The Volokh Conspiracy

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Sixth Circuit

Is the Sixth Circuit Choosing Reversal over Duty?

In dissent from denial of en banc rehearing, Judge Griffin notes the recent history of Supreme Court reversals of Sixth Circuit habeas decisions.


In Cassano v. Shoop, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted capital defendant August Cassano's habeas petition on the grounds that Ohio courts had unreasonably denied Cassano his right to self-representation at trial.

Today, the Sixth Circuit denied Ohio's petition for rehearing en banc, with four judges dissenting (Siler, Thapar, Nalbandian, and Griffin).

Judge Griffin wrote a dissent from the denial suggesting that the court have reheard Cassano and reversed the panel opinion (and the circuit precedent upon which it relied) so as to avoid reversal in the Supreme Court. As I have noted many times on this blog, the Sixth Circuit has a pattern of getting reversed by the Supreme Court in habeas cases.

Judge Griffin surveys this history in his dissent, which begins:

Once again, our court has shirked its responsibility to correct a decision of exceptional importance meriting en banc review. Instead, the majority has chosen reversal over duty. Unfortunately, this path is all too familiar. See, e.g., Davenport v. MacLaren, 975 F.3d 537 (6th Cir. 2020) (denying petition for rehearing en banc), cert. granted sub nom., Brown v. Davenport, 141 S. Ct. 2465 (2021); see also CNH Industrial N.V. v. Reese, 138 S. Ct. 761, 765 n.2 (2018).

Because we "have acquired a taste for disregarding" the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), Rapelje v. Blackston, 136 S. Ct. 388, 389 (2015) (Scalia, J., dissenting from denial of petition for writ of certiorari), the Supreme Court has reversed us twenty-two times for not applying the deference to state court decisions mandated by AEDPA. See Mays v. Hines, 141 S. Ct. 1145, 1149–50 (2021); Shoop v. Hill, 139 S. Ct. 504, 507–09 (2019); Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016); White v. Wheeler, 577 U.S. 73, 79 (2015); Woods v. Donald, 575 U.S. 312, 317–19 (2015); White v. Woodall, 572 U.S. 415, 427 (2014); Burt v. Titlow, 571 U.S. 12, 22–23 (2013); Metrish v. Lancaster, 569 U.S. 351, 365–68 (2013); Parker v. Matthews, 567 U.S. 37, 38 (2012); Howes v. Fields, 565 U.S. 499, 505–08 (2012); Bobby v. Dixon, 565 U.S. 23, 24 (2011); Bobby v. Mitts, 563 U.S. 395, 399–400 (2011); Berghuis v. Thompkins, 560 U.S. 370, 380–91 (2010); Renico v. Lett, 559 U.S. 766, 776–79 (2010); Berghuis v. Smith, 559 U.S. 314, 332–33 (2010); Smith v. Spisak, 558 U.S. 139, 148–56 (2010); Bradshaw v. Richey, 546 U.S. 74, 78 (2005); Bell v. Cone, 543 U.S. 447, 455–60 (2005); Holland v. Jackson, 542 U.S. 649, 652–53 (2004); Mitchell v. Esparza, 540 U.S. 12, 17–19 (2003); Price v. Vincent, 538 U.S. 634, 638–43 (2003); Bell v. Cone, 535 U.S. 685, 693–702 (2002).

Of those twenty-two rebukes, twelve of our reversals by the Supreme Court were by per curiam decisions on petitions for writs of certiorari. See Mays, 141 S. Ct. at 1145; Shoop, 139 S. Ct. at 504; Etherton, 136 S. Ct. at 1149; Wheeler, 577 U.S. at 73; Woods, 575 U.S. at 312; Parker, 567 U.S. at 38; Dixon, 565 U.S. at 24; Mitts, 563 U.S. at 399–400; Bradshaw, 546 U.S. at 73; Bell, 543 U.S. at 447; Holland, 542 U.S. at 649; Mitchell, 540 U.S. at 12. This is a sad record.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for courts of appeals to correct their conflicts and errors of exceptional importance. While en banc hearings or rehearings are not favored, they are authorized when:

(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.

Fed. R. App. P. 35(a).

The majority appears to recognize that the precedentially binding panel decision at issue is clearly incorrect. Nevertheless, it allows it to stand because it concludes that this case is not of exceptional importance. I strongly disagree.

Judge Thapar also dissented from the denial, joined by Judge Nalbandian. HIs dissent begins:

If a criminal defendant wants to represent himself, he must make a clear and unequivocal demand to do so. This is a high standard to meet because "a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney." Martinez v. Ct. of Appeal, 528 U.S. 152, 161 (2000) (citation omitted). Filing a motion to represent yourself on the same day you file a motion asking for specific counsel doesn't count. Nor does asking a question about it on the eve of trial. The panel here erred in concluding otherwise. And that would be true under any standard of review. But it is especially true on habeas review.