Hutton v. Mitchell
Decision Date | 12 October 2016 |
Docket Number | No. 13-3968,13-3968 |
Parties | Percy Hutton, Petitioner–Appellant, v. Betty Mitchell, Warden, Respondent–Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Michael J. Benza, Chagrin Falls, Ohio, for Appellant.
Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF: Michael J. Benza, Chagrin Falls, Ohio, Alan C. Rossman, Jillian S. Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Katherine E. Mullin, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
BEFORE: MERRITT, ROGERS, and DONALD, Circuit Judges.
, J., delivered the opinion of the court in which MERRITT, J., joined, and ROGERS, J., joined in part. MERRITT, J. (pp. 505–09), delivered a separate concurring opinion. ROGERS, J. (pp. 505–13), delivered a separate opinion dissenting in part.
OPINIONBERNICE BOUIE DONALD
, Circuit Judge.
Percy Hutton, an Ohio death row inmate, appeals the United States District Court for the Northern District of Ohio's denial of his 28 U.S.C. § 2254
habeas petition. Hutton was convicted and sentenced to death for murdering Derek “Ricky” Mitchell and attempting to kill Samuel Simmons, Jr. on September 16, 1985.
In his habeas petition, Hutton asserted thirteen grounds for relief. Of the thirteen claims, six were certified for appeal. One claim gives this Court the most pause, as it requires us to revisit Hoffner v. Bradshaw , 622 F.3d 487 (6th Cir. 2010)
, and again question whether a state court's independent review of a death sentence during sentencing can cure any omission in a jury instruction. For the reasons that follow, we REVERSE the district court's decision in part, CONDITIONALLY GRANT Hutton's habeas petition, and REMAND this case to the district court with instructions to order Hutton's release from custody unless the state grants a new sentencing hearing within 180 days from the date that this Court issues the mandate.
In the last state adjudication of Hutton's habeas petition claims, the Ohio Supreme Court made the following findings of fact as to what likely unfolded on the days the crimes for which Hutton was convicted were committed:
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