The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last Friday and again yesterday the U.S. Court of Appeals for the Sixth Circuit issued an en banc decision in a capital habeas case. Both decisions were closely divided, though each in a slightly different way, and both went against the habeas petitioner.
On Friday, in Hill v. Shoop, the en banc court affirmed the district court's denial of Danny Hill's habeas petition, rejecting Hill's argument that he was ineligible for the death penalty because he is intellectually disabled. Specifically, the court concluded that the Ohio court's application of Atkins v. Virginia did not represent an "unreasonable" application of clearly established federal law (as required by AEDPA). Hill had argued that the evidence of his intellectual disability presented at his original trial (prior to Atkins) satisfied the Atkins test, whereas the court concluded that it was not unreasonable for a later state court to reach a different conclusion in a subsequent (post-Atkins) hearing, based upon the evidence before it at the time.
The court split 9-7 in Hill, largely along traditional ideological lines. Judge Gibbons wrote for the court, joined by Chief Judge Sutton and Judges Griffin, Kethledge Thapar, Bush Larsen, Nalbandian and Readler. Judge Moore wrote the dissent, joined by Judges Merritt, Cole, Clay, White, Stranch and Donald. [Note, senior judge Merritt participated because he was on the original three-judge panel, and Judge Murphy recused, which is why the ideological split divided the court 9-7 instead of 10-6.]
Yesterday, the Sixth Circuit issued another en banc decision in a capital habeas case, which also split the court 9-7. In Taylor v. Jordan, the court rejected Victor Taylor's arguments that his death penalty conviction should be overturned because the prosecutor used peremptory challenges to strike potential jurors from the jury pool based upon race (in violation of Batson v. Kennedy, which was decided at the time of Taylor's conviction) and an accomplice's statement was admitted in violation of the Confrontation Clause.
While Taylor also split the court 9-7, the Court did not split along traditional ideological lines and there were multiple dissenting opinions, not all of which were joined by all of the dissenting justices. Judge Kethledge wrote for the court, joined by Chief Judge Sutton and Judges Batchelder, Cook, Bush, Larsen, Nalbandian, Readler, and Murphy. [Cook and Batchelder, although senior, had sat on the initial panel; Judge Thapar recused.]
The principal dissent on the Batson issue was written by Judge Griffin, joined by Judges Gibbons, Moore Clay, White, Stranch and Donald. Judge Cole wrote a dissent on both issues, joined by Judges Moore Clay, White, Stranch and Donald. Judge White dissented, joined by Judges Moore, Clay, Stranch, and Donald in full, and Gibbons in part, and Judge Moore dissented, joined by Judges Clay, White, Stranch, and Donald. So, the Court split 9-7 on the Batson issue, but 9-5 on the confrontation clause issue (as Judges Griffin and Gibbons did not join any of the dissents on that point).
The Batson issue in Taylor is particularly difficult, and split the court on somewhat untraditional lines. One source of the difficulty is that Batson was decided just after the return of the jury's verdict in Taylor's case, but before the trial judge entered the judgment. A further source of contention was the fact that the prosecutor, while using some of his peremptory challenges to strike Black jurors, also objected the defense's efforts to strike several Black jurors for cause (including one who ended up on the jury).
The court's majority concluded that Kentucky trial courts satisfied the highly deferential standard of review provided by AEDPA. Judge Griffin, on the other hand, concluded Taylor was simply "Batson v. Kentucky revisited. Judge Moore offered stronger words, declaring that the court's decision "confirms a largely unspoken truth: the once-great write of habeas corpus now means nothing," and ending her decision with the terse "I dissent."
Hill and Taylor were not the only en banc opinions from the Sixth Circuit this month. On August 5, the en banc Court decided Bristol Regional Women's Center v. Slatery, concluding that Tennessee's law imposing a 48-hour waiting period on women seeking to obtain an abortion did not constitute an "undue burden" under Casey. This decision was also 9-7. Judge Thapar wrote for the court, joined by Chief Judge Sutton, and Judges Griffin, Kethledge, Bush, Larsen, Nalbandian, Readler, and Murphy. Judge Moore wrote the principle dissent, joined by Judges Cole, Clay, Gibbons, White, Stranch, and Donald. Judge Bush and Judge Gibbons also wrote separate concurring and dissenting opinions, respectively.
That's three en banc opinions from one circuit in less than one month.