                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0403p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                             Petitioner-Appellant, -
 ERIC SCOTT PATTERSON,
                                                      -
                                                      -
                                                      -
                                                          No. 04-3280
          v.
                                                      ,
                                                       >
 THOMAS B. HASKINS, Warden,                           -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                 No. 99-00527—Edmund A. Sargus, Jr., District Judge.
                                             Argued: May 10, 2006
                                   Decided and Filed: October 31, 2006
              Before: MOORE and GILMAN, Circuit Judges; ROSEN, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Dennis C. Belli, Columbus, Ohio, for Appellant. Bruce D. Horrigan, ASSISTANT
ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Cleveland, Ohio, for
Appellee. ON BRIEF: Dennis C. Belli, Columbus, Ohio, for Appellant. Bruce D. Horrigan,
ASSISTANT ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Cleveland,
Ohio, for Appellee.
         GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.
J. (pp. 20-25), delivered a separate opinion concurring in part and concurring in the judgment.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. In 2003, this court granted Eric Scott Patterson
a conditional writ of habeas corpus on the ground that the state trial court had omitted from its jury
instructions a key element in defining the offense of involuntary manslaughter. Patterson v.
Haskins, 316 F.3d 596, 599-602 (6th Cir. 2003) (Patterson I). After Patterson’s retrial ended in a
hung jury, the state announced its intention to try him for a third time. Patterson then sought to
avoid a third trial—one at which the state has said it intends to introduce additional evidence—by

         *
          The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                          1
No. 04-3280           Patterson v. Haskins                                                      Page 2


filing a motion in the district court styled a “Motion to Invoke Continuing Jurisdiction for an Order
Granting Petitioner’s Unconditional Release and for a Stay of State Court Proceedings.” The district
court denied the motion, but granted a certificate of appealability (COA) regarding the propriety of
its decision. Because we find no error in the district court’s denial of Patterson’s motion, and
because we reluctantly conclude that no other avenue of federal relief is available to Patterson at this
stage, we AFFIRM the judgment of the district court.
                                        I. BACKGROUND
        Patterson was convicted of involuntary manslaughter based on child endangering in July of
1997. He was sentenced to a term of between 10 and 25 years in prison. His wife Lisa was
convicted of misdemeanor child endangering and received a sentence of six months in prison.
Before the Ohio Court of Appeals, Patterson argued that the trial court had erred in excluding the
expert testimony of a criminologist proffered by Patterson and that his conviction was
unconstitutional because the evidence was insufficient to sustain it. The Ohio Court of Appeals
rejected both arguments. As to the latter, the appellate court discussed the difference between an
allegation that the evidence was insufficient to support a conviction and the argument that the
verdict was against the weight of the evidence. It then concluded: “We have reviewed the record
on appeal, and we find the evidence sufficient as a matter of law, and also find that the manifest
weight of the evidence supports the jury’s verdict that the State had proven the charges beyond a
reasonable doubt.” State v. Patterson, No. CT97-0035, 1998 WL 346857, at *3 (Ohio Ct. App. June
4, 1998).
       After subsequent attempts to reopen his appeal and secure review by the Ohio Supreme
Court failed, Patterson filed a petition for a writ of habeas corpus in federal court, raising six
grounds for relief. The district court denied the petition, but granted Patterson a COA with respect
to two issues: (1) whether the evidence produced at his trial was constitutionally insufficient to
support his conviction, and (2) whether the jury instructions violated Patterson’s due process rights
by omitting a key element of the offense that the state was required to prove beyond a reasonable
doubt.
        This court reversed, holding that the state trial court had violated Patterson’s due process
rights by omitting the required element of proximate cause from the jury instructions for involuntary
manslaughter. Patterson I, 316 F.3d at 609-10. Because the state appellate court on direct review
had required only that the instructions be “sufficiently detailed,” and not that every element of the
offense be proved beyond a reasonable doubt, that court’s decision was held to be “contrary to . . .
clearly established federal law” as determined by the Supreme Court in United States v. Gaudin, 515
U.S. 506, 522-23 (1995). Patterson I, 316 F.3d at 608-09. Declining to pass on Patterson’s other
claim regarding the alleged insufficiency of the evidence, we instead granted Patterson a conditional
writ of habeas corpus that required the state to retry him with proper jury instructions within 180
days. Id. at 611. We offered the following reason for declining to address the insufficiency-of-the-
evidence claim:
        When the jury decided (according to faulty instructions) that Patterson was guilty of
        involuntary manslaughter based on child endangering, it ceased deliberating and
        therefore did not reach a decision on whether Patterson was guilty of the lesser
        included offense of involuntary manslaughter based on simple assault. A reasonable,
        properly instructed jury might have concluded that the evidence was insufficient to
        establish the causation element of involuntary manslaughter based on child
        endangering, yet then have convicted on the lesser included offense of involuntary
        manslaughter based on simple assault.
Id. at 611.
No. 04-3280            Patterson v. Haskins                                                        Page 3


         Patterson filed a timely petition for rehearing, pointing to a series of cases in which this court
has stated that it will review insufficiency-of-the-evidence claims even under circumstances where
it has set aside the judgment of conviction due to trial error. He cited the cases of United States v.
Quinn, 901 F.2d 522 (6th Cir. 1990), Delk v. Atkinson, 665 F.2d 90 (6th Cir. 1981), and United
States v. Orrico, 599 F.2d 113 (6th Cir. 1979). We requested a response from the state, but
ultimately denied rehearing without further explanation. Patterson filed neither a petition for
rehearing en banc nor a petition for certiorari. The mandate issued on August 1, 2003, after which
Patterson was released on bail while awaiting his new trial.
        Patterson’s retrial commenced on January 26, 2004, 179 days after the mandate had issued.
Four days before the second trial, the state informed Patterson’s counsel that it intended to call two
witnesses who had not testified at the first trial—Patterson’s father (Carroll) and Patterson’s wife
(Lisa). The trial court permitted Carroll to testify, but granted Patterson’s motion to exclude Lisa’s
testimony based on spousal immunity. When the jury was unable to reach a verdict, the state trial
judge declared a mistrial and scheduled a third trial for February 17, 2004. The following day, the
prosecutor sent a letter to Patterson’s lawyer announcing his intention to again call Carroll and Lisa
as witnesses at the third trial, and also to introduce a summary of a 1995 telephone conversation
between Patterson and the county coroner. This conversation had not been presented at either of the
first two trials.
        Patterson then filed a motion in the district court styled a “Motion to Invoke Continuing
Jurisdiction for an Order Granting Petitioner’s Unconditional Release and for a Stay of State Court
Proceedings.” In that motion, Patterson maintained that the state had “violated the spirit, intent, and
limitations of the conditional writ” issued by this court in Patterson I by initiating a third trial after
the 180-day period had expired and by seeking to introduce evidence that was previously available
but that had not been presented at the first trial.
        The district court assumed that it had jurisdiction to stay the state-court proceedings but
declined to do so, finding “nothing in the Sixth Circuit’s decision [suggesting] that the State of Ohio
may not now again re-try [Patterson] since his trial resulted in a hung jury.” Likewise, the district
court did not read the Patterson I opinion or the authorities cited by Patterson as barring the state
from introducing evidence that it had not previously presented. Although it doubted that a COA was
required for Patterson to appeal its decision, the district court nonetheless issued one, certifying the
following question: “Did [the district court] err in refusing to grant petitioner’s request for a stay
of state court proceedings and an order granting his unconditional release?”
         This court originally scheduled Patterson’s current appeal for telephonic arguments in June
of 2005, but then cancelled the arguments and asked the parties to brief two additional questions:
(1) whether the original hearing panel should have addressed Patterson’s insufficiency-of-the-
evidence argument and, if so, (2) whether this court has the authority to do so now. The case was
initially assigned to a panel that included the two circuit judges from the original panel, with a third
circuit judge substituted for District Judge Rosen.
       Following the rescheduled oral argument held on December 6, 2005, a concern arose that,
because the court might have to revisit its previous decision in Patterson I, the proper panel to
conduct such an inquiry should include all three judges from the original hearing panel. The original
panel was consequently reconstituted with the gracious consent of Judge Rosen. A second round
of supplemental briefing was implemented, and a second telephonic argument was held before us
on May 10, 2006.
No. 04-3280            Patterson v. Haskins                                                        Page 4


                                            II. ANALYSIS
         Our analysis will proceed in three steps. First, we will consider whether we erred in
Patterson I by failing to address the insufficiency-of-the-evidence claim. We will then decide
whether we currently have the authority to address that claim either under the law-of-the-case
doctrine or by recalling the mandate issued in Patterson I. Finally, we will address whether the
district court erred in denying Patterson’s motion to stay the state-court proceedings and grant his
unconditional release.
         We have reached the following conclusions: (A) Our refusal to address Patterson’s challenge
to the sufficiency of the evidence was an unwarranted deviation from the longstanding prudential
rule in this circuit that an appellate court faced with arguments both that the evidence was
insufficient and that the trial was infected with other constitutional errors needs to address the
sufficiency-of-the-evidence issue, even if the court orders a remand of the basis of trial error;
(B) because this general prudential rule is not constitutionally compelled and is subject to at least
one narrow exception, our error in Patterson I was not so grave as to justify the extraordinary step
of revisiting a decision issued over three years ago; and (C) the district court correctly concluded
that this court’s ruling in Patterson I does not bar the state from initiating a third trial outside of the
180-day window set forth in the conditional writ of habeas corpus or from presenting at that trial
evidence not introduced at the original trial. Our detailed explanation for these three conclusions
follows.
A.      The refusal to address Patterson’s insufficiency-of-the-evidence claim was an
        unwarranted deviation from this court’s longstanding prudential practice
        As noted above, we provided the following justification for declining to address Patterson’s
insufficiency claim in our 2003 decision:
        When the jury decided (according to faulty instructions) that Patterson was guilty of
        involuntary manslaughter based on child endangering, it ceased deliberating and
        therefore did not reach a decision on whether Patterson was guilty of the lesser
        included offense of involuntary manslaughter based on simple assault. A reasonable,
        properly instructed jury might have concluded that the evidence was insufficient to
        establish the causation element of involuntary manslaughter based on child
        endangering, yet then have convicted on the lesser included offense of involuntary
        manslaughter based on simple assault.
Patterson I, 316 F.3d at 611. Conspicuously absent from our analysis was any reference to the
general practice in this circuit of considering an insufficiency-of-the-evidence claim even if a
remand is necessary because of trial error. Although Patterson alerted us to the relevant authorities
in his petition for rehearing, we did not amend our opinion to explain how, if at all, our decision was
consistent with those authorities. We now face that question, starting with first principles.
        1.      This court’s rule and the narrow exception thereto
        In Burks v. United States, 437 U.S. 1, 18 (1978), the Supreme Court held that “the Double
Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally
insufficient.” This is true, the Court later explained, because “an appellate court’s reversal for
insufficiency of the evidence is in effect a determination that the government’s case against the
defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than
submitting the case to the jury.” Lockhart v. Nelson, 488 U.S. 33, 39 (1988). The rule announced
in Burks applies regardless of whether the conviction being overturned by the federal court is a
federal conviction or a state conviction addressed on collateral review. See Greene v. Massey, 437
U.S. 19, 24 (1978) (applying the holding of Burks in a habeas-corpus challenge to a state-court
No. 04-3280           Patterson v. Haskins                                                       Page 5


conviction). An appellate court’s declaration that the evidence was constitutionally insufficient to
support a conviction, in short, has the same effect as a judgment of acquittal for the purposes of the
double jeopardy analysis.
        In the wake of Burks, this court, like many other circuits, developed a practice of reaching
the sufficiency claim in situations where defendants have alleged both that the evidence against them
was insufficient and that their trials were infected with procedural errors. One year after Burks was
decided, for example, this court was called upon to evaluate a sufficiency-of-the-evidence claim
along with alleged errors regarding the admission of evidence and the propriety of the jury
instructions. See United States v. Orrico, 599 F.2d 113, 116, 119 n.5 (6th Cir. 1979). The defendant
in Orrico was charged with intentionally causing checks to be transported in interstate commerce
that he knew had been fraudulently taken and converted. Id. at 114. Orrico appealed his conviction
on the grounds that the evidence against him was insufficient, that incriminating testimony had been
improperly admitted at his trial, and that the jury instructions on the element of intent were deficient.
         This court began its analysis by “decid[ing] the issue of sufficiency of the evidence, rather
than admissibility, because the former issue is determinative of the question whether Orrico may be
retried.” Id. at 116. After concluding that the evidence against Orrico was insufficient, the court
also determined that the jury instruction was likely erroneous and would independently require
reversal of the conviction. Id. at 119 n.5. But the court refused to “rest [its] reversal on this ground
. . . since such a decision would leave open the possibility of a retrial.” Id.; see also Delk v.
Atkinson, 665 F.2d 90, 93 n.1 (6th Cir. 1981) (“[W]here it is claimed on appeal . . . that the evidence
was insufficient, the reviewing court is required to decide the sufficiency question even though there
might be other grounds for reversal [that] would not preclude retrial.”) (citing cases from the Third,
Fifth, Seventh, and Tenth circuits) (emphasis added)).
        This court’s decision in United States v. Aarons, 718 F.2d 188 (6th Cir. 1983) (per curiam),
revealed another salient aspect of the Burks rule—namely, that because a ruling that the evidence
was insufficient to support a defendant’s conviction bars retrial, an appellate court making such a
ruling need not reach any other errors alleged on appeal. The defendant in Aarons was convicted
of causing a false statement to be made to an agency of the United States government, in violation
of 18 U.S.C. § 1001. Id. at 189. He raised multiple issues on appeal, one of them being that the
evidence was insufficient to support his conviction. This court addressed his challenge to the
sufficiency of the evidence as a threshold matter, explaining that “[w]here the sufficiency of the
evidence is properly before us, we consider that issue first because it is determinative of whether the
appellant may be retried.” Id. at 189 n.1. Because the court agreed with Aarons that the evidence
presented by the government was in fact insufficient to support his conviction, it declined to
consider the other issued raised in his appeal. Id. Since 1983, therefore, the law of the circuit has
been that challenges to the sufficiency of the evidence that were properly presented on appeal
needed to be addressed and, where dispositive of the appeal, allowed the panel to pretermit
discussion of any other alleged trial errors.
        This court’s decision in United States v. Quinn, 901 F.2d 522 (6th Cir. 1990), is still another
case adhering to the general practice announced in Orrico and followed in Aarons. In Quinn, this
court reversed the defendant’s conviction because the trial court admitted testimony provided by a
witness at an earlier suppression hearing despite the government’s failure to show that the witness
was unavailable at the time of trial. Id. at 529. The court recognized, however, that it still needed
to address Quinn’s insufficiency-of-the-evidence claim because, “if retrial is to be had, the evidence
must be found legally sufficient, as a matter of federal law, to sustain the jury verdict.” Id. at 529
n.5 (quoting Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 321-22 (1984) (Brennan,
J., concurring in part and concurring in the judgment) (quotation marks omitted). Applying the
standard from Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding that “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
No. 04-3280           Patterson v. Haskins                                                       Page 6


of fact could have found the essential elements of the crime beyond a reasonable doubt”) (emphasis
in original), this court concluded that the evidence was sufficient to support a verdict and that a
second trial would not violate the Double Jeopardy Clause. Quinn, 901 F.2d at 531.
        Our decision in Patterson I unquestionably constituted a deviation from the general rule as
stated and applied in the above cases. We were presented with the precise scenario faced by the
Orrico court, one where the trial court’s error in instructing the jury would alone have required a
remand for a new trial. But instead of reaching Patterson’s challenge to the sufficiency of the
evidence, as did the court in Orrico, we decided to “rest our reversal” of the involuntary
manslaughter conviction on the erroneous jury instruction. See Orrico, 599 F.2d at 119 n.5. Had
we followed the procedure set forth in Aarons, moreover, we would have reached the propriety of
the jury instruction only after confirming that the evidence presented by the state at the first trial
passed constitutional muster and that a retrial would not be barred under Burks. See Aarons, 718
F.2d at 189 n.1. We now belatedly recognize that we erred in not deciding whether the state
introduced sufficient evidence to prove that Patterson was guilty of involuntary manslaughter based
on child endangering before giving the state a second chance to prove that crime to a properly
instructed jury.
        One case—and, as far as we are aware, only one case—stands as an exception to the general
rule that this court will as a matter of course review a sufficiency challenge properly brought before
it. That case is United States v. Davis, 873 F.2d 900 (6th Cir. 1989). In Davis, the defendant had
been convicted of violating the federal mail fraud statute based upon a legal theory that was
invalidated by the Supreme Court while his direct appeal was pending. Id. at 902. His appeal
challenged not only the validity of that theory, but also the sufficiency of the evidence presented by
the government at trial. In an unpublished, per curiam opinion, this court reversed Davis’s
conviction on the former ground without reaching the insufficiency claim and without explaining
why it did not reach that claim. United States v. Davis, No. 86-4076, 1988 WL 19175, at *3 (6th
Cir. March 8, 1988). The government then secured a superseding indictment on an alternative
theory, and Davis moved to dismiss the new indictment on double jeopardy grounds. 873 F.2d at
903. After the district court denied his motion, Davis filed an interlocutory appeal in this court.
        This court first rejected the contention that the initial reversal due to “a legal defect in the
indictment” terminated jeopardy and barred a subsequent trial under a new indictment. Id. at 904.
Explaining that the Supreme Court in Burks had specifically recognized that the failure to dismiss
a faulty indictment was a “trial error” that did not preclude retrial, the Davis court held that the
defective indictment used to try Davis was similarly a “trial error” whose “rectification . . . has never
been thought to be precluded by the Double Jeopardy Clause.” Id.
        Davis also argued, however, that the original panel’s “failure to make a specific finding on
the sufficiency of the evidence ought to bar any retrial.” Id. at 907. This court began its analysis
by recognizing that its prior decision constituted a departure from the rule recited in both Orrico and
Delk. Id. (We note that the Davis court did not cite the published decision in Aarons.) The Orrico
and Delk cases were distinguishable, in the court’s view, because neither one
        deal[t] with a situation where the defendant had been tried on an indictment
        incorporating a legal theory that had turned out to be invalid. We faced just such a
        situation on the earlier appeal here—and it would have been pointless for us to sift
        through several days’ worth of trial evidence to determine whether the evidence
        would have been sufficient to support a conviction under the “intangible rights”
        theory if the Supreme Court had not already rejected that theory.
Id. The court further explained that it had no need to decide whether the evidence would have been
sufficient under other theories of liability cognizable under the mail fraud statute because there was
No. 04-3280           Patterson v. Haskins                                                      Page 7


no guarantee “that the government would ultimately decide to reindict,” and because “considerations
of judicial economy counseled” against undertaking an analysis that might be unnecessary. Id.
What the Davis court did, then, was decline to address the sufficiency challenge where it was
reversing the conviction on another ground that would independently preclude retrial on the same
legal theory.
        Davis is readily distinguishable from the situation that was before us in Patterson I. The
original panel in Davis reviewed a conviction that was based on a legal theory that had been
repudiated by the Supreme Court after the defendant’s trial. As a result of the intervening Supreme
Court ruling in McNally v. United States, 483 U.S. 350 (1987), there was no chance that Davis could
be retried for using the mail system to defraud others of their intangible property rights. The
question of whether the government had introduced constitutionally sufficient evidence at the first
trial was therefore completely irrelevant to whether Davis could be retried under a different theory
and a new indictment.
         But unlike in Davis, our decision in Patterson I did not rest on a ground that independently
precluded retrial on the theory of involuntary manslaughter based on child endangerment. An
erroneous jury instruction is a trial error, California v. Roy, 519 U.S. 2, 5 (1996) (per curiam), and
a reversal on the basis of a trial error does not preclude retrial on the same charge. Burks, 437 U.S.
at 14. We therefore cannot say, as the Davis court did, that reviewing the sufficiency of the evidence
would have been “pointless.” See 873 F.2d at 907. The “point” of such a review, stated simply,
would have been to determine whether retrial was permissible under Burks. Had we concluded that
the Ohio state courts unreasonably applied Jackson v. Virginia in upholding the jury verdict,
Patterson could not have been retried on the charges at issue. See Burks, 437 U.S. at 18. The
original Davis panel’s refusal to address the sufficiency challenge did not subject the defendant to
a retrial on the same charge; ours did.
         Davis is therefore properly read as carving out a narrow exception of limited application.
Indeed, we fail to see how Davis can be construed any more broadly than as holding that a court of
appeals need not consider an insufficiency-of-the-evidence claim where the court also reverses the
conviction on another ground that independently precludes retrial on the same charges. That
holding, understood in this manner, is consistent with this court’s prior cases, which have refused
to remand for a retrial on charges that the government failed to prove beyond a reasonable doubt the
first time around. After all, underlying the Supreme Court’s holding in Burks is the principle that
“[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster in the first proceeding.” 437 U.S.
at 11. Our decision in Patterson I, unlike the one in Davis, gave the state just such an opportunity.
         The decision in Davis does, however, make clear that the practice of reviewing sufficiency
challenges is not an inexorable command. In other words, just as this court in the wake of Burks
adopted the Orrico rule in order to protect constitutional rights, future panels could deviate from that
rule where they deemed its application unnecessary to protect those rights or, as in Davis, where
applying the rule would be “pointless.” Davis, 873 F.2d at 907. Thus, had we intended in
Patterson I to follow Davis’s lead and to carve out another exception to the general practice in this
circuit, we could have done so. But the truth is that we intended nothing of the kind. Our one-
paragraph discussion did not cite Davis (or any other case, for that matter) and instead hewed closely
to the factual setting before us. To recast our decision as a conscious and purposeful departure from
a longstanding practice would thus be disingenuous.
       What we attempted to do, quite frankly, was to avoid passing on an extremely close issue
that would have forced us to delve deeply into the incomplete state-court trial record provided in the
Joint Appendix and decide, even if we believed that the state courts had erred, whether their error
was sufficiently grave to warrant habeas relief. Our desire to avoid the panel disagreement that
No. 04-3280           Patterson v. Haskins                                                       Page 8


might have resulted from undertaking this difficult task, while understandable, does not suffice to
justify our failure to adhere to a consistent practice whose aim is to protect a defendant’s
constitutional rights and to prevent the government from having a second bite at the apple. In other
words, we should not have pretermitted Patterson’s claim simply because resolving it would have
been difficult or divisive. See United States v. Bobo, 419 F.3d 1264, 1268 n.4 (11th Cir. 2005)
(“Although evaluating the sufficiency of the evidence could prove problematic in cases like this one,
in which the indictment itself is defective, our prudential rule still applies and should have been
followed.”).
        2.      Our error did not subject Patterson to an unconstitutional retrial
        Having explained above that the general rule in this circuit that we failed to follow was based
on double jeopardy concerns, the question then becomes whether our failure to address Patterson’s
insufficiency-of-the-evidence claim subjected him to an unconstitutional retrial. We pose this
question because the availability of relief for Patterson at this late date turns in large degree on just
how serious an error we committed. Based on the Supreme Court’s decision in Richardson v. United
States, 468 U.S. 317 (1984), and the reaction of our sister circuits to that decision, we are convinced
that Patterson has not been subjected to an unconstitutional retrial.
         In Richardson, the jury acquitted the defendant on one count of distributing a controlled
substance, but was unable to reach a verdict both as to another distribution count and a third count
alleging that he conspired to distribute controlled substances. Id. at 318-19. The district court
declared a mistrial and ordered a new trial on the two remaining counts, rejecting Richardson’s
argument that the retrial would violate the Double Jeopardy Clause because the evidence introduced
at the first trial was insufficient to support a conviction on either of the remaining counts. See id.
After the D.C. Circuit dismissed Richardson’s interlocutory appeal for lack of jurisdiction, the
Supreme Court granted review to resolve a conflict among the circuits with respect to the
jurisdictional issue. Id. at 320 & nn. 3-4.
         The Court first reversed the D.C. Circuit’s jurisdictional ruling, holding that the rejection by
the district court of Richardson’s motion to dismiss was appealable under the decision in Abney v.
United States, 431 U.S. 651 (1977). Richardson, 468 U.S. at 320. In reaching the merits of
Richardson’s double jeopardy claim, the Court explained the import and reach of the Burks rule.
Burks, the Court said, “held that once a defendant obtained an unreversed appellate ruling that the
Government had failed to introduce sufficient evidence to convict him at trial, a second trial was
barred by the Double Jeopardy Clause.” Id. at 323. But the defendant in Richardson had not
secured such a ruling, since the district court had declared a mistrial and ordered a new trial on the
two remaining counts, and the court of appeals had declined to exercise jurisdiction. In that
situation, where “there has been only a mistrial resulting from a hung jury, Burks simply does not
require that an appellate court rule on the sufficiency of the evidence because retrial might be barred
by the Double Jeopardy Clause.” Id. The Court thus concluded that, “[r]egardless of the sufficiency
of the evidence” at his first trial, Richardson had “no valid double jeopardy claim to prevent his
retrial.” Id. at 326.
       Justice Brennan’s partial dissent highlighted some of the anomalous results to which the
Court’s opinion could lead. He reasoned as follows:
        Apparently, under the Court’s approach, only an actual judgment of acquittal, or an
        unreversed conviction, would terminate jeopardy and thereby bar retrial.
        Accordingly, a defendant who is constitutionally entitled to an acquittal but who
        fails to receive one—because he happens to be tried before an irrational or lawless
        factfinder or because his jury cannot agree on a verdict—is worse off than a
        defendant tried before a factfinder who demands constitutionally sufficient evidence.
No. 04-3280           Patterson v. Haskins                                                       Page 9


       Indeed, he is worse off than a guilty defendant who is acquitted due to mistakes of
       fact or law. I do not believe this paradoxical result is faithful to the principle we
       have repeatedly reaffirmed that the Double Jeopardy Clause precludes retrial where
       the State has failed as a matter of law to prove its case despite a fair opportunity to
       do so.
Id. at 327-28 (Brennan, J., concurring in part and dissenting in part) (emphasis in original) (citation
and quotation marks omitted). The decision in Richardson, as Justice Brennan recognized, makes
clear that a retrial is not barred by Burks unless and until an appellate court enters judgment
reversing a conviction on the ground that the evidence was insufficient to support the conviction.
In other words, what activates the Burks rule is not the abstract possibility that the evidence was
insufficient, but the appellate court’s declaration to that effect. Absent such a declaration, jeopardy
continues, and the defendant can be tried once again on the same charges.
         Patterson’s 2004 retrial did not violate the Double Jeopardy Clause as that provision was
construed in Richardson. Our failure to address Patterson’s sufficiency challenge on the merits
foreclosed the possibility of his receiving what he would have needed to invoke the Burks rule—an
appellate court’s holding that the evidence at his first trial was in fact insufficient to support his
conviction. See 468 U.S. at 323. Because we never actually held that the evidence presented at the
first trial was insufficient to support a conviction for involuntary manslaughter based on child
endangering, the protection afforded by Burks never kicked in. Patterson’s retrial was therefore
permissible under governing double jeopardy principles.
        The conclusion that we reach is one that Justice Brennan predicted with a sense of
foreboding in his partial dissent in Richardson. Justice Brennan was concerned that appellate courts
“could remand for retrial without addressing the insufficiency claim and the defendant would never
be able to challenge the evidence at the first trial.” Id. at 331. That is precisely the effect that our
decision in Patterson I, when combined with Richardson, has on Patterson’s case. We declined to
address his challenge on the merits in his first appeal, refused again when he petitioned for
rehearing, and, as will be explained in Part II.B. below, ultimately conclude that we cannot do so
now.
        Notwithstanding the unsatisfying result produced by our conclusion, both Richardson itself
and our sister circuits’ interpretation of that decision persuade us that this conclusion is the one
required by existing law. We find particularly instructive the Seventh Circuit’s decision in United
States v. Douglas, 874 F.2d 1145 (7th Cir. 1989), a direct criminal appeal that nonetheless has a
procedural posture similar to that of the present case. The defendants in Douglas were convicted
by a jury of both conspiring to distribute and actually distributing cocaine and heroin. They
challenged on appeal the sufficiency of the evidence presented by the government, as well as the
propriety of the jury instructions. Id. at 1148-49. The Seventh Circuit vacated the convictions on
the latter ground, but declined to address the sufficiency challenge even after the defendants
reasserted the claim in a petition for rehearing. Id. at 1149. After the defendants were convicted
on remand, they again appealed, arguing this time that their retrial should have been barred under
the Double Jeopardy Clause because the evidence was insufficient at the first trial. Id.
        The Seventh Circuit began its analysis by noting that, although other circuits had previously
“held that a reviewing court cannot refuse to address a defendant’s challenge to the sufficiency of
the evidence offered at trial,” the Seventh Circuit had never addressed the question. Id. (emphasis
in original) (citing cases from the Third, Ninth, and Tenth circuits). Moreover, the court observed,
the Supreme Court “has never held that a reviewing court must review the sufficiency of the
evidence whenever the defendant raises the issue on appeal.” Id. at 1150. In the Douglas court’s
view, the Supreme Court had come closest to addressing that question in Richardson, where both
its reasoning and holding indicated “that at least where a first prosecution ends in a mistrial or hung
No. 04-3280            Patterson v. Haskins                                                      Page 10


jury, a defendant is not entitled to a review of the sufficiency of the evidence presented at trial before
a second trial on the same charges begins.” Id. The Seventh Circuit proceeded to acknowledge the
force of Justice Brennan’s argument in dissent, but nevertheless concluded that Richardson had
effectively rejected the argument “that the Double Jeopardy Clause compels an appellate court to
review the sufficiency of the evidence offered at trial anytime a defendant raises the question.” Id.
(emphasis added).
         Similar reasoning is found in the Fifth Circuit’s decision in United States v. Miller, 952 F.2d
866 (5th Cir. 1992). The defendants’ convictions in Miller were reversed on appeal on the ground
that the jury instructions would have permitted the jury to convict them on a theory of mail fraud
that the Supreme Court had invalidated in McNally v. United States, 483 U.S. 350 (1987). See 952
F.2d at 868. After their retrial again resulted in convictions, the defendants argued on appeal that
the retrial should have been barred by the Double Jeopardy Clause, in part because “the evidence
at the first trial was insufficient to support a conviction on a valid mail fraud theory.” Id. at 871.
The Fifth Circuit recognized that prior circuit precedent lent some support to the defendants’
contention that they were entitled to a sufficiency review on the second appeal, but concluded that
the Supreme Court’s decision in Richardson had abrogated that precedent. As the Miller court
explained:
        The central concept of Richardson is that there is no double jeopardy unless the
        original jeopardy has terminated; and it is abundantly clear that a reversal for
        instructional error is no more a termination of jeopardy than a mistrial where a jury
        is unable to agree. And it is evident that the implications of Richardson for a case
        such as this one did not escape the attention of the Richardson court.
Id. at 872 (emphasis in original) (referring to the consequences identified Justice Brennan in his
separate opinion in Richardson, 468 U.S. 327-31). Because the original reversal rested on erroneous
jury instructions, the Fifth Circuit held that jeopardy had never terminated and that the defendants
could be retried consistent with the Double Jeopardy Clause. Miller, 952 F.2d at 874.
        The same conclusion follows in the present case. As in Miller, our decision to invalidate
Patterson’s conviction rested exclusively on the ground that the jury instructions were
constitutionally deficient. But this “instructional error” did not constitute a jeopardy-terminating
event. See id. Consequently, Patterson’s second trial did not violate the Double Jeopardy Clause,
and a third trial is permissible for the same reasons.
         We cannot end our discussion of Douglas and Miller, however, without emphasizing a
second key aspect of those decisions, one that brings us back to our analysis in Part II.A.1. above
about the importance of addressing insufficiency-of-the-evidence claims properly before this court.
After concluding that the Double Jeopardy Clause did not compel appellate courts “to review the
sufficiency of the evidence at trial anytime a defendant raises the question,” the Seventh Circuit
nevertheless adopted “a policy in [that] circuit of routinely addressing evidentiary sufficiency in
criminal cases when a defendant presents the issue on appeal.” Douglas, 874 F.2d at 1150. The
court did so, it explained, not just because of the Double Jeopardy Clause, but because of its
“concern for preservation of scare and costly resources.” Id. Having established that policy, the
Douglas court then reached back in time to evaluate the sufficiency of the evidence presented at the
defendants’ first trial in order to determine whether the court’s “failure to evaluate the evidence on
the first appeal” had subjected them to double jeopardy. Id. at 1151. Only after concluding that the
evidence introduced at the first trial had in fact been sufficient did the Seventh Circuit consider the
defendants’ challenges to their convictions on retrial.
       Similarly, the Fifth Circuit in Miller recognized the wisdom of such a policy even while
concluding that it was not constitutionally required. The Miller defendants pointed to a number of
No. 04-3280            Patterson v. Haskins                                                      Page 11


post-Richardson cases, including this court’s decision in Quinn, 901 F.2d at 529, in support of their
argument “that a defendant is entitled to a review of the sufficiency of the evidence at the first trial
prior to retrial.” 952 F.2d at 872. But the Fifth Circuit concluded that the cases cited held “only that
an appellate court should, or in the exercise of its discretion normally will, review the sufficiency
of the evidence as well even if it has already determined that a conviction must be reversed on other
grounds.” Id.
        “Far from holding that a review of [a sufficiency challenge] can be had later if a conviction
is reversed on other grounds,” the Miller court continued, “these cases indicate that the sufficiency
of the evidence will be reviewed in the first appeal in order to prevent defendants from having to
face a second trial where there was insufficient evidence to convict at the first trial.” Id. at 873
(emphasis in original). The Fifth Circuit thus concluded that, “[a]lthough not mandated by the
double jeopardy clause, . . . the better practice [is] for the appellate court on an initial appeal to
dispose of any claim properly presented to it that the evidence at trial was legally insufficient to
warrant the thus challenged conviction.” Id. at 874.
        What Douglas and Miller make clear, therefore, is that this court’s longstanding prudential
practice of reviewing the sufficiency of the evidence despite reversing a conviction on other grounds
was not undermined by the Supreme Court’s decision in Richardson. Indeed, despite reading the
implications of Richardson broadly, both the Fifth and Seventh Circuits adopted a practice identical
to the one that this court has employed since 1979. That practice remains the law of both of those
circuits—and our circuit—today. See United States v. Moses, 94 F.3d 182, 188 (5th Cir. 1996) (“In
cases where the reversal permits the Government to retry the defendant, we must reach a sufficiency
of the evidence argument because the Government may not retry the defendant if the evidence at
trial was insufficient.”); United States v. Anderson, 896 F.2d 1076, 1078 (7th Cir. 1990) (applying
the rule set forth in Douglas).
        Other circuits likewise adhere to an analogous “prudential rule” that is designed “to avoid
potential double jeopardy problems,”and that requires them “to review sufficiency of the evidence
claims raised by defendants, even if resolution on alternative grounds would otherwise dispose of
the case.” United States v. Bobo, 419 F.3d 1264, 1268 (11th Cir. 2005); see also United States v.
McDermott, 64 F.3d 1448, 1454 (10th Cir. 1995) (“[T]he law of this circuit compels us to review
claims of insufficient evidence prior to remanding for a new trial because of procedural error.”);
United States v. Bishop, 959 F.2d 820, 828 & n.11 (9th Cir. 1992) (reaffirming after Richardson the
Ninth Circuit’s policy of reviewing sufficiency challenges despite “[t]he existence of other grounds
for reversal”) (citation and quotation marks omitted) (alteration in original).
        In sum, when we declined to address Patterson’s insufficiency-of-the-evidence claim in our
prior opinion, we deviated from a practice that has been (and remains) the law in this circuit and
most others for the better part of the last 25 years. But our error did not subject Patterson to a retrial
that violated his double jeopardy rights, even assuming that we would have determined that the
evidence was indeed insufficient (a determination that is by no means certain). With this
understanding of our decision in Patterson I established, we address whether we may now reach the
sufficiency challenge that we declined to address in 2003.
B.      We cannot reach Patterson’s challenge to the sufficiency of the evidence at his
        first trial either under the law-of-the-case doctrine or by recalling the mandate
        Our conclusion that we should have taken up Patterson’s challenge to the sufficiency of the
evidence in our prior decision leads to a thornier question—whether we have the power to reach the
issue now. Patterson maintains that law-of-the-case principles allow us to address his claim because
our failure to do so earlier was a clear departure from circuit precedent and would work a manifest
injustice. The state counters that law-of-the-case principles do not apply, that the only way to
No. 04-3280           Patterson v. Haskins                                                      Page 12


revisit our prior ruling would be by recalling the mandate, and that recalling the mandate under these
circumstances would be an abuse of discretion. We address these contentions in turn.
        1.      The law-of-the-case doctrine is not a proper basis for revisiting
                Patterson’s sufficiency claim
         Patterson argues that this court’s authority to review its earlier decision resides in a federal
court’s “power to revisit prior decisions of its own . . . in any circumstance, although as a rule courts
should be loathe to do so in the absence of extraordinary circumstances such as where the initial
decision was ‘clearly erroneous and would work a manifest injustice.’” Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 817 (1988) (citation omitted). But the cited passage from
Christianson, as well as the Ninth Circuit cases on which Patterson relies, refer to circumstances
fundamentally different than the ones confronting us in the present case. The cases in question
address the situation in which an appellate court incorrectly resolves a legal issue that reappears at
a later stage of the same litigation, but prior to final judgment. See Mendenhall v. Nat’l Transp.
Safety Bd., 213 F.3d 464, 467-69 (9th Cir. 2002) (revisiting and reversing the panel’s earlier
conclusion that it had the authority to order the payment of certain attorney fees after an agency on
remand applied the panel’s first ruling on the issue); Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Reg’l Planning Agency, 216 F.3d 764, 787-88 (9th Cir. 2000) (concluding on appeal, after
a remand, that the prior panel’s determination that the defendants had waived a statute-of-limitations
defense was “clearly erroneous”), aff’d, 535 U.S. 302 (2002).
        In other words, the above cases illustrate the prudential nature of the law-of-the-case
doctrine, which “states that ‘when a court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case.’” Moses v. Business Card Express,
Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)).
The Ninth Circuit in both Mendenhall and Tahoe-Sierra acknowledged that its ability to undo the
effects of prior rulings rested on the flexibility of the law-of-the-case doctrine, which “directs a
court’s discretion, it does not limit the tribunal’s power.” Mendenhall, 213 F.3d at 469 (citation and
quotation marks omitted).
       But the law-of-the-case doctrine does not apply to circumstances such as those in the present
case. As Professors Wright, Miller, and Cooper have explained:
        Law-of-the-case rules . . . do not involve preclusion by final judgment; instead, they
        regulate judicial affairs before final judgment. After final judgment, direct relief
        from judgment is governed by the rules governing direct and collateral
        attack—principally found in Civil Rule 60(b) and habeas corpus and the procedure
        to vacate a criminal sentence—rather than law of the case or res judicata.
18B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478 (2d ed. 2002)
(emphasis added).
          Our opinion in Patterson I constitutes a “final judgment” because the grant of a conditional
writ of habeas corpus is treated as a final order. See, e.g., Browder v. Illinois Dep’t of Corrections,
434 U.S. 257, 265-67 (1978) (holding that a district court’s order granting a conditional writ was
“final” even though the court had not decided, as was then required by statute, whether an
evidentiary hearing was necessary); Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006)
(“Conditional grants of writs of habeas corpus are final orders . . . and they ordinarily and ideally
operate automatically, that is, without the need for the district court to act further.”) (citation
omitted); Phifer v. Warden, 53 F.3d 859, 862 (7th Cir. 1995) (observing that “[c]onditional orders
. . . are ordinarily considered ‘final,’” and collecting cases supporting that proposition in the habeas
context).
No. 04-3280             Patterson v. Haskins                                                        Page 13


         Because the Patterson I opinion is a final judgment in a habeas case, Patterson cannot obtain
relief from that judgment simply by invoking the flexibility of the law-of-the-case doctrine. He must
instead satisfy the criteria set forth in “the rules governing . . . collateral attack” of a state conviction.
See 18B Wright, Miller & Cooper § 4478. As will be discussed below, the proper inquiry under
governing habeas jurisprudence is whether recalling the mandate in order to correct an erroneous
prior decision would be an abuse of our discretion.
        2.      Recalling the mandate would constitute an abuse of discretion
        “[C]ourts of appeals,” as Judge Posner has explained, “have asserted the power . . . to recall
a mandate, in effect reopening the case, without limit of time, although only in exceptional
circumstances.” Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir. 1990); see also United States
v. Saikaly, 424 F.3d 514, 517 (6th Cir. 2005) (“Although courts of appeals have the inherent
authority to recall a mandate, such power should only be exercised in extraordinary circumstances
because of the profound interests in repose attached to a court of appeals mandate.”); 16 Wright,
Miller, & Cooper, Federal Practice and Procedure § 3938 (“The power of a court of appeals to recall
its mandate once issued has long been recognized.”). The Supreme Court has described the power
to recall a mandate as an “inherent” one that is “subject to review for an abuse of discretion.”
Calderon v. Thompson, 523 U.S. 538, 549 (1998) (citation omitted). Use of this “inherent” recall
power is necessarily circumscribed, however, because of “the need to preserve finality in judicial
proceedings.” Sargent v. Columbia Forest Prods., 75 F.3d 86, 89 (2d Cir. 1996).
        This court has held that “one seeking recall of a mandate must demonstrate good cause for
that action through a showing of exceptional circumstances,” including, but not limited to “fraud
upon the court, clarification of an outstanding mandate, [or] correction of a clerical mistake.”
BellSouth Corp. v. FCC, 96 F.3d 849, 851-52 (6th Cir. 1996) (declining to recall its mandate where
an agency’s delay in implementing the court’s order adversely affected a private company); see also
United States v. Murray, 2 F. App’x 398, 399-400 (6th Cir. 2001) (unpublished) (calling the
enumeration of factors in BellSouth “a nonexhaustive list of circumstances that are extraordinary
enough to warrant a recall of a mandate”). In Murray, the court recalled its mandate over seven
months after its original decision and three months after the Supreme Court had denied Murray’s
petition for certiorari. The court reasoned that the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), which was issued one month after the panel entered judgment,
“call[ed] into question the ‘integrity’ of” the earlier panel decision and amounted to “extraordinary”
circumstances that merited recall of the mandate. 2 F. App’x at 400 (citing Zipfel v. Halliburton
Co., 861 F.2d 565, 567 (9th Cir. 1988)).
        As the BellSouth court observed, other circuits have similarly applied the “exceptional
circumstances” standard regarding the recall of a mandate. 96 F.3d at 851-52 (citing cases from the
Second, Fifth, Ninth, and D.C. circuits). Those courts have agreed with Professors Wright, Miller,
and Cooper that the recall power is to be “exercised sparingly.” 16 Wright, Miller & Cooper, Federal
Practice and Procedure § 3938. The Supreme Court in Calderon also endorsed the “extraordinary
circumstances” standard, labeling the recall power as “one of last resort, to be held in reserve against
grave, unforeseen contingencies.” 523 U.S. at 550.
       Calderon is the only case in which the Supreme Court has addressed the power of a court
of appeals to initiate a recall of its mandate sua sponte. See id. at 549-559. We will therefore
address that decision’s implications and procedural history in some detail. In 1996, a panel of the
Ninth Circuit reversed the district court’s grant of habeas relief to Thompson, a California death-row
inmate, and reinstated his death sentence. Thompson v. Calderon, 109 F.3d 1358, 1365 (9th Cir.
1996). Thompson’s petition for rehearing en banc was denied, and the state set an execution date.
Calderon, 523 U.S. at 546. Less than two weeks before that date, Thompson sought relief from
judgment in the district court and filed a motion requesting that the Ninth Circuit recall its mandate.
No. 04-3280           Patterson v. Haskins                                                    Page 14


Id. The court of appeals denied that motion, but two days later, the full court voted sua sponte to
hear the matter en banc. Id. at 547.
         Just two days before Thompson’s execution date, a divided en banc panel of the Ninth
Circuit issued a decision recalling the earlier mandate and reinstating the initial district court
judgment that had vacated Thompson’s death sentence. Id. The court attributed its failure to act
earlier to “procedural misunderstandings by some judges”—to wit, miscommunications during a
law-clerk transition in one judge’s chambers and another judge’s oversight of the initial en banc
petition—and found those failures sufficient to constitute “extraordinary circumstances.” See id.
at 550-51 (citation and quotation marks omitted). This decision was released 53 days after the
mandate had issued, almost a year after Thompson had filed his first request for rehearing en banc,
and almost 16 years after the murder for which he had been convicted. Id. at 548-49.
        The Supreme Court, by a majority of five to four, reversed. Observing that the Ninth
Circuit’s actions “rest[ed] on the most doubtful of grounds,” Calderon, 523 U.S. at 551, the Court
then explained that the recall of a mandate in the habeas context must also be measured “against the
statutory and jurisprudential limits applicable in habeas corpus cases.” Id. at 553. This was true,
the Court said, even though the statutory restrictions governing successive petitions did not apply
to the Ninth Circuit’s sua sponte decision to recall its mandate. Id. at 554. Courts of appeals, then,
must exercise their discretion to recall a mandate “guided by the general principles underlying [the
Court’s] habeas corpus jurisprudence,” even where the restrictions imposed by the Antiterrorism and
Effective Death Penalty Act, 28 U.S.C. § 2244, do not formally apply. Id.
        The Supreme Court focused on a state’s particular interest in the finality of criminal
convictions, and announced the following general rule: “[W]here a federal court of appeals sua
sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to
a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as
defined [the Court’s] habeas corpus jurisprudence.” Id. at 558 (emphasis added). Applying that rule
to the facts before it, the Court then found that the Ninth Circuit had not acted to avoid a
miscarriage of justice, which the Court’s cases characterize as “actual as compared to legal
innocence.” Id. at 559 (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
        Whether the general rule announced by the Supreme Court in Calderon actually controls in
the present case is far from clear. The Calderon rule, by its own terms, applies where an appellate
court recalls its mandate to revisit “an earlier decision denying habeas corpus relief to a state
prisoner.” Id. at 558. In his first appeal, Patterson sought an unconditional writ ordering his release
because the evidence at his first trial was allegedly insufficient, or alternatively a conditional writ
that would secure his release unless the state retried him within a set period of time. By declining
to evaluate the sufficiency of the evidence, we did not technically “deny” him the relief that he had
sought on that ground. But our decision to instead grant Patterson only a conditional writ had the
effect of denying him the primary relief that he had requested. So the Calderon rule may well apply
here. If it does, then we have no basis to recall the mandate, since Patterson’s argument throughout
these proceedings has been that he is legally innocent, not that he is actually innocent. See id. at
558-59.
        But even if the rule announced in Calderon does not apply, other aspects of the Supreme
Court’s reasoning in that case and its more recent decision in Bell v. Thompson, 545 U.S. 794, 125
S. Ct. 2825 (2005), strongly suggest that recalling the mandate under the present circumstances
would be an abuse of our discretion. The Court in Calderon, for example, emphasized that “[t]he
promptness with which a court acts to correct its mistakes is evidence of the adequacy of its grounds
for reopening the case.” 523 U.S. at 552. In that case, the Court chided the Ninth Circuit for acting
four months after the alleged procedural problems in the en banc process had occurred. See id. If
we recall the mandate here, we will be acting to correct our error over three years after our original
No. 04-3280            Patterson v. Haskins                                                         Page 15


decision and almost ten years after Patterson’s original state-court conviction. Cf. Bottone v. United
States, 350 F.3d 59, 64 (2d Cir. 2003) (“Under Calderon, recalling the mandate more than six years
after its issuance ‘just to apply the benefit of hindsight,’ would constitute an abuse of discretion.”)
(quoting Gray-Bey v. United States, 209 F.3d 986, 988 (7th Cir. 2000)).
        The passage of time also played a central role in the Supreme Court’s decision in Bell v.
Thompson. There, the Court reversed a decision in which this court initially denied habeas relief,
withheld issuance of the mandate, and later reversed itself in order to grant habeas relief. See
Thompson v. Bell, 373 F.3d 688, 691-92 (6th Cir. 2004). The Supreme Court assumed without
deciding that this court’s actions were permitted by the Federal Rules of Appellate Procedure, but
held that the court had abused its discretion by waiting seven months after the Court’s denial of
certiorari to issue an amended opinion reversing its prior disposition. Bell, 125 S. Ct. at 2832.
        We read the Supreme Court’s decision in Bell as turning on four factors. The first was “the
length of time between [the] denial of certiorari and the Court of Appeals’ issuance of its amended
opinion.” Id. Second and relatedly, the seven–month delay caused the state to act in reliance on the
appellate court’s earlier opinion and order. Believing that habeas relief had been definitively denied,
the state secured a date for Thompson’s execution and litigated his competency to be executed in
both state and federal court. See id. at 2832-33. The third factor emphasized by the Court was that
the amended opinion adopted arguments that had previously been presented in Thompson’s petition
for rehearing or rehearing en banc. Id. at 2833. Finally, the Court returned to the concerns of
federalism, comity, and finality at the heart of its ruling in Calderon, reasoning that those concerns
applied even in the slightly different procedural posture of Bell. Although it was “respectful of the
Court of Appeals’ willingness to correct a decision that it perceived to have been mistaken,” the
Supreme Court nevertheless concluded that this court’s action was not “consistent with the ‘State’s
interest in the finality of convictions that have survived direct review within the state court system.’”
Id. at 2836-37 (quoting Calderon, 523 U.S. at 555)).
        All four of the above factors cut decisively against recalling the mandate in the present case.
As to the first, the three years plus that have passed since our decision in Patterson I far exceeds the
seven months that this court waited in Bell. Second, the state of Ohio, like the state of Tennessee
in Bell, has engaged in significant action in reliance on our ruling in Patterson I. The state has
expended substantial time and resources in deciding whether to retry Patterson, conducting the
second trial, preparing for a third trial, and litigating its ability to proceed with that third trial before
the federal courts. These actions are directly analogous to the ones that the Supreme Court in Bell
found to be illustrative of the state’s important reliance interest. See 125 S. Ct. at 2832-33.
        The third and fourth factors identified in Bell are even more damaging to Patterson’s appeal.
Were we to revisit the sufficiency challenge presented in Patterson I, we would be doing so on the
basis of a rule already brought to our attention in a timely-filed petition for panel rehearing. The
same was true in Bell, where the Supreme Court pointed to this court’s “opportunity to consider
[Thompson’s] arguments at the rehearing stage [as] yet another factor supporting [its] determination
that the decision to withhold the mandate was in error.” Id. at 2833.
        Finally, “the finality and comity concerns that animated Calderon” and also influenced the
outcome in Bell are likewise implicated in the present case. See id. at 2836. The Bell Court
respected this court’s “willingness to correct a decision that it perceived to have been mistaken,” but
nonetheless found the panel’s issuance of a new opinion reversing itself seven months after the
denial of certiorari constituted an abuse of discretion. Id. at 2836-37. We believe that the same
conclusion is applicable in the present case, where our failure to address Patterson’s challenge to
the sufficiency of the evidence was an error, but one that did not actually subject him to an
unconstitutional retrial. See Part II.B.2. above. Stripped to their essence, Calderon and Bell teach
that the decision to recall the mandate must account for “the State’s interest in the finality of
No. 04-3280           Patterson v. Haskins                                                     Page 16


convictions” and the “considerable time and resources” expended by the state in prosecuting
Patterson and defending the resulting conviction in the court systems. See Bell, 125 S. Ct. at 2837
(citing Calderon, 523 U.S. at 555)). To recall the mandate at this late date, despite the “additional
presumption against” doing so in state-habeas cases, id. at 2836, would denigrate those interests and
constitute an abuse of discretion in the Supreme Court’s view.
        In the end, we believe that the Supreme Court’s decisions in Calderon and Bell are an
insurmountable obstacle to relief for Patterson. Indeed, though neither case has facts on all fours
with those of the present case, both squarely address situations in which courts of appeals have
attempted to reach back in time to correct a decision that they later believed to be mistaken. We
simply cannot ignore the fact that the Supreme Court has twice reacted to these good-faith efforts
on the part of the appellate courts by reversing their judgments. A similar decision in this case
would likely provoke the same reaction. For that reason and the others set forth above, we conclude
that recalling the mandate in order to reach Patterson’s insufficiency-of-the-evidence claim would
be an abuse of our discretion.
       3.      What should we have done in Patterson I?
        We briefly address one last issue that relates to our handling of Patterson’s first appeal and
that may help avoid cases like his in the future. Specifically, we address the question of what we
should have done in 2003. We believe that the Tenth Circuit’s decision in United States v. Haddock,
961 F.2d 933 (10th Cir. 1992) (Haddock II), provides solid guidance. The defendant in Haddock
was convicted after a jury trial of misapplying bank funds, bank fraud, and making false statements
to governmental agencies. United States v. Haddock, 956 F.2d 1534, 1538 (10th Cir. 1992)
(Haddock I). He appealed his conviction and sentences on numerous grounds, alleging both trial
errors and that the evidence was insufficient to support his convictions on five of the counts. Id.
The Tenth Circuit affirmed Haddock’s convictions on most counts, but held that erroneous jury
instructions entitled him to a new trial on Counts 1 and 8. Id. at 1538. When the court reached his
challenge to the sufficiency of the evidence, however, it failed to analyze the evidence with respect
to Count 1—one of the counts on which it was ordering a new trial. “Because we reverse Haddock’s
conviction on Count 1 and remand for new trial on that count,” the court reasoned, “we do not
consider whether evidence was sufficient to convict on that count.” Id. at 1549.
        Haddock then filed a petition for rehearing, pointing to the longstanding rule in the Tenth
Circuit that when the court of appeals reverses due to a trial error and remands for a new trial, the
court “nevertheless must address the defendant’s claim that evidence presented at trial on the
reversed count was insufficient.” Haddock II, 961 F.2d at 934. Although noting that other circuits
had recently refused to consider such a rule mandatory after the Supreme Court’s decision in
Richardson (discussed above), the Tenth Circuit granted Haddock’s petition for rehearing and
evaluated the sufficiency of the evidence on Count 1. Id. at 934 & n.1. The court then held that the
evidence presented by the government at the first trial was sufficient to support a conviction on that
count, and that Haddock could be retried. Id. at 935-36.
        We should have followed the same procedure and granted Patterson’s timely petition for
panel rehearing in 2003. Like the defendant in Haddock, Patterson alerted us to binding circuit
precedent that instructed us to address the insufficiency-of-the-evidence claim despite our decision
to issue a conditional writ whose practical result was the same as the retrial ordered in Haddock.
The state, in its response to the petition, did not dispute the existence of this rule or argue that the
Supreme Court’s decision in Richardson had undermined its validity. Furthermore, addressing the
challenge in an amended opinion would not have made Patterson any worse off than he was after
our initial decision. If we had found his challenge meritorious, the state would not have been
permitted to retry him on the count of conviction. But even if we had rejected his challenge, our
issuance of a conditional writ would have remained intact, entitling him to a new trial with jury
No. 04-3280            Patterson v. Haskins                                                      Page 17


instructions that complied with due process requirements. The most efficacious solution, in short,
would have been to grant Patterson’s request for panel rehearing and address his insufficiency claim
on the merits.
        We thus find ourselves in a position similar to that of the Eleventh Circuit in United States
v. Bobo, 419 F.3d 1264 (11th Cir. 2005)—reciting in vain what we should have, could have, and
would have done differently. There, the Eleventh Circuit initially reversed Bobo’s convictions due
to an error in the indictment, but stated in a footnote that it “seriously question[ed] whether the
evidence presented was sufficient to support the convictions.” Id. at 1266 (citation omitted). When
Bobo sought to prevent a retrial on double jeopardy grounds, the Eleventh Circuit was forced to
recognize that it had unjustifiably deviated from its “prudential rule” that challenges to the
sufficiency of the evidence must be reached even when reversal is ordered on other grounds. Id. at
1268. The quoted footnote, the court concluded, did not constitute a holding that the evidence was
insufficient, even though the court “should have” reached that issue. Id. We, too, should have
reached Patterson’s insufficiency-of-the-evidence claim in our original opinion, or at the very least
when he brought the error to our attention in a petition for rehearing. Although, like the Eleventh
Circuit in Bobo, we are forced to conclude that it is simply “too late to cure the defect at this time,”
id. at 1269, we trust that future panels of this court will avoid committing the same error.
C.      The state did not violate the “letter and spirit” of this court’s decision by
        introducing new evidence at Patterson’s retrial or by scheduling a third trial
        outside of the 180-day period
         We turn now to Patterson’s appeal of the only question addressed by the district
court—whether the state of Ohio violated the conditions set forth by this court in Patterson I.
Specifically, Patterson argues that the language of our prior opinion required the state to initiate any
retrial on the same charges within 180 days of the issuance of the mandate, and that the our opinion
did not contemplate that the state would introduce new evidence at the retrial. For the reasons
explained below, we find no basis to read our prior opinion as imposing these unusual restrictions
on the state.
        1.      Both the district court and this court have jurisdiction to assure
                compliance with the conditional writ
        In denying Patterson’s motion, the district court assumed that it had subject matter
jurisdiction over his case. But federal courts are not allowed simply to assume jurisdiction and then
proceed to resolve a case on the merits. See Steel Co v. Citizens for a Better Env’t, 523 U.S. 83, 93-
101 (1998) (rejecting the doctrine of “hypothetical jurisdiction” and reaffirming that a federal court
must assure itself of its jurisdiction before deciding a case). The jurisdictional question is controlled
by this court’s recent decision in Gentry v. Deuth, 456 F.3d 687 (6th Cir. 2006), which was decided
after we heard oral argument. In Gentry, the district court granted the habeas petitioner a conditional
writ of habeas corpus that permitted the state to correct the constitutional defect within 90 days of
the final federal court order. Id. at 690-91. After the state chose not to retry the petitioner, she asked
the district court to enforce the conditional writ by entering an order voiding her state conviction.
The district court granted the requested relief. Id. at 691.
         On appeal, the state argued that the district court had no jurisdiction to enter the requested
order. This court disagreed, holding that district courts generally “retain jurisdiction to execute a
lawful judgment when it becomes necessary.” Id. at 692 (citing Phifer v. Warden, 53 F.3d 859, 862
(7th Cir. 1995)). The Gentry court explained that federal district courts “retain[] jurisdiction to
determine whether a party has complied with the terms of a conditional order in a habeas case. A
state’s failure to timely cure the error identified by a federal district court in its conditional habeas
order justifies the release of the petitioner.” Id. (citation and quotation marks omitted). Applying
No. 04-3280            Patterson v. Haskins                                                      Page 18


that rule to the facts before it, this court concluded that the district court had properly exercised
jurisdiction over the petitioner’s motion because the state’s decision not to retry her did not cure the
error identified by the district court. The petitioner’s request for relief, this court observed,
“reasonably asked the [district] court to enforce its order by making the conditional writ absolute.”
Id.
        Similarly, in the present case, Patterson filed a motion that essentially asked the district court
to “mak[e] the conditional writ” entered in Patterson I “absolute.” See id. This court in Gentry
recognized that district courts “retain[] jurisdiction to determine whether a party has complied with
the terms of a conditional order in a habeas case,” id., and what the district court did in the present
case was precisely that—it evaluated the state’s compliance with the terms of the conditional writ
that we had issued. We therefore conclude that district court’s exercise of jurisdiction was proper
under Gentry. See also Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004) (relying on
Phifer in asserting “continuing jurisdiction” to determine whether the state parole board had
complied with the court’s previous mandate in a habeas case). Because the district court had subject
matter jurisdiction and granted a certificate of appealability, we have jurisdiction to review the
merits of its decision. 28 U.S.C. § 2253(c)(1).
        2.      The state did not violate the letter or spirit of this court’s decision
                by introducing new evidence or scheduling a third trial
        The district court did not hold an evidentiary hearing or make any findings of fact as to the
state’s actions since the grant of the conditional writ. We will therefore conduct a de novo review
of the district court’s legal conclusion that the state has complied with the terms of the writ. See
Mickens-Thomas, 355 F.3d at 303 (reviewing the district court’s legal decision de novo because that
court had not held a hearing or made factual findings); see also Northrop v. Trippett, 265 F.3d 372,
377 (6th Cir. 2001) (holding that de novo review of both legal issues and factual findings is
appropriate where “a district court decides a habeas petition without [an] evidentiary hearing”).
        The district court correctly determined that the state’s actions have not run afoul of the “letter
or spirit” of the conditional writ issued in Patterson I. Our opinion ended with the following
conclusion:
        [W]e REVERSE the judgment of the district court, GRANT Patterson a conditional
        writ of habeas corpus that will result in his release from prison unless the state of
        Ohio commences a new trial against him within 180 days from the date of this
        opinion, and REMAND the case for further proceedings consistent with this opinion.
Patterson I, 316 F.3d at 611. The order instructed the state to “commence[] a new trial . . . within
180 days” of the opinion. Id. It did not, however, rule out the possibility that the trial itself,
sentencing, further appeals, or any retrials might stretch well beyond the 180-day period (which was
to be expected given the history of this case).
        Likewise, nothing in our opinion in Patterson I suggests that the state was limited to
presenting at Patterson’s second trial exactly the same evidence that it introduced at the first trial.
Our brief discussion of the sufficiency issue in Patterson I did no more than justify the decision to
leave that issue undecided. That discussion did not evince an intention, as Patterson would have it,
“to restore [Patterson] to essentially the same position he would have enjoyed had the first jury been
properly instructed.” Instead, we aimed to correct an erroneous jury instruction that had permitted
Patterson to be convicted without proof of an essential element of the offense, thereby ensuring that
the subsequent proceedings against him were not marred by the same constitutional error.
       Moreover, Patterson has cited no authority for the proposition that the reversal of a
conviction for improper jury instructions generally curtails the amount or type of evidence that the
No. 04-3280            Patterson v. Haskins                                                      Page 19


state may produce during a retrial. This court’s decision in United States v. Davis, 873 F.2d 900,
907 (6th Cir. 1989), which we discussed at length in Part II.A.1. above, contains language to the
contrary. In explaining why reaching the defendant’s insufficiency-of-the-evidence argument would
have been futile, the Davis court emphasized that resolving that challenge would not have affected
the viability of the government’s different theory of liability under a new indictment. “The
government,” this court opined, “certainly would not be foreclosed, at a trial on the new indictment,
from offering evidence that was not tendered at the first trial.” Id. We read this language in Davis
as reinforcing the commonsense notion that an appellate court’s reversal of a conviction for trial
error, unless specifically stated, does not oblige the government on remand to present a virtually
identical version of the evidence and arguments that led to the initial reversal. In light of this court’s
statement in Davis, and because the type of limitation sought by Patterson is not ordinarily imposed,
we conclude that our prior opinion did not intend to impose restrictions on the amount or type of
evidence that the state could present during his retrial.
       To sum up, a fair reading of the Patterson I opinion does not limit state-court proceedings
beyond the initial 180-day commencement or prevent the state from introducing additional evidence
during a retrial. We therefore affirm the district court’s denial of Patterson’s motion for an
unconditional release and for a stay of the state-court proceedings.
                                         III. CONCLUSION
        Federal courts are not often forced to issue what amounts to a mea culpa. An error that we
committed three years ago, however, has forced us to do just that. Today’s decision is all the more
distressing because we have had to recognize not only that we made a mistake, but also that we
cannot correct our error at this late date. This inability to correct a mistake of our own creation will
likely strike some as inimical to our system of justice.
        Integral to that system, however, are the decisions of the United States Supreme Court and
our duty as an intermediate appellate court to follow those decisions even if they lead to
uncomfortable results in particular cases. This is such a case. In light of the Supreme Court’s recent
holding that an appellate court’s “willingness to correct a decision that it perceived to have been
mistaken” does not suffice to justify a belated reconsideration of a previously decided issue in a
habeas corpus case, Bell v. Thompson, 125 S. Ct. 2825, 2837 (2005), we are convinced that recalling
the mandate under the present circumstances would be an abuse of our discretion. Because we
cannot revisit our decision in Patterson I, and because the district court did not err in denying
Patterson’s motion for unconditional release and a stay of state-court proceedings, we AFFIRM the
judgment below.
No. 04-3280               Patterson v. Haskins                                                                Page 20


                                            ____________________
                                              CONCURRENCE
                                            ____________________
         ROSEN, District Judge, concurring in part and concurring in the judgment. I fully concur
in the Court’s determination that petitioner Eric Scott Patterson may properly be tried for a third
time in state court, where he failed to secure a ruling by any court, state or federal, that the evidence
at his first trial was insufficient to support his conviction of involuntary manslaughter based on child
endangering, and where his second trial ended in a hung jury. See Richardson v. United States, 468
U.S. 317, 325-26, 104 S. Ct. 3081, 3086 (1984); see also United States v. Davis, 873 F.2d 900, 907
(6th Cir. 1989); United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005); United States v.
Miller, 952 F.2d 866, 872-74 (5th Cir. 1992). I write separately only to express my firm view that
this panel did not violate any Sixth Circuit precedent or rule when it declined to reach Patterson’s
sufficiency challenge during the first round of habeas proceedings following his initial trial and
conviction. See Patterson v. Haskins, 316 F.3d 596, 611 (6th Cir. 2003) (“Patterson I”). Rather,
the panel acted entirely in accordance with this precedent by citing a good reason for its
unwillingness to address Patterson’s sufficiency challenge — namely, that to do so would require
speculation as to how a properly instructed jury might have weighed the evidence, not only as to the
offense of conviction, but also as to a lesser-included offense that the jury in Patterson’s first trial
had no occasion to reach. See Patterson I, 316 F.3d at 611. Because I am convinced that the
Patterson I panel did not err in this regard, I cannot join in the majority’s “mea culpa” on this issue.
        As the majority acknowledges, there are only a handful of cases — and not a single habeas
decision prior to Patterson I — in which a panel of this Court has expressed its view as to whether
it would or should address a sufficiency-of-the-evidence challenge vis-à-vis some other claim of
error. In the first such decision, United States v. Orrico, 599 F.2d 113, 116 (6th Cir. 1979), the panel
stated that “[w]e decide the issue of sufficiency of the evidence, rather than admissibility, because
the former issue is determinative of the question whether Orrico may be retried.” In support of this
chosen course of action, the panel cited the then-recent ruling in Burks v. United States, 437 U.S.
1, 18, 98 S. Ct. 2141, 2150-51 (1978), in which the Supreme Court held that a reversal for
evidentiary insufficiency precludes a retrial on double jeopardy grounds. While this surely is a
sound explanation for that panel’s election to address the defendant’s sufficiency challenge in lieu
of his other claims of error, I do not read this single statement in Orrico as purporting to announce
an inviolate “rule” that all subsequent panels were bound in all circumstances to follow.1
        In the nearly twenty-five years between Orrico and Patterson I, this Court revisited this issue
on only two occasions. First, in United States v. Aarons, 718 F.2d 188, 189 n.1 (6th Cir. 1983) —
another pre-Richardson decision — the panel observed in a footnote that “[w]here the sufficiency
of the evidence is properly before us, we consider that issue first because it is determinative of


         1
           To the extent that the panel in Orrico construed Burks as prescriptive — i.e., mandating that a court must
address sufficiency challenges — rather than descriptive — i.e., identifying the consequence of a successful sufficiency
challenge — the Supreme Court’s subsequent decision in Richardson surely belies such a reading of Burks. Specifically,
the Richardson Court emphasized that “our decision in Burks did not extend beyond the procedural setting in which it
arose,” and that “[w]here, as here, there has been only a mistrial resulting from a hung jury, Burks simply does not
require that an appellate court rule on the sufficiency of the evidence because retrial might be barred by the Double
Jeopardy Clause.” Richardson, 468 U.S. at 323, 104 S. Ct. at 3085; see also Miller, 952 F.2d at 871-72 (concluding that
a prior Fifth Circuit decision was “no longer good law” in light of Richardson, and construing this latter ruling as
“refus[ing] to extend Burks beyond instances in which the appellate court in fact reversed for insufficient evidence”);
United States v. Douglas, 874 F.2d 1145, 1149-50 (7th Cir. 1989) (observing that the Supreme Court “has never held
that a reviewing court must review the sufficiency of the evidence whenever a defendant raises the issue on appeal,” and
reasoning that Richardson precludes a “broad reading” of Burks as having adopted such a requirement). The panel in
Orrico, of course, did not have the benefit of Richardson’s discussion of Burks.
No. 04-3280                Patterson v. Haskins                                                                    Page 21


whether the appellant may be retried.” In support of this proposition, the panel cited the ruling in
Orrico, as well as a footnote in Delk v. Atkinson, 665 F.2d 90, 93 n.1 (6th Cir. 1981)2 — a footnote
which, in turn, cited Orrico as the sole relevant Sixth Circuit decision on this point. Similarly, in
United States v. Quinn, 901 F.2d 522, 529 n.5 (6th Cir. 1990) (emphasis added), the panel opined
(once again in a footnote) that “[t]he reversal on trial error here does not necessarily obviate the
need to review the sufficiency of the evidence.”3 Again, Quinn cites Orrico and Delk, as well as
the more recent Aarons decision, as the pertinent authorities on this subject.
         Thus, the sole source of the majority’s posited “requirement” to address sufficiency-of-the-
evidence challenges is the single sentence in Orrico in which the panel explained why it had elected
to address a sufficiency challenge instead of a question about the admissibility of certain evidence.
Certainly, this falls far short of the extended discussion that our sister circuits have deemed
appropriate before settling upon a general practice in appeals from federal convictions for handling
sufficiency challenges accompanied by other claims of error. See, e.g., Miller, 952 F.2d at 871-74;
Douglas, 874 F.2d at 1149-50. Moreover, while Orrico cites only to Burks on this point, the
Supreme Court subsequently explained in Richardson that Burks does not “require” appellate courts
to rule on sufficiency challenges. See Richardson, 468 U.S. at 323, 104 S. Ct. at 3085. Finally, and
as noted in Delk, 665 F.2d at 93 n.1, Orrico was an appeal from a federal conviction — as, indeed,
were Miller, Douglas, and all of the other out-of-circuit cases identified by the majority (or in my
own research) as endorsing a practice of reaching sufficiency challenges. The present habeas
proceeding raises additional concerns of federalism and comity that the majority fails to
acknowledge, and these considerations militate strongly against a reflexive, one-size-fits-all
adoption here of any possible “rule” that could be gleaned from Orrico.
         Nevertheless, it is not even necessary in this case to engage in a debate about the prescriptive
force of Orrico, because this Court already has recognized that any “practice” that might have
emerged from that decision has its exceptions. As the majority acknowledges, (see Majority Op.
at 6), one such exception was recognized in Davis, supra, 873 F.2d at 901, 907, where the panel that
heard defendant Davis’s initial appeal reversed his conviction on the ground of a deficient
indictment without reaching his challenge to the sufficiency of the evidence at his first trial. After
Davis was charged in a superseding indictment, he argued that any retrial was barred by the initial
panel’s failure to address his sufficiency challenge.
        In rejecting this contention, the panel in Davis found that the prior panel in that case had a
sound basis for electing a course of action different from the one chosen in Orrico. In particular,
the Court observed that Orrico did not present “a situation where the defendant had been tried on
an indictment incorporating a legal theory that had turned out to be invalid.” Davis, 873 F.2d at 907.

         2
            Because the majority has cited Delk in support of its posited “Burks rule,” (Majority Op. at 5), a brief
discussion of that decision is warranted. The footnote from which the majority culls a “require[ment]” to address
sufficiency challenges is, in fact, a survey of then-recent decisions from this and other circuits on “issues related to,” but
distinct from, the “precise question” before the panel in that case. Delk, 665 F.2d at 93 n.1. Curiously, the majority has
not reproduced the entirety of the passage it quotes from this footnote, which reads in full: “Several courts including
this one have indicated that where it is claimed on appeal from a federal conviction that the evidence was insufficient,
the reviewing court is required to decide the sufficiency question even though there might be other grounds for reversal
which would not preclude retrial.” 665 F.2d at 93 n.1 (emphasis added). Once again, Orrico is the sole Sixth Circuit
decision cited in support of this proposition. Plainly, then, Delk adds nothing to the question before us here — its
footnoted discussion of “related” cases was explicitly acknowledged to be pure dicta, and this survey, in any event,
merely leads us right back to the decision in Orrico.
         3
          In light of this quoted language from Quinn, I fail to see how the majority here can read that case as reflecting
the panel’s “recogni[tion] . . . that it still needed to address Quinn’s insufficiency-of-the-evidence claim.” (Majority Op.
at 5 (emphasis added).) Rather, it seems to me that the panel in Quinn was merely observing that a sufficiency review
was not necessarily moot in light of “[t]he reversal on trial error,” given that a successful sufficiency challenge would
preclude a retrial. Quinn, 901 F.2d at 529 n.5.
No. 04-3280            Patterson v. Haskins                                                      Page 22


Under these circumstances, the Court reasoned that “it would have been pointless for [the initial
panel] to sift through several days’ worth of trial evidence to determine whether it would have been
sufficient to support a conviction under” a since-invalidated legal theory. 873 F.2d at 907.
Similarly, the Court found that it would have run counter to “considerations of judicial economy”
for the prior panel to decide whether the evidence introduced at Davis’s initial trial would have been
sufficient to sustain a conviction under a valid legal theory, where Davis had yet to be indicted under
such a theory and there was no assurance that the government would seek to do so. 873 F.2d at 907.
        This, then, was the legal landscape as it existed in this Circuit when we heard and decided
Patterson I. On one hand, the Orrico panel had elected in 1979 to address a sufficiency rather than
an evidentiary challenge, and two subsequent panels had relied on Orrico in pursuing similar
courses of action. On the other hand, the panel in Davis had deemed it appropriate to chart a
different course in that case, despite its acknowledgment of the procedure followed in Orrico. When
presented with Patterson’s sufficiency challenge, therefore, we had both of these alternatives
available to us — we could have reviewed the sufficiency of the evidence, notwithstanding our
determination that the jury instructions at Patterson’s initial trial were erroneous, or we could have
found, as in Davis, that there were reasons to refrain from such a review.
         We explicitly chose the latter course, citing reasons why, in our judgment, it “would be
imprudent” to address Patterson’s sufficiency challenge. Patterson I, 316 F.3d at 611. First, in light
of an omission in the jury instructions regarding the offense of which Patterson was convicted, we
found it problematic to “comment[] on whether sufficient evidence was presented for the jury to
have found guilt beyond a reasonable doubt based on the essential elements of a crime for which the
jury was never completely charged.” 316 F.3d at 611. Next, and more importantly, we observed
that, in order to grant the unconditional writ sought by Patterson, we necessarily would have been
required to gauge the sufficiency of the evidence both as to the offense of conviction and as to a
lesser included offense about which the jury also had been instructed. We were particularly
reluctant to undertake this latter inquiry because the jury at Patterson’s trial had not done so, having
“ceased deliberating” as instructed upon finding Patterson guilty of involuntary manslaughter based
on child endangering. 316 F.3d at 611.
         Whether or not the majority might choose a different course of action today, there is no basis
for its conclusion that we “erred” or deviated from some longstanding Circuit practice when we
deliberately elected not to address Patterson’s sufficiency challenge. In an effort to identify such
an error, the majority first reasons that Davis is “readily distinguishable,” (Majority Op. at 7), in that
the reasons given for declining to reach a sufficiency challenge in that case were not the same as the
reasons we identified in Patterson I. Yet, beyond the fact (discussed below) that the panel in Davis
did not characterize itself as “carving out a narrow exception of limited application” to a purported
Circuit “rule” governing sufficiency challenges, (Majority Op. at 7), there is certainly no indication
that the panel meant for this “exception” to be exclusive, or to occupy the field of possible
circumstances under which a court could decline to reach a sufficiency challenge. Rather, the panel
merely decided the case before it, deeming it inappropriate under those particular circumstances to
consider the sufficiency of the evidence at the defendant’s initial trial.
        This, of course, is precisely what we did in Patterson I. Even if one were to assume —
which I do not — that our reasons were somehow not as “good” as those identified in Davis, no
error can be gleaned from the mere fact that our reasons were different from those cited in an earlier
case, and certainly no “mea culpa” is warranted. If no prior panel had opined that the sorts of
reasons we gave in Patterson I were “good enough” to warrant an “exception” to this Circuit’s
“rule,” neither had any prior panel opined that such reasons were not “good enough,” and that only
the circumstances presented in Davis could justify such an exception. Indeed, as noted earlier, there
is no case predating Patterson I in which this Court invoked any sort of “rule” or “practice”
requiring that sufficiency challenges be addressed in habeas proceedings, much less opined as to the
No. 04-3280               Patterson v. Haskins                                                               Page 23


existence or extent of any possible “exceptions.” Writing on this blank slate, we were not
constrained in Patterson I to read Davis as establishing the sole set of circumstances under which
we could decline to reach a sufficiency challenge.
         Nonetheless, the majority insists that it would be “disingenuous” to construe Patterson I as
a “conscious and purposeful departure from a longstanding practice.” (Majority Op. at 8.) Yet, if
Davis is to be held up as the gold standard for such “conscious and purposeful” deliberation, I
cannot see how our decision in Patterson I would fail to measure up. Just as in Patterson I, there
is nothing in Davis that reflects the panel’s recognition that it was bound to adhere to some
longstanding Circuit practice unless it could identify a basis for an exception.4 Rather, the panel in
Davis, like its counterpart in Patterson I, merely explained the reasons for its judgment that a
sufficiency review would be inappropriate in that case. If the panels in Davis and Patterson I alike
failed to perceive the need for more extensive discussion or justification of their respective decisions
to forgo a sufficiency review, I can only surmise that this was attributable to the panels’ common
understanding that they were not bound by any “longstanding Circuit practice” to proceed otherwise.
         To be sure, Davis cited Orrico and Delk, and then explained why those cases were
distinguishable. Yet, I do not believe that a panel can be accused of failing to reach a “conscious
and purposeful” decision merely by virtue of the fact that it does not cite and distinguish any and
all cases that arguably bear upon the issue before it. Whether “purposeful[ly]” or otherwise, the fact
remains that we considered in Patterson I whether to address a sufficiency challenge and decided
that “it would be imprudent” to do so. 316 F.3d at 611. As explained, I believe that this course of
action was readily available to us under the existing Sixth Circuit precedent, which was silent as to
habeas proceedings and quite limited even as to appeals from federal convictions.
        In any event, any suggestion that we were oblivious to a “practice” adopted in Orrico or
some other Sixth Circuit decision is belied by our denial of Patterson’s petition for rehearing, in
which he expressly argued that we were required under Quinn, Delk, and Orrico to address his
sufficiency challenge. The majority unfortunately fails to mention this filing in its discussion of the
unstated reasoning and “desire[s]” that purportedly shaped our decision in Patterson I. (See
Majority Op. at 8.) Unless the majority is prepared to say that we rejected this petition out-of-hand
without reading or considering it — and my recollection is definitively to the contrary — it is readily
apparent to me that we “conscious[ly] and purposeful[ly]” elected not to address Patterson’s
sufficiency challenge, despite his argument that we were compelled to do so. Having concluded that
we did not err in this regard, I need not join in the majority’s speculation as to “[w]hat we attempted
to do,” (id.), nor its “mea culpa” for having unanimously decided the case as we did, both initially
and upon Patterson’s request for rehearing.
        Finally, I feel compelled to address the apologia with which the majority closes its opinion.
Even assuming, for the moment, that I agreed with the majority’s conclusion that we erred in
Patterson I, I fail to perceive the need in this case to reassure the citizenry that our system of justice
functions properly on the whole, much less to attribute the purportedly “uncomfortable result[]” here
to our obligation to follow Supreme Court precedent. (See id. at 19.) As to the former, it is
important to distinguish between our decision not to address Patterson’s sufficiency challenge and
the possible outcome of any such sufficiency review that we might have undertaken. Unless
Patterson’s challenge would have been successful, our purported error in declining to address it
could not possibly be viewed as “inimical to our system of justice,” (id.) — to the contrary, such an
error would be utterly harmless. Yet, throughout his state court appeals and the ensuing federal

         4
          Notably, when Davis was decided, it could at least be maintained that two prior panels, in Orrico and Aarons,
had adopted a “practice” of addressing sufficiency challenges in appeals from federal convictions. When we decided
Patterson I, in contrast, there were no analogous rulings in habeas cases that could have alerted us to some Circuit
“practice” that we might be obliged to follow.
No. 04-3280                Patterson v. Haskins                                                            Page 24


habeas proceedings, Patterson has never once secured the opinion of any judge       — state or federal
— that the evidence at his first trial was insufficient to sustain his conviction.5
         But, even if Patterson’s sufficiency challenge might have succeeded, it is misleading to
suggest that a court’s inability or unwillingness to address such a challenge is “inimical” to a
properly functioning system of justice. Simply stated, there are all sorts of circumstances under
which even a meritorious challenge might not be heard, particularly in a habeas proceeding. To cite
a fairly stark example, the Supreme Court has invoked considerations of exhaustion and procedural
default to deny federal habeas review to a death row inmate who filed his state court appeal a mere
three days after the relevant deadline. See Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546
(1991). And, of course, this Court routinely denies certificates of appealability on all sorts of issues
— including sufficiency challenges — that habeas petitioners wish to pursue, based on a panel’s
gatekeeping determination that the petitioner has failed to “ma[k]e a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). At worst, then, the present case merely
confirms that judicial error is among the possible reasons why a seemingly meritorious argument
might not succeed. This will hardly come as a surprise to petitioners in habeas proceedings6— and
I suspect that even the general public harbors no illusions about the infallibility of judges.
        This brings me to my second concern with the majority’s concluding remarks — namely, that
they could be read as laying the blame for today’s supposedly “uncomfortable result[]” at the feet
of the Supreme Court. Any error — if error there was — was ours alone, of course, and we had
ample notice and opportunity to timely correct any such error upon Patterson’s filing of a petition
for rehearing. Even in the absence of the Supreme Court precedent cited by the majority, I would
be reluctant to subscribe to a rule that would allow judges to revisit their decisions years later, based
upon a delayed realization that they might have been mistaken. It goes without saying, of course,
that correct rulings are vitally important to the proper functioning of a judicial system, and that
judges are acutely aware of this. As a result, judges strive mightily to avoid the consequences of an
erroneous judgment, and this was no less true of our panel in Patterson I. Yet, finality also plays
a crucial role in our judicial system, as this Court’s decisions have long recognized. See, e.g., Pierce
v. United Mine Workers Welfare & Retirement Fund, 770 F.2d 449, 451-52 (6th Cir. 1985); Barrier
v. Beaver, 712 F.2d 231, 234-35 (6th Cir. 1983); Hines v. Royal Indemnity Co., 253 F.2d 111, 113-
14 (6th Cir. 1958). And the latter, in my judgment, assumes still greater importance in habeas cases
where, as here, a defendant has been given a full and fair opportunity to present all of his arguments
through a complete course of state and federal proceedings.
        Finally, it bears emphasis — and the majority also recognizes this, (see Majority Op. at 8-10)
— that any purported error in Patterson I did not subject Patterson to an unconstitutional retrial.
Nor has our decision otherwise diminished any of the constitutional protections that Patterson enjoys
as he faces his third state court trial. Rather, he fully retains his due process guarantee of a verdict
based upon sufficient evidence, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979), as well as his opportunity to challenge any eventual conviction through a full round of state
court appeals and, if necessary, federal habeas proceedings. I am content that Patterson’s fate rests
first and foremost upon the judgment of a jury of his peers, and see nothing “uncomfortable” or
“inimical to our system of justice” in this outcome. Accordingly, while I disagree with the
majority’s conclusion that we erred in Patterson I, I concur in its judgment that Patterson’s state
court trial should be allowed to go forward.


        5
            To the contrary, I am firmly convinced that the evidence was sufficient.
        6
          One check against this, of course, is to pursue an appeal. Here, however, Patterson failed to petition the
Supreme Court for a writ of certiorari following our decision in Patterson I. Nor did he seek en banc reconsideration
of the panel’s ruling.
