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DYE v. HOFBAUER Per Curiam

Per Curiam. Tried by a jury for the third time, petitioner Paul Allen Dye was convicted in the Recorders Court in Detroit, Michi­ gan, on two counts of murder and one count of possession of a ﬁrearm during commission of a felony. His defense in each of his three trials was that the crimes were committed by one of the prosecution’s key witnesses, who was present at the scene of the crimes. The Michigan Court of Appeals upheld the convictions on direct review, People v. Dye, No. 136707 (Nov. 28, 1995) (per curiam), App. to Pet. for Cert. 109, and further review was denied by the Supreme Court of Michigan, People v. Dye, 453 Mich. 852, 551 N. W. 2d 189 (1996). Petitioner sought relief in habeas corpus in the United States District Court for the Eastern District of Michigan, alleging various federal constitutional claims. Denied relief, petitioner appealed to the United States Court of Appeals for the Sixth Circuit. Over the next ﬁve years, the Court of Appeals issued vari­ ous orders and two opinions in the case. 45 Fed. Appx. 428 (CA6 2002) (Dye I); 111 Fed. Appx. 363 (CA6 2004) (Dye II). In Dye I, a majority of a divided three-judge panel ruled the state prosecutor had engaged in ﬂagrant misconduct dur­ ing the jury trial. On this ground it reversed the District Court’s order denying habeas relief. The panel did not ad­ dress petitioner’s other claims. 45 Fed. Appx., at 428, n. 1. Respondent moved for panel or en banc rehearing. In the time between this motion and its disposition one of the judges in the majority retired, and the record was returned to the District Court. In Dye II, a reconstituted panel granted the petition for rehearing and ruled in favor of respondent. In an opinion authored by the original panel’s dissenting judge, the Court of Appeals held that, although Dye had raised a prosecutorial misconduct claim in state court, the record did not show that he presented it there as a violation of a federal right. “Be­ cause the brief ﬁled by the petitioner in his direct appeal to