NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0706n.06
                           Filed: September 29, 2006

                                              No. 99-1929

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


PAUL ALLEN DYE,                                       )
                                                      )
        Petitioner-Appellant,                         )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
GERALD HOFBAUER, Warden,                              )    EASTERN DISTRICT OF MICHIGAN
                                                      )
        Respondent-Appellee.                          )




    Before: BOGGS, Chief Circuit Judge, DAUGHTREY, Circuit Judge, and
ECONOMUS,* District Judge.


        PER CURIAM. This appeal is before us for the second time, on remand from the

Supreme Court following its reversal of our order affirming the district court’s judgment on

procedural grounds. See Dye v. Hofbauer, No. 99-1929, 

(6th Cir. Aug.

24, 2004), cert. granted, 546 U.S. ___, 

, rev’d, 546 U.S. ___, 

(2005). We therefore return to a consideration of the merits of the issues raised on appeal

from the district court’s denial of relief to petitioner Paul Allen Dye on his petition for a writ

of habeas corpus, filed pursuant to 28 U.S.C. § 2254.




        *
         The Hon. Peter C. Econom us, United States District Judge for the Northern District of Ohio, sitting
by designation.
No. 99-1929
Dye v. Hofbauer

       Dye was tried three times in the state court for the murder of two women in 1982.

After the first trial resulted in a hung jury, Dye was convicted at a second trial, but that

conviction was overturned by the Michigan Supreme Court based on the prosecution’s lack

of due diligence in attempting to produce the three key witnesses who had testified at the

first trial, offering instead a transcript of their earlier testimony. This petition stems from

Dye’s conviction of both first- and second-degree murder at the third trial, for which he

received a mandatory non-parolable life sentence and a term of 23-40 years, respectively.

In his habeas petition, Dye raised numerous claims, alleging (1) a double jeopardy

violation; (2) violation of the attorney-client privilege; (3) failure to prove victim identity; (4)

prosecutorial misconduct; (5) improper jury polling; (6) admission of evidence in violation

of the discovery order; (7) admission of statements to police obtained without Miranda

warnings; (8) improper use of his pre- and post-arrest silence; (9) an erroneous jury

instruction on false exculpatory statements; and (10) denial of an impartial appeal as of

right. We conclude that the district court was correct in holding that none of these

challenges to the petitioner’s conviction merits federal habeas relief.


                     PROCEDURAL AND FACTUAL BACKGROUND


       The facts of this case were summarized by the Michigan Supreme Court as follows:


       Early in the morning of August 29, 1982, [Donna Bartels and Glenda Collins]
       were killed in the clubhouse of the Forbidden Wheels Motorcycle Club. They
       had each been shot through the head. Their bodies were dumped on the
       curb of a residential street and discovered there by early morning
       commuters.

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Dye v. Hofbauer

       Four club members were in the clubhouse at the time of the murders. Dye,
       Bruce Seidel, James Dawson, and Steve Stever all admitted to helping clean
       up the clubhouse after the killings. Seidel, the prosecution's chief witness,
       accused Dye of killing the women. Dye accused Seidel of being the killer.
       Dawson and Stever, who had been in an upstairs apartment apparently
       asleep at the time of the killings, testified that Seidel walked upstairs,
       awakened them, and told them that Dye had just killed two women. Seidel,
       Dawson, and Stever further testified that after Seidel and Dye dumped the
       bodies, all four met in Stever's garage, where Dye admitted to the killings.


People v. Dye, 

, 503-504 (Mich. 1988) (footnotes omitted).


       Dye was tried three times for these murders. At his first trial, in March 1983, Seidel,

Dawson, and Stever testified under a limited grant of immunity. Dye’s first trial was

declared a mistrial, with the jury voting 11-to-1 to acquit Dye of murder but convict him as

an accessory after the fact. The prosecution did not produce Seidel, Dawson, and Stever

for the second trial in August 1983; the trial court allowed assistant prosecutors to read the

witnesses' earlier testimony to the jury, and Dye was convicted of two counts of first-degree

murder and two counts of possession of a firearm during commission of a felony. On

appeal, the Michigan Supreme Court reversed and remanded for a new trial, finding that

the prosecution had not been sufficiently diligent in attempting to produce the three

witnesses for the second trial. See 

513. At the third trial in September

1990, Seidel, Dawson, and Stever testified in person, and Dye was convicted.


       After the third trial, the Michigan Court of Appeals affirmed his conviction and the

Michigan Supreme Court denied leave to appeal. Dye then filed this petition for writ of

habeas corpus, which was initially assigned to a magistrate judge, who recommended

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No. 99-1929
Dye v. Hofbauer

denial of Dye’s ten claims for relief, applying the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). Upon Dye’s

objections to the report and recommendation, the district court asked the magistrate judge

to consider whether it was manifestly unjust to apply the AEDPA standard, in light of the

appellate delays in state court, and whether Dye would be entitled to a writ of habeas

corpus on any of his claims under the pre-AEDPA standard of review. In keeping with the

magistrate judge’s recommendation, the district court held that the pre-AEDPA standard

was applicable in light of the extreme delay in the state appellate process. Even under this

standard, however, the court held that Dye’s claims for relief failed and dismissed the

petition. In doing so, the district court specifically addressed the double jeopardy claim but,

as to the other nine claims, adopted the magistrate judge’s recommendations.


       The district court granted a certificate of appealability with respect to the issue of

double jeopardy only. Given the court’s prior determination that pre-AEDPA law applied,

however, we held that a certificate of appealability was unnecessary and that the petitioner

could assert all appropriate claims on appeal. After the Supreme Court’s holding that the

certificate of appealability governs appellate court proceedings filed after AEDPA's

effective date, see Slack v. McDaniel, 

, 482 (2000), we ordered a “grant of

certificate of appealability with respect to all the issues involving the petitioner on appeal.”


       On initial review in this court, a majority of the panel held in a split decision that the

petitioner was entitled to relief based on a single allegation of prosecutorial misconduct and


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No. 99-1929
Dye v. Hofbauer

pretermitted discussion of the remaining claims alleged in the petition. See Dye v.

Hofbauer, No. 99-1929, 

(6th Cir. Aug. 29, 2002). One of the judges on

that panel retired from the bench before the judgment of the court became final, however,

and on petition to rehear filed by the respondent, the reconstituted panel affirmed the

district court’s order denying relief, because the record on appeal failed to indicate that the

prosecutorial misconduct claim had been framed in terms of a federal constitutional

violation when it was raised in state court.


       Reviewing on certiorari not just the joint appendix filed on appeal in this court but

apparently the entire district court record, the Supreme Court noted that in his brief filed

in the Michigan Court of Appeals, the petitioner had cited federal cases to support his claim

of prosecutorial misconduct and that the claim had been presented with sufficient

particularity to merit constitutional review under § 2254. We were admonished on remand

that the state court’s failure to frame its disposition of claims in terms of federal

constitutional case law was not dispositive. An obvious difficulty with this approach,

however, is the seemingly contrary statutory directive in § 2254(d) that habeas relief may

be granted only if the state court’s adjudication of a petitioner’s claims resulted in a

decision that is contrary to, or an unreasonable application of, clearly established federal

constitutional law, as determined by the Supreme Court, or one that is based on an

unreasonable determination of the facts in light of the evidence presented in the state court

proceedings. See 28 U.S.C. § 2254(d). Because none of the rulings of the Michigan Court

of Appeals was based on federal constitutional law, except for a finding that prejudice from

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No. 99-1929
Dye v. Hofbauer

an alleged Miranda violation “was minimal[]and did not require a retrial,” and because the

state court’s determination of the facts is not at issue, we are left to puzzle out a proper

standard of review under AEDPA.


                                        DISCUSSION


       We normally review a district court's disposition of a petition for a writ of habeas

corpus de novo. See Clemmons v. Sowders, 

, 354 (6th Cir. 1994). The district

court's findings of fact are reviewed for clear error, but with “complete deference to district

and state court findings supported by the evidence."           

the unusual

procedural posture of this case, we elect to treat all ten of the issues raised in the petition

as ripe for review.


1. Double Jeopardy


       Dye contends that his third trial and conviction violated his right to be free from

double jeopardy. Specifically, he maintains that the prosecution’s failure to produce the

three key witnesses at his second trial was a deliberate attempt to obtain a conviction,

especially in light of the first trial, at which 11 jurors voted for acquittal after hearing the

witnesses’ testimony in person. Dye claims that after the Michigan Supreme Court

reversed the conviction for lack of due diligence on the part of the prosecution, the state

was precluded from retrying him. Dye raised this issue before his third trial, but the trial

court denied the motion.


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No. 99-1929
Dye v. Hofbauer

       The district court found that the state’s application of Supreme Court precedent to

Dye’s double jeopardy claim was not unreasonable under the AEDPA standard of review.

We conclude that this decision is in accord with controlling case law. The double jeopardy

clause prohibits retrial after reversal on appeal if the reversal is for evidentiary insufficiency,

because such a finding indicates that the state failed to prove its case. See Burks v.

United States, 

, 15-16 (1978). In contrast, reversal for trial error, such as

“incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial

misconduct,” indicates that the judicial process is defective and the defendant has “a

strong interest in obtaining a fair readjudication.” 

Thus, even if Dye’s allegation

of prosecutorial misconduct were sustainable, double jeopardy would not preclude retrial.


       Dye urges this court to apply Downum v. United States, in which the Supreme Court

held that double jeopardy attaches after a mistrial at which “[t]he prosecution allowed the

jury to be selected and sworn even though one of its key witnesses was absent and had

not been found.” 

, 735 (1963). However, the district court held that Downum

does not apply in this case, because the trial in that case ended in mistrial. In contrast,

Dye’s conviction was reversed on appeal, and his “valued right . . . to have his trial

completed by the particular tribunal summoned to sit in judgment on him” was therefore

not abridged. 

We agree, having previously recognized this same distinction:


       [Petitioner's] double jeopardy claim is [ ] without merit. He argues that the
       State should be barred from retrying him because its own misconduct led to
       the reversal of his first conviction. Even accepting that characterization of
       the trial error which caused the appellate reversal, it would not affect the

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No. 99-1929
Dye v. Hofbauer

       State's right to retry him. See Burks v. United 

. His attempt to
       analogize his situation to cases where retrial has followed a mistrial provoked
       by prosecutorial misconduct is unavailing. In such cases, retrial is
       disapproved principally because the misconduct resulting in a mistrial has
       deprived the defendant of "(the) valued right to have his trial completed by
       a particular tribunal." Wade v. Hunter, 

, 689 [ ] (1949). See also
       United States v. Jorn, 

, 483-85 [ ] (1971) (plurality opinion of
       Harlan, J.). [Petitioner's] first trial proceeded all the way to verdict, and,
       consequently, he fully enjoyed that right.


Gully v. Kunzman, 

, 289-290 (6th Cir. 1979). In light of the fact that Dye’s

second trial was reversed for trial error, that the evidence was sufficient to prove the state’s

case, and that Dye was not denied the valued right to have his trial completed by a

particular tribunal, the district court correctly found that Dye’s third trial did not violate the

double jeopardy clause.


2. Attorney-Client Privilege


       Dye maintains that the only evidence incriminating him, the testimony of Seidel,

Dawson, and Stever, was obtained in contravention of the attorney-client privilege, in

violation of his Sixth and Fourteenth Amendment rights. Attorneys Michael Finn and

William Van Dusen were retained by Dye, as president of the Forbidden Wheels

Motorcycle Club, to offer advice with respect to search warrants for the motorcycle

clubhouse. After the murder, Seidel, Dawson, and Stever met with Finn and Van Dusen,

who arranged a deal for these witnesses to provide testimony concerning the murders in

exchange for immunity for their roles as accessories after the fact. Dye claims that he had

retained Finn and Van Dusen as attorneys for all the club members and that the

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No. 99-1929
Dye v. Hofbauer

information gained by the attorneys through interviews with club members, including

Seidel, Dawson, and Stever, was protected. Indeed, the Attorney Grievance Commission

admonished Finn and Van Dusen for accepting a fee to represent all club members but

then representing only some club members (Seidel, Dawson, and Stever) to Dye’s

detriment. As the magistrate judge noted, however, it is not clear whether a violation of the

attorney-client privilege actually occurred, as there is no evidence that Seidel, Dawson, and

Stever revealed communications that Dye had with the attorneys.


       But even if there were a violation of the attorney-client privilege, it did not amount

to a deprivation of Dye’s constitutional rights. The attorney-client privilege is a creation of

common law, and a violation of this privilege generally does not constitute grounds for

habeas relief. Although government interference with a defendant’s relationship with his

counsel may constitute a Sixth Amendment violation, that was not the case here, given the

fact that the state’s role was entirely passive; through the attorneys, Seidel, Dawson, and

Stever approached the state voluntarily. See, e.g., Cluchette v. Rushen, 770 f.2d 1469,

1472 (9th Cir. 1985). Moreover, as the magistrate judge pointed out, the Sixth Amendment

applies only after the government has moved beyond investigation to accusation and,

therefore, that no constitutional rights had attached when Seidel, Dawson, and Stever

approached the police while they were still investigating the murders.


       Likewise, Dye’s fourteenth Amendment challenge is without merit. By its express

wording, that amendment protects citizens against deprivations of life, liberty, or property


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No. 99-1929
Dye v. Hofbauer

by a state. The individual acts of Seidel, Dawson, and Stever thus did not implicate those

constitutional guarantees.


3. Proof of Victim Identity


       Dye next contends that the prosecution was required to prove the identity of the

victims beyond a reasonable doubt but failed to prove that one of the victims was Donna

Bartels. The prosecution presented testimony from Seidel that the victims had introduced

themselves as Glenda and Donna and that Dye shot Donna after shooting Glenda. An

autopsy of a woman identified by her friends as Donna Bartels indicated that she had died

of a gunshot wound to the head. Further, in denying Dye’s motion for a new trial, the trial

judge found sufficient circumstantial evidence of Donna Bartels’s identity based on “the

testimony of Theresa Gray [Bartels’s friend] and the testimony of Bruce Seidel regarding

the photographs of the victim and testimony of the police witnesses and the medical

examiner about particular markings on the victim’s body.” Viewing the evidence in the light

most favorable to the prosecution, we have no difficulty in concluding, as did the magistrate

judge, that there was sufficient circumstantial evidence for a rational trier of fact to find that

the identity of the murdered woman was Donna Bartels.


4. Cumulative Prosecutorial Misconduct


       Dye next contends that the cumulative effect of seven instances of prosecutorial

misconduct denied him a fair trial by improperly appealing to juror sympathy, exciting juror


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Dye v. Hofbauer

prejudices, vouching for the truth of the prosecution’s case, and denigrating Dye’s

credibility. The instances of alleged prosecutorial misconduct are: (1) informing the jury

that Dye previously had been convicted in this case by claiming in the opening argument

that the former prosecutor “chewed [Dye] up and spat him out . . . [by testing] the truth of

what Mr. Dye said,” and “you will see . . . that when Mr. Dye testified before under oath

trying to save his own neck his own version was a lie”; (2) injecting the specter of

organized crime into the trial through an investigator’s testimony that he knew of one of the

victim’s involvement with motorcycle clubs through the police organized crime section,

which had a unit focusing on motorcycle clubs; (3) arguing facts not in evidence by

fabricating a conflict in Dye and Seidel’s testimony to show that Seidel’s testimony, and not

Dye’s, was supported by the physical evidence; (4) intimating that Dye had threatened a

witness, who had changed her testimony that Seidel had known one of the victims after

talking with Dye; (5) eliciting victim sympathy and inciting juror passion against Dye by

stating that the “butchered” and “bloodied” bodies were discovered “lying there like a

couple of bags of garbage that had been discarded”; (6) making unrelated allegations of

Dye’s sexual infidelity by pointing out that Dye had been to a topless bar before the

murders, in keeping with the prosecutor’s theory that Dye killed the women because his

sexual advances were rejected; and (7) improperly vouching for the truth of the

prosecution’s case by stating in his closing arguments, “[I]f being thorough was a crime

they ought to throw the book at me because I try to be thorough to let you have all

available evidence to decide this case.”


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No. 99-1929
Dye v. Hofbauer

       The magistrate judge carefully analyzed each allegation of prosecutorial misconduct

and concluded that none entitled Dye to habeas relief. We agree with each of the

individual findings.   In the context of the three-week trial, the instances of alleged

prosecutorial misconduct were isolated, and their cumulative effect did not render Dye’s

trial fundamentally unfair.


5. Jury Polling Error


       In his fifth claim of error, Dye points out that one of the jurors had expressly stated

“not guilty” when initially polled and maintains that the subsequent events coerced the juror

into voting guilty, thereby denying Dye the right to a unanimous verdict. In denying Dye’s

motion for a new trial, the trial court explained that when juror 10 was polled, the judge

asked her to repeat her answer because he did not hear her clearly, although the record

indicates that the court reporter heard the juror respond “no,” as in “not guilty.” When the

juror replied that her answer was “yes,” the trial court asked her whether that was what she

initially said and the juror answered, “No.” The rest of the jury was polled, then the judge

again polled juror 10, who reiterated that her answer was “guilty.” After some discussion

out of the jury’s presence, the judge brought juror 10 back in alone to verify that her verdict

was “guilty.” The magistrate judge correctly found that juror 10 was initially confused by

the question, and that the judge’s further questioning was intended to clarify, not coerce,

her response. The jury poll did not deprive Dye of a fundamentally fair trial, and Dye is not

entitled to habeas relief on this claim.


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Dye v. Hofbauer

6. Improper Use of Undisclosed Evidence


       Dye claims that he was deprived of due process by the prosecutor’s use of evidence

that was not disclosed to Dye in contravention of a discovery order. Through the testimony

of Glenda Collins’s father, the prosecution introduced evidence that Collins’s address book

which was no longer available, contained the name “Rocky.” Because Dye’s nickname

was Rocky, the prosecution apparently intended to rebut Dye’s testimony that he did not

know the victims. Dye’s nickname was not revealed at trial, and before closing arguments

the trial judge instructed the jury to ignore the reference to the address book. The

magistrate judge correctly found that the admission of the address book did not deprive

Dye of a fundamentally fair trial; there is no constitutional right to discovery of non-

exculpatory evidence and nothing indicates that the jury was unable to follow the curative

instruction.


7. Privilege Against Self-Incrimination: Statements Before Miranda Warnings


       Dye maintains that his privilege against self-incrimination was violated by the

admission of statements he made to a police arson investigator without receiving Miranda

warnings. According to Dye, he had agreed to talk with Lieutenant Peck about fire-

bombings committed by the prosecution’s three main witnesses after his attorney told him

that he had made a deal with Peck that Dye’s statements would not be used against him

at trial. The prosecution elicited testimony from Peck that Dye admitted to being present,



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Dye v. Hofbauer

though not a participant, when Seidel firebombed a house. Denying Dye’s motion for a

new trial, the trial court noted that Peck said nothing about the murders, nor would one

expect that Peck, an arson investigator, had questioned Dye about the murders.


       The magistrate judge reasoned that, to the extent there was any error, it was

harmless. This was also the position taken by the Michigan Court of Appeals:


       We conclude that although defendant’s statement was improperly admitted,
       any resulting prejudice was cured by the trial judge’s jury instruction.
       Defendant’s statement regarding the firebombings was far from a damaging
       confession. He accused Stever and Dawson of one firebombing, and Seidel
       of the other. While defendant admitted being present when Seidel
       committed the June 10 firebombing, the trial judge promptly instructed the
       jury that presence at the scene of a crime did not indicate guilt, and
       instructed the jury to disregard any implication that defendant was involved
       in the firebombings. The trial judge also barred the prosecutor from arguing
       that defendant’s failure to mention the murders to Peck constituted a
       suspicious omission. Under the circumstances, Peck’s testimony regarding
       defendant’s statement about the bombings seems to bolster defendant’s
       theory that Seidel killed the victims because they heard Dawson and Stever
       state that they had just firebombed a house. Nor did the prosecutor appear
       to be acting in bad faith when he introduced Peck’s testimony; our review of
       the record indicates that the prosecutor was genuinely surprised by the
       information that Peck obtained defendant’s statement in violation of Miranda.
       Any prejudice was minimal, and did not require a mistrial.


We agree that the petitioner was not entitled to relief on the basis of this claim.


8. Privilege Against Self-Incrimination: Pre- and Post-Arrest Silence


       Dye claims that his due process and Fifth Amendment rights were violated by the

prosecution’s use of his pre- and post-arrest silence. During opening arguments, the


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Dye v. Hofbauer

prosecutor told the jury that Dye was going to testify that Seidel had committed the

murders, referring to testimony that the defendant had given at the previous trials. The

prosecution explained at length that the jury should not believe Dye because he had not

made this allegation during his several conversations with homicide and arson investigators

before his arrest, to the officer when he was arrested, or to the arson investigator after his

arrest. We conclude that the magistrate correctly found that these references did not

violate the defendant’s right to remain silent for the very reason that he did not invoke that

right but, instead, spoke with officers on more than one occasion about Seidel’s

involvement in the firebombings, yet never alleged that Seidel had committed the two

murders. Obviously, any reference to this omission was not an improper comment on

Dye’s “silence,” as prohibited by Griffin v. California, 

(1965), but was intended

to convince the jury that Dye had fabricated his accusation against Seidel sometime after

his initial interrogation by police. Under such authority as Anderson v. Charles, 

, 408 (1980), we find no Fifth Amendment violation in this regard.


9. Jury Instruction on Petitioner’s False Exculpatory Statement


       Dye maintains that the trial court’s instruction on his false exculpatory statement

misstated the law, improperly influenced the verdict by impugning every element of his

testimonial defense, and relieved the state of its burden of proving every element of the

crime beyond a reasonable doubt.          The magistrate judge correctly rejected these

assertions. Contesting the instruction that false exculpatory statements are “circumstantial


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Dye v. Hofbauer

evidence of guilt,” Dye states that, under the proper state law,            false exculpatory

statements are “circumstantial evidence of consciousness of guilt.” The Michigan Court

of Appeals and the magistrate judge concluded that the instruction as given was a correct

statement of the law. Assuming arguendo that Dye’s instruction reflects the current state

of the law, his own argument recognizes that the trial court’s instruction was a correct

statement of the law at the time it was given and, indeed, until the law was clarified six

years after the trial. Compare and contrast People v. Wolford, 

, 769 (Mich.

App. 1991), with People v. Mooney, 

, 70 (Mich. App. 1996).


       Dye’s next contention is that the trial court improperly failed to identify for the jury

which specific exculpatory statement they could consider. As the magistrate judge found,

however, the prosecution repeatedly pointed out that Dye’s testimony conflicted with the

blood stain evidence, and the trial court clearly instructed the jurors that it was for them to

determine whether Dye had made any false exculpatory statements. Moreover, Dye has

cited no cases holding that a trial court must instruct a jury on which specific exculpatory

statements it may consider to be false.


10. Denial of an Impartial Appeal as of Right


       Dye’s final claim is that, by revoking his bond sua sponte following its decision in his

direct appeal, the Michigan Court of Appeals reflected a bias against him that amounted

to the denial of his right to an impartial review of his conviction. The authority to grant and

revoke bail is, of course, an inherent judicial function. Moreover, as the magistrate judge

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Dye v. Hofbauer

noted, Dye pointed to nothing to indicate that the Michigan appeals panel was biased, or

was influenced by any extra-judicial source, or had stepped outside of its judicial role.

There simply is no basis for a grant of habeas relief in this regard.


                                       CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




       PETER C. ECONOMUS, District Judge, dissents from the order affirming the

judgment of the district court for the reasons set out in his initial opinion in this case. See

Dye v. Hofbauer, No. 99-1929, 

(6th Cir. Aug. 29, 2002).




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