A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit rejected the habeas appeal of Kentucky death-row inmate Gregory Wilson. Wilson, who has already received two stays of execution in the past ten years, raised twenty-four claims in his habeas petition, nine of which were considered on appeal. In a thorough opinion by Chief Judge Boggs, joined by Judges Gibbons and Cook, the court rejected each of Wilson's claims, including his contention that his waiver of his right to counsel was invalid, that he received ineffective assistance of counsel, and that he was denied a fair trial because his co-defendant had a sexual relationship with a judge (but not the judge who presided at his trial).

Given the pattern of division within the Sixth Circuit in habeas cases, it is worth considering whether Wilson v. Parker would have come out differently, or at least produced a dissent, had the composition of the panel been different. Judges Boggs, Gibbons and Cook are all fairly conservative judges who tend to be less sympathetic to prisoners' habeas claims than, say, Judges Moore or Martin. This is particularly so when the death penalty is on the table. While a majority of the Sixth Circuit reviews death row inmates' habeas appeals narrowly, a minority on the court is very sympathetic to habeas petitioners, sometimes appearing to search for grounds to reverse capital sentences.

My current assessment of the Sixth Circuit's divide in habeas cases is largely impressionistic. To see if these divisions can be quantified, I'm in the process of collecting data with a colleague and some students on Sixth Circuit habeas appeals. I hope we'll have results we can share later this year.