Lead Opinion
GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.J., (pp. 669-75), delivered a separate opinion concurring in part and concurring in the judgment.
OPINION
In 2003, this court granted Eric Scott Patterson a conditional writ of habeas corpus on the ground that the state trial court had omitted from its jury instructions a key element in defining the offense of involuntary manslaughter. Patterson v. Haskins,
I. BACKGROUND
Patterson was convicted of involuntary manslaughter based on child endangering in July of 1997. He was sentenced to a term of between 10 and 25 years in prison. His wife Lisa was convicted of misdemean- or child endangering and received a sentence of six months in prison. Before the Ohio Court of Appeals, Patterson argued that the trial court had erred in excluding the expert testimony of a criminologist proffered by Patterson and that his conviction was unconstitutional because the evidence was insufficient to sustain it. The Ohio Court of Appeals rejected both argu
After subsequent attempts to reopen his appeal and secure review by the Ohio Supreme Court failed, Patterson filed a petition for a writ of habeas corpus in federal court, raising six grounds for relief. The district court denied the petition, but granted Patterson a COA with respect to two issues: (1) whether the evidence produced at his trial was constitutionally insufficient to support his conviction, and (2) whether the jury instructions violated Patterson’s due process rights by omitting a key element of the offense that the state was required to prove beyond a reasonable doubt.
This court reversed, holding that the state trial court had violated Patterson’s due process rights by omitting the required element of proximate cause from the jury instructions for involuntary manslaughter. Patterson I,
When the jury decided (according to faulty instructions) that Patterson was guilty of involuntary manslaughter based on child endangering, it ceased deliberating and therefore did not reach a decision on whether Patterson was guilty of the lesser included offense of involuntary manslaughter based on simple assault. A reasonable, properly instructed jury might have concluded that the evidence was insufficient to establish the causation element of involuntary manslaughter based on child endangering, yet then have convicted on the lesser included offense of involuntary manslaughter based on simple assault.
Id. at 611.
Patterson filed a timely petition for rehearing, pointing to a series of cases in which this court has stated that it will review insufficiency-of-the-evidence claims even under circumstances where it has set aside the judgment of conviction due to trial error. He cited the eases of United States v. Quinn,
Patterson then filed a motion in the district court styled a “Motion to Invoke Continuing Jurisdiction for an Order Granting Petitioner’s Unconditional Release and for a Stay of State Court Proceedings.” In that motion, Patterson maintained that the state had “violated the spirit, intent, and limitations of the conditional writ” issued by this court in Patterson I by initiating a third trial after the 180-day period had expired and by seeking to introduce evidence that was previously available but that had not been presented at the first trial.
The district court assumed that it had jurisdiction to stay the state-court proceedings but declined to do so, finding “nothing in the Sixth Circuit’s decision [suggesting] that the State of Ohio may not now again re-try [Patterson] since his trial resulted in a hung jury.” Likewise, the district court did not read the Patterson I opinion or the authorities cited by Patterson as barring the state from introducing evidence that it had not previously presented. Although it doubted that a COA was required for Patterson to appeal its decision, the district court nonetheless issued one, certifying the following question: “Did [the district court] err in refusing to grant petitioner’s request for a stay of state court proceedings and an order granting his unconditional release?”
This court originally scheduled Patterson’s current appeal for telephonic arguments in June of 2005, but then cancelled the arguments and asked the parties to brief two additional questions: (1) whether the original hearing panel should have addressed Patterson’s insufficiency-of-the-evidence argument and, if so, (2) whether this court has the authority to do so now. The case was initially assigned to a panel that included the two circuit judges from the original panel, with a third circuit judge substituted for District Judge Ro-sen.
Following the rescheduled oral argument held on December 6, 2005, a concern arose that, because the court might have to revisit its previous decision in Patterson I, the proper panel to conduct such an inquiry should include all three judges from the original hearing panel. The original panel was consequently reconstituted with the gracious consent of Judge Rosen. A second round of supplemental briefing was implemented, and a second telephonic argument was held before us on May 10, 2006.
II. ANALYSIS
Our analysis will proceed in three steps. First, we will consider whether we erred in Patterson I by failing to address the insufficiency-of-the-evidence claim. We will then decide whether we currently have the authority to address that claim either under the law-of-the-case doctrine or by recalling the mandate issued in Patterson I.
We have reached the following conclusions: (A) Our refusal to address Patterson’s challenge to the sufficiency of the evidence was an unwarranted deviation from the longstanding prudential rule in this circuit that an appellate court faced with arguments both that the evidence was insufficient and that the trial was infected with other constitutional errors needs to address the sufficiency-of-the-evidence issue, even if the court orders a remand of the basis of trial error; (B) because this general prudential rule is not constitutionally compelled and is subject to at least one narrow exception, our error in Patterson I was not so grave as to justify the extraordinary step of revisiting a decision issued over three years ago; and (C) the district court correctly concluded that this court’s ruling in Patterson I does not bar the state from initiating a third trial outside of the 180-day window set forth in the conditional writ of habeas corpus or from presenting at that trial evidence not introduced at the original trial. Our detailed explanation for these three conclusions follows.
A. The refusal to address Patterson’s insufficiency-of-the-evidence claim was an unwarranted deviation from this court’s longstanding prudential practice
As noted above, we provided the following justification for declining to address Patterson’s insufficiency claim in our 2003 decision:
When the jury decided (according to faulty instructions) that Patterson was guilty of involuntary manslaughter based on child endangering, it ceased deliberating and therefore did not reach a decision on whether Patterson was guilty of the lesser included offense of involuntary manslaughter based on simple assault. A reasonable, properly instructed jury might have concluded that the evidence was insufficient to establish the causation element of involuntary manslaughter based on child endangering, yet then have convicted on the lesser included offense of involuntary manslaughter based on simple assault.
Patterson I,
1. This court’s rule and the narrow exception thereto
In Burks v. United States,
In the wake of Burks, this court, like many other circuits, developed a practice of reaching the sufficiency claim in situations where defendants have alleged both that the evidence against them was insufficient and that their trials were infected with procedural errors. One year after Burks was decided, for example, this court was called upon to evaluate a sufficiency-of-the-evidence claim along with alleged errors regarding the admission of evidence and the propriety of the jury instructions. See United States v. Orrico,
This court began its analysis by “deciding] the issue of sufficiency of the evidence, rather than admissibility, because the former issue is determinative of the question whether Orrico may be retried.” Id. at 116. After concluding that the evidence against Orrico was insufficient, the court also determined that the jury instruction was likely erroneous and would independently require reversal of the conviction. Id. at 119 n. 5. But the court refused to “rest [its] reversal on this ground ... since such a decision would leave open the possibility of a retrial.” Id.; see also Delk v. Atkinson,
This court’s decision in United States v. Aarons,
Our decision in Patterson I unquestionably constituted a deviation from the general rule as stated and applied in the above cases. We were presented with the precise scenario faced by the Orrico court, one where the trial court’s error in instructing the jury would alone have required a remand for a new trial. But instead of reaching Patterson’s challenge to the sufficiency of the evidence, as did the court in Orrico, we decided to “rest our reversal” of the involuntary manslaughter conviction on the erroneous jury instruction. See Orrico,
One case — and, as far as we are aware, only one case — stands as an exception to the general rule that this court will as a matter of course review a sufficiency challenge properly brought before it. That case is United States v. Davis,
Davis also argued, however, that the original panel’s “failure to make a specific finding on the sufficiency of the evidence ought to bar any retrial.” Id. at 907. This court began its analysis by recognizing that its prior decision constituted a departure from the rule recited in both Orrico and Delk. Id. (We note that the Davis court did not cite the published decision in Aarons.) The Orrico and Delk cases were distinguishable, in the court’s view, because neither one
deal[t] with a situation where the defendant had been tried on an indictment incorporating a legal theory that had turned out to be invalid. We faced just such a situation on the earlier appeal here — and it would have been pointless for us to sift through several days’ worth of trial evidence to determine whether the evidence would have been sufficient to support a conviction under the “intangible rights” theory if the Supreme Court had not already rejected that theory.
Id. The court further explained that it had no need to decide whether the evidence would have been sufficient under other theories of liability cognizable under the mail fraud statute because there was no guarantee “that the government would ultimately decide to reindict,” and because “considerations of judicial economy counseled” against undertaking an analysis that might be unnecessary. Id. What the Davis court did, then, was decline to address the sufficiency challenge where it was reversing the conviction on another ground that would independently preclude retrial on the same legal theory.
Davis is readily distinguishable from the situation that was before us in Patterson I. The original panel in Davis reviewed a conviction that was based on a legal theory that had been repudiated by the Supreme Court after the defendant’s trial. As a result of the intervening Supreme Court ruling in McNally v. United States,
But unlike in Davis, our decision in Patterson I did not rest on a ground that independently precluded retrial on the theory of involuntary manslaughter based on child endangerment. An erroneous jury instruction is a trial error, California v. Roy,
Davis is therefore properly read as carving out a narrow exception of limited application. Indeed, we fail to see how Davis can be construed any more broadly than as holding that a court of appeals need not consider an insufficiency-of-the-evidence claim where the court also reverses the conviction on another ground that independently precludes retrial on the same charges. That holding, understood in this manner, is consistent with this court’s prior cases, which have refused to remand for a retrial on charges that the government failed to prove beyond a reasonable doubt the first time around. After all, underlying the Supreme Court’s holding in Burks is the principle that “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”
The decision in Davis does, however, make clear that the practice of reviewing sufficiency challenges is not an inexorable command. In other words, just as this court in the wake of Burks adopted the Orrico rule in order to protect constitutional rights, future panels could deviate from that rule where they deemed its application unnecessary to protect those rights or, as in Davis, where applying the rule would be “pointless.” Davis,
What we attempted to do, quite frankly, was to avoid passing on an extremely close issue that would have forced us to delve deeply into the incomplete state-court trial record provided in the Joint Appendix and decide, even if we believed that the state courts had erred, whether their error was sufficiently grave to warrant habeas relief. Our desire to avoid the panel disagreement that might have resulted from undertaking this difficult task, while understandable, does not suffice to justify our failure to adhere to a consistent practice whose aim is to protect a defendant’s constitutional rights and to prevent the government from having a second bite at the apple. In other words, we should not have pretermitted Patterson’s claim simply because resolving it would have been difficult or divisive. See United States v. Bobo,
2. Our error did not subject Patterson to an unconstitutional retrial
Having explained above that the general rule in this circuit that we failed to follow was based on double jeopardy concerns, the question then becomes whether our failure to address Patterson’s insufficieney-of-the-evidence claim subjected him to an unconstitutional retrial. We pose this question because the availability of
In Richardson, the jury acquitted the defendant on one count of distributing a controlled substance, but was unable to reach a verdict both as to another distribution count and a third count alleging that he conspired to distribute controlled substances. Id. at 318-19,
The Court first reversed the D.C. Circuit’s jurisdictional ruling, holding that the rejection by the district court of Richardson’s motion to dismiss was appealable under the decision in Abney v. United States,
Justice Brennan’s partial dissent highlighted some of the anomalous results to which the Court’s opinion could lead. He reasoned as follows:
Apparently, under the Court’s approach, only an actual judgment of acquittal, or an unreversed conviction, would terminate jeopardy and thereby bar retrial. Accordingly, a defendant who is constitutionally entitled to an acquittal but who fails to receive one — because he happens to be tried before an irrational or lawless factfinder or because his jury cannot agree on a verdict — is worse off than a defendant tried before a factfinder who demands constitutionally sufficient evidence. Indeed, he is worse off than a guilty defendant who is acquitted due to mistakes of fact or law. I do not believe this paradoxical result is faithful to the principle we have repeatedly reaffirmed that the Double Jeopardy Clause precludes retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so.
Id. at 327-28,
Patterson’s 2004 retrial did not violate the Double Jeopardy Clause as that provision was construed in Richardson. Our failure to address Patterson’s sufficiency challenge on the merits foreclosed the possibility of his receiving what he would have needed to invoke the Burks rule — an appellate court’s holding that the evidence at his first trial was in fact insufficient to support his conviction. See
The conclusion that we reach is one that Justice Brennan predicted with a sense of foreboding in his partial dissent in Richardson. Justice Brennan was concerned that appellate courts “could remand for retrial without addressing the insufficiency claim and the defendant would never be able to challenge the evidence at the first trial.” Id. at 331,
Notwithstanding the unsatisfying result produced by our conclusion, both Richardson itself and our sister circuits’ interpretation of that decision persuade us that this conclusion is the one required by existing law. We find particularly instructive the Seventh Circuit’s decision in United States v. Douglas,
The Seventh Circuit began its analysis by noting that, although other circuits had previously “held that a reviewing court cannot refuse to address a defendant’s challenge to the sufficiency of the evidence offered at trial,” the Seventh Circuit had never addressed the question. Id. (emphasis in original) (citing cases from the Third, Ninth, and Tenth circuits). Moreover, the court observed, the Supreme Court “has never held that a reviewing court must review the sufficiency of the
Similar reasoning is found in the Fifth Circuit’s decision in United States v. Miller,
The central concept of Richardson is that there is no double jeopardy unless the original jeopardy has terminated; and it is abundantly clear that a reversal for instructional error is no more a termination of jeopardy than a mistrial where a jury is unable to agree. And it is evident that the implications of Richardson for a case such as this one did not escape the attention of the Richardson court.
Id. at 872 (emphasis in original) (referring to the consequences identified Justice Brennan in his separate opinion in Richardson,
The same conclusion follows in the present case. As in Miller, our decision to invalidate Patterson’s conviction rested exclusively on the ground that the jury instructions were constitutionally deficient. But this “instructional error” did not constitute a jeopardy-terminating event. See id. Consequently, Patterson’s second trial did not violate the Double Jeopardy Clause, and a third trial is permissible for the same reasons.
We cannot end our discussion of Douglas and Miller, however, without emphasizing a second key aspect of those decisions, one that brings us back to our analysis in Part II.A.l. above about the importance of addressing insufficiency-of-the-evidence claims properly before this court. After concluding that the Double Jeopardy Clause did not compel appellate courts “to review the sufficiency of the evidence at trial anytime a defendant raises the question,” the Seventh Circuit nevertheless adopted “a policy in [that] circuit of routinely addressing evidentiary sufficiency in criminal cases when a defendant presents
Similarly, the Fifth Circuit in Miller recognized the wisdom of such a policy even while concluding that it was not constitutionally required. The Miller defendants pointed to a number of post-Richardson cases, including this court’s decision in Quinn,
“Far from holding that a review of [a sufficiency challenge] can be had later if a conviction is reversed on other grounds,” the Miller court continued, “these cases indicate that the sufficiency of the evidence will be reviewed in the first appeal in order to prevent defendants from having to face a second trial where there was insufficient evidence to convict at the first trial.” Id. at 873 (emphasis in original). The Fifth Circuit thus concluded that, “[a]lthough not mandated by the double jeopardy clause, ... the better practice [is] for the appellate court on an initial appeal to dispose of any claim properly presented to it that the evidence at trial was legally insufficient to warrant the thus challenged conviction.” Id. at 874.
What Douglas and Miller make clear, therefore, is that this court’s longstanding prudential practice of reviewing the sufficiency of the evidence despite reversing a conviction on other grounds was not undermined by the Supreme Court’s decision in Richardson. Indeed, despite reading the implications of Richardson broadly, both the Fifth and Seventh Circuits adopted a practice identical to the one that this court has employed since 1979. That practice remains the law of both of those circuits — and our circuit — today. See United States v. Moses,
Other circuits likewise adhere to an analogous “prudential rule” that is designed “to avoid potential double jeopardy problems,’’and that requires them “to review sufficiency of the evidence claims raised by defendants, even if resolution on alternative grounds would otherwise dispose of the case.” United States v. Bobo,
In sum, when we declined to address Patterson’s insufficiency-of-the-evidence claim in our prior opinion, we deviated from a practice that has been (and remains) the law in this circuit and most others for the better part of the last 25 years. But our error did not subject Patterson to a retrial that violated his double jeopardy rights, even assuming that we would have determined that the evidence was indeed insufficient (a determination that is by no means certain). With this understanding of our decision in Patterson I established, we address whether we may now reach the sufficiency challenge that we declined to address in 2003.
B. We cannot reach Patterson’s challenge to the sufficiency of the evidence at his first trial either under the law-of-the-case doctrine or by recalling the mandate
Our conclusion that we should have taken up Patterson’s challenge to the sufficiency of the evidence in our prior decision leads to a thornier question — whether we have the power to reach the issue now. Patterson maintains that law-of-the-case principles allow us to address his claim because our failure to do so earlier was a clear departure from circuit precedent and would work a manifest injustice. The state counters that law-of-the-case principles do not apply, that the only way to revisit our prior ruling would be by recalling the mandate, and that recalling the mandate under these circumstances would be an abuse of discretion. We address these contentions in turn.
1. The law-of-the-case doctrine is not a proper basis for revisiting Patterson’s sufficiency claim
Patterson argues that this court’s authority to review its earlier decision resides in a federal court’s “power to revisit prior decisions of its own ... in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’ ” Christianson v. Colt Indus. Operating Corp.,
In other words, the above cases illustrate the prudential nature of the law-of-the-case doctrine, which “states that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the
But the law-of-the-case doctrine does not apply to circumstances such as those in the present case. As Professors Wright, Miller, and Cooper have explained:
Law-of-the-case rules ... do not involve preclusion by final judgment; instead, they regulate judicial affairs before final judgment. After final judgment, direct relief from judgment is governed by the rules governing direct and collateral attack — principally found in Civil Rule 60(b) and habeas corpus and the procedure to vacate a criminal sentence— rather than law of the case or res judica-ta.
18B Charles Alana Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed.2002) (emphasis added).
Our opinion in Patterson I constitutes a “final judgment” because the grant of a conditional writ of habeas corpus is treated as a final order. See, e.g., Browder v. Illinois Dep’t of Corrections,
Because the Patterson I opinion is a final judgment in a habeas case, Patterson cannot obtain relief from that judgment simply by invoking the flexibility of the law-of-the-case doctrine. He must instead satisfy the criteria set forth in “the rules governing ... collateral attack” of a state conviction. See 18B Wright, Miller & Cooper § 4478. As will be discussed below, the proper inquiry under governing habeas jurisprudence is whether recalling the mandate in order to correct an erroneous prior decision would be an abuse of our discretion.
2. Recalling the mandate would constitute an abuse of discretion
“[C]ourts of appeals,” as Judge Posner has explained, “have asserted the power ... to recall a mandate, in effect reopening the case, without limit of time, although only in exceptional circumstances.” Patterson v. Crabb,
This court has held that “one seeking recall of a mandate must demonstrate good cause for that action through a showing of exceptional circumstances,” including, but not limited to “fraud upon the court, clarification of an outstanding mandate, [or] correction of a clerical mistake.” BellSouth Corp. v. FCC,
As the BellSouth court observed, other circuits have similarly applied the “exceptional circumstances” standard regarding the recall of a mandate.
Calderon is the only case in which the Supreme Court has addressed the power of a court of appeals to initiate a recall of its mandate sua sponte. See id. at 549-559,
Just two days before Thompson’s execution date, a divided en banc panel of the Ninth Circuit issued a decision recalling-the earlier mandate and reinstating the initial district court judgment that had vacated Thompson’s death sentence. Id. The court attributed its failure to act earlier to “procedural misunderstandings by some judges” — to wit, miscommunications during a law-clerk transition in one judge’s
The Supreme Court, by a majority of five to four, reversed. Observing that the Ninth Circuit’s actions “rest[ed] on the most doubtful of grounds,” Calderon,
The Supreme Court focused on a state’s particular interest in the finality of criminal convictions, and announced the following general rule: “[W]here a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined [the Court’s] habeas corpus jurisprudence.” Id. at 558,
Whether the general rule announced by the Supreme Court in Calderon actually controls in the present case is far from clear. The Calderon rule, by its own terms, applies where an appellate court recalls its mandate to revisit “an earlier decision denying habeas corpus relief to a state prisoner.” Id. at 558,
But even if the rule announced in Calderon does not apply, other aspects of the Supreme Court’s reasoning in that case and its more recent decision in Bell v. Thompson,
The passage of time also played a central role in the Supreme Court’s decision in Bell v. Thompson. There, the Court reversed a decision in which this court initially denied habeas relief, withheld issuance of the mandate, and later reversed itself in order to grant habeas relief. See Thompson v. Bell,
We read the Supreme Court’s decision in Bell as turning on four factors. The first was “the length of time between [the] denial of certiorari and the Court of Appeals’ issuance of its amended opinion.” Id. Second and relatedly, the seven— month delay caused the state to act in reliance on the appellate court’s earlier opinion and order. Believing that habeas relief had been definitively denied, the state secured a date for Thompson’s execution and litigated his competency to be executed in both state and federal court. See id. at 2832-33. The third factor emphasized by the Court was that the amended opinion adopted arguments that had previously been presented in Thompson’s petition for rehearing or rehearing en banc. Id. at 2833. Finally, the Court returned to the concerns of federalism, comity, and finality at the heart of its ruling in Calderon, reasoning that those concerns applied even in the slightly different procedural posture of Bell. Although it was “respectful of the Court of Appeals’ willingness to correct a decision that it perceived to have been mistaken,” the Supreme Court nevertheless concluded that this court’s action was not “consistent with the ‘State’s interest in the finality of convictions that have survived direct review within the state court system.’ ” Id. at 2836-37 (quoting Calderon,
All four of the above factors cut decisively against recalling the mandate in the present case. As to the first, the three years plus that have passed since our decision in Patterson I far exceeds the seven months that this court waited in Bell. Second, the state of Ohio, like the state of Tennessee in Bell, has engaged in significant action in reliance on our ruling in Patterson I. The state has expended substantial time and resources in deciding whether to retry Patterson, conducting the second trial, preparing for a third trial, and litigating its ability to proceed with that third trial before the federal courts. These actions are directly analogous to the ones that the Supreme Court in Bell found to be illustrative of the state’s important reliance interest. See
The third and fourth factors identified in Bell are even more damaging to Patter
Finally, “the finality and comity concerns that animated Calderon” and also influenced the outcome in Bell are likewise implicated in the present case. See id. at 2836. The Bell Court respected this court’s “willingness to correct a decision that it perceived to have been mistaken,” but nonetheless found the panel’s issuance of a new opinion reversing itself seven months after the denial of certiorari constituted an abuse of discretion. Id. at 2836-37. We believe that the same conclusion is applicable in the present ease, where our failure to address Patterson’s challenge to the sufficiency of the evidence was an error, but one that did not actually subject him to an unconstitutional retrial. See Part II.B.2. above. Stripped to their essence, Calderon and Bell teach that the decision to recall the mandate must account for “the State’s interest in the finality of convictions” and the “considerable time and resources” expended by the state in prosecuting Patterson and defending the resulting conviction in the court systems. See Bell,
In the end, we believe that the Supreme Court’s decisions in Calderon and Bell are an insurmountable obstacle to relief for Patterson. Indeed, though neither case has facts on all fours with those of the present case, both squarely address situations in which courts of appeals have attempted to reach back in time to correct a decision that they later believed to be mistaken. We simply cannot ignore the fact that the Supreme Court has twice reacted to these good-faith efforts on the part of the appellate courts by reversing their judgments. A similar decision in this case would likely provoke the same reaction. For that reason and the others set forth above, we conclude that recalling the mandate in order to reach Patterson’s insufficiency-of-the-evidence claim would be an abuse of our discretion.
3. What should we have done in Patterson I?
We briefly address one last issue that relates to our handling of Patterson’s first appeal and that may help avoid cases like his in the future. Specifically, we address the question of what we should have done in 2003. We believe that the Tenth Circuit’s decision in United States v. Haddock,
Haddock then filed a petition for rehearing, pointing to the longstanding rule in the Tenth Circuit that when the court of appeals reverses due to a trial error and remands for a new trial, the court “nevertheless must address the defendant’s claim that evidence presented at trial on the reversed count was insufficient.” Haddock II,
We should have followed the same procedure and granted Patterson’s timely petition for panel rehearing in 2003. Like the defendant in Haddock, Patterson alerted us to binding circuit precedent that instructed us to address the insufficiency-of-the-evidence claim despite our decision to issue a conditional writ whose practical result was the same as the retrial ordered in Haddock. The state, in its response to the petition, did not dispute the existence of this rule or argue that the Supreme Court’s decision in Richardson had undermined its validity. Furthermore, addressing the challenge in an amended opinion would not have made Patterson any worse off than he was after our initial decision. If we had found his challenge meritorious, the state would not have been permitted to retry him on the count of conviction. But even if we had rejected his challenge, our issuance of a conditional writ would have remained intact, entitling him to a new trial with jury instructions that complied with due process requirements. The most efficacious solution, in short, would have been to grant Patterson’s request for panel rehearing and address his insufficiency claim on the merits.
We thus find ourselves in a position similar to that of the Eleventh Circuit in United States v. Bobo,
We turn now to Patterson’s appeal of the only question addressed by the district court — whether the state of Ohio violated the conditions set forth by this court in Patterson I. Specifically, Patterson argues that the language of our prior opinion required the state to initiate any retrial on the same charges within 180 days of the issuance of the mandate, and that the our opinion did not contemplate that the state would introduce new evidence at the retrial. For the reasons explained below, we find no basis to read our prior opinion as imposing these unusual restrictions on the state.
1. Both the district court and this court have jurisdiction to assure compliance with the conditional writ
In denying Patterson’s motion, the district court assumed that it had subject matter jurisdiction over his case. But federal courts are not allowed simply to assume jurisdiction and then proceed to resolve a case on the merits. See Steel Co. v. Citizens for a Better Env’t,
On appeal, the state argued that the district court had no jurisdiction to enter the requested order. This court disagreed, holding that district courts generally “retain jurisdiction to execute a lawful judgment when it becomes necessary.” Id. at 692 (citing Phifer v. Warden,
Similarly, in the present case, Patterson filed a motion that essentially asked the district court to “mak[e] the conditional writ” entered in Patterson I “absolute.” See id. This court in Gentry recognized that district courts “retain[ ] jurisdiction to determine whether a party has complied with the terms of a conditional order in a habeas case,” id., and what the district court did in the present case was precisely that — it evaluated the state’s compliance with the terms of the conditional writ that
2. The state did not violate the letter or spirit of this court’s decision by introducing new evidence or scheduling a third trial
The district court did not hold an evidentiary hearing or make any findings of fact as to the state’s actions since the grant of the conditional writ. We will therefore conduct a de novo review of the district court’s legal conclusion that the state has complied with the terms of the writ. See Mickens-Thomas,
The district court correctly determined that the state’s actions have not run afoul of the “letter or spirit” of the conditional writ issued in Patterson I. Our opinion ended with the following conclusion:
[W]e REVERSE the judgment of the district court, GRANT Patterson a conditional writ of habeas corpus that will result in his release from prison unless the state of Ohio commences a new trial against him within 180 days from the date of this opinion, and REMAND the case for further proceedings consistent with this opinion.
Patterson I,
Likewise, nothing in our opinion in Patterson I suggests that the state was limited to presenting at Patterson’s second trial exactly the same evidence that it introduced at the first trial. Our brief discussion of the sufficiency issue in Patterson I did no more than justify the decision to leave that issue undecided. That discussion did not evince an intention, as Patterson would have it, “to restore [Patterson] to essentially the same position he would have enjoyed had the first jury been properly instructed.” Instead, we aimed to correct an erroneous jury instruction that had permitted Patterson to be convicted without proof of an essential element of the offense, thereby ensuring that the subsequent proceedings against him were not marred by the same constitutional error.
Moreover, Patterson has cited no authority for the proposition that the reversal of a conviction for improper jury instructions generally curtails the amount or type of evidence that the state may produce during a retrial. This court’s decision in United States v. Davis,
To sum up, a fair reading of the Patterson I opinion does not limit state-court proceedings beyond the initial 180-day commencement or prevent the state from introducing additional evidence during a retrial. We therefore affirm the district court’s denial of Patterson’s motion for an unconditional release and for a stay of the state-court proceedings.
III. CONCLUSION
Federal courts are not often forced to issue what amounts to a mea culpa. An error that we committed three years ago, however, has forced us to do just that. Today’s decision is all the more distressing because we have had to recognize not only that we made a mistake, but also that we cannot correct our error at this late date. This inability to correct a mistake of our own creation will likely strike some as inimical to our system of justice.
Integral to that system, however, are the decisions of the United States Supreme Court and our duty as an intermediate appellate court to follow those decisions even if they lead to uncomfortable results in particular cases. This is such a case. In light of the Supreme Court’s recent holding that an appellate court’s “willingness to correct a decision that it perceived to have been mistaken” does not suffice to justify a belated reconsideration of a previously decided issue in a habeas corpus case, Bell v. Thompson,
Concurrence Opinion
concurring in part and concurring in the judgment.
I fully concur in the Court’s determination that petitioner Eric Scott Patterson may properly be tried for a third time in state court, where he failed to secure a ruling by any court, state or federal, that the evidence at his first trial was insufficient to support his conviction of involuntary manslaughter based on child endangering, and where his second trial ended in a hung jury. See Richardson v. United States,
As the majority acknowledges, there are only a handful of cases — and not a single habeas decision prior to Patterson I — in which a panel of this Court has expressed its view as to whether it would or should address a suffieiency-of-the-evidence challenge vis-a-vis some other claim of error. In the first such decision, United States v. Orrico,
In the nearly twenty-five years between Orrico and Patterson I, this Court revisited this issue on only two occasions. First, in United States v. Aarons,
Thus, the sole source of the majority’s posited “requirement” to address sufficiency-of-the-evidenee challenges is the single sentence in Orrico in which the panel explained why it had elected to address a sufficiency challenge instead of a question about the admissibility of certain evidence. Certainly, this falls far short of the extended discussion that our sister circuits have deemed appropriate before settling upon a general practice in appeals from federal convictions for handling sufficiency challenges accompanied by other claims of error. See, e.g., Miller,
Nevertheless, it is not even necessary in this case to engage in a debate about the prescriptive force of Orrico, because this Court already has recognized that any “practice” that might have emerged from that decision has its exceptions. As the majority acknowledges, (see Majority Op. at 653), one such exception was recognized in Davis, supra,
In rejecting this contention, the panel in Davis found that the prior panel in that case had a sound basis for electing a course of action different from the one chosen in Orrico. In particular, the Court observed that Orrico did not present “a situation where the defendant had been tried on an indictment incorporating a legal theory that had turned out to be invalid.” Davis,
This, then, was the legal landscape as it existed in this Circuit when we heard and decided Patterson I. On one hand, the Orrico panel had elected in 1979 to address a sufficiency rather than an eviden-tiary challenge, and two subsequent panels had relied on Orrico in pursuing similar courses of action. On the other hand, the panel in Davis had deemed it appropriate to chart a different course in that case, despite its acknowledgment of the procedure followed in Orrico. When presented with Patterson’s sufficiency challenge, therefore, we had both of these alternatives available to us — we could have reviewed the sufficiency of the evidence, notwithstanding our determination that the jury instructions at Patterson’s initial trial were erroneous, or we could have found, as in Davis, that there were reasons to refrain from such a review.
We explicitly chose the latter course, citing reasons why, in our judgment, it “would be imprudent” to address Patterson’s sufficiency challenge. Patterson I,
Whether or not the majority might choose a different course of action today, there is no basis for its conclusion that we “erred” or deviated from some longstanding Circuit practice when we deliberately elected not to address Patterson’s sufficiency challenge. In an effort to identify such an error, the majority first reasons that Davis is “readily distinguishable,” (Majority Op. at 654), in that the reasons
This, of course, is precisely what we did in Patterson I. Even if one were to assume — which I do not — -that our reasons were somehow not as “good” as those identified in Davis, no error can be gleaned from the mere fact that our reasons were different from those cited in an earlier case, and certainly no “mea culpa” is warranted. If no prior panel had opined that the sorts of reasons we gave in Patterson I were “good enough” to warrant an “exception” to this Circuit’s “rule,” neither had any prior panel opined that such reasons were not “good enough,” and that only the circumstances presented in Davis could justify such an exception. Indeed, as noted earlier, there is no case predating Patterson I in which this Court invoked any sort of “rule” or “practice” requiring that sufficiency challenges be addressed in ha-beas proceedings, much less opined as to the existence or extent of any possible “exceptions.” Writing on this blank slate, we were not constrained in Patterson I to read Davis as establishing the sole set of circumstances under which we could decline to reach a sufficiency challenge.
Nonetheless, the majority insists that it would be “disingenuous” to construe Patterson I as a “conscious and purposeful departure from a longstanding practice.” (Majority Op. at 656.) Yet, if Davis is to be held up as the gold standard for such “conscious and purposeful” deliberation, I cannot see how our decision in Patterson I would fail to measure up. Just as in Patterson I, there is nothing in Davis that reflects the panel’s recognition that it was bound to adhere to some longstanding Circuit practice unless it could identify a basis for an exception.
To be sure, Davis cited Orrico and Delk, and then explained why those cases were distinguishable. Yet, I do not believe that a panel can be accused of failing to reach a “conscious and purposeful” decision merely by virtue of the fact that it does not cite and distinguish any and all cases that arguably bear upon the issue before it. Whether “purposefully]” or otherwise, the fact remains that we considered in Patterson I whether • to address a sufficiency challenge and decided that “it would be
In any event, any suggestion that we were oblivious to a “practice” adopted in Orrico or some other Sixth Circuit decision is belied by our denial of Patterson’s petition for rehearing, in which he expressly argued that we were required under Quinn, Delk, and Orrico to address his sufficiency challenge. The majority unfortunately fails to mention this filing in its discussion of the unstated reasoning and “desire[s]” that purportedly shaped our decision in Patterson I. (See Majority Op. at 656.) Unless the majority is prepared to say that we rejected this petition out-of-hand without reading or considering it— and my recollection is definitively to the contrary — it is readily apparent to me that we “consciously] and purposefully]” elected not to address Patterson’s sufficiency challenge, despite his argument that we were compelled to do so. Having concluded that we did not err in this regard, I need not join in the majority’s speculation as to “[w]hat we attempted to do,” (id.), nor its “mea culpa’’ for having unanimously decided the case as we did, both initially and upon Patterson’s request for rehearing.
Finally, I feel compelled to address the apologia with which the majority closes its opinion. Even assuming, for the moment, that I agreed with the majority’s conclusion that we erred in Patterson I, I fail to perceive the need in this case to reassure the citizenry that our system of justice functions properly on the whole, much less to attribute the purportedly “uncomfortable result! ]” here to our obligation to follow Supreme Court precedent. (See id. at 669.) As to the former, it is important to distinguish between our decision not to address Patterson’s sufficiency challenge and the possible outcome of any such sufficiency review that we might have undertaken. Unless Patterson’s challenge would have been successful, our purported error in declining to address it could not possibly be viewed as “inimical to our system of justice,” (id.) — to the contrary, such an error would be utterly harmless. Yet, throughout his state court appeals and the ensuing federal habeas proceedings, Patterson has never once secured the opinion of any judge — state or federal — that the evidence at his first trial was insufficient to sustain his conviction.
But, even if Patterson’s sufficiency challenge might have succeeded, it is misleading to suggest that a court’s inability or unwillingness to address such a challenge is “inimical” to a properly functioning system of justice. Simply stated, there are all sorts of circumstances under which even a meritorious challenge might not be heard, particularly in a habeas proceeding. To cite a fairly stark example, the Supreme Court has invoked considerations of exhaustion and procedural default to deny federal habeas review to a death row inmate who filed his state court appeal a mere three days after the relevant deadline. See Coleman v. Thompson,
This brings me to my second concern with the majority’s concluding remarks— namely, that they could be read as laying the blame for today’s supposedly “uncomfortable result[]” at the feet of the Supreme Court. Any error — if error there was — was ours alone, of course, and we had ample notice and opportunity to timely correct any such error upon Patterson’s filing of a petition for rehearing. Even in the absence of the Supreme Court precedent cited by the majority, I would be reluctant to subscribe to a rule that would allow judges to revisit their decisions years later, based upon a delayed realization that they might have been mistaken. It goes without saying, of course, that correct rulings are vitally important to the proper functioning of a judicial system, and that judges are acutely aware of this. As a result, judges strive mightily to avoid the consequences of an erroneous judgment, and this was no less true of our panel in Patterson I. Yet, finality also plays a crucial role in our judicial system, as this Court’s decisions have long recognized. See, e.g., Pierce v. United Mine Workers Welfare & Retirement Fund,
Finally, it bears emphasis — and the majority also recognizes this, (see Majority Op. at 655-59) — that any purported error in Patterson I did not subject Patterson to an unconstitutional retrial. Nor has our decision otherwise diminished any of the constitutional protections that Patterson enjoys as he faces his third state court trial. Rather, he fully retains his due process guarantee of a verdict based upon sufficient evidence, see Jackson v. Virginia,
Notes
. To the extent that the panel in Orrico construed Burks as prescriptive — i.e., mandating that a court must address sufficiency challenges — rather than descriptive — i.e., identifying the consequence of a successful sufficiency challenge — the Supreme Court's subsequent decision in Richardson surely belies such a reading of BurKs. Specifically, the Richardson Court emphasized that "our decision in Burks did not extend beyond the procedural setting in which it arose,” and that "[w]here, as here, there has been only a mistrial resulting from a hung jury, Burks simply does not require that an appellate court rule on the sufficiency of the evidence because retrial might be barred by the Double Jeopardy Clause.” Richardson,
. Because the majority has cited Delk in support of its posited "Burks rule,” (Majority Op. at 652), a brief discussion of that decision is warranted. The footnote from which the majority culls a ''require[ment]” to address sufficiency challenges is, in fact, a survey of then-recent decisions from this and other circuits on "issues related to,” but distinct from, the "precise question” before the panel in that case. Delk,
. In light of this quoted language from Quinn, I fail to see how the majority here can read that case as reflecting the panel’s "recognition] ... that it still needed to address Quinn’s insufficiency-of-the-evidence claim.” (Majority Op. at 652 (emphasis added).) Rather, it seems to me that the panel in Quinn was merely observing that a sufficiency review was not necessarily moot in light of "[t]he reversal on trial error,” given that a successful sufficiency challenge would preclude a retrial. Quinn,
. Notably, when Davis was decided, it could at least be maintained that two prior panels, in Orrico and Aarons, had adopted a "practice” of addressing sufficiency challenges in appeals from federal convictions. When we decided Patterson I, in contrast, there were no analogous rulings in habeas cases that could have alerted us to some Circuit “practice” that we might be obliged to follow.
. To the contrary, I am firmly convinced that the evidence was sufficient.
. One check against this, of course, is to pursue an appeal. Here, however, Patterson failed to petition the Supreme Court for a writ of certiorari following our decision in Patterson I. Nor did he seek en banc reconsideration of the panel's ruling.