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DEPEW v. ANDERSON

Nos. 00-3513, 00-3517.

311 F.3d 742 (2002)

Rhett Gilbert DEPEW, Petitioner-Appellee/Cross-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellant/Cross-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 20, 2002.

Attorney(s) appearing for the Case

David P. Williamson (briefed), Bieser, Greer & Landis, Dayton, OH, Gary W. Crim (argued and briefed), Dayton, OH, for Petitioner-Appellee/Cross-Appellant.

Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant/Cross-Appellee.

Before: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which GILMAN, J., joined. BATCHELDER, J. (754-760), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

This is an Ohio death penalty case in which the district court has issued a writ of habeas corpus because there was constitutional error in the sentencing phase of the trial. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d...

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