                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0654n.06

                                           No. 13-3968                                 FILED
                                                                                 Nov 22, 2017
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

PERCY HUTTON,                                            )
                                                         )
       Petitioner-Appellant,                             )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE
CHARLOTTE JENKINS, Warden                                )      NORTHERN DISTRICT OF
                                                         )      OHIO
       Respondent-Appellee.                              )
                                                         )



BEFORE:        MERRITT, ROGERS, and DONALD, Circuit Judges.

       PER CURIAM. This death-penalty case comes back to our court on remand after the

Supreme Court’s decision in Jenkins v. Hutton, 137 S. Ct. 1769 (2017). There the Court

reversed this panel’s conditional grant of Hutton’s habeas petition, holding that we improperly

applied the fundamental-miscarriage-of-justice exception to procedural default when we granted

relief on Hutton’s jury-instruction claim. See id. at 1771–73. Because that exception does not

apply and because, for the reasons given in our previous opinion, Hutton has not otherwise

shown a valid basis for excusing the procedural default, Hutton v. Mitchell, 839 F.3d 486, 500–

01 (2016), the district court properly denied his jury-instruction claim as procedurally defaulted.

With respect to Hutton’s other claims of error, we reject them for the reasons given in our prior

opinion. See id. at 500–05. We therefore affirm the judgment of the district court denying

Hutton’s petition for habeas corpus.
Case No. 13-3968, Hutton v. Percy


       MERRITT, Circuit Judge, dissenting. This death-penalty case is now back before us

after the Supreme Court reversed our decision to conditionally grant habeas relief unless Hutton

received a new sentencing hearing. Jenkins v. Hutton, 137 S. Ct. 1769 (2017), reh’g denied,

2017 WL 3642151 (Aug. 25, 2017). There is no dispute that Hutton’s jury was never instructed

on what “aggravating” factors it could consider in deciding between life and death for Hutton.

The result was a jury with “unfettered discretion” to impose a death sentence in violation of the

Eighth Amendment. Gregg v. Georgia, 428 U.S. 153 (1976); see also Furman v. Georgia, 408

U.S. 238 (1972). In its opinion, the Supreme Court did not rule on, or even mention, the issue

raised in my separate concurrence in our 2016 opinion regarding whether the issue concerning

the lack of a jury instruction on aggravators was procedurally defaulted. Because the Supreme

Court did not address this issue, I continue to believe, for the reasons set forth in my 2016

separate opinion, that the three Ohio Supreme Court Justices were correct to reach the conclusion

that the lack of a proper jury instruction violated Gregg. Hutton v. Mitchell, 839 F.3d 486, 505

(6th Cir. 2016) (Merritt, J., concurring). I continue to adhere to my original position that there

was no basis for our holding that the issue had been procedurally defaulted.




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