Earl Giles v. JAMES SCHOTTEN , Warden

*The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EARL GILES,
Petitioner-Appellant,
v.
J AMES SCHOTTEN , Warden,
Respondent-Appellee.
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N
No. 04-3708
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 95-00195—John M. Manos, District Judge.
Argued: September 16, 2005
Decided and Filed: June 2, 2006
Before: CLAY and GIBBONS, Circuit Judges; STEEH, District Judge.*
_________________
COUNSEL
ARGUED: William T. Doyle, Cleveland, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: William T. Doyle,
Cleveland, Ohio, for Appellant. J. Joseph Bodine, Jr., OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
GIBBONS, J., delivered the opinion of the court, in which STEEH, D. J., joined. CLAY,
J. (pp. 7-9), delivered a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. On May 17, 1993, Earl Giles was convicted on
one count of felonious sexual penetration in violation of Ohio Revised Code § 2907.12 and one
count of gross sexual imposition in violation of Ohio Revised Code § 2907.05. The conviction was
upheld by the state appellate courts. On January 26, 1995, Giles filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of
Ohio. The district court denied the petition. On appeal, the Sixth Circuit vacated the district court’s
judgment and remanded the case for further factual findings and, if necessary, an evidentiary
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hearing. On remand, the district court again denied Giles’s habeas petition but granted a certificate
of appealability on the issue of whether the trial court violated Giles’s rights by denying him an
additional independent medical examination of the children who were the alleged victims. Giles
now appeals. We affirm the denial of the petition.
I.
In 1990, Giles separated from his wife, Virginia Beard. From April until September 1992,
Beard was involved in outpatient treatment for alcohol and drug abuse. During this time, Giles acted
as a babysitter for the two children Giles and Beard had together, Shannon and Ashley. At the time,
Giles was living with Patricia Morgan, his girlfriend.
In September 1992, Ashley told her mother that her vagina was hurting her and that her
father had pulled down her panties and bit her between the legs. Beard took Ashley to the
emergency room at University Hospital, but she refused to allow herself to be examined by a
physician. Some time later when Beard was preparing to take Ashley back to the hospital, Shannon
told her mother that she had something to tell her mother but did not want to tell her until they
reached the hospital. At the hospital, Beard heard Shannon say that her father had put his thing in
her.
On November 15, 1992, Dr. Amy Richardson, a board-certified pediatrician and an Assistant
Professor of Pediatrics and director of the Child Protection Program at Case Western Reserve
University, Rainbow Babies and Children’s Hospital, examined Ashley and Shannon. Dr.
Richardson’s examination revealed no evidence of sexual abuse in Ashley. However, Dr.
Richardson’s examination of Shannon revealed an attenuated hymen, a condition consistent with
repeated penetrating trauma.
On December 10, 2002, Ashley and Shannon were interviewed by Brenda Joyce Wilson, a
sexual abuse social worker employed by the Department of Human Services and unaffiliated with
either the defendant or the prosecution. Sandra Spinello, a social worker employed by the Cuyahoga
County Division of Human and Family Services, and Marvin Walton, a police officer in the
Cleveland Police Department, observed the interview through a two-way mirror. At trial, Wilson
testified for the prosecution that Shannon described abuse inflicted on her by her father using
anatomically correct dolls. Walton corroborated Wilson’s testimony on this point. Spinello
testified at trial that Shannon was not very verbal during the interview and that Wilson did the
majority of the talking. Spinello also stated, however, that she, unlike Wilson and Walton, did not
have notes from the interview session.
On January 27, 1993, a Cuyahoga County grand jury returned a six-count indictment against
Giles for sexually abusing Ashley and Shannon. Counts one and two charged Giles with the rape
of Shannon Beard in violation of Ohio Revised Code § 2907.02 with a specification of force, count
three charged Giles with felonious sexual penetration of Shannon Beard in violation of Ohio Revised
Code § 2907.12 with a specification of force, count four charged Giles with gross sexual imposition
of Shannon Beard in violation of Ohio Revised Code § 2907.05, count five charged Giles with the
rape of Ashley Beard in violation of Ohio Revised Code § 2907.02 with a specification of force, and
count six charged Giles with gross sexual imposition of Ashley Beard in violation of Ohio Revised
Code § 2907.05.
On April 21, 1993, Giles entered a plea of not guilty on all of the charges. On May 4, 2003,
Giles filed a motion to compel independent psychological and medical examinations of Shannon and
Ashley Beard. Following a May 12, 1993, hearing, the trial court denied Giles’s motion, stating:
The Court can’t order psychological evaluation on every witness. In this type of trial
the trauma has already been perpetrated. If these two young girls are to be believed,

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assuming that for a moment, and then bringing them down to Court and they are
going to have to be questioned by the Judge for competency to testify, then they’re
going to be subjected to direct and cross-examination here, if they are permitted to
testify. And on top of that you want a psychiatric examination? How much do you
have to put these two little girls through?
When the defense counsel pointed out to the court in response that Giles was facing four life
sentences, the trial court stated:
I think your request here goes beyond whatever obligation you may have to your
client in this instance. Whether they were psychologically sound or not would not
excuse the acts charged in this indictment if they did occur. It is just that simple. In
fact, if they were found to be psychiatrically unsound, it would make the crime even
more heinous if the crime did occur.
The trial court then conducted a voir dire examination to determine the competency of the children.
The trial court found Shannon to be competent but Ashley to be incompetent.
The jury trial commenced on May 12, 1993. At the close of the prosecution’s case, the
defense made a motion pursuant to Ohio Criminal Rule 29 for a judgment of acquittal. The trial
court granted the motion with regard to both counts relating to Ashley, but denied the motion with
regard to all charges relating to Shannon. On May 17, 1993, the jury convicted Giles of one count
of felonious sexual penetration in violation of Ohio Revised Code § 2907.12 and one count of gross
sexual imposition in violation of Ohio Revised Code § 2907.05. Giles was sentenced to life
imprisonment on the felonious sexual penetration charge and two years imprisonment to run
concurrently on the gross sexual imposition charge. Giles filed a timely appeal, arguing as one
ground on appeal that his constitutional rights had been violated when he was denied the opportunity
to conduct independent physical and psychological examinations. The Ohio Court of Appeals
affirmed his conviction on July 14, 1993. State v. Giles, No. 65731, 1994 WL 372330 (Ohio Ct.
App. July 14, 1994). Giles filed a timely notice of appeal to the Ohio Supreme Court. The Ohio
Supreme Court denied Giles leave to appeal, concluding that Giles’ appeal did not involve any
substantial constitutional question. State v. Giles, 642 N.E.2d 386 (Ohio 1994).
Giles filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 26,
1995 in the United States District Court for the Northern District of Ohio, claiming that the state
court denied him the right to present evidence and therefore present a defense to the charges against
him. Giles v. Schotten, 182 F.3d 917, 1999 WL 519234, at * 3 (6th Cir. July 16, 1999). A
magistrate judge recommended, without holding an evidentiary hearing, that the district court deny
the petition. Id. On January 10, 1997, the district court denied Giles’ habeas petition. Id. Giles
filed a timely notice of appeal to the Sixth Circuit on February 3, 1997, and also moved the court
for a certificate of appealability on March 6, 1997. Id. The Sixth Circuit treated the motion as a
motion seeking a certificate of probable cause and granted the request on March 3, 1998. A panel
of this court found that the district court did not properly analyze the state court facts regarding the
reason Giles sought independent medical and psychological evaluations of the children because the
court held that the district court improperly applied the § 2254(d) presumption of correctness to the
state court findings. It held that it could not determine whether the state court had properly applied
Ohio law to Giles’s claim. Id. at * 6. The panel therefore vacated the district court opinion and
remanded the case to the district court for the court to make specific findings or to conduct an
evidentiary hearing on the factual issues involved. Id.
Once the case was remanded, the Warden moved for summary judgment. The Warden
argued that regardless of whether Giles sought the examinations for a proper purpose, Giles was
nonetheless not entitled to them as a matter of constitutional law. In the district court’s view, this

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1The district court’s grant of a certificate of appealability was limited to the request for a medical examination.
As this court noted in its 1999 opinion, the certificate of appealability is properly treated as a certificate of probable cause
because the petition was filed pre-AEDPA. Given the more general nature of a certificate of probable cause, it seems
argument rendered moot the panel’s directive to the district court to make specific factual findings
or to hold an evidentiary hearing in order to discern the reason that Giles sought the examinations.
The district court then examined the merits of the legal issue of whether Giles’s constitutional rights
were violated by the trial court’s denial of his request to conduct the independent medical and
psychological examinations of the children. The district court determined that the denial of the
request did not render the trial fundamentally unfair, and therefore, Giles’s constitutional rights had
not been violated. The district court granted the motion for summary judgment but granted a
certificate of appealability on the issue of whether the trial court violated Giles’s constitutional
rights by denying him an additional independent medical examination of the victims. On May 20,
2004, Giles filed a timely notice of appeal.
II.
At the outset, addressing Judge Clay’s dissenting opinion, the district court of course had an
obligation to follow this court’s instructions in our 1999 opinion. But when a case is remanded,
events often occur that were not considered at all by the appellate court or addressed by the remand
instructions. To name just a few examples of such events, parties die; claims become moot;
amended pleadings create new issues and transform old issues. And, as happened here, parties
change litigation strategy and bring before the court new options for resolution of the case. When
the district court deals with such events, it does not necessarily act in violation of the court of
appeals’ instructions or exceed the scope of the remand.
Here, when this court remanded the case, it asked the district court to make its own findings
as to the purpose for which Giles sought the examinations of the girls, with or without an evidentiary
hearing. Giles v. Schotten, 182 F.3d 917, at *6. The warden then pursued an argument not
addressed by the court of appeals’ majority opinion and moved for summary judgment. He argued
that, even if Giles sought the examinations for a permissible purpose (essentially conceding for
purposes of the motion that the district court’s factual findings on remand would be adverse to his
position), the state trial court’s denial of the request for independent medical and psychological
examinations did not render the trial fundamentally unfair. Thus, the warden argued, the denial did
not violate Giles’s constitutional rights. The trial court agreed. In doing so, it did not violate this
court’s instructions or exceed the scope of the remand; it simply proceeded to the ultimate issue in
the case, as the warden’s position permitted it to do. And in doing so, it implicitly satisfied the
remand order’s requirement for fact finding by assuming that defendant sought the examinations for
a permissible purpose. The district court carefully explained all of this in its opinion on remand and
specifically noted that resolving the issue of why Giles requested the examinations was no longer
necessary and that State v. Boston, 545 N.E.2d 1220, 1240 (Ohio 1989) (forbidding expert evidence
on “the veracity of the statements of a child declarant” but permitting expert evidence as to the
occurrence of sexual abuse), and its progeny were therefore inapplicable to the analysis.
III.
Giles filed his petition prior to the effective date of the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under pre-AEDPA analysis we review a district court’s refusal to grant a
writ of habeas corpus de novo. Hicks v. Collins, 384 F.3d 204, 210 (6th Cir. 2004).
On appeal, Giles argues that the district court erred in finding that the trial court’s decision
to deny Giles’ motion to require both Ashley and Shannon to submit to psychological and medical
examinations did not deprive Giles of a fundamentally fair trial.1 Giles claims that he was denied

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appropriate to discuss the request for a psychological examination as well. The analysis for both types of examinations
is the same.
a fundamentally fair trial and was deprived of his right to confront witnesses and his due process
rights because of the trial court’s refusal to compel the independent examinations. The trial court’s
decision not to require the examinations is an evidentiary ruling based on state law. Therefore,
federal habeas review of this issue is “extremely limited.” Jordan v. Hurley, 397 F.3d 360, 362 (6th
Cir. 2005). “State court evidentiary rulings do not rise to the level of due process violations unless
they ‘offend . . . some principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.’” Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001) (quoting
Patterson v. New York, 432 U.S. 197, 202 (1977)). Thus, the panel may only grant habeas relief on
this issue if the trial court’s evidentiary ruling was so egregious that it resulted in a denial of
fundamental fairness. Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004).
A defendant’s right to due process in the criminal context is essentially the right to defend
himself against the charges the state has brought against him. As a result, the right to confront and
cross-examine witnesses and to call one’s own witnesses is fundamental to a defendant’s due
process rights. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). “This right is not absolute,
however, and must accommodate the state’s ‘compelling’ interest in ‘the protection of minor victims
of sex crimes from further trauma and embarrassment.’” United States v. Weekley, 130 F.3d 747,
753 (6th Cir.1997) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)).
The Supreme Court has held that in child sex abuse cases, “a State’s interest in the physical and
psychological well-being of child abuse victims may be sufficiently important to outweigh, at least
in some cases, a defendant’s right to face his or her accusers in court.” Maryland v. Craig, 497 U.S.
836, 853 (1990). A defendant’s right to present evidence may be subject to restrictions, provided
that the restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve.”
Rock v. Arkansas, 483 U.S. 44, 55-56 (1987); see also United States v. Scheffer, 523 U.S. 303, 308
(1998). “[T]he exclusion of evidence [is] unconstitutionally arbitrary or disproportionate only where
it has infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308 (citations
omitted). As the district court noted, the Sixth Circuit has not previously ruled on the due process
implications, if any, of the denial of a defendant’s request for independent medical or psychological
examinations of his accusers.
In this case, the medical examination was performed by Dr. Richardson, who testified that
she had examined over one thousand children for alleged sexual abuse and described in detail the
methods used to determine whether a child’s body shows signs of having been subject to sexual
abuse. As previously noted, Dr. Richardson’s examination of the children revealed that while
Ashley showed no signs of abuse, Shannon showed signs consistent with repeated sexual abuse.
The psychological examination was conducted by Wilson, who testified that she had worked
with the Department of Human Services for over nineteen years and had worked specifically with
the sex abuse department for over eight years. In that capacity, Wilson testified that she has
conducted hundreds of interviews with small children regarding sexual abuse allegations. Wilson
testified that Shannon described instances of abuse to her during the interview but that Ashley did
not provide much information about abuse. Spinello and Walton observed the interview through a
two-way mirror and corroborated Wilson’s testimony.
Both Richardson and Wilson were well-qualified witnesses, testified at trial, and were
subject to cross-examination. Furthermore, Wilson’s interview with Ashley and Shannon was
observed by two other individuals, both of whom testified and were cross-examined regarding their
observations. As a result, there is no clear reason that independent medical or psychological
examinations were necessary in this case. See United States v. Rouse, 111 F.3d 561, 566-67 (8th

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No. 04-3708 Giles v. Schotten Page 6
Cir. 1997) (affirming trial court’s denial of defendant’s request for further medical and
psychological interviews of child witnesses where individuals conducting interviews were well-
qualified and were subject to cross-examination).
An examination of the record in this case reveals that the trial court denied Giles’s request
for further examinations of the children out of concern for the welfare of the children. As noted
above, the Supreme Court has held that a State’s interest in “safeguarding the physical and
psychological well-being of a minor [] is a compelling one.” Globe Newspaper Co., 457 U.S. at
607. Giles cites no authority indicating precisely why he believes that the trial court’s ruling on this
point denied him a fundamentally fair trial. Because Giles cannot show that the trial court’s ruling
on this evidentiary issue was so egregious that it resulted in a denial of fundamental fairness, Giles
is not entitled to habeas relief.
Although Giles cites no legal authority directly supporting his claim that the ruling on the
evidentiary issue violated his due process rights, he makes two arguments purportedly based on the
factual record. First, he argues that Spinello’s testimony was inconsistent with that of Wilson and
that this inconsistency demonstrates the need for a second examination. The record, however,
reveals no such inconsistency. Spinello observed Wilson conducting the interview with the children.
She had very little recollection of what the conversation was between Wilson and the children,
although she did indicate that Wilson did most of the talking and the children gave mostly “yes” and
“no” answers. Her lack of memory does not create an inconsistency with Wilson’s more specific
testimony and in no way casts doubt on the reliability of the results of Wilson’s examination.
Second, Giles argues that the State obtained an unfair advantage by having expert testimony
available to it. This argument overlooks the fact that the expert examinations were not done as a part
of the State’s investigation or trial preparation. Neither expert was affiliated with the prosecution;
their services were rendered as a result of the girls’ visits to a hospital emergency room, where their
mother had taken them.
Finally, we note that the record fails to reflect any harm arising from the denial of Giles’s
request that could amount to a deprivation of fundamental fairness. During the trial Giles’s counsel
consulted with an expert who had reviewed Dr. Richardson’s report and who was available to testify
and also to assist counsel in his cross-examination of Dr. Richardson. Yet, the record indicates no
issue raised about Dr. Richardson’s methodology or conclusions or any explanation as to how
another examination might have yielded a different result. In the district court Giles had an
opportunity to present evidence in response to the summary judgment motions but did not do so. We
are left simply with a speculative assertion that a second examination might have helped in some
unidentified way.
IV.
Because Giles has not shown that the state trial court’s ruling on Giles’s request for
independent examinations resulted in a denial of fundamental fairness, we affirm the district court’s
denial of the petition.

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_________________
DISSENT
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CLAY, Circuit Judge, dissenting. I cannot agree with the majority’s decision to affirm the
order of the district court. Because the district court failed to abide by this Court’s previous remand
instructions, this Court should again remand this case to the district court so that it may follow those
previous remand instructions.
As an initial matter, because Petitioner filed his habeas petition before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the pre-AEDPA standard of
review applies. As a result, on federal habeas review, “the findings of a state court generally ‘shall
be presumed to be correct.’” Giles v. Schotten, No. 97-3218, 1999 WL 519234, at *4 (6th Cir. Jul.
16, 1999) (unpublished decision) (quoting 28 U.S.C. § 2254(d) (1994)). This presumption applies
to the factual findings of state trial and appellate courts. Id. (citing Sumner v. Mata, 449 U.S. 539,
545-46 (1981)). This presumption, however, is not tantamount to blind acceptance on the part of
the federal courts; “the district court should not presume correct a particular factual finding if the
petitioner establishes or it otherwise appears from the record that the record as a whole does not
fairly support the State’s factual determination . . . .” Id. (citing 28 U.S.C. § 2254(d)(8) and
McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir. 1987)). Thus, the federal courts are required
to “‘examine the findings of the state judge to determine if they are adequate to support the
presumption of correctness under § 2254(d).’” Id. (quoting Fowler v. Jago, 683 F.2d 983, 987-89
(6th Cir. 1982)). Moreover, state court conclusions as to mixed questions of law and fact or pure
questions of law are not entitled to the presumption of correctness under § 2254(d). Id. at *5
(quoting Cain v. Smith, 686 F.2d 374, 379-80 (6th Cir. 1982)).
The only issues that this Court should address in connection with this appeal are two
unresolved errors of the district court. The district court committed the first of these errors in 1997,
when it initially failed to properly analyze Petitioner’s claim for habeas relief. Id. at *3. At that
time, Petitioner argued that the state trial court had violated his due process right to present a defense
when it refused his request to conduct independent medical and psychological examinations of the
alleged victims. Id. at *4. The district court presumed to be correct the factual finding of the state
appellate court that Petitioner’s only purpose in seeking these examinations was “to challenge the
veracity of [the alleged victim’s] trial testimony inculpating [Petitioner].” Id. (second alteration in
the original) (internal quotation marks and citation omitted). The district court then deferred to the
legal conclusion of the state appellate court that, under State v. Boston, 545 N.E.2d 1220 (Ohio
1989), an expert may not testify as to the veracity of a child witness’ testimony, so that the state trial
court properly disallowed Petitioner’s requested examinations. Id.
This Court vacated the judgment of the district court on two grounds. First, the district court
erred when it presumed the state appellate court’s factual finding to be correct, because the factual
finding was not supported by the record. Id. at *5. The state appellate court found, and the district
court presumed, that Petitioner’s sole purpose in seeking the examinations was to challenge the
veracity of the alleged victim’s testimony; however, “there [was] ample evidence in the record
showing Petitioner sought the examinations to collect independent evidence to support his theory
that the girls were not abused, and little evidence to fairly support the finding that Petitioner sought
the examinations only to challenge their credibility.” Id. This evidence included: (1) the fact that
Petitioner sought a medical examination of the alleged victims, which could be legally irrelevant in
attacking the veracity of the alleged victim’s testimony; (2) the fact that Petitioner’s counsel
specifically stated that the purpose of the examinations was to obtain independent evidence, arguing
“[a]ll we have is what the State will produce. We have no access other than that and that is what we
are asking for”; and (3) the fact that when rebutting the findings of the prosecution’s medical expert,

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Petitioner’s counsel again proclaimed Petitioner’s right to have an independent medical examination
of the alleged victims. Id. (alteration in the original).
Second, the district court erred when it deferred to the erroneous legal conclusion of the state
appellate court that Boston prevented an expert from testifying as to the veracity of a child witness’
testimony. In State v. Stowers, the Ohio Supreme Court explained that Boston only “excludes expert
testimony offering an opinion as to the truth of a child’s statements (e.g., the child does or does not
appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular
person).” 690 N.E.2d 881, 884 (Ohio 1998). Boston “does not proscribe testimony which is
additional support for the truth of the facts testified to by the child, or which assists the fact finder
in assessing the child’s veracity.” Id. (emphasis removed). Thus, even if Petitioner’s purpose in
seeking the examinations was to find evidence that would assist the jury in determining whether the
child was telling the truth, this purpose would be valid under Boston, so long as an expert did not
testify as to the veracity of the child’s testimony.
Because the district court failed to examine the record to determine whether it supported the
state appellate court’s factual finding, and because the district court failed to examine Ohio case law
with respect to Boston, this Court ruled in 1999 that the district court erred when it failed to properly
analyze Petitioner’s habeas application. In order to correct this error, the Court
vacate[d] the judgment below and remand[ed] to the district court to make specific
findings or to conduct an evidentiary hearing on the relevant factual issues in this
case, and, if ultimately appropriate, to address the legal issue of whether the State
denied Petitioner his constitutional right to present a defense in denying him the
opportunity to obtain physical and psychological examinations of the witnesses
against him.
Giles, 1999 WL 519234, at *6.
Instead of following the unambiguous instructions of this Court, the district court
compounded its initial error by explicitly deciding not to make any findings or to conduct an
evidentiary hearing on the relevant factual issues to address the legal issue of whether Petitioner was
denied his constitutional right to present a defense, in unmistakable disregard of this Court’s
instructions. Moreover, not only did the district court ignore our instructions, but it also went
beyond the scope of this Court’s instructions by proceeding to entertain a summary judgment motion
against Petitioner. This open disregard of this Court’s instructions is not only baffling, it is a direct
violation of the mandate rule, which “‘compels compliance on remand with the dictates of the
superior court.’” United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003) (quoting United States
v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)). The mandate rule also states that “‘a district court is
bound to the scope of the remand issued by the court of appeals.’” Id. (quoting United States v.
Campbell, 168 F.3d 263, 265 (6th Cir. 1999)). In short, the district court’s error in its treatment of
this case is two-fold: first, the district court erred when it improperly analyzed Petitioner’s habeas
application; and second, the district court erred when, on remand, it did not resolve the initial error
according to the directive of this court.
The majority opinion sets forth the novel and unusual position that a district court can simply
ignore remand instructions from the Court of Appeals if, in the district court’s opinion, the district
court believes that it is confronted with changed circumstances. The practical import of
implementing the majority’s views is to encourage the few district judges who may on occasion wish
to circumvent the remand instructions of the Court of Appeals. In the instant case, contrary to the
majority’s contention, there were no changed circumstances which could have justified the district
court’s failure to follow the remand instructions from the Court of Appeals. Certainly, no such
change in circumstances resulted from the warden’s filing of a motion for summary judgment

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following remand. The district judge should have simply followed the remand instructions and
deferred consideration of any dispositive motions until the district court had complied with the
instructions it received from the Court of Appeals.
The examples the majority lists with respect to changed circumstances that allow the district
court to stray from remand instructions are highly distinguishable. If, for example, a party dies,
there is the possibility that a district court has no jurisdiction because there is no case or controversy.
Likewise, if a claim becomes moot, a district court cannot exercise jurisdiction over the claim
because there is no case or controversy. And when a party amends its pleading, then by nature that
alters the case or controversy before the district court. There was simply no such change in the
instant case; the warden merely filed a motion for summary judgment.
The principal difficulty with the majority’s opinion is that its contention that the
examinations were not necessary reveals the majority’s disagreement with the remand instructions
of the prior Court of Appeals panel which considered the appeal of this case in 1999. By asserting
that those remand instructions were inappropriate and signaling its disagreement with the prior
panel, the majority for all practical purposes is advocating that our panel sit as a reviewing court
over the prior panel’s decision. By doing so, not only is it violating the rule that no panel of our
Court can overrule a prior panel, see LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097,
1105 n.2 (6th Cir. 1995), but it is also usurping the role of the en banc Court. Compliance with the
prior remand instructions is therefore required out of respect for the prior panel’s decision and the
rules of this Circuit. Moreover, such compliance would not be difficult to achieve; after following
the remand instructions from the 1999 appeal, the district court could proceed with the litigation as
it normally would. Because the district court completely disregarded the instructions of our prior
opinion, I would simply remand the case to the district court so that it may conduct proceedings
consistent with that prior opinion.
The majority’s highly questionable views regarding the obligation of district courts to follow
remand instructions, if they become widely accepted, could have the untoward result of encouraging
some obstinate district courts to search for creative ways to avoid complying with remand
instructions with which they disagree; and could also have the untoward result of encouraging
parties to engage in “judge shopping” or “panel shopping” by encouraging parties to take multiple
appeals until they find a Court of Appeals panel which will release them from the remand
requirements of a prior panel. It is not hyperbole to state that the implementation of the majority’s
views, in addition to being contrary to the policy and procedures of the federal courts, could
ultimately jeopardize the ability of the superior courts to supervise the lower courts in the federal
system.
I therefore respectfully dissent.

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