Divided Sixth Circuit

The Sixth Circuit, in Henley v. Bell, divided yesterday in affirming a district court decision denying habeas relief. The disagreement between the majority and the dissent centered on just two of petitioner's six issues before the court - a due process challenge based on the systemic exclusion of women from the position of grand-jury foreperson and ineffective assistance of counsel at sentencing. While the ineffective assistance of counsel decision is perhaps dictated by AEDPA's rigorous standard of review, the other point of contention merits a closer look.

The grand jury challenge centered on whether the rule in Campbell v. Louisiana, giving defendants standing to challenge racial discrimination in the grand jury, was a new rule under Teague v. Lane. The disagreement between the majority and the dissent centered on familiar discussions of how to describe a rule for Teague purposes. The majority appears to have relied on a flawed reading of its own precedent to determine that Cambell is a new rule, and not an extension of Hobby v. United States. The Fifth Circuit, the only other Circuit that has addressed the question, held the opposite in Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002), as the dissent pointed out.

The decision is here.