In a quiet order on Monday, Justice Kavanaugh granted the state of Ohio’s unopposed application to recall and stay the Sixth Circuit’s mandate to grant habeas relief to August Cassano on his conviction and sentence to death for murdering a fellow prisoner in 1997.
Why, you might wonder, did Ohio have to go to the Supreme Court for this relief when Cassano himself did not oppose it? Two reasons: Judge Eric Clay and Judge Bernice Donald.
In a divided panel opinion in June (in Cassano v. Shoop) that reversed the district court, Clay and Donald combined to rule that Cassano was unconstitutionally deprived of his right to represent himself in his murder trial. They “conditionally” granted Cassano’s petition for a writ of habeas corpus, unless Ohio retries him. Judge Eugene Siler, in dissent, objected that Cassano had not clearly, unequivocally, and timely invoked his right (as Supreme Court precedent requires) and further that the Ohio supreme court did not unreasonably conclude that Cassano had failed to invoke his right (as required by the standard for federal habeas relief under AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996).
On August 26, the Sixth Circuit denied en banc review, over powerful dissents by Judge Richard Griffin and Judge Amul Thapar. (See pp. 34-46 of this Appendix.) Griffin notes that “the Supreme Court has reversed us twenty-two times for not applying the deference to state-court decisions mandated by AEDPA” and that twelve of those reversals “were by per curiam decisions on petitions for writs of certiorari.” It’s a safe bet that Cassano will add to both totals.
On August 27, Ohio moved to stay the Sixth Circuit’s mandate pending its filing of a certiorari petition in the Supreme Court. A stay would cause no harm to Cassano, who is serving a life sentence for a previous murder. But issuance of the mandate would start the six-month clock on a retrial of Cassano and thus would require Ohio to start devoting resources to prepare for a retrial that would not have to take place at all in the likely event that the Supreme Court would grant Ohio’s certiorari petition some months from now and ultimately reverse.
Clay and Donald denied Ohio’s request for a stay and its unopposed motion to reconsider the denial of the stay. So Ohio had to go to the Supreme Court to get the elementary relief that Clay and Donald did not provide, even though Cassano did not oppose it.