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SMITH v. MITCHELL

No. 00-4030.

348 F.3d 177 (2003)

William H. SMITH, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 28, 2003.

Petition for Rehearing Denied: February 6, 2004.

Attorney(s) appearing for the Case

ARGUED: Laurence E. Komp, (argued and briefed), appeal. Baldwin, MO, H. Louis Sirkin, Laura A. Abrams, Jennifer M. Kinsley (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, Missouri, for Appellant.

Henry G. Appel, (argued and briefed), Charles L. Wille (briefed), ATTORNEY GENERAL'S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee.

ON BRIEF: Laurence E. Komp, Baldwin, Missouri, H. Louis Sirkin, Laura A. Abrams, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. Henry G. Appel, Charles L. Wille, ATTORNEY GENERAL'S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee.

Before: SUHRHEINRICH, BATCHELDER, and COLE, Circuit Judges.

Petition for Rehearing Denied En Banc: February 6, 2004.

Pursuant to Sixth Circuit Rule 206

SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J., joined. COLE, J. (pp. 215-218), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SUHRHEINRICH, Circuit Judge.

In April 1988, a unanimous three-judge panel of the Court of Common Pleas, Hamilton County, sentenced William H. Smith ("Smith...

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