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MITTS v. BAGLEY

No. 05-4420.

620 F.3d 650 (2010)

Harry MITTS, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 8, 2010.

Attorney(s) appearing for the Case

ARGUED: Jeffry F. Kelleher , Jeffry F. Kelleher & Associates, Cleveland, Ohio, for Appellant. Stephen E. Maher , Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Jeffry F. Kelleher , Jeffry F. Kelleher & Associates, Cleveland, Ohio, Robert A. Dixon , Cleveland, Ohio, for Appellant. Justin M. Lovett , Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

MERRITT, J., delivered the opinion of the court, in which MARTIN, J., joined. SILER, J. (pp. 664-65), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MERRITT, Circuit Judge.

This Ohio death penalty case turns on the validity of certain jury instructions that impose a mandatory death penalty that must be addressed first by the jury before consideration is given to life imprisonment. The Ohio "acquittal first" death penalty instructions in this case are the same Ohio instructions that were given in the recent case of Smith v. Spisak, 554 U.S. ___, 130 S.Ct. 676<...

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