Repeated Divide on Sixth in Richey:

Today a panel of the U.S. Court of Appeals for the Sixth Circuit divided on a habeas appeal (surprise!), in Richey v. Bradshaw. What is particularly interesting about this case is that this is not the first time this panel has divided over this this case. The panel first split over Kenneth Richey's habeas petition in 2005. The Supreme Court reversed and remanded in a per curiam opinion.

Today's opinion, on remand, nonetheless reaches the same result as the original opinion, and divides along the same lines. The opinion for the court, written by Judge Cole and joined by Judge Daughtrey, summarizes the case:

This case is on remand to us from the Supreme Court. On January 25, 2005, we reversed the judgment of the district court denying Kenneth Richey's petition for a writ of habeas corpus, on the grounds that (1) Ohio law did not permit Richey to be convicted of aggravated felony murder on a transferred-intent theory, and (2) the state courts unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in holding that Richey had not been deprived of constitutionally effective representation. Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). The Supreme Court vacated our judgment, holding that we erred in our interpretation of Ohio law on the transferred-intent issue. Further, the Court held that we had not properly examined whether the arguments and evidence that formed the basis for our ruling on Richey's ineffective assistance-of-counsel claim were procedurally barred. Bradshaw v. Richey, 546 U.S. 74 (2005).

Consistent with the Supreme Court's remand instructions, we now revisit Richey's ineffective-assistance claim. For the reasons set forth below, we hold that Richey did not procedurally default this claim, that we properly considered it on the merits, and that the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments.

Judge Siler wrote an opinion concurring in part and dissenting in part.

UPDATE: Sentencing Law & Policy discusses another divided Sixth Circuit opinion here.