Yesterday the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel opinion in a habeas case. In Hamilton v. Morgan, the panel majority denied the Quinn Hamilton's habeas petition seeking to overturn his state court conviction for armed robbery and evading arrest on the grounds that he was prejudiced by the state court's decision to declare a potential witness unavailable for trial and permit the state to introduce prior testimony from a preliminary hearing and suppression hearing instead. Judge Eugene Siler, joined by Judge Alice Batchelder, found that the state made sufficient good faith efforts to procure the relevant witness before trial, and that when these efforts were unsuccessful, "the decision of the Tennessee courts to allow prior testimony of a witness deemed unavailable for trial was neither 'contrary to' nor 'an unreasonable application of' federal law."

Judge Karen Moore dissented. According to Judge Moore, the prosecutor failed to meet his burden of showing that the witness was unavailable because "he submitted no evidence in support of his motion" (emphasis in original), and because the reliance upon prior testimony "almost certainly influenced the jury's verdict." Wrote Moore, "[b]ecause the majority's decision effectively eradicates the burden of proof that the Supreme Court established, I respectfully dissent."