Posted by Jonathan Adler:
*Atkins* and Double Jeopardy:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218721377
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, [1]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, [2]Robert Loblaw found the decision to be "remarkable"
and "creative." Yet as [3]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.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/08a0095p-06.pdf
2.
http://www.enotes.com/blogs/decision-blog/2008-02/a-remarkable-death-row-habeas-decision-from-the-sixth/
3. http://www.volokh.com/posts/1204262601.shtml
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