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SIMMONS v. KAPTURE

No. 03-2609.

516 F.3d 450 (2008)

Patrick Marvin SIMMONS, Petitioner-Appellant, v. Robert KAPTURE, Warden, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 15, 2008.

Attorney(s) appearing for the Case

ARGUED: E. Michael Rossman, Jones Day, Columbus, Ohio, for Appellant. Eric Restuccia, Assistant Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: E. Michael Rossman, Jones Day, Columbus, Ohio, for Appellant. Eric Restuccia, Assistant Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

ROGERS, J., delivered, the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 451-58), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

ROGERS, Circuit Judge.

The issue in this case is whether the rule of criminal procedure recently articulated by the Supreme Court in

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