ESPARZA v. MITCHELL

Nos. 00-4615, 01-3025.

310 F.3d 414 (2002)

Gregory ESPARZA, Petitioner-Appellee/Cross-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellant/Cross-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 5, 2002.


Attorney(s) appearing for the Case

Jeffry F. Kelleher (briefed), Cleveland, OH, Angela Wilson Miller (argued and briefed), Columbus, OH, for Petitioner-Appellee Cross-Appellant in 00-4615, 01-3025.

Paul L. Nelson (briefed), Federal Public Defenders Office, Western District of Michigan, Grand Rapids, MI, David M. Porter, Sacramento, CA, for Amicus Curiae in 00-4615, 01-3025.

Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant Cross-Appellee in 00-4615, 01-3025.

Before: MERRITT, SUHRHEINRICH, and DAUGHTREY, Circuit Judges.


OPINION

MERRITT, Circuit Judge.

This is a death penalty case from Ohio, tried by a jury, in which the District Court issued the writ of habeas corpus as to the sentencing phase of the case. The principal problem in the case arises from the fact that the indictment did not charge the aggravating circumstance that made the crime capital, nor did the trial court instruct the jury on the subject, nor did the jury return a verdict finding one or more of the aggravating...

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