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

                            1
No. 00-4385                                     Spirko v. Mitchell            3    4    Spirko v. Mitchell                          No. 00-4385

innocence claim; 6) Spirko was denied due process by the                           found in a bean field in neighboring Hancock County. The
prosecution’s use of a suggestive photo array and                                  body, bearing between fourteen and eighteen stab wounds to
hypnotically refreshed testimony, and by his trial in an                           the chest and stomach, was fully clad, wrapped in a paint-
improper venue; 7) the district court erred in denying Spirko’s                    splattered curtain which appeared to have been used by
request for discovery and an evidentiary hearing; 8) Spirko                        painters as a drop-cloth, and tied with a cord similar to a
was denied due process as a result of several errors during the                    clothesline.
sentencing phase of the trial. After reviewing the district
court’s exhaustive opinion, we conclude that we agree with its                       The investigation into the abduction and death of Mrs.
findings and its conclusions1, and we will not separately                          Mottinger was massive. Authorities interviewed over three
address any of Spirko’s claims except those relating to the                        thousand people and spent countless man hours seeking
alleged Brady violations. We think that the Brady claims,                          information to solve the crime. The prosecution followed
although ultimately meritless, deserve specific attention.                         anonymous leads, tips based on old hearsay, and any trail that
                                                                                   might lead to probative evidence. The record is enormous
  The only Brady claim that Spirko actually argues in his                          and contains reports from the interviews and documents from
brief is that the state withheld from him evidence that an                         the investigative efforts. Among the interviews documented
individual named Delaney Gibson, who was indicted with                             in the record are the many interviews of the petitioner, John
Spirko for the murder but escaped and remained a fugitive                          Spirko.
until well after Spirko had been tried and convicted, could not
have been present when the murder was committed. It is                               In October of 1982, Spirko initiated contact with law
useful to recount the facts relevant to this claim.                                enforcement officers, including postal inspectors. Spirko,
                                                                                   who was then in jail in Lucas County, Ohio, on unrelated
  At approximately 8:30 a.m. on August 9, 1982, Betty Jane                         charges, told the officers that he had information about Mrs.
Mottinger was discovered to be missing from her post as                            Mottinger’s killing, and suggested that in exchange for the
postmistress of the Elgin, Ohio, Post Office in Van Wert                           officers’ help on those charges, he could help them in the
County. Also missing were Mrs. Mottinger’s purse and                               Mottinger case. Over the next several weeks, Spirko gave a
approximately $750 in cash, postage stamps and money                               series of differing accounts of the murder. His tales included
orders. Some three weeks later, her decomposing body was                           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
    1                                                                              where an unnamed person had told him that three white males
       The district court held that although Spirko filed his habeas petition
prior to the effective date of the Anti-terrorism and E ffective D eath            had murdered Mrs. Mottinger after the three had gone to the
Pen alty Act (“AEDPA” or “the Act”), the AEDPA is retroa ctively                   post office to claim a package containing heroin, had gotten
app licable to the petition. The district court noted that Spirko did not          into some kind of scuffle, and had been forced to kidnap the
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
                                                                                   postmistress. According to Spirko, while he was at the party,
Act. The district court’s retroactive ap plicatio n of AED PA to this petition     he saw a cream-colored handbag with brown trim, containing
was error. We have reviewed the petition under the pre-AEDPA standard,             coins, some money orders and gold jewelry. He changed his
see Lindh v. Murphy, 521 U.S. 320, 326 (1997), however, and conclude               story a few days later, telling Inspector Hartman at the outset
that the district court was correct in its conclusion that the outco me o f this   of the interview, “Look Paul, I’ve thrown you a few curves
case is the same when the pre-AED PA standard is applied, and therefore
we hold that the erro r is harmless.
                                                                                   and you have thrown me a few curves. From now on, it’s
No. 00-4385                                  Spirko v. Mitchell         5    6    Spirko v. Mitchell                          No. 00-4385

going to be straight down the line.” Spirko went on to say                   himself had been killed, he now said that Rooster’s body had
that he himself had been commissioned by The Dope Man2 to                    been deposited in a swamp in Florida. And on December 10,
retrieve a package containing heroin from a man named                        Spirko described to Inspector Hartman the clothing that Mrs.
Rooster, and claimed that Spirko and another man had driven                  Mottinger had been wearing when she disappeared.
to a house where Spirko saw Mrs. Mottinger’s body. Spirko
said that the body was already bound; that one of the men in                   Hartman next interviewed Spirko on December 13, 1982.
the house had unwrapped it to recover a cigarette lighter; and               Spirko now claimed that he and Swartz had actually been
the body had about 15 stab wounds. Spirko related further                    present when Mrs. Mottinger was killed. First, Spirko said
that the Dope Man decided that Rooster should be killed, and                 that while he was watching television in the house, Rooster
that Spirko had driven Rooster and two other persons to an                   had chased Mrs. Mottinger outside where Rooster and Dirty
undisclosed location where Rooster was shot and buried in a                  Dan had stabbed her. Later in the day, Spirko told Hartman
marsh.                                                                       that an unknown biker, along with Rooster and a man named
                                                                             Dean or Dino, had taken turns raping Mrs. Mottinger, and
   A few days later, Spirko expanded his story to include a                  when she tried to escape Spirko stopped her and held her
man named “Swartz,” who told him that Rooster and Dirty                      down while Rooster repeatedly stabbed her in the stomach.
Dan had killed Mrs. Mottinger because she had bitten Rooster
when he forced her to perform oral sex on him. Spirko                           When interviewed on December 15, 1982, Spirko claimed
claimed that he and Swartz had gone to the house where the                   that he and Dino, Dirty Dan, Rooster and the biker, had spent
murder was committed; there he saw Rooster and Dirty Dan                     the night of August 8th sleeping in a roadside park. The next
with blood on their clothes and a gray curtain which was torn                morning, Rooster, Dino and the biker went in to Elgin,
at the end; he also saw a brown car, inside of which was a                   kidnapped Mrs. Mottinger and brought her back to where
cream-colored purse with brown trim, containing money                        Spirko and Dirty Dan were parked on a road near the
orders, change and gold jewelry.                                             farmhouse where Spirko claimed the murder took place.
                                                                             Faced with the necessity of doing something with the victim
  The next day, December 9, Spirko again changed his story.                  because she could identify them, Rooster, the biker and Dirty
This time, he said it was in fact Rooster who had told him                   Dan first raped her—apparently out of the presence of Spirko
how the murder took place, and that Rooster had said that the                and Dino—and then, outside of the house and in front of
only thing that bothered him about the murder was the                        Spirko and Dino, stabbed her repeatedly. Rooster, the biker
“whoosh” sound that the knife made when he stabbed Mrs.                      and Dan rolled the body onto a piece of curtain they had in
Mottinger. Although Spirko stuck to his claim that Rooster                   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-
    2                                                                        to-end. Because Rooster had carelessly dropped his cigarette
       The Ohio Suprem e Court refers to “someone named V ito” in
relating this rendition of Spirko’s story, which appears to us to be
                                                                             lighter into the curtain during this process, they unwrapped
attributable to a court-reporting error. Throughout this part of Hartman’s   the body, recovered the lighter, and wrapped it up again.
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      Investigator Hartman testified that several aspects of this
reads: “The defendant was ultimately commission ed by Vito man to            evolving tale were of particular significance: the detail about
recover this parc el containing the narcotics.” No other reference to        the victim’s purse and its contents; the description of the
anyone named “V ito” appe ars.
No. 00-4385                           Spirko v. Mitchell     7    8     Spirko v. Mitchell                           No. 00-4385

clothing the victim had been wearing; the description of the      Rooster and Sizemore had attempted to rob the post office
curtain in which the body was wrapped, including the detail       while Gibson drove the get-away car. When the postmistress
that part of the curtain had been torn off; the description of    began to scream, Gibson went to the post office and helped
the way in which the body had been wrapped in that curtain;       the other two abduct Mrs. Mottinger. They then raped her
and the fact of the stone’s having been pried from the victim’s   and when she tried to escape, they stabbed her and dumped
ring. These factually accurate details were not matters that      the body. Spirko said that Gibson explained that they stabbed
had been made public.                                             the victim rather than using the guns to kill her because
                                                                  “where they were at, if they had shot her, it would have been
  On January 11, 1983, Hartman interviewed Spirko again.          their ass.” Gibson said that robbing the post office had been
By now, Spirko was in the federal penitentiary in                 stupid because there was no real money in it, and all they got
Leavenworth, Kansas, having been admitted into the federal        was change; he also explained that because the money orders
witness protection program. This time, Spirko advised             were traceable, they had burned them rather than cashing
Hartman that there had been no narcotics involved in the          them.
abduction and murder of Mrs. Mottinger, but that he had
heard that the entire incident began as a robbery attempt.          Of particular significance to Inspector Hartman were the
When Hartman refused to believe any of this allegedly third-      details about the .357 magnum (the investigation having
hand account, Spirko admitted that it was not true, but said      revealed that Gibson possessed such a firearm), the cream-
that he couldn’t tell the truth because he had to protect “the    colored purse and its contents, the description of the gray
only friend he ever had in his whole life.” Spirko went on to     curtain in the back seat of the car, the fact that the robbery had
say that this friend had been in the Elgin area immediately       primarily yielded change, and the fact that the money orders
after the crime was committed, and that Spirko had seen the       had been destroyed. Also important were the names of
proceeds from the post office robbery.                            Cravens and Sizemore, both of whom the investigators
                                                                  determined were real individuals; the inspectors found no
  The following day, Spirko identified his friend as Delaney      evidence connecting either of them to the robbery and
Gibson; Spirko said that on August 11 or 12, 1982, he had         murder.      Inspector Hartman also testified that the
gone drinking with Gibson and two individuals named Clyde         investigators looked into the other individuals whom Spirko
Cravens and Eugene Sizemore, and had learned that those           had named—in his pre-Leavenworth interviews—and had
three had robbed the post office and murdered Mrs.                determined that they were either real people who had no
Mottinger. Spirko said that Gibson had showed him the trunk       connection with the murder, or were people who apparently
of the car where they had put the body; the trunk was stained     did not exist.
and emitted a strong odor. Gibson also showed him a duffel
bag containing a collection of guns, including a chrome-             While he was in jail, Spirko wrote a letter to his girlfriend
plated .357 magnum with ivory handles, and a cream-colored        in which he said, “[T]here are some things that I told him
canvas purse containing money orders and change. Spirko           [Inspector Hartman] that only the persons who did this shit
said that he saw a rolled-up gray curtain on the floor of the     know, there are no if and ands about that.” Spirko was right.
back seat of Gibson’s car. He also stated that, a couple of       He had given the authorities facts about the crime that had not
weeks later, Gibson offered to pay Spirko to kill Clyde           been disseminated by the authorities and were not generally
Cravens, whom Gibson called “Rooster,” because he could           known by the public, including the number and location of
identify Gibson. According to Spirko, Gibson explained that       stab wounds on Mrs. Mottinger’s body; a description of the
No. 00-4385                            Spirko v. Mitchell      9    10   Spirko v. Mitchell                         No. 00-4385

clothing Mrs. Mottinger had been wearing when she was               stated that he thought he remembered three or four days
abducted; the fact that a stone had been pried from a ring she      during that period when Gibson was absent from work but he
had been wearing; a description of the type of fabric the body      could not remember when, exactly, the absences occurred.
was wrapped in as well as a description of the way the body
was wrapped; a description of her purse; and a description of          Postal inspectors interviewed Gibson’s wife, Margie, on
the contents of the purse.                                          December 21, 1983. Margie told them that sometime during
                                                                    the month of August, 1982, her sister and brother-in-law,
   A number of persons who had been in the vicinity of the          Brenda and Michael Bentley, had visited the Gibsons in North
post office around the time Mrs. Mottinger was abducted             Carolina, staying for a couple of days. Margie showed the
were interviewed. One of them, after viewing a photo array,         inspectors pictures—allegedly taken during the visit—of the
identified Delaney Gibson as a man she had seen getting out         Bentleys with Margie and a bearded Delaney Gibson. The
of a car with a “cinnamon top and a bronzish-brown bottom,”         inspectors also interviewed the Bentleys, who said that they
in front of the post office at 8:30 that morning. In the picture,   had visited the Gibsons in North Carolina on Saturday,
Gibson was clean-shaven. A second witness identified—with           August 7 and Sunday, August 8, 1982; had left North
about 70% certainty—Spirko from a photo array as the man            Carolina around 6:00 p.m. on August 8; and had driven north
he had seen at 8:30 that morning, standing by a copper-toned        to Newport, Tennessee, where they had stayed in a motel the
late 1970s car with a lighter top.                                  night of August 8. The Bentleys also had pictures that they
                                                                    said were taken during the visit. The postal inspectors were
  The investigators conducted a comprehensive investigation         able to verify the Bentleys’ overnight stay at a motel in
into Delaney Gibson. They discovered that Gibson was, as            Newport on Sunday night, August 8, 1982, as well as Brenda
Spirko claimed, a close friend and, in fact, one of Spirko’s        Bentley’s statement that she had dropped off two rolls of film
prior cellmates. After locating Gibson in North Carolina,           for processing on August 10.
police investigators interviewed him, eventually taking him
into custody. Gibson denied any involvement in the                     On January 11, 1984, the inspectors again interviewed
abduction or murder claiming that he was employed as a              Margie Gibson and obtained from her the photographs that
migrant worker in North Carolina during the time period             she claimed had been taken during the August, 1982, visit.
surrounding the incident. Gibson admitted to his friendship         The inspectors subsequently determined that Margie Gibson
with Spirko but claimed that he had not seen Spirko for years.      had taken film to be processed on August 17, 1982, and that
In August of 1983, Gibson escaped from police custody. He           a receipt from an automotive store in North Carolina near the
was indicted in September 1983, along with Spirko, for the          Gibson’s home, issued to “Jim Gibson” (one of Delaney
murder of Mrs. Mottinger, recaptured, and shortly before the        Gibson’s aliases) on August 7, 1982, was authentic.
date scheduled for Spirko’s trial, escaped again. Gibson
remained a fugitive until well after Spirko’s trial had been          Spirko claims that this evidence demonstrates that Gibson
completed.                                                          could not have been in Elgin, Ohio, on the morning of
                                                                    August 9, 1982, and that on that day Gibson was not clean
   The investigators interviewed Gibson’s sometime crew             shaven but wore a full beard. Spirko reasons that because the
chief, Juan Flores, who confirmed that he employed Gibson           theory of the state’s case against Spirko was that Gibson and
in North Carolina as a produce picker and that Gibson was in        Spirko had acted together in the abduction and murder of Mrs.
his employ from June, 1982, until October, 1982. Flores             Mottinger, evidence that Gibson was not in Ohio at the time
No. 00-4385                           Spirko v. Mitchell    11    12    Spirko v. Mitchell                           No. 00-4385

of the murder is evidence that also is exculpatory of Spirko.     the verdict.” Id. at 435. The Court noted that if the
The state’s failure to turn this evidence over to him, Spirko     suppression of evidence in fact violated Brady, then the error
argues, violated the state’s obligations under Brady v.           is not subject to harmless error review, since a failure to
Maryland, 373 U.S. 83 (1963).                                     disclose evidence that could reasonably be viewed as casting
                                                                  the entire case in a different light could hardly be viewed as
  Brady established that “the suppression by the prosecution      harmless error. The Court stressed that suppressed evidence
of evidence favorable to an accused upon request violates due     is to be viewed collectively, rather than item by item, and a
process where the evidence is material either to guilt or to      defendant does not establish a Brady violation by showing
punishment, irrespective of the good faith or bad faith of the    only that the prosecution was aware of but did not disclose an
prosecution.” Id. at 87. Brady does not grant broad discovery     item of evidence favorable to the defendant. Id. at 436-37.
powers to the defendant, but is instead intended only to
ensure that the defendant has access to impeachment evidence         More recently, the Supreme Court reviewed the elements of
and evidence favorable to him, suppression of which would         a Brady violation, reminding us that, “strictly speaking, there
deprive him of a fair trial. United States v. Bagley, 473 U.S.    is never a real ‘Brady violation’ unless the nondisclosure was
667, 675 (1985).                                                  so serious that there is a reasonable probability that the
                                                                  suppressed evidence would have produced a different
  Essential to the determination of whether the state’s failure   verdict,” and summarizing the components of a “true” Brady
to disclose evidence is a Brady violation is Brady’s              violation:
requirement that the withheld evidence be “material either to
guilt or to punishment.” Brady, 373 U.S. at 87. In Kyles v.         The evidence at issue must be favorable to the accused,
Whitley, 514 U.S. 419 (1995), the Supreme Court elaborated          either because it is exculpatory, or because it is
upon Bagley’s materiality requirement, explaining:                  impeaching; that evidence must have been suppressed by
                                                                    the State, either willfully or inadvertently; and prejudice
  Bagley’s touchstone of materiality is a “reasonable               must have ensued.
  probability” of a different result, and the adjective is
  important. The question is not whether the defendant            Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In
  would more likely than not have received a different            Strickler, the Court’s focus was on the third component,
  verdict with the evidence, but whether in its absence he        “whether petitioner has established the prejudice necessary to
  received a fair trial, understood as a trial resulting in a     satisfy the ‘materiality’ inquiry.” Id. at 282. To satisfy this
  verdict worthy of confidence. A “reasonable probability”        requirement, the Court reiterated, the petitioner “must
  of a different result is accordingly shown when the             convince us that ‘there is a reasonable probability’ that the
  government’s evidentiary suppression “undermines                result of the trial would have been different if the suppressed
  confidence in the outcome of the trial.”                        [evidence] had been disclosed to the defense.” Id. at 289.
Id. at 434. The Court went on to emphasize that materiality          Like several of our sister circuits, this circuit has held that
is not determined by looking at the sufficiency of the            because Brady did not alter the rule that defendants have no
evidence; rather we must determine whether the favorable          general constitutional right to discovery in criminal cases, a
evidence could reasonably be viewed as putting the entire         prosecutor violates his constitutional duty of disclosure only
case “in such a different light as to undermine confidence in     if “his omission is of sufficient significance to result in the
No. 00-4385                          Spirko v. Mitchell    13    14   Spirko v. Mitchell                          No. 00-4385

denial of defendant’s right to a fair trial,” United States v.   Delaney Gibson; and “Information concerning Delaney
Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting United          Gibson: Mr. Michael Bentley, Box 425, Ary Kentucky
States v. Agurs, 427 U.S. 97, 108 (1976)), and where the         41712, has stated that Delaney Gibson was with him and his
defendant was “aware of the essential facts that would enable    wife in North Carolina on 8/7/82 and 8/8/82 and that pictures
him to take advantage of the exculpatory evidence,” the          are purported to have been taken of the weekend in question.”
government’s failure to disclose it did not violate Brady. Id.
In Todd, we found no Brady violation where the prosecutor          Spirko was thus on notice that there was evidence that
had disclosed to the defense the fact that two witnesses         Delaney Gibson had been in North Carolina on the day before
possibly possessed exculpatory evidence but did not disclose     the murder, and Spirko was given the identity and location of
what that evidence was. See also United States v. Clark, 928     some of the witnesses to Gibson’s whereabouts on that day.
F.2d 733, 738 (6th Cir. 1991) (quotations and citation           The state court made factual findings that Spirko’s counsel
omitted) (holding that there is no Brady violation if the        had notice of this evidence; those findings are amply
defendant “knew or should have known the essential facts         supported by the record and are binding on the federal habeas
permitting him to take advantage of any exculpatory              court under the pre-AEDPA 28 U.S.C. § 2254(d).
information or where the evidence is available to defendant
from another source”). The Fourth Circuit has held that “the       Spirko’s complaint is essentially that he was entitled to
Brady rule does not apply if the evidence in question is         have all of the state’s evidence with regard to the North
available to the defendant from other sources,” United States    Carolina alibi turned over to him. But this is not the law.
v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) (quoting United     Like the defendant in Todd, Spirko was “aware of the
States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)); and      essential facts that would enable him to take advantage of the
“where the exculpatory information is not only available to      exculpatory evidence.” Todd, 920 F.2d at 405. A reasonable
the defendant but also lies in a source where a reasonable       defendant would have pursued that inquiry—unless, of
defendant would have looked, a defendant is not entitled to      course, he already knew that the inquiry would not in fact
the benefit of the Brady doctrine. Id. at 381. The Second        result in exculpatory information—but Spirko did not do so.
Circuit (United States v. Grossman, 843 F.2d 78, 85 (2d Cir.     We hold, consistent with Todd, Clark and Wilson, that
1988)) and the First Circuit (Lugo v. Munoz, 682 F.2d 7, 9-10    because the evidence was available to Spirko from other
(1st Cir. 1982)) have similarly ruled.                           sources than the state, and he was aware of the essential facts
                                                                 necessary for him to obtain that evidence, the Brady rule does
  Spirko contends that the state violated the requirements of    not apply.
Brady by failing to turn over to his counsel all of the
investigative reports and photographs regarding Delaney            We hold further that Spirko has not demonstrated that this
Gibson’s whereabouts at the time of the abduction and murder     evidence was of a kind that the state would have been
of Mrs. Mottinger. It is undisputed that Spirko’s defense        required to disclose under Brady. Spirko cannot demonstrate
counsel stipulated prior to trial that they had received from    that the evidence regarding Gibson’s alibi—that is, the claim
the state memoranda of interviews of Gibson done on              that Gibson was not and could not have been in Ohio on the
April 21, 22 and 29, 1983; the “Interview Concerning             morning of August 9, 1982—is favorable to Spirko, and he
Delaney Gibson. a) Roger Burress [the owner of one of the        cannot demonstrate that he was prejudiced by the state’s
farms on which Gibson worked picking tomatoes during the         failure to disclose it.
summer of 1982] b) Margie Gibson;” a photograph of
No. 00-4385                           Spirko v. Mitchell    15    16   Spirko v. Mitchell                         No. 00-4385

   Spirko argues that the evidence was favorable to him           “convinc[ing] us that ‘there is a reasonable probability’ that
because, like the undisclosed evidence in Jamison v. Collins,     the result of the trial would have been different if the
291 F.3d 380 (6th Cir. 2002), it undermined the theory of the     suppressed documents had been disclosed to the defense.”
prosecution’s case. In Jamison, we held that evidence             Strickler, 527 U.S. at 290. But here, even if Spirko could
withheld from the defendant was favorable to him because,         demonstrate that the Gibson evidence proved beyond question
while it did not eliminate him as the perpetrator of the crime,   that Gibson could not have been part of the crime, he cannot
it did contradict the testimony of the chief prosecution          show a reasonable probability that by presenting that evidence
witness, undermine the prosecution’s theory of how the            to the jury, he could have cast the entire case “in such a
murder was committed, impeach the testimony of key                different light as to undermine confidence in the verdict,”
prosecution witnesses, and, in fact, point to the chief           Kyles, 514 U.S. at 435, or that, if the evidence had been
prosecution witness and another individual as potential           disclosed to him, “the result of the trial would have been
suspects. Id. at 389-391. Here, however, the evidence             different.” Strickler, 527 U.S. at 289. As we have already
regarding Gibson’s whereabouts neither contradicts nor            noted, if the jury had concluded that Gibson could not have
undermines the state’s theory of the crime. While it is true      been one of the perpetrators, then the jury would also have
that Gibson was indicted for the murder, and the state viewed     concluded that Gibson could not have been the source of
him as probably having been the chief perpetrator, the state’s    Spirko’s detailed knowledge of the crime. And, alternatively,
case against Spirko was not dependent upon Gibson’s being         Spirko has certainly not demonstrated that if he had been
proven to be part of the crime. The state’s case against Spirko   aware of this evidence—and thus had known that Gibson was
was based principally on Spirko’s own statements to the           not involved in the crime—he could have come up with a
investigators demonstrating intimate knowledge of facts that,     better story about how he came to know so much about the
in Spirko’s own words, “only the persons who did this shit        murder. This evidence was simply not material.
know.” Spirko knew.
                                                                     In the statement of facts contained in his brief on appeal,
   The Gibson evidence does not prove that Gibson could not       Spirko claims that the state also failed to provide him with
have been in Elgin, Ohio, on the morning that the crime was       investigative records from the massive investigation.
committed. More relevant to Spirko’s Brady claim, however,        Specifically, Spirko points to those containing information
is the fact that the Gibson evidence not only does not            allegedly inculpating other individuals in the abduction and
eliminate Spirko as the perpetrator, it eliminates his best       murder of Mrs. Mottinger, and detailing the interviews of
defense. If Gibson was not a participant in the murder, then      persons who failed to place either Gibson or Spirko at the
he was not, as Spirko told the investigators and claimed at       post office at the time of the abduction. His brief does not,
trial, the source of all of Spirko’s detailed knowledge of the    however, contain any legal argument with regard to any of
crime. And if Spirko did not learn the details of this crime      these individuals or demonstrate that any of the evidence he
from Gibson, from whence did all of that detail come?             points to meets the Kyles and Strickler requirements of
                                                                  materiality.
  Spirko cannot demonstrate that he was prejudiced by the
government’s failure to disclose the Gibson information.            By failing to provide the court with any developed legal
Prejudice for Brady purposes, the Supreme Court said in           argument with regard to the individuals, Spirko has waived
Strickler, is necessary to establish the “materiality”            any argument he might have. “It is a ‘settled appellate rule
requirement. Spirko may demonstrate that prejudice only by        that issues adverted to in a perfunctory manner,
No. 00-4385                            Spirko v. Mitchell     17    18    Spirko v. Mitchell                           No. 00-4385

unaccompanied by some effort at developed argumentation,            any other that Spirko proffers as evidence that the state
are deemed waived.’” United States v. Elder, 90 F.3d 1110,          violated the requirements of Brady. Before the district court,
1118 (6th Cir. 1996) (quoting United States v. Zannino, 895         Spirko theorized that Willier had killed Mrs. Mottinger in
F.2d 1, 17 (1st Cir. 1990)). We have nonetheless reviewed           Willier’s trailer. Spirko has provided virtually no factual
the record with regard to these claims, and we conclude that        basis in his brief on appeal for this theory of the crime; he has
they are entirely without merit. Looking first at the               developed no legal argument in his brief for his claim that
interviews of individuals who did not see either Gibson or          evidence of Willier’s sister’s relationship with the
Spirko in the vicinity of the post office on the morning of the     investigator would have been either exculpatory or
abduction, we find that the record clearly demonstrates that        impeaching; he provides no explanation of how Ms. Young’s
these individuals did not see anyone or anything out of the         testimony was affected by the alleged relationship with the
ordinary. That there were people on the scene who did not           investigator or, indeed, the substance of that testimony, and
notice anything out of place or any strange faces is neither        none of Ms. Young’s testimony appears in the Joint
favorable to Spirko nor exculpatory of him, nor would the           Appendix. Neither is there any evidence in the record that
disclosure of all of the state’s information about these people     would support Spirko’s theory that Mrs. Mottinger was killed
have been reasonably likely to bring about a different result       in Willier’s trailer.
at trial.
                                                                      A review of the record of the prior proceedings in this
   We have also carefully reviewed Spirko’s claims that             matter establishes that Spirko bases this entire Brady claim on
various individuals interviewed or investigated were potential      wholly unsupported speculation. Spirko testified at trial that
suspects such that the investigative reports should have been       sometime after the time of the murder, he and Gibson had
disclosed to him by the state. The district court concluded,        gone to a trailer in a trailer park, and that he had seen a large
and we agree, that the record does not support the readings of      quantity of “thick, gooey blood in the bathtub” of the trailer.
these reports that Spirko urges; the record does support the        Spirko did not testify that the trailer belonged to or was lived
state’s conclusions that no credible evidence supported any         in by John Willier, and the record contains no evidence
further investigation into any of them as potential suspects.       whatsoever that Spirko was ever in John Willier’s trailer.
Most importantly, nothing revealed in any of the investigative      Only if the record established that Spirko was in John
reports about these individuals in any way undermines the           Willier’s trailer around the time of the murder could we even
state’s case against Spirko because nothing in these reports        possibly draw the inference that Spirko apparently believes
eliminates Spirko as a participant in the crime or provides a       we should draw, namely that Mrs. Mottinger was killed in
plausible and innocent explanation for his detailed knowledge       John Willier’s trailer.
of it. This information is neither favorable to Spirko nor
material to his defense.                                              We learn from reviewing the record of prior
                                                                    proceedings—because Spirko’s brief contains neither facts
   The one piece of information to which Spirko points that,        nor argument with regard to this testimony—that Ms. Young
at first blush, might give us pause, is his claim that one of the   testified that she had been in her brother John Willier’s trailer
prosecution’s witnesses, Debbie Young, the sister of John           every day for several days after the murder and saw no
Willier, was intimately involved during the trial with the          evidence of blood in the bathtub. Spirko’s father testified to
prosecution’s chief investigator. On closer review, however,        the same effect. Spirko would have us infer that Ms. Young’s
this information is no more exculpatory or impeaching than          testimony was false, apparently because of her relationship
No. 00-4385                           Spirko v. Mitchell    19    20    Spirko v. Mitchell                           No. 00-4385

with the chief investigator. But only if there were evidence      Even if that evidence should have been disclosed, Spirko has
that Spirko was ever in John Willier’s trailer would any          not demonstrated that it or any of the undisclosed evidence to
testimony by Ms. Young that there was no blood in the             which he points was favorable to him or that he was
bathtub in that trailer have any relevance to the charges         prejudiced by its nondisclosure. The Brady claims are
against Spirko. The record contains no such evidence.             without merit. The district court carefully and correctly
                                                                  assessed each of the other claims of error raised in this appeal,
   The district court concluded that none of this information     and we now affirm in its entirety the district court’s judgment
was of sufficient probative value to create any doubt about the   denying the petition for a writ of habeas corpus.
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.
No. 00-4385                           Spirko v. Mitchell    21    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.
                        DISSENT                                   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
  RONALD LEE GILMAN, Circuit Judge, dissenting.                   testimony by a witness who turned state’s evidence.
                                                                  (Although two of Spirko’s former cellmates testified at trial
                      I. OVERVIEW                                 that Spirko admitted to them that he murdered Mottinger,
                                                                  those cellmates have subsequently recanted their testimony,
  As conceded in the appellate brief of Spirko’s counsel,         either directly or indirectly.) We are thus left with nothing
“John Spirko lied.” This incontestible conclusion is well-        other than the three shaky pillars described above. This does
documented in the majority opinion’s recitation of the many       not negate the fact that a jury could, in a fairly conducted
inconsistent stories that Spirko told to Inspector Hartman.       trial, find Spirko guilty beyond a reasonable doubt; but the
But lying is not a capital offense. And while the record leaves   closeness of the question obviates the possibility of harmless
no doubt about Spirko’s falsifications, it leaves me with         error and requires us to be more sensitive to any material
considerable doubt as to whether he has been lawfully             procedural violations by the state. See Lindsey v. King,
subjected to the death penalty in light of the state’s alleged    769 F.2d 1034, 1042 (5th Cir. 1985) (stating that “petitioner
Brady violation.                                                  should receive the benefit of the doubt” in a capital case
                                                                  where “there is a real possibility that the wrong man is to be
   The case against Spirko is far from overwhelming. It is        executed”).
substantially based upon three evidentiary pillars: (1) an
eyewitness who was “100% sure” that Spirko’s best friend,                   II. ALLEGED BRADY VIOLATION
Delaney Gibson, was at the Elgin, Ohio post office when the
postmistress was abducted, (2) another eyewitness who was            The alleged procedural violation that is key to this appeal
“70% sure” that Spirko was also at the scene, and (3) Spirko’s    is the very one discussed by the majority opinion—Spirko’s
knowledge of factual details concerning the murder that were      claim that the state failed to turn over to him exculpatory and
not known to the general public. Each of these pillars,           impeachment information that would have materially aided
however, has a foundation of sand.               The “certain”    his defense. Pursuant to Brady v. Maryland, 373 U.S. 83
identification of a clean-shaven Gibson is cast in grave doubt    (1963), “the suppression by the prosecution of evidence
both by photographs and receipts in the possession of the         favorable to an accused upon request violates due process
state, but not disclosed to the defense, indicating that Gibson   where the evidence is material either to guilt or to
had a full beard immediately before the date of the abduction,    punishment.” Id. at 87. The Supreme Court has summarized
and by statements made to investigators by several people         the components of a Brady violation as follows:
who said that Gibson had a full beard during the entire
summer of 1982. As for Spirko’s presence at the scene, a            The evidence at issue must be favorable to the accused,
confidence level of only 70% is far from “beyond a                  either because it is exculpatory, or because it is
reasonable doubt.” Finally, Spirko’s knowledge could have           impeaching; that evidence must have been suppressed by
come from second-hand repetition rather than first-hand             the State, either willfully or inadvertantly; and prejudice
participation.                                                      must have ensued.
No. 00-4385                            Spirko v. Mitchell     23    24   Spirko v. Mitchell                          No. 00-4385

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice         “100% sure” that she saw Spirko’s friend Gibson outside the
exists “only if there is a reasonable probability that, had the     post office on the morning of August 9, 2002. When
evidence been disclosed to the defense, the result of the           interviewed on the day of the incident, Siebert described the
proceeding would have been different.” United States v.             man she had seen as clean-shaven. She also selected a
Bagley, 473 U.S. 667, 682 (1985).                                   photograph of a clean-shaven Gibson from an array in late
                                                                    January of 1983, more than five months after the crime
  On habeas review, a federal court must ask whether the            occurred.
defendant “received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A reasonable probability            The withheld evidence directly contradicts both the
of a different result is accordingly shown when the                 government’s theory of the case and Siebert’s testimony.
government’s evidentiary suppression undermines confidence          Gibson told investigators that he was in North Carolina on
in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419,       August 9, 1982. His story was at least partially corroborated
434 (1995) (quotation marks omitted). “Allegations of               by interviews with Gibson’s wife, Margie, and with Margie’s
violations of Brady v. Maryland, 373 U.S. 83 (1963), present        sister and brother-in-law, Brenda and Michael Bentley, who
mixed questions of law and fact which this Court reviews de         accompanied the Gibsons on the trip to North Carolina. The
novo.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000)            Bentleys told investigators that they had last seen the Gibsons
(parallel citations omitted).                                       in Asheville, North Carolina at approximately 6 p.m. on
                                                                    August 8. Asheville is roughly 500 miles away from Elgin,
  Because Spirko initiated his federal habeas corpus action in      Ohio.
March of 1995, prior to the effective date of AEDPA, we
apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v.              Although the state informed Spirko that investigators had
Murphy, 521 U.S. 320, 336 (1997). Federal courts, prior to          spoken with Margie Gibson and Michael Bentley, it failed to
AEDPA, were required to hold an evidentiary hearing                 disclose the fact that the investigators had received physical
“[w]here the facts are in dispute” and “the habeas applicant        evidence during those interviews. The Bentleys provided the
did not receive a full and fair evidentiary hearing in a state      investigators with receipts from an automotive store in North
court, either at the time of the trial or in a collateral           Carolina dated August 7 and from a hotel in Newport,
proceeding.” Townsend v. Sain, 372 U.S. 293, 312 (1963),            Tennessee where the Bentleys stayed on the night of
overruled on other grounds by Keeney v. Tamayo-Reyes, 504           August 8, along with 40 photos of themselves and the
U.S. 1, 6 (1992).                                                   Gibsons that were allegedly taken that weekend. Margie
                                                                    Gibson provided investigators with 18 similar photos
A. Is the evidence in question favorable to Spirko?                 allegedly taken during the same period of time. All of the
                                                                    photos showed Gibson with a full beard. These photos and
   The first step in analyzing the Brady issue is to ask whether    the receipts corroborate Gibson’s alibi and therefore tend to
the withheld evidence is favorable to Spirko as either              prove, although they cannot conclusively demonstrate, that
exculpatory or impeaching. At trial, the state’s theory of the      both the government’s theory of the case and Siebert’s
case was that Spirko and Gibson jointly abducted and                eyewitness identification were faulty. Because the withheld
murdered Mrs. Mottinger. In support of this theory, the state       physical evidence appears to be both exculpatory and
elicited the testimony of Opal Siebert, who lived across the        impeaching, it is favorable to Spirko within the meaning of
street from the Elgin post office. Siebert testified that she was   Brady.
No. 00-4385                           Spirko v. Mitchell    25    26    Spirko v. Mitchell                           No. 00-4385

B. Was the evidence at issue suppressed by the state?               Unlike the situation in Todd, Spirko was not “aware of the
                                                                  essential facts that would enable him to take advantage of the
  Brady next requires us to determine whether the evidence        exculpatory evidence.” 920 F.2d at 405. The “essential
in question was suppressed by the state. This court has held      facts” in this case appear to be that the state possessed
that Brady is not violated where the defendant is “aware of       material photos and receipts, and these facts were not
the essential facts that would enable him to take advantage of    disclosed to Spirko. Todd is therefore distinguishable.
the exculpatory evidence,” even if the government does not        Spriko has thus presented a prima facie case that the physical
disclose the evidence itself. United States v. Todd, 920 F.2d     evidence at issue was suppressed by the state, satisfying the
399, 405 (6th Cir. 1990).                                         second component of a Brady violation.
   In Todd, the government refused to disclose reports            C. Was Spirko prejudiced by the suppression of the
prepared after FBI interviews with Todd’s brother and the            favorable evidence?
brother’s girlfriend. Id. at 404. This court concluded that no
Brady violation occurred because Todd was informed before            The final step in the Brady analysis is to determine whether
trial that both interviewees had potentially exculpatory          Spirko was prejudiced by the state’s suppression of evidence
information, and Todd had an opportunity to interview them.       favorable to his defense. In other words, does the suppression
Id. at 405. The “essential facts” in Todd, then, were the         of the pertinent evidence “undermine[] confidence in the
identities of the two potential witnesses; once Todd had that     outcome of the trial”? Kyles v. Whitley, 514 U.S. 419, 434
information, he was free to interview them in order to obtain     (1995) (quotation marks omitted). This question effectively
the exculpatory evidence.                                         requires us to assess the probability of a different outcome if
                                                                  the state had disclosed its possession of the photos and
   In the present case, in contrast, the issue is not whether     receipts to Spirko. Spirko has presented some evidence on
Spirko could have interviewed the Gibsons and the Bentleys,       this point. His trial counsel have signed affidavits stating that
but whether he could have obtained the photos and receipts        they doubted the credibility of Gibson’s alibi and therefore
that they had given to the state. The prosecution informed        did not pursue that line of defense. The lawyers contend that
Spirko only that “pictures are purported to have been taken of    if they had known about the evidence corroborating Gibson’s
the weekend in question.” This statement is misleading. A         alibi, they would have used that evidence to attack the state’s
statement informing Spirko that investigators had received        case at trial.
pictures that were purportedly of the weekend in question
would have been accurate; but it was entirely incorrect for the     Whether this would have been sufficient to change the
prosecution to say that “pictures are purported to have been      jury’s verdict or Spirko’s sentence is very much in dispute.
taken . . . .” At the time the statement was made, the            The majority contends that using the Gibson alibi evidence
prosecution knew that photos had in fact been taken and were      would have actually increased Spirko’s chances of conviction
in the state’s possession. There was nothing “purported”          and a death sentence because
about those facts. But the statement to Spirko suggested that
the state possessed no photos. And the prosecution made no          the Gibson evidence not only does not eliminate Spirko
mention of the Bentley’s receipts that tended to corroborate        as the perpetrator, it eliminates his best defense. If
Gibson’s presence in North Carolina on the date of the              Gibson was not a participant in the murder, then he was
abduction.                                                          not, as Spirko told the investigators and claimed at trial,
No. 00-4385                           Spirko v. Mitchell    27    28    Spirko v. Mitchell                           No. 00-4385

  the source of all of Spirko’s detailed knowledge of the         different result is accordingly shown.” Kyles, 514 U.S. at 434
  crime. And if Spirko did not learn the details of this          (quotation marks omitted).
  crime from Gibson, from whence did all of that detail
  come?                                                             The Fifth Circuit made this point in a similar case involving
                                                                  an alleged Brady violation: “This is a capital case . . . and one
Maj. Op. at 15. But Spirko presents an equally plausible, but     moreover in which our reading of the evidence shows there is
very different, outcome:                                          a real possibility that the wrong man is to be executed. In
                                                                  such a case, if ever, petitioner should receive the benefit of
  If the prosecution had fulfilled its Brady obligations, Mr.     the doubt.” Lindsey v. King, 769 F.2d 1034, 1043 (5th Cir.
  Spirko would not have testified as to Delaney Gibson’s          1985); see also Kyles, 514 U.S. at 422 (stating that a federal
  alleged involvement. . . . Moreover, had the prosecution        court’s “duty to search for constitutional error with
  turned over the Brady material, Mr. Spirko’s attorneys          painstaking care is never more exacting than it is in a capital
  could have used it to show that his statements to               case”). Like the Fifth Circuit in Lindsey, we are dealing with
  investigators concerning Delaney Gibson—like all of his         a capital case where the defendant’s conviction and death
  other statements—were not true. . . . Armed with this           sentence rests on relatively weak evidence—the three shaky
  evidence, the defense would have destroyed the                  pillars discussed above. I therefore believe that any doubt
  prosecution’s fundamental theory of the case, would have        about whether there is a reasonable probability of a different
  completely undermined Mrs. Siebert’s testimony, and             result should be resolved in favor of Spirko.
  would have discredited Mr. Spirko’s statements to
  investigators concerning Delaney Gibson. Such evidence                       III. EVIDENTIARY HEARING
  plainly would have had a significant impact on the
  overall trial . . . .                                              For all of the reasons set forth above, this court should
                                                                  remand the case to the district court for an evidentiary hearing
Spirko further states that                                        on Spirko’s Brady claim. Under pre-AEDPA law, which we
                                                                  must follow in this case, a habeas petitioner is entitled to an
  even if [his] statements to investigators included              evidentiary hearing if “for any reason it appears that the state
  information that only someone involved in the crime             trier of fact did not afford the habeas applicant a full and fair
  could know, such statements do not demonstrate that [he]        fact hearing.” Townsend v. Sain, 372 U.S. 293, 313 (1963),
  was involved in the crime. He could well have obtained          overruled on other grounds by Keeney v. Tamayo-Reyes, 504
  the information from someone who was (or even was               U.S. 1, 6 (1992). Spirko points out that, despite his requests,
  not) involved in the crime or he could have obtained the        he has not received an evidentiary hearing on his Brady claim
  information from the investigators themselves.                  in any state or federal court. An evidentiary hearing would
                                                                  allow the district court to determine whether the state in fact
  Spirko’s arguments are at least plausible. I am therefore       violated Spirko’s constitutional rights by not turning over to
unable to say with confidence that the prosecution’s failure to   the defense the photos and receipts in its possession.
disclose the photos and receipts was harmless. Because “the       Accordingly, this court should vacate the judgment of the
government’s evidentiary suppression undermines confidence        district court and remand the case for an evidentiary hearing
in the outcome of the trial,” “[a] reasonable probability of a    on Spirko’s Brady claim.
