John G. Spirko, Jr. v. BETTY MITCHELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0140P (6th Cir.)
File Name: 04a0140p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN G. SPIRKO, JR.,
Petitioner-Appellant,
v.
BETTY MITCHELL, Warden,
Respondent-Appellee.
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No. 00-4385
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 95-07209—James G. Carr, District Judge.
Argued: April 30, 2002
Decided and Filed: May 17, 2004
Before: BATCHELDER, DAUGHTREY, and GILMAN,
Circuit Judges.
_________________
COUNSEL
ARGUED: Thomas C. Hill, SHAW PITTMAN,
Washington, D.C., for Appellant. Charles L. Wille,
ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus,
Ohio, for Appellee. ON BRIEF: Thomas C. Hill, SHAW
PITTMAN, Washington, D.C., John J. Callahan, McHUGH,
DeNUNE & McCARTHY, Sylvania, Ohio, for Appellant.
2 Spirko v. Mitchell No. 00-4385
Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF
OHIO, Columbus, Ohio, for Appellee.
BATCHELDER, J., delivered the opinion of the court, in
which DAUGHTREY, J., joined. GILMAN, J. (pp. 21-28),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. John G. Spirko
appeals the order of the district court denying his petition for
a writ of habeas corpus. An Ohio jury found Spirko guilty of
aggravated murder with specifications and recommended that
he be sentenced to death. The state trial court accepted that
recommendation and sentenced Spirko to death on
September 24, 1984. Spirko’s motion for a new trial was
denied, and his direct appeals of his conviction and sentence,
his petition for a writ of certiorari in the United States
Supreme Court and his petitions for post-conviction relief
were unsuccessful. On March 31, 1995, he filed a petition for
habeas corpus in the district court; he filed an amended
petition and a request for an evidentiary hearing on March 10,
1999, alleging fifteen separate grounds for relief, each of
which the district court addressed and found to be without
merit. The district court denied the petition, and Spirko
timely appealed.
Before us, Spirko argues that 1) the prosecution denied
Spirko due process by knowingly presenting false evidence
and a false theory of the case at trial; 2) the prosecution
denied Spirko due process by violating the requirements of
Brady v. Maryland, 373 U.S. 83 (1963); 3) Spirko’s trial
counsel were ineffective because they did not investigate the
alibi claim of Delaney Gibson, who was indicted with Spirko
for the murder; 4) the prosecution probably suborned perjury
at trial; 5) the district court erred in denying Spirko’s actual

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No. 00-4385 Spirko v. Mitchell 3
1The district court held that although Spirko filed his habeas petition
prior to the effective date of the Anti-terrorism and E ffective D eath
Penalty Act (“AEDPA” or “the Act”), the AEDPA is retroa ctively
app licable to the petition. The district court noted that Spirko did not
argue to the contrary; the court also held, in the alternative, that the
outcome of the case was not affected by the retroactive application of the
Act. The district court’s retroactive ap plication of AED PA to this petition
was error. We have reviewed the petition under the pre-AEDPA standard,
see Lindh v. Murphy, 521 U.S. 320, 326 (1997), however, and conclude
that the district court was correct in its conclusion that the outco me of this
case is the same when the pre-AED PA standard is applied, and therefore
we hold that the erro r is harmless.
innocence claim; 6) Spirko was denied due process by the
prosecution’s use of a suggestive photo array and
hypnotically refreshed testimony, and by his trial in an
improper venue; 7) the district court erred in denying Spirko’s
request for discovery and an evidentiary hearing; 8) Spirko
was denied due process as a result of several errors during the
sentencing phase of the trial. After reviewing the district
court’s exhaustive opinion, we conclude that we agree with its
findings and its conclusions1, and we will not separately
address any of Spirko’s claims except those relating to the
alleged Brady violations. We think that the Brady claims,
although ultimately meritless, deserve specific attention.
The only Brady claim that Spirko actually argues in his
brief is that the state withheld from him evidence that an
individual named Delaney Gibson, who was indicted with
Spirko for the murder but escaped and remained a fugitive
until well after Spirko had been tried and convicted, could not
have been present when the murder was committed. It is
useful to recount the facts relevant to this claim.
At approximately 8:30 a.m. on August 9, 1982, Betty Jane
Mottinger was discovered to be missing from her post as
postmistress of the Elgin, Ohio, Post Office in Van Wert
County. Also missing were Mrs. Mottinger’s purse and
approximately $750 in cash, postage stamps and money
orders. Some three weeks later, her decomposing body was
4 Spirko v. Mitchell No. 00-4385
found in a bean field in neighboring Hancock County. The
body, bearing between fourteen and eighteen stab wounds to
the chest and stomach, was fully clad, wrapped in a paint-
splattered curtain which appeared to have been used by
painters as a drop-cloth, and tied with a cord similar to a
clothesline.
The investigation into the abduction and death of Mrs.
Mottinger was massive. Authorities interviewed over three
thousand people and spent countless man hours seeking
information to solve the crime. The prosecution followed
anonymous leads, tips based on old hearsay, and any trail that
might lead to probative evidence. The record is enormous
and contains reports from the interviews and documents from
the investigative efforts. Among the interviews documented
in the record are the many interviews of the petitioner, John
Spirko.
In October of 1982, Spirko initiated contact with law
enforcement officers, including postal inspectors. Spirko,
who was then in jail in Lucas County, Ohio, on unrelated
charges, told the officers that he had information about Mrs.
Mottinger’s killing, and suggested that in exchange for the
officers’ help on those charges, he could help them in the
Mottinger case. Over the next several weeks, Spirko gave a
series of differing accounts of the murder. His tales included
persons named “Rooster,” “Dope Man,” “Spooky” and “Dirty
Dan.” Early in his “cooperation” with the postal inspectors,
he told Inspector Paul Hartman that he had been at a party
where an unnamed person had told him that three white males
had murdered Mrs. Mottinger after the three had gone to the
post office to claim a package containing heroin, had gotten
into some kind of scuffle, and had been forced to kidnap the
postmistress. According to Spirko, while he was at the party,
he saw a cream-colored handbag with brown trim, containing
coins, some money orders and gold jewelry. He changed his
story a few days later, telling Inspector Hartman at the outset
of the interview, “Look Paul, I’ve thrown you a few curves
and you have thrown me a few curves. From now on, it’s

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No. 00-4385 Spirko v. Mitchell 5
2The Ohio Suprem e Court refers to “someone named V ito” in
relating this rendition of Spirko’s story, which appears to us to be
attributable to a court-reporting error. Throughout this part of Hartman’s
trial testimony he refers to “The Dope M an,” but on page 13 of Hartman’s
testimony—which is also page 2391 of the trial transcripts—the transcript
reads: “The defendant was ultimately commissioned by Vito man to
recover this parcel containing the narcotics.” No other reference to
anyone named “V ito” appears.
going to be straight down the line.” Spirko went on to say
that he himself had been commissioned by The Dope Man2 to
retrieve a package containing heroin from a man named
Rooster, and claimed that Spirko and another man had driven
to a house where Spirko saw Mrs. Mottinger’s body. Spirko
said that the body was already bound; that one of the men in
the house had unwrapped it to recover a cigarette lighter; and
the body had about 15 stab wounds. Spirko related further
that the Dope Man decided that Rooster should be killed, and
that Spirko had driven Rooster and two other persons to an
undisclosed location where Rooster was shot and buried in a
marsh.
A few days later, Spirko expanded his story to include a
man named “Swartz,” who told him that Rooster and Dirty
Dan had killed Mrs. Mottinger because she had bitten Rooster
when he forced her to perform oral sex on him. Spirko
claimed that he and Swartz had gone to the house where the
murder was committed; there he saw Rooster and Dirty Dan
with blood on their clothes and a gray curtain which was torn
at the end; he also saw a brown car, inside of which was a
cream-colored purse with brown trim, containing money
orders, change and gold jewelry.
The next day, December 9, Spirko again changed his story.
This time, he said it was in fact Rooster who had told him
how the murder took place, and that Rooster had said that the
only thing that bothered him about the murder was the
“whoosh” sound that the knife made when he stabbed Mrs.
Mottinger. Although Spirko stuck to his claim that Rooster
6 Spirko v. Mitchell No. 00-4385
himself had been killed, he now said that Rooster’s body had
been deposited in a swamp in Florida. And on December 10,
Spirko described to Inspector Hartman the clothing that Mrs.
Mottinger had been wearing when she disappeared.
Hartman next interviewed Spirko on December 13, 1982.
Spirko now claimed that he and Swartz had actually been
present when Mrs. Mottinger was killed. First, Spirko said
that while he was watching television in the house, Rooster
had chased Mrs. Mottinger outside where Rooster and Dirty
Dan had stabbed her. Later in the day, Spirko told Hartman
that an unknown biker, along with Rooster and a man named
Dean or Dino, had taken turns raping Mrs. Mottinger, and
when she tried to escape Spirko stopped her and held her
down while Rooster repeatedly stabbed her in the stomach.
When interviewed on December 15, 1982, Spirko claimed
that he and Dino, Dirty Dan, Rooster and the biker, had spent
the night of August 8th sleeping in a roadside park. The next
morning, Rooster, Dino and the biker went in to Elgin,
kidnapped Mrs. Mottinger and brought her back to where
Spirko and Dirty Dan were parked on a road near the
farmhouse where Spirko claimed the murder took place.
Faced with the necessity of doing something with the victim
because she could identify them, Rooster, the biker and Dirty
Dan first raped her—apparently out of the presence of Spirko
and Dino—and then, outside of the house and in front of
Spirko and Dino, stabbed her repeatedly. Rooster, the biker
and Dan rolled the body onto a piece of curtain they had in
the car, removed the jewelry from the body and pried the
stone from a ring on the victim’s hand, and, bringing the
curtain down over the victim’s head, wrapped the body end-
to-end. Because Rooster had carelessly dropped his cigarette
lighter into the curtain during this process, they unwrapped
the body, recovered the lighter, and wrapped it up again.
Investigator Hartman testified that several aspects of this
evolving tale were of particular significance: the detail about
the victim’s purse and its contents; the description of the

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No. 00-4385 Spirko v. Mitchell 7
clothing the victim had been wearing; the description of the
curtain in which the body was wrapped, including the detail
that part of the curtain had been torn off; the description of
the way in which the body had been wrapped in that curtain;
and the fact of the stone’s having been pried from the victim’s
ring. These factually accurate details were not matters that
had been made public.
On January 11, 1983, Hartman interviewed Spirko again.
By now, Spirko was in the federal penitentiary in
Leavenworth, Kansas, having been admitted into the federal
witness protection program. This time, Spirko advised
Hartman that there had been no narcotics involved in the
abduction and murder of Mrs. Mottinger, but that he had
heard that the entire incident began as a robbery attempt.
When Hartman refused to believe any of this allegedly third-
hand account, Spirko admitted that it was not true, but said
that he couldn’t tell the truth because he had to protect “the
only friend he ever had in his whole life.” Spirko went on to
say that this friend had been in the Elgin area immediately
after the crime was committed, and that Spirko had seen the
proceeds from the post office robbery.
The following day, Spirko identified his friend as Delaney
Gibson; Spirko said that on August 11 or 12, 1982, he had
gone drinking with Gibson and two individuals named Clyde
Cravens and Eugene Sizemore, and had learned that those
three had robbed the post office and murdered Mrs.
Mottinger. Spirko said that Gibson had showed him the trunk
of the car where they had put the body; the trunk was stained
and emitted a strong odor. Gibson also showed him a duffel
bag containing a collection of guns, including a chrome-
plated .357 magnum with ivory handles, and a cream-colored
canvas purse containing money orders and change. Spirko
said that he saw a rolled-up gray curtain on the floor of the
back seat of Gibson’s car. He also stated that, a couple of
weeks later, Gibson offered to pay Spirko to kill Clyde
Cravens, whom Gibson called “Rooster,” because he could
identify Gibson. According to Spirko, Gibson explained that
8 Spirko v. Mitchell No. 00-4385
Rooster and Sizemore had attempted to rob the post office
while Gibson drove the get-away car. When the postmistress
began to scream, Gibson went to the post office and helped
the other two abduct Mrs. Mottinger. They then raped her
and when she tried to escape, they stabbed her and dumped
the body. Spirko said that Gibson explained that they stabbed
the victim rather than using the guns to kill her because
“where they were at, if they had shot her, it would have been
their ass.” Gibson said that robbing the post office had been
stupid because there was no real money in it, and all they got
was change; he also explained that because the money orders
were traceable, they had burned them rather than cashing
them.
Of particular significance to Inspector Hartman were the
details about the .357 magnum (the investigation having
revealed that Gibson possessed such a firearm), the cream-
colored purse and its contents, the description of the gray
curtain in the back seat of the car, the fact that the robbery had
primarily yielded change, and the fact that the money orders
had been destroyed. Also important were the names of
Cravens and Sizemore, both of whom the investigators
determined were real individuals; the inspectors found no
evidence connecting either of them to the robbery and
murder. Inspector Hartman also testified that the
investigators looked into the other individuals whom Spirko
had named—in his pre-Leavenworth interviews—and had
determined that they were either real people who had no
connection with the murder, or were people who apparently
did not exist.
While he was in jail, Spirko wrote a letter to his girlfriend
in which he said, “[T]here are some things that I told him
[Inspector Hartman] that only the persons who did this shit
know, there are no if and ands about that.” Spirko was right.
He had given the authorities facts about the crime that had not
been disseminated by the authorities and were not generally
known by the public, including the number and location of
stab wounds on Mrs. Mottinger’s body; a description of the

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No. 00-4385 Spirko v. Mitchell 9
clothing Mrs. Mottinger had been wearing when she was
abducted; the fact that a stone had been pried from a ring she
had been wearing; a description of the type of fabric the body
was wrapped in as well as a description of the way the body
was wrapped; a description of her purse; and a description of
the contents of the purse.
A number of persons who had been in the vicinity of the
post office around the time Mrs. Mottinger was abducted
were interviewed. One of them, after viewing a photo array,
identified Delaney Gibson as a man she had seen getting out
of a car with a “cinnamon top and a bronzish-brown bottom,”
in front of the post office at 8:30 that morning. In the picture,
Gibson was clean-shaven. A second witness identified—with
about 70% certainty—Spirko from a photo array as the man
he had seen at 8:30 that morning, standing by a copper-toned
late 1970s car with a lighter top.
The investigators conducted a comprehensive investigation
into Delaney Gibson. They discovered that Gibson was, as
Spirko claimed, a close friend and, in fact, one of Spirko’s
prior cellmates. After locating Gibson in North Carolina,
police investigators interviewed him, eventually taking him
into custody. Gibson denied any involvement in the
abduction or murder claiming that he was employed as a
migrant worker in North Carolina during the time period
surrounding the incident. Gibson admitted to his friendship
with Spirko but claimed that he had not seen Spirko for years.
In August of 1983, Gibson escaped from police custody. He
was indicted in September 1983, along with Spirko, for the
murder of Mrs. Mottinger, recaptured, and shortly before the
date scheduled for Spirko’s trial, escaped again. Gibson
remained a fugitive until well after Spirko’s trial had been
completed.
The investigators interviewed Gibson’s sometime crew
chief, Juan Flores, who confirmed that he employed Gibson
in North Carolina as a produce picker and that Gibson was in
his employ from June, 1982, until October, 1982. Flores
10 Spirko v. Mitchell No. 00-4385
stated that he thought he remembered three or four days
during that period when Gibson was absent from work but he
could not remember when, exactly, the absences occurred.
Postal inspectors interviewed Gibson’s wife, Margie, on
December 21, 1983. Margie told them that sometime during
the month of August, 1982, her sister and brother-in-law,
Brenda and Michael Bentley, had visited the Gibsons in North
Carolina, staying for a couple of days. Margie showed the
inspectors pictures—allegedly taken during the visit—of the
Bentleys with Margie and a bearded Delaney Gibson. The
inspectors also interviewed the Bentleys, who said that they
had visited the Gibsons in North Carolina on Saturday,
August 7 and Sunday, August 8, 1982; had left North
Carolina around 6:00 p.m. on August 8; and had driven north
to Newport, Tennessee, where they had stayed in a motel the
night of August 8. The Bentleys also had pictures that they
said were taken during the visit. The postal inspectors were
able to verify the Bentleys’ overnight stay at a motel in
Newport on Sunday night, August 8, 1982, as well as Brenda
Bentley’s statement that she had dropped off two rolls of film
for processing on August 10.
On January 11, 1984, the inspectors again interviewed
Margie Gibson and obtained from her the photographs that
she claimed had been taken during the August, 1982, visit.
The inspectors subsequently determined that Margie Gibson
had taken film to be processed on August 17, 1982, and that
a receipt from an automotive store in North Carolina near the
Gibson’s home, issued to “Jim Gibson” (one of Delaney
Gibson’s aliases) on August 7, 1982, was authentic.
Spirko claims that this evidence demonstrates that Gibson
could not have been in Elgin, Ohio, on the morning of
August 9, 1982, and that on that day Gibson was not clean
shaven but wore a full beard. Spirko reasons that because the
theory of the state’s case against Spirko was that Gibson and
Spirko had acted together in the abduction and murder of Mrs.
Mottinger, evidence that Gibson was not in Ohio at the time

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No. 00-4385 Spirko v. Mitchell 11
of the murder is evidence that also is exculpatory of Spirko.
The state’s failure to turn this evidence over to him, Spirko
argues, violated the state’s obligations under Brady v.
Maryland, 373 U.S. 83 (1963).
Brady established that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. Brady does not grant broad discovery
powers to the defendant, but is instead intended only to
ensure that the defendant has access to impeachment evidence
and evidence favorable to him, suppression of which would
deprive him of a fair trial. United States v. Bagley, 473 U.S.
667, 675 (1985).
Essential to the determination of whether the state’s failure
to disclose evidence is a Brady violation is Brady’s
requirement that the withheld evidence be “material either to
guilt or to punishment.” Brady, 373 U.S. at 87. In Kyles v.
Whitley, 514 U.S. 419 (1995), the Supreme Court elaborated
upon Bagley’s materiality requirement, explaining:
Bagley’s touchstone of materiality is a “reasonable
probability” of a different result, and the adjective is
important. The question is not whether the defendant
would more likely than not have received a different
verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a
verdict worthy of confidence. A “reasonable probability”
of a different result is accordingly shown when the
government’s evidentiary suppression “undermines
confidence in the outcome of the trial.”
Id. at 434. The Court went on to emphasize that materiality
is not determined by looking at the sufficiency of the
evidence; rather we must determine whether the favorable
evidence could reasonably be viewed as putting the entire
case “in such a different light as to undermine confidence in
12 Spirko v. Mitchell No. 00-4385
the verdict.” Id. at 435. The Court noted that if the
suppression of evidence in fact violated Brady, then the error
is not subject to harmless error review, since a failure to
disclose evidence that could reasonably be viewed as casting
the entire case in a different light could hardly be viewed as
harmless error. The Court stressed that suppressed evidence
is to be viewed collectively, rather than item by item, and a
defendant does not establish a Brady violation by showing
only that the prosecution was aware of but did not disclose an
item of evidence favorable to the defendant. Id. at 436-37.
More recently, the Supreme Court reviewed the elements of
a Brady violation, reminding us that, “strictly speaking, there
is never a real ‘Brady violation’ unless the nondisclosure was
so serious that there is a reasonable probability that the
suppressed evidence would have produced a different
verdict,” and summarizing the components of a “true” Brady
violation:
The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice
must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In
Strickler, the Court’s focus was on the third component,
“whether petitioner has established the prejudice necessary to
satisfy the ‘materiality’ inquiry.” Id. at 282. To satisfy this
requirement, the Court reiterated, the petitioner “must
convince us that ‘there is a reasonable probability’ that the
result of the trial would have been different if the suppressed
[evidence] had been disclosed to the defense.” Id. at 289.
Like several of our sister circuits, this circuit has held that
because Brady did not alter the rule that defendants have no
general constitutional right to discovery in criminal cases, a
prosecutor violates his constitutional duty of disclosure only
if “his omission is of sufficient significance to result in the

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No. 00-4385 Spirko v. Mitchell 13
denial of defendant’s right to a fair trial,” United States v.
Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting United
States v. Agurs, 427 U.S. 97, 108 (1976)), and where the
defendant was “aware of the essential facts that would enable
him to take advantage of the exculpatory evidence,” the
government’s failure to disclose it did not violate Brady. Id.
In Todd, we found no Brady violation where the prosecutor
had disclosed to the defense the fact that two witnesses
possibly possessed exculpatory evidence but did not disclose
what that evidence was. See also United States v. Clark, 928
F.2d 733, 738 (6th Cir. 1991) (quotations and citation
omitted) (holding that there is no Brady violation if the
defendant “knew or should have known the essential facts
permitting him to take advantage of any exculpatory
information or where the evidence is available to defendant
from another source”). The Fourth Circuit has held that “the
Brady rule does not apply if the evidence in question is
available to the defendant from other sources,” United States
v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) (quoting United
States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)); and
“where the exculpatory information is not only available to
the defendant but also lies in a source where a reasonable
defendant would have looked, a defendant is not entitled to
the benefit of the Brady doctrine. Id. at 381. The Second
Circuit (United States v. Grossman, 843 F.2d 78, 85 (2d Cir.
1988)) and the First Circuit (Lugo v. Munoz, 682 F.2d 7, 9-10
(1st Cir. 1982)) have similarly ruled.
Spirko contends that the state violated the requirements of
Brady by failing to turn over to his counsel all of the
investigative reports and photographs regarding Delaney
Gibson’s whereabouts at the time of the abduction and murder
of Mrs. Mottinger. It is undisputed that Spirko’s defense
counsel stipulated prior to trial that they had received from
the state memoranda of interviews of Gibson done on
April 21, 22 and 29, 1983; the “Interview Concerning
Delaney Gibson. a) Roger Burress [the owner of one of the
farms on which Gibson worked picking tomatoes during the
summer of 1982] b) Margie Gibson;” a photograph of
14 Spirko v. Mitchell No. 00-4385
Delaney Gibson; and “Information concerning Delaney
Gibson: Mr. Michael Bentley, Box 425, Ary Kentucky
41712, has stated that Delaney Gibson was with him and his
wife in North Carolina on 8/7/82 and 8/8/82 and that pictures
are purported to have been taken of the weekend in question.”
Spirko was thus on notice that there was evidence that
Delaney Gibson had been in North Carolina on the day before
the murder, and Spirko was given the identity and location of
some of the witnesses to Gibson’s whereabouts on that day.
The state court made factual findings that Spirko’s counsel
had notice of this evidence; those findings are amply
supported by the record and are binding on the federal habeas
court under the pre-AEDPA 28 U.S.C. § 2254(d).
Spirko’s complaint is essentially that he was entitled to
have all of the state’s evidence with regard to the North
Carolina alibi turned over to him. But this is not the law.
Like the defendant in Todd, Spirko was “aware of the
essential facts that would enable him to take advantage of the
exculpatory evidence.” Todd, 920 F.2d at 405. A reasonable
defendant would have pursued that inquiry—unless, of
course, he already knew that the inquiry would not in fact
result in exculpatory information—but Spirko did not do so.
We hold, consistent with Todd, Clark and Wilson, that
because the evidence was available to Spirko from other
sources than the state, and he was aware of the essential facts
necessary for him to obtain that evidence, the Brady rule does
not apply.
We hold further that Spirko has not demonstrated that this
evidence was of a kind that the state would have been
required to disclose under Brady. Spirko cannot demonstrate
that the evidence regarding Gibson’s alibi—that is, the claim
that Gibson was not and could not have been in Ohio on the
morning of August 9, 1982—is favorable to Spirko, and he
cannot demonstrate that he was prejudiced by the state’s
failure to disclose it.

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No. 00-4385 Spirko v. Mitchell 15
Spirko argues that the evidence was favorable to him
because, like the undisclosed evidence in Jamison v. Collins,
291 F.3d 380 (6th Cir. 2002), it undermined the theory of the
prosecution’s case. In Jamison, we held that evidence
withheld from the defendant was favorable to him because,
while it did not eliminate him as the perpetrator of the crime,
it did contradict the testimony of the chief prosecution
witness, undermine the prosecution’s theory of how the
murder was committed, impeach the testimony of key
prosecution witnesses, and, in fact, point to the chief
prosecution witness and another individual as potential
suspects. Id. at 389-391. Here, however, the evidence
regarding Gibson’s whereabouts neither contradicts nor
undermines the state’s theory of the crime. While it is true
that Gibson was indicted for the murder, and the state viewed
him as probably having been the chief perpetrator, the state’s
case against Spirko was not dependent upon Gibson’s being
proven to be part of the crime. The state’s case against Spirko
was based principally on Spirko’s own statements to the
investigators demonstrating intimate knowledge of facts that,
in Spirko’s own words, “only the persons who did this shit
know.” Spirko knew.
The Gibson evidence does not prove that Gibson could not
have been in Elgin, Ohio, on the morning that the crime was
committed. More relevant to Spirko’s Brady claim, however,
is the fact that the Gibson evidence not only does not
eliminate Spirko as the perpetrator, it eliminates his best
defense. If Gibson was not a participant in the murder, then
he was not, as Spirko told the investigators and claimed at
trial, the source of all of Spirko’s detailed knowledge of the
crime. And if Spirko did not learn the details of this crime
from Gibson, from whence did all of that detail come?
Spirko cannot demonstrate that he was prejudiced by the
government’s failure to disclose the Gibson information.
Prejudice for Brady purposes, the Supreme Court said in
Strickler, is necessary to establish the “materiality”
requirement. Spirko may demonstrate that prejudice only by
16 Spirko v. Mitchell No. 00-4385
“convinc[ing] us that ‘there is a reasonable probability’ that
the result of the trial would have been different if the
suppressed documents had been disclosed to the defense.”
Strickler, 527 U.S. at 290. But here, even if Spirko could
demonstrate that the Gibson evidence proved beyond question
that Gibson could not have been part of the crime, he cannot
show a reasonable probability that by presenting that evidence
to the jury, he could have cast the entire case “in such a
different light as to undermine confidence in the verdict,”
Kyles, 514 U.S. at 435, or that, if the evidence had been
disclosed to him, “the result of the trial would have been
different.” Strickler, 527 U.S. at 289. As we have already
noted, if the jury had concluded that Gibson could not have
been one of the perpetrators, then the jury would also have
concluded that Gibson could not have been the source of
Spirko’s detailed knowledge of the crime. And, alternatively,
Spirko has certainly not demonstrated that if he had been
aware of this evidence—and thus had known that Gibson was
not involved in the crime—he could have come up with a
better story about how he came to know so much about the
murder. This evidence was simply not material.
In the statement of facts contained in his brief on appeal,
Spirko claims that the state also failed to provide him with
investigative records from the massive investigation.
Specifically, Spirko points to those containing information
allegedly inculpating other individuals in the abduction and
murder of Mrs. Mottinger, and detailing the interviews of
persons who failed to place either Gibson or Spirko at the
post office at the time of the abduction. His brief does not,
however, contain any legal argument with regard to any of
these individuals or demonstrate that any of the evidence he
points to meets the Kyles and Strickler requirements of
materiality.
By failing to provide the court with any developed legal
argument with regard to the individuals, Spirko has waived
any argument he might have. “It is a ‘settled appellate rule
that issues adverted to in a perfunctory manner,

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No. 00-4385 Spirko v. Mitchell 17
unaccompanied by some effort at developed argumentation,
are deemed waived.’” United States v. Elder, 90 F.3d 1110,
1118 (6th Cir. 1996) (quoting United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990)). We have nonetheless reviewed
the record with regard to these claims, and we conclude that
they are entirely without merit. Looking first at the
interviews of individuals who did not see either Gibson or
Spirko in the vicinity of the post office on the morning of the
abduction, we find that the record clearly demonstrates that
these individuals did not see anyone or anything out of the
ordinary. That there were people on the scene who did not
notice anything out of place or any strange faces is neither
favorable to Spirko nor exculpatory of him, nor would the
disclosure of all of the state’s information about these people
have been reasonably likely to bring about a different result
at trial.
We have also carefully reviewed Spirko’s claims that
various individuals interviewed or investigated were potential
suspects such that the investigative reports should have been
disclosed to him by the state. The district court concluded,
and we agree, that the record does not support the readings of
these reports that Spirko urges; the record does support the
state’s conclusions that no credible evidence supported any
further investigation into any of them as potential suspects.
Most importantly, nothing revealed in any of the investigative
reports about these individuals in any way undermines the
state’s case against Spirko because nothing in these reports
eliminates Spirko as a participant in the crime or provides a
plausible and innocent explanation for his detailed knowledge
of it. This information is neither favorable to Spirko nor
material to his defense.
The one piece of information to which Spirko points that,
at first blush, might give us pause, is his claim that one of the
prosecution’s witnesses, Debbie Young, the sister of John
Willier, was intimately involved during the trial with the
prosecution’s chief investigator. On closer review, however,
this information is no more exculpatory or impeaching than
18 Spirko v. Mitchell No. 00-4385
any other that Spirko proffers as evidence that the state
violated the requirements of Brady. Before the district court,
Spirko theorized that Willier had killed Mrs. Mottinger in
Willier’s trailer. Spirko has provided virtually no factual
basis in his brief on appeal for this theory of the crime; he has
developed no legal argument in his brief for his claim that
evidence of Willier’s sister’s relationship with the
investigator would have been either exculpatory or
impeaching; he provides no explanation of how Ms. Young’s
testimony was affected by the alleged relationship with the
investigator or, indeed, the substance of that testimony, and
none of Ms. Young’s testimony appears in the Joint
Appendix. Neither is there any evidence in the record that
would support Spirko’s theory that Mrs. Mottinger was killed
in Willier’s trailer.
A review of the record of the prior proceedings in this
matter establishes that Spirko bases this entire Brady claim on
wholly unsupported speculation. Spirko testified at trial that
sometime after the time of the murder, he and Gibson had
gone to a trailer in a trailer park, and that he had seen a large
quantity of “thick, gooey blood in the bathtub” of the trailer.
Spirko did not testify that the trailer belonged to or was lived
in by John Willier, and the record contains no evidence
whatsoever that Spirko was ever in John Willier’s trailer.
Only if the record established that Spirko was in John
Willier’s trailer around the time of the murder could we even
possibly draw the inference that Spirko apparently believes
we should draw, namely that Mrs. Mottinger was killed in
John Willier’s trailer.
We learn from reviewing the record of prior
proceedings—because Spirko’s brief contains neither facts
nor argument with regard to this testimony—that Ms. Young
testified that she had been in her brother John Willier’s trailer
every day for several days after the murder and saw no
evidence of blood in the bathtub. Spirko’s father testified to
the same effect. Spirko would have us infer that Ms. Young’s
testimony was false, apparently because of her relationship

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No. 00-4385 Spirko v. Mitchell 19
with the chief investigator. But only if there were evidence
that Spirko was ever in John Willier’s trailer would any
testimony by Ms. Young that there was no blood in the
bathtub in that trailer have any relevance to the charges
against Spirko. The record contains no such evidence.
The district court concluded that none of this information
was of sufficient probative value to create any doubt about the
verdict against Spirko. While we do not entirely subscribe to
the district court’s conclusion that Ms. Young’s relationship
with the investigator would have had no impact on the jury’s
assessment of her credibility, we find no error in the court’s
overall assessment of this Brady claim. Spirko has wholly
failed to demonstrate a reasonable probability that if the
information to which he points had been disclosed to him “the
result of the trial would have been different.” Strickler, 527
U.S. at 289. This alleged Brady claim, like all of the others,
is without merit.
Finally, we must consider whether, even if any of this
evidence met the Brady requirements, Spirko would have
been convicted on evidence unaffected by that which was not
disclosed. We hold that clearly he would. As we have
repeatedly pointed out, Spirko’s conviction rested in large
measure on his knowledge of non-public facts about the
crime, all of which he volunteered to the investigators. The
evidence from his own mouth was accompanied by the
testimony of two of his cellmates who testified that Spirko
told them about the murder and his part in it. There is no
reasonable probability that anything that he now complains
the state failed to disclose to him would have made any
difference in the result of the trial.
To summarize, we hold that the state did not violate the
requirements of Brady with regard to any of the evidence of
which Spirko complains. The Brady rule does not apply to
the evidence of Gibson’s whereabouts the day before the
murder because Spirko was on notice of the essential facts
necessary to permit him to obtain it through other sources.
20 Spirko v. Mitchell No. 00-4385
Even if that evidence should have been disclosed, Spirko has
not demonstrated that it or any of the undisclosed evidence to
which he points was favorable to him or that he was
prejudiced by its nondisclosure. The Brady claims are
without merit. The district court carefully and correctly
assessed each of the other claims of error raised in this appeal,
and we now affirm in its entirety the district court’s judgment
denying the petition for a writ of habeas corpus.

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No. 00-4385 Spirko v. Mitchell 21
_______________
DISSENT
_______________
RONALD LEE GILMAN, Circuit Judge, dissenting.
I. OVERVIEW
As conceded in the appellate brief of Spirko’s counsel,
“John Spirko lied.” This incontestible conclusion is well-
documented in the majority opinion’s recitation of the many
inconsistent stories that Spirko told to Inspector Hartman.
But lying is not a capital offense. And while the record leaves
no doubt about Spirko’s falsifications, it leaves me with
considerable doubt as to whether he has been lawfully
subjected to the death penalty in light of the state’s alleged
Brady violation.
The case against Spirko is far from overwhelming. It is
substantially based upon three evidentiary pillars: (1) an
eyewitness who was “100% sure” that Spirko’s best friend,
Delaney Gibson, was at the Elgin, Ohio post office when the
postmistress was abducted, (2) another eyewitness who was
“70% sure” that Spirko was also at the scene, and (3) Spirko’s
knowledge of factual details concerning the murder that were
not known to the general public. Each of these pillars,
however, has a foundation of sand. The “certain”
identification of a clean-shaven Gibson is cast in grave doubt
both by photographs and receipts in the possession of the
state, but not disclosed to the defense, indicating that Gibson
had a full beard immediately before the date of the abduction,
and by statements made to investigators by several people
who said that Gibson had a full beard during the entire
summer of 1982. As for Spirko’s presence at the scene, a
confidence level of only 70% is far from “beyond a
reasonable doubt.” Finally, Spirko’s knowledge could have
come from second-hand repetition rather than first-hand
participation.
22 Spirko v. Mitchell No. 00-4385
A striking fact about the record in this case is the complete
absence of any forensic evidence linking Spirko to the crime.
There are no fingerprints, footprints, fibers, blood, or stolen
items to bolster the state’s case. Nor is there any written or
recorded confession of guilt by Spirko or incriminating
testimony by a witness who turned state’s evidence.
(Although two of Spirko’s former cellmates testified at trial
that Spirko admitted to them that he murdered Mottinger,
those cellmates have subsequently recanted their testimony,
either directly or indirectly.) We are thus left with nothing
other than the three shaky pillars described above. This does
not negate the fact that a jury could, in a fairly conducted
trial, find Spirko guilty beyond a reasonable doubt; but the
closeness of the question obviates the possibility of harmless
error and requires us to be more sensitive to any material
procedural violations by the state. See Lindsey v. King,
769 F.2d 1034, 1042 (5th Cir. 1985) (stating that “petitioner
should receive the benefit of the doubt” in a capital case
where “there is a real possibility that the wrong man is to be
executed”).
II. ALLEGED BRADY VIOLATION
The alleged procedural violation that is key to this appeal
is the very one discussed by the majority opinion—Spirko’s
claim that the state failed to turn over to him exculpatory and
impeachment information that would have materially aided
his defense. Pursuant to Brady v. Maryland, 373 U.S. 83
(1963), “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment.” Id. at 87. The Supreme Court has summarized
the components of a Brady violation as follows:
The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertantly; and prejudice
must have ensued.

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No. 00-4385 Spirko v. Mitchell 23
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice
exists “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985).
On habeas review, a federal court must ask whether the
defendant “received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A reasonable probability
of a different result is accordingly shown when the
government’s evidentiary suppression undermines confidence
in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419,
434 (1995) (quotation marks omitted). “Allegations of
violations of Brady v. Maryland, 373 U.S. 83 (1963), present
mixed questions of law and fact which this Court reviews de
novo.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000)
(parallel citations omitted).
Because Spirko initiated his federal habeas corpus action in
March of 1995, prior to the effective date of AEDPA, we
apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Federal courts, prior to
AEDPA, were required to hold an evidentiary hearing
“[w]here the facts are in dispute” and “the habeas applicant
did not receive a full and fair evidentiary hearing in a state
court, either at the time of the trial or in a collateral
proceeding.” Townsend v. Sain, 372 U.S. 293, 312 (1963),
overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1, 6 (1992).
A. Is the evidence in question favorable to Spirko?
The first step in analyzing the Brady issue is to ask whether
the withheld evidence is favorable to Spirko as either
exculpatory or impeaching. At trial, the state’s theory of the
case was that Spirko and Gibson jointly abducted and
murdered Mrs. Mottinger. In support of this theory, the state
elicited the testimony of Opal Siebert, who lived across the
street from the Elgin post office. Siebert testified that she was
24 Spirko v. Mitchell No. 00-4385
“100% sure” that she saw Spirko’s friend Gibson outside the
post office on the morning of August 9, 2002. When
interviewed on the day of the incident, Siebert described the
man she had seen as clean-shaven. She also selected a
photograph of a clean-shaven Gibson from an array in late
January of 1983, more than five months after the crime
occurred.
The withheld evidence directly contradicts both the
government’s theory of the case and Siebert’s testimony.
Gibson told investigators that he was in North Carolina on
August 9, 1982. His story was at least partially corroborated
by interviews with Gibson’s wife, Margie, and with Margie’s
sister and brother-in-law, Brenda and Michael Bentley, who
accompanied the Gibsons on the trip to North Carolina. The
Bentleys told investigators that they had last seen the Gibsons
in Asheville, North Carolina at approximately 6 p.m. on
August 8. Asheville is roughly 500 miles away from Elgin,
Ohio.
Although the state informed Spirko that investigators had
spoken with Margie Gibson and Michael Bentley, it failed to
disclose the fact that the investigators had received physical
evidence during those interviews. The Bentleys provided the
investigators with receipts from an automotive store in North
Carolina dated August 7 and from a hotel in Newport,
Tennessee where the Bentleys stayed on the night of
August 8, along with 40 photos of themselves and the
Gibsons that were allegedly taken that weekend. Margie
Gibson provided investigators with 18 similar photos
allegedly taken during the same period of time. All of the
photos showed Gibson with a full beard. These photos and
the receipts corroborate Gibson’s alibi and therefore tend to
prove, although they cannot conclusively demonstrate, that
both the government’s theory of the case and Siebert’s
eyewitness identification were faulty. Because the withheld
physical evidence appears to be both exculpatory and
impeaching, it is favorable to Spirko within the meaning of
Brady.

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No. 00-4385 Spirko v. Mitchell 25
B. Was the evidence at issue suppressed by the state?
Brady next requires us to determine whether the evidence
in question was suppressed by the state. This court has held
that Brady is not violated where the defendant is “aware of
the essential facts that would enable him to take advantage of
the exculpatory evidence,” even if the government does not
disclose the evidence itself. United States v. Todd, 920 F.2d
399, 405 (6th Cir. 1990).
In Todd, the government refused to disclose reports
prepared after FBI interviews with Todd’s brother and the
brother’s girlfriend. Id. at 404. This court concluded that no
Brady violation occurred because Todd was informed before
trial that both interviewees had potentially exculpatory
information, and Todd had an opportunity to interview them.
Id. at 405. The “essential facts” in Todd, then, were the
identities of the two potential witnesses; once Todd had that
information, he was free to interview them in order to obtain
the exculpatory evidence.
In the present case, in contrast, the issue is not whether
Spirko could have interviewed the Gibsons and the Bentleys,
but whether he could have obtained the photos and receipts
that they had given to the state. The prosecution informed
Spirko only that “pictures are purported to have been taken of
the weekend in question.” This statement is misleading. A
statement informing Spirko that investigators had received
pictures that were purportedly of the weekend in question
would have been accurate; but it was entirely incorrect for the
prosecution to say that “pictures are purported to have been
taken . . . .” At the time the statement was made, the
prosecution knew that photos had in fact been taken and were
in the state’s possession. There was nothing “purported”
about those facts. But the statement to Spirko suggested that
the state possessed no photos. And the prosecution made no
mention of the Bentley’s receipts that tended to corroborate
Gibson’s presence in North Carolina on the date of the
abduction.
26 Spirko v. Mitchell No. 00-4385
Unlike the situation in Todd, Spirko was not “aware of the
essential facts that would enable him to take advantage of the
exculpatory evidence.” 920 F.2d at 405. The “essential
facts” in this case appear to be that the state possessed
material photos and receipts, and these facts were not
disclosed to Spirko. Todd is therefore distinguishable.
Spriko has thus presented a prima facie case that the physical
evidence at issue was suppressed by the state, satisfying the
second component of a Brady violation.
C. Was Spirko prejudiced by the suppression of the
favorable evidence?
The final step in the Brady analysis is to determine whether
Spirko was prejudiced by the state’s suppression of evidence
favorable to his defense. In other words, does the suppression
of the pertinent evidence “undermine[] confidence in the
outcome of the trial”? Kyles v. Whitley, 514 U.S. 419, 434
(1995) (quotation marks omitted). This question effectively
requires us to assess the probability of a different outcome if
the state had disclosed its possession of the photos and
receipts to Spirko. Spirko has presented some evidence on
this point. His trial counsel have signed affidavits stating that
they doubted the credibility of Gibson’s alibi and therefore
did not pursue that line of defense. The lawyers contend that
if they had known about the evidence corroborating Gibson’s
alibi, they would have used that evidence to attack the state’s
case at trial.
Whether this would have been sufficient to change the
jury’s verdict or Spirko’s sentence is very much in dispute.
The majority contends that using the Gibson alibi evidence
would have actually increased Spirko’s chances of conviction
and a death sentence because
the Gibson evidence not only does not eliminate Spirko
as the perpetrator, it eliminates his best defense. If
Gibson was not a participant in the murder, then he was
not, as Spirko told the investigators and claimed at trial,

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No. 00-4385 Spirko v. Mitchell 27
the source of all of Spirko’s detailed knowledge of the
crime. And if Spirko did not learn the details of this
crime from Gibson, from whence did all of that detail
come?
Maj. Op. at 15. But Spirko presents an equally plausible, but
very different, outcome:
If the prosecution had fulfilled its Brady obligations, Mr.
Spirko would not have testified as to Delaney Gibson’s
alleged involvement. . . . Moreover, had the prosecution
turned over the Brady material, Mr. Spirko’s attorneys
could have used it to show that his statements to
investigators concerning Delaney Gibson—like all of his
other statements—were not true. . . . Armed with this
evidence, the defense would have destroyed the
prosecution’s fundamental theory of the case, would have
completely undermined Mrs. Siebert’s testimony, and
would have discredited Mr. Spirko’s statements to
investigators concerning Delaney Gibson. Such evidence
plainly would have had a significant impact on the
overall trial . . . .
Spirko further states that
even if [his] statements to investigators included
information that only someone involved in the crime
could know, such statements do not demonstrate that [he]
was involved in the crime. He could well have obtained
the information from someone who was (or even was
not) involved in the crime or he could have obtained the
information from the investigators themselves.
Spirko’s arguments are at least plausible. I am therefore
unable to say with confidence that the prosecution’s failure to
disclose the photos and receipts was harmless. Because “the
government’s evidentiary suppression undermines confidence
in the outcome of the trial,” “[a] reasonable probability of a
28 Spirko v. Mitchell No. 00-4385
different result is accordingly shown.” Kyles, 514 U.S. at 434
(quotation marks omitted).
The Fifth Circuit made this point in a similar case involving
an alleged Brady violation: “This is a capital case . . . and one
moreover in which our reading of the evidence shows there is
a real possibility that the wrong man is to be executed. In
such a case, if ever, petitioner should receive the benefit of
the doubt.” Lindsey v. King, 769 F.2d 1034, 1043 (5th Cir.
1985); see also Kyles, 514 U.S. at 422 (stating that a federal
court’s “duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital
case”). Like the Fifth Circuit in Lindsey, we are dealing with
a capital case where the defendant’s conviction and death
sentence rests on relatively weak evidence—the three shaky
pillars discussed above. I therefore believe that any doubt
about whether there is a reasonable probability of a different
result should be resolved in favor of Spirko.
III. EVIDENTIARY HEARING
For all of the reasons set forth above, this court should
remand the case to the district court for an evidentiary hearing
on Spirko’s Brady claim. Under pre-AEDPA law, which we
must follow in this case, a habeas petitioner is entitled to an
evidentiary hearing if “for any reason it appears that the state
trier of fact did not afford the habeas applicant a full and fair
fact hearing.” Townsend v. Sain, 372 U.S. 293, 313 (1963),
overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1, 6 (1992). Spirko points out that, despite his requests,
he has not received an evidentiary hearing on his Brady claim
in any state or federal court. An evidentiary hearing would
allow the district court to determine whether the state in fact
violated Spirko’s constitutional rights by not turning over to
the defense the photos and receipts in its possession.
Accordingly, this court should vacate the judgment of the
district court and remand the case for an evidentiary hearing
on Spirko’s Brady claim.

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