Last Friday, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided Morales v. Mitchell, yet another in a long line of divided habeas decisions from my home circuit. As with many of the divided habeas panels, the case concerned the habeas petition of a death row inmate and the panel divided on somewhat predictable ideological lines.

Here is the basic background, as summarized by Judge Karen Nelson Moore in her majority opinion.

Petitioner-Appellee/Cross-Appellant Alfred Morales (“Morales”) was convicted of kidnapping and aggravated murder in an Ohio state court and sentenced to death. He petitioned the district court for a writ of habeas corpus, arguing, inter alia, that his trial counsel was constitutionally ineffective and that the trial court erroneously struck a potential juror from the panel. The district court granted the petition, in part, vacating Morales’s death sentence on the ground that his trial attorney had rendered ineffective assistance of counsel (“IAC”) at the penalty phase of the trial.

Respondent-Appellant/Cross-Appellee Betty Mitchell (“Mitchell” or “the state”) now appeals the district court’s issuance of the writ. Morales crossappeals the district court’s denial, in part, of his petition on the grounds that his counsel was not ineffective at the guilt phase of the trial and that the trial court did not err in striking a juror that it found was not death-qualified and lacked an adequate understanding of the proceedings.

Judge Suhrheinrich dissented, arguing that Morales could not show that he suffered any prejudice from his defense counsel's failure to present additional mitigating evidence at the penalty phase, in large part because such evidence would have been "cumulative" with evidence already presented at trial. Absent a showing of prejudice, Suhrheinrich concluded, Morales could not show that he suffered from the ineffective assistance of counsel, as a matter of law.