        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                   2      Frazier v. Huffman                          No. 01-3122
     ELECTRONIC CITATION: 2003 FED App. 0380P (6th Cir.)
                 File Name: 03a0380p.06                           still an open question under Ohio law. State v. Gross, 97
                                                                  Ohio St.3d 121, 776 N.E.2d 1061, 1114-16 (Ohio 2002)
                                                                  (Resnick, J., concurring in part and dissenting in part).
UNITED STATES COURT OF APPEALS
                                                                    Frazier’s right to argue this issue of state law in the Ohio
                FOR THE SIXTH CIRCUIT                             courts is not foreclosed by our opinion. To remove any doubt
                  _________________                               on this point, however, we amend our opinion by striking the
                                                                  concluding paragraph in its entirety and substituting the
 RICHARD M. FRAZIER,           X                                  following in lieu thereof:
         Petitioner-Appellant, -
                                -                                                      III. CONCLUSION
                                -        No. 01-3122
           v.                   -                                       For all of the reasons set forth above, we REVERSE
                                 >                                    in part the judgment of the district court, GRANT
                                ,                                     Frazier a conditional writ of habeas corpus that will
 STEPHEN J. HUFFMAN,            -
 Warden,                                                              result in the vacation of his death sentence unless the
                                -                                     state of Ohio commences a new penalty-phase trial
         Respondent-Appellee. -                                       against him within 180 days from the date that the
                                -                                     judgment in this matter becomes final, and REMAND
                               N                                      the case for further proceedings consistent herewith. If
                                                                      the State does elect to initiate such a proceeding, we
                  Filed: October 28, 2003                             presume that the state court will first have to determine
                                                                      whether § 2929.06 of the Ohio Revised Code is
 Before: BATCHELDER, CLAY, and GILMAN, Circuit                        retroactive. Only if the state court resolves the issue in
                   Judges.                                            the State’s favor would the prosecution be free to
                                                                      conduct a new penalty phase proceeding if it chooses to
             ___________________________                              do so.
              SUPPLEMENTAL ORDER                                     Judge Batchelder, while continuing to adhere to her dissent
             ___________________________                          in all respects, concurs in this Supplemental Order for the sole
                                                                  purpose of clarifying that Frazier’s right to challenge the
   RONALD LEE GILMAN, Circuit Judge. Following the                applicability of § 2929.06 of the Ohio Revised Code to his
issuance of this court's opinion, found at 343 F.3d 780 (6th      case is not foreclosed by the majority’s opinion.
Cir. 2003), Richard M. Frazier filed a petition to rehear. His
petition is based on the concern that the concluding paragraph      In light of the foregoing revision, we find no reason to have
of our opinion could be interpreted as foreclosing his right to   this case reheard. Frazier’s petition to rehear is therefore
argue in the state courts of Ohio that § 2929.06 of the Ohio      DENIED.
Revised Code, enacted in 1996, is not retroactive to his
offense, which occurred in 1990. We recognize that this is

                              1
No. 01-3122                          Frazier v. Huffman        3    4     Frazier v. Huffman                            No. 01-3122

                      _______________                               the Supplemental Order is of no legal import or guidance for
                                                                    the parties or members of the public, out of an abundance of
                         DISSENT                                    caution, I will proceed to address the substantive points of the
                      _______________                               Supplemental Order.

   CLAY, Circuit Judge, dissenting. I question the propriety           Although § 2929.06 of the Ohio Revised Code was enacted
of Judges Gilman and Batchelder utilizing the vehicle of a          in 1996, Petitioner never argued to the district court or to this
petition for rehearing to provide an advisory legal opinion         Court on appeal that this section applies retroactively so as to
with respect to an issue that was never raised or briefed by the    preclude him from being subjected to a second mitigation
parties below or on appeal when the parties fully had an            hearing upon remand. In fact, Petitioner specifically sought
opportunity to do so. Such is not the proper use of a petition      a new guilt phase trial as well as a new mitigation hearing
for rehearing. “A petition for rehearing is intended to bring       before the district court and argued on appeal that the district
to the attention of the panel claimed error of fact or law in the   court erred in failing to grant his application for the writ on
opinion.” 6 Cir. I.O.P. 40(a). More importantly, Judge              either basis. Now, after being provided the relief that he
Batchelder continues to abide by her previously filed               sought in the form of a new mitigation hearing, Petitioner
dissenting opinion in this matter. She has not relinquished         argues in a petition for rehearing that, because this Court’s
her dissent, either in full or in part, by joining the majority     remand order failed to consider his after-the-fact argument
opinion and has not concurred even partially in the majority        that § 2929.06 may retroactively preclude him from being
opinion. I therefore do not believe it is proper for Judge          subjected to a new mitigation hearing, his case should be
Batchelder to vote to grant the petition for rehearing by voting    reheard. The relief Petitioner actually seeks from this Court
to revise the majority opinion—in which she does not                for the first time by way of his petition for rehearing is an
join—by voting for the Supplemental Order. It is my                 adjudication to the effect that the purely state law issue
understanding that Judge Batchelder, by her dissent,                remains open in the Ohio courts as to whether § 2929.06
continues to dispute both the reasoning of the majority             applies retroactively. See State v. Gross, 776 N.E.2d 1061,
opinion and the relief afforded in the form of a new penalty        1114-16 (Ohio 2002) (Resnick, J., concurring in part and
phase trial. Although I have not found any Sixth Circuit            dissenting in part).
authority which directly addresses this situation, it certainly
seems contrary to our Court’s policies and procedures to think         Issues raised for the first time in a petition for rehearing are
that a judge can participate in redrafting an opinion that she      generally not considered. See United States v. Perkins, 994
does not join, or participate in determining the relief to be       F.2d 1184, 1191 (6th Cir. 1993) (finding that the Court will
afforded, even on a petition for rehearing, when she rejects        not consider issues which are raised for the first time on
the notion that there is any legal basis for the relief requested   appeal in a party’s reply brief); United States v. Cross, 308
by the petitioner. In other words, I do not see how a member        F.3d 308, 314 (3d Cir. 2002) (finding that raising an issue for
of the Court can dissent and participate in formulating the         the first time in a petition for rehearing en banc fails to
relief afforded by an opinion that he or she dissents from. Put     preserve the issue for subsequent review). Thus, this Court
another way, there is no legally cognizable majority vote for       should not consider Petitioner’s retroactivity issue at this
the Supplemental Order, notwithstanding Judge Gilman’s              time, whether by issuing a supplemental order or otherwise.
assertions to the contrary. As a result, the Supplemental           Furthermore, there is no reason to address the retroactivity
Order is of no force or effect. Notwithstanding my belief that      issue as a part of the remand order since there is nothing in
No. 01-3122                           Frazier v. Huffman        5    6    Frazier v. Huffman                           No. 01-3122

the original opinion’s remand order to prevent the state court         Significantly, even though the issue of whether DePew
from deciding to entertain, or not to entertain, the retroactivity   could lawfully be resentenced to death was raised and
issue.                                                               addressed, this Court’s remand order did not so much as
                                                                     imply that the state court should consider the issue before
  As to the § 2929.06 retroactivity issue, Petitioner’s case is      proceeding with the resentencing; rather, DePew’s case was
distinguishable from the petitioner’s case in DePew v.               remanded “with instructions to conditionally grant the writ
Anderson, 311 F.3d 742 (6th Cir. 2002). In DePew, the                unless the State of Ohio elects to initiate resentencing
retroactivity issue was raised and squarely addressed by the         proceedings within 180 days of the district court’s order.” Id.
district judge such that it was necessary for this Court to          Thus, since this Court in DePew did not suggest that the state
speak on it as well. Specifically, in the remand order in            court could or should consider the retroactivity issue on
DePew, we opined as follows:                                         remand when the issue had been raised by the petitioner, we
                                                                     should not do so in this case where the issue was not
     As a general rule, the relief given in a federal habeas         previously raised.
  case challenging a death sentence is a conditional order
  vacating the sentence unless the defendant is resentenced            Of course, Petitioner is free to raise the retroactivity issue
  within a set period of time, usually 180 days. The                 before the state trial court, as he is free to raise any other
  magistrate judge herein recommended such a conditional             defense as to why he should not be subject to the death
  order, but the district court judge did not adopt that             penalty; however, where this issue was never raised by
  recommendation because the law of Ohio, as it existed              Petitioner up until this point, this Court should not use its
  when defendant committed the crimes herein, did not                heavy hand to urge the state court to consider it now. Indeed,
  allow imposition of the death penalty upon resentencing.           the state court should not interpret the Supplemental Order as
  On that basis, the district court instead granted an               suggesting that it should or should not consider Petitioner’s
  unconditional writ, vacating the death sentence.                   retroactivity claim.
  However, as recognized by the district court judge in his
  order, the matter of resentencing is for the courts of Ohio           In summary, because the Supplemental Order appears to be
  to address and we leave resolution of the state question           issuing on an improper basis procedurally and is substantively
  to them.                                                           unnecessary, I respectfully dissent.
    For the foregoing reasons, the judgment of the district                          ENTERED BY ORDER OF THE COURT
  court is affirmed in part as to the vacating of the death
  sentence, reversed in part as to the grant of an
  unconditional writ and remanded with instructions to
  conditionally grant the writ unless the State of Ohio                                  /s/ Leonard Green
  elects to initiate resentencing proceedings within 180                             __________________________________
  days of the district court’s order.                                                         Clerk

Id. at 754. Thus, unlike in this case, in DePew the
retroactivity issue was raised and addressed in the first
instance by the district court.
