Last February, a three judge panel on the U.S. Court of Appeals for the Sixth Circuit granted death row inmate Michael Bies's habeas petition, holding that the Double Jeopardy clause bars the state from re-litigiating the issue of Bies' mental retardation. The Ohio Supreme Court has affirmed Bies' death sentence in 1996, despite his mental retardation. The Court agreed with lower courts that this mitigating factor was not outweighed by other aggravating factors. Since then, however, the U.S. Supreme Court has held, in Atkins v. Virginia, that state may not execute the mentally retarded. Bies filed a habeas petition on these grounds, seeking to get a life sentence, prompting prosecutors to re-open the question of Bies' mental retardation. No dice, the Sixth Circuit panel held last fall, as reopening this issue would violate the Double Jeopardy clause. As the opinion by Judge Clay concluded:
Under the Double Jeopardy Clause, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443. This rule establishes an absolute bar to a state seeking to relitigate such an issue of ultimate fact, regardless of the correctness of the original decision. . . . We therefore do not concern ourselveswith the merits of Petitioner’s Atkins claim; the only question before this Court is whether the government, having litigated and lost the issue of Petitioner’s mental retardation, is now attempting to reopen this question. . . . Having examined the record in this case, we determine that Petitioner was found to be mentally retarded, under the clinically accepted definition of mental retardation, by a final judgment of the Supreme Court of Ohio. We further determine that the government is now seeking to relitigate this identical issue, that the Supreme Court of Ohio’s finding was necessary to its judgment, and that the government had a full and fair opportunity to litigate this issue on direct appeal. . . . Accordingly, this case is controlled by the United States Supreme Court’s decision in Ashe, and this Court is obligated to follow that decision. As § 2254 does not require us to defer to the state court’s judgment in this case, we therefore AFFIRM the decision of the district court granting habeas relief to Petitioner, vacating his sentence of death, and ordering that he be resentenced to receive a sentence other than death.
As the time, Robert Loblaw found the decision to be "remarkable" and "creative." Yet as Orin noted at the time, Loblaw also predicted "reversal is inevitable." Not so fast. Last week, the U.S. Court of Appeals for the Sixth Circuit denied the state's petition for rehearing en banc. Judge Clay wrote an opinion concurring in the denial of en banc review. Judge Sutton dissented. His dissent concludes:
What is most trying about all of this is that it does not seem necessary. When the federal courts first acted in this case, they interrupted a state trial court proceeding designed to determine whether Bies had a successful Atkins claim. The whole point of the double-jeopardy argument was to stop the state court proceeding in its tracks and to prevent the same courts from opining about the validity of his Atkins claim. In obliging Bies, however, we have failed to give the state courts a chance to bring their judgment to bear on the point, and after this decision federal district courts within the circuit presumably will do the same thing with other similarly situated Atkins cases. See State v. Hill, No. 2006-T-0039, 2008 WL 2719570, at *6 (Ohio Ct. App. July 11, 2008) (disagreeing with Bies and holding “that the issue of Hill’s mental retardation was not ‘actually and directly litigated’ at his sentencing hearing”). AEDPA’s exhaustion requirement exists to prevent just this kind of premature intervention while a State addresses the petitioner’s challenge. . . . And unlike cases where we have permitted unexhausted double-jeopardy challenges before the defendant’s second prosecution commenced, . . . Bies faces no risk of a second prosecution.
By contrast, were we to allow the state court proceeding to go forward, Bies is hardly in a disadvantaged position. He has an IQ of 69, and two licensed clinical psychologists have concluded that he is mildly mentally retarded. Assuming that these opinions stem from balanced evaluations of Bies’ mental capacity, there is ample reason to think that the Ohio courts will take his claim seriously. Atkins, like Bies, was mildly mentally retarded . . ., and Bies’ IQ places him within the category of individuals the Court recognized might be affected by its decision . . . . Nor have the Ohio courts been reluctant to grant relief under Atkins. The Ohio Supreme Court already has granted relief in one such case, State v. White, 885 N.E.2d 905, 917 (Ohio 2008), and the state trial courts have done the same in six others . . . . And even if the worst should happen from Bies’ perspective, even if the Ohio courts should conclude that Bies was not mentally retarded under Atkins, he could seek certiorari on the question or seek habeas relief in the district court. Far from undermining Atkins, this path (through state court determinations) is exactly what the Supreme Court envisioned: For Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” and principles of comity and federalism mandate that we give the Ohio courts the first opportunity to apply that restriction to Bies’ case.