Michael W. Benge v. David Johnson, Warden

BOYCE F. MARTIN, JR., Circuit Judge,

dissenting.

I

Although I agree with the bulk of the majority’s analysis, I believe that Benge has presented one meritorious claim that should entitle him to a writ of habeas corpus. When Benge’s attorney failed to object to the jury instructions regarding the lesser included offense of voluntary manslaughter, resulting in a jury charge that the Ohio Supreme Court later acknowledged was erroneous, he failed to provide Benge effective assistance of counsel. Because I believe a habeas writ should issue regarding that claim under Strickland v. Washington, 466…