626 F.3d 366
6th Cir.2010Background
- Mitts challenged an Ohio penalty-phase jury instruction that asked whether aggravating factors outweighed mitigating factors, directing a death recommendation if so.
- The issue arose on a habeas petition under AEDPA after state court proceedings; the district court and panel addressed Beck v. Alabama’s applicability to penalty-phase guidance.
- The panel concluded the instruction was not contrary to clearly established federal law; Mitts appealed for en banc review.
- Judge Sutton, joined by Judge Kethledge, concurred to deny rehearing en banc, arguing Beck does not control penalty-phase due process and Spisak forecloses relief here.
- The concurrence discusses the AEDPA standard, the Spisak decision, and differences between guilt-phase Beck concerns and penalty-phase considerations.
- Cook recused herself from participation in the ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Beck applicability to penalty phase | Mitts argues Beck applies and invalidates the instruction. | Mitts panel held Beck does not control penalty-phase intent; no clearly established violation. | No clearly established Beck-based violation; AEDPA deferential review applies. |
| Effect of Spisak on relief | Spisak supports Mitts’ view that the instruction is unconstitutional. | Spisak found no clearly established federal law violation for similar instructions. | Spisak forecloses relief under AEDPA. |
| Beck and ‘acquittal-first’ framing | Instruction effectively forces unconditional death consideration before life options. | The instruction presents two options and does not mandate death. | Instruction not an unconstitutional acquittal-first command under this record. |
| Rehearing en banc appropriate | Disagreement on merits warrants en banc review. | No circuit split; en banc review not warranted; merits-based rehearing rare. | En banc review denied; no compelling grounds for rehearing. |
Key Cases Cited
- Beck v. Alabama, 447 U.S. 625 (U.S. 1980) (due process concerns with penalty-phase considerations)
- Spisak, 130 S. Ct. 676 (U.S. 2010) (penalty-phase jury instructions not clearly established federal law violation)
- Kansas v. Marsh, 548 U.S. 163 (U.S. 2006) (state may require death if mitigating factors do not outweigh aggravating factors)
- Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010) (intra-circuit treatment of Beck-based claims)
- Mitts v. Bagley, 620 F.3d 650 (6th Cir. 2010) (panel decision on Beck challenge at merits stage)