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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0380P (6th Cir.)

File Name: 03a0380p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RICHARD M. FRAZIER,

Petitioner-Appellant,

v.

STEPHEN J. HUFFMAN,

Warden,

Respondent-Appellee.

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No. 01-3122

Filed: October 28, 2003

Before: BATCHELDER, CLAY, and GILMAN, Circuit

Judges.

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SUPPLEMENTAL ORDER

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RONALD LEE GILMAN, Circuit Judge. Following the

issuance of this court's opinion, found at 343 F.3d 780 (6th

Cir. 2003), Richard M. Frazier filed a petition to rehear. His

petition is based on the concern that the concluding paragraph

of our opinion could be interpreted as foreclosing his right to

argue in the state courts of Ohio that § 2929.06 of the Ohio

Revised Code, enacted in 1996, is not retroactive to his

offense, which occurred in 1990. We recognize that this is

2 Frazier v. Huffman No. 01-3122

still an open question under Ohio law. State v. Gross, 97

Ohio St.3d 121, 776 N.E.2d 1061, 1114-16 (Ohio 2002)

(Resnick, J., concurring in part and dissenting in part).

Frazier’s right to argue this issue of state law in the Ohio

courts is not foreclosed by our opinion. To remove any doubt

on this point, however, we amend our opinion by striking the

concluding paragraph in its entirety and substituting the

following in lieu thereof:

III. CONCLUSION

For all of the reasons set forth above, we REVERSE

in part the judgment of the district court, GRANT

Frazier a conditional writ of habeas corpus that will

result in the vacation of his death sentence unless the

state of Ohio commences a new penalty-phase trial

against him within 180 days from the date that the

judgment in this matter becomes final, and REMAND

the case for further proceedings consistent herewith. If

the State does elect to initiate such a proceeding, we

presume that the state court will first have to determine

whether § 2929.06 of the Ohio Revised Code is

retroactive. Only if the state court resolves the issue in

the State’s favor would the prosecution be free to

conduct a new penalty phase proceeding if it chooses to

do so.

Judge Batchelder, while continuing to adhere to her dissent

in all respects, concurs in this Supplemental Order for the sole

purpose of clarifying that Frazier’s right to challenge the

applicability of § 2929.06 of the Ohio Revised Code to his

case is not foreclosed by the majority’s opinion.

In light of the foregoing revision, we find no reason to have

this case reheard. Frazier’s petition to rehear is therefore

DENIED.
No. 01-3122 Frazier v. Huffman 3

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DISSENT

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CLAY, Circuit Judge, dissenting. I question the propriety

of Judges Gilman and Batchelder utilizing the vehicle of a

petition for rehearing to provide an advisory legal opinion

with respect to an issue that was never raised or briefed by the

parties below or on appeal when the parties fully had an

opportunity to do so. Such is not the proper use of a petition

for rehearing. “A petition for rehearing is intended to bring

to the attention of the panel claimed error of fact or law in the

opinion.” 6 Cir. I.O.P. 40(a). More importantly, Judge

Batchelder continues to abide by her previously filed

dissenting opinion in this matter. She has not relinquished

her dissent, either in full or in part, by joining the majority

opinion and has not concurred even partially in the majority

opinion. I therefore do not believe it is proper for Judge

Batchelder to vote to grant the petition for rehearing by voting

to revise the majority opinion—in which she does not

join—by voting for the Supplemental Order. It is my

understanding that Judge Batchelder, by her dissent,

continues to dispute both the reasoning of the majority

opinion and the relief afforded in the form of a new penalty

phase trial. Although I have not found any Sixth Circuit

authority which directly addresses this situation, it certainly

seems contrary to our Court’s policies and procedures to think

that a judge can participate in redrafting an opinion that she

does not join, or participate in determining the relief to be

afforded, even on a petition for rehearing, when she rejects

the notion that there is any legal 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 dissents from. Put

another way, there is no legally cognizable majority vote for

the Supplemental Order, notwithstanding Judge Gilman’s

assertions to the contrary. As a result, the Supplemental

Order is of no force or effect. 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 address the substantive points of the

Supplemental Order.

Although § 2929.06 of the Ohio Revised Code was enacted

in 1996, Petitioner never argued to the district court or to this

Court on appeal that this section applies retroactively so as to

preclude him from being subjected to a second mitigation

hearing upon remand. In fact, Petitioner specifically sought

a new guilt phase trial as well as a new mitigation hearing

before the district court and argued on appeal that the district

court erred in failing to grant his application for the writ on

either basis. Now, after being provided the relief that he

sought in the form of a new mitigation hearing, Petitioner

argues in a petition for rehearing that, because this Court’s

remand order failed to consider his after-the-fact argument

that § 2929.06 may retroactively preclude him from being

subjected to a new mitigation hearing, his case should be

reheard. The relief Petitioner actually seeks from this Court

for the first time by way of his petition for rehearing is an

adjudication to the effect that the purely state law issue

remains open in the Ohio courts as to whether § 2929.06

applies retroactively. See State v. Gross, 776 N.E.2d 1061,

1114-16 (Ohio 2002) (Resnick, J., concurring in part and

dissenting in part).

Issues raised for the first time in a petition for rehearing are

generally not considered. See United States v. Perkins, 994

F.2d 1184, 1191 (6th Cir. 1993) (finding that the Court will

not consider issues which are raised for the first time on

appeal in a party’s reply brief); United States v. Cross, 308

F.3d 308, 314 (3d Cir. 2002) (finding that raising an issue for

the first time in a petition for rehearing en banc fails to

preserve the issue for subsequent review). Thus, this Court

should not consider Petitioner’s retroactivity issue at this

time, whether by issuing a supplemental order or otherwise.

Furthermore, there is no reason to address the retroactivity

issue as a part of the remand order since there is nothing in
No. 01-3122 Frazier v. Huffman 5

the original opinion’s remand order to prevent the state court

from deciding to entertain, or not to entertain, the retroactivity

issue.

As to the § 2929.06 retroactivity issue, Petitioner’s case is

distinguishable from the petitioner’s case in DePew v.

Anderson, 311 F.3d 742 (6th Cir. 2002). In DePew, the

retroactivity issue was raised and squarely addressed by the

district judge such that it was necessary for this Court to

speak on it as well. Specifically, in the remand order in

DePew, we opined as follows:

As a general rule, the relief given in a federal habeas

case challenging a death sentence is a conditional order

vacating the sentence unless the defendant is resentenced

within a set period of time, usually 180 days. The

magistrate judge herein recommended such a conditional

order, but the district court judge did not adopt that

recommendation because the law of Ohio, as it existed

when defendant committed the crimes herein, did not

allow imposition of the death penalty upon resentencing.

On that basis, the district court instead granted an

unconditional writ, vacating the death sentence.

However, as recognized by the district court judge in his

order, the matter of resentencing is for the courts of Ohio

to address and we leave resolution of the state question

to them.

For the foregoing reasons, the judgment of the district

court is affirmed in part as to the vacating of the death

sentence, reversed in part as to the grant of an

unconditional writ and remanded with instructions to

conditionally grant the writ unless the State of Ohio

elects to initiate resentencing proceedings within 180

days of the district court’s order.

Id. at 754. Thus, unlike in this case, in DePew the

retroactivity issue was raised and addressed in the first

instance by the district court.

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Significantly, even though the issue of whether DePew

could lawfully be resentenced to death was raised and

addressed, this Court’s remand order did not so much as

imply that the state court should consider the issue before

proceeding with the resentencing; rather, DePew’s case was

remanded “with instructions to conditionally grant the writ

unless the State of Ohio elects to initiate resentencing

proceedings within 180 days of the district court’s order.” Id.

Thus, since this Court in DePew did not suggest that the state

court could or should consider the retroactivity issue on

remand when the issue had been raised by the petitioner, we

should not do so in this case where the issue was not

previously raised. 

Of course, Petitioner is free to raise the retroactivity issue

before the state trial court, as he is free to raise any other

defense as to why he should not be subject to the death

penalty; however, where this issue was never raised by

Petitioner up until this point, this Court should 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 claim. 

In summary, because the Supplemental Order appears to be

issuing on an improper basis procedurally and is substantively

unnecessary, I respectfully dissent.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

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Clerk