RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0095p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MICHAEL BIES,

 Petitioner-Appellee,

v.

MARGARET BAGLEY, Warden,

 Respondent-Appellant.

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No. 06-3471

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 00-00682—Susan J. Dlott, District Judge.

Argued: October 31, 2007

Decided and Filed: February 27, 2008 

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Carol Ann Ellensohn, ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus,

Ohio, for Appellant. Randall L. Porter, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for

Appellee. ON BRIEF: Carol Ann Ellensohn, Charles L. Wille, ATTORNEY GENERAL’S

OFFICE OF OHIO, Columbus, Ohio, for Appellant. Randall L. Porter, PUBLIC DEFENDER’S

OFFICE, Columbus, Ohio, S. Scott Haynes, Reynoldsburg, Ohio, for Appellee.

_________________

OPINION _________________

CLAY, Circuit Judge. Respondent Margaret Bagley, warden of the prison where Petitioner

Michael Bies is incarcerated, appeals the order of the district court granting Petitioner a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, vacating his sentence of death, and ordering that he be

resentenced to receive a sentence other than death. Respondent claims that, even though Petitioner

was found to be mentally retarded on direct appeal, Ohio should be permitted to relitigate this

finding now that it has taken on new legal significance in light of the Supreme Court’s decision in

Atkins v. Virginia, 536 U.S. 304 (2002). For the reasons which follow, we hold that Respondent’s

claim is precluded by the Double Jeopardy Clause of the Constitution, and AFFIRM the decision

of the district court granting habeas relief to Petitioner.

1
No. 06-3471 Bies v. Bagley Page 2

1

While not at issue in this appeal, Bies also was also sentenced to eight to fifteen actual years on the attempted

rape count, and ten to twenty-five actual years on the kidnapping count.

STATEMENT OF FACTS

A. Trial and Direct Appeals

On October 13, 1992, Petitioner Michael Bies was found guilty, by an Ohio state court jury,

of the kidnapping, attempted rape and murder of ten-year-old Aaron Raines. During the sentencing

phase of his trial, Petitioner introduced the testimony of Dr. Donna Winter, a licensed clinical

psychologist, who testified both that Petitioner has an IQ of 69, and that he possesses all the traits

necessary for a clinical diagnosis of mental retardation. Dr. Winter’s testimony was corroborated

by a September 11, 1992 letter from Dr. Myron S. Fridman, another licensed clinical psychologist

who diagnosed Petitioner as a “marginally functioning, mildly mentally retarded man . . . .” (J.A.

1501) Nevertheless, the jury recommended the death sentence, and on October 30, 1992, the trial

court accepted this recommendation.1

Petitioner appealed both his conviction and his death sentence to the Ohio Court of Appeals.

On appeal, Petitioner argued that he is mentally retarded, and that this mental retardation was a

mitigating factor which should permit him to receive a sentence other than death. In response to

these arguments, the government questioned Petitioner’s assertion that he is “supposedly retarded,”

and cited specific evidence in the record which, it claimed, indicates that Petitioner does not suffer

from mental retardation. (J.A. 789-90) 

While the appeals court affirmed both Petitioner’s conviction and his death sentence, State

v. Bies, No. C-920841, 1994 WL 102196 at *10 (Ohio Ct. App. March 30, 1994), it also sided with

Petitioner on the question of his mental retardation. According to the appeals court, Petitioner has

“exhibited developmental delays from birth,” and “he has been in special-education classes since

kindergarten . . . .” Id. at *9. It concluded that Petitioner suffered from “mild mental retardation

to borderline mental retardation,” as well as “probable organic brain dysfunction characterized by

specific learning disabilities.” Id.

Petitioner appealed this decision to the Supreme Court of Ohio, where the issue of his mental

retardation was again litigated. Once again, Petitioner argued that he is mentally retarded, and that

this mental retardation is a mitigating factor which should lead to a sentence other than death. Once

again, the government contested Petitioner’s claim that he is “supposedly retarded,” and once again,

the government cited evidence in the record which suggests that Petitioner does not suffer from

mental retardation. (J.A. 830-31) The state supreme court affirmed Petitioner’s conviction and

death sentence. State v. Bies, 658 N.E.2d 754, 762 (Ohio 1996). On the issue of mental retardation,

however, the court sided with Petitioner, crediting Dr. Winter’s diagnosis of Petitioner as mentally

retarded. Id. at 761.

On September 20, 1996, Petitioner filed an “Application for Reopening” in the Ohio Court

of Appeals under an Ohio appellate rule which allows a criminal defendant to claim ineffective

assistance of appellate counsel. Ohio App. R. 26(B)(1). The court of appeals denied this

application, and the Supreme Court of Ohio affirmed, holding that Petitioner “offered no compelling

justification” for granting his application, and noting that the application was filed outside of the

ninety day deadline imposed by the Ohio rules. State v. Bies, 680 N.E.2d 975, 975 (Ohio 1997).

B. State Post-Conviction Proceedings

Also on September 20, 1996, Petitioner filed a petition seeking post-conviction review of

his conviction and death sentence in Ohio state court. Among several claims for relief, Petitioner
No. 06-3471 Bies v. Bagley Page 3

2

On appeal, the Ohio Court of Appeals did not reach Petitioner’s Eighth Amendment claim on the grounds that

it was not properly raised on direct appeal. The Supreme Court of Ohio subsequently denied review of this decision.

again argued that he is mentally retarded, and that executing him would violate the Eighth

Amendment because “a national consensus against executing the mentally retarded reflects the new

standard of decency in the United States.” (J.A. 840) While the government contested Petitioner’s

Eighth Amendment claim, this time it conceded that “[t]he record reveals defendant to be mildly

mentally retarded with an I.Q. of about 69.” Although the trial court held that mentally retarded

individuals could be executed, it also found that “[t]he defendant is shown by the record to be mildly

mentally retarded . . . .” (J.A. 881)2

While a second, unsuccessful petition for state post-conviction relief was being heard by the

Ohio courts, the United States Supreme Court held in Atkins v. Virginia, that “death is not a suitable

punishment for a mentally retarded criminal.” 536 U.S. at 321. Petitioner followed this decision

with a May 2, 2003 petition seeking post-conviction relief in Ohio state court, this time claiming that

he could not be executed under Atkins, and that the government is estopped from contesting the fact

of his mental retardation inasmuch as this fact had already been determined by prior state court

proceedings. Despite this estoppel argument and the government’s concession in an earlier

proceeding that Petitioner is mentally retarded, the government contested Petitioner’s Atkins claim

on the grounds that Petitioner “is not mentally retarded.” (J.A. 1593)

Petitioner moved for summary judgment on his estoppel claim, and this motion was denied

in an April 5, 2004 order by an Ohio trial judge. Noting that this order made no mention of the

Double Jeopardy Clause, Petitioner then filed a Renewed Motion for Summary Judgment, arguing

that “the Double Jeopardy Clause bars the prosecutor from relitigating the mental health findings”

of the Ohio courts. (J.A. 1618) The state trial court denied this renewed motion on June 21, 2004

without providing any additional reasoning with respect to Petitioner’s double jeopardy claim. 

C. Federal Habeas Proceedings

The case on appeal to this Court was initially filed on August 21, 2000 in the Southern

District of Ohio. This federal habeas petition was pending before the district court when the

Supreme Court decided Atkins, and Petitioner filed a Motion for Summary Judgment shortly after

Atkins was handed down. On January 31, 2003, the district court denied this motion on the grounds

that Petitioner had not yet exhausted his Atkins claim in state court. Nevertheless, the district court

retained jurisdiction over Bies’ petition, and issued a stay of execution on July 30, 2003. 

Petitioner’s double jeopardy claim was first raised in Ohio state court. After the state trial

court denied him summary judgment on this issue, Petitioner moved the district court to amend his

federal habeas petition to include this claim. Although the government filed a memorandum in

opposition to this motion, the district court granted Petitioner leave to amend his claim on April 11,

2005, and proposed that this double jeopardy claim be severed or bifurcated to allow it to be

resolved independent of the balance of the habeas petition. After briefing on this issue of severance

or bifurcation, the district court did bifurcate the claims to allow Petitioner’s double jeopardy claim

to proceed separately, and granted the petition for a writ of habeas corpus on March 1, 2006 as to

this double jeopardy claim. This appeal followed.
No. 06-3471 Bies v. Bagley Page 4

3

Petitioner argues that “when reviewing pretrial claims of double jeopardy, this Court applies the standard of

review contained in 28 U.S.C. § 2241,” and urges us to apply § 2241’s less restrictive standard to this case. (Petitioner’s

Br. at 21) To support this claim, however, he relies on this Court’s decision in Moyer v. Petty, No. 86-3243, 1986 WL

18526 (6th Cir. Dec. 23, 1986), which held that § 2254 “applies only in post-trial situations to petitioners in custody

‘pursuant to the judgment of a state court.’” Id. at *2 (quoting 28 U.S.C. § 2254(b) (1982)); accord Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir. 2001); Stringer v. Williams, 161

F.3d 259, 262 (5th Cir. 1998). Because Petitioner is imprisoned pursuant to such a judgment, § 2254(d) contains the

proper standard of review to be applied here.

4

Although Gully was decided pre-AEDPA, it has been applied by this Court in post-AEDPA decisions. See,

e.g., Harpster v. Ohio, 128 F.3d 322, 325-26 (6th Cir. 1997) (“[F]ederal adjudication of double jeopardy claims raised

on pre-trial petitions for habeas corpus is appropriate when those claims have been raised and rejected in the state trial

court and under state law there is no right to interlocutory appeal.” (citing Gully, 592 F.2d at 287)). AEDPA made no

substantive edits to § 2254(b), which was interpreted in Gully. Compare 28 U.S.C. § 2254(b) (1988) with 28 U.S.C. §

2254 (b) (2000).

DISCUSSION

Standard of Review

This Court reviews the district court’s disposition of a petition for writ of habeas corpus de

novo, and its factual findings for clear error. Smith v. Hofbauer, 312 F.3d 809, 813 (6th Cir. 2002).

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides federal habeas

relief for a state court defendant if the state court’s decision “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court[,]” 28 U.S.C. § 2254(d)(1), or was based on “an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We

hold that this AEDPA standard should be applied here.3

 A state court adjudication is “contrary to”

Supreme Court precedent under §2254(d)(1), “if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law,” or “if the state court confronts facts that

are materially indistinguishable from a relevant Supreme Court precedent” and arrives at a different

result. Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court adjudication “involves ‘an

unreasonable application of’ Supreme Court precedent under § 2254(d)(2), ‘if the state court

identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies

it to the facts of the particular . . . case,’ or if the court unreasonably refuses to extend, or

unreasonably extends, existing legal principles from the Court’s precedents to a new context.”

Hofbauer, 312 F.3d at 813 (quoting Taylor, 529 U.S. at 1520).

I. EXHAUSTION OF PETITIONER’S STATE COURT REMEDIES

In most cases, a habeas petitioner must “exhaust[ ] the remedies available in the courts of the

State” before seeking relief in federal court. § 2254(b)(1)(A). This rule does not apply, however,

when “there is an absence of available State corrective process,” or when “circumstances exist that

render such process ineffective to protect the rights of the applicant.” § 2254(b)(1)(B). In Gully v.

Kunzman, 592 F.2d 283 (6th Cir. 1979), this Court held that just such circumstances exist when a

defendant raises a double jeopardy claim on habeas review.4 Id. at 286.

Like the instant case, Gully involved federal habeas petitioners who claimed, under various

constitutional theories, that they could not be sentenced to death. Id. at 286. Among these claims,

the Gully petitioners argued that, because they were sentenced to life in prison under a prior state

proceeding, the Double Jeopardy Clause forbade the state from retrying and sentencing them to

death. Id. Although we held that the Gully petitioners’ non-double jeopardy claims must be fully
No. 06-3471 Bies v. Bagley Page 5

exhausted in state court prior to federal habeas review, we also held that a more permissive

exhaustion rule applies to double jeopardy claims. Id.

According to Gully, the Double Jeopardy Clause protects, not only against “the ultimate legal

consequences of (an adverse) verdict,” but also against the mere “risk or hazard” of twice defending

against the same claim. Id. at 287 (quoting Price v. Georgia, 398 U.S. 323, 331 (1970)). “The

‘prohibition is not against being twice punished, but against being twice put in jeopardy.’” Id.

(quoting Ball v. United States, 163 U.S. 662, 669 (1896)). Because of the prohibition against a

defendant being required to relitigate a previously decided matter, “if a criminal defendant is to

avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double

jeopardy challenge . . . must be reviewable before the subsequent exposure occurs.” Harpster, 128

F.3d at 325 (quoting Abney v. United States, 431 U.S. 651, 662 (1977)).

Under Gully, a federal court may provide habeas review of double jeopardy claims once “the

defendant has exhausted whatever procedures are available to him under state law for ‘pre-exposure’

vindication of his rights.” 592 F.2d at 287; see also Justices of Boston Mun. Court v. Lydon, 466

U.S. 294, 303 (1984) (“[A] requirement that a defendant run the entire gamut of state procedures,

including retrial, prior to consideration of his claim in federal court, would require him to sacrifice

one of the protections of the Double Jeopardy Clause.”). In the instant case, however, Petitioner has

exhausted these procedures.

Petitioner challenged his death sentence in a post-conviction proceeding in Ohio state court,

claiming both that it would violate the Double Jeopardy Clause for the state to relitigate his mental

retardation, and, in the alternative, that the trial court should again find him mentally retarded and

therefore ineligible for execution. When Petitioner sought summary judgment on the double

jeopardy claim, however, the trial judge denied his motion. Under Ohio law, “the proper remedy

for seeking judicial review of the denial of a motion to dismiss on the ground of double jeopardy is

a direct appeal to the court of appeals at the conclusion of the trial court proceedings.” Wenzel v.

Enright, 623 N.E.2d 69, 71 (Ohio 1993). Therefore, the only way for Petitioner to challenge the

denial of his double jeopardy claim is for him to proceed to a full trial on the merits regarding his

petition for post-conviction review. Such a trial, however, would force Petitioner to once again

litigate the question of his mental retardation, a procedure which itself violates the Double Jeopardy

Clause. See Lydon, 466 U.S. at 303 (“[A] requirement that a defendant run the entire gamut of state

procedures, including retrial . . . would require him to sacrifice one of the protections of the Double

Jeopardy Clause.”); Ashe v. Swenson, 397 U.S. 436, 443 (1970) (“[W]hen 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.”).

In order to avoid unconstitutionally requiring Petitioner to relitigate the issue of his mental

retardation, we hold that Petitioner has “exhausted whatever procedures are available to him under

state law for ‘pre-exposure’ vindication of his rights.” Gully, 592 F.2d at 287. The government cites

no double jeopardy cases which would suggest a contrary holding, instead relying on this Court’s

decision in Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002). In Hill, we held that a habeas petition

seeking to vacate an allegedly mentally retarded inmate’s death sentence on Eighth Amendment

grounds must first be litigated in state court. Id. at 683. Hill is inapposite, however, because the

petitioner in that case did not raise a double jeopardy claim. Id. at 680. As we held in Gully, a

habeas petitioner may proceed to raise a double jeopardy claim in federal court even if the petitioner

also presents additional claims which must be further litigated in state court. See 592 F.2d at 287.

Petitioner raised a double jeopardy claim in his habeas petition, arguing that the state may

not relitigate the issue of his mental retardation. He filed a motion seeking summary judgment on

this claim, and this motion was denied by the state trial court. Furthermore, Ohio law prevents

Petitioner from appealing this denial until after a full trial on the question of his mental retardation.
No. 06-3471 Bies v. Bagley Page 6

5

Although Sattazahn held that “the touchstone for double-jeopardy protection in capital-sentencing proceedings

is whether there has been an ‘acquittal,’” 537 U.S. at 109, the word “acquittal” in this context should not be read to mean

that the defendant emerges victorious from the guilt phase of a criminal trial. Rather, “acquittal,” for the purpose of the

Double Jeopardy Clause in capital sentencing cases occurs when a judge or jury “enter[] findings sufficient to establish

legal entitlement to the life sentence.” Id.

Wenzel, 623 N.E.2d at 71. Such a trial, however, would deprive Petitioner of the very same double

jeopardy right he asserted in his motion for summary judgment. We therefore hold that, under our

decision in Gully, Petitioner has exhausted his state court remedies with respect to his double

jeopardy claim, and may seek relief in federal court. 592 F.2d at 287. We now turn to the merits

of his petition.

II. APPLICATION OF THE DOUBLE JEOPARDY CLAUSE TO PETITIONER’S

MENTAL RETARDATION CLAIM

The Double Jeopardy Clause applies not just to criminal convictions, but also to sentencing

proceedings in capital cases. Arizona v. Rumsey, 467 U.S. 203, 211 (1984); See Bullington v.

Missouri, 451 U.S. 430, 445 (1981) (“The embarrassment, expense and ordeal and the anxiety and

insecurity faced by a defendant at the penalty phase of a . . . capital murder trial surely are at least

equivalent to that faced by any defendant at the guilt phase of a criminal trial.” (internal quotations

omitted)). In the context of a capital sentence, a criminal defendant is protected against double

jeopardy when a judge or jury “enter[s] findings sufficient to establish legal entitlement to the life

sentence” Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003).5 Furthermore, in Ashe v. Swenson, the Supreme Court held that, 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. Taken together, these clearly established

principles of federal law prohibit the State of Ohio from relitigating the issue of Petitioner’s mental

retardation.

A. Collateral Estoppel

Under the doctrine of collateral estoppel, “once a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different

cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980).

Under Ashe this “established rule of federal law is embodied in the Fifth Amendment guarantee

against double jeopardy.” 397 U.S. at 445. Moreover, in the double jeopardy context, collateral

estoppel provides an absolute and mandatory bar to the relitigation of certain issues by a state party;

“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.” Id. at 443.

In the context of civil litigation, this court applies a four-part test in determining whether

collateral estoppel precludes relitigation of an issue. Under that test, “Before collateral estoppel may

be applied to bar litigation of an issue, four specific requirements must be met:”

(1) the precise issue raised in the present case must have been raised and actually

litigated in the prior proceeding; (2) determination of the issue must have been

necessary to the outcome of the prior proceeding; (3) the prior proceeding must have

resulted in a final judgment on the merits; and (4) the party against whom estoppel

is sought must have had a full and fair opportunity to litigate the issue in the prior

proceeding.
No. 06-3471 Bies v. Bagley Page 7

N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n, 821 F.2d 328, 330 (6th Cir. 1987)

(footnotes omitted). While this Court has not yet had the opportunity to determine whether the same

test applies in the double jeopardy context, this four-part test fully implements the Fifth

Amendment’s requirement that “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; see United States v. Fiel, 35 F.3d 997, 1006 (4th Cir. 1994)

(applying a similar test under Ashe). We therefore consider each of these four-parts in turn.

1. The Issue Being Relitigated

To succeed in his double jeopardy claim, Petitioner has the burden of demonstrating that

“the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.”

Dowling v. United States, 493 U.S. 342, 350 (1990). The government argues that Petitioner has not

met his burden because, even though the Supreme Court of Ohio found that Petitioner is mentally

retarded on direct appeal of his death sentence, “there was no definition of mental retardation for

the purposes of the Eighth Amendment,” at the time of this decision. (Reply Br. at 1) According

to the government, Petitioner can only establish his mental retardation for Eighth Amendment

purposes by demonstrating in a post-conviction proceeding that he is mentally retarded under the

standard described in State v. Lott, 779 N.E.2d 1011 (Ohio 2002).

In Lott, the Supreme Court of Ohio described the test Ohio courts use for determining

whether a person is mentally retarded and therefore ineligible for the death penalty under Atkins. Id. at 1014. This decision was necessary because, although Atkins held that the mentally retarded

could not be executed, it simultaneously “le[ft] to the State[s] the task of developing appropriate

ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 U.S. at 317

(quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). The government contends that, because

Petitioner’s direct appeals were decided before Atkins and Lott, the courts hearing those appeals

could not have applied the same standard articulated in Lott to determine that Petitioner is mentally

retarded. The record reveals otherwise.

Although Atkins did not mandate that states follow a specific procedure in determining

whether or not a capital defendant is mentally retarded, it cited favorably to the clinical definition

of mental retardation established by the American Association on Mental Retardation and the

American Psychiatric Association. Id. at 309 n.3. Under that definition:

The essential feature of Mental Retardation is significantly subaverage general

intellectual functioning (Criterion A) that is accompanied by significant limitations

in adaptive functioning in at least two of the following skill areas: communication,

self-care, home living, social/interpersonal skills, use of community resources,

self-direction, functional academic skills, work, leisure, health, and safety (Criterion

B). The onset must occur before age 18 years (Criterion C).

Id. (quoting Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000) (“DSM-IV”)).

In Lott, the court held that Ohio courts should apply this clinical standard in determining

whether a capital defendant is mentally retarded. See 779 N.E.2d at 1014 (“Clinical definitions of

mental retardation, cited with approval in Atkins, provide a standard for evaluating an individual’s

claim of mental retardation.”). While the government conceded at oral argument that Lott does

nothing more than restate the clinical definition of mental retardation, it also claims in its brief that

this established a new rule in Ohio. Neither past Ohio decisions nor the record in this case support

that claim. Prior to Lott, Ohio courts judging whether an individual is mentally retarded often relied

on the clinical definition of mental retardation. See, e.g., State v. Hill, 595 N.E.2d 884, 901 (Ohio

1992) (crediting the diagnosis of a clinical psychologist in determining that a capital defendant is
No. 06-3471 Bies v. Bagley Page 8

6

The fact that Petitioner was determined to be mentally retarded by the Supreme Court of Ohio on appeal, rather

than by the trial court, makes no difference to this Court’s consideration of this case. In Sattazahn, the Supreme Court

held that double jeopardy attaches when a judge or jury “enter findings sufficient to establish legal entitlement to the life

sentence.” 537 U.S. at 109. Under Ohio law, a state appeals court reviewing a death sentence must conduct an

independent review of the aggravating circumstances and mitigating factors relevant to the sentence on review. Bies, 658 N.E.2d at 761. Pursuant to this duty, the state supreme court made a finding that Petitioner is mentally retarded.

As this finding is sufficient to establish [Petitioner’s] legal entitlement to a life sentence, Atkins, 536 U.S. at 321, the

fact that it was made by judges rather than a jury is irrelevant to our inquiry. See Sattazahn, 537 U.S. at 108.

This view is bolstered by the Supreme Court’s decision in Lockhart v. Nelson, 488 U.S. 33, 39 (1988), which

held that “[b]ecause the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial

level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who

obtains an appellate determination that the trial court should have entered a judgment of acquittal.” Lockhart v. Nelson, 488 U.S. 33, 39 (1988). To distinguish between trial and appellate in such cases would “‘create a purely arbitrary

distinction’ between defendants based on the hierarchical level at which the determination was made.” Id. (quoting

Burks v. United States, 437 U.S. at 1, 11 (1978)).

A finding of fact which renders a defendant constitutionally ineligible for the death penalty requires a court to

enter a judgment of “acquittal” for double jeopardy purposes. Sattazahn, 537 U.S. at 109; see supra note 5. In the

instant case, the state supreme court made just such a finding. Bies, 658 N.E.2d at 761. We would create a “purely

arbitrary distinction” by penalizing Petitioner simply because the finding of fact which requires a judgment of acquittal

was made not by a trial judge, but by his or her judicial superiors. Lockhart, 488 U.S. at 39; see also Cabana v. Bullock, 474 U.S. 376, 387 (1986) overturned on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n. 7(1987) (“[T]he court

must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at

some point in the process, the requisite factual finding as to the defendant's culpability has been made.”)

7

Admittedly, the DSM-IV was published two years after Dr. Winter’s diagnosis of Petitioner. Even so, the

definition of mental retardation described by Lott was recognized as the clinical standard at least five years prior to Dr.

Winter’s testimony. See Diagnostic and Statistical Manual of Mental Disorders 28 (3d ed.1987) (“DSM-III”) (“The

essential features of [mental retardation] are: (1) significantly subaverage general intellectual functioning, accompanied

by (2) significant deficits or impairments in adaptive functioning, with (3) onset before the age of 18.”).

mentally retarded);. State v. Trent, No. 17705, 1999 WL 1243352 at *2 (Ohio Ct. App. December

23, 1999) (unpublished decision) (describing an individual as mentally retarded because he fit the

clinical definition under the DSM-IV). Moreover, the record in this case indicates that the state

supreme court applied the same clinical definition of mental retardation in its determination that

Petitioner is mentally retarded as it did in deciding Lott.

6

The Supreme Court of Ohio’s finding that Petitioner is mentally retarded was based solely

on the diagnosis of Dr. Donna Winter, a licensed clinical psychologist. Bies, 658 N.E.2d at 761.

Furthermore, it is clear from Dr. Winter’s testimony at Petitioner’s trial that she applied the same

clinical method of diagnosing mental retardation which was described by the court in Lott. According to Lott, a person must display three traits in order to be diagnosed with mental

retardation: “(1) significantly subaverage intellectual functioning, (2) significant limitations in two

or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before

the age of 18.” 779 N.E.2d at 1014; see also DSM-IV 41 (describing the same test)7

. Other

adaptive skills listed by the clinical definition of mental retardation include “home living,

social/interpersonal skills, use of community resources . . . functional academic skills, work, leisure,

health, and safety.” Atkins, 536 U.S. at 317 (quoting DSM-IV 41). In testifying as to Petitioner’s

mental retardation, Dr. Winter found each of the three traits required for a diagnosis of mental

retardation present in Petitioner.

The first criteria for a diagnosis of mental retardation is “significantly subaverage intellectual

functioning.” DSM-IV 49. This prong is established by “an IQ of approximately 70 or below on

an individually administered IQ test.” Id. Dr. Winter testified that Petitioner has an IQ of 69.

Similarly, Dr. Winter testified that Petitioner has significant limitations in several adaptive skills.

Dr. Winter testified as to Petitioner’s limited functional academic skills, noting that he is unable to

read, that he suffers from “developmental academic disorder,” and that he functions at a “third to
No. 06-3471 Bies v. Bagley Page 9

sixth grade level.” (J.A. 1166, 1168) Dr. Winter testified that Petitioner has significant limitations

to his ability to communicate, noting that he had “problems with language at a very early age” (J.A.

1209) Dr. Winter testified that Petitioner has significant limitations to his social and interpersonal

skills, noting that he was “violent and uncontrollable” at a very young age, (J.A. 1159), that he was

expelled from public school for his disruptive and often violent behavior, and that he was transferred

to a “severe behavior handicap class.” (J.A. 1163) Finally, Dr. Winter testified that Petitioner has

significant limitations to his ability to care for himself, noting that he had made a number of suicide

attempts by the age of 13. Finally, Dr. Winter testified that Petitioner’s limitations began to manifest

as early as age 3, thus establishing their onset before the age of 18. 

Based on Dr. Winter’s testimony—the testimony of a clinical psychologist—it is clear that

she relied on the clinical definition of mental retardation in diagnosing Petitioner. Because the

Supreme Court of Ohio held that Dr. Winter’s testimony was alone sufficient to establish

Petitioner’s mental retardation, Bies, 658 N.E.2d at 761, it is equally clear that the state supreme

court found Petitioner to be mentally retarded under the clinical definition of that mental disorder.

Accordingly, we conclude that the Supreme Court of Ohio’s post-Atkins decision in Lott did not

establish a new method of determining mental retardation for purposes of the Eighth Amendment.

Rather, Lott simply restated the same diagnostic method the Supreme Court of Ohio applied to the

Petitioner on direct appeal. Therefore, we hold that “the precise issue raised in the present case

[was] raised and actually litigated in the prior proceeding.” N.A.A.C.P., 821 F.2d at 330. 

Inasmuch as the precise issue litigated on direct appeal is now being raised again by the

government, we conclude that the first prong of the collateral estoppel test has been met. Id.

2. The Necessity of the State Supreme Court’s Finding

The second prong of the four-part collateral estoppel test requires that determination of the

issue being relitigated “must have been necessary to the outcome of the prior proceeding.” Id. We

believe that this prong has also been established here.

Under Ohio law, a sentencing court may not impose the death penalty unless that court has

first considered any mitigating factors weighing against a death sentence, Ohio Rev. Code

§ 2929.04(C), and found those mitigating factors proven by a preponderance of the evidence. State

v. Jenkins, 473 N.E.2d 264, 275 (Ohio 1984); see also Penry v. Lynaugh, 492 U.S. 302, 322 (1989)

(holding that a jury may not sentence a mentally retarded defendant to death unless it has been

allowed to consider the defendant’s mental retardation at sentencing). Furthermore, as the Supreme

Court of Ohio expressly acknowledged in Petitioner’s direct appeal, an Ohio court reviewing a death

sentence must engage in an independent review of the aggravating circumstances and mitigating

factors relevant to the sentence on review. Bies, 658 N.E.2d at 761. 

When reviewing a sentence of death, “the supreme court shall affirm a sentence of death only

if the particular court is persuaded from the record that the aggravating circumstances the offender

was found guilty of committing outweigh the mitigating factors present in the case and that the

sentence of death is the appropriate sentence in the case.” Ohio Rev. Code § 2929.05(A). This

independent review of the aggravating circumstances and mitigating factors is far more rigorous than

the deferential standard of review which appellate courts normally apply to findings of fact by a trial

court—even amounting to de novo review on both issues of law and issues of fact. See State v.

Holloway, 527 N.E.2d 831, 837 (Ohio 1988) (“[T]hree opportunities are provided defendants to

argue the appropriateness of a sentence less than death to courts which must decide the question de

novo.”) Indeed, the Supreme Court of Ohio’s reconsideration of the mitigating factors weighing

against a death sentence “parallels that of a jury when the sentence of death is imposed . . . .”

Jenkins, 473 N.E.2d at 306. 
No. 06-3471 Bies v. Bagley Page 10

8

This reading of Ohio law is bolstered by the plain language of the state’s death penalty statute, which requires

a sentencing court to ask whether the “aggravating circumstances the offender was found guilty of committing outweigh

the mitigating factors present in the case.” § 2929.05(A). Implicit in the requirement that a court consider the mitigating

factors “present in the case” is that the court must necessarily determine which mitigating factors are actually present

in that case.

An Ohio appellate court’s review of a death sentence is not only rigorous, it is sweeping.

During the sentencing phase of a capital defendant’s trial, an Ohio jury may not limit its inquiry to

considering only those mitigating factors the defendant argues are present in his or her case. Rather,

“Ohio law provides that the jury is required to consider as possible mitigating factors the nature and

circumstances of the offense; the history, character, and background of the defendant; and any other

factors that call for a penalty less than death or that lessen the appropriateness of the death penalty.”

State v. Jordan, 804 N.E.2d 1, 16 (Ohio 2004). Each of these factors—including the allencompassing inquiry into “any other factors that call for a penalty less than death or that lessen the

appropriateness of the death penalty”—must be considered by the jury even if they are not raised

by the defendant at trial. See id. (holding that a trial judge properly instructed a jury that it “must

consider” each of the mitigating factors described by statute before imposing the death penalty). 

Moreover, in considering these factors, the jury is not limited to finding mitigating factors

present in the evidence presented during a capital defendant’s mitigation case. Instead, the jury must

consider “any evidence” which leads to a conclusion that “any factors in mitigation of the imposition

of the sentence of death” are present in the defendant’s case. Id.; see also State v. Ashworth, 706

N.E.2d 1231, 1239–40 (Ohio 1999) (holding that a defendant who presents no mitigating evidence

to counter-balance aggravating circumstances may still receive a sentence other than death). In

other words, before a capital defendant may be sentenced to death, a jury must first examine the

entirety of the evidence in the case, and ask whether any parts of that evidence combine to outweigh

the prosecution’s case for imposing the death penalty. Because an Ohio appellate court’s review of

a death sentence “parallels that of a jury when the sentence of death is imposed,” this far-reaching

inquiry must be conducted de novo on appeal. Jenkins, 473 N.E.2d at 306. 

Due to the broad inquiry an Ohio court must perform before sentencing a person to death,

it would be impossible for that court to simply assume without deciding that a particular mitigating

factor exists, and then argue that the death penalty may still be imposed because the aggravating

circumstances outweigh that factor. Ohio law does not limit a court’s task in imposing the death

penalty to simply proving that the mitigating factors proffered by the defendant are insufficient to

overcome the prosecutor’s evidence. Jordan, 804 N.E.2d at 16. Rather, because a sentencing

court’s inquiry is open-ended, determining which mitigating factors are actually present in a case

is a necessary first step to determining whether those factors outweigh the aggravating

circumstances.8

Indeed the Supreme Court of Ohio engaged in just such an inquiry before upholding

Petitioner’s death sentence. In addition to determining that Petitioner is mentally retarded, the court

found numerous other mitigating factors in the evidence presented to the jury at trial. The court

found that the fact that Petitioner’s “father was an alcoholic who physically abused Bies's mother

before he abandoned the family,” mitigated the seriousness of his offense. Bies, 658 N.E.2d at 761.

It determined that his history of mental health problems, disruptive behavior and suicide attempts

were mitigating factors. Id. The Court found that Petitioner’s young age at the time of the crime

mitigated its seriousness, and it determined that his lack of a prior criminal record was also a

mitigating factor. Id. Each of these determinations were a necessary part of the court’s duty to

examine the entirety of the facts available to the jury and weigh them against the aggravating factors

proven at trial. Jordan, 804 N.E.2d at 16. Such a weighing could not have occurred unless the court

first determined what to place on either side of the scale.
No. 06-3471 Bies v. Bagley Page 11

Because the Supreme Court of Ohio found that Petitioner is mentally retarded pursuant to

a mandatory duty to weigh the aggravating circumstances in his case against any mitigating factors

which could be found in the record, we hold that the determination of this issue was “necessary to

the outcome” of Petitioner’s direct appeal, and thus the second prong of the collateral estoppel test

is met. N.A.A.C.P., 821 F.2d at 330.

3. The Finality of the State Supreme Court’s Judgment

Under the third prong of the collateral estoppel test, the proceeding in which Petitioner was

found to be mentally retarded “must have resulted in a final judgment on the merits.” Id. This prong

is easily established here. Petitioner was found to be mentally retarded in final judgment by the

Supreme Court of Ohio. Bies, 658 N.E.2d at 761. The Supreme Court of Ohio is the court of last

resort in that state; Ohio law does not allow appellate review of its supreme court’s decisions; see

Ohio Rev. Code § 2953.02, and the United States Supreme Court denied review of the state supreme

court’s decision. Bies v. Ohio, 517 U.S. 1238, 1238 (1996). Accordingly, we hold that the decision

which found Petitioner to be mentally retarded led to a final judgment on the merits of his case.

4. The State’s Opportunity to Litigate Petitioner’s Mental Retardation

The final prong of the collateral estoppel test requires that “the party against whom estoppel

is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.”

N.A.A.C.P., 821 F.2d at 330. We conclude that this prong is also established by the record in this

case.

The government argues against such a conclusion by claiming that the parties “did not really

have a fair opportunity before Atkins to litigate” the issue of Petitioner’s mental retardation.

(Respondent’s Br. at 35-36) This argument, however, ignores the record. On direct appeal to the

Ohio Court of Appeals and the Supreme Court of Ohio, Petitioner’s mental retardation was a

contested issue. In briefs before both courts, both parties presented arguments and cited evidence

in the record regarding whether Petitioner suffers from mental retardation. In both courts, the

government contested Petitioner’s claim that he is “supposedly retarded,” and cited evidence to

support this claim. (J.A. 789-90, 830-31) Both courts found Petitioner’s arguments more

compelling. Bies, 658 N.E.2d at 761; Bies, 1994 WL 102196 at *9. For the government to now

claim that the parties did not have a fair chance to litigate Petitioner’s mental retardation ignores its

own zealous advocacy on direct appeal.

We find that Petitioner and the government vigorously litigated the issue of his mental

retardation during Petitioner’s direct appeals. The government did not claim at any point during

those proceedings that they were somehow unfair, or otherwise denied them a full and fair chance

to present their arguments against a finding that Petitioner is mentally retarded. Furthermore, this

Court has no reason to doubt the fairness of the jurists on the Ohio Court of Appeals and the

Supreme Court of Ohio, and the government presents no evidence to this Court that the Ohio judges

paid insufficient regard to their arguments that Petitioner is not mentally retarded. Accordingly,

we conclude that the final prong of the collateral estoppel test has been established in this case.

Moreover, as “death is not a suitable punishment for a mentally retarded criminal,” Atkins, 536 U.S.

at 321, the Supreme Court of Ohio’s determination that Petitioner is mentally retarded is “sufficient

to establish legal entitlement to the life sentence.” Sattazahn, 537 U.S. at 109. We therefore hold

that Petitioner cannot be forced to relitigate the issue of his mental retardation under the Double

Jeopardy Clause. Ashe, 397 U.S. at 443. 
No. 06-3471 Bies v. Bagley Page 12

9

Although a petition for a writ of habeas corpus constitutes a civil, not a criminal, proceeding, a habeas

petitioner’s interests in avoiding stigma and preserving his own liberty are no less than those of a criminal defendant.

5. A Right Limited To The Accused

In an attempt to circumvent the Double Jeopardy Clause, the government also claims that

double jeopardy does not apply here because two Ohio court decisions have allowed the mental

retardation issue to be relitigated. See State v. Lorraine, No. 2003-T-0159, 2005 WL 1208119 at

*3 (Ohio Ct. App. May 20, 2005); State v. Bays, 824 N.E.2d 167, 171 (Ohio Ct. App. 2005).

Neither of these cases are relevant to the instant matter. In both cases, earlier state proceedings had

concluded that a capital defendant was not mentally retarded, and thus it was the government, not

the petitioner, who was claiming collateral estoppel. Lorraine, 2005 WL 1208119 at *3; Bays, 824

N.E.2d at 171. The Double Jeopardy Clause, however, has never been applied to allow a state to

prevent relitigation of an issue. Much to the contrary, it exists for the sole purpose of protecting

individual defendants against the power of overzealous state prosecutions. See Bullington, 451 U.S.

at 445 (“The underlying idea [of the Double Jeopardy Clause] is that the State with all its resources

and power should not be allowed to make repeated attempts to convict an individual for an alleged

offense . . . .” (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).

Moreover, insofar as collateral estoppel is a doctrine which exists independent of the Double

Jeopardy Clause, see Ashe, 397 U.S. at 443, a state actor may not avail itself of this doctrine in the

criminal context. See United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir. 2005); United

States v. Gallardo-Mendez, 150 F.3d 1240, 1244 (10th Cir. 1998); United States v. Pelullo, 14 F.3d

881, 893 (3d Cir. 1994); United States v. Harnage, 976 F.2d 633, 633 (11th Cir. 1992). Outside of

the double jeopardy context, the doctrine of collateral estoppel exists because of concerns over

judicial economy and finality—in most cases, a promptly issued decision, not subject to endless

appeals and relitigation, is desirable. Pelullo, 14 F.3d at 893; Harnage, 976 F.2d at 634. In criminal

cases, however “finality and conservation of private, public, and judicial resources are lesser values

than in civil litigation.” Pelullo, 14 F.3d at 893 (quoting Ashe, 397 U.S. at 465 (Burger, C.J.,

dissenting)). This is so, not because economy and finality lose value in the criminal context, but

because in a criminal case, the defendant “has at stake interest of immense importance, both because

of the possibility that he may lose his liberty upon conviction and because of the certainty that he

would be stigmatized by the conviction.”9

 In re Winship, 397 U.S. 358, 363 (1970). As the

Supreme Court has explained:

[T]he purpose of a criminal court is not to provide a forum for the ascertainment of

private rights. Rather it is to vindicate the public interest in the enforcement of the

criminal law while at the same time safeguarding the rights of the individual

defendant. The public interest in the accuracy and justice of criminal results is

greater than the concern for judicial economy professed in civil cases . . . .

Standefer v. United States, 447 U.S. 10, 25 (1980).

Because of a criminal defendant’s “interest of transcending value” in vindicating his rights

in a criminal case, Winship, 397 U.S. at 364, we join the Third, Ninth, Tenth and Eleventh Circuits

in holding that, in a criminal case, collateral estoppel may only be invoked by the accused. See

Smith-Baltiher, 424 F.3d at 920; Gallardo-Mendez, 150 F.3d at 1244; Pelullo, 14 F.3d at 893;

Harnage, 976 F.2d at 633. Collateral estoppel’s concern with swift, final adjudication cannot

overcome a criminal defendant’s interest in his own life and liberty. Accordingly, we reject the

government’s claim that, because Ohio law allows a death-row inmate to relitigate the issue of his

mental retardation, Lorraine, 2005 WL 1208119 at *3; Bays, 824 N.E.2d at 171, we must apply the

same standard when the government seeks to relitigate this same issue.
No. 06-3471 Bies v. Bagley Page 13

B. AEDPA

Even though the Double Jeopardy Clause prohibits relitigation of Petitioner’s mental

retardation, this Court may only grant his petition if he is in custody pursuant to a state court’s

decision “that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court[,]” § 2254(d)(1), or which was based on “an

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

proceeding.” § 2254(d)(2). In determining whether a state court unreasonably determined the facts

of a case, this Court presumes that any “determination of a factual issue made by a State court” is

correct. § 2254(e)(1). This presumption, however, may be rebutted by clear and convincing

evidence. Id.; Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir. 2007).

Clear and convincing evidence does demonstrate that the Ohio state court based its decision

to permit relitigation of Petitioner’s mental retardation on unreasonable determinations of fact. In

the Ohio trial court’s decision denying Petitioner’s motion for summary judgment, the court

concluded that “while the record contains evidence that Mr. Bies is mentally retarded, the Court is

unable to determine whether the experts applied the test as laid out by [Lott] to determine this issue.”

(J.A. 1610) With respect to Dr. Winter’s testimony, the Ohio trial court found that “Dr. Winter

concludes that Mr. Bies is mildly mentally retarded. There is no analysis of this issue, however

. . . .” (J.A. 1611) In a footnote, the opinion finds that Dr. Winter’s diagnosis of Petitioner “appears

to be based primarily on the IQ test.” (J.A. 1611 n.1) These findings, however, are contrary to the

record.

Dr. Winter’s testimony comprises fifty-six pages of the record in this case. In it, Dr. Winter

testified not only to Petitioner’s low IQ, but also to his limited functional academic skills, his

significant limitations to his ability to communicate, his significant limitations to his social and

interpersonal skills, and his significant limitations to his ability to care for himself, in addition to

testifying that all of these signs of mental retardation manifested at an early age. Contrary to the

Ohio trial court’s finding that Dr. Winter’s diagnosis is “based primarily on the IQ test,” her

testimony clearly demonstrates that she considered each of the three factors contained in the clinical

test for mental retardation, and found each of them present in Petitioner. See Lott, 779 N.E.2d at

1014.

Furthermore, the Ohio trial court’s finding ignored Dr. Winter’s occupation as a clinical

psychologist in finding that it is “unable to determine” whether Dr. Winter applied the clinical

standard for diagnosing Petitioner. The clinical test for assessing mental retardation, which is

described in Lott, represents the standard level of care offered by clinical psychologists in

diagnosing their patients. See Atkins, 536 U.S. at 318 (“[C]linical definitions of mental retardation

require not only subaverage intellectual functioning, but also significant limitations in adaptive skills

such as communication, self-care, and self-direction that became manifest before age 18.”)

Moreover, this standard of care represents the consensus view of researchers and clinicians across

the mental health care profession, and is used by “psychiatrists, other physicians, psychologists,

social workers, nurses, occupational and rehabilitation therapists, counselors, and other health and

mental health professionals.” DSM-IV xxiii. By suggesting that Dr. Winter may have used an

alternative method for diagnosing mental retardation, the Ohio trial court impliedly suggested that

she may have committed malpractice without any basis in the record for such a suggestion. See

Bruni v. Tatsumi, 346 N.E.2d 673, 676 (Ohio 1976) (holding that a health care professional may be

liable for malpractice if they “did some particular thing or things that [providers] of ordinary skill,

care and diligence would not have done under the same or similar circumstances, or failed or omitted

to do some particular thing or things which [providers] of ordinary skill, care and diligence would

have done under the same or similar circumstances.”).
No. 06-3471 Bies v. Bagley Page 14

The standard for diagnosing mental retardation described in Lott was not created from whole

cloth. Rather, Lott did no more than appropriate the very same standard of care which psychologists

and other mental health care professionals have applied for decades. See DSM-III 28 (defining

mental retardation in the same manner as Lott based on the standard of care in 1987). The record

provides no evidence that Dr. Winter abandoned her professional training when she diagnosed

Petitioner as mentally retarded; indeed her own testimony expressly describes Petitioner as

possessing each of the three traits required for a clinical diagnosis of mental retardation. In light of

the overwhelming evidence that Dr. Winter did in fact apply the clinical standard recognized by her

own profession, we conclude that clear and convincing evidence demonstrates that the Ohio trial

court unreasonably found that Dr. Winter could have applied a different standard.

The Ohio trial court’s determination that Dr. Winter may not have applied the clinical

definition of mental retardation was based on “an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” § 2254(d)(2). As the Supreme Court of

Ohio followed Dr. Winter’s testimony in its 1996 finding that Petitioner is mentally retarded, Bies, 658 N.E.2d at 761, the Ohio trial court’s unreasonable determination of fact led to its equally

unreasonable determination that the 1996 finding relied on a different method than the one described

in Lott. Accordingly, we hold that Petitioner’s double jeopardy rights are being violated pursuant

to a state court decision that is based on unreasonable determinations of fact.

CONCLUSION

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. See Burks v. United States, 437 U.S. 1, 16 (1978). We therefore do not concern ourselves

with 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. Gully, 592 F.2d at 287 (holding that a criminal defendant may not be

“twice put in jeopardy.”)

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. N.A.A.C.P., 821 F.2d at 330. 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.