Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:05-cv-02391—Christopher A. Boyko, District Judge.
Argued: March 16, 2016
Decided and Filed: October 12, 2016
BEFORE: MERRITT, ROGERS, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Percy Hutton, an Ohio death row inmate,
appeals the United States District Court for the Northern District of Ohio’s denial of his
28 U.S.C. § 2254 habeas petition. Hutton was convicted and sentenced to death for murdering
Derek “Ricky” Mitchell and attempting to kill Samuel Simmons, Jr. on September 16, 1985.
In his habeas petition, Hutton asserted thirteen grounds for relief. Of the thirteen claims,
six were certified for appeal. One claim gives this Court the most pause, as it requires us to
revisit Hoffner v. Bradshaw, 622 F.3d 487 (6th Cir. 2010), and again question whether a state
court’s independent review of a death sentence during sentencing can cure any omission in a jury
instruction. For the reasons that follow, we REVERSE the district court’s decision in part,
CONDITIONALLY GRANT Hutton’s habeas petition, and REMAND this case to the district
court with instructions to order Hutton’s release from custody unless the state grants a new
sentencing hearing within 180 days from the date that this Court issues the mandate.