Sixth Circuit Doesn't Always Divide on Habeas:

It may sometimes appear that the judges on the U.S. Court of Appeals for the Sixth Circuit are hopelessly divided in habeas corpus cases, particularly those involving ineffective assistance of counsel claims. (No doubt, my frequent blog posts on such divided opinions may feed that impression.) Yet the judges often do agree in such cases, and Brown v. Smith is a good example (even if all three judges did not join the same opinion). The three judge panel, consisting of Chief Judge Boggs and Judges Moore and Clay, was unanimous in reversing the lower court's denial of Michael Brown's habeas opinion. Here is the opening of Chief Judge Boggs' opinion, joined by Judge Moore:

Michael Brown, who was convicted of sexually molesting his teenage daughter, appeals the district court's denial of his habeas petition. He argues that his trial attorneys' failure to investigate and obtain records related to his daughter's counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994). The district court, applying the standard of review mandated under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown's counsels' performance was deficient, but held that Brown had not been prejudiced thereby. For the reasons that follow, we hold that AEDPA deference does not apply to this case, and, judging under a de novo standard, we conclude that Brown was indeed prejudiced by his trial counsels' deficient performance. We therefore reverse.

Judge Clay wrote a concurring opinion in which Judge Moore also joined.