Yesterday, a pair of criminal cases emanating from the Sixth Circuit received headlines.  In McQuiggin v. Perkins, the Supreme Court reviewed another habeas case from the Sixth Circuit concerning the actual innocence exception to AEDPA.  Although the Supreme Court vacated and remanded the Sixth Circuit’s decision applying the actual innocence exception to the statute of limitations, in many respects, it affirmed the ruling of the Sixth Circuit.  The 5-4 majority, in an opinion by Justice Ginsberg, held that AEDPA’s statute of limitations can be overcome by a showing of actual innocence.  At the same time, the Supreme Court took pains to emphasize the narrowness of its holding, and it ultimately remanded to the Sixth Circuit to apply the standard as it had articulated it.  Justice Scalia, writing for the dissenters, vigorously attacked the majority’s reasoning, at one point describing it as a “statutory-construction blooper reel.”

The other case was handed down by the Sixth Circuit yesterday, and it was an en banc federal death penalty case.  Federal death penalty cases are certainly rare, and this one produced a very splintered opinion.  In United States v. Gabrion, the en banc majority, in an opinion by Judge Kethledge, upheld the imposition of the federal death penalty for an individual who was convicted of murder on federal property.  Although the crime did occur in a  national forest, it was only 227 feet inside the boundaries of the forest, which was situated in Michigan (Michigan does not recognize the death penalty).  The Court ultimately determined that the district court had properly excluded evidence from the penalty phase of the trial concerning Michigan’s non-recognition of the death penalty against Eighth Amendment challenges.  The Court also discussed in detail, and rejected, challenges to the composition of the jury.  Judge Moore, writing on behalf of herself and three other judges, dissented.  Judge Moore criticized the majority’s conclusion excluding the evidence of the location of the crime and also disagreed with certain conclusions concerning the composition of the jury panel.

The decision in Gabrion was issued nearly a year after the en banc hearing last June.  Interestingly, there does not appear to be any en banc hearing set for this June’s oral argument calendar.  Traditionally, the Sixth Circuit hears en banc cases twice a year, at the June hearing and the December hearing.  The lack of any en banc case scheduled for the June sitting highlights a trend that we have previously noted regarding the growing infrequency of en banc grants at the Sixth Circuit.