In July 2006 I blogged about an odd case in which Senior Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit issued a last-minute stay of execution for convicted murderer Sedley Alley, despite not being on the panel that had heard Alley's latest appeal. The stay was quickly vacated with an order that chastised Judge Merritt for his apparently unusual action.

The post prompted a vigorous debate in the comments over the propriety of Judge Merritt's actions, and the broader divisions over death sentences within the Sixth Circuit. One commenter charged that Merritt was a staunch opponent of death penalty, and challenged readers to identify "a single case since [the late 1970s] in which Merritt voted to uphold a death sentence." Here's one from last Friday: Keene v. Mitchell.

In Keene, a unanimous three judge panel consisting of Judges Merritt, Sutton and Siler rejected Marvallous Keene's habeas petition. Keene had waived his right to a jury trial, and was convicted on eight counts of aggravated murder (among other things) by a three-judge panel in an Ohio court, resulting in five(!) death sentences. In federal habeas proceedings, Keene challenged his convictions on Due Process and Equal Protection grounds. The district court rejected Keene's claims, and Judge Merritt joined Judge Siler's brief opinion affirming the district court.

NOTE: Link is now fixed. I had inadvertently linked to another Sixth Circuit habeas decision -- a divided opinion from yesterday in Johnson v. Bell -- that I also hope to blog about, time permitting.