The Volokh Conspiracy - Sixth Divides on Habeas (Again):

Today's divided Sixth Circuit opinion in a habeas case is Ferensic v. Birkett. In this case, Judges Gilman and Clay affirmed the decision of the federal district court to grant the habeas petition. Judge McKeague dissented. Judge Gilman's opinion for the majority begins:

A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs' home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic's convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic.

Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals's ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic's petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.

Judge McKeague, for his part, began his dissent thusly:

I would hold that the rejection by the Michigan Court of Appeals of Ferensic's claims of error as to the testimony of witnesses Shulman and St. John was neither contrary to nor an unreasonable application of federal law. I would therefore reverse the district court's grant of the writ of habeas corpus.

Given the lineup of this case, and the length of Judge McKeague's dissent, I would not be surprised if this case were reheard en banc.

	[Jonathan Adler, September 4, 2007 at 10:03am] Trackbacks Sixth Divides on Habeas (Again): Today's divided Sixth Circuit opinion in a habeas case is Ferensic v. Birkett. In this case, Judges Gilman and Clay affirmed the decision of the federal district court to grant the habeas petition. Judge McKeague dissented. Judge Gilman's opinion for the majority begins: A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs' home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic's convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic. Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals's ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic's petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court. Judge McKeague, for his part, began his dissent thusly: I would hold that the rejection by the Michigan Court of Appeals of Ferensic's claims of error as to the testimony of witnesses Shulman and St. John was neither contrary to nor an unreasonable application of federal law. I would therefore reverse the district court's grant of the writ of habeas corpus. Given the lineup of this case, and the length of Judge McKeague's dissent, I would not be surprised if this case were reheard en banc.