                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0149a.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                        X
                                  Petitioner-Appellant, -
 FRANK G. SPISAK, JR.,
                                                         -
                                                         -
                                                         -
                                                                 No. 03-4034
             v.
                                                         ,
                                                          >
 STUART HUDSON, Warden,                                  -
                                  Respondent-Appellee. -
                                                        N

                                       Filed: April 11, 2008
                     Before: MARTIN, MOORE and CLAY, Circuit Judges.
                                     ______________________
                                       AMENDED ORDER
                                     ______________________
        On October 20, 2006, this Court issued an opinion partially granting habeas relief to
Petitioner, Frank G. Spisak, and ordering a new mitigation phase trial. Spisak v. Mitchell, 465 F.3d
684 (6th Cir. 2006). Specifically, this Court found that Spisak received ineffective assistance of
counsel and that the jury instructions at the penalty phase of Spisak’s trial unconstitutionally
required the jury to be unanimous in its findings with respect to mitigating evidence. Respondent
warden thereafter filed a petition for writ of certiorari with the United States Supreme Court. On
October 9, 2007, the Supreme Court granted certiorari, vacated the judgment of this Court, and
remanded the case to this Court for further consideration in light of Carey v. Musladin, 127 S.Ct.
649 (2006), and Schriro v. Landrigan, 127 S.Ct. 1933 (2007). After careful review and
consideration of Musladin and Landrigan, we find that neither of the cases require reversal of our
prior disposition of this case. Accordingly, we reinstate our opinion of October 20, 2006, partially
granting habeas relief and ordering a new mitigation phase trial.
         In Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2006), this Court partially granted habeas relief
to Petitioner on two grounds. First, this Court found that Petitioner was prejudiced by his counsel’s
deficient performance at the sentencing phase of Petitioner’s trial inasmuch as counsel’s closing
argument focused almost entirely on the heinous nature of Petitioner’s crimes and his deficient
nature as a person. Defense counsel in no way attempted to rehabilitate Petitioner in the eyes of the
jurors who would eventually have to decide whether to recommend the death penalty. There is no
evidence in the record suggesting that Petitioner in any way contributed or consented to counsel’s
outrageous remarks during closing arguments. Relying on Supreme Court precedent applying the
standard for ineffective assistance of counsel, this Court reasoned that defense counsel’s conduct
was so deficient, prejudicial and indeed, egregious, that it “undermined the proper functioning of
the adversarial process” such that “the trial cannot be relied upon as having produced the just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).




                                                   1
No. 03-4034               Spisak v. Hudson                                                                      Page 2


        Second, this Court found that Ohio’s so-called “acquittal first” instruction impermissibly
limited the jury’s evaluation of mitigating evidence in violation of the Eighth Amendment. Relying
on Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990), we
held that “[w]hile a trial court’s sentencing phase instructions may require juror unanimity as to the
results of the process of weighing aggravating circumstances and mitigating factors, the instructions
cannot require unanimity as to the presence of a mitigating factor.” Spisak, 465 F.3d at 708. At the
sentencing phase of Petitioner’s trial, the trial court instructed the jury that before a life sentence
could be imposed, that it must find that the prosecution failed to prove that the aggravating
circumstances outweighed the mitigating factors beyond a reasonable doubt. The trial court did not
instruct the jury, however, that such a finding need not be unanimous. Moreover, the verdict form
given to the jury reflected a unanimity requirement with respect to the finding that the mitigating
factors outweigh the aggravating factors inasmuch as the form required twelve signatures before the
jury could impose a life sentence. This, we found, impermissibly imposed a unanimity requirement
on the jury’s ability to find mitigating factors in violation of federal law as announced in Mills and
McKoy.
       Based on these two grounds, we found that Petitioner’s conviction resulted from an
unreasonable application of federal law as announced by the Supreme Court, and that Petitioner
therefore overcame the high bar for habeas  relief established by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”);1 consequently, we remanded for a new mitigation phase
trial.
       Upon review of Musladin and Landrigan, we find that they are readily distinguishable, and
therefore Petitioner remains entitled to habeas relief as a result of the ineffective assistance of
counsel at the mitigation phase of his trial and the “acquittal first” jury instruction.
         In Carey v. Musladin, a habeas petitioner sought a writ of habeas corpus contending that he
had been denied a fair trial after trial spectators wore buttons to the trial which displayed a picture
of the murder victim. 127 S.Ct. at 651. A state court held that the display of buttons picturing the
victim did not deny the defendant his right to a fair trial. Id. The Ninth Circuit Court of Appeals
reversed, finding that the state court’s decision was “contrary to or an unreasonable application of,
clearly established federal law as determined by the Supreme Court.” The Ninth Circuit applied
Estelle v. Williams, 425 U.S. 501 (1976) (defendant forced to wear prison garb by the state denied
right to a fair trial) and Holbrook v. Flynn, 475 U.S. 560 (1986) (finding that the seating of “four
uniformed state troopers” in spectators row immediately behind defendant constituted the denial of
the right to a fair trial) to find that the spectators’ conduct was so inherently prejudicial that it denied
the defendant his right to a fair trial. Id. at 652. The Supreme Court reversed, noting that whether
spectator conduct, as opposed to state sponsored courtroom practices, could violate a defendant’s
constitutional right to a fair trial was “an open question in our jurisprudence.” Id. at 654. Indeed,
at the time Musladin was decided, courts across the country held divergent views on the application
of Williams and Flynn to spectator conduct. Id. (collecting cases). Consequently, the failure of the
state court to extend Williams and Flynn to spectator conduct was not an “unreasonable application”
of “clearly established” federal law. Id.
       In our view, Musladin is readily distinguishable from Spisak. First, Musladin is factually
inapposite. Musladin involved a habeas petition alleging an infringement on the right to a fair trial
based upon spectator conduct whereas Spisak alleged constitutionally ineffective assistance of

         1
           Under AEDPA, an application for a writ of habeas corpus will not be granted unless the prior state
proceedings (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) involved “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).
No. 03-4034           Spisak v. Hudson                                                          Page 3


counsel as a result of counsel’s arguments to the jury and an impermissible “acquittal first”
instruction at the penalty phase of Petitioner’s trial.
        Second, unlike Musladin, our holdings in Spisak did not address an undeveloped area of the
law; rather, this Court’s holdings partially granting habeas relief relied on well-settled Supreme
Court precedent regarding ineffective assistance of counsel at the sentencing phase of trials, i.e.,
Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003) and the
prohibition against unanimity standards with respect to the finding of mitigation factors, i.e., Mills
v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990). Federal law
regarding ineffective assistance of counsel and penalty phase jury instructions of the kind addressed
in Spisak was therefore “clearly established.”
         Third, the fact that the Supreme Court has not squarely addressed a situation involving a
counsel’s deficient performance during closing arguments of the mitigation phase of a trial or the
specific type of instruction given here does not preclude this Court’s finding that the state court
unreasonably applied federal law. Indeed, as the Supreme Court recently noted in Panetti v.
Quarterman, 551 U.S. –, 127 S. Ct. 2842 (2007), “AEDPA does not ‘require state and federal courts
to wait for some nearly identical factual pattern before a legal rule must be applied.’” Id. at 2858
(quoting Musladin, 127 S.Ct. at 656 (Kennedy, J., concurring)). Accordingly, we may find the
application of a principle of federal law unreasonable despite the “involve[ment of] a set of facts
‘different from those of the case in which the principle was announced.’” Id. (quoting Lockyer v.
Andrade, 538 U.S. 63, 76 (2003)); see also Smith v. Patrick, 508 F.3d 1256, 1259 (9th Cir. 2007)
(“Habeas relief is appropriate under the ‘unreasonable application’ prong of section 2254(d)(1) when
a state court violates the principle of clearly established federal law that has been determined by the
Supreme Court . . . .”) (emphasis original). Thus, this Court’s holding in Spisak was consistent with
the mandate of AEDPA that federal courts are not to disturb state court determinations unless the
decision was “contrary to, or involved an unreasonable application of, clearly established Federal
law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
         In Schriro v. Landrigan, the Supreme Court considered whether a habeas petitioner presented
a colorable claim of ineffective assistance of counsel. 127 S.Ct. at 1937. In Landrigan, the
petitioner alleged that he received ineffective assistance of counsel after his lawyer failed to offer
mitigating evidence at sentencing and did not adequately investigate mitigating evidence. Id. at
1938. The Supreme Court, however, disagreed. Applying the Strickland standard, the Court found
that defense counsel’s performance was neither deficient nor did it prejudice the petitioner. Id. at
1944. The Court found that the petitioner could not demonstrate that his counsel was deficient in
failing to offer mitigating evidence at sentencing because the petitioner: (1) prohibited mitigation
witnesses from testifying regarding his difficult upbringing and family history of substance abuse;
(2) told the trial judge that no mitigating evidence existed; and (3) interfered with the presentation
of mitigation evidence. Id. at 1941-42. The petitioner even told the sentencing court “I think if you
want to give me the death penalty, just bring it right on. I’m ready for it.” Id. at 1943. Additionally,
the Court found that the petitioner could not demonstrate prejudice as a result of defense counsel’s
failure to further investigate mitigating evidence. The Court noted that the mitigating evidence that
would have been discovered was “weak” in comparison to the overwhelming aggravating evidence
and duplicative of the evidence that the petitioner had instructed counsel not to introduce regarding
his family history. Id. at 1944. Consequently, the petitioner was denied habeas relief as he could
not make out a colorable claim of ineffective assistance of counsel.
       In Spisak, however, the story is quite different. Unlike Landrigan, Defense counsel in Spisak
was clearly deficient inasmuch as he described Petitioner as “undeserving of sympathy” and
“demented.” The evidence on the record demonstrates that counsel “was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. For
example, during his closing argument at the mitigation phase of trial, counsel engaged in a “graphic
No. 03-4034           Spisak v. Hudson                                                        Page 4


and overly descriptive recounting of Defendant’s crimes . . . .” Spisak, 465 F.3d at 705. Unlike
Landrigan, there is no evidence that Petitioner consented to this line of argumentation or prevented
counsel from presenting a more persuasive case for leniency. Rather, it appears that counsel
independently pursued this course of conduct and left Petitioner to suffer the consequences of the
prejudicial remarks. Indeed, the prejudice that occurred in this case is quite stark. Certainly, it is
one thing not to introduce mitigating evidence as in Landrigan, but it is quite another to lend
credence to the aggravating evidence presented by the prosecution by essentially describing one’s
own client as a monster. We remain convinced that had Spisak’s counsel not demonized Spisak in
his arguments to the jury, there is a reasonable probability that at least one juror would have had a
different opinion of the proper outcome in this case.
       For the reasons stated above, we reinstate our previous opinion in this matter, Spisak v.
Mitchell, 465 F.3d 684 (6th Cir. 2006), and remand Petitioner’s case to the district court for further
proceedings consistent with our previous disposition.
       IT IS SO ORDERED.
No. 03-4034           Spisak v. Hudson                                                         Page 5


        KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. I
concur in the majority order reinstating the opinion of October 20, 2006, but again dissent as to Issue
1 and reinstate my prior opinion as well. In Panetti v. Quarterman, 551 U.S. –, 127 S. Ct. 2842
(2007), the Supreme Court clarified its holdings in Schriro v. Landrigan, 550 U.S. –, 127 S. Ct. 1933
(2007), and Carey v. Musladin, 549 U.S. –, 127 S. Ct. 649 (2006). Panetti solidifies my position
in this case by clearly stating that “AEDPA does not ‘require state and federal courts to wait for
some nearly identical factual pattern before a legal rule must be applied.’” Panetti, 127 S. Ct. at
2858 (quoting Musladin, 127 S. Ct. at 656 (Kennedy, J., concurring)). “Nor does AEDPA prohibit
a federal court from finding an application of a principle unreasonable when it involves a set of facts
‘different from those of the case in which the principle was announced.’” Id. (quoting Lockyer v.
Andrade, 538 U.S. 63, 76 (2003)). A recent Ninth Circuit decision (generated after the Supreme
Court vacated and remanded a case for it to address the effect (if any) of Musladin) noted, after
citing Panetti, that “[h]abeas relief is appropriate under the ‘unreasonable application’ prong of
section 2254(d)(1) when a state court violates the principle of clearly-established federal law that
has been determined by the Supreme Court.” Smith v. Patrick, 503 F.3d 1256, 1259 (9th Cir. 2007)
(citing Williams v. Taylor, 529 U.S. 362 (2000)). The constitutional principles derived from
Chambers v. Mississippi, 410 U.S. 284, 302 (1973), and Crane v. Kentucky, 476 U.S. 683, 690
(1986), not their specific facts, remain key in this case. Because Spisak’s entire defense centered
on his alleged insanity, the Supreme Court of Ohio’s decision not to allow evidence critical to this
defense (and its refusal to submit the insanity defense to the jury) violated his right, clearly
established in Chambers and Crane, to present evidence essential to his defense. Therefore, once
again, I respectfully dissent from the majority’s treatment of Spisak’s insanity defense, and I
reinstate my dissent.


                                               ENTERED BY ORDER OF THE COURT


                                                     /s/ Leonard Green
                                               ___________________________________
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