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OTTE v. HOUK

No. 08-3247.

654 F.3d 594 (2011)

Gary OTTE, Petitioner-Appellant, v. Mark C. HOUK, Warden, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 12, 2011.

Rehearing and Rehearing En Banc Denied September 20, 2011.

Attorney(s) appearing for the Case

ARGUED: Joseph E. Wilhelm , Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Morgan Arnett Linn , Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Joseph E. Wilhelm , Federal Public Defender's Office, Cleveland, Ohio, Jennifer Ann Prillo , Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Sarah L. Leatherman , Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

BOGGS, J., delivered the opinion of the court, in which ROGERS, J., joined. COLE, J. (pp. 607-08), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

Gary Otte is an Ohio prisoner on death row. He appeals the district court's denial of his petition for a writ of habeas corpus, which was filed pursuant to 28 U.S.C. § 2254. A certificate of appealability was issued for three claims: 1) whether Otte's waiver of his right to a jury trial was voluntary, knowing, and intelligent; 2) whether Otte's counsel provided ineffective assistance at the penalty phase of his case; and...

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