Eric Scott Patterson v. Thomas B. Haskins, Warden

Patterson was convicted of involuntary GILMAN, Before MOORE and Circuit manslaughter based child endangering ROSEN, Judges; Judge.* District July of 1997. He was sentenced to a term of between GILMAN, years prison. 10 and 25 J., the opinion delivered court, MOORE, J., His wife Lisa was convicted of joined. which misdemean- ROSEN, D.J., 669-75), (pp. or child endangering delivered and received sen- separate opinion concurring in part and prison. tence of six months Before the concurring judgment. in the Ohio Court of Appeals, argued Patterson that the trial court had erred in excluding OPINION the expert of a testimony criminologist GILMAN, RONALD LEE Circuit proffered by that his convic- Judge. tion was unconstitutional because the evi- In court granted Scott dence was Eric insufficient to sustain it. The Patterson a conditional writ of cor- rejected habeas Ohio Court Appeals both argu- * Rosen, The Honorable Gerald Michigan, sitting designation. E. United States Judge for District the Eastern District of I, Declining to latter, 316 F.3d at 608-09. terson As to the ments. regarding other claim pass on Patterson’s difference between court discussed evidence, insufficiency of alleged evidence was insuffi- allegation argu- Patterson a conditional granted we instead conviction cient against corpus required the verdict was writ of habeas ment jury It concluded: him retry proper evidence. then in- weight of the state on appeal, days. the record at 611. reviewed structions within 180 “We have sufficient as following find evidence for declin- and we offered the reason We law, that the mani- and also find insufficiency-of-the-evi- matter of ing to address supports the weight fest claim: dence proven the State

jury’s verdict (according to decided When beyond doubt.” reasonable charges instructions) faulty that Patterson was CT97-0035, Patterson, No. State involuntary manslaughter guilty of (Ohio Ct.App. June at *3 WL endangering, on child ceased based 1998). not reach deliberating therefore did his attempts reopen to subsequent After on whether Patterson was a decision the Ohio Su- by review appeal and secure offense of of the lesser included guilty failed, peti- filed a Patterson preme Court sim- involuntary based on manslaughter corpus of habeas federal tion for a writ reasonable, A in- properly assault. ple The court, for relief. raising grounds six jury might have concluded that structed petition, but court denied the district was insufficient to establish the evidence respect to a Patterson COA granted involuntary the causation element (1) pro- evidence issues: whether the two endanger- manslaughter based on child in- constitutionally trial at his was duced the yet have convicted on less- ing, then (2) conviction, his to sufficient involuntary man- included offense er violated Pat- jury the instructions whether simple on assault. slaughter based by omitting a process rights terson’s due at 611. the of the offense that state key element beyond a prove to reasonable required was timely petition a for re filed Patterson doubt. cases in pointing a series of hearing, to will reversed, this court has stated holding that the which This court claims insufficiency-of-the-evidence Patterson’s review court had violated state trial has where it set under circumstances omitting re even rights by process due conviction due to judgment aside proximate cause from quired element of of United He cited the eases involuntary trial error. jury for man instructions (6th I, Quinn, 901 F.2d 522 Cir. 316 F.3d at 609- States slaughter. Patterson Atkinson, 1990), Delk v. court on the state 10. Because Orrico, Cir.1981), and United States v. required only that review had direct (6th Cir.1979). requested We detailed,” and F.2d “sufficiently instructions be state, ultimately but response from every of the offense be not that element explana rehearing without further doubt, that denied beyond a reasonable proved for petition filed neither a “contrary to Patterson tion. court’s was held decision petition for certio- rehearing banc nor a law” de en clearly as ... established federal 1, August The mandate issued on rari. termined Court United 2003, was released Gaudin, 506, 522-23, 115 after which Patterson States (1995). his new trial. awaiting bail while Pat- on 132 L.Ed.2d S.Ct. on barring Patterson’s retrial commenced Janu- Patterson the state from intro- 26, 2004, ducing ary days previously after the it had not mandate presented. Although it days doubted that COA Four before the second issued. required for to appeal trial, informed coun- the state Patterson’s decision, the district court nonetheless is- to call sel that it intended two witnesses one, certifying following sued question: first who had testified trial— refusing [the “Did district err court] (Carroll) Patterson’s father and Patter- petitioner’s grant request stay for a (Lisa). permit- wife The trial court son’s court proceedings state and an order to testify, granted ted Carroll but Patter- granting his unconditional release?” testimony son’s motion to exclude Lisa’s spousal immunity. This court originally based When the scheduled Patter- verdict, telephonic argu- unable reach son’s current ments June judge but then cancelled state declared a mistrial and arguments parties asked the February scheduled third trial for (1) two questions: brief additional whether following day, prosecutor original hearing panel should have ad- lawyer sent letter an- insufficiency-of-the-ev- dressed Patterson’s nouncing again call intention Carroll (2) and, so, argument idence if whether trial, and Lisa as witnesses at third authority this court has the to do so now. summary and also to introduce of a 1995 initially assigned The case was to a telephone conversation between Patterson that included the two circuit judges from county and the coroner. This conversation original panel, with a third circuit presented had not been at either of the judge Judge substituted for District Ro- first two trials. sen. Patterson then filed a motion in the Following the argu- rescheduled oral styled district court a “Motion to Invoke 6, 2005, ment held on December a concern Continuing an Jurisdiction for Order that, arose because might the court have Granting Petitioner’s Unconditional Re- previous to revisit its decision in Patterson for a Stay lease and of State Pro- I, proper panel to conduct such an ceedings.” motion, In that Patterson inquiry should include all judges three maintained had state “violated the from original panel. hearing orig- The intent, spirit, and limitations of condi- consequently inal was reconstituted tional writ” by issued this court in Patter- gracious with the of Judge consent Rosen. I by initiating son a third trial after the A second round supplemental briefing 180-day period expired by had seek- implemented, was telephonic and a second ing to previ- introduce evidence that was argument held May before us on ously available but that had not been pre- 2006. sented at the first trial. II. ANALYSIS district court assumed jurisdiction stay to pro- state-court analysis proceed Our will steps. three so, ceedings but finding declined do First, we will consider whether we erred “nothing in the Sixth Circuit’s decision by Patterson I failing to address the insuf- [suggesting] may the State of Ohio ficiency-of-the-evidence claim. We will not now again re-try [Patterson] since his currently then decide whether we have the Likewise, hung resulted jury.” authority to address that claim either un- the district court not did read the Patter- der by the law-of-the-case doctrine or re- I opinion son or the authorities cited calling the mandate issued Patterson I. will address whether dis- decision whether Patterson was Finally, we guilty of the lesser included denying offense of trict court erred involuntary manslaughter based on sim- stay proceedings state-court motion to reasonable, ple assault. A properly in- release. grant unconditional jury might structed have concluded that conclu- following reached the We have the evidence was insufficient to establish (A) Our refusal address Patter- sions: involuntary the causation element of challenge to the son’s manslaughter endanger- based on child deviation evidence was an unwarranted yet then ing, have convicted on the less- longstanding prudential rule from er offense involuntary included man- that an court faced this circuit slaughter simple based on assault. arguments that the evidence was both I, Conspicu- Patterson F.3d at 611. trial was insufficient and that the infected ously analysis absent from our with other constitutional errors needs general practice reference to the in this sufficiency-of-the-evidence is- address considering insufficiency-of- circuit of sue, if a remand of even orders if the-evidence claim even a remand is (B) error; this the basis of trial because necessary of trial Although error. general prudential rule is constitution- Patterson us to alerted the relevant au- subject ally compelled and is least in his petition rehearing, thorities our in Patter- exception, one narrow error how, opinion explain did not amend our justify I grave son was not so all, if at our decision was consistent with extraordinary step revisiting a decision ques- those We now face that authorities. (C) years ago; issued over three tion, starting principles. with first correctly district court concluded that ruling in I not bar court’s does court’s rule and the This narrow initiating from trial out- the state third exception thereto 180-day set forth in the side window States, In Burks v. United corpus conditional writ of or from habeas 18, 98 57 L.Ed.2d 1 S.Ct. not intro- presenting that evidence (1978), held that “the original Our detailed duced at trial. precludes a Jeopardy Double Clause sec for these three conclusions fol- explanation reviewing ond trial once the court has lows. legally found the evidence insufficient.” true, explained, This is the Court later A. The to address refusal Patterson’s appellate reversal for because “an court’s insufficiency-of-the-evidence claim insufficiency of the evidence is effect an unwarranted deviation from was government’s that the case determination longstanding prudential this court’s against lacking the defendant was so practice a judg the trial court should have entered above, provided As the follow- noted submitting acquittal, ment of rather than justification declining for ing to address Nelson, jury.” Lockhart v. the case to insufficiency in our 2003 claim 33, 39, 285, 102 109 S.Ct. L.Ed.2d U.S. decision: (1988). Burks The rule announced in of whether the convic jury (according applies regardless decided

When instructions) being court faulty that Patterson was tion overturned the federal or a conviction guilty involuntary manslaughter is federal conviction state it on collateral review. See endangering, on child ceased addressed based 19, 24, Massey, and therefore did not reach Greene deliberating (1978) (applying open 57 L.Ed.2d leave possibility a retrial.” Id.; Atkinson, habeas-corpus in a chal- also holding of Burks see Delk 665 F.2d conviction). (6th (“[W]here Cir.1981) lenge ap- to a state-court An 93 n. it is declaration that the evi- claimed on ... pellate court’s the evidence insufficient, constitutionally insufficient to was reviewing dence was court is re- conviction, short, support quired has the to decide the question judgment acquittal though for even might same effect as other grounds there be jeopardy analy- for purposes preclude of the double reversal would not [that] re- trial.”) Third, Fifth, (citing sis. cases from the circuits) Seventh, (emphasis and Tenth Burks, court, In the wake of this like added). circuits, developed many practice other reaching claim in situa- This court’s decision United alleged tions where defendants have both Aarons, States v. 718 F.2d 188 Cir. against them insuffi- was 1983) curiam), (per revealed another sa their cient and trials were infected lient aspect namely, the Burks rule — procedural year with errors. after One ruling that because a that the evidence was decided, example, Burks was court insufficient to con defendant’s upon sufficiency- was called to evaluate a retrial, viction bars an alleged of-the-evidence claim along making ruling such a need reach regarding errors the admission of evidence other errors alleged appeal. The de propriety jury and the instructions. fendant in Aarons convicted of caus Orrico, United States v. See ing a false statement be made (6th Cir.1979). 116, 119 n. 5 defen- agency government, of the United States charged dant Omco was with intention- § in violation of 18 U.S.C. 1001. Id. at ally causing transported checks multiple raised appeal, He issues on commerce that he interstate knew had one of being them that the evidence was fraudulently been taken and converted. to support insufficient his conviction. This appealed Id. at 114. Orrico his conviction court challenge addressed his to the suffi grounds against on the that the evidence ciency of the evidence as a threshold mat insufficient, him incriminating ter, explaining that “[w]here the sufficien testimony improperly been admitted cy of us, the evidence is properly before trial, at his and that the instructions we consider that issue first on the element of intent were deficient. determinative of whether the appellant

This began analysis may court by “de- be retried.” Id. at n. 1. 189 Because ciding] the sufficiency of of the agreed issue evi- the court with Aarons that the dence, rather admissibility, than presented by evidence government the was the former is issue determinative the in fact of insufficient to support his convic question may tion, whether Orrico be retried.” it declined to consider the other is Id. at concluding 116. After 1983, that the evi- sued in appeal. raised his Id. Since insufficient, against dence therefore, Orrico was the the of law the circuit has been court jury also determined that the in- challenges that sufficiency to the of the likely struction was erroneous and would properly presented evidence that were independently require appeal reversal of con- and, the needed to be addressed where viction. Id. at 119 n. 5. But court dispositive the appeal, the allowed the refused to “rest pretermit [its] reversal on this discussion of other al ground ... such leged since a decision would trial errors.

653 slaughter jury the v. conviction on erroneous in United States decision court’s This (6th Cir.1990), Orrico, n. is still instruction. 599 F.2d at 119 See Quinn, 901 F.2d prac adhering general procedure to the we followed the set forth case 5. Had another in Aarons, moreover, in Orrico and followed in we would have tice announced Quinn, In this court reversed Aarons. the propriety reached the instruc- trial because the conviction confirming the defendant’s that evi- only tion after the by a testimony provided court admitted by at first presented dence the state the hearing suppression at an earlier witness passed constitutional muster and show failure to despite government’s the a retrial would not be barred under Burks. the unavailable at the witness was Aarons, 718 F.2d at 189 n. We now See recog court trial. 529. The time of belatedly erred in not recognize we nized, however, ad that it still needed to suf- deciding whether the state introduced insufficiency-of-the-evidence Quinn’s dress prove ficient evidence to that Patterson had, because, is the “if retrial to be claim involuntary manslaughter guilty sufficient, legally found evidence must be endangering giving based on child before law, to sustain a matter of federal prove the state second chance to 5 (quoting Id. at 529 n. jury verdict.” jury. properly crime to a instructed Ly Municipal v. Boston Justices of aware, and, as far as are One 1805, case— don, 294, 321-22, S.Ct. only exception as an one case—stands (1984)) (Brennan, J., con 80 L.Ed.2d 311 general will as a rule that judg part concurring curring chal- matter of course review omitted). ment) Apply (quotation marks it. That lenge properly brought before Virginia, v. ing standard from Jackson Davis, case is United States 307, 319, (6th Cir.1989). Davis, In the defen- (1979) rele (holding that “the L.Ed.2d 560 violating had been convicted dant whether, viewing after question vant upon mail fraud based federal statute light most favorable to legal theory by that was invalidated of fact could any rational trier prosecution, Court while direct the essential elements have found doubt”) (em appeal chal- Id. at 902. His beyond pending. a reasonable crime validity theory, concluded original), lenged only this court not phasis was sufficient that the evidence of the evidence but also the trial would and that second In government verdict at trial. presented Jeopardy violate Double Clause. opinion, this per curiam unpublished, Quinn, 901 F.2d at 531. conviction on court reversed Davis’s insuf- reaching the ground former without unquestion I Our decision why explaining claim and ficiency without gen from the ably a deviation constituted not reach that claim. United States did applied the above eral rule as stated and Davis, 86-4076, 1988 WL No. pre presented with cases. We were 1988). govern- Cir. March court, *3 by the cise faced Orrico scenario indict- superseding a ment then secured in error in the trial court’s one where theory, Davis an ment on alternative re jury would alone have structing the on new indictment moved dismiss But a trial. a remand for new quired 903. grounds. F.2d at jeopardy double 873 challenge reaching instead motion, evidence, court denied After the district as did sufficiency of the to the interlocutory in this appeal Orrico, Davis filed an “rest we decided to court man- court. involuntary our reversal” of the

654 rejected judicial economy first the contention “considerations of coun-

This court against undertaking analysis to “a legal the initial reversal due seled” that that jeop- might unnecessary. terminated Id. the indictment” What defect did, then, ardy subsequent under Davis court was decline to ad- barred Explaining challenge a new indictment. Id. 904. dress where it Supreme spe- reversing Court Burks had was conviction on another that cifically recognized ground independently preclude that the failure to dis- that would theory. “trial retrial on faulty legal indictment was a error” the same miss retrial, preclude did the Davis that not readily distinguishable Davis is from the the defective court held indictment situation that was us in before Patterson I. similarly try Davis was a “trial used original The in Davis reviewed a ... has error” whose “rectification never legal theory conviction that based on a thought precluded to be the Dou- been repudiated by Supreme that had been Jeopardy ble Clause.” Court after the defendant’s trial. As a intervening result of the Supreme Court however, argued, Davis also States, ruling McNally v. United 483 original panel’s specific “failure to make 2875, U.S. S.Ct. L.Ed.2d 292 finding sufficiency of on the the evidence (1987), there no chance that Davis ought bar retrial.” Id. at This using system could be retried for the mail analysis began by recognizing intangible to defraud others of their prop- prior depar- that its decision constituted erty rights. question of whether the ture from the rule recited both Orrico government had introduced constitutional- (We Delk. Id. note Davis ly sufficient evidence at the first trial was court did not cite the decision in published completely therefore irrelevant to whether Aarons.) The Orrico and Delk cases were Davis could be retried under a different view, distinguishable, in the court’s be- theory and a new indictment. cause neither one deal[t] with situation where the defen- Davis, But unlike in our decision in been dant had tried an indictment I did not on a ground rest incorporating a legal theory that had precluded independently retrial on the turned to be just out invalid. faced We theory involuntary manslaughter based such situation on the earlier endangerment. on child An erroneous pointless here —and would have been error, instruction a trial California days’ for us to through sift several worth Roy, 2, 5, U.S. S.Ct. of trial evidence to determine whether (1996) curiam), L.Ed.2d 266 (per and a the evidence would have been sufficient reversal on the basis of a trial error does a conviction under the “intan- not retrial preclude charge. on the same gible rights” theory if Burks, 98 S.Ct. 2141. We already rejected Court had that the- cannot say, therefore as the Davis court ory. did, that reviewing explained Id. The court further that it had “pointless.” evidence would have been See no need to decide whether the “point” evidence 873 F.2d at 907. The of such a review, would been have sufficient under simply, other stated would have been to liability cognizable theories of under the determine permissible whether retrial was fraud mail statute because there was no under Burks. Had we concluded guarantee “that government would ul- unreasonably applied Ohio state courts reindict,” timately to Virginia decide and in upholding because Jackson the circuit, in verdict, re- tice this we could have done so. could not have been Burks, nothing But is we charges at issue. See the truth that intended on the tried original 2141. one-paragraph of the kind. Our 437 U.S. at S.Ct. discussion (or case, to the suffi- panel’s any refusal address for Davis did not cite Davis other subject matter) did not the defen- ciency challenge closely instead hewed to charge; same ours to retrial the setting dant the factual To before us. recast did. purposeful our decision as conscious and departure longstanding practice from a properly read as Davis is therefore disingenuous. would thus be carving exception of limited out narrow do, Indeed, frankly, to attempted quite fail What we to see how application. extremely to on an broadly passing can more was avoid close Davis be construed issue that would have us to holding appeals as that a court of forced delve than deeply incomplete into the trial insufficiency-of-the- not an state-court need consider Appendix record in the Joint provided where the court also re evidence claim decide, if believed that the ground on another even we state verses the conviction erred, courts error independently precludes retrial on the had whether their holding, sufficiently grave understood to warrant habeas relief. charges. same That manner, panel disagreement is this Our desire to avoid the in this consistent with cases, might undertaking have resulted from prior which have refused to court’s task, understandable, charges that this difficult while a retrial on remand for justify suffice to our failure to prove beyond failed to rea does not government practice adhere whose aim time around. After to consistent sonable doubt first all, constitutional underlying protect Court’s hold defendant’s rights prevent government and to from principle “[t]he is the ing Burks In having apple. at the other Clause forbids a second a second bite Jeopardy Double words, pretermitted not affording pros we should have purpose resolving simply evi Patterson’s claim because opportunity supply another ecution have been difficult or divisive. it failed to muster in the first would dence which Bobo, S.Ct. 2141. See United States proceeding.” Cir.2005) I, (“Although evalu- unlike the one 1268 n. Our decision Patterson Davis, ating could just an gave op state such one, in in cases like this prove problematic portunity. defective, indictment itself is our which the does, however, The decision Davis applies rule and should prudential still practice reviewing make clear that the followed.”). have been challenges is not an inexorable words, as just In other this command. subject Patter- 2. error did Our adopted wake of Burks to an unconstitutional retrial son constitu- protect in order to Orrico rule Having explained above rights, deviate panels tional future could rule in circuit that we failed they ap- general this from that rule where deemed jeopardy con follow based on double unnecessary protect those plication cerns, or, Davis, then whether question becomes applying where rights Davis, Patterson’s insuffi our failure address “pointless.” rule would be subjected him Thus, cieney-of-the-evidence claim in Patter- we intended pose retrial. We lead to carve unconstitutional I to follow Davis’s son availability general prac- question exception to the out another 656 by Patterson at this late turns

relief for date second trial was barred the Double 323, degree just Jeopardy on how an Clause.” Id. at large serious S.Ct. Based on 3081. But the defendant error we committed. the Su- Richardson ruling, v. had not secured such a since preme Court’s decision Richardson the States, 317, district court had a mistrial United declared and S.Ct. 3081, (1984), ordered a new trial on two remaining the 82 L.Ed.2d and the reac- counts, appeals decision, court of had our sister to that de tion of circuits jurisdiction. clined to exercise In that sit convinced that we are Patterson has uation, only where “there has a been mis subjected to an been unconstitutional retri- resulting hung trial jury, from a Burks al. simply require does not that an appellate Richardson, In jury acquitted court rule of the evi defendant on one count of a distributing dence because retrial might barred substance, controlled but was unable Jeopardy Double Clause.” Id. The reach a verdict both as to another distribu that, “[rjegardless Court thus concluded tion count and a third count alleging that at the evidence” his first conspired he to distribute controlled sub trial, Richardson had “no valid double 318-19, Id. at stances. S.Ct. 3081. jeopardy prevent claim to his retrial.” Id. The district court declared a mistrial and 326, 104 at S.Ct. 3081. remaining ordered a new trial on the two counts, rejecting argument Richardson’s partial Justice Brennan’s dissent that the retrial would violate the Double highlighted some of the anomalous results Jeopardy Clause evidence in to which opinion the Court’s could lead. troduced at the first insufficient He reasoned follows: conviction on either of the Apparently, approach, under the Court’s remaining counts. See id. After the D.C. only judgment an actual of acquittal, or Circuit dismissed Richardson’s interlocu conviction, an unreversed would termi tory jurisdiction, appeal for lack of thereby nate jeopardy and bar retrial. granted review to resolve Accordingly, defendant who is consti among conflict the circuits with respect tutionally entitled acquittal to an but jurisdictional to the Id. issue. at 320 nn.& who fails receive one—because he 3-4, 104 S.Ct. 3081. happens to be an tried before irrational or lawless factfinder or because his

The Court first reversed D.C. Cir- agree cannot on a verdict —is worse off jurisdictional cuit’s ruling, holding that the than a defendant tried before factfin rejection by the district of Richard- der constitutionally who demands suffi son’s motion to was appealable dismiss Indeed, evidence. he is cient worse off under Abney the decision in v. United guilty than a acquitted defendant who is States, 431 U.S. due to mistakes of I fact or law. do not (1977). Richardson, L.Ed.2d 651 paradoxical believe this result is faithful at In 104 S.Ct. 3081. reaching the principle repeatedly we have reaf merits of Richardson’s double jeopardy Jeopardy firmed that the Double Clause claim, Court explained import precludes retrial where State has Burks, reach of the Burks rule. the Court prove failed as matter of law to said, “held once a defendant obtained despite opportunity case a fair to do so. appellate ruling unreversed 327-28, (Brennan, Government failed to J., introduce suffi- 104 S.Ct. 3081 cient trial, him to convict concurring part dissenting in part) on in (citation challenge to address his the merits quota- original) in (emphasis again he omitted). in his first refused when appeal, decision The marks tion and, rehearing, as will be Richardson, recog- petitioned for Brennan as Justice below, ultimately in Part II.B. explained nized, clear a retrial is makes that cannot do so now. conclude that we appel- and until by Burks unless barred reversing judgment enters late court Notwithstanding unsatisfying the result that the evidence ground on the conviction conclusion, Richard- produced by our both the conviction. support insufficient was interpre- son itself and our sister circuits’ words, the Burks what activates In other persuade of us that tation that decision the possibility that not the abstract rule is by ex- required is the one conclusion insufficient, appellate the but evidence isting particularly law. find instruc- We that effect. Absent declaration to court’s the decision Unit- tive Seventh Circuit’s declaration, continues, and jeopardy such Douglas, 874 ed States v. again once on can tried the defendant be Cir.1989), criminal appeal a direct charges. the same simi- procedural posture nonetheless has a did not violate present 2004 retrial lar to that of the case. The defen- Patterson’s provi- jury as that Jeopardy Douglas by Clause were convicted the Double dants Our in Richardson. both to distribute and actual- conspiring was construed sion sufficiency They ly distributing to address Patterson’s cocaine and heroin. failure pos- the challenged sufficiency on the foreclosed the the challenge merits on he would have receiving presented by government, what the sibility of evidence ap- Burks rule —an the instruc- to invoke the well as the propriety needed at that the evidence Id. The Cir- holding court’s tions. at 1148-49. Seventh pellate fact insufficient to latter convictions on the his first cuit vacated the at his conviction. See to address the suffi- support ground, but declined Because never after the defendants ciency challenge 104 S.Ct. 3081. even presented petition evidence in a for re- actually held the reasserted the claim defen- hearing. first trial was insufficient at 1149. After the at the Id. remand, they involuntary manslaughter on a conviction dants were convicted protection endangering, arguing child the this time again appealed, on based in. kicked Pat- un- never have been barred afforded Burks their retrial should permissible Jeopardy retrial was therefore Clause because terson’s der Double jeopardy princi- at the first governing double was insufficient under evidence trial. Id. ples. began analysis The Seventh Circuit conclusion that we reach one that, had by noting although other circuits predicted Brennan sense

Justice court reviewing that a previously “held in his dissent Rich- foreboding partial to address a defendant’s cannot refuse Justice Brennan was concerned ardson. challenge of the evidence to the “could remand for courts trial,” Circuit insufficiency offered Seventh addressing the without retrial (em- question. never addressed and the would never claim defendant (citing cases from phasis original) challenge the first able circuits). Third, Ninth, More- and Tenth 3081. That is Id. at trial.” observed, over, Supreme the court our decision the effect that precisely reviewing held that a I, never with Richard- Court “has when combined review son, declined must on case. We has terminated; original jeopardy raises has evidence whenever defendant appeal.” 1150. In Id. at abundantly issue and is clear that a reversal view, Douglas court’s for instructional error is no ter- more a ques- to addressing had come closest mination of than a jeopardy mistrial Richardson, in where both its reason- tion jury agree. is to it where unable And holding at ing and indicated “that least implications evident that of Rich- ends in mistrial prosecution where first for a ardson case such as this one did or a defendant is entitled to hung jury, not escape not the attention of the Richard- sufficiency of a review of the the evidence court. son presented at trial before a second trial on (emphasis (referring in original) Id. at charges begins.” the same Id. The Sev- the consequences to identified Justice proceeded acknowledge enth Circuit in separate opinion Brennan in Rich- argument force of Brennan’s Justice ardson, 3081). 327-31, 104 S.Ct. dissent, nevertheless concluded that but the original Because reversal rested on effectively rejected the ar- Richardson instructions, jury erroneous the Fifth Cir- gument “that the Jeopardy Double Clause held that jeopardy cuit had never termi- compels appellate court to review the and that nated the defendants could sufficiency at of evidence offered trial consistent Jeopar- retried Double anytime question.” a defendant raises the Miller, dy F.2d at Clause. 874. added). (emphasis Id. reasoning Similar is found in the Fifth The same conclusion follows in pres- Circuit’s decision United States v. Mil- Miller, ent case. inAs our decision ler, Cir.1992). The de- invalidate Patterson’s conviction rested ex- fendants’ convictions in were Miller re- clusively on ground jury that the in- on appeal ground versed on that the constitutionally structions were deficient. jury permitted instructions would have the But this error” “instructional did not con- theory them to convict on a of mail stitute jeopardy-terminating event. See Supreme fraud that the Court had invali- Consequently, id. Patterson’s second trial States, McNally dated in v. United not did violate the Double Jeopardy 97 L.Ed.2d 292 Clause, and a permissible third trial is for (1987). F.2d at See 952 868. After their the same reasons. convictions, again retrial resulted in Doug- cannot end our We discussion of on argued appeal defendants that the re- Miller, however, las and without emphasiz- trial been by should have barred the Dou- decisions, ing key aspect a second of those Clause, Jeopardy part ble because “the brings analysis one us back to our evidence at the first trial was insufficient Part II.A.l. above the importance about support a conviction on a valid mail addressing insufficiency-of-the-evidence theory.” fraud Id. at Fifth 871. The Cir- prior properly cuit claims recognized precedent before court. After circuit lent concluding some the defendants’ con- the Double Jeopardy they tention that were to a suffi- did not compel appellate entitled Clause “to courts ciency on review the second appeal, but sufficiency review at concluded that the anytime Court’s deci- trial ques- defendant raises the sion in Richardson had abrogated that tion,” the Seventh Circuit nevertheless precedent. As the Miller explained: court “a adopted policy in circuit of rou- [that] concept tinely addressing evidentiary central of Richardson is

that there is no double jeopardy unless criminal cases when defendant presents “[a]lthough mandated the double 874 F.2d at not Douglas, appeal.” the issue clause, practice ... so, explained, jeopardy better did 1150. The court on an initial for Jeopardy [is] the Double just because properly dispose claim Clause, its “concern but because of presented to it that the evidence costly re- of scare preservation the thus Having poli- legally insufficient warrant established sources.” Id. at challenged conviction.” court then reached back cy, Douglas the evi- to evaluate time clear, Douglas make and Miller What first presented the defendants’ dence therefore, longstanding is that this court’s the in to determine whether order prudential practice reviewing of the suffi- on to evaluate the evidence court’s “failure ciency reversing despite evidence subjected them appeal” first grounds on was not un- conviction other Only Id. at 1151. after jeopardy. double by dermined Court’s decision at the evidence introduced concluding that Indeed, despite reading in Richardson. in fact been sufficient did the first trial had implications broadly, of Richardson defen- consider the the Seventh Circuit the Fifth and Seventh Circuits both to their convictions challenges dants’ practice identical to the one that adopted retrial. has 1979. That employed this court since the law of those practice in rec- remains of both the Fifth Miller Similarly, Circuit today. circuits—and our See policy of such a even ognized the wisdom circuit— Moses, 182, States v. 94 F.3d 188 that it was not constitu- United concluding while (5th Cir.1996) (“In cases where rever- tionally Miller defendants required. The retry permits sal the Government post-Richardson a number of pointed to defendant, cases, in reach a of this we must including court’s decision 529, argument in of their the evidence Gov- Quinn, F.2d 901 if may retry the defendant to a ernment “that defendant entitled argument insufficient.”); at trial was sufficiency of the evidence at the evidence review of the Anderson, 1076, F.2d States v. 896 952 F.2d United prior the first trial retrial.” (7th Cir.1990) (applying rule set Fifth Circuit 1078 But the concluded 872. Douglas). in “only that an forth the cases cited held should, in of dis- or the exercise to an circuits likewise adhere Other will, normally review the sufficien- cretion is de- analogous “prudential rule” has well even if it cy of evidence as jeopardy potential “to double signed avoid must that a conviction already determined requires them “to re- problems,’’and grounds.” other be reversed on claims sufficiency of the evidence view defendants, even if resolution on holding “Far that a review of raised [a from grounds otherwise dis- if a would challenge] can be had later alternative Bobo, v. pose of the case.” United States grounds,” on other conviction is reversed (11th Cir.2005); continued, 1264, see F.3d 1268 cases 419 the Miller court “these McDermott, 64 sufficiency of the also United States evidence indicate that (10th Cir.1995) (“[T]he 1448, law first will reviewed claims of compels circuit us review having from defendants prevent order remanding prior to where there was insufficient to face a second trial procedural er- a new trial because of convict at the first for insufficient evidence to ror.”); Bishop, in original). United States (emphasis at 873 trial.” Id. (9th Cir.1992) that, 820, (reaffirming & n. 11 thus concluded

The Fifth Circuit law-of-the-case doctrine is not policy the Ninth after Richardson Circuit’s proper revisiting for basis Pat- sufficiency challenges despite reviewing sufficiency claim terson’s for grounds other rever- “[t]he existence sal”) (citation omit- quotation marks argues this court’s ted) (alteration original). authority to earlier review its decision re in a “power sides federal court’s to revisit sum, In we declined address when decisions own ... prior of its cir insufficiency-of-the-evidence cumstance, as a rule although courts prior opinion, claim in our deviated we should be loathe to do so absence (and practice from a that has re- been extraordinary such circumstances as where mains) the law this circuit most ‘clearly initial decision was erroneous ” part better others last 25 injustice.’ would work a manifest years. subject error But our did not Pat- Operating Christianson v. Indus. Colt terson to a retrial that his double violated Corp., jeopardy assuming even rights, (citation (1988) omitted). L.Ed.2d would have determined that the evidence Christianson, passage But the cited from (a was indeed insufficient determination as the as well Ninth Circuit cases on which certain). that by is no means With this relies, Patterson refer circumstances understanding of our decision in Patterson fundamentally different than the ones con established, I we may address whether we fronting us in present case. The cases sufficiency challenge now reach the in question that address the situation in which incorrectly we declined to address 2003. resolves legal issue that at a reappears stage later litigation, prior of the same but to final B. cannot reach We chal- Patterson’s judgment. See Mendenhall v. Nat’l lenge the evi- Bd., 464, Transp. Safety 213 F.3d 467-69 dence at his first trial under either (9th Cir.2002) (revisiting and reversing the by the law-of-the-case doctrine or panel’s earlier conclusion that it had the recalling the mandate authority payment to order the of certain attorney Our that agency conclusion we should have tak- fees after an on remand panel’s en up applied ruling first challenge to the suffi- the is sue); Council, ciency Tahoe-Sierra Preservation of the evidence in our prior decision Inc. v. Tahoe Reg’l Planning Agency, 216 leads to a question thornier —whether 764, (9th Cir.2000) (concluding 787-88 have power to reach issue now. remand, on appeal, after a that the prior Patterson maintains that law-of-the-case panel’s determination that the defendants principles us to allow address his claim waived a statute-of-limitations defense because our failure to do so earlier erroneous”), “clearly aff'd, departure clear precedent from circuit and 302, 1465, 122 S.Ct. 152 L.Ed.2d 517 would injustice. work a manifest The state (2002). counters that principles law-of-the-case do

not apply, only way that the to revisit our words, In other the above cases prior ruling by recalling would be the man- prudential illustrate nature of the law- date, recalling and that the mandate under doctrine, of-the-case which “states these circumstances would be an abuse of law, upon a court ‘when decides a rule of discretion. We address these contentions decision govern should continue to in turn. in subsequent stages same issues in the ” ordinarily ideally operate Card Ex and automatical- v. Business case.’ Moses same (6th is, Inc., ly, Cir. the need for the 929 F.2d without district press, 1991) further.”) (citation omitted); California, (quoting Arizona court to act Warden, 605, 618, 75 L.Ed.2d Phifer (1983)). Cir.1995) “[cjonditional in both Ninth Circuit (observing or- ” ‘final,’ acknowl and Tahoe-Sierra ordinarily Mendenhall ... considered ders are the effects of edged ability that its undo propo- collecting supporting cases flexibility context). rulings rested on prior in the habeas sition doctrine, which “directs law-of-the-case I opinion Because the Patterson discretion, does not limit the court’s case, judgment final a habeas Mendenhall, 213 F.3d power.” tribunal’s judgment relief from that cannot obtain (citation quotation marks omit at 469 by invoking flexibility of simply ted). He must law-of-the-case doctrine. instead But doctrine does the law-of-the-case forth in “the satisfy criteria set rules to circumstances such those apply not governing ... collateral attack” of a state Wright, present case. As Professors Wright, 18B Miller & Coo- conviction. See Miller, Cooper explained: have below, § As will per be discussed ... rules do involve Law-of-the-case inquiry governing under habeas proper instead, preclusion judgment; final jurisprudence recalling is whether judicial they affairs regulate before order to correct an erroneous final mandate final judgment. judgment, After direct prior would an abuse of our decision is judgment governed relief from discretion. at- governing

rules direct and collateral in Rule found Civil Recalling the principally con- mandate would tack— 60(b) corpus the proce- and habeas and stitute an abuse of discretion sentence— dure to vacate a criminal Judge appeals,” of as “[C]ourts judica- or res rather than law of case “have explained, has asserted the Posner ta. mandate, in ... recall a effect power Wright, Arthur R. Mil- 18B Charles Alana case, time, limit of reopening the without H. Practice Cooper, ler & Edward Federal exceptional in circum although only (2d ed.2002) (em- § and 4478 Procedure Crabb, Patterson v. 904 F.2d stances.” added). phasis (7th Cir.1990); 1179, 1180 see also United (6th 514, Saikaly, 424 F.3d 517 in I v. opinion Patterson consti States Our Cir.2005) (“Although appeals courts of grant judgment” tutes “final authority to recall a of is have inherent corpus of a conditional writ habeas mandate, exer See, power only should e.g., final such treated as a order. Browder Corrections, extraordinary circumstances be Dep’t 434 cised v. Illinois of 556, repose 257, 265-67, of interests profound 98 521 cause S.Ct. 54 L.Ed.2d mandate.”); (1978) appeals to a court of (holding that a district court’s order attached Miller, Cooper, Wright, Federal “final” 16 & granting a conditional writ was (“The § decided, as Practice and Procedure 3938 though the court had not even statute, power appeals of of to recall its required by a court was then whether long recog necessary); once issued has been evidentiary mandate hearing Gen nized.”). Deuth, Supreme Court has de 687, The v. 692 Cir. try 456 2006) (“Conditional a mandate as power recall grants of writs habe scribed “subject is to re- they an “inherent” one that are ... and corpus final orders

662 view for an abuse of discretion.” Calder- (citing Second, Fifth, Ninth, cases from the 538, 549, circuits). Thompson, v. 118 and D.C. Those courts have (1998) (cita- 1489, S.Ct. 140 L.Ed.2d 728 agreed Miller, Wright, with Professors omitted). tion Use this “inherent” re- Cooper that the power recall is to be “ex- power necessarily circumscribed, call ercised sparingly.” Wright, Miller & however, because of “the need preserve Cooper, Federal Practice and Procedure finality judicial proceedings.” Sargent § 3938. Supreme Calderon Prods., 86, v. Columbia Forest 75 F.3d 89 also “extraordinary endorsed the circum- (2d Cir.1996). standard, stances” labeling pow- the recall resort, er as “one of last to be held in This has held that “one against grave, reserve unforeseen contin- seeking of a recall mandate must demon gencies.” 550, 523 U.S. at 118 S.Ct. 1489. good strate cause for that through action showing exceptional circumstances,” Calderon only in is the case in which the cluding, but not limited to “fraud Court has upon power addressed the court, clarification of an of a court outstanding appeals man to initiate a recall of date, [or] correction of a its mandate sua sponte. clerical mistake.” See id. at 549- FCC, 559, Corp. 849, BellSouth 96 F.3d S.Ct. 1489. 851- We will therefore (6th Cir.1996) address (declining to that decision’s implications recall its procedural mandate an agency’s delay history where imple some In detail. menting the court’s adversely order affect the Ninth Circuit reversed private company); ed a grant see district court’s also United of habeas relief to Murray, States v. 2 Fed.Appx. Thompson, inmate, 399- California death-row (6th Cir.2001) (unpublished) reinstated (calling death sentence. Calderon, the enumeration Thompson of factors in BellSouth “a (9th Cir.1996). nonexhaustive list of Thompson’s circumstances that petition extraordinary are enough rehearing denied, warrant a re en banc was and the mandate”). call of a In Murray, Calderon, state set an the court execution date. 546, 118 recalled its mandate over seven U.S. months S.Ct. 1489. Less than two original after its date, decision and weeks three months before that Thompson sought after Supreme the Court relief judgment had denied from Mur the district court ray’s petition for and certiorari. filed a requesting The court motion the reasoned that Supreme the Ninth Circuit Court’s deci recall its mandate. Id. The sion in Apprendi v. Jersey, appeals New of motion, 530 U.S. denied that but 466, 2348, 120 days later, S.Ct. two 147 L.Ed.2d 435 the full court voted sua (2000), which was sponte issued one to hear month after the matter en banc. Id. at panel 547, 118 entered judgment, into S.Ct. 1489. “call[ed] question ‘integrity’ of’ the pan earlier Just days two Thompson’s before execu- el decision and amounted to “extraordi date, tion divided en banc of the nary” circumstances that merited recall of Ninth Circuit issued a decision recalling- 2 mandate. Fed.Appx. at (citing 400 the earlier mandate and reinstating the Zipfel Co., 565, Halliburton initial judgment district court that had va- (9th Cir.1988)). 567 Thompson’s cated death sentence. Id. The

As the observed, BellSouth court other court attributed its failure to act earlier to similarly circuits have applied “excep- “procedural misunderstandings by some tional circumstances” standard regarding wit, judges” miscommunications dur- —to the recall of a mandate. 96 F.3d at ing 851-52 a law-clerk transition in judge’s one

663 it, the Court then rule to the facts before oversight of judge’s another chambers not acted that the Ninth Circuit had found found petition en banc the initial —and justice, miscarriage of which the constitute “ex to avoid failures sufficient those at cases characterize as “actual as See id. Court’s circumstances.” traordinary 559, (citation quota legal innocence.” Id. at 550-51, compared to 1489 118 S.Ct. omitted). Sawyer Whitley, (quoting This decision marks 118 S.Ct. tion 2514, 333, 339, had mandate days after the S.Ct. released (1992)). had Thompson issued, year after almost L.Ed.2d rehearing en request his first filed announced general rule Whether mur after the banc, years and almost actually Supreme Court Calderon Id. convicted. he had been der for which far from present in the case is controls 548-49, 118 S.Ct. 1489. at terms, rule, by its own clear. The Calderon court recalls its applies where Court, by majority de to revisit “an earlier decision mandate four, Observing that five to reversed. pris relief to a state nying corpus habeas on the actions “rest[ed] Ninth Circuit’s 558, Calderon, 1489. In his Id. at 118 S.Ct. 523 oner.” grounds,” doubtful most an uncondi 1489, sought Patterson 551, appeal, then first 118 S.Ct. ordering his release because the of a mandate tional writ that the recall explained allegedly measured at his first trial was must also be context the habeas insufficient, alternatively a conditional statutory jurisprudential or “against cases.” secure his release unless corpus in habeas writ that would applicable limits true, period This was retried him within set Id. at 118 S.Ct. the state statutory said, the suffi though By declining even to evaluate the Court time. petitions evidence, governing successive we did not techni ciency restrictions sua Ninth Circuit’s had apply did not to the him the relief that he cally “deny” mandate. to recall its sponte decision But our decision sought ground. on that appeals, 1489. Courts only a condi grant instead to re then, their discretion must exercise him denying writ had the tional effect “guided by general call a mandate requested. relief that he primary habeas underlying Court’s] principles [the apply here. may rule the Calderon well So the re even where corpus jurisprudence,” does, no basis to recall then we If it have Antiterrorism imposed by strictions mandate, argument since Act, Penalty 28 U.S.C. and Effective Death has been throughout proceedings these formally apply. Id. § do not innocent, that he is legally that he is 558-59, 118 id. at actually innocent. See focused on a Court Supreme The S.Ct. finality in the interest particular state’s announced Cal- But if the rule convictions, even and announced criminal of the apply, aspects other deron does a federal general rule: following “[W]here in that case reasoning Supreme Court’s recalls its sponte sua appeals court of v. in Bell more recent decision and its merits of an earlier to revisit the mandate 2825, 794, 125 S.Ct. Thompson, 545 U.S. to a corpus relief denying decision habeas (2005), suggest strongly 162 L.Ed.2d 693 its discre the court abuses prisoner, state pres- under the recalling the mandate miscarriage it acts to avoid tion unless an abuse circumstances would be ent habeas cor justice defined [the Court’s] as Calderon, for 558, The Court our discretion. 118 S.Ct. jurisprudence.” Id. pus prompt- emphasized that added). example, “[t]he Applying (emphasis which a court acts to correct ness with its state secured a date for Thompson’s execu adequacy tion litigated mistakes is evidence of its his competency to be grounds reopening the case.” executed in both state and federal court. 552, case, 1489. In that See id. at 2832-33. The third factor em phasized by acting Court chided the Ninth Circuit for the Court was that the amend opinion ed alleged adopted arguments four after the procedural months that had previously presented been problems process Thompson’s in the en banc had oc petition for rehearing or rehearing curred. See id. If we recall the en mandate here, Finally, banc. Id. at 2833. acting we will be to correct our error federalism, returned to the concerns of years over original three after our decision comity, finality at the heart of its years and almost ten after Patterson’s Calderon, ruling reasoning original those state-court conviction. Bottone Cf. (2d applied concerns even in States, slightly dif 350 F.3d United Cir. 2003) (“Under procedural ferent Calderon, posture of Bell. Al recalling the though it “respectful of the Court of years mandate more than six after its issu Appeals’ willingness to ‘just correct a decision apply ance the benefit of hind that it perceived mistaken,” to have been sight,’ would constitute an abuse of discre tion.”) Supreme Court nevertheless concluded (quoting Gray-Bey v. United States, court’s Cir.2000)). action was not “consistent with the ‘State’s finality interest passage The played of time also a cen- convictions that have survived direct re Supreme tral role in the Court’s decision ” view within system.’ the state court There, Thompson. Bell v. the Court Calderon, at 2836-37 (quoting 523 U.S. at reversed decision in which this court 555, 118 1489). S.Ct. initially relief, denied habeas withheld issu- mandate, ance of the and later reversed All four of the above factors cut itself in grant order to habeas relief. See decisively against recalling the mandate in Bell, Thompson 691-92 present first, case. As to the the three (6th Cir.2004). Court as- years plus that passed have since our deci sumed without deciding that this court’s sion in Patterson I far exceeds the seven actions permitted by were the Federal months that this court waited in Bell. Sec Appellate Procedure, Rules of but held ond, Ohio, the state of like the state of that the court had abused its discretion Bell, Tennessee in engaged has in signifi waiting seven months after the Court’s cant action in reliance on our ruling in denial of certiorari to issue an amended Patterson I. expended The state has sub opinion reversing prior its disposition. stantial time and in deciding resources Bell, 125 S.Ct. at 2832. retry Patterson, whether to conducting the trial, second preparing trial, for a third We read the Supreme Court’s decision litigating ability proceed in Bell turning on four factors. The that third trial before the federal courts. first was “the length of time between [the] These actions are directly analogous to the denial of certiorari and the Court of Ap- ones that the Supreme Court in Bell found peals’ issuance of its opinion.” amended to be illustrative of the state’s important Id. relatedly, Second and the seven— reliance interest. See S.Ct. at 2832- delay month caused the state to act in reliance on the appellate court’s earlier opinion and order. Believing that habeas The third and fourth factors identified in relief had definitively denied, been the Bell are even damaging more to Patter- end, Supreme In the we that the to the suffi- believe we revisit appeal. son’s Were in I, Court’s decisions Calderon and Bell are in ciency challenge presented an insurmountable to relief for obstacle a rule doing so on the basis of we would Indeed, though neither Patterson. case our in a time- already brought to attention all has facts on fours with those of the rehearing. The ly-filed petition case, present squarely both situa- address Bell, Supreme same true where at- appeals tions in which courts of have pointed “opportunity court’s to reach back in to correct tempted time at the [Thompson’s] arguments to consider they to be mis- decision later believed factor yet another rehearing stage [as] simply ignore taken. We cannot the fact that the de- supporting determination [its] Supreme that the Court has twice reacted in er- cision the mandate was to withhold good-faith part on the these efforts ror.” Id. at 2833. reversing courts their judgments. A similar in this decision case finality comity con- “the and Finally, likely provoke would the same reaction. also and cerns that animated Calderon” and For that reason the others set forth are likewise influenced the outcome Bell above, recalling conclude the man- id. at implicated present in the case. See in order to reach insuffi- date respected this 2836. The Bell Court ciency-of-the-evidence claim would be an “willingness to correct a decision court’s of our discretion. abuse mistaken,” have been perceived the panel’s but found issuance nonetheless Pat- should we have done in 3. What opinion reversing of a itself seven new I? terson consti- months after the denial certiorari briefly one last issue that We address at 2836- tuted an abuse of discretion. to our first handling relates of Patterson’s 37. We believe that the same conclusion may help and that avoid cases like ease, our applicable present in the where Specifically, future. his we address challenge failure to address Patterson’s of what have question we should done an er- of the evidence was in 2003. We believe that the Tenth Cir- ror, subject not actually one that did but v. Had- cuit’s decision United States him to unconstitutional retrial. See (10th Cir.1992) (Had- dock, 961 F.2d 933 Stripped their es- Part above. II.B.2. II), provides guidance. solid dock sence, and Bell teach Calderon in Haddock convicted after defendant ac- decision to recall the mandate must funds, misapplying trial of bank count in the finali- for “the State’s interest fraud, making bank false statements ty of “considerable convictions” agencies. United States governmental expended by time the state and resources” Haddock, defending Patterson and prosecuting Cir.1992) (Haddock I). appealed He his sys- conviction in resulting and sentences on numerous conviction Bell, (citing tems. S.Ct. at 2837 See grounds, alleging and that both trial errors 1489). Calderon, at was insufficient to the evidence date, To the mandate this late recall on five of counts. Id. The convictions despite presumption “additional Haddock’s convic- Tenth Circuit affirmed cases, id. against” doing counts, so state-habeas held that errone- tions on most but denigrate those interests would him to a new jury instructions entitled ous in the an abuse of 1 and at 1538. When constitute discretion trial on Counts 8. Id. to the suf- challenge reached his view. the court Court’s evidence, however, it our ficiency failed off than he was after initial of the decision. meritorious, respect challenge to If we had found his analyze to the evidence with permitted would not been to of the it was state have Count counts on which 1—one retry him on the count of conviction. But trial. ordering a “Because reverse new if rejected we had his challenge, even our on 1 and re- Haddock’s conviction Count of a issuance conditional writ would have count,” mand for new trial on that intact, entitling him remained to a new reasoned, court “we do consider not trial with that complied instructions whether was sufficient to convict evidence due process requirements. The most on that Id. at 1549. count.” solution, short, efficacious in would have petition Haddock then filed a for rehear- grant to request been Patterson’s for panel ing, longstanding to the rule in pointing rehearing insufficiency address that the Tenth Circuit when the claim on the merits. due error and appeals reverses to a trial thus in position find ourselves We trial, remands for a new “never- the court to that of Eleventh similar Circuit in claim theless must address the defendant’s Bobo, States v. 419 F.3d 1264 United presented that evidence at trial on the Cir.2005) -reciting in vain what we should — reversed count insufficient.” Had- have, have, could and would have done II, at Although noting dock 934. There, differently. Eleventh Circuit that had recently other circuits refused to initially reversed to Bobo’s convictions due consider such a rule after mandatory indictment, an error but stated in Supreme decision in Richardson Court’s “seriously that it question[ed] footnote (discussed above), grant- the Tenth Circuit presented whether was suffi- petition rehearing ed for Haddock’s to support cient the convictions.” Id. at evaluated the of the evidence (citation omitted). When Bobo on Count 1. at 934 & n. The court Id. prevent sought jeop- retrial double then held that the evidence presented grounds, ardy the Eleventh Circuit was government at the first trial was suffi- recognize unjustifi- forced to it count, cient conviction on that ably “prudential deviated from its rule” and that Haddock could be retried. Id. at challenges to the 935-36. evidence must be even reached when re- pro- We should have followed the same grounds. is versal ordered on other Id. timely cedure granted pe- footnote, quoted 1268. The the court con- tition panel rehearing for in 2003. Like cluded, did holding not constitute Haddock, the defendant in alert- Patterson insufficient, the evidence was though even ed us binding circuit precedent the court “should have” reached that issue. insufficiency- instructed tous address the We, too, should have reached Patter- claim despite of-the-evidence our decision insufficiency-of-the-evidence son’s claim in practical issue a conditional writ whose original opinion, our very or least result same was the as the retrial ordered brought when he to our the error attention state, response Haddock. The in its rehearing. petition Although, like petition, dispute did not Bobo, the existence the Eleventh Circuit we are argue this rule or simply forced conclude that “too Court’s decision had under- time,” Richardson late to cure the defect at this id. at Furthermore, validity. mined its address- panels we trust that future of this ing challenge opinion committing amended court will avoid er- same would made have worse ror.

667 at 690- not the “letter the final federal court order. Id. did violate C. The state retry the state to the 91. After chose not spirit” of this court’s decision petitioner, she asked court to introducing the district by new at Pat- evidence by entering enforce the conditional writ scheduling by or retrial terson’s voiding her The 180-day order state conviction. trial outside of the third granted court relief. requested district the period at 691. Id. turn now Patterson’s We appeal, argued On state that by the district only question addressed jurisdiction court had no enter district violated the state of Ohio court —whether requested order. court disa- This forth court in by set this the conditions greed, holding general- that district courts argues Specifically, I. Patterson

Patterson ly jurisdiction “retain a lawful to execute re- opinion of our language prior that the necessary.” when it judgment becomes quired to initiate retrial the state Warden, (citing at 692 Id. v. Phifer charges days within of the same (7th Cir.1995)). Gentry The mandate, our and that the issuance of the explained that courts court federal district contemplate not that the state opinion did jurisdiction whether to determine “retain[ ] new at the retri- would introduce complied of a party has with the terms below, we explained al. the reasons For case. A conditional order a habeas prior opinion to read our find no basis timely state’s failure to cure the error on the these unusual restrictions imposing by a federal district court identified state. re- justifies conditional habeas order (citation and petitioner.” of the Id. lease the district and this 1. Both court omitted). quotation Applying marks jurisdiction to assure court have it, to the facts this court con- rule before compliance with the conditional properly that the district cluded writ jurisdiction petitioner’s exercised over the motion, denying In not to motion state’s decision court assumed that it had sub the district retry did not cure error identified her ject jurisdiction his case. But matter over court. re- by petitioner’s the district The simply courts are allowed federal relief, observed, “rea- this court quest jurisdiction proceed then assume court to en- sonably asked [district] on the merits. Steel Co. resolve a case See by making order the conditional force its Env’t, a Better Citizens for writ absolute.” 93-101, L.Ed.2d 210 case, (1998) Similarly, in Pat “hypothet present (rejecting doctrine of essentially a motion asked jurisdiction” reaffirming terson filed ical condition juris of its district court “mak[e] court must assure itself federal case). deciding juris I “absolute.” al writ” entered diction before recognized court in Gentry id. This question dictional controlled See Deuth, jurisdiction courts Gentry that district “retain[ ] court’s recent decision (6th Cir.2006), complied has party which was determine whether 456 F.3d 687 in a In of a order argument. heard the terms conditional decided after we oral with id., case,” the district the ha habeas and what Gentry, granted the district court present precisely in the of habeas court did case petitioner beas conditional writ compliance to correct that —it evaluated state’s corpus permitted the state writ days the terms conditional the constitutional defect within of opinion, issued. We therefore conclude date this and REMAND the we had jurisdiction for further proceedings district court’s exercise case consistent Gentry. opinion. also with this under See Mick proper Vaughn, 355 F.3d 303 ens-Thomas I, 316 at Patterson F.3d 611. The order Cir.2004) (3d (relying on assert Phifer instructed the state to a new ] “commence! jurisdiction” to ing “continuing determine trial ... within days” opinion. of the parole whether the state board had com not, however, possi- Id. It did rule out the plied previous with the court’s mandate in bility itself, sentencing, that the trial fur- case). Because the district court habeas appeals, any ther or retrials stretch might subject jurisdiction grant matter (which beyond 180-day period well of appealability, ed a certificate we have expected history given of this jurisdiction to review the deci merits case). 2253(c)(1). § sion. 28 U.S.C. Likewise, nothing opinion in our The state did not the letter I suggests violate state was spirit by or this decision presenting limited to court’s Patterson’s second introducing new or exactly trial evidence same that it in scheduling a third at the first troduced trial. Our brief dis cussion of the in Patter issue The district court did hold an son I no more than justify did the decision evidentiary hearing or findings make that issue leave undecided. That dis of fact as to the since state’s actions intention, cussion did not evince an as Pat grant of the conditional writ. We will it, terson would have “to [Patter restore conduct a therefore de novo review of the essentially son] to the same he position legal court’s district conclusion that enjoyed jury would have had the first been complied has state with the terms of the properly Instead, instructed.” we aimed Mickens-Thomas, See writ. 355 F.3d at correct erroneous instruction (reviewing legal court’s district permitted that had Patterson to be con de novo decision because that court had proof victed without of an essential ele a hearing not held or factual made find offense, thereby ment of the ensuring that ings); see also Northrop Trippett, subsequent proceedings against him (6th Cir.2001) (holding that were not marred the same constitution de novo of both legal review issues and al error. findings factual is appropriate where “a district decides a petition habeas Moreover, Patterson has cited no evidentiary hearing”). without [an] authority for the proposition that the re correctly

The district court deter versal of a conviction improper jury mined that the state’s actions have not run generally instructions curtails the amount spirit” afoul the “letter or of the condi or type may evidence that the state tional writ issued in I. opin Patterson Our produce during a retrial. court’s de This ion ended with the following conclusion: Davis, cision in United States v. judgment Cir.1989), REVERSE the of the

[W]e which discussed court, district above, GRANT Patterson a con- length Part II.A.1. contains ditional writ of corpus habeas that will language contrary. In explaining in his result release from prison why reaching unless insufficiency- defendant’s the state of Ohio commences new trial argument of-the-evidence would have been against him days futile, within 180 from the emphasized the Davis court duty and our as an interme- preme not have would challenge resolving that court to follow those deci- diate government’s viability of the affected to uncomfortable they if lead sions even a new liability under theory of different court, This is such a particular cases. results government,” “The indictment. light In Court’s foreclosed, case. not be “certainly would opined, appellate that an court’s indictment, holding recent from the new a trial on a decision that “willingness to correct not tendered that was offering evidence mistaken” does not to have been perceived language this read first trial.” We justify a belated reconsideration suffice reinforcing the commonsense in Davis in a decided issue habeas previously of a court’s reversal that an notion case, Thompson, Bell v. 545 U.S. corpus error, specifi- unless for trial a conviction 2825, 2837, 794, 162 L.Ed.2d 693 125 S.Ct. stated, oblige govern- does not cally (2005), recalling convinced that we are virtually present on remand ment present circumstances mandate under the argu- of the evidence version identical of our discretion. Be- be an abuse In would initial reversal. to the ments that led our decision Davis, cause we cannot revisit court’s of this statement light I, the district court and because Patterson sought type of limitation and because denying not err in Patterson’s motion did ordinarily imposed, we not Patterson is stay release and for unconditional opinion did not prior that our conclude AFFIRM the proceedings, we state-court on the restrictions impose intend judgment below. that the state type of evidence amount or during his retrial. present could ROSEN, Judge, concurring District Patter- reading fair up, a To sum concurring judgment. in the part state-court does not limit opinion I

son 180-day initial beyond the proceedings determina fully concur in the Court’s I state from prevent or commencement Eric Scott petitioner tion that during additional evidence introducing third time in be tried for a may properly the district therefore affirm retrial. We court, to secure a where he failed state motion for of Patterson’s court’s denial federal, court, or by any state ruling stay of the and for a unconditional release insuffi at his first trial was proceedings. state-court of involun his conviction cient to child endan manslaughter based on tary III. CONCLUSION trial ended in his second gering, and where . not often forced courts are Federal Richardson v. United hung jury See An culpa. amounts to a mea what issue 317, 325-26, States, 104 S.Ct. 468 U.S. years ago, committed three that we error (1984); 3081, 3086, 242 see also L.Ed.2d 82 just that. however, to do has forced us 900, Davis, v. 873 F.2d States United distressing all the more Today’s decision is Bobo, (6th Cir.1989); States United only not recognize we have had (11th Cir.2005); 1264, 1267 United F.3d mistake, also that we made a but that we (5th Miller, 866, 872-74 States at this late date. our error cannot correct Cir.1992). only to ex separately I write of our a mistake inability to correct This did not panel firm view that this press my likely some as will strike own creation or rule precedent any Sixth Circuit violate system justice. inimical to our Patterson’s suffi to reach when it declined round of during the first however, challenge ciency are system, Integral to that initial tri- following his proceedings habeas States Su- of the United the decisions al conviction. See Patterson v. action, Has chosen panel course cited the kins, Cir.2003) ruling then-recent in Burks v. United (“Patterson P). Rather, States, 1, 18, acted 2150- entirely in accordance with precedent (1978), 57 L.Ed.2d in which the Su- by citing good unwilling reason for its preme Court held that a reversal for evi- dentiary insufficiency ness address precludes a retrial challenge namely, that to do so would jeopardy on double grounds. While this — require speculation properly as to how a surely is a explanation pan- sound for that jury might weighed instructed have el’s election to address the defendant’s suf- evidence, only as to the ficiency offense of challenge in lieu of his other conviction, error, but also as to a lesser-included claims of I do not single read this offense that the in Patterson’s first in statement Orrico as purporting to an- trial had no occasion to reach. See Patter an nounce inviolate “rule” that all subse- I, son 316 F.3d at 611. I quent panels Because am bound in all were circum- convinced that I panel the Patterson did stances to follow.1 regard, join not err in this I cannot in the nearly In the twenty-five years between majority’s culpa” “mea on this issue. I, Orrico and Patterson this Court revisit- majority As the acknowledges, there only are ed this issue on First, two occasions. only single a handful of cases—and not a Aarons, in 188, United States v. 718 F.2d (6th prior Cir.1983) habeas decision to Patterson I—in 189 n. 1 pre-Rich- —another panel which a of this expressed Court has ardson panel decision—the in observed a “[wjhere its view as to whether it would or should footnote that sufficiency suffieiency-of-the-evidence address a chal- properly us, evidence is before lenge vis-a-vis some other claim of error. consider that issue first is deter- decision, In the first such United States v. minative of whether the appellant may be Orrico, (6th 113, Cir.1979), 599 F.2d 116 retried.” In support of proposition, this panel stated that Orrico, “[w]e decide the issue panel cited the ruling in as well of sufficiency evidence, of the Atkinson, rather than as a footnote Delk v. 665 F.2d admissibility, 90, (6th Cir.1981) because the former issue is 93 n. 1 footnote —a question which, determinative of the turn, whether Or- cited Orrico as the sole may rico be retried.” In support of this relevant Sixth Circuit decision on this 1. To panel the extent in Orrico 952 F.2d at (concluding 871-72 prior that a prescriptive i.e., construed Burks as man Fifth longer Circuit good decision was “no — dating that a court sufficiency must address Richardson, light law” in construing and challenges descriptive i.e., than —rather ruling — "refusfing] this latter as to extend identifying consequence aof successful beyond Burks instances appel- in which the sufficiency challenge Supreme Court's —the late court reversed for insufficient fact subsequent surely decision in Richardson evidence”); Douglas, United States v. reading belies Specifically, such of BurKs. 1145, (7th (observ- Cir.1989) F.2d 1149-50 emphasized Richardson Court that "our ing that the Court "has never held decision beyond in Burks did not extend reviewing that a court must review the suf- procedural arose,” setting in which it ficiency of the evidence whenever defen- "[w]here, here, only as there has been dant appeal,” raises the issue on and rea- resulting hung mistrial jury, from a Burks soning precludes that Richardson a "broad simply require does not that an reading” having adopted of Buries as such a rule on the of the evidence Onico, requirement). panel The might by because retrial be barred the Dou course, did not have the benefit of Richard- Richardson, Jeopardy ble Clause.” s son' discussion of Buries. 323, 3085; Miller, at 104 S.Ct. at see also Richardson, 468 ciency challenges. See Similarly, in United States point.2 Finally, n. 5 Cir. at 3085. S.Ct. Quinn, added), 1990) panel opined Delk, n. (emphasis and as noted in footnote) (once rever that “[t]he in a again from a federal con- Orrico was not necessari here does trial error Miller, sal on indeed, as, Douglas, were viction— the sufficien ly need to review obviate all of the other out-of-circuit cases Quinn cites Again, cy of the evidence.”3 (or in majority my own identified Delk, more re as as the well Orrico research) endorsing practice of reach- decision, au pertinent as the Aarons cent sufficiency challenges. present ha- ing subject. thorities on raises additional concerns proceeding beas majority’s Thus, comity majority the sole source of federalism and to address sufficien- “requirement” posited consider- acknowledge, and these fails single challenges is cy-of-the-evidenee reflexive, strongly against ations militate ex- in which Orrico sentence any possi- here of adoption one-size-fits-all elected to address why it had plained gleaned from Orri- ble “rule” that could be question of a challenge instead co. evidence. admissibility of certain about the Nevertheless, necessary it is even of the extend- falls far short Certainly, this in a engage this case to debate about circuits that our sister have discussion ed Orrico, this force of prescriptive a settling upon appropriate before deemed any that already recognized has Court in from federal appeals general practice from might emerged that have “practice” sufficiency chal- handling for convictions As the exceptions. decision has its that claims of er- accompanied by other lenges (see Majority Op. majority acknowledges, 871-74; Miller, See, F.2d at e.g., ror. 653), exception recognized was at one such Moreover, 1149-50. F.2d at Douglas, 874 901, 907, Davis, F.2d at supra, in on this only to Burks Orrico cites while that heard defendant panel where ex- subsequently Court point, reversed his convic- appeal initial not Davis’s that Burks does in Richardson plained of a deficient indict- ground tion on the to rule on suffi- “require” appellate courts support propo- cited in of this sup- Circuit decision majority cited Delk in has 2. Because rule,” then, Op. nothing (Majority Plainly, to the port posited "Burks Delk adds of its sition. 652), that decision is at a discussion of brief footnoted discus- question before us here—its ma- footnote from which the warranted. The explicitly ac- cases was sion of "related” suffi- jority ''require[ment]” a to address culls dicta, survey, pure knowledged and this to be is, fact, challenges survey of then- ciency in a event, right merely back to the any leads us in other circuits decisions from this and recent Orrico. decision in to,” from, the but distinct on "issues related panel question” before the in that "precise Quinn, language light quoted from 3. In of this Delk, Curiously, at 93 n. 1. case. majority can read here I fail to see how entirety reproduced majority has not panel’s "recog- reflecting as that case footnote, quotes passage it from this of the needed to address ... that it still nition] including in full: "Several courts which reads Quinn’s insufficiency-of-the-evidence claim.” that where it one have indicated this added).) (emphasis (Majority Op. at 652 conviction claimed federal from Rather, panel in me that it seems to insufficient, the review- the evidence that Quinn sufficiency merely observing sufficiency ing required to court is decide light of necessarily moot in was not review though might be other question there even error,” given on trial reversal "[t]he pre- would not grounds for reversal which pre- sufficiency challenge would successful (emphasis 665 F.2d at 93 n. 1 clude retrial.” Quinn, n. 5. 901 F.2d at 529 added). a retrial. again, sole Sixth clude Orrico is the Once therefore, reaching challenge to the without we had both of these alterna- ment sufficiency the evidence at his first trial. tives available to us—we could have re- in a charged superseding evidence, Davis was After viewed the not- indictment, argued withstanding he retrial was our determination that panel’s jury the initial failure to ad- barred instructions Patterson’s initial trial sufficiency challenge. erroneous, found, dress his were or we could have Davis, that there were reasons to re- contention, rejecting panel In frain from such a review. prior that the Davis found course, for electing explicitly case had sound basis a We chose the latter different from citing why, course of action the one reasons judgment, our particular, In chosen Orrico. the Court “would imprudent” to address Patter- present I, did not observed that Orrico “a son’s challenge. Patterson First, where the defendant situation had been 316 F.3d at 611. in light of an incorporating tried on an indictment a le- jury omission in the regarding instructions gal theory had turned out to be inval- the offense of which Patterson was convict- Davis, ed, F.2d at id.” 907. Under these problematic we found it to “comment[ ] circumstances, the Court reasoned that “it on pre- whether sufficient evidence was pointless would have been initial jury [the sented for guilt to have found panel] through days’ to sift several beyond worth a reasonable doubt based on the of trial evidence to determine whether it essential elements of crime for which the would have been sufficient to completely was never charged.” 316 conviction under” a legal Next, since-invalidated and more importantly, theory. Similarly, that, 873 F.2d at 907. the we grant observed order to found that it would Patterson, have run counter sought by unconditional writ judicial economy” to “considerations of necessarily for would have been required to to prior panel decide whether the evi- gauge sufficiency of the evidence both dence introduced Davis’s initial trial as to the offense of conviction and as to a sufficient would have been to sustain a lesser included offense about which the under a valid legal theory, jury conviction also had been instructed. We were yet where Davis had to be indicted under particularly reluctant to undertake this lat- theory such a and there was no assurance inquiry ter because the at Patterson’s government that the so, would seek to do so. trial had not having done “ceased delib- 873 F.2d at 907. erating” upon finding as instructed Patter- guilty son of involuntary manslaughter This, then, legal was the landscape as it based on child endangering. 316 existed in this Circuit when we heard and hand, decided Patterson I. On one panel Orrico had elected in 1979 to ad- Whether or majority might sufficiency dress a rather than an eviden- choose a different today, course of action tiary challenge, subsequent and two panels there is no basis for its conclusion that we had relied on Orrico in pursuing similar “erred” or longstand- deviated from some hand, action. courses of On the other ing Circuit practice when deliberately panel in Davis had deemed it appropriate elected not to address Patterson’s suffi- to case, chart a different course in ciency challenge. In an identify effort to despite acknowledgment error, proce- majority such an first reasons dure followed in Orrico. presented When “readily Davis is distinguishable,” sufficiency challenge, 654), (Majority Op. at in that the reasons establishing the sole set of sufficiency read Davis as declining to reach given for the same under which we could de- were not circumstances in that case challenge I. sufficiency challenge. in Patterson identified cline to reach the reasons we below) (discussed Yet, fact beyond the Nonetheless, majority that it insists characterize did not in Davis panel Pat- “disingenuous” construe would be exception a narrow “carving out itself as purposeful I as a “conscious and terson Circuit purported application” limited longstanding practice.” departure from sufficiency challenges, governing “rule” 656.) Yet, if Davis is to (Majority Op. at 654), certainly no is (Majority Op. at there for up gold be held as the standard such meant for this panel indication deliberation, I purposeful” “conscious exclusive, occupy or to to be “exception” decision in Patterson I cannot see how our circumstances under possible the field in Pat- up. would fail to measure Just as reach a could decline to a court which I, nothing there is Davis that terson Rather, panel sufficiency challenge. recognition that it was panel’s reflects the it, deeming the case before merely decided longstanding to adhere to some Cir- bound cir- particular under those inappropriate practice identify cuit it could a basis unless sufficiency of to consider the cumstances Rather, exception.4 for an trial. initial at the defendant’s the evidence I, Davis, counterpart like its in Patterson course, This, precisely what we did merely judg- the reasons for its explained if to as- I. Even one were in Patterson that a review would be ment our reasons I do not—-that sume—which panels that case. If the inappropriate in “good” as those iden- not as were somehow I alike failed to in Davis and Patterson Davis, gleaned no error can be tified in dis- perceive the need more extensive fact that our reasons were from the mere respective their justification cussion or in an earlier from those cited different review, I forgo decisions case, certainly culpa” no “mea is war- only can surmise that was attributable prior panel opined If no ranted. understanding that panels’ common I gave in Patterson of reasons we the sorts they “longstanding not bound were “excep- “good enough” warrant were proceed otherwise. practice” Circuit “rule,” neither had tion” to this Circuit’s Delk, sure, and To be Davis cited Orrico opined that such reasons any prior panel why those cases were explained then and enough,” only and that “good were not Yet, I distinguishable. do believe presented in Davis could circumstances failing to reach a can accused of be Indeed, not- exception. as justify such merely purposeful” and decision “conscious earlier, predating no Pat- there is case ed it not cite of the fact that does by virtue any this invoked terson I which Court that ar- any and all cases distinguish and “practice” requiring or sort of “rule” it. upon the issue before guably bear in ha- sufficiency challenges be addressed otherwise, the or “purposefully]” Whether opined much less as to proceedings, beas considered in Patter- fact remains that we any possible or extent of the existence (cid:127) sufficiency slate, I to address son whether Writing on this blank “exceptions.” “it would be challenge I to and decided not constrained in Patterson we were I, contrast, decided, decided there were no when Davis Notably, it could prior panels, two analogous rulings at least be maintained that cases that could in habeas Aarons, "prac- adopted a in Orrico and “practice” us to some Circuit have alerted challenges addressing sufficiency tice” of might obliged to follow. that we we appeals convictions. When from federal (See Supreme to so. 316 F.3d at 611. As precedent. do low id. at imprudent” 669.) former, I believe that this course of explained, As important is readily to us action was available under distinguish between our decision not to precedent, Circuit which existing Sixth sufficiency address Patterson’s challenge proceedings as to habeas and was silent possible any and the outcome of such suffi- appeals as to from quite limited even fed- ciency might review that we have under- convictions. eral taken. Unless Patterson’s challenge successful, would event, purported have been our any suggestion that In we declining error in “practice” adopted to a to address it could not were oblivious possibly or other Sixth Circuit decision sys- Orrico some be viewed as “inimical to our (id.) peti- our denial of Patterson’s justice,” is belied contrary, tem of such —to expressly rehearing, in which he tion Yet, utterly an error would be harmless. argued required that we were under throughout appeals his state court and the Quinn, Delk, and Orrico address his ensuing federal habeas proceedings, Pat- sufficiency challenge. majority unfor- opinion terson has never once secured the tunately filing fails to mention this in its any judge or federal —that —state reasoning discussion the unstated and evidence at his first was insufficient to purportedly shaped “desire[s]” our sustain his conviction.5 (See Majority decision in Patterson I. Op. But, if even Patterson’s chal- 656.) majority prepared Unless the is lenge succeeded, might have it is mislead- say rejected that we petition this out-of- ing to suggest inability that a court’s or reading considering hand without or it— unwillingness to challenge address such a my recollection definitively is to the is “inimical” to a properly functioning sys- contrary readily apparent to me that —it justice. stated, tem of Simply there are all “consciously] purposefully]” we elect- sorts of circumstances under which even a ed not to address Patterson’s heard, challenge might meritorious not be challenge, despite argument that we particularly in proceeding. a habeas To compelled Having were to do so. conclud- fairly cite a stark example, ed that we did not err in regard, I Court has invoked considerations of ex- join majority’s need not in the speculation procedural haustion and deny default to (id.), do,” attempted “[w]hat federal habeas review to a death row in- culpa’’ nor its “mea for having unanimous- mate who filed his state court did, ly decided the initially case as we both days mere three after the relevant upon dead- request for rehear- line. ing. Thompson, See Coleman v. 115 L.Ed.2d 640 Finally, I compelled feel to address the (1991). And, course, this Court routine- apologia majority with which the closes its ly denies certificates of appealability on all opinion. moment, assuming, Even for the sorts of including sufficiency chal- I agreed majority’s conclu- issues— lenges petitioners habeas wish to I, sion that we erred Patterson I fail to —that pursue, based on panel’s a gatekeeping perceive the need in this case to reassure determination that petitioner citizenry system justice that our has failed of whole, functions to a properly showing “ma[k]e on the much substantial of less to attribute the purportedly “uncomforta- denial of a right.” constitutional 28 U.S.C. 2253(c)(2). § ble here to our obligation worst, then, ]” to fol- At present result! contrary, firmly 5. To the I am convinced that sufficient. a fair judicial given has been full and error defendant merely confirms

case present to all of his opportunity arguments why a seem- possible reasons among complete a course of and through state might not suc- argument ingly meritorious proceedings. federal surprise come as hardly This will a ceed. proceedings to habeas petitioners —and Finally, emphasis the ma- bears —and general har- public I that even the suspect (see this, Majority jority recognizes also infallibility of illusions about bors no 655-59) Op. any purported error —that

judges.6 subject I Patterson did not Patterson to an unconstitutional retrial. Nor has our my concern brings me to second This any of the decision otherwise diminished majority’s concluding with the remarks— protections constitutional that Patterson they laying be read as namely, that could enjoys as he his third court faces state today’s supposedly for “uncom- the blame Rather, fully pro- trial. retains due he his at the feet of the Su- result[]” fortable guarantee upon a verdict based cess of preme Any error —if error there Court. evidence, sufficient Virgi- see Jackson v. alone, course, we ours of and was—was nia, 307, 319, 2781, 2789, timely opportunity notice and to ample (1979), op- as well 61 L.Ed.2d as upon such error correct portunity challenge any eventual convic- rehearing. Even filing petition of a of through tion full round state prece- of the absence and, necessary, if habeas federal appeals I majority, dent cited would I Patter- proceedings. am content that to a rule that would reluctant to subscribe upon fate rests and foremost son’s first years their judges allow revisit decisions peers, see judgment of of his later, upon delayed realization that based or nothing “uncomfortable” “inimical goes have mistaken. It they might been justice” this outcome. system our course, saying, rul- without correct disagree I with the ma- Accordingly, while vitally proper important are ings conclusion that erred in Patter- jority’s system, functioning judicial I, judgment I concur in that Patter- son acutely are aware of this. As judges state court trial should be allowed son’s result, judges mightily strive avoid go forward. consequences judgment, an erroneous no this was less true our Yet, cru- finality plays I. also system, in our judicial role as cial long recognized. have

Court’s decisions

See, Pierce e.g., v. United Mine Workers Fund, & Retirement

Welfare Beaver, (6th Cir.1985); Barrier v. 451-52 (6th Cir.1983); Hines

712 F.2d 234-35 Co., Royal Indemnity Cir.1958). latter, in And the

113-14 greater impor-

my judgment, assumes still where, here, a in habeas

tance cases this, course, following Patter- against pur- our decision in is to of certiorari One check Here, however, Nor did seek en banc reconsidera- appeal. son I. he sue an panel's ruling. petition Supreme Court for a writ tion failed to

Case Details

Case Name: Eric Scott Patterson v. Thomas B. Haskins, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 31, 2006

Citation: 470 F.3d 645

Docket Number: 04-3280

Court Abbreviation: 6th Cir.