Richard M. Frazier v. Stephen J. Huffman, Warden

348 F.3d 174, 2003 U.S. App. LEXIS 21968, 2003 WL 22433229

Opinions

SUPPLEMENTAL ORDER

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 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.