                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0080p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 DEREK RENE EDMONDS,                                     ┐
                                 Petitioner-Appellant,   │
                                                         │
                                                          >     No. 17-5982
        v.                                               │
                                                         │
                                                         │
 AARON SMITH, Warden,                                    │
                                Respondent-Appellee.     │
                                                         ┘

                         Appeal from the United States District Court
                      for the Western District of Kentucky at Louisville.
                 No. 3:15-cv-00859—Charles R. Simpson, III, District Judge.

                                   Argued: March 20, 2019

                              Decided and Filed: April 26, 2019

              Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges

                                     _________________

                                          COUNSEL

ARGUED: Alex Potapov, JONES DAY, Washington, D.C., for Appellant. Thomas A. Van De
Rostyne, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky,
for Appellee. ON BRIEF: Alex Potapov, JONES DAY, Washington, D.C., for Appellant.
Thomas A. Van De Rostyne, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY,
Frankfort, Kentucky, for Appellee.
                                     _________________

                                           OPINION
                                     _________________

       ROGERS, Circuit Judge. Derek Edmonds and Tyreese Hall were together tried and
convicted in state court of brutally beating and sodomizing a homeless man to death. After their
 No. 17-5982                             Edmonds v. Smith                                    Page 2


joint state appeals were rejected, Hall brought a federal habeas action under 28 U.S.C. § 2254
challenging his conviction. The district court rejected Hall’s habeas petition on the merits, and
this court affirmed. Then Edmonds brought a § 2254 collateral attack of his own, arguing that
his conviction was similarly infected by constitutional error.          Rather than assess all of
Edmonds’s claims on the merits, the district court held that the law-of-the-case doctrine
precluded Edmonds from obtaining relief on four claims that it said were raised and rejected in
Hall’s collateral action. But the law-of-the-case doctrine applies only to later decisions in the
same case, and different habeas actions brought by different petitioners are different cases.

        In their joint state appeals and individual federal habeas actions, Hall and Edmonds
raised, among others, four overlapping claims. Edmonds’s versions of those claims are before us
on this appeal. First, Edmonds argues, as Hall did previously, that he was deprived of a fair trial
under the Due Process Clause because the trial court erroneously allowed prejudicial victim-
impact testimony by Kaye Thomas, a victim advocate who testified about her emotional hospital
visits to see the victim before he died.       Second, Edmonds argues that he was denied his
constitutional right to present a complete defense when the trial court instructed the jury not to
consider exculpatory hearsay statements of a non-testifying eyewitness, Larry Milligan, who
identified Hall as an attacker but not Edmonds. Hall, on the other hand, argued that he was
prejudiced by the trial court’s initial introduction of those statements, which were inculpatory as
to him. Third, Edmonds argues that the trial court violated his constitutional right to an impartial
jury by restricting voir dire in three ways: limiting each defendant to two minutes of questioning
per prospective juror, curtailing certain lines of questioning about mitigation (including race-
based mitigation), and prohibiting certain leading questions. Finally, Edmonds argues that the
trial court further violated his right to an impartial jury by refusing to strike two potential jurors
for cause. Hall raised versions of these last two claims in his own § 2254 action but did not
appeal their denial to this court.

        The defining feature of the law-of-the-case doctrine is that it applies only within the same
case. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988) (quoting
Arizona v. California, 460 U.S. 605, 618 (1983)); Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir.
2016); 18B C. Wright & A. Miller, Federal Practice and Procedure § 4478 (2d ed. Nov. 2018
 No. 17-5982                           Edmonds v. Smith                                   Page 3


update). A post-conviction habeas action is not a subsequent stage of the underlying criminal
proceedings; it is a separate civil case. See Pennsylvania v. Finley, 481 U.S 551, 556–57 (1987).
It follows that separate habeas actions brought by petitioners who were codefendants in the
underlying criminal proceedings are separate also—from the criminal proceedings and from each
other. Thus, the law-of-the-case doctrine does not apply across separate habeas actions brought
independently by petitioners who were codefendants in the underlying criminal proceedings.

       While the doctrine is a judicially created one, and so potentially open to modification or
extension, extending it here would unmoor the doctrine from its core purposes. As the doctrine
goes, “findings made at one stage in the litigation should not be reconsidered at subsequent
stages of that same litigation.” Burley, 834 F.3d at 618. The doctrine does not mark a limit on a
court’s authority—courts are free to revisit their own rulings before final judgment—but is
instead a recognition that for cases to reach resolution, issues cannot be argued and reargued
without end. See Messenger v. Anderson, 225 U.S. 436, 444 (1912). In other words, the
doctrine aims to “maintain consistency and avoid reconsideration of matters once decided during
the course of a single continuing lawsuit,” not to govern the effects that final decisions have on
other courts or cases. See 18B Wright & Miller § 4478. Other doctrines govern the effects that
final decisions have on later courts and cases to ensure consistency and order—doctrines such as
stare decisis, res judicata, and the mandate rule. The law-of-the-case doctrine does not need to
do that work too.

       More importantly, applying the law-of-the-case doctrine across separate habeas cases
would deprive the second petitioner of the opportunity to present his own arguments and would
therefore implicate due process concerns. Due process limits res judicata, for instance, to
preclude parties from contesting only matters that they have had a full and fair opportunity to
litigate. See Montana v. United States, 440 U.S. 147, 153–54 (1979). That means that one must
generally have been a party to a litigation to be bound by its judgment. As the Supreme Court
explained in Taylor v. Sturgell, 553 U.S. 880, 892–93 (2008),

       [a] person who was not a party to a suit generally has not had a “full and fair
       opportunity to litigate” the claims and issues settled in that suit. The application
       of claim and issue preclusion to nonparties thus runs up against the “deep-rooted
 No. 17-5982                                   Edmonds v. Smith                                           Page 4


        historic tradition that everyone should have his own day in court.” Richards v.
        Jefferson County, 517 U.S. 793, 798 (1996).

Nothing about the law-of-the-case doctrine suggests that it can apply across cases to bind new
parties, when generally not even res judicata—the doctrine actually charged to determine the
preclusive effects of judgments—can do that.

        The Fifth Circuit has similarly ruled that the law-of-the-case doctrine does not apply
between separate § 2255 motions by federal defendants who were tried together. See United
States v. Lawrence, 179 F.3d 343, 351 (5th Cir. 1999).1 As the Lawrence court put it:

        The conviction and its appeal constituted a discrete case. The subsequent post-
        conviction motions are distinct both from the initial proceeding, which became
        final with our affirmance of the convictions, and from each other. Thus, there is
        no law of the case that binds the instant motion to vacate, and the doctrine did not
        require the district court to reach the same result in considering the respective
        motions filed by Lawrence and Tolliver in separate proceedings.

Id. Although this court has not addressed this issue, in certain circumstances we have held that
the law-of-the-case doctrine does not apply even to a second post-conviction action by the same
petitioner. See Patterson v. Haskins, 470 F.3d 645, 660–61 (6th Cir. 2006). In Rosales-Garcia
v. Holland, 322 F.3d 386, 398 n.11 (6th Cir. 2003) (en banc), we also suggested as much in dicta.
If the doctrine does not apply across post-conviction actions by the same petitioner, it follows
that it should not apply across actions by different petitioners.

        In response to all of this, the State merely insists that because a codefendant’s appeal can
create law of the case for an ongoing criminal case, a once-codefendant’s habeas action must do
the same.      The district court similarly extrapolated from the doctrine’s application to a
codefendant’s appeal. But resolution of a codefendant’s appeal in an ongoing case satisfies the
core “same case” requirement of the doctrine, whereas resolution of a separate habeas action
does not. That the doctrine applies to codefendants in the same case therefore says nothing about
its application across separate cases.

        1In   a non-precedential memorandum opinion, the Ninth Circuit held that a § 2254 petitioner’s claim was
bound by the law of the case established in an earlier petition by his codefendant. See Pina v. Cambra, 171 F.
App’x 674, 675 (9th Cir. 2006). But there, the petitioner conceded (wrongly) that his case was controlled by the law
of the case established by his codefendant’s habeas action. See id. The court agreed with that concession without
citing a single case applying the doctrine in a similar habeas setting. Thus, Pina is not at all persuasive.
 No. 17-5982                            Edmonds v. Smith                                    Page 5


       Thus, the district court erred in denying four of Edmonds’s claims on law-of-the-case
grounds. That does not mean that Edmonds’s claims are necessarily winners, but rather that they
must be assessed on their merits. This court is not, however, in a position to make that
assessment on the current record, which does not include the record from the underlying criminal
proceedings. We therefore reverse the district court’s decision on the four claims that are before
us and remand for the district court to obtain the entire state court record and assess those claims
on the merits.

       The parties agreed at oral argument that, if there is a remand, Edmonds’s voir dire and
for-cause-strikes claims should be analyzed under AEDPA’s deferential review, 28 U.S.C.
§ 2254(d), and his claim about the exclusion of Milligan’s testimony should be analyzed de
novo. The parties do not agree which standard of review applies to Edmonds’s victim-impact-
testimony claim, so we leave that for the district court to determine in the first instance with the
benefit of the full record and adequate briefing.

       The judgment of the district court is reversed and remanded for proceedings consistent
with this opinion.
