Richard M. Frazier v. STEPHEN J. HUFFMAN, Warden

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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
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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.

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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
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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

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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

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