecutorial misconduct.

Alleged error in the admission of evidence, standing alone, are not enough to entitle a petitioner to relief pursuant to 28 U.S.C. § 2254. Review of a state court's evidentiary ruling on federal habeas review is very limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir. 1990). As one court stated, "[e]rrors by a state court in the admission of evidence generally are not reviewable by a habeas court 'unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.'" Skaggs v. Parker, 27 F. Supp.2d 952, 985 (W.D.Ky. 1998) (quoting Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994)); see also Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988) (holding "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding") (citations omitted).

The court finds that although the testimony of Beverly Murphy was not particularly relevant to the state's rebuttal case, it was not sufficiently prejudicial to deny Spisak a fair trial. The testimony that both the prosecutor and defense counsel elicited from Murphy tended to establish that Spisak was misled by Murphy's conduct into believing their association extended beyond a business relationship. It is true that this fact has little to do with rebutting the means by which Dr. Bertschinger arrived at his diagnosis. However, whether viewed as irrelevant or rebuttal testimony, Spisak did not suffer prejudice as a result. Because the admission of Murphy's testimony did not deny Spisak the right to a fair trial, the court finds the Ohio Supreme Court's decision to deny this claim was not unreasonable. Thus, this ground for relief is not well-taken.

b. Twelfth Ground for Relief

In the Twelfth Ground for Relief, Spisak asserts numerous instances of prosecutorial misconduct occurring during the mitigation phase prejudiced him. This claim is not procedurally defaulted because Spisak raised it as Proposition of Law XLIX to the Ohio Supreme Court. Thus, the court will address the merits of this claim.

Spisak alleges some instances of prosecutorial misconduct occurred during the prosecutor's cross-examination of Dr. Bertschinger. In an attempt to dispel Dr. Bertschinger's conclusion that Spisak's relationships with African-American women while espousing hatred against African-Americans was a symptom of his mental disease, the prosecutor asked Dr. Bertschinger whether he knew that Spisak wanted to be their pimp. (Tr. 2604.) Additionally, when asking Dr. Bertschinger to recount Spisak's homosexual activity, the prosecutor inquired if Spisak solicited men to engage in sexual encounters with him during the time he was cross-dressing. Dr. Bertschinger responded in the affirmative.

Spisak also contends that the prosecutor prejudiced the mitigation proceeding by referring to Dr. Markey's stricken testimony when re-cross-examining Dr. Bertschinger. Upon questioning Dr. Bertschinger regarding his diagnosis, the prosecutor asked whether the doctor was aware that Dr. Markey initially drafted a report indicating Spisak had diminished capacity to refrain, but testified at trial that Spisak suffered from no mental disease or defect. (Tr. 2653.) Because Dr. Markey's testimony was stricken from the record, Spisak cites this reference to it as prejudicial.

Finally, Spisak lists pages of trial transcript corresponding to the prosecutor's closing argument as prejudicial. Because these page references coordinate with the transcript cites and explanation found in Spisak's brief on direct appeal to the Ohio Supreme Court, the court will assume that Spisak intended to articulate the identical arguments here. Specifically, the prosecutor disparaged the evidence presented by the defense as "insulting" and "mumbo jumbo." (Tr. 2950, 2952.)

Moreover, Spisak alleges that the prosecutor's closing argument disparaged him by referring to him in derogatory terms, insinuating that Spisak lied, and likening him to a "rat" who hid in the basement, seeking to evade police detection. (Tr. 2941, 2955.) Spisak also contends the prosecutor unfairly commented that he would not have plead insanity had Coletta Dartt or John Hardaway been killed, (Tr. 2957), felt no remorse about shooting and injuring John Hardaway, (Tr. 2946), and was unable to support his wife and child. (Tr. 2943.)

As required by the law stated above, the court will analyze Spisak's claims in light of the totality of circumstances in the case. The court concludes that while some prosecutorial comments to which Spisak objects may be repugnant, they did not deny Spisak due process or inject any fundamental unfairness into the trial. The court finds the Ohio Supreme Court acted reasonably in denying this claim. Accordingly, Spisak's twelfth ground for relief is not well-taken.

C. Grounds for Relief Relating to Petitioner's Appeals and Post-Conviction Review 1. Thirteenth Ground For Relief

In his Thirteenth Ground for Relief, Spisak asserts the ineffectiveness of his initial appellate counsel. The court will address this claim on the merits as it was raised to the Ohio Supreme Court as the LXI (61st) Proposition of Law.

As stated above, during Spisak's appeal to the Eighth District Court of Appeals, appointed counsel, who also served as Spisak's trial counsel, raised only one issue: Whether or not the trial court erred by ruling that before an expert doctor could testify before the jury that the expert doctor must have found the defendant-appellant to be "legally insane." On July 30, 1984, the Eighth District affirmed the conviction.

Counsel then filed a timely notice of appeal. Spisak then sued his counsel, which led the Ohio Supreme Court to permit the withdrawal of initial counsel and appoint the Ohio Public Defender to represent Spisak. Upon appointment, the public defenders assigned to the case filed three motions to remand to the Eighth District. The Ohio Supreme Court granted the first two motions to remand and ordered the Court of Appeals to supplement the record, permit Spisak to participate in the review process, and reevaluate its decision based on the supplemented record. After holding two hearings, in which Spisak's new counsel participated, the Eighth District Court of Appeals again affirmed Spisak's convictions. State v. Spisak, No. 82884, slip op. (Ohio Ct.App. May 27, 1986). When Spisak moved for a third remand, however, the Ohio Supreme Court denied the motion. On November 24, 1986, Spisak filed a merit brief with the Ohio Supreme Court raising sixty-four Propositions of Law. After hearing these issues, the Ohio Supreme Court affirmed Spisak's conviction. State v. Spisak, 521 N.E.2d 800 (Ohio 1988).

Spisak now claims he was prejudiced by initial appellate counsel. Specifically, he asserts that initial appellate counsel should have raised the following claims on appeal:

(1) Petitioner was convicted of four separate aggravated murders and nineteen separate aggravating circumstances when only three killings took place.

(2) The Court allowed the jury to consider 19 separate aggravating circumstances without merging them thereby making the sentencing/weighing process totally unreliable.

(3) Trial Court's exclusion of all expert (proffered) testimony on the insanity issue, including the method of excluding the testimony of Dr. Markey in front of the jury.

(4) The Court's refusal to charge on insanity in spite of expert and lay testimony.

(5) Trial Court's exclusion of Petitioner's testimony of his delusional beliefs.

(6) The procedural errors in Petitioner's Motion to Suppress and the subsequent denial of the Motion. Additionally, failure to file a Motion to Suppress regarding the warrantless search of Ronald Reddish's automobile; residence; and Petitioner's property within same.

(7) Prosecutorial misconduct.

(8) The erroneous comments of the Trial Court and the Prosecutor that the jury's death verdict is only a recommendation.

(9) The exclusion of Thomas J. Schmitt from the jury.

(10) The use of Beverly Murphy as a rebuttal witness in the mitigation phase of the trial.

(11) Constitutionality of Ohio's death penalty statutes; statutorily mandated proportionality process.

(12) Failure of the Trial Court to require the presence of Petitioner when jurors were being excused during voir dire.

(13) The Trial Court's order, without the benefit of an evidentiary hearing, that Petitioner appear before the jury shackled and the Trial Court's failure to instruct the jury regarding the Petitioner's shackles.

(14) The Prosecutor's repeated use of witnesses who had no relevant testimony and who were called only for the purpose of evoking sympathy for the victims and their families.

(15) The Prosecutor's repeated use of pictures, testimony and speculation to emphasize the horrible nature of the crimes for purposes of inciting the jury.

(16) The Trial Court's failure to exclude evidence previously ruled inadmissible from the jury room during the jury's deliberations.

(17) The Prosecutor's repeated use of prior acts of Petitioner for purposes of prejudicing and inciting the jury.

(18) The failure of the Trial Court to properly instruct the jury in the mitigation phase.

Petition at 53-54.

A habeas petitioner may base his or her assertion of appellate counsel's ineffective assistance on one of two federal constitutional grounds: first, a petitioner may claim that he or she was actually or constructively denied counsel on appeal, denying his or her Fourteenth Amendment due process right thereby. Second, and more typically, a habeas petitioner may assert that he or she was denied the Sixth Amendment right to effective assistance of counsel. As the court will discuss below, a reviewing court must undertake distinct analyses depending upon the alleged constitutional violation on which a petitioner bases his or her claim. In the instant case, Spisak argues alternatively that he was denied appellate counsel pursuant to a Fourteenth Amendment due process claim, and a Sixth Amendment right to effective assistance of counsel. The court now analyzes both claims distinctly, and finds that both are without merit.

The United States Supreme Court has determined that a criminal defendant has a Fourteenth Amendment due process right to effective assistance of counsel during the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 401 (1985); see also Anders v. California, 386 U.S. 738 (1967) (requiring court to institute prophylactic procedure to safeguard defendant's right to appellate counsel when counsel determines no meritorious issues exist); Douglas v. California, 372 U.S. 353 (1963) (holding indigent defendant entitled to court-appointed counsel on first appeal as of right).

To succeed on a Fourteenth Amendment denial of appellate counsel claim, a petitioner must demonstrate that he or she was actually or constructively denied counsel on appeal. Smith v. Robbins, 528 U.S. 259, 286 (2000). Once a habeas court determines that the petitioner essentially acted without counsel on appeal, the court does not engage in the effective assistance of counsel analysis announced in Strickland v. Washington, supra at 70 or harmless error analysis pursuant to Chapman v. California, 386 U.S. 18 (1967). Instead, a habeas court must presume that prejudice occurred, holding the appellate proceeding constitutionally infirm. Penson v. Ohio, 488 U.S. 75, 88 (1988).

Courts have found such a constitutional violation in limited instances, such as when counsel asked to withdraw or alerted the court that counsel could find no meritorious issues to raise on appeal. See, e.g., Lombard v. Lynaugh, 868 F.2d 1475, 1477 (5th Cir. 1989) (finding denial of effective assistance of appellate counsel when counsel submitted two-page brief to court indicating counsel could find no issues to raise on appeal although several patent trial errors existed); Jenkins v. Coombe, 821 F.2d 158, 159 (2nd Cir. 1987), cert. denied, 484 U.S. 1008 (1988) (holding appellate counsel inadequate when counsel raised only sufficiency of evidence claim in five-page appellate brief). Conversely, when a defendant's appeal is subjected to "meaningful adversarial testing," then the appellate proceeding passes constitutional muster. Carpenter v. Morris, 914 F.2d 255 (TABLE), 1990 WL 126428, at *2 (6th Cir. Aug. 31, 1990).

In Carpenter, the Sixth Circuit held a habeas petitioner's due process right to appellate counsel was not violated although the petitioner retained new counsel in the midst of his first appeal. After initial appellate counsel raised only three issues, petitioner retained counsel who filed a motion for leave to amend the appeal and file a new appellate brief containing ten new issues. The court of appeals denied the motion, but permitted petitioner's new counsel to participate in oral argument. The court of appeals upheld the conviction. Thereafter, new counsel timely filed an appeal to the Ohio Supreme Court containing the three issues initial counsel raised, the ten issues subsequent counsel attempted to raise in appellate court, and one new issue. Id. at *1.

In affirming the District Court's denial of the writ, the Sixth Circuit determined that no due process violation had occurred on appeal. Noting the factual distinctions from Penson v. Ohio, supra, the Sixth Circuit emphasized that the petitioner was represented by counsel at all stages of appeal. Furthermore, the court noted that, "[p]etitioner did not attempt to change attorneys until after the briefing was completed. This request was granted, and the court of appeals invited new counsel to join in the next step of the proceedings, the oral argument. Thus petitioner was not denied the counsel of his choice on appeal." Id. at *2.

The court finds this case factually more akin to Carpenter than to Lombard or Jenkins. Spisak had, at all times, representation on appeal. The public defenders who represented Spisak were able to participate in two oral arguments before the Eighth District and raised sixty-four issues to the Ohio Supreme Court. These circumstances are not analogous to cases in which counsel withdrew, forcing the appellant to proceed pro se. Rather than viewing the petitioner's appeal from the vantage point of Spisak's initial brief filed in the Eighth District Court of Appeals, the court believes it more appropriate to review the appellate process in its entirety when making a Fourteenth Amendment analysis. When doing so, the court cannot find that Spisak's due process rights were violated.

Spisak's claims that his Sixth Amendment right to effective assistance of appellate counsel was infringed is also not well-taken. Respondent contends that any traditional, Strickland claim must fail because Spisak cannot demonstrate prejudice as all claims he asserts initial appellate counsel should have raised were subsequently raised to the Ohio Supreme Court. Spisak counter-claims that, even under a Sixth Amendment, Strickland analysis, this court can presume prejudice, requiring him to demonstrate only that counsel's conduct was objectively unreasonable.

Spisak's assertion is a correct one. The Supreme Court has articulated, and recently revisited the issue of what circumstances dictate a presumption of prejudice. In Smith v. Robbins, 528 U.S. 259 (2000), the Court reiterated the holding under Strickland, that a court may forego a prejudice analysis in only three categories of cases:

First, . . . we presume prejudice in a case of denial of counsel. Second, various kinds of state interference with counsel's assistance can warrant a presumption of prejudice. Third, prejudice is presumed when counsel is burdened by an actual conflict of interest, . . . although in such a case we do require the defendant to show that the conflict adversely affected his counsel's performance.

Id. at 765 (citations and internal quotation marks omitted). In all other instances, the Court stated, "[w]e thus presume that the result of the proceeding on appeal is reliable, and we require [a defendant] to prove the presumption incorrect in his particular case." Id.

Because none of the factors enumerated above were present in Spisak's case, the court must analyze Spisak's claims under a traditional Strickland analysis, requiring Spisak to prove both that counsel acted objectively unreasonable and those actions prejudiced Spisak. Strickland, supra. Applying this analysis to claims of ineffective assistance of appellate counsel, Spisak must show that his appellate counsel's performance was deficient, and that the deficient performance so prejudiced the defense that the appellate proceedings were unfair and the result unreliable. Id. at 687.

An appellant has no constitutional right to have every non-frivolous issue raised on appeal, Jones v. Barnes, 463 U.S. 745, 750-54 (1983), and tactical choices regarding issues to raise on appeal are properly left to the sound professional judgment of counsel. United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990), cert. denied, 498 U.S. 1002 (1990). Moreover, an attorney is not compelled to present an argument on appeal for which there is no good-faith factual support merely to avoid a charge of ineffective assistance of counsel. Krist v. Foltz, 804 F.2d 944, 946-47 (6th Cir. 1986).

To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To satisfy the prejudice prong, the petitioner must show that his or her counsel's errors "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. In the context of ineffective assistance of appellate counsel, a petitioner must demonstrate "that the direct appeal of [those] issue[s] [that appellate counsel did not raise] would likely have been successful." Leggett v. United States, 101 F.3d 702 (TABLE), 1996 WL 665580, at *2 (6th Cir. Nov. 14, 1996).

Spisak's claims clearly fail under the prejudice prong. With the exception of sub-claim (12), all the issues Spisak claims initial counsel should have raised on appeal were considered by this court and found to be without merit. Consequently, Spisak cannot demonstrate, as he must, that he was prejudiced by initial appellate counsel's omissions. Thus, Spisak was not denied a Sixth Amendment right to effective assistance of appellate counsel.

Finally, Spisak claims that the Ohio Supreme Court did not provide him a sufficient review of the claims he asserted to that court. Thus, Spisak argues, the Ohio Supreme Court "did not render harmless trial counsel's ineffectiveness at the initial appellate level." Traverse at 109. Moreover, Spisak contends, he was denied the right to two levels of direct appeal as afforded to him pursuant to Ohio Rev. Code § 2929.05. The court finds these claims are not cognizable in a federal habeas proceeding as they present issues of state law only. 28 U.S.C. § 2254. This court must ensure, as the previously cited law dictates, that Spisak's due process and effective assistance of counsel rights have been protected. As it finds they have been, the court's inquiry ends. Accordingly, the court finds the Ohio Supreme Court did not unreasonably decide this claim and Spisak's thirteenth ground for relief is not well-taken.

2. Fourteenth Ground For Relief

In his fourteenth ground for relief, Spisak contends that trial counsel and the trial court failed to maintain a complete record during each stage of the trial proceeding. Specifically, Spisak alleges the following proceedings contained specified numbers of unrecorded bench or side-bar conferences: (1) thirty-four (34) instances during voir dire; (2) one instance during the competency hearing; (3) three instances during the motion to suppress proceedings; (4) fifty-nine (59) during the guilt phase of trial; and, (5) fifteen (15) during the mitigation phase. The court finds these claims are not procedurally defaulted as they were raised as Propositions of Law IX, XX, XXIII, and XLVIII to the Ohio Supreme Court. Thus, the court will address this claim, in its entirety, on the merits.

Rule 22 of the Ohio Rules of Criminal Procedure requires all proceedings to be recorded in all serious offense cases, and Ohio Appellate Rule 9(A) requires, "[i]n all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means." Ohio App.R. 9(A). When a proceeding has not been preserved, counsel may invoke procedures set forth in Ohio Appellate Rules 9(C) or 9(E) to reconstruct the record. Under Ohio law, an error is considered waived in the absence of an attempt to reconstruct the substance of the remarks and demonstrate prejudice. State v. Jells, 559 N.E.2d 464 (Ohio 1990), cert. denied, 498 U.S. 1111 (1991) (citing United States v. Gallo, 763 F.2d 1504, 1529-32 (6th Cir. 1985), State v. Brewer, 549 N.E.2d 491 (Ohio 1990) cert. denied, 475 U.S. 1017 (1986)).

Upon review of the record, it is clear that Spisak was not denied a fair trial. Lundy v. Campbell, 888 F.2d 467 (6th Cir. 1989). Spisak has failed to set forth any evidence to support a finding that he was denied a fair trial simply because some side-bar conferences were not placed on the record. Other than mere assertion, Spisak does not provide the court with specific information that would support a claim he was prejudiced by the trial court and counsel's failure to make a recording of the bench and side-bar conferences. A mere assertion is not enough to support a finding that the failure to record these conferences resulted in an unfair trial.

Any error by the trial court would have been harmless. Adopting the test in Kotteakos v. United States, 328 U.S. 750 (1946), the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), held that the test for harmless error is whether the error had a "substantial and injurious effect" on the jury's verdict. Thus, a petitioner must establish that the error resulted in "actual prejudice." Brecht, 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 449 (1986)); see also Chapman v. California, 386 U.S. 18 (1967). Spisak has failed to make such a showing of actual prejudice. Consequently, the court finds the Ohio Supreme Court reasonably denied this ground for relief. Thus, Spisak's fourteenth ground for relief is not well-taken.

3. Fifteenth and Sixteenth Grounds For Relief

In his Fifteenth and Sixteenth grounds for relief, Spisak claims that the Eighth District Court of Appeals caused the ineffective assistance of appellate counsel when it refused to hear new counsel's proposed supplemental claims. Additionally, Spisak contends the Ohio Supreme Court infringed on his due process rights when it: (1) summarily denied his claim that the jury was prejudiced by the trial court's charging the jury on nineteen specifications; (2) improperly weighed the mitigating factor of his diminished capacity under the same standard as an insanity defense; and, (3) provided him with an inadequate appellate review. These facts, Spisak argues, entitle him to a presumption of prejudice for which this court should grant relief. The court finds that neither of these claims are procedurally defaulted as they were raised as grounds for relief Fifty-Seven (57) and Fifty-Nine (59) respectively in Spisak's post-conviction relief petition, the earliest point at which Spisak could have raised these claims. As such, the court will conduct a merit review of both claims.

Spisak complains that the appellate review process both caused his new appellate counsel's ineffectiveness and was inadequate, violating due process. As stated in section I., supra, Spisak's first appointed counsel timely appealed his convictions to the Ohio Court of Appeals for the Eighth District, raising only one issue. The Court of Appeals affirmed the conviction after vacating the aggravated murder conviction on the fifth count of the indictment as well as the five specifications attached thereto. State v. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio Ct.App. July 19, 1984).

Thereafter, Spisak received new counsel from the Ohio Public Defender Commission, who filed three motions to remand. The Ohio Supreme Court granted the first two motions to remand and ordered the Court of Appeals to supplement the record, permit Spisak to participate in the review process, and reevaluate its decision based on the supplemented record. The portion of the record missing from the first appeal was the record of Spisak's competency hearing. Once the record was complete, the Ohio Supreme Court remanded the case back to the Eighth District with instructions to the Eighth District "that counsel for Appellant be permitted to participate in the review process as required by the Sixth and Fourteenth Amendments of the United States Constitution." Petition at 61.

On remand, the Eighth District held two hearing on January 3 and February 6, 1986, to comply with the Ohio Supreme Court's order. The Eighth District would not, as Spisak requested, permit counsel to re-brief fully additional issues, stating that an appellant should not be entitled to a new appeal merely because he or she receives new counsel. Notwithstanding this admonition, the Eighth District permitted new counsel to submit a twenty page brief on whether Spisak's sentence was proportional to other capitally sentenced individuals. On May 27, 1986, the Court of Appeals again affirmed Spisak's convictions. State v. Spisak, No. 82884, slip op. (Ohio Ct.App. May 27, 1986).

Thereafter, Spisak moved the Ohio Supreme Court for a third remand, however, the court denied the motion. On November 24, 1986, Spisak filed a merit brief with the Ohio Supreme Court raising sixty-four Propositions of Law. The Ohio Supreme Court affirmed Spisak's conviction in a four-and-a-half page decision on April 13, 1988. State v. Spisak, 521 N.E.2d 800 (Ohio 1988).

As stated in Spisak's thirteenth ground for relief, once a state affords a criminal defendant the right to appellate review, the state court must conduct that proceeding consistent with due process. Evitts v. Lucey, 469 U.S. 387, 401 (1985). The United States Supreme Court has approved death penalty schemes that require "the state supreme court [to review] the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate." See Zant v. Stephens, 462 U.S. 862, 876 (1983) (noting approval of Georgia's capital punishment scheme in Gregg v. Georgia, 428 U.S. 153 (1976)). The purpose of requiring this review is to avoid a capricious imposition of the death penalty in favor of a capital punishment scheme that levies capital punishment in a rational, consistent manner. Barclay v. Florida, 463 U.S. 939, 960 (1983). Thus, the Court has given state courts discretion to implement capital case appellate review so long as the courts are systematic in their approach.

To analyze these claims, the court will examine the appellate process afforded Spisak in state court en total. Initially, the court already has found in Spisak's fifth ground for relief that the trial court committed harmless error when it permitted the jury to consider nineteen specifications when determining its verdict. Thus, this court, independent of the Ohio Supreme Court, concludes that Spisak's due process rights were not violated by the trial court's failure to merge. Furthermore, the court disagrees with Spisak's factual assertion that the Ohio Supreme Court improperly utilized the test for legal insanity when weighing the diminished capacity mitigating factor. Instead, the Ohio Supreme Court in its re-weighing process merely repeated the language contained in the statute relating to mitigating factors.¹⁸

18 That statute provides:

(B) If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt . . . the court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances of the offense, the history, character, and background of the offender, and all of the following factors:

The court also determines that Spisak was provided a constitutionally sound review as both the Eighth District Court of Appeals and the Ohio Supreme Court rendered opinions only after re-weighing Spisak's sentence for proportionality purposes. While Spisak correctly asserts that the Ohio Supreme Court disposed of his claims in summary fashion, this type of review is distinguishable from failure to review. The Ohio Supreme Court disposed of all sixty-four claims, in most instances, with citations to state law, yet it performed its re-weighing function properly and sufficiently articulated its finding as to the appropriateness of the death penalty when it stated:

Of the mitigating factors specified in R.C. 2929.04(B) appellant relied solely on his allegation that he lacked, due to a mental disease or defect, substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the law at the time of committing the offenses. R.C. 2929.04(B)(3). Although there was testimony that appellant had characteristics of borderline and schizotypal personality disorders, the bulk of the testimony, from both defense and rebuttal expert witnesses, established that appellant was sane at the time of the acts, that he could have refrained from committing them, had he so chosen, and that he understood the nature of his acts but elected to carry them out anyway.

Appellant admitted to being the principal offender in three murders and two attempted murders. He did not have a significant history of prior criminal convictions or juvenile adjudications, nor was his age a factor. He was not under duress, coercion or strong provocation at the time of the crimes. His victims neither facilitated nor induced the offenses. Nothing in the nature and circumstances of these deliberate murders tempers the gravity of the offenses. We concur with the jury and lower courts that the balance of these factors lies heavily, and beyond a reasonable doubt, on the side of the aggravating circumstances of which appellant was convicted.

Finally, considering all our prior decisions affirming a sentence of death, appellant's sentence was not arbitrarily, freakishly or capriciously applied, and is not disproportionate to such prior sentences. Although the majority of such decisions involved a single victim, in State v. Brooks, (1986), 25 Ohio St.3d 114, 25 OBR 190, 495 N.E.2d 407, we affirmed a death sentence involving the murder of defendant's three sons. In the case sub judice, the sentence of death was properly imposed upon appellant.

State v. Spisak, 521 N.E.2d at 803-04. The Eighth District Court of Appeals also independently re-weighed the sentence. State v. Spisak, Nos. 47458, 47459, 1084 WL 13992, at *7-8 (Ohio Ct.App. July 19, 1984).

Although it would have been beneficial to the review process to have a more elaborate articulation of the reasons for which the Ohio Supreme Court denied Spisak's substantive claims for relief, a federal habeas court has no ability to mandate such amplification. Coleman v. Thompson, 501 U.S. 722, 739 (1991). Because the Ohio Supreme Court summarily addressed the merits of Spisak's claims, this court does not afford its determination a presumption of correctness. Thereafter, the court has conducted an independent review under the standard required in 28 U.S.C. § 2254(d). Thus, Spisak has benefitted from the Ohio Supreme Court's brevity. Consequently, his argument that his due process rights were violated by the Supreme Court process is not well-taken. Finally, Spisak cites to Swenson v. Bosler, 386 U.S. 258 (1967), for the proposition that a statutory right to appeal is not satisfied when an appellate court independently reviews the trial transcript for error, without benefit of appellate counsel. That case, however, is easily distinguishable. In Swenson, the petitioner had no counsel whatsoever on appeal and was forced to write a pro se appellate brief. While the state court of appeals claimed it independently reviewed the record for trial error, the Supreme Court determined that the benefit of appellate counsel is so substantial, that indigency should not preclude such representation despite the appellate court's assurances. Spisak, however, at no time during the appeal was without counsel. On the contrary, Spisak's counsel presented a noteworthy number of claims to the Ohio Supreme Court for review. Contrary to Spisak's assertions, he received an appellate review that afforded him due process. While not providing sufficient detail to which this court can defer, the Eighth District Court of Appeals and the Ohio Supreme Court provided Spisak with a constitutionally adequate review process. Accordingly, Spisak's fifteenth and sixteenth grounds for relief are not well-taken.

D. Grounds for Relief Relating to Search and Seizure Evidence

In grounds for relief seventeen, eighteen, and nineteen, Spisak contends that items introduced during trial were obtained unlawfully because the police officers who obtained such evidence did so without a warrant. The court finds none of these claims procedurally defaulted. These claims were raised as Propositions of Law XI, XII, and XIII to the Ohio Supreme Court on direct appeal.

Accordingly, the court will address them on the merits.

In his Petition, Spisak alleges that he was a resident of 1367 East 53rd Street on September 4, 1982. On that date, Cleveland Police Sergeant George and other officers received a police radio announcement that someone had discharged a firearm in Spisak's apartment. The officers arrived at Spisak's apartment and knocked on the door. Spisak admitted that he was shooting a gun out the window. Thereafter, Sergeant George demanded to know where the gun was and Spisak pointed to the living room. The officers then entered the apartment and searched it, finding several guns in the apartment.

On September 6, 1982, after acting on an anonymous tip, police arrested Spisak and Ronald Reddish at Reddish's home. The officers conducted a search of Reddish's home and found Spisak's suitcase. Inside the suitcase police found the pager belonging to Timothy Sheehan. Sometime thereafter, the police searched Reddish's 1975 Buick LeSabre.

Before trial, Petitioner's counsel moved to suppress the weapons police found at Spisak's apartment. After hearing testimony from Sergeant George and Spisak, the trial court denied the motion.

1. Seventeenth Ground For Relief

In Spisak's seventeenth ground for relief, he alleges that the weapons police obtained from his apartment on September 2, 1982, were the products of an illegal search and seizure. Respondent correctly asserts in the Return of Writ, however, that this claim is not cognizable in a habeas proceeding pursuant to Stone v. Powell, 428 U.S. 465 (1976).

In Stone, the Supreme Court held that Fourth Amendment search and seizure claims, or claims invoking the exclusionary rule under Mapp v. Ohio, 367 U.S. 643 (1961), are not cognizable in federal habeas proceedings "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim." Stone, 428 U.S. at 482. Noting that the exclusionary rule is not a personal constitutional right but a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect," the Court reasoned that it would be of little effect to exclude such claims on collateral review. Id. at 486 (citations and internal quotation marks omitted).

Because Spisak was afforded a "full and fair review" of this claim by both the trial and Ohio Supreme Court, it falls directly within the purview of claims Stone sought to exclude from habeas review. Consequently, the Ohio Supreme Court correctly determined that Spisak's seventeenth ground for relief is not meritorious.¹⁹

19 The court also notes that Spisak did not reply to Respondent's assertion in the Traverse.

2. Eighteenth and Nineteenth Grounds For Relief

Spisak asserts that evidence obtained in Reddish's apartment and automobile also violated his Fourth Amendment rights. Spisak asserts these claims elude the scope of Stone as they are asserted as ineffective assistance of counsel claims for failing to move to suppress this evidence; and further, that introduction of this evidence should be considered with other cumulative error claims pursuant to the Fourteenth Amendment right to due process.

Indeed, the Supreme Court has placed limits on the scope of Stone's Fourth Amendment claim prohibition. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Court determined that the prohibition against asserting Fourth Amendment claims in a habeas proceeding does not preclude a petitioner from asserting a Sixth Amendment ineffective assistance of counsel claim for failing to raise such a claim in state court. Similarly, in Jackson v. Virginia, 443 U.S. 307 (1979), the Court determined that a petitioner may assert a Fourteenth Amendment due process claim even if that claim is based on a Fourth Amendment search and seizure issue.

In the instant case, however, such assertions lack merit. First, as stated above, to prove an ineffective assistance of counsel claim a habeas petitioner must demonstrate both that counsel's errors were so egregious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that he or she was prejudiced by counsel's errors. Strickland v. Washington, 466 U.S. at 687. In the instant case, Spisak cannot show that he was prejudiced by the admission of any evidence during trial. Spisak admitted to the murders during his trial testimony. Thus, the exclusion of evidence obtained in Reddish's home or automobile would not have effected the trial's outcome. Spisak cannot claim, consequently, that his counsel was ineffective for raising such issues.

Spisak has not demonstrated that counsel's failure to file a motion to suppress was objectively unreasonable. At the time of Spisak's trial, the Supreme Court had determined that:

'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.'

Alderman v. United States, 394 U.S. 165, 173 (1969) (quoting Jones v. United States, 362 U.S. 257, 261 (1960)).²⁰

20 Although the Supreme Court later decided in Minnesota v. Olson, 495 U.S. 91 (1990), that a criminal defendant has standing to assert a Fourth Amendment search and seizure claim if he or she is an overnight guest, this case is inapplicable. While Spisak implies in the Petition that he had obtained overnight guest status at the time police discovered him, he admitted during trial that he had not moved from his 53rd Street residence. (Tr. 27.) Thus, he was not an overnight guest and had no standing to object to the introduction of the items seized. See United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000) (holding co-defendant did not possess standing to assert Fourth Amendment claim when he had never before visited the premises); United States v. Hiles, 908 F.3d 974 (TABLE), 1990 WL 106174, at *3 (6th Cir. July 27, 1990) (distinguishing Olson even when defendants had entry access to apartment in which search conducted because defendants exercised no "dominion or control" over premises at time of search). See also State v. Williams, 652 N.E.2d 721, 733 (Ohio 1995) (determining defendant had no "reasonable expectation of privacy" in apartment belonging to another individual although he placed some personal items on premises).

Spisak fails to articulate clearly which interest he had in Reddish's automobile and the precise evidence which was seized from it. In his Petition, Spisak merely asserts that "[t]he seizure and search of the 1975 Buick LeSabre in which Petitioner claimed an interest was illegal." Petition at 72. Spisak fails to provide the court with essential facts, such as what items belonging to Spisak police procured during the search and which items were introduced during trial. A criminal defendant has no standing to bring a Fourth Amendment claim pursuant to an automobile search without demonstrating that he or she was the owner of the automobile or property within it. Rakas v. Illinois, 439 U.S. 128 (1979). Because Spisak fails to articulate how counsel's failure to file a motion to suppress these items was unreasonable, this claim also must fail.

As neither claim is meritorious, Spisak also cannot demonstrate that he was denied due process as a result of cumulative error. The Ohio Supreme Court was not unreasonable in denying these claims. Accordingly, Spisak's eighteenth and nineteenth grounds for relief are not well-taken.

E. Grounds for Relief Relating to "Other Acts" Evidence 1. Admission of Evidence

In grounds for relief twenty, twenty-one, and twenty-two, Spisak alleges his Fourteenth Amendment right to due process and a fundamentally fair trial were infringed by the trial court's decision to admit evidence Spisak claims was irrelevant to the state's case. The court finds none of these claims procedurally defaulted as they were raised to the Ohio Supreme Court as Propositions of Law XXXIX, XL, XLI, and XLVII. As such, the court will address these claims on their merits.

As stated above, alleged errors in the admission of evidence, standing alone, are not enough to entitle a habeas petitioner to relief pursuant to 28 U.S.C. § 2254. Review of a state court's evidentiary ruling on federal habeas review is very limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir. 1990). As one court stated, "[e]rrors by a state court in the admission of evidence generally are not reviewable by a habeas court 'unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.'" Skaggs v. Parker, 27 F. Supp.2d 952, 985 (W.D.Ky. 1998) (quoting Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994)); see also Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988) (holding "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding") (citations omitted).

"To determine whether the admission of certain evidence violated the defendant's constitutional right to a fair trial, the habeas court must first determine whether the evidence is relevant or probative of an issue on which the prosecution bears the burden of proof." Id. (citing Estelle v. McGuire, 502 U.S. 62, 69-70 (1991)). If the court concludes that the evidence was relevant to an essential element of the state's case, its inquiry is over; by definition, there has been no due process violation. Id. A federal habeas court cannot vacate a state court judgment merely because it would have concluded differently. Lundy v. Campbell, 888 F.2d 467, 470 (6th Cir. 1989).

Mindful of the above deference with which this court must review the trial court's evidentiary rulings, the court now turns to Spisak's individual grounds for relief.

a. Grounds For Relief Twenty and Twenty-One

In the above grounds for relief, Spisak claims the trial court erred when it admitted numerous items into evidence that he argues were unrelated to the crimes with which he was charged. First, the police seized, and the prosecution introduced, firearms that Spisak owned but were not used to commit any of the crimes.²¹ Additionally, Spisak objects to the state's introduction of Nazi paraphernalia and related evidence.²²

21 Spisak contends that the following firearms and firearm-related material was introduced into evidence though unrelated to the crimes with which he was charged: (1) Erma Excam gun; (2) Shotgun; (3) parts of a gun; (4) loaded shotgun; (5) .22 caliber 14 semi-automatic sturm ruger; (6) Glenfield Model 60, .22 caliber semi-automatic rifle, loaded; (7) Colt .45 semi-automatic pistol; (8) ammunition; (9) Schematic drawing of Erma Excam Automatic pistol; (10) Copy of magazine article with test Reports of the Erma Excam; and, (11) replica of German semi-automatic pistol. Petition at 74-75.

22 Spisak alleges he was denied a fair trial because of the introduction of the following evidence: (1) Anarchist Cookbook; (2) Adolf Hitler Book; (3) Nazi Flag; (4) Harley Davidson wallet with Hell's Angel's Emblem; (5) Welfare Card; and, (6) suitcase containing items of clothing with swastika and cross armband with Nazi emblem. Petition at 76.

The court finds that the trial court did not violate Spisak's Fourteenth Amendment right to a fair trial by allowing the introduction of such evidence. Both types of evidence support facts that the state sought to prove — that these murders were precalculated and motivated by Spisak's white supremacist beliefs. Because the court finds the admission of such evidence probative, the Ohio Supreme Court was not unreasonable in denying this claim. Thus, Spisak's twentieth and twenty-first grounds for relief are not well-taken.

b. Twenty-Second Ground For Relief

In this ground for relief, Spisak argues that various uncharged acts of violence, such as thoughts about killing his wife, daughter, and wife's family as well as killing an African-American woman in an elevator and threatening to kill a Jewish attorney, were improperly admitted. However, the court finds the admission of this evidence did not affect Spisak's right to a fair trial.

During trial, the prosecution introduced evidence that Spisak had pointed a loaded gun at his ex-wife's head, had cocked the gun, but refrained from pulling the trigger. Spisak also had been involved in an altercation with his ex-wife's father. Finally, the state called Officer Timothy Patton, who testified about statements Spisak had made to police after arrested. Officer Patton testified that one evening, while on the Cleveland State University campus, a meeting was taking place to discuss the killings. Spisak told Patton that a security officer asked Spisak to exit the area, for security purposes, where Cleveland State officials were meeting. Officer Patton testified that Spisak indicated that at that point, he decided to kill an African-American woman on an elevator near the meeting so that the officials would be confronted with her body after the meeting. His plans were interrupted, however, when a white person boarded the elevator on a subsequent stop (Tr. 1160-61). The state proffered the above evidence because each of these incidents occurred between the dates of the Rickerson and Warford murders. By introducing instances in which Spisak contemplated murder yet was able to refrain, the state was attempting to demonstrate that, contrary to Spisak's allegations, he was able to quell his urge towards violence when he desired. Thus, this evidence tended to rebut Spisak's insanity plea.

Spisak also argues that because defense counsel did not object to these claims, the court should consider this as part of Spisak's ineffective assistance of counsel claims. This argument is not well-taken. Defense counsel's failure to object to the introduction of this evidence during trial was not objectively unreasonable pursuant to Strickland, supra, because it was relevant to the state's case. Thus, the court finds Spisak's twenty-second claim was not unreasonably decided by the Ohio Supreme Court and not well-taken.

2. Prosecutorial Misconduct

In his twenty-third, twenty-fourth, and twenty-fifth grounds for relief, Spisak asserts he was denied the Fourteenth Amendment right to a fair trial because of prosecutorial misconduct. None of these claims are procedurally defaulted as they were raised as Propositions of Law II, XLV, and XLVI respectively to the Ohio Supreme Court. Although the court will address the factual background of each claim individually, the court notes that each claim is governed by the identical law.

As stated earlier, to successfully assert a prosecutorial misconduct claim in a habeas proceeding it "is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnely v. DeChristoforo, 416 U.S. 637, 642 (1974)). This question must be answered in light of the totality of circumstances in the case. Lundy v. Campbell, 888 F.2d 467, 473 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). The prosecutor's comments must be so egregious as to render the trial fundamentally unfair. Fussell v. Morris, 884 F.2d 579 (6th Cir. 1989) (Table), 1989 WL 100857, at *4 (6th Cir. Sept. 1, 1989).

The Sixth Circuit has utilized a four-part test to determine whether the prosecutor's conduct is egregious: A court should consider: (1) the degree to which the remarks complained of have a tendency to mislead the jury and prejudice the accused; (2)whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the competent proofs introduced to establish the guilt of the accused. Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002). Prosecutors must have considerable latitude in presenting arguments to the jury and reversal should not occur even though the prosecutor's conduct was inappropriate unless prejudicial error is present. Id. Mindful of the above law, the court now turns to Spisak's individual grounds for relief.

a. Twenty-Third Ground For Relief

In his twenty-third ground for relief, Spisak asserts that the prosecutor unfairly cross-examined him about "other acts" unrelated to the crimes charged.²³ Subjecting these remarks cumulatively to the Heinish test, the court finds that they do not transgress the bounds of fairness. Indeed, Spisak introduced the very topics which were the subject of the cross-examination to which he objects. Spisak introduced evidence regarding his sexual behavior, Spisak introduced such evidence to demonstrate that his identity crisis, and subsequent drive to suppress his sexual orientation by affiliating with the White People's Party, was one factor indicating his insanity. Similarly, Spisak raised the issue of his political and religious beliefs in an effort to show that God intended that he kill African-Americans. Because Spisak raised these issues, he cannot cry foul when the prosecutor subjects them to cross-examination.

23 Specifically, Spisak complains that the prosecutor unfairly raised the following topics during cross-examination: (1) that Spisak was a pimp; (2) Spisak's bizarre religious and political beliefs; (3) Spisak's receipt of public assistance; (4) Spisak's failure to support his family; (5) Spisak's homosexuality; (6) Spisak was a male prostitute; (7) Spisak could not sexually satisfy his wife; (8) Spisak's assaultive actions against his wife; and, (9) Spisak was a coward. Petition at 78.

Other remarks, such as the prosecutor's remarks that Spisak was a coward, may be objectionable and of little probative value, but those remarks were isolated and not cumulatively prejudicial. Finally, the strength of the evidence on which Spisak was convicted, such as his confessions to the crimes and the painstaking details he gave as to his motivation, diminish the prejudicial effect of any unnecessary remarks. Accordingly, the court finds that the Ohio Supreme Court's decision on this claim was not unreasonable. As such, Spisak's twenty-third ground for relief is without merit.

b. Twenty-Fourth Ground For Relief

In his twenty-fourth ground for relief, Spisak contends the prosecutor provided unsworn testimony and permitted a witness to do the same. While attempting to impeach Spisak, the prosecutor questioned him regarding an alleged high school incident in which a white female classmate was dating an African-American male. The prosecutor's purpose for this line of questioning was to attempt to demonstrate that Spisak's Nazi beliefs were longstanding, and not the product of mental illness:

Q: During high school, then, there was an incident, was there not, where one of the girls had a black boyfriend?

A: I don't remember that.

Q: You don't remember?

A: As I said, there were no black people out there where I went to school.

Q: Do you remember . . . that you were in high school and a young girl had a black boyfriend and you told her not to ever bring that man back?

A: That incident never happened. That was manufactured by the news media people for propaganda purposes.

(Tr. 1579-80.) In an effort to impeach this testimony, the prosecutor brought the woman with whom the alleged incident occurred and asked her to stand in the courtroom:

Q: Mr. Frank Spisak, do you recognize that young lady wearing the glasses as Marrianne Lewandowski?

Marrianne Nemerosky: Marrianne Nemerovsky. N-e-m-e-r-o-v-s-k-y.

Q: I'm sorry. Marrianne Nemerovsky, do you recognize this lady as the young lady you went to Midpark High School with and graduated from?

Mr. Shaughnessy: I object to the lady testifying without being sworn, your honor.

A: I never saw her before in my life.

The Court: Okay. Put another question and go to another subject.

(Tr. 1824.)

The court cannot find that the above dialogue constitutes "unsworn testimony" by the prosecutor or Ms. Nemerovsky that would in any way prejudice Spisak. The prosecutor's attempt to impeach Spisak's testimony, albeit unsuccessful, did not mislead the jury. Moreover, the trial court swiftly interceded before Ms. Nemerovsky could do more than correct the pronunciation of her name. Thus, while Spisak may object to her testimony, he cannot claim that he was prejudiced thereby. Because the court finds that this incident is not an infringement on Spisak's right to a fair trial, the court also finds the Ohio Supreme Court did not unreasonably decide this claim. As such, Spisak's twenty-fourth ground for relief is not well-taken.

c. Twenty-Fifth Ground For Relief

In this ground for relief, Spisak cites numerous pages of transcript for the proposition that the prosecutor improperly "testified" regarding Spisak's religious and political beliefs. The court disagrees with this characterization. A review of these pages reveals numerous instances in which the prosecutor questioned Spisak's religious and political beliefs — ideals that Spisak put into issue when asserting his insanity defense. Nothing in the nature of these remarks, once again, could be characterized as "testimony" from the prosecution. Rather, the questions that the prosecutor asked Spisak were part of a rigorous cross-examination. Certainly there were instances in which the defense counsel objected, and the court sustained, some of the state's questions. At no point in the cited transcript, however, can the court conclude that such cross-examination was the equivalent of "unsworn testimony." Thus, the Ohio Supreme Court properly denied this claim and this court finds it is not well-taken.

F. Grounds for Relief Relating to Admission of Exhibits Into Evidence 1. Twenty-Sixth Ground For Relief

In his twenty-sixth ground for relief, Spisak contends that the trial court, after first excluding without comment some of the state's proffered evidence, permitted such evidence to reach the jury during deliberations.²⁴ The court finds that this claim is not procedurally defaulted as it was raised as the XXXIII (33rd) Proposition of Law to the Ohio Supreme Court. Accordingly, the court will address this claim on the merits.

24 Spisak lists the following items as excluded during trial yet submitted to the jury as it began deliberations:
(1) three coroner's photographs of Reverend Rickerson
(2) four crime seen photographs of Reverend Rickerson
(3) Sheehan family photograph
(4) Statement of Betty Braun
(5) two photographs of Mr. Warford
(6) booking slip for Spisak Petition at 82-83.

Respondent does not dispute the veracity of Spisak's factual allegations. Instead, Respondent asserts that any error occurring from the submission of this evidence to the jury was harmless. The court agrees. The United States Supreme Court has determined that not all error, including constitutional error, necessitates conviction reversal. Rose v. Clark, 478 U.S. 570, 576 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). The Court has differentiated between cases in which "structural" defects occurred, undermining a reviewing court's confidence in the outcome of the proceeding, and those in which trial error occurred, but the constitutional integrity of the proceeding remained intact. Neder v. United States, 527 U.S. 1, 8 (1999). In Neder, the Court determined that the trial court's omission of a jury instruction on an element of the offense was subject to a harmless error test. Id. at 15. The Neder defendant was indicted for tax violation offenses which required a false statement as a material element of the crime. Id. at 6. The trial court incorrectly instructed the jury that it need not consider materiality to reach its verdict, believing the issue of materiality was a matter for judicial determination. Id.

The Court concluded that this error should be subject to a harmless error analysis. The Court opined that most constitutional errors can be reviewed under the harmless error test, with only a limited class of cases involving constitutional error rising to a level of "structural" defect. Id. at 8. See, e.g., Waller v. Georgia, 467 U.S. 39 (1984) (denial of public trial); McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased judge presided at trial).

The test for determining if harmless error occurred during trial requires a reviewing court to ascertain whether the "error had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (internal quotation marks omitted). When a reviewing court is in "grave doubt" or equipoise about whether the error affected the jury's verdict, the court must conclude that the error did affect it. O'Neal v. McAninch, 513 U.S. 432, 435 (1995).

First, the court determines that although the trial court improperly permitted some excluded evidence to reach the jury, this error cannot be classified "structural" error. When undertaking a factual comparison between the error occurring in the above-cited cases, such as a complete denial of counsel or self-representation, the court finds that permitting the jury access to the excluded evidence does not rise to that level of error. Thus, the court will subject the trial court's error to a harmless error test.

In doing so, the court finds the introduction of the above-listed items was harmless beyond a reasonable doubt. Spisak admitted in several days of testimony that he committed three murders and attempted two others. Thus, the issue of his guilt was not in question. The jury was not asked to determine who had committed these acts, but whether these acts were committed by one who is insane and should therefore escape criminal liability. The court is, therefore, hard-pressed to find harmful error in the fact that the jury may have viewed some photographs and other evidence tending to depict these acts. Spisak argues, however, that the prejudicial effect of providing access to these items was not merely confined to the guilt phase, but had a "carry-over" effect to the penalty phase of trial. The court disagrees. The jury is presumed to follow the trial court's instructions. Greer v. Miller, 483 U.S. 756, 767 n. 8 (1987); Holmes v. City of Massillon, Ohio, 78 F.3d 1041 (6th Cir. 1996), cert. denied, 519 U.S. 935 (1996). The trial court properly instructed the jury regarding aggravating circumstances and mitigating factors. Spisak's bare allegations that the jury was unable to follow this instruction is not supported by any evidence. The Ohio Supreme Court reasonably denied this claim. Thus, Spisak's twenty-sixth ground for relief is not well-taken.

2. Twenty-Seventh Ground For Relief

In the twenty-seventh ground for relief, Spisak asserts that the trial court improperly admitted gruesome photographs of the victims contrary to the Fifth, Sixth, Eighth and Fourteenth Amendments. This claim is not procedurally defaulted as it was raised as Proposition of Law XXXII on direct appeal to the Ohio Supreme Court. Thus, the court will address the merits of the claim.

In this ground for relief, Spisak alleges that multiple photographs introduced during trial were unduly prejudicial, thereby denying him the right to a fair trial. Specifically, Spisak alleges that the trial court should have excluded the following photographs:

(1) Five coroner's photographs of Reverend Rickerson

(2) Five photographs of Reverend Rickerson at Cleveland State University

(3) Fifteen photographs of Reverend Rickerson's clothing

(4) Two photographs of Mr. Hardaway at the crime scene

(5) Three coroner's photographs of Mr. Sheehan

(6) Fourteen photographs of Mr. Sheehan's clothing

(7) Eleven photographs of Mr. Sheehan at Cleveland State University

(8) Fifteen photographs of Mr. Warford at the crime scene

Petition at 84-85.

As the court stated previously, admission of evidence is a matter of state law and alleged error, such as improper admission of evidence, usually does not support a writ of habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67 (1991). A state law violation, however, may rise to the level of a due process violation if it created a serious risk of convicting an innocent person. Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir. 1996). A federal court must defer to the state court's interpretation of its own rules of evidence and procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). A federal court does not act an as an additional court of appeals to review a state court's interpretation of its own laws. Id.

The admission of the photographs Spisak alleges are prejudicial was within the sound discretion of the trial court. Admission of gruesome photographs in a murder case typically does not justify collateral relief, even if cumulative and likely to inflame the jury. Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997), cert. denied, 523 U.S. 1032 (1998). There is no evidence in this case, other than Spisak's mere allegation, that the introduction of the photographs violated his right to a fair trial. The Ohio Supreme Court correctly denied this claim on direct appeal. Thus, the court finds Spisak's twenty-seventh claim is without merit.

G. Grounds for Relief Relating to Fair Trial Issues 1. Twenty-Eighth Ground For Relief

Spisak asserts in his twenty-eighth ground for relief that the prosecutor improperly impeached him during trial by commenting on his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976). The court notes that this claim was raised as Proposition of Law XLIV to the Ohio Supreme Court and, thus, is not procedurally defaulted. Accordingly, the court will address the claim on the merits.

During the prosecutor's cross-examination of Spisak, he made the following comments regarding Spisak's initial unwillingness to communicate with police:

Q: You went to jail and the detective talked to you and, of course, George Rockwell, or whatever his name is, was killed by, I suppose, another patriot in 1967, and he tells you don't talk to the police.

A: That's right.

Q: And that's initially what you didn't do, you didn't talk to the police initially?

A: Initially.

Q: Right. Then once you got your story straight in your mind what you wanted to tell them —

Mr. Shaughnessy: Objection.

The Court: Overruled.

Q: You began to talk to the police?

A: I made the decision to talk at some point in time, yes.

(Tr. 1712.)

In Doyle, the Supreme Court determined that implicit in a defendant's post-arrest right to silence articulated in Miranda v. Arizona, 384 U.S. 436 (1966), is a right not to be penalized for exercising those rights by the prosecutor's attempt to impeach. Doyle, 426 U.S. at 618. In Brecht v. Abrahamson, 507 U.S. 619 (1993), however, the Court determined that to obtain habeas corpus relief for a Doyle violation, the petitioner must demonstrate that the prosecutor's comment "'had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The Court went on to clarify that while a habeas petitioner is entitled to "plenary review of their constitutional claims, they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice." Id. (citation and internal quotation marks omitted).

Under the Brecht standard, Spisak's claim must fail. During trial, Spisak admitted to three murders and two attempted murders. Thus, any testimony elicited from him in violation of his post-arrest right to silence must be considered in the context of his other testimony. Consequently, Spisak cannot now claim he was prejudiced by the prosecutor's comments. The Ohio Supreme Court reasonably found this claim to be without merit and, after independent review, this court finds similarly.

2. Twenty-Ninth Ground For Relief

In his twenty-ninth ground for relief, Spisak contends that the jury was misled regarding its responsibility to determine a sentence as both the prosecutor and trial court indicated that it was only a "recommendation." The court finds this claim is not procedurally defaulted as Spisak raised this issue to the Ohio Supreme Court as Proposition of Law XIV. Therefore, the court will address the merits of the claim.

In this claim, Spisak asserts there were several instances during voir dire, and in the trial court's mitigation phase instructions to the jury, in which the jurors were told that by the prosecutor their verdict would only be a recommendation to the court. While the court will not repeat each instance here, the court will cite some of this language for purposes of illustration:

Q: Now, do you understand that what happens in a case such as this if the evidence is there, that's what you would do, you would make a determination whether you should recommend to the Judge that the death sentence be imposed; do you follow me?

A: Okay.

Q: And if you as a juror recommend this sentence, then the Judge can either accept that recommendation or he can reject it, all right?

A: Okay.

* * *

Q: So if you recommend the death sentence, that does not automatically mean he is going to get the death sentence, it means that Judge Sweeney has to consider it.

(Voir Dire Tr. 293-94.)

The Supreme Court held in Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe . . ., that the responsibility for determining the appropriateness of the defendant's death rests elsewhere."²⁵ To establish a Caldwell violation, the defendant must show that the trial judge improperly described the jury's role under state law in order to dilute its responsibility. Mapes v. Coyle, 171 F.3d 408, 415 (6th Cir. 1999) (citing Kordenbrook v. Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1990)).

25 The court notes that the Supreme Court also determined that Caldwell announced a "new rule" and thus a habeas petitioner cannot claim relief pursuant to Caldwell if his or her conviction became final prior to Caldwell. Sawyer v. Smith, 497 U.S. 227 (1990). Spisak's conviction became final in 1989, when the Supreme Court denied certiorari. Spisak v. Ohio, 489 U.S. 1071 (1989). Because Caldwell was decided in 1985, Spisak is not barred from pursuing this claim.

Ohio law provides:

Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the report submitted pursuant to division (D)(1) of this section, the trial jury . . . shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to [one of two terms of life imprisonment] . . .

If the trial jury recommends that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment, the court shall impose the sentence recommended by the jury upon the offender. If the trial jury recommends that the sentence of death be imposed upon the offender, the courts shall proceed to impose sentence pursuant to division (D)(3) of this section.

Ohio Rev. Code § 2929.03(D)(2). Division (D)(3) requires the trial judge to weigh independently the aggravating circumstances and mitigating factors, and impose the death penalty if the aggravating circumstances outweigh the mitigating factors.

In Caldwell v. Mississippi, 472 U.S. 320, 328-329 (1985), the Supreme Court held that, "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." In rejecting a similar claim to that brought by Spisak, the Sixth Circuit in Buell v. Mitchell, 274 F.3d 337, 352 (6th Cir. 2001), held that "[i]t is an accurate statement of Ohio law for a trial judge to instruct a jury that their finding that a death sentence is warranted is a recommendation. It is specifically stated in Ohio Rev. Code § 2929.03(D)(2) that if the jury unanimously finds that aggravating circumstances outweigh mitigating factors 'the trial jury shall recommend to the court that the sentence of death be imposed on the offender.'" Accordingly, Spisak cannot argue that the prosecutor or trial court incorrectly described Ohio law. On direct appeal, the Ohio Supreme Court acted reasonably when denying this claim. Thus, Spisak's twenty-ninth ground for relief is not well-taken.

3. Thirtieth Ground For Relief

Spisak argues in his thirtieth ground for relief that the trial court improperly excluded potential juror Thomas J. Schmitt during voir dire because he voiced some opposition to the death penalty. The court finds this claim was properly raised to the Ohio Supreme Court as Proposition of Law XV. Thus, the court will address the merits of the claim.

In Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968), the Supreme Court invalidated a capital sentence when the trial court excused all jurors who expressed a conscientious objection to the death penalty. The Court reasoned that the proper inquiry was not whether a prospective juror opposed the death penalty generally, but whether the juror's religious, moral or philosophical beliefs would prevent him or her from following the court's instructions. Id. at 514 n. 7 ("[E]ven a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the laws of the State.").

The Court revisited this issue after lower court confusion about how to apply the Witherspoon standard, determining:

[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

Adams v. Texas, 448 U.S. 38, 45 (1980); see also Wainwright v. Witt, 469 U.S. 412, 424 (1985) (affirming Adams standard). Given the subjective nature of any such determination, the Court cautioned that "deference must be paid to the trial judge who sees and hears the juror." Witt, 469 U.S. at 426.

During voir dire, the prosecutor questioned Mr. Schmitt regarding his views on capital punishment. After a lengthy discourse, the prosecutor questioned Mr. Schmitt as to whether he could follow the dictates of the law:

Q: But if you are firmly convinced in your own mind you will fairly consider the imposition of death and will recommend it if it is proper in this case, you will tell us that, too, won't you?

A: Well, I don't think I can ever say that anyone deserves the death penalty no matter what they have done.

Q: So what you are saying if I understand you correctly, and don't let me put words in your mouth — regardless of what the evidence is, it doesn't make any difference, I mean it doesn't make any difference what the evidence is, is that what you are saying?

A: Well, in a way.

Q: And you are also saying under no circumstances could you put your religious morals and philosophical beliefs aside and recommend to this Court the defendant be put to death, right?

A: I don't think I can do that.

(V.D. Tr. 258-59.) Although defense counsel attempted to demonstrate that Mr. Schmitt could, indeed, follow the dictates of the law, the trial court ultimately excused Mr. Schmitt from the case.

Spisak argues that Mr. Schmitt's determination in response to defense counsel's questioning that he could follow the law is proof that he was improperly excused. The court disagrees. While Mr. Schmitt did affirmatively respond that he could follow the law, he also responded ambiguously to defense counsel's questions as to whether he could ever impose the death penalty. Coupled with the responses Mr. Schmitt provided to the prosecutor and the deference with which a habeas court must give to the trial court, the court finds that Mr. Schmitt was not improperly excused from juror service. The Ohio Supreme Court did not act unreasonably when it denied this claim. Accordingly, Spisak's thirtieth ground for relief is not well-taken.

H. Ground for Relief Relating to Bias and Sympathy

Thirty-First Ground For Relief

In his thirty-first ground for relief, Spisak contends he was denied due process when the trial court permitted the testimony of three state witnesses: (1) Clem Sharkey; (2) John Hardaway; and, (3) Kathleen Sheehan. The court notes this claim is not procedurally defaulted because Spisak raised it as Propositions of Law XXIV, XXV, and XXVI to the Ohio Supreme Court.

As stated above, a habeas court cannot grant relief solely on the basis of error in the admission of evidence. Review of a state court's evidentiary ruling on federal habeas review is very limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir. 1990). As one court stated, "[e]rrors by a state court in the admission of evidence generally are not reviewable by a habeas court 'unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.'" Skaggs v. Parker, 27 F. Supp.2d 952, 985 (W.D.Ky. 1998) (quoting Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994)); see also Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988) (holding "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding") (citations omitted).

In this claim, Spisak maintains that the introduction of the testimony of Clem Sharkey, John Hardaway, and Kathleen Sheehan was irrelevant and served only to arouse the sympathy of the jurors prejudicing Spisak. While the court finds that some testimony was superfluous, most was relevant to the proceeding. Clem Sharkey, a friend and distant relative of Horace Rickerson testified that Reverend Rickerson told him he was to be on the Cleveland State University Campus on the day he was shot for purposes of establishing a deaf ministry, rather than to engage in homosexual activity, which Spisak alleged during trial. Additionally, the focal point of John Hardaway's testimony was to recreate the crime scene at which he was shot. Finally, the essence of Kathleen Sheehan's testimony was to establish that Timothy Sheehan left the house the morning he was murdered with his wallet, five credit cards, and fourteen dollars in cash. Any testimony these witnesses provided that was irrelevant to establishing the above facts does not constitute such egregious error so as to deny Spisak the right to a fair trial. The Ohio Supreme Court acted reasonably in denying this claim. Consequently, the court finds Spisak's thirty-first claim is without merit.

I. Ground for Relief Relating to Ineffective Assistance of Counsel

Thirty-Second Ground For Relief

In this ground for relief, Spisak alleges ineffective assistance of counsel throughout the trial court proceeding. The court finds that this claim is not procedurally defaulted, as Spisak raised these claims to the Ohio Supreme Court on direct appeal as Propositions of Law III, XVIII, LVII and LIV. Thus, the court will address Spisak's many sub-claims on the merits.

In this claim for relief, Spisak asserts the following sub-claims as instances of trial counsel's ineffectiveness:²⁶

26 The court has re-numbered the sub-claims to conveniently refer to them.

Pretrial Investigation and Preparation:

(A) Counsel failed to investigate the facts of the case; including but not limited to, the defense of insanity;

(B) Counsel failed to interview individuals personally acquainted with Petitioner's bizarre and irrational behavior as manifested by Petitioner's actions;

(C) Counsel failed to provide available collateral information to the mental health experts appointed in Petitioner's case and failed to properly interview them;

(D) Counsel failed to develop sufficient expertise or knowledge regarding the psychiatric issues and the defense of insanity;

(E) Counsel failed to collect all available records and background on Petitioner's psychological, social, sexual, and developmental history;

(F) Counsel failed to conduct a thorough pretrial investigation of sentencing phase issues and mitigating factors;

(G) Counsel failed to adequately and thoroughly investigate the facts of Petitioner's case in order to arrive at a coherent defense strategy to support the guilt phase defense presentation of insanity while not totally undermining the defense mitigation phase presentation;

Pretrial Motion Practice:

(H) Counsel failed to file a motion for change of venue;

(I) Counsel failed to attack the entry and search of Petitioner's house in which Petitioner was arrested on unrelated misdemeanor charges in which evidence was seized; failed to attack the search of the house in which the Petitioner was arrested and the accompanying search of Petitioner's belongings; failed to attack the search of the car in which the Petitioner was riding immediately prior to his arrest;

(J) Counsel failed to challenge by a Motion in Limine or any other way the prosecution's stacking of multiple aggravating circumstances, specifically the nineteen specifications;

(K) Counsel failed to mount any meaningful attack on Ohio's death penalty statute;

Voir Dire:

(L) Forty-six jurors were passed for cause in the individual portion of voir dire. Trial counsel did not ask questions of thirty-two of these jurors;

(M) Only three jurors who were passed for cause in this individual phase were asked questions by counsel about the death penalty;

(N) Trial counsel failed, with one exception, to question jurors who actually sat to hear the case, about their attitudes on the death penalty in order to form the basis for the cause challenges against jurors who were so much in favor of the death penalty that they would always vote death in the event of a conviction;

(O) Three jurors from the pool were excluded because of their opposition to the death penalty. Defense counsel did not attempt to rehabilitate any of these jurors pursuant to Wainwright v. Witt, 469 U.S. 412 (1985);

(P) Counsel failed, with two exceptions, to question prospective jurors regarding the insanity defense and their attitudes towards psychiatrists and psychologists in order to exercise cause challenges against those who would not vote for or consider not-guilty by reason of insanity as a viable defense or who would never vote in agreement with psychological testimony;

(Q) Counsel failed to question any jurors who sat with respect to what they knew about the case from an avalanche of pervasive and inflammatory pre-trial publicity, in order to build challenges for cause against those jurors who had formed adverse opinions against the Petitioner;

(R) Counsel failed to ask any questions at all to two jurors in either individual or group voir dire;

(S) Counsel failed to object to the numerous admonitions to the jury by the trial court and prosecutor that their death verdict would simply be a "recommendation;"

Trial:

(T) Counsel twice demeaned Petitioner in his opening statement by referring to him as a "demented," "twisted member of society;"

(U) Counsel failed to object to the shackling of the Petitioner during jury views and the scenes of the various crimes and failed to request a cautionary instruction be given to the jury regarding the prejudicial effect of the shackling and that no adverse inferences should be drawn therefrom;

(V) Counsel failed to object to the introduction of numerous "other acts" of the Petitioner;

(W) Counsel failed to object to the introduction of autopsy evidence by a doctor who did not perform the autopsy;

(X) Counsel failed to object to improper and prejudicial cross-examination of the Petitioner;

(Y) Counsel failed to adequately prepare an opening statement, but rather presented a rambling discourse on the Petitioner's Nazi beliefs;

Mitigation:

(Z) Trial counsel made repeated references to the brutal circumstances of the killings and the accompanying pain to the families as "aggravated circumstances." As a matter of law, these are not aggravating circumstances;

Other:

(AA) Trial counsel erroneously advised the Petitioner to enter a no contest plea to the attempted murder of John Hardaway;

(Petition at 90-94.)

The court initially notes that many of these sub-claims have been raised as discreet claims elsewhere in the Petition. Because the court found no merit to those underlying claims, the court now finds that Spisak was not prejudiced by counsel's acts or failure to act in conjunction with those claims. Specifically, the court finds that sub-claims (I), (J), (K), (S), and (V) were raised as distinct grounds for relief in other claims in this Opinion. Thus, those sub-claims are without merit.

Additionally, a number of sub-claims are merely reassertions of Spisak's sixth and tenth grounds for relief. Sub-claims (A), (B), (C), (E), (F), (G), and (Z) were raised previously. The court will not, therefore, readdress them here.

As stated above, the Sixth Amendment dictates that a criminal conviction must arise from "an adversarial process, rather than the ex parte investigation and determination by the prosecutor." Nix v. Williams, 467 U.S. 431, 453 (1984). As such, a criminal defendant is entitled to more than mere appointment of counsel. Counsel's performance during a criminal trial must be sufficient to ensure a defendant's trial was fair. Strickland v. Washington, 466 U.S. 668, 685 (1984). To determine whether a criminal defendant received the meaningful representation the Sixth Amendment mandates, a reviewing court must submit counsel's performance to a two-pronged analysis. Id. at 687. First, the petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the petitioner must show that he or she was prejudiced by counsel's errors. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

To successfully assert an ineffective assistance of counsel claim, a petitioner must point to specific errors in trial counsel's performance. United States v. Cronic, 466 U.S. 648, 666 (1984). Thereafter, a reviewing court must subject the allegations to rigorous scrutiny, determining "whether, in light of all circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. A reviewing court must strongly presume that counsel's conduct was reasonable and might be part of a trial strategy. Id. at 689. When challenging a death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently re-weighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 694. A verdict "only weakly supported" would be more susceptible to influence of counsel error than one which is supported by an overwhelming record. Id. at 696.

Subjecting Spisak's remaining sub-claims to the above test, the court finds that some sub-claims do not allege specific instances of misconduct or how Spisak was prejudiced by them. Sub-claims (D) and (X) do not adequately articulate a claim. In sub-claim (D), Spisak baldly asserts that trial counsel "failed to develop sufficient expertise or knowledge regarding the psychiatric issues and the defense of insanity" without supporting this allegation by facts. Similarly, in sub-claim (X), Spisak asserts that trial counsel "failed to object to improper prejudicial cross-examination of the Petitioner" without citing instances in which counsel should have objected. Because Spisak has failed to point to specific errors in trial counsel's performance as required under United States v. Cronic, 466 U.S. 648, 666 (1984), these two sub-claims are without merit.

In sub-claims (O), (T), (U), and (Y), the court rejects Spisak's factual assertions and finds that counsel did not act objectively unreasonable pursuant to Strickland. In sub-claim (O), Spisak asserts that trial counsel did not attempt to rehabilitate three jurors who were excused for cause because they stated they could not, under any circumstances, sentence Spisak to the death penalty. One such instance is noted above in Spisak's thirtieth ground for relief in relation to juror Thomas Schmitt. As the court stated above, trial counsel did, in fact, attempt to rehabilitate Juror Schmitt and objected to the trial court's dismissal of this juror. Although trial counsel did not object to the court's excusing two other prospective jurors, both indicated that they would not consider the death penalty under any circumstances although the law might require them to do so. (V.D. Tr. 578-79, 604.) As stated in claim thirty above, a juror may be excused for cause if he or she cannot put aside his or her moral, religious, or philosophical beliefs and follow the dictates of the law. Wainwright v. Witt, 469 U.S. 412, 424 (1985). Because sub-claim (O) is partially factually incorrect and partially contradicted by law, the court finds it has no merit.

In sub-claims (T) and (Y), Spisak asserts that counsel demeaned him by referring to him during opening statements as "demented" and "twisted" and that counsel did not adequately prepare for opening statements. The court disagrees. While trial counsel did call Spisak demented and twisted in two instances during the opening statement, counsel did not demean Spisak by the use of such language but, instead, was attempting to demonstrate that Spisak was an insane individual whose views would ultimately offend the jury when he testified. Rather than presenting a "rambling discourse," as Spisak suggests, defense counsel told the jury that what they would hear from Spisak would offend them, but that "in spite of being shocked that they can say . . . I'm a juror and I'm going to be fair" (Tr. 152). Because trial counsel provided Spisak with a constitutionally sufficient opening argument, sub-claims (T) and (Y) are not well-taken.

Furthermore, Spisak fails to fully enlighten the court with all facts surrounding sub-claim (U). In that sub-claim, Spisak contends that trial counsel failed to object to the shackling of Spisak while on a jury view and failed to request an instruction that no adverse inferences be drawn from Spisak's shackling. Although the presumption of innocence prevents a trial court from compelling a defendant to wear identifiable prison clothes during trial, Estelle v. Williams, 425 U.S. 501 (1976), Spisak's trial court did not require him to do so. Before trial, the jury went on a jury view of the Cleveland State University and other murder scenes. Spisak expressed his desire through counsel to be present during this trip. Although the trial court noted that Spisak would have to be shackled on this journey for security purposes, counsel stated that he had informed Spisak of the possible prejudice he could face by the jury seeing him in shackles and handcuffs but that Spisak pointedly waived this right. This waiver is noted on the record:

The Court: Apparently Mr. Spisak wishes to visit the scene. The security requirements of the Sheriff's Department is that he be shackled and handcuffed, which is difficult to do sometimes because the jury might see this. The jury is going there, and Mr. Spisak is going there too, and there is the possibility the jury could in fact see him shackled. I am sure they are aware that he is incarcerated. What do you have to say?

Mr. Shaughnessy:

As to the defendant, Frank Spisak, expressed a wish to go on the jury view to be a part of any and all proceedings of which he has that right.

There is no question he is in jail. I have explained to him that there could be some detrimental effects, I don't know what they will be factually, but being viewed in the shackles and handcuffs we specifically waive those. Everybody knows he's in jail. Everybody know he's going to be in shackles, and there is no problem here.

We are not going to come back and complain if it does happen. If it comes to our attention somebody saw him, we are not going to object to that. I have specifically explained that to my client.

(Tr. 104-5.) Thus, Spisak specifically waived his right to assert any prejudice from the jury viewing him in shackles. More importantly, Spisak does not now contend that the jury actually did see Spisak while on the jury view. The court cannot presume prejudice without any factual support. Thus, sub-claim (U) is not well-taken.

In sub-claim (H), Spisak argues trial counsel was inadequate because counsel failed to file a change of venue motion. Spisak alleges, without support, that even though prospective juror Zayac "revealed there was gossiping about the case . . . [n]either trial counsel nor the court did anything to alleviate this problem." Petition at 91.

The Supreme Court determined in Irvin v. Dowd, 366 U.S. 717 (1961), that finding a jury totally ignorant of a case is difficult. In that case, the Court determined that:

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in a criminal case. To hold that the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is sufficient to rebut the presumption or a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. at 722-23.

Following this precedent, the Sixth Circuit has held that it is sufficient if a juror who has formed an impression as to guilt or innocence from pre-trial publicity can put aside that impression and render a verdict based solely on the evidence. Kelly v. Winthrow, 25 F.3d 363, 368 (6th Cir. 1994), cert. denied, 513 U.S. 1061 (1994). Consequently, a petitioner must point to actual prejudice to succeed on a change of venue claim.

The court finds that this sub-claim fails as Spisak cannot demonstrate that counsel's actions were objectively unreasonable nor can he establish the prejudice requisite to obtain relief. While Spisak notes that there was some "general gossiping" about the case, he does not delineate any instances in which a juror stated he or she could not render a verdict based on the evidence proffered at trial. As such, sub-claim (H) is without merit.

In sub-claims (L), (M), (N), (P), (Q), and (R), Spisak asserts that counsel failed, on numerous occasions during voir dire, to question jurors regarding their views of particular topics, or to pose any questions to particular jurors. Once again, Spisak does not allege that counsel's failure to question jurors as to these specific issues resulted in prejudice. Spisak fails to make the critical nexus between the alleged unreasonable behavior, and the resulting prejudice to him. For example, although counsel may not have questioned some jurors regarding what information they learned from this case through the media, there is no indication that counsel did not obtain sufficient information through the court's or prosecution's questioning. Thus, it is impossible to determine, based on Spisak's bare assertion, whether counsel's failure to question was unreasonable or whether Spisak was prejudiced thereby. Thus, Spisak has not articulated a claim for ineffective assistance of counsel pursuant to Strickland for these sub-claims. Accordingly, the court finds they are without merit.

Spisak's sub-claim (V) suffers from a similar defect. In that sub-claim, Spisak contends that trial counsel were ineffective for failing to object to the introduction of autopsy evidence by a physician who did not perform the autopsy. Spisak fails to supply the court with basic information about this claim, such as which doctor and what specific testimony is objectionable. Without providing the court with more specific information about the background of this sub-claim and the reasons for counsel's alleged ineffectiveness, i.e., counsel's unreasonable behavior and the resulting prejudice to Spisak, the court cannot find merit in this sub-claim.

Finally, Spisak alleges counsel erroneously advised him to enter a no contest plea to the attempted murder of John Hardaway. The court finds this claim fails under Strickland. Given the fact that Spisak previously told police about the details of each murder and attempted murder, and the fact that Mr. Hardaway was able to identify Spisak in a police lineup, counsel's advice was not objectively unreasonable. Consequently, the court finds sub-claim (AA) is without merit.

Because the court finds that none of Spisak's sub-claims possess merit, it consequently finds that the Ohio Supreme Court was not unreasonable in denying these claims on direct appeal. Accordingly, Spisak's thirty-second ground for relief is not well-taken.

J. Ground for Relief Relating to the Constitutionality of Ohio's Death Penalty

Thirty-Third Ground For Relief

Spisak argues in his thirty-third ground for relief that the Ohio death penalty is unconstitutional both facially and as applied. In raising this issue, Spisak has asserted that the Ohio death penalty scheme violates due process in thirteen separate sub-claims. Some of these claims are procedurally defaulted as they were not raised to the Ohio Supreme Court.²⁷ Other claims, however, were raised to the Ohio Supreme Court as the LXII (62nd) and LXIV (64th) Propositions of Law. The court will address these claims individually.

27 Furthermore, Spisak does not allege cause or prejudice to excuse this procedural default. To be thorough, however, the court will address the merits of these defaulted sub-claims in summary fashion. These sub-claims assert the unconstitutionality of the Ohio death penalty statutes because:

(1) it is arbitrary as it allows for prosecutorial discretion in choosing which cases to seek a capital indictment. The United States Supreme Court rejected this argument under a similar death penalty statute and sanctioned the discretionary system. Gregg v. Georgia, 428 U.S. 153 (1976);

(2) it imposes a risk of death on those capital defendants who choose to exercise their right to trial. In United States v. Jackson, 390 U.S. 570, 582 (1968), the Supreme Court determined that a legislative body cannot produce a chilling effect on a defendant's Fifth Amendment right not to plead guilty and Sixth Amendment right to trial. In that case, the Court struck down the capital portions of a federal kidnaping statute because it authorized only the jury to impose the death sentence. Conversely, in Ohio "a sentence of death is possible whether a defendant pleads to the offense or is found guilty after trial." State v. Buell, 489 N.E.2d 795 (Ohio 1986). Consequently, the Ohio scheme comports with the constitutional mandate;

(3) it provides for a bifurcated system with the same jury serving at both phases of trial. Spisak points to no authority that would hold this provision of the Ohio death penalty constitutionally infirm. Furthermore, the bifurcated system long has been upheld as a system that has the desired effect of narrowing the class of death-eligible defendants. Lockett v. Ohio, 438 U.S. 586 (1978);

(4) the jury is instructed not to consider mercy or sympathy for the defendant in its decision. The Supreme Court held that a charge instructing the jury to not be "swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" was constitutionally sound as a reasonable juror would understand that this instruction was meant to limit the jury to weigh only the evidence before it. California v. Brown, 479 U.S. 538, 540 (1987).

Spisak first claims that the Ohio death penalty scheme violates the due process clause because one of the aggravating factors for capital felony murder merely repeats an element of the crime.²⁸ The Ohio death penalty comports with Supreme Court jurisprudence that requires a statutory scheme to limit the class of death-eligible defendants. Moreover, this "double counting" system was upheld in Lowenfield v. Phelps, 484 U.S. 231, 246 (1987). See also State v. Jenkins, 473 N.E.2d 264 (Ohio 1984) (noting that under Ohio Rev. Code § 2929.04(A)(7) a state must not only prove that the defendant caused the death of another to establish the aggravating circumstance, but it also must prove that the defendant was the principal offender in the commission of the aggravated murder, or that the aggravated murder was committed with prior calculation and design.). This additional factor complies with the narrowing prerequisites set forth in Lowenfield.

28 Spisak contends that one of the statutory aggravating circumstances, Ohio Rev. Code § 2929.04(A)(7), duplicates the statutory definition of felony murder, Ohio Rev. Code § 2903.01(B). This duplication, Spisak argues, demonstrates the failure of the Ohio statutory scheme to narrow the class of death-eligible defendants.

Spisak also asserts that the Ohio scheme is unconstitutional because the aggravating circumstances are introduced during the guilt phase rather than the mitigation phase of trial. Under this system, Spisak argues, the jury cannot make an individualized death penalty determination. The United States Supreme Court specifically upheld this type of system in Walton v. Arizona, 497 U.S. 639 (1990).²⁹

29 This aspect of the Walton holding is unaltered by the recent Supreme Court decision Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). In that case, the Court partially overruled Walton because it found Walton irreconcilable with Apprendi v. New Jersey, 530 U.S. 466 (2000), a case in which the Court held that the Sixth Amendment does not permit a judge to impose a sentence that would exceed the maximum sentence to which the defendant would be exposed if punished pursuant to the facts found by the jury. Thus, because Walton found Arizona's capital sentencing constitutional even though it permitted a judge alone to find aggravating factors and impose a death sentence, the Ring Court overruled it. The Court limited its holding, however, overruling Walton only "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Ring, 122 S.Ct. at 2430. Consequently, the portion of Walton finding it permissible for the prosecution to present both the initial opening argument and last closing argument remains intact.

Spisak next asserts the unconstitutionality of the Ohio death penalty because there is no specified standard of proof for finding mitigating factors. This arguments is without merit, however, because there is no constitutional requirement that a death penalty scheme contain a particular standard of proof for the consideration of mitigating factors. Walton, 497 U.S. at 650; Skaggs v. Parker, 27 F. Supp.2d 952, 996-99 (W.D.Ky. 1998). Spisak also argues that the Ohio death penalty scheme violates due process because it fails to provide the sentencing authority with an option to impose a life sentence when it finds only aggravating circumstances exist. This argument also is without merit, however, as the Supreme Court rejected the identical argument in Blystone v. Pennsylvania, 494 U.S. 299 (1990).

Spisak further takes issue with the burden of proof and production required in a capital conviction, alleging it unconstitutional to both require a defendant to establish a mitigating factor by a preponderance of evidence and, conversely, not require the state to prove the absence of mitigating factors. As stated above, the Supreme Court rejected the identical arguments in Walton v. Arizona, 497 U.S. at 649-50.³⁰ Thus, both arguments must fail.

30 This portion of Walton also remains unaltered by the Ring holding.

Spisak next contends that the Ohio death penalty statutes are unconstitutional because they fail to require a finding that death is the only appropriate remedy before imposing a capital sentence. Additionally, Spisak asserts the Ohio scheme is constitutionally infirm because it does not provide an adequate proportionality review as it compares a death-sentenced defendant with others who received capital punishment, rather than a comparison with life-sentenced individuals. Spisak's claim regarding an appropriate sentence must fail because no such constitutional mandate exists. Moreover, the Ohio scheme provides for an appropriateness review on direct appeal. Finally, the Supreme Court has determined that a comparative proportionality review is not constitutionally required. Pulley v. Harris, 465 U.S. 37 (1984). Moreover, the Sixth Circuit held in a recent opinion that, because "proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison." Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001).

Spisak also argues that the death penalty is not the least restrictive means of effectuating deterrence. The Supreme Court addressed this exact point in Gregg v. Georgia, 428 U.S. 153 (1976). Noting that imposing criminal punishment is a legislative responsibility, the Court limited its own ability to "require the legislature to select the least severe penalty possible." Id. at 175.

Finally, Spisak contends that the death penalty in Ohio is imposed in a racially discriminatory manner, alleging those who are racial minorities or who kill whites are more likely to receive the death penalty. Pursuant to McClesky v. Kemp, 481 U.S. 279 (1987), a capital defendant cannot evade a death sentence merely by demonstrating the statistical disparity of capital defendants or victims of a particular race. Instead, the capital defendant must prove that the decision maker in his or her individual case acted with a discriminatory purpose, and that such actions had a discriminatory effect on the proceeding. Id. at 292. As Spisak has not asserted discrimination occurred during his sentencing, this claim must fail.

Because the court finds that none of Spisak's sub-claims are meritorious, it concludes that the Ohio Supreme Court did not act unreasonably pursuant to 28 U.S.C. § 2254(d). Accordingly, Spisak's thirty-third ground for relief is not well-taken.

VII. CONCLUSION

Recently, the Sixth Circuit found that a district court need not wait until a petitioner moves for a Certificate of Appealabilty (hereinafter "COA") before issuing a COA for claims raised in the petition. Castro v. United States, 310 F.3d 900 (6th Cir. 2002). There, the court reasoned that, because a district court that has recently denied a writ of habeas corpus will have "an intimate knowledge of both the record and the relevant law and could simply determine whether to issue the certificate of appealability when [it] denies the initial petition," it stands to reason that the proper time to determine whether to grant a COA is at the conclusion of the opinion granting or denying the writ. Id. at 901 (internal quotation marks and citations omitted).

Furthermore, in two other recent decisions, the Sixth Circuit determined that neither a blanket grant nor a blanket denial of a COA is an appropriate means by which to conclude a capital habeas case as it "undermine[s] the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see also Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for certificate of appealability for district court's analysis of claims). Thus, in concluding this Opinion, it is now appropriate to determine whether to grant a COA as to any of the claims the petitioner presented in his petition pursuant to 28 U.S.C. § 2253.

That statute states in relevant part:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court

* * *

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole difference between the pre- and post-AEDPA statutes is that the petitioner now must demonstrate he was denied a constitutional right, rather than the federal right that was required prior to the AEDPA's enactment.

The United States Supreme Court interpreted the significance of the revision between the pre- and post-AEDPA versions of the statute in Slack v. McDaniel, 529 U.S. 473 (2000). In that case, the Court held that § 2253 was a codification of the standard it set forth in Barefoot v. Estelle, 463 U.S. 880 (1983), but for the substitution of the word "constitutional" for "federal" in the statute. Id. at 483.

Thus, the Court determined that

"[t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "'adequate to deserve encouragement to proceed further.'"

Id. at 483-4 (quoting Barefoot, 463 U.S. at 893 n. 4).

The Court went on to distinguish the analysis a habeas court must perform depending upon its finding concerning the defaulted status of the claim. If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484. A more complicated analysis is required, however, when assessing whether to grant a COA for a claim the district court has determined procedurally defaulted. In those instances, the Court opined, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (emphasis supplied).

After taking the above standard into consideration, the court certifies all or part of thirteen (13) of Spisak's thirty-three (33) claims. The court's reasoning is set forth below.

Initially, the court certifies claims one and two for appeal (exclusion of Dr. Markey's testimony during trial). While the court found that the trial court properly excluded this testimony based on Dr. Markey's responses, a reasonable jurist could conclude to the contrary. Dr. Markey's response to the prosecutor's questions were, sometimes, ambiguous, such as when he stated that Spisak could "at times control [his impulse to kill, but] at other times he would decide that he didn't need to control it." (Tr. 1992.) While it appears that Dr. Markey is stating that Spisak was able to control his own conduct, a fact that would prevent him from successfully asserting an insanity defense under Ohio law, a jurist of reason might conclude that, based on the ambivalence apparent in portions of Dr. Markey's testimony, the trial court should have permitted the jury to determine its weight and credibility. Because the court finds claims one and two merit a COA, it necessarily finds that claim four, the trial court's failure to instruct on insanity, should also be certified for appeal.

The court will not issue a COA for Spisak's third claim for relief (trial court restricted his right to testify about his religious beliefs). The court finds, as it did in its Opinion, that a review of the trial transcript reveals that the trial court did not place unreasonable limits on Spisak's testimony concerning his religious beliefs. Because no reasonable jurist would debate the court's factual conclusion based on the record, the court will not issue a COA for this claim.

The court will grant a COA, however, for Spisak's fifth claim for relief (trial court's failure to merge aggravating circumstances specifications). While the court concluded that, pursuant to United States Supreme Court precedent, the trial court's duplication of aggravating circumstances in its charge to the jury was harmless error, a jurist of reason might conclude that the misleadingly expansive list of aggravating factors influenced the jury's decision to impose death. Thus, the court will issue a COA for this claim.

Claims six, ten, thirteen, fifteen, sixteen, eighteen, nineteen, and thirty-two all allege ineffective assistance of counsel. The court finds that some merit a COA, while others do not. The court issues a COA for claim six (ineffective assistance of counsel during closing argument in mitigation). Although the court found that this case was factually distinguishable from Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), a reasonable jurist might find that defense counsel's use of disparaging and, at times, demeaning comments about Spisak were objectively unreasonable and prejudicial. Claim ten also alleges ineffective assistance during various aspects of the mitigation phase of trial. The court finds, as it did in the Opinion, that sub-claims (1), (2), (4), (5), and (6) are procedurally defaulted under State v. Perry, 226 N.E.2d 104 (Ohio 1967). As no reasonable jurist would debate the defaulted status of those sub-claims, the court will not issue a COA for them. The court will issue a COA for the remaining sub-claims, however. Although the court found no indicia of defense counsel's unpreparedness, a jurist of reason might find otherwise. Thus, the court issues a COA for sub-claims (3), (7), and (8) of Spisak's tenth claim for relief. The court does not issue a COA for sub-claim (9) (failure to object to prosecutorial misconduct during mitigation) because the court finds that no reasonable jurist would find that the prosecution's cross-examination of Dr. McPherson was an attempt to introduce a non-statutory aggravating factor.

The court will not issue a COA for claim thirteen (ineffective assistance of appellate counsel). As the court stated in its Opinion, Spisak cannot satisfy the prejudice prong of the Strickland analysis when he alleges ineffective assistance for initial appellate counsel's decision to bring only one claim on appeal. Because the Ohio Supreme Court heard sixty-four (64) claims when Spisak appealed the Eighth District's decision, Spisak cannot demonstrate that initial appellate counsel's failures prejudiced the outcome of his direct appeal. The court will not, moreover, issue a COA as to claims fifteen and sixteen (the Eighth District Court of Appeals caused ineffective assistance of counsel when it refused to hear subsequent appellate counsel's supplemental arguments). Given the fact that Spisak had obtained representation during his initial appeal to that court, the court finds the Court of Appeals may not be held accountable for initial counsel's failure to raise additional claims or its decision to adhere to its procedural rules.

The court also finds that Spisak's eighteenth and nineteenth grounds for relief (ineffective assistance of counsel for failure to move to exclude evidence obtained in Ronald Reddish's apartment) do not merit a COA. Because Spisak admitted to the murders during his trial testimony, he is hard pressed to demonstrate that counsel's failure to object to the introduction of this evidence prejudiced him. For similar reasons, and because a habeas court cannot typically recognize Fourth Amendment search and seizure claims, the court also denies a COA for Spisak's seventeenth ground for relief.

Spisak's final ineffective assistance of counsel claim, claim thirty-two, alleges that counsel were ineffective on numerous occasions during trial. The court grants a COA as to some, but not all, of these sub-claims. First, the court will not grant a COA as to sub-claims (A), (B), (C), (E), (F), (G), and (Z) because they are merely duplicative of Spisak's sixth and tenth grounds for relief. The court also denies a COA for claims (D), (L), (M), (N), (P), (Q), (R), (V), (X), and (W) because, as stated in the Opinion, the court finds these claims neither set forth specifically how counsel was objectively unreasonable nor how this conduct prejudiced the proceedings. The court will not grant a COA as to sub-claims (I), (K), (O), and (S) for the reasons set forth in the underlying claims for relief that were the impetus for Spisak's ineffective assistance of counsel claim.

Of the remaining sub-claims, the court finds that jurists of reason would debate the court's decision and, thus, that they merit a COA. First, in sub-claim (H), Spisak argues that trial counsel were ineffective for failing to move for a change of venue. While the court determined that Spisak provided no indicia of media influence on the jury, a jurist of reason might conclude that, due to the extensive publicity the case engendered, trial counsel should have moved to change venue. In sub-claim (J), Spisak asserts that the prosecution's stacking of nineteen specifications swayed the jury against him. For the reasons stated in the court's decision to grant a COA as to Spisak's fifth claim for relief, the court also grants a COA as to sub-claim (J). In sub-claims (T) and (Y), Spisak asserts that counsel was ineffective for calling him "demented" and "twisted" in opening arguments. For the reasons set forth in the COA analysis relating to the sixth ground for relief, the court grants a COA for sub-claims (T) and (Y).

Alternatively, the court finds that sub-claims (U) and (AA) do not merit a COA. In sub-claim (U), the court finds that jurists of reason would not debate, as stated in the Opinion, that Spisak specifically waived his right to be seen by the jury in shackles. Thus, Spisak cannot now demonstrate the counsel's failure to object to his shackling was objectively unreasonable or prejudiced him. Finally, the court will not grant a COA as to sub-claim (AA), that counsel advised Spisak to plead no contest to the attempted murder of John Hardaway, because Hardaway was able to identify him as the perpetrator.

The court grants a COA as to Spisak's seventh claim for relief. While the court believes that Jones v. United States, 527 U.S. 373 (1999), is dispositive of the issue before it, a jurist of reason might read Spisak's seventh claim more expansively. Because such a reading might fall under the purview of Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003), the court will grant a COA on this issue.

The court will not grant a COA, however, on numerous claims which occur almost pro forma in a capital habeas petition but are routinely denied. Accordingly, the court will not grant a COA as to claims eight (trial court improperly admonished the jury not to consider sympathy or prejudice), fourteen (failure to maintain a complete record), twenty-seven (admission of gruesome photographs), twenty-nine (trial court instructed the jury that its verdict was only a "recommendation"), and thirty-three (Ohio death penalty unconstitutional).

The court also will not grant a COA as to Spisak's ninth ground for relief (trial court improperly instructed on aggravating factors) because, as stated in the Opinion, when the instruction is read in context, no reasonable jurist would conclude that the jury would find that it could consider non-statutory aggravating factors.

Spisak's eleventh, twelfth, twenty-third, twenty-forth, twenty-fifth, and twenty-eighth grounds for relief all allege prosecutorial misconduct. The court will issue a COA as to Spisak's eleventh claim (introduction of Murphy testimony) because, although it found that any error resulting from Murphy's testimony was harmless, a reasonable jurist may not so find. The court also finds claim twelve and twenty-three (prosecutorial comments) merits a COA because, although it did not find that various comments the prosecutor made had a cumulative adverse effect on the trial, a reasonable jurist could conclude otherwise.

Alternatively, the court finds that claims twenty-four (prosecutor provided unsworn testimony), twenty-five (prosecutor "testified" during trial), and twenty-eight (prosecutor commented on petitioner's post-arrest silence) are not debatable among reasonable jurists because the court finds them to be factually inaccurate after a review of the record. Accordingly, it will not issue a COA for them.

The court will issue a COA for claim twenty-six (trial court improperly admitted excluded evidence). While the court finds this error to be harmless, a jurist of reason might conclude that the inclusion of this evidence somehow influenced the jury. Additionally, the court will issue a COA for claim thirty-one (trial court improperly admitted testimony of Clem Sharkey, John Hardaway, and Kathleen Sheehan). While the court found in its Opinion that much of their testimony was relevant to proving the state's case, a reasonable jurist could find that it had a prejudicial effect on the jury.

Finally, the court denies a COA as to claims twenty and twenty one (trial court erred when it admitted numerous items unrelated to the crime), twenty-two (trial court erred when it admitted testimony regarding various uncharged acts of violence) because this evidence was relevant to proving the state's case. The court also denies a COA as to Spisak's thirtieth claim for relief (trial court erred in excluding prospective juror Schmitt from the jury) because Schmitt unequivocally indicated he could not vote for the death penalty under any circumstances. Thus, no jurist of reason would find that the trial court properly excluded him from the venire.

For the reasons stated in this opinion, this court finds that none of the claims asserted in Spisak's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 are well-taken. Accordingly, Spisak's request for habeas corpus relief is denied and his Petition is hereby dismissed.

The court hereby issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) as set forth in the above certificate of appealability analysis.

IT IS SO ORDERED.

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(3) Whether, at the time of the committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law;

Ohio Rev. Code § 2929.04(B)(3). Cf. State v. Spisak, 521 N.E.2d 800, 803 (Ohio 1988) ("Of the mitigating factors . . . appellant relied solely on his allegation that he lacked, due to a mental disease or defect, substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the law at the time of committing the offenses.").