Is the Sixth Circuit Choosing Reversal over Duty?
In Cassano v. Shoop, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted capital defendant August Cassano’s habeas petition on the grounds that Ohio courts had unreasonably denied Cassano his right to self-representation at trial.
Today, the Sixth Circuit denied Ohio’s petition for rehearing en banc, with four judges dissenting (Siler, Thapar, Nalbandian, and Griffin).
Judge Griffin wrote a dissent from the denial suggesting that the court have reheard Cassano and reversed the panel opinion (and the circuit precedent upon which it relied) so as to avoid reversal in the Supreme Court. As I have noted many times on this blog, the Sixth Circuit has a pattern of getting reversed by the Supreme Court in habeas cases.
Judge Griffin surveys this history in his dissent, which begins:
Once again, our court has shirked its responsibility to correct a decision of exceptional importance meriting en banc review. Instead, the majority has chosen reversal over duty. Unfortunately, this path is all too familiar. See, e.g., Davenport v. MacLaren, 975 F.3d 537 (6th Cir. 2020) (denying petition for rehearing en banc), cert. granted sub nom., Brown v. Davenport, 141 S. Ct. 2465 (2021); see also CNH Industrial N.V. v. Reese, 138 S. Ct. 761, 765 n.2 (2018).
Because we “have acquired a taste for disregarding” the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”), Rapelje v. Blackston, 136 S. Ct. 388
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