# Tony M. Powell v. Terry Collins, Warden > Court of Appeals for the Sixth Circuit · June 17, 2003 · 332 F.3d 376 URL: https://www.frixlaw.com/law-library/cases/9496127 ## Case - **Full name:** Tony M. POWELL, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** June 17, 2003 - **Citations:** 332 F.3d 376 - **Precedential status:** Published - **Opinion:** Dissent by Clay - **Judges:** Daughtrey, Clay, Gilman - **Cited by:** 124 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496127 ## How later opinions describe it (automated extraction) - holding in a pre-AEDPA case that a capital defense attorney has a duty to investigate “the circumstances of [his client’s] case and to explore all avenues relevant to the merits of the case and the penalty in the event of a conviction” - holding in a preAEDPA case that a capital defense attorney has a duty to investigate “the circumstances of [his client’s] case and to explore all avenues relevant to the merits of the case and the penalty in the event of a conviction” - finding prejudice in part because, “at one point in its sentencing deliberations, the jury informed the court that it was ‘at a stalemate’ and could not agree whether to impose a death sentence” - holding that trial counsel’s failure to construct the defendant’s social history through access to background records and interviews with family and friends constituted deficient performance - noting 13 several circuit courts have held that constitutional due process "... is not satisfied unless the 14 defendant is provided an independent psychiatrist-i.e., the appointment of a neutral court 15 16 psychiatrist, such as in the matter at hand, does not satisfy due pro… ## Opinion text CLAY, Circuit Judge, dissenting. I respectfully dissent from the issuance of the supplemental order in this matter. 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 does not apply 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 not apply retroactively, 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, 97 Ohio St.3d 121 , 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. Cf. 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); see 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 retroac-tivity issue as a part of the remand order since there is nothing in 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 re-sentenced 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 conditional *407 ly 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. Significantly, even though the issue of whether De Pew could lawfully be resen-tenced 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, where this Court in De-Pew 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496127. Public record. Not legal advice.