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FAUTENBERRY v. MITCHELL

No. 09-3819.

572 F.3d 267 (2009)

John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 10, 2009.

Attorney(s) appearing for the Case

ON BRIEF: Dennis Lyle Sipe, Buell and Sipe Co., L.P.A., Marietta, Ohio, Tyson Fleming, Randall L. Porter, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Justin M. Lovett, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 271-72), delivered a separate opinion concurring in the judgment.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

John Fautenberry is scheduled for execution by the state of Ohio on July 14, 2009. He appeals the district court's denial of his motion under 18 U.S.C. § 3599(f) for funds to hire a neuropsychologist to assist in the preparation of his state clemency petition. Because the district court did not abuse its discretion in holding that such expert assistance is not reasonably...

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