The Volokh Conspiracy - Two Divided Habeas Opinions on the Sixth in One Day:

In 1987, Abdul Haliym (then known as Wayne Frazier) was sentenced to death by an Ohio court for his role in the murders of Marcellus Williams and Joann Richards in Cleveland Heights, Ohio. After exhausting his state law remedies, Haliym filed a federal habeas petition asserting some 20 grounds for relief, all of which were denied in federal district court. Today in Haliym v. Mitchell, a panel of the U.S. Court of Appeals for the Sixth Circuit unanimously rejected Haliym's appeal with regard to his conviction, but ruled favorably, by a 2-1 vote, on Haliym's claim that he was denied the effective assistance of counsel during the mitigation phase of his sentencing.

Judge Clay, joined by Judge Merritt, concluded that Haliym was denied effective assistance of counsel because his attorney "failed to discover important mitigating information that was reasonably available and suggested by information already within their possession," and that Haliym demostrated prejudice from this failure.

had counsel conducted a thorough investigation, they could have presented a dramatically different picture of Petitioner's life than the picture presented at sentencing. As the trial court and the Ohio Supreme Court were presented with almost no mitigating evidence supporting a sentence other than death, it is not entirely surprising that each court concluded that the balance of factors favored the death penalty. Had Petitioner put the available mitigation evidence on the other side of the balance, though the Ohio courts might still have determined that death was the appropriate sentence, such evidence also "might well have influenced the [factfinder's] appraisal of [Petitioner's] moral culpability."

Judge Siler dissented.

In a second case, In re Abdur'Rahman, a divided panel of the same court (again) ruled against Abu-Ali Abdur'Rahman's efforts to chellenge his conviction. As Judge Siler, joined by Judge Batchelder, summarized in his opinion for the court:

In 2004, our en banc court concluded that Abu-Ali Abdur'Rahman's post-judgment motion should be treated as a Fed. R. Civ. P. 60(b) motion rather than a second or successive habeas petition. In re Abdur'Rahman, 392 F.3d 174, 182 (6th Cir. 2004), vacated, Bell v. Abdur'Rahman, 545 U.S. 1151 (2005). In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). Bell, 545 U.S. 1151. Based on Gonzalez, Abdur'Rahman's motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely.

Judge Cole dissented, arguing that once the panel concluded (correctly, in his view) that Abdur'Rahman's motion should be treated as a Rule 60(b) motion, it should have remanded the case back to the trial court. He further argued that even if the case were not remanded, it should not be considered untimely. Of note, one of the issues that divided the majority and dissent in this case is how to treat aspects of the Sixth Circuit's prior en banc decision in the case that had been vacated by the Supreme Court after Gonzales.

	[Jonathan Adler, July 13, 2007 at 10:43am] Trackbacks Two Divided Habeas Opinions on the Sixth in One Day: In 1987, Abdul Haliym (then known as Wayne Frazier) was sentenced to death by an Ohio court for his role in the murders of Marcellus Williams and Joann Richards in Cleveland Heights, Ohio. After exhausting his state law remedies, Haliym filed a federal habeas petition asserting some 20 grounds for relief, all of which were denied in federal district court. Today in Haliym v. Mitchell, a panel of the U.S. Court of Appeals for the Sixth Circuit unanimously rejected Haliym's appeal with regard to his conviction, but ruled favorably, by a 2-1 vote, on Haliym's claim that he was denied the effective assistance of counsel during the mitigation phase of his sentencing. Judge Clay, joined by Judge Merritt, concluded that Haliym was denied effective assistance of counsel because his attorney "failed to discover important mitigating information that was reasonably available and suggested by information already within their possession," and that Haliym demostrated prejudice from this failure. had counsel conducted a thorough investigation, they could have presented a dramatically different picture of Petitioner's life than the picture presented at sentencing. As the trial court and the Ohio Supreme Court were presented with almost no mitigating evidence supporting a sentence other than death, it is not entirely surprising that each court concluded that the balance of factors favored the death penalty. Had Petitioner put the available mitigation evidence on the other side of the balance, though the Ohio courts might still have determined that death was the appropriate sentence, such evidence also "might well have influenced the [factfinder's] appraisal of [Petitioner's] moral culpability." Judge Siler dissented. In a second case, In re Abdur'Rahman, a divided panel of the same court (again) ruled against Abu-Ali Abdur'Rahman's efforts to chellenge his conviction. As Judge Siler, joined by Judge Batchelder, summarized in his opinion for the court: In 2004, our en banc court concluded that Abu-Ali Abdur'Rahman's post-judgment motion should be treated as a Fed. R. Civ. P. 60(b) motion rather than a second or successive habeas petition. In re Abdur'Rahman, 392 F.3d 174, 182 (6th Cir. 2004), vacated, Bell v. Abdur'Rahman, 545 U.S. 1151 (2005). In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). Bell, 545 U.S. 1151. Based on Gonzalez, Abdur'Rahman's motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely. Judge Cole dissented, arguing that once the panel concluded (correctly, in his view) that Abdur'Rahman's motion should be treated as a Rule 60(b) motion, it should have remanded the case back to the trial court. He further argued that even if the case were not remanded, it should not be considered untimely. Of note, one of the issues that divided the majority and dissent in this case is how to treat aspects of the Sixth Circuit's prior en banc decision in the case that had been vacated by the Supreme Court after Gonzales.