Last Friday the U.S. Court of Appeals for the Sixth Circuit issued published opinions in three cases, each of which featured a dissent. All three were criminal cases, and two involved habeas petitions, a regular source of division on the Sixth Circuit.

In Ross v. Petro, a divided panel reversed the district court's grant a habeas petition to Denny Ross, who sought pretrial habeas relief from being reprosecuted for kidnapping, rape, and murder of a young woman. In an opinion by Judge McKeague, joined by Judge Rogers, the Court held Ross failed to establish that retrial would constitute double jeopardy. Judge Guy dissented.

In Fautenberry v. Mitchell, a divided panel rejected a death row inmate's appeal of a district court's denial of his habeas petition. Judge Batchelder wrote the majority opinion. joined by Judge Gilman, finding all eight of John Fautenberry's arguments unavailaing. Judge Moore dissented, arguing Fautenberry received ineffective assistance of counsel during the penalty phase of his trial.

Finally, in United States v. Madden, a divided panel rejected two criminal defendants' challenges to their sentences. Judge Gilman wrote the majority, joined by Judge Siler. Judge Moore dissented in part, on the grounds that the sentence one defendant received was unreasonable.

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.