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SMITH v. ANDERSON

Nos. 05-3241, 05-3243.

402 F.3d 718 (2005)

William H. SMITH, Petitioner-Appellee/Cross-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellant/Cross-Appellee.

United States Court of Appeals, Sixth Circuit.

Rehearing Denied March 7, 2005.

Attorney(s) appearing for the Case

ARGUED: Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, Laurence E. Komp, Baldwin, MO, for Petitioner-Appellee/Cross-Appellant. Henry G. Appel, Timothy D. Prichard, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant/Cross-Appellee. ON BRIEF: Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, Laurence E. Komp, Baldwin, MO, for Petitioner-Appellee/Cross-Appellant. Henry G. Appel, Timothy D. Prichard, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant/Cross-Appellee.

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

Rehearing En Banc Denied March 7, 2005.

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner William H. Smith, an Ohio death row inmate, is scheduled to be executed on March 8, 2005. On February 28, 2005, the district court issued an order staying the execution to permit Smith to pursue an action under Fed.R.Civ.P. 60(b)(6) regarding his claim of ineffective assistance of trial counsel in failing to present evidence of organic brain damage, and denied...

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