No more hijinks from liberal Sixth Circuit judges

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In a quiet order On Monday, Judge Kavanaugh awarded the state of Ohio unopposed application to recall and suspend the Sixth Circuit mandate to grant a habeas remedy to August Cassano for his conviction and death sentence for the murder of a fellow inmate in 1997.

Why, you might wonder, did Ohio have to go to the Supreme Court to get this remedy when Cassano himself did not object? Two reasons: Judge Eric Clay and Judge Bernice Donald.

In a shared opinion in June (in Cassano vs. Shoop) which overturned the District Court, Clay and Donald joined together to declare that Cassano was unconstitutionally deprived of his right to represent himself in his murder trial. They “conditionally” granted Cassano’s request for a habeas corpus order, unless Ohio retrieves him. The Ohio Supreme Court did not unreasonably find that Cassano did not invoke his right (as required by the standard of federal habeas remedy under the AEDPA, Antiterrorism and Effective Death Penalty Act of 1996).

On August 26, the Sixth Circuit rejected the bench review, due to strong dissent from Judge Richard Griffin and Judge Amul Thapar. (See p. 34-46 of this Annex.) Griffin notes that “the Supreme Court has overturned us twenty-two times for failing to apply the deference to state court decisions mandated by the AEDPA” and that twelve of these reversals “were per curiam decisions on motions for writs of certiorari ”. It’s a safe bet that Cassano will add to both totals.

On August 27, Ohio decided to suspend the Sixth Circuit’s mandate pending the filing of a certiorari petition in the Supreme Court. A suspension would do no harm to Cassano, who is serving a life sentence for a previous murder. But the issuance of the warrant would trigger the six-month deadline for a retrial of Cassano and therefore require Ohio to begin dedicating resources to preparing for a retrial that would not need to take place in the near future. the probable case that the Supreme Court grants Ohio’s certiorari petition within a few months and ultimately reversed.

Clay and Donald denied Ohio’s request to suspend and his unopposed motion to reconsider the denial of the suspension. So Ohio had to go to the Supreme Court to get the basic relief that Clay and Donald did not provide, even though Cassano did not object.


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