                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                         File Name: 10a0364p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                              X
                                                               -
 HARRY MITTS,
                                                               -
                                 Petitioner-Appellant,
                                                               -
                                                               -
                                                                     No. 05-4420
                v.
                                                               ,
                                                                >
                                                               -
                                                               -
 MARGARET BAGLEY, Warden,
                                                               -
                   Respondent-Appellee.
                                                              N


                                     Filed: December 1, 2010
                 Before: MERRITT, MARTIN, and SILER, Circuit Judges.

                                         _________________

                                                ORDER
                                         _________________

          The court having received a petition for rehearing en banc, and the petition
having been circulated not only to the original panel members but also to all other active*
judges of this court, and less than a majority of the judges having favored the suggestion,
the petition for rehearing has been referred to the original panel.

          The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.




 *
     Judge Cook recused herself from participation in this ruling.


                                                     1
No. 05-4420          Mitts v. Bagley                                                  Page 2


        SUTTON, Circuit Judge, with whom KETHLEDGE, Circuit Judge, joins,
concurring. This en banc petition illustrates a tension that occasionally arises on the
courts of appeals between two objectives:            (1) deciding cases correctly and
(2) delegating to panels of three the authority to decide cases on behalf of the full court.



        1. With all respect to the panel majority, this case was not decided correctly. At
issue was the validity of the following Ohio jury instruction given at the penalty phase
of a capital case:

        [Y]ou must determine beyond a reasonable doubt whether the
        aggravating circumstances, which the defendant, Harry D. Mitts, Jr., was
        found guilty of committing in the separate counts, are sufficient to
        outweigh the mitigating factors you find are present in this case.
        When all 12 members of the jury find by proof beyond a reasonable
        doubt that the aggravating circumstances in each separate count with
        which Harry D. Mitts, Jr., has been found guilty of committing outweigh
        the mitigating factors, if any, then you must return such finding to the
        Court.
        I instruct you as a matter of law that if you make such a finding, then you
        must recommend to the Court that the sentence of death be imposed on
        the defendant Harry D. Mitts, Jr.
        ...
        On the other hand, [if] after considering all the relevant evidence raised
        at trial, the evidence and testimony received at this hearing and the
        arguments of counsel, you find that the state of Ohio failed to prove
        beyond a reasonable doubt that the aggravating circumstances with
        which the defendant Harry D. Mitts, Jr., was found guilty of committing
        outweigh the mitigating factors, you will then proceed to determine
        which of two possible life imprisonment sentences to recommend to the
        Court.

        Beck v. Alabama, 447 U.S. 625 (1980), does not invalidate this instruction. Beck
faulted Alabama for declining to give the jury a lesser-included option at the guilt phase
of a capital trial—for “not permitt[ing]” a jury “to consider a verdict of guilt of a lesser
included non-capital offense,” even “when the evidence would have supported such a
verdict.” Id. at 627. By “fail[ing] to give the jury the ‘third option’ of convicting on a
lesser included offense,” id. at 637, and leaving the jury only with “the choice of either
No. 05-4420        Mitts v. Bagley                                                  Page 3


convicting the defendant of the capital crime, in which case it is required to impose the
death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged
participation in the crime,” id. at 628–29, Alabama violated due process because it
“enhance[d] the risk of an unwarranted conviction,” id. at 637–38, and “interject[ed]
irrelevant considerations” into the guilt determination, id. at 642.

       No such problem arises at the penalty phase of a capital trial. If an Ohio jury
convicts a defendant of a capital offense, the jury instructions, as one might expect, give
the jury two general options: life or death. This approach leaves no risk of an
“unwarranted conviction,” 447 U.S. at 638 (emphasis added), or any risk that the jury
will take into account considerations that are “irrelevant” to guilt, such as letting the
jury’s view of whether death or life is appropriate factor into its guilt or innocence
determination, id. at 640, 642. By the penalty stage in the case, no such concerns exist.
I thus agree with Judge Siler that Beck does not apply. Mitts v. Bagley, 620 F.3d 650,
664 (6th Cir. 2010) (Siler, J., concurring in part and dissenting in part).

       Don’t take our word for it, however. Read Beck, which distinguished other
decisions on this ground. Explaining the difference between the Alabama statute and the
Georgia-post-Furman statute upheld in Gregg v. Georgia, 428 U.S. 153 (1976), Beck
says: “Under a statute like Georgia’s, where guilt is determined separately from
punishment, there is little risk that the jury will use its power to decide guilt to make a
de facto punishment decision.” 447 U.S. at 641 n.17 (emphasis added).

       Even if we focus only on the penalty phase of the trial, Mitts complains that the
instructions “require the jury as a first step, before considering mercy, to make a
decision” about whether to recommend a death sentence. Mitts, 620 F.3d at 657. That
is not a fair reading of the instructions, however, which ask two questions: whether to
recommend a death sentence because the aggravating factors outweigh the mitigating
factors or whether, “[o]n the other hand,” to recommend one of two types of jail
sentences because the aggravating factors do not outweigh the mitigating factors. Even
if this were not the case, it would not help Mitts. Kansas v. Marsh allowed a State,
unlike Ohio, to require a jury to return a death sentence if the jury found the mitigating
No. 05-4420         Mitts v. Bagley                                                  Page 4


factors did not outweigh the aggravating factors. 548 U.S. 163, 171 (2008) (“So long
as the sentencer is not precluded from considering relevant mitigating evidence, a capital
sentencing statute cannot be said to impermissibly, much less automatically, impose
death.”).

        One cannot sidestep these conclusions with labels, by calling the Ohio instruction
an “acquittal-first” jury instruction, Mitts Opposition to Rehearing En Banc at 2, or by
stamping “mandatory death penalty instruction” on the Ohio instruction, Mitts, 620 F.3d
at 655. That is wordsmanship. As the terms of the instruction show, it was not an
“acquittal-first” instruction. The jury received the instruction at the penalty phase of the
case, only after it had an opportunity to acquit the defendant and only after it chose not
to do so under a different set of instructions. Nor was it a “mandatory death penalty
instruction.” A penalty-phase instruction that presents two options to the jury—either
that the aggravating factors outweigh the mitigating factors (warranting a death-penalty
recommendation) or, “on the other hand,” that the mitigating factors outweigh the
aggravating factors (warranting a life sentence or less)—no more mandates death than
it mandates life.

        A proper reading of Beck, however, is not Mitts’ only problem. This habeas
petition was filed after the Antiterrorism and Effective Death Penalty Act became law.
Pub. L. No. 104-132, 110 Stat. 1214 (1996). Both parties, as well as all four Article III
judges who have reviewed this case, agree that the AEDPA standard of review applies,
a requirement that lengthens and steepens Mitts’ climb. It is difficult enough to say that
Beck, a case about guilt-phase jury instructions and lesser-included offenses, applies to
a penalty-phase jury instruction that has nothing to do with lesser-included offenses and
convictions. But for Mitts to say that this instruction was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” 28 U.S.C. § 2254(d)(1), gives a bad name to the inventive mind. At
a minimum, it is reasonable to conclude that Beck does not apply to a penalty-phase jury
instruction, where the possibility of an “unwarranted conviction,” 447 U.S. at 638, does
not exist.
No. 05-4420        Mitts v. Bagley                                                    Page 5


       One final straw: a 2010 decision of the Supreme Court upholds this instruction
in the face of the same argument. At issue in Smith v. Spisak, 130 S. Ct. 676 (2010), was
the following jury instruction, which in all relevant particulars mirrors the Mitts jury
instruction:

       [Y]ou, the trial jury, must consider all of the relevant evidence raised at
       trial, the evidence and testimony received in this hearing and the
       arguments of counsel. From this you must determine whether, beyond
       a reasonable doubt, the aggravating circumstances, which [Spisak] has
       been found guilty of committing in the separate counts are sufficient to
       outweigh the mitigating factors present in this case.
       If all twelve members of the jury find by proof beyond a reasonable
       doubt that the aggravating circumstance in each separate count outweighs
       the mitigating factors, then you must return that finding to the Court.
       .....
       On the other hand, if after considering all of the relevant evidence raised
       at trial, the evidence and the testimony received at this hearing and the
       arguments of counsel, you find that the State failed to prove beyond a
       reasonable doubt that the aggravating circumstances which [Spisak] has
       been found guilty of committing in the separate counts outweigh the
       mitigating factors, you will then proceed to determine which of two
       possible life imprisonment sentences to recommend to the Court.

       Spisak first challenged this instruction on the ground that it “required the jury to
consider in mitigation only those factors that the jury unanimously found to be
mitigating,” allegedly in violation of Mills v. Maryland, 486 U.S. 367 (1988). Spisak,
130 S. Ct. at 680. Because the instructions “focused only on the overall balancing
question,” not on whether “the jury must determine the existence of each individual
mitigating factor unanimously,” the Court held that these instructions did not “clearly”
violate Mills. Id. at 684.

       The Court then rejected the Sixth Circuit’s invalidation of the jury instruction on
an alternative ground, the same ground presented here. Speaking for eight Justices,
Justice Breyer said:

               We add that the Court of Appeals found the jury instructions
       unconstitutional for an additional reason, that the instructions “require[d]
       the jury to unanimously reject a death sentence before considering other
No. 05-4420          Mitts v. Bagley                                                 Page 6


        sentencing alternatives.” 465 F.3d at 709 (citing Maples v. Coyle, 171
        F.3d 408, 416-17 (CA6 1999)). We have not, however, previously held
        jury instructions unconstitutional for this reason. Mills says nothing
        about the matter. Neither the parties nor the courts below referred to
        Beck v. Alabama, 447 U.S. 625 (1980), or identified any other precedent
        from this Court setting forth this rule. Cf. Jones v. United States, 527
        U.S. 373, 379-384 (1999) (rejecting an arguably analogous claim). But
        see post, at 688–93 (Stevens, J., concurring in judgment). Whatever the
        legal merits of the rule or the underlying verdict forms in this case were
        we to consider them on direct appeal, the jury instructions at Spisak’s
        trial were not contrary to “clearly established Federal law.” 28 U.S.C.
        § 2254(d)(1).

130 S. Ct. at 684.

        At least three relevant points emerge from this feature of Spisak, all problematic
for Mitts. One, Spisak considered the ground on which the panel relied here. Just as
Spisak considered whether it is improper for an instruction to “require[] the jury to
unanimously reject a death sentence before considering other sentencing alternatives,”
130 S. Ct. at 684, the Mitts panel considered whether it is improper for an instruction to
say that the jury “must . . . address[] first” a death sentence “before consideration is
given to life imprisonment,” 620 F.3d at 652. Two, Spisak found no support for the
argument.     “We have not,” the Court held, “previously held jury instructions
unconstitutional for this reason.” 130 S. Ct. at 684. Three, invoking AEDPA, Spisak
concluded: “Whatever the legal merits of the rule or the underlying verdict forms in this
case were we to consider them on direct appeal, the jury instructions at Spisak’s trial
were not contrary to ‘clearly established Federal law.’” Id.

        That Justice Stevens concurred separately in the judgment, concluding that this
jury instruction violates Beck but finding the error harmless, undermines rather than aids
Mitts’ argument. As the above quotation and its citation to Justice Stevens’ concurrence
establishes, the eight-member majority in Spisak found no support for Justice Stevens’
reading of the Beck rule (“We have not, however, previously held jury instructions
unconstitutional for this reason.”), and held that this reading did not provide a basis for
relief (“Whatever the legal merits of the rule . . . were we consider them on direct appeal,
No. 05-4420         Mitts v. Bagley                                                   Page 7


the jury instructions at Spisak’s trial were not contrary to ‘clearly established Federal
law.’”).

        What was true for Spisak is true for Mitts. Same instructions, same argument,
same conclusion: No clearly established due process violation occurred. To see it
otherwise is to believe that Spisak himself retains the right to obtain relief under this
same argument. Yet I doubt that anyone thinks that is true.

        2. All of this shows why I disagree with the panel majority’s assessment of the
merits of Mitts’ argument. What to do about it is another matter. While the Federal
Rules of Appellate Procedure provide one option—en banc rehearing—it is not a
preferred one. En banc rehearing is “not favored and ordinarily will not be ordered.”
Fed. R. App. P. 35(a). “The decision to grant en banc consideration is unquestionably
among the most serious non-merits determinations an appellate court can make, because
it may have the effect of vacating a panel opinion that is the product of a substantial
expenditure of time and effort by three judges and numerous counsel.                 Such a
determination should be made only in the most compelling circumstances.” Bartlett ex
rel. Neuman v. Bowen, 824 F.2d 1240, 1243–44 (D.C. Cir. 1987) (Edwards, J.,
concurring in the denial of rehearing en banc).

        Most of the traditional grounds for full court review are not “compelling” here.
There is no circuit split. No other circuit to my knowledge (or for that matter to the
parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it.
This is not an important federal question, at least under Appellate Rule 35(a), since the
Ohio courts stopped giving this instruction in 1996. See Ohio v. Brooks, 661 N.E.2d
1030 (1996). Although the State says that pending death-penalty habeas petitions
presenting this issue remain, it has not told us the number of them, presumably because
the schedule for seeking rehearing en banc leaves insufficient time to figure this kind of
thing out. There is no intra-circuit conflict. In Goff v. Bagley, 601 F.3d 445 (6th Cir.
2010), it is true, the panel treated the capital inmate’s Beck challenge as forfeited, id. at
459–60, and the Mitts panel chose to address the challenge under circumstances similar
to Goff. But that intra-circuit inconsistency goes not to the merits of the Beck argument
No. 05-4420        Mitts v. Bagley                                                   Page 8


but to a question that frequently calls for case-specific judgments that differ in degree
but not in kind and that rarely warrant en banc review by themselves. Nor is this a case
in which a large number of judges on the court have come to doubt the validity of our
own precedent.

       That leaves one other possibility—that disagreement with the panel’s decision
on the merits warrants en banc review. In the run-of-the-mine case that ground rarely
suffices, else many cases a year would be decided in panels of 16, a rarely satisfying,
often unproductive, always inefficient process. No one thinks a vote against rehearing
en banc is an endorsement of a panel decision, as other judges have said and as my
explanation in this case confirms. “By declining to rehear a case, we do not sit in
judgment on the panel; we do not sanction the result it reached . . . [w]e decide merely
that . . . review by the full court is not justified.” Bartlett, 824 F.2d at 1244 (Edwards,
J., concurring in the denial of rehearing en banc).

       If the goal is to produce consistent and principled circuit law, moreover, it is fair
to wonder whether a process that requires a majority of circuit judges to sit in judgment
of two or three colleagues does more to help than to deter that objective, particularly
when the central ground for review is mere disagreement on the merits. The judges of
a circuit not only share the same title, pay and terms of office, but they also agree to
follow the same judicial oath, making them all equally susceptible to error and making
it odd to think of the delegation of decisionmaking authority to panels of three as nothing
more than an audition. Saving en banc review for “the rarest of circumstances,”
particularly when the leading ground for review is disagreement on the merits, thus
“reflects a sound, collegial attitude,” one worth following here. Air Line Pilots Ass’n
Int’l v. E. Air Lines, Inc., 863 F.2d 891, 925 (D.C. Cir. 1988) (R.B. Ginsburg, J.,
concurring in the denial of rehearing en banc). Skepticism about the value of merits-
based en banc review reflects one other thing: We are not the only Article III judges
concerned with deciding cases correctly. Sometimes there is nothing wrong with letting
the United States Supreme Court decide whether a decision is correct and, if not,
whether it is worthy of correction.
No. 05-4420      Mitts v. Bagley                                         Page 9


      For these reasons, I concur in the denial of rehearing en banc.

                                            ENTERED BY ORDER OF THE COURT



                                                  /s/ Leonard Green
                                            ___________________________________
                                                          Clerk
