Following the U.S. Court of Appeals for the Sixth Circuit continues to provide a crash course in the current controversies concerning the availability of habeas relief in federal courts. This week, the Sixth Circuit is once again divided -- this time 7-7 on a petition for rehearing en banc -- over whether a habeas petition should have been granted to a capital defendant.

Last June, in Slaughter v. Parker, a three judge panel reversed a district court decision granting James Slaughter's habeas petition claiming ineffective assistance of counsel. Judge Batchelder wrote the majority opinion for herself and Chief Judge Boggs. Judge Cole dissented.

On Wednesday, an evenly divided Sixth Circuit denied Slaughter's petition for rehearing en banc. Judge Cole wrote a dissent, which begins:

We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as "James Slaughter," approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court's seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact.

As Robert Loblaw at Decision of the Day notes, Cole's dissent was joined by Judges Martin, Daughtery, Moore, and Clay, leaving the identities of the other two judges who voted in favor of en banc review a mystery.