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August 25, 2011

Split Sixth Circuit panel reverses Ohio death sentence based on IAC at sentencing

As revealed via today's opinion in Foust v. Houk, No. 08-4100 (6th Cir. Aug. 25, 2011) (available here), yet another capital case has the judges of the Sixth Circuit in yet another disagreement over habeas review. Here is how the majority opinion in Faust (per Judge Moore) concludes:

Despite Foust’s gruesome crime, there is a reasonable probability that, had the three-judge panel heard the true horror of Foust’s childhood, at least one of the judges would not have sentenced Foust to death.  The Ohio Court of Appeals’s conclusion to the contrary was unreasonable, and the district court erred when it denied Foust’s petition.   On the issue of ineffective assistance of counsel, we REVERSE the judgment of the district court and GRANT a conditional writ of habeas corpus vacating Foust’s death sentence, unless the State of Ohio commences a new penalty-phase trial against Foust within 180 days from the date on which this judgment becomes final.

Here is how Chief Judge Batchelder's dissenting opinion in Faust begins:

This case involves heinous wrongdoing, both on the part of Foust and on the part of those who were charged with his care as a young child.  There is no doubt that Foust endured a truly horrific childhood. And I cannot disagree with the majority’s conclusion that his counsel performed deficiently for failing to conduct further investigation during the mitigation phase.  However, I do not agree with the majority that the Ohio Court of Appeals’ conclusion that Foust was not prejudiced as a result of his counsel’s performance was unreasonable.

August 25, 2011 at 10:58 AM | Permalink


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In the district and circuit courts, 2 judges have found the Ohio Court of Appeals holding in this case reasonable and 2 unreasonable. Sounds like fairminded jurists disagreeing.

Posted by: DaveP | Aug 26, 2011 4:14:29 PM

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