1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0380P (6th C ir.) File Name: 03a03 80p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R ICHA RD M. F RAZIE R , Petitione r-Appell ant,

v.

S TEPHEN J. H UFFMAN , Warden, Respondent-Appellee. X - - - -
> , - - - - N No. 01-3122

Filed: October 28, 2003

Befor e: BATCHELDER, CLA Y, and GI LMAN , Circuit Judges.

___________________________ SUPPL EMENTAL ORD ER

___________________________ RON ALD LEE GI

LMAN, Circ uit Judge. Following the issuance of this court 's opinion, found a t 343 F.3d

780 (6th Cir. 2003), Ric

hard M. F razier f

iled a petition to rehear. His petition is based on the concern that the concluding paragraph of our opinio n could

be interpreted as foreclosing his rig htto argu e in the stat

e courts of Ohio tha

t § 2929.06of the Oh

io Revised Code, enacted in 1996 , is not retro active to his offense, whic h occ

urre d in 19 90. We

reco gniz e that thi s is 2 Frazier v. Huffman No. 01-3122

st ill an open question under Ohio law. State v. Gr oss , 9 7 Ohio St.3d 121, 776 N.E.2d 1061, 1114-16 ( Ohio 20 02) (Resnick, J., concurring in part and dissenting in part).

Frazier’s right to argue this issue of state law i n the O hio courts is not foreclosed by our opinion. To remove any doubt
on this point, however, we amend our opinion by striking the concluding parag

raph in it s entirety and substituting the following in lieu thereof:

III. CONCL USION

For all of the reasons set forth above, we REVERSE inpart the jud gment of the district court, GRANT Fra zi er a conditi onal writ

of habea s corpus t

hat will result in the vacation of his death sent ence unless the state of Ohio com menc es a new penalty-phase trial agains thim within 180 days from the date t hat the judgment in this matter

beco mes final, and REMAND th e case for further procee dings consistent herewith. I f the Sta t e does elect to initiate such a proceeding, w e presume that the state cour

t will first have to determine wh ether § 2929.06 of the Ohio Revised Code is retroactive. Only

if the sta te court resolve s the iss ue i n the State’s favor would the prosecution be free t o conduct a new penalty pha se proceeding if it chooses to do so. Judge Batchelder, while continuing to adhere to her dissent inall respe cts, concurs

inthis Supple

mental Or der for the sole purpose of clarify

ing that Frazier’s right to challeng e the applicab il ity

of § 2929. 06 of the O hio Revise d Code to hi s case is not foreclosed by

the majority’s opinion.

Inlight of the foregoing

revision, we find no reason to have this cas e rehea

rd. Frazier’s petition to rehear is therefore DENIED

.No. 01-3122 Frazier v. Huffman 3

_______________ DISSENT

_______________ CLAY, Circuit Judge, dissenting . I question the propriety of Judges Gi lman and B atc he lder utilizing the vehicle of a petition for rehearing to provide an advis ory leg al opinion with respect to an issue that

was never raised or

briefed by

the parties below or on appeal when the parties fully had a n opportuni ty to do so. Such is not the proper use of a petition for rehearing. “A petition for re he aring is intended to bring to the attention of the panel claimed error of fa ct or law in the opinion.” 6 Cir . I.O.P. 40(a). More i mport antly, J udge Batchelder

co nt in ue s t o a bi de by h er p reviously filed dissenting opinion in t

his matter. She has not relinquished her d issent, either in full or in part, by joining the majori t y opinion and has not concur red eve n partia lly i n the ma jor ity opinion. I therefore

do n ot belie ve it i s prop er for J udge Batchelder

to vote to grant the petition for rehearing by

voting to revise the major ity opinion—in which she does not join—by vo t ing for

the Supple

mental Or

der. I t is my understa nding that Judge Batche lder, by

her disse

nt, continues to dispute

both the rea soning o f the majority opinion and the relief afforded in the fo rm of a new pe nalty phasetrial. Although I have not fou nd an y S ixth Circuit
a uthority which dir

ectly address es this situ

ation, it c ertainly
seems contrar

y to our Court’s policies and

procedures to think that a judge ca

n p articipate in redrafting an opinion that she does not join, or participate in determining the relief to be afforded, even on a petition for rehearing, w he n she rejects the notion that there is any leg al basis for the relief requested by the petitioner. In other words, I do not see how a member of the Court can dissent and participate in formulating the relief afforded by

an opinion that he or

she disse nts from. Put another way, there

is no legally c ognizable majority vote f or the Supplemental Order, notwithstanding Judge G il man’s assertions to the contrary . As a result, the Supplemental Order is of no force o r effe ct. Notwithstanding my belief that 4 Frazier v. Huffman No. 01-3122

the Supplemental Order is of no legal import or guidance for the parties or members of the public, out of an

abundance of caution, I will proceed to addre ss the substantive points of the Supplemental Order.

Alth ough § 2929.06 of the Ohio Revised Code was enacted in1996, Petitioner never argued to the district court or to this Courton appea

l that this s ection a

pplies re troactiv ely

so as to preclude him from be ing subje cted to a second mi

ti gat ion hearing upon remand. In fac

t, Petitioner speci fic ally sought
a new guilt phase trial as we ll as a ne w mitigation hearing before the district court and argued on appea l that the district court erred in failing to grant his application for the writ on either basis. Now, after being provi ded t he relief that he sought in the form of a new mitigation hearing, Petitioner argues in a petition for rehearing that, be cause th is Court’s remand order failed to consider his after-the -fact argument that § 292 9.06 may retroa

ctively prec lude him from being subjected to a new mi

tigation hearing , his case

should be reheard. The reli ef Petitioner act ually seeks fr om this Court for the first time by w ay

of his pet

ition for r

eheari ng is a n adjudicationto the e ffect that the purely state law issue remains open in th e Ohio co urts as to whether § 2929.06 applies retroactively

. See State v. Gross , 776 N

. E.2d 1061, 1114-16 (Ohio 2002) (Resnick, J., concurri ng in part and dissenting in part).

Issues raised for the first time in apetition for rehearing are gene rally n ot considered. See United States v. Perkins , 994 F.2d 1184, 1191 (6th Cir. 1993) (finding that the Court w ill notconsider issues which are raised for the firs t time on ap peal in a part

y’ s reply brief); United Sta tes v. Cros s , 308 F.3d 308, 314 (3d Cir. 2002) (findingthat raising an issue for the first time

in a petiti on for re

hearin g enbanc fa

ils to preserve t he issue for subsequent review). Thus, this Court should not consid

er Petitio ner’s r

etroac tivity

issu e a t this time, whether by issuing

a supplemental order or other wise. Furthermore, the re is no r eason to a

ddress th e retro activity issue as a par

t of the re mand orde

r si nc e there

is nothing

inNo. 01-3122 Frazier v. Huffman 5

the original opinion’s remand order to prevent the state court fromdeciding to entertain, or not to entertain, the retr

oactivity issue.

As to the § 292 9.06 retr

oactivity issue, Pet

itioner’ s case

is distingu ishable from the petitioner’s case in DePew v. Anderson , 311 F.3d 7 42 (6th Ci r. 2 002). In DePew , the

r etroac tivity

issue was raised and squarely addressed

by t h e districtjudge such that

it was nec essary

for this Co

urt to speak on it as we ll. Specif

ically , in the re

mand orde

r in DePew, we opine d as follo ws:
As a general rule, the relief given in a fe d eral habeas
case challenging a deat

h s entence is a conditional order vacating the sentence unless the defendant is resentenced within a set period of time, usually 180 da ys. T he magistr ate judge herein recommended such a conditional order, but the district court jud ge did not adopt that recommendation

because the law

of O hio, as it existed when defendant committed the crimes herein, did n ot allow imposition of

the death penalty

upon resent encin g. On that basis, the district co urt instead granted an
unco n ditional writ, vacating the death sentence. However, as recognized by the district court

judge in his order, the matte

r of res entenci

ng is for the cour ts of Ohio to add ress and we leave resolution of the state question to them.

For the fore going

reasons , the judgment

of the district court is affir med in par

t as to the v acating of the de ath sentence, reversed in part as to the gr ant of an unconditional writ and remanded with i nst ructions to
co n ditionally

grant t he writ un

less the Sta

te of Ohio elects to initiate resentencing proceeding s within 180 days of the district cour

t’s order.

Id. at 754. Thus, unlike i n t his case, in DePew the retroa ctivity issue was

raised a nd addre ssed in the

first instance by t he distric t court. 6 Frazier v. Huffman No. 01-3122

Signific antl y, eve n though the issue of whether DePew could l awful ly be rese

ntenced to death was raised and addressed, this Court’s remand order did not so much as imply that the state court should conside r th e issue before proceeding

with the resentencing; rather, DePew ’s c ase was remande d “w ith instructions to co nditionall y g rant the writ unless the State of Ohio el ect s to initiate resentencing procee dings within 180 days of the district court’s order.” Id. Thus, since this Court in DePew did not suggest that the state court could o r should consider the retroactivity issue on remand when the issue had been raised by the petitioner, we should notd o so in this case where the issue was not previously raised.

Of course, Petitioner is free to raise the retroactivity issue before the stat e trial court, as he is free to raise any other defense as to why

he should n

ot be subje ct to the d

eath pe na lt y; howe ver, w here this issue was never raised by Petitioner up until this point, this Cour t sho uld not use its heavy hand to urge the state court to consider it now. Indeed, the state court

should not interpret the Supplemental Order as suggesting

that it should or should not consider Petitioner’s retroactivity c laim.

Insummary, beca

use the Supplemental Order appears to be issuing on an impr

oper bas is proce durally

and is subs tantively
unnece ssary , I re spectfu

lly d issent.

ENTERED B Y ORDER OF THE COURT

/s/ Leonard Green

__________________________________ Clerk