                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 08a0279p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                X
                           Petitioner-Appellee, -
 MICHAEL BIES,
                                                 -
                                                 -
                                                 -
                                                                           No. 06-3471
         v.
                                                 ,
                                                  >
 MARGARET BAGLEY, Warden,                        -
                         Respondent-Appellant. -
                                                N

                                             Filed: August 5, 2008
                     Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
                                              _________________
                                                   ORDER
                                              _________________
        The court having received a petition for rehearing en banc, and the petition having been
circulated not only to the original panel members but also to all other active* judges of this court,
and less than a majority of the judges having favored the suggestion, the petition for rehearing has
been referred to the original panel.
       The panel has further reviewed the petition for rehearing and concludes that the issues raised
in the petition were fully considered upon the original submission and decision of the case.
Accordingly, the petition is denied.




       *
           Judge Cook recused herself from participation in this ruling.


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


        CLAY, Circuit Judge, concurring in the denial of rehearing en banc. When a court “enter[s]
findings sufficient to establish legal entitlement to the life sentence,” the Double Jeopardy Clause
“bars any retrial of the appropriateness of the death penalty.” Sattazahn v. Pennsylvania, 537 U.S.
101, 108, 109 (2003). Furthermore, under Atkins v. Virginia, 536 U.S. 304 (2002), “death is not a
suitable punishment for a mentally retarded criminal.” Id. at 321. Therefore, when the Ohio
Supreme Court entered a finding that Michael Bies is mentally retarded, State v. Bies, 658 N.E.2d
754, 761 (Ohio 1996), that finding barred any future trial regarding whether Bies could be executed,
and every Article III judge to hear Bies’ case has said as much. See Bies v. Bagley, 519 F.3d 324,
329 342 (6th Cir. 2008). Nevertheless, the dissent from the denial of rehearing en banc attempts to
argue that the uncontroversial issues presented by Bies’ case somehow warrant en banc review.
This opinion explains why Bies v. Bagley does not require such an extraordinary procedure.
                                                  I.
        On October 13, 1992, Michael Bies was found guilty, by an Ohio jury, of kidnapping,
attempted rape and murder. During the sentencing phase of his trial, Bies 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 letter from Dr. Myron S. Fridman, another licensed clinical
psychologist who diagnosed Petitioner as a “marginally functioning, mildly mentally retarded
man. . . .” Bies, 519 F.3d at 327. Nevertheless, the jury recommended the death sentence, and on
October 30, 1992, the trial court accepted this recommendation.
         Bies appealed his sentence to the Ohio Court of Appeal, and eventually to the Ohio Supreme
Court. Although both courts affirmed the death sentence, both courts also expressly held that Bies
is mentally retarded, and the state supreme court explicitly credited Dr. Winter’s diagnosis in making
this finding. See Bies, 658 N.E.2d at 761; State v. Bies, No. C-920841, 1994 WL 102196 at * 9 (Ohio
Ct.App. March 30, 1994).
       On June 20, 2002, the Supreme Court decided Atkins v. Virginia, which held that mentally
retarded individuals cannot constitutionally be executed. See 536 U.S. at 321. In light of Atkins, Bies
challenged his death sentence in a habeas petition filed pursuant to 28 U.S.C. § 2254. After Bies
exhausted his remedies in state court, the district court held that, under the Double Jeopardy Clause,
the government could not relitigate the already-decided question of whether Bies is mentally retarded,
and thus held that Atkins entitles Bies to a sentence other than death. Bies, 519 F.3d at 329. In a
unanimous decision, a panel of this Court affirmed. Id. at 342.
                                                  II.
        Under existing Supreme Court precedent, a person challenging their death sentence may claim
relief under two separate double jeopardy doctrines. The first of these doctrines, which the panel
opinion in Bies largely relied upon, stems from Ashe v. Swenson, 397 U.S. 436 (1970), which held
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.” Id. at 443; Bies, 519
F.3d at 332. As the panel opinion explained, this holding in Ashe incorporates the collateral estoppel
doctrine into in the Double Jeopardy Clause. Bies, 519 F.3d at 332–33. To bar relitigation of an
issue under the collateral estoppel doctrine, four 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
No. 06-3471            Bies v. Bagley                                                           Page 3


       sought must have had a full and fair opportunity to litigate the issue in the prior
       proceeding.
Id. at 333 (quoting N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass’n, 821 F.2d 328, 330
(6th Cir.1987) (footnotes omitted)).
        In Sattazahn v. Pennsylvania, the Supreme Court described a second avenue which a death
row inmate may pursue in challenging their sentence under the Double Jeopardy Clause. Under
Sattazahn, once a judge or jury has “acquitted” a capital defendant “by entering findings sufficient
to establish legal entitlement to the life sentence,” jeopardy attaches to such an “acquittal,” and the
defendant cannot again be placed in danger of a death sentence for the same offense. 537 U.S. at
108–09. Unlike collateral estoppel, which is available to capital and non-capital defendants alike,
see Ashe, 397 U.S. at 446 (applying collateral estoppel to benefit a robbery defendant), Sattazahn
affords double jeopardy protections to capital defendants above and beyond those enjoyed by persons
accused of less serious crimes; ensuring that once a defendant is declared entitled to a life sentence,
that declaration will not be relitigated. 537 U.S. 108–09; see also Gregg v. Georgia, 428 U.S. 153,
187 (1976) (plurality opinion) (“When a defendant’s life is at stake, the Court has been particularly
sensitive to insure that every safeguard is observed.”)
        Focusing on Sattazahn’s use of the word “acquittal,” the dissent claims that we must limit
application of the Double Jeopardy Clause to the circumstances described in Poland v. Arizona, 476
U.S. 147 (1986). In Poland, the Supreme Court held that a defendant is protected against a second
capital sentencing proceeding when the court in the first proceeding, “‘decid[ed] that the prosecution
has not proved its case’ for the death penalty and hence has ‘acquitted’ petitioners.” 476 U.S. at 154
(quoting Bullington v. Missouri, 451 U.S. 430, 443 (1981)). In Sattazahn, however, the Court
clarified Poland’s holding, explaining that, unlike other cases where double jeopardy shielded a
defendant against a second capital sentencing hearing, “in Poland . . . neither the judge nor the jury
had ‘acquitted’ the defendant in his first capital-sentencing proceeding by entering findings sufficient
to establish legal entitlement to the life sentence.” Sattazahn, 537 U.S. at 108–09 (emphasis added).
        As this language from Sattazahn makes clear, the Supreme Court understands Poland to
establish two propositions. First, the Double Jeopardy Clause prohibits a second capital sentencing
proceeding when the first such proceeding results in an “acquittal.” Id. Just as importantly, however,
Sattazahn defines an acquittal as a judgment which enters “findings sufficient to establish legal
entitlement to the life sentence.” Id.
         This understanding of Sattazahn is consistent with the facts underlying Poland, which
concerned capital defendants who, after their conviction and capital sentence was overturned by a
state appellate court, were retried and again sentenced to death. Poland, 476 U.S. at 150. At the first
trial, the prosecution argued that two statutory aggravating circumstances were present in the
defendants’ act of murder: (1) “[defendants] had committed the offense as consideration for the
receipt, or in expectation of the receipt, of [something] of pecuniary value; and (2) [defendants] had
committed the offense in an especially heinous, cruel, or depraved manner.” Id. at 149 (internal
citations and quotation marks omitted). Although the trial court found that the second aggravating
circumstance was present, it also concluded that the first circumstance did not exist because, as a
matter of law, that circumstance could only exist in a case involving a “contract killing.” Id.
        On appeal, the Arizona Supreme Court held that the Poland defendants’ verdict was tainted,
and thus ordered a new trial. Id. at 150. In so holding, however, the state supreme court held both
that the evidence presented in the first trial did not show that the defendants had acted in a “heinous,
cruel, or depraved manner,” and that the trial court was incorrect, as a matter of law, in holding that
the “pecuniary value” aggravating factor could only be applied to contract killings. Id. On remand,
 No. 06-3471            Bies v. Bagley                                                             Page 4


the defendants were once again convicted and sentenced to death, and the trial court found both
aggravating factors were present.
         In light of these facts, Sattazahn’s holding that a court acquits a defendant “by entering
findings sufficient to establish legal entitlement to the life sentence” is consistent with Poland’s
holding that the defendants in that case were not entitled to relief under the Double Jeopardy Clause.
In their first trial, the Poland defendants were sentenced to death pursuant to the trial court’s factually
unsupported conclusion that one aggravating circumstance was present, and its legally erroneous
conclusion that another did not apply. Id. Although the state supreme court reversed the trial court’s
factual determination that the defendants’ crime was committed in a “heinous, cruel, or depraved
manner,” it also reversed the trial court’s legal determination that the pecuniary value aggravating
circumstance was not present. Id. Thus, at no point did a court enter a finding of fact that no
aggravating circumstances were present in Poland, thus entitling the Poland defendants to a life
sentence.
         Unlike Poland, however, in Bies, a court did issue a finding of fact which entitles Bies to a
life sentence. On direct appeal of Bies’ sentence, the Ohio Supreme Court found that Bies is mentally
retarded, as that term is clinically defined. See Bies, 658 N.E.2d at 761. Because such a finding
renders Bies constitutionally ineligible for the death penalty, see Atkins, 536 U.S. at 321; State v.
Lott, 779 N.E.2d 1011, 1014 (Ohio 2002), it amounts to an “acquittal” under Sattazahn, and thus
jeopardy attaches to the determination that Bies is mentally retarded. Sattazahn, 537 U.S. at 108–09.
                                                   III.
        Although Sattazahn provides sufficient grounds to hold that Michael Bies cannot
constitutionally be forced to relitigate the issue of his mental retardation, the panel instead relied on
collateral estoppel principles incorporated into the Double Jeopardy Clause by Ashe. Bies, 519 F.3d
at 332–40. As the panel explained at length in its opinion, Bies has proved each of the four elements
necessary to assert collateral estoppel; that is, he has shown that: (1) the question of his mental
retardation was raised and actually litigated in the prior proceeding; (2) determination of this issue
was necessary to the outcome of that proceeding; (3) the prior proceeding resulted in a final judgment
on the merits; and (4) the government had a full and fair opportunity to litigate the question of
whether Bies is mentally retarded. Id. at 333 (citing N.A.A.C.P., 821 F.2d at 330).
       The dissent does not contest that the panel applied the correct legal standard in holding that
Bies must prove these four elements in order to succeed under Ashe. Instead, the dissent argues that
the panel erred in determining both that Bies’ mental retardation was raised and litigated before the
Ohio Supreme Court, and that determination of this issue was necessary to the outcome of that
proceeding. Neither of these claims has merit.
A.      “Actually Litigated”
         The dissent argues that “the constitutionality of Bies’ death sentence was not
‘actually . . . determined’ by the state courts because saying that Bies suffered from mild mental
retardation in deciding the mitigating factors that counsel against a death sentence is not the same
thing as saying that Bies is ineligible for the death penalty under Atkins.” Dissenting Op. at 12.
Essentially, this argument claims that, though the Ohio Supreme Court made a finding of fact during
its resolution of one legal issue, that same finding of fact may now be relitigated in the context of a
different legal inquiry.
        The Supreme Court disagrees with the dissent, however. In Turner v. Arkansas, 407 U.S. 366
(1972), Dennis Turner was charged with murdering Larry Wayne Yates during a poker game, but was
acquitted upon the jury’s finding that Turner was not present at the game. Id. at 366, 369.
Subsequent to his acquittal on the murder charge, Turner was charged with robbing another member
 No. 06-3471           Bies v. Bagley                                                             Page 5


of the same poker game. Id. 368. The two trials presented two very different legal questions; the first
concerned whether Turner could be convicted of murder, and the second whether he could be
convicted of robbery. Nevertheless, the Supreme Court applied collateral estoppel, holding that once
a court made the factual determination that Turner was not present at the poker game, the state could
not constitutionally claim that Turner was actually at that poker game in a future proceeding. Id. at
369–70.
         The instant case is controlled by Turner. On direct appeal, the Ohio Supreme Court
determined, under the clinically accepted definition of the term, that Michael Bies is mentally
retarded. Because a person who is mentally retarded under the clinical definition of that term cannot
constitutional be executed in the State of Ohio, see Atkins, 536 U.S. at 317; Lott, 779 N.E.2d at 1014,
Bies now argues that he cannot be executed. Though Bies’ Atkins claim raises a different legal issue
than the one originally considered by the Ohio Supreme Court, both claims involve the same issue
of fact; the Ohio Supreme Court determined that Bies is mentally retarded, as that term is clinically
defined, and the government does not contest that if Bies is mentally retarded, he cannot
constitutionally be executed. See Atkins, 536 U.S. at 316–17. Moreover, under Turner, the State is
not free to contest Bies’ mental retardation. Once a factual issue “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 applies even if the future lawsuit concerns a different
question of law. See Turner, 407 U.S. at 369–70. Accordingly, the panel did not err in holding that
the government cannot relitigate the question of whether or not Bies is mentally retarded.
        Additionally, the dissent suggests that there might be some relevant distinction between the
“individualized” determination that a particular defendant is mentally retarded and the “categorical”
bar on executing mentally retarded persons. However, whatever distinction the dissent is drawing,
it is not relevant to Bies. The Ohio Supreme Court determined, in a mitigation proceeding, that
Michael Bies is mentally retarded under the clinical definition of that term. Had the identical finding
of fact been made in an Atkins hearing, that finding alone would have been sufficient to render Bies
ineligible for the death penalty. See Atkins, 536 U.S. at 317; Lott, 779 N.E.2d at 1014. Regardless
of what legal questions were at issue in various proceedings, the question of fact resolved by the Ohio
Supreme Court is identical to the one now contested by the state.
B.      “Necessary to the Outcome”
        Next, the dissent argues that, though Ohio law forbids a state appellate court from affirming
a death sentence unless it first determines which mitigating factors are present in the case and weighs
those factors de novo against any aggravating factors, see State v. Jenkins, 473 N.E.2d 264, 296 (Ohio
1984) (holding that an Ohio appellate court’s role in reviewing a death sentence “parallels that of a
jury when the sentence of death is imposed”), the Ohio Supreme Court’s determination that Michael
Bies is mentally retarded was somehow not “necessary” to its decision to affirm Bies’ death sentence.
If the panel had held otherwise, however, it would have applied a tortured meaning to the word
“necessary.”
         In order to invoke collateral estoppel, an accused must prove, among other things, that
resolving the factual issue determined by an earlier proceeding was necessary to the outcome of that
proceeding. N.A.A.C.P., 821 F.2d at 330; see Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Under
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.”) To say that X is “necessary” to Y is the same thing as saying that it is impossible
for Y to exist unless X also exists. Accordingly, because it is impossible for an Ohio appellate court
to affirm a death sentence without first determining which mitigating factors are present in a case,
see Jenkins, 473 N.E.2d at 296, the Ohio Supreme Court’s resolution of the question of whether or
No. 06-3471               Bies v. Bagley                                                                      Page 6


not Michael Bies is mentally retarded was necessary to its eventual decision to affirm Bies’ death
sentence; and the panel committed no error in applying collateral estoppel in Bies.
         The dissent claims that collateral estoppel does not apply to the Ohio Supreme Court’s
determination that Bies is mentally retarded because that finding “cuts against” that court’s ultimate
conclusion that Bies should be executed. Dissenting Op. at 12. This claim, however, overstates the
extent to which the fact that a court’s determination was contrary to its ultimate holding precludes
the application of collateral estoppel. It is generally the case in the collateral estoppel context that
“[a] determination adverse to the winning party does not have preclusive effect.” Fireman’s Fund
Ins. Co. v. Int’l Market Place, 773 F.2d 1068, 1069 (9th Cir. 1985). Moreover, as the dissent
correctly states, the purpose of this general rule is to protect litigants from being estopped “from
relitigating an issue decided in proceedings from which it could not appeal.” Dissenting Op. at 12;
see United Aircraft Corp. v. NLRB, 440 F.2d 85, 99 (2d Cir. 1971); see also White v. Elrod, 816 F.2d
1172, 1174 (7th Cir. 1987) (“[W]hen a decision of a tribunal of first instance is subject to appeal, the
decision cannot be given collateral estoppel (or res judicata) effect if the party sought to be bound
could not have appealed it, for example because he had won.”)
        When, however, the party against whom collateral estoppel is asserted was able to challenge
the findings reached in the prior proceeding on appeal, courts have held that a finding of fact which
is adverse to the party prevailing in that prior proceeding may nonetheless have preclusive effect.
See, e.g., United States v. Weems, 49 F.3d 528, 533 (9th Cir. 1995); United Aircraft, 440 F.2d at 99.
Thus in United States v. Weems, defendant Clarke Weems used structured funds to purchase two
parcels of land,1 one of which was used for the cultivation of marijuana. 49 F.3d at 530. In a 1990
opinion concerning whether or not the properties were subject to forfeiture, a district court found that
Weems was unaware of the marijuana cultivation on his property, but nevertheless held that the
properties were subject to forfeiture because they had been purchased with illegally structured funds.
Id. About fifteen months later, Weems was indicted on three counts of structuring currency
transactions, and the trial court permitted the prosecution to introduce evidence that Weems was
growing marijuana on his property as evidence of Weems’ motive in structuring the transactions. Id.
After he was convicted, Weems appealed his conviction on collateral estoppel grounds, arguing that
the 1990 finding that he was unaware of marijuana cultivation on his property precluded the
prosecution from arguing in a successive proceeding that this cultivation motivated his decision to
structure funds.
         The government argued on appeal that because it was “not entitled to appeal, as of right, the
district court’s finding [which] was contained in a judgment in the government’s favor,” that finding
should not be given preclusive effect. Id. at 533. The Ninth Circuit, however, rejected this argument,
explaining that “the government had the opportunity to cross-appeal the court’s decision in this case
when defendant appealed the forfeiture,” and thus Weems did not fall within the normal complement
of cases where a judgment in favor of the party against whom collateral estoppel is asserted could
not have be appealed by that party. Id. Under Weems, when the fact that a judgment was obtained
in a party’s favor does not prevent any findings contained in that judgment from being appealed by
that party, collateral estoppel may operate against that party with respect to the judgment’s findings
of fact.
        The Second Circuit reached a similar result in United Aircraft Corp. v. NLRB. In that case,
a union attempted to relitigate the question of whether an employer’s unfair labor practice had caused
the union to lose majority support among the employer’s workers, even though a prior NLRB
decision, whose ultimate result was favorable to the union, had found that the employer’s unfair labor


         1
           “Structuring” consists of manipulating transactions with a financial institution with the purpose of evading
the reporting requirements governing such institutions. 31 U.S.C. § 5324(a)(3).
No. 06-3471            Bies v. Bagley                                                            Page 7


practices did not result in the union losing its majority. United Aircraft, 440 F.2d at 99. Although
the finding of fact adverse to the union was contained in a decision favorable to the union, the court
held that collateral estoppel prevented the union from relitigating the adverse finding of fact because
“the union could have sought review of the Board’s adverse determination on this issue.” Id. Once
again, “the general rule that ‘determinations adverse to the winning litigant do not have conclusive
effect as collateral estoppel’ should not be applied” when the litigant’s victory in the prior proceeding
did not prevent them from appealing the adverse determination. Id. (quoting 1B James William
Moore, Federal Practice 3923 (1965)).
        Bies v. Bagley fits comfortably within the rule articulated by Weems and United Aircraft.
Michael Bies was convicted and sentenced to death in an Ohio trial court. Bies appealed his sentence
to an intermediate appeals court, which found both that Bies is mentally retarded and that he should
nonetheless be executed, and he appealed it again to the Ohio Supreme Court, which reached the
same conclusion. Thus, although Bies’ mental retardation was initially determined in a decision
favorable to the government, the government was never prevented from seeking reconsideration of
this determination on appeal. Indeed, the final decision to determine that Bies is mentally retarded
was issued by the Ohio Supreme Court, which is the court of last resort for all issues of fact raised
in Ohio state court. See Ohio Rev.Code § 2953.02. Thus, the government had every possible
opportunity to appeal the determination that Bies is mentally retarded, and the determination
nonetheless survived appellate review. In such circumstances, “the general rule that ‘determinations
adverse to the winning litigant do not have conclusive effect as collateral estoppel’ should not be
applied.” United Aircraft, 440 F.2d at 99 (quoting 1B Moore 3923).
        Indeed, the dissent does not contest the existence of the rule described in Weems and United
Aircraft. Instead, the dissent claims that Bies may not benefit from the collateral estoppel doctrine
because the government’s victory before the Ohio Supreme Court prevented it from appealing the
question of Bies’ mental retardation to the United States Supreme Court. Dissenting Op. at 12-13.
This claim, however, reflects a misunderstanding of the United States Supreme Court’s jurisdiction.
         With a few rare exceptions, the Supreme Court’s jurisdiction is entirely discretionary, and the
Court generally will only exercise its discretion to resolve an “important question of federal law,”
or to resolve a question federal law which has created confusion amongst the lower courts. See Sup.
Ct. R. 10 (describing the Supreme Court’s “Considerations Governing Review on Certiorari”). The
United States Supreme Court does not exercise its jurisdiction to review a state court’s finding of
fact, especially when multiple state courts have all reached the same factual conclusion. See, e.g.,
Oliver v. United States, 466 U.S. 170, 175 n.4 (1984) (“[W]e do not review here the state courts’
finding as a matter of ‘fact’ that the area searched was not an ‘open field.’”); Page v. Arkansas
Natural Gas Corp., 286 U.S. 269, 271 (1932) (“Many and complicated questions of fact are involved
and were argued here, but, as they have been found in favor of the respondent by both courts below,
we do not review them . . . .”); Creswill v. Grand Lodge Knights of Pythias of Georgia, 225 U.S. 246,
261 (1912) (“[I]t is true that upon a writ of error to a state court we do not review findings of fact”).
Thus, the dissent’s concern—that it is somehow unfair to apply collateral estoppel when the outcome
of the Ohio Supreme Court’s decision prevented review of a factual conclusion by the United States
Supreme Court—is baseless. Regardless of the outcome of the Ohio Supreme Court’s decision, the
United States Supreme Court does not review a state court’s findings of fact.
                                                  IV.
       Finally, the dissent claims that the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254(d), requires deference to the state court’s opinion denying relief to
Bies. Specifically, the dissent alleges that the Supreme Court’s cases cut against the decision in Bies,
and that the panel erred in determining that the state decision denying post-conviction relief to Bies
was based on an unreasonable determination of facts.
No. 06-3471            Bies v. Bagley                                                           Page 8


        The dissent is simply wrong in its characterization of Supreme Court precedent; indeed the
Supreme Court’s decisions in Ashe, Atkins, and Sattazahn compel the result reached by the panel.
Ashe held that, under the Double Jeopardy Clause, once “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.” 397 U.S. at 443. Atkins held that a mentally retarded offender may
not constitutionally be executed. 536 U.S. at 320. Sattazahn, held that a judgment “based on
findings sufficient to establish legal entitlement to the life sentence, amounts to an acquittal on the
merits and, as such, bars any retrial of the appropriateness of the death penalty.” 537 U.S. at 108
(emphasis removed). In Bies, the Ohio Supreme Court determined in a valid and final judgment that
Michael Bies is mentally retarded. Because Atkins renders a mentally retarded individual ineligible
for the death penalty, the determination that Bies is retarded was a “finding[] sufficient to establish
legal entitlement to the life sentence;” and it could not be relitigated in a future proceeding. Any
other holding would be contrary to Ashe, Atkins, and Sattazahn.
        Moreover, even if these three cases do not compel the result reached in Bies, the panel
determined that the state decision denying post-conviction relief to Bies was based on an
unreasonable determination of the facts. Although the dissent does not contest that the state decision
under review made an unreasonable finding of fact, it accuses the panel of failing to “connect [an]
allegedly botched fact finding to an established legal doctrine.” Dissenting Op. at 13. This is curious
accusation, however, because, as the panel opinion explains at great length, Bies, 519 F.3d at 333–37,
340–42, the state court’s unreasonable finding concerned a factual issue which, according to that very
state court, was dispositive of Bies’ case.
        An Ohio prisoner is ineligible for the death penalty if he is mentally retarded as that term is
clinically defined. See Atkins, 536 U.S. at 317; Lott, 779 N.E.2d at 1014. In determining that Bies
is mentally retarded, the Ohio Supreme Court adopted the testimony of Dr. Donna Winter, a clinical
psychologist who clinically diagnosed Bies as being mentally retarded. As the panel opinion in Bies
explains in detail, Bies, 519 F.3d at 333–37, 340–42, Dr. Winter applied the appropriate clinical
definition of mental retardation when she diagnosed Bies. Yet in the post-conviction proceeding
under review in Bies, an Ohio court found that Dr. Winter might have applied some other, non-
clinical standard in her diagnosis, and relied on this finding in denying relief to Bies. Indeed, as the
Ohio court’s opinion makes clear, the court not only relied on this finding, the finding was the sole
basis for the court’s decision. According to the Ohio court, Atkins and Lott “provide the test to
determine whether someone is mentally retarded for purposes of the present analysis,” but “[t]here
is no indication that the [Ohio Supreme] Court applied the analysis now required.” (J.A. 1612) This
finding of fact made up the sole factual basis of the court’s decision to deny relief to Bies under the
Double Jeopardy Clause—absent this finding, which the panel determined to be unreasonable, there
is no basis whatsoever for the Ohio court’s decision.
        Furthermore, the Ohio court’s unreasonable finding of fact was not only dispositive of its
decision, it was hugely relevant to the question of whether Bies is entitled to relief under the
collateral estoppel doctrine. As this opinion has already explained, the first prong of the collateral
estoppel analysis concerns whether “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. Accordingly, when the Ohio
court determined that the issue of whether or not Bies is mentally retarded (as that term is clinically
defined) was not litigated in the prior proceeding that found him to be mentally retarded, this
determination by the Ohio court necessarily foreclosed relief under the collateral estoppel doctrine.
When the panel determined the Ohio court’s finding to be unreasonable, and thus found that “the
precise issue raised in the present case [was] raised and actually litigated in the prior proceeding,”
it allowed Bies’ collateral estoppel claim to move forward. Thus, contrary to the dissent’s claim that
the panel failed to “connect [an] allegedly botched fact finding to an established legal doctrine,” the
Ohio court’s “botched” finding of fact was intimately connected to the question of whether Bies may
seek relief under the collateral estoppel doctrine.
No. 06-3471            Bies v. Bagley                                                          Page 9


                                          CONCLUSION
         Bies v. Bagley is an easy case. It warrants no further review by the en banc Court. As the
panel opinion correctly explained, the collateral estoppel doctrine which the Supreme Court
articulated in Ashe v. Swenson mandates that Michael Bies be granted a writ of habeas corpus.
Moreover, even if any uncertainty did exist regarding the proper application of Ashe, Bies’ case
provides an abysmal vehicle to resolve such alleged uncertainty because the Supreme Court’s
decision in Sattazahn v. Pennslyvania provides an alternative grounds upon which Bies is entitled
to relief. Thus, despite the dissent’s efforts to stir controversy where none exists, the en banc Court
correctly decided not to subject Bies to further unnecessary litigation.
No. 06-3471            Bies v. Bagley                                                         Page 10


       SUTTON, Circuit Judge, dissenting from the denial of rehearing en banc. Four Article III
judges have reviewed this case, and each of them has come to the same conclusion—that the Double
Jeopardy Clause bars the State from litigating Bies’ eligibility for the death penalty under Atkins v.
Virginia, 536 U.S. 304 (2002). They may be right. I write today, however, simply to point out that
there may be another side to the story.
        In 1992, Michael Bies and a friend attempted to rape a ten-year-old boy, beat him severely
when he resisted, then left him to die. State v. Bies, 658 N.E.2d 754, 756–57 (Ohio 1996). An Ohio
jury convicted Bies of aggravated murder and three capital-eligibility specifications. Id. at 758. At
trial and on direct appeal, Bies argued that his diminished mental capacity mitigated his culpability
for the offense, and each court acknowledged that Bies had “mild mental retardation to borderline
mental retardation.” State v. Bies, No. C-920841, 1994 WL 102196, at *9 (Ohio Ct. App. Mar. 30,
1994) (internal quotation marks omitted); Bies, 658 N.E.2d at 761. But in the end the state courts all
found that Bies’ diminished mental capacity and other mitigating factors did not “outweigh the
aggravating circumstances of the murder” and found the death penalty appropriate for the crime.
Bies, 1994 WL 102196, at *10; see also Bies, 658 N.E.2d at 762.
        Six years after Bies’ efforts to overturn his capital sentence on direct review had come to an
end, the United States Supreme Court decided Atkins, which held that the Eighth (and Fourteenth)
Amendment prohibits governments from imposing a capital sentence on individuals suffering from
mental retardation, 536 U.S. at 321, and which directed the States to develop appropriate standards
for determining whether capital-eligible defendants suffer from mental retardation, id. at 317. Soon
enough, Bies sought state-court, post-conviction relief on two grounds: that the Eighth Amendment,
as construed in Atkins, required the State to vacate his capital sentence, and that the Double Jeopardy
Clause required the State to vacate his capital sentence in view of the Ohio courts’ mitigation
determinations that he suffers from mild mental retardation. After the state trial court denied his
double-jeopardy claim, but before it had a chance to rule on his Atkins claim, Bies moved to amend
his then-pending federal habeas petition to include a double-jeopardy claim. The district court
permitted the amendment. Then the district court, and later a panel of this court, held that the Double
Jeopardy Clause required the federal courts to vacate Bies’ capital sentence and to impose a life
sentence instead.
        In questioning the panel’s approach to this case, let me start by acknowledging that I do not
question many of the premises that underlie it. The United States Constitution and Ohio law indeed
require the state courts independently to weigh the aggravating circumstances that favor a capital
sentence against any mitigating factors, including if appropriate the defendant’s mental and
psychological profile, before upholding a death sentence. I will accept for the sake of argument that
the Ohio courts independently determined that Bies is mentally retarded in upholding his death-
penalty conviction, even though that is far from clear. See Bies, 658 N.E.2d at 761; Bies, 1994 WL
102196, at *9. Atkins prevents a State from imposing the death penalty on an individual suffering
from mental retardation. And the Double Jeopardy Clause prevents a State from relitigating a
criminal defendant’s eligibility for the death penalty. See Bullington v. Missouri, 451 U.S. 430, 445
(1981).
        Yet these legal principles and this finding offer no basis for applying double jeopardy to a
state court decision that affirms a death sentence. Double jeopardy bars a State from relitigating a
defendant’s eligibility for capital punishment only when “the sentencing judge or the reviewing court
has decided that the prosecution has not proved its case for the death penalty and hence has acquitted
petitioners.” Poland v. Arizona, 476 U.S. 147, 154 (1986) (internal quotation marks and alteration
omitted). Or, as the Court has put the point more recently, “the touchstone for double-jeopardy
protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’” Sattazahn v.
Pennsylvania, 537 U.S. 101, 109 (2003). But no court in this case ever determined that the
prosecution failed to prove its sentencing case: The state courts serially rejected Bies’ claims that
 No. 06-3471           Bies v. Bagley                                                            Page 11


the death penalty should not be imposed. Put another way—the way the Constitution describes
it—Bies was never “twice put in jeopardy,” U.S. Const. amend. V, in the post-conviction claim that
he filed in state court. Quite to the contrary: he was taking a second run at vacating his death
sentence—which is assuredly his right but just as assuredly does not offend the double-jeopardy bar.
        Poland offers considerable guidance on the point. In Poland, the prosecution relied on two
aggravating factors: (1) that the defendant expected pecuniary gain from the murder and (2) that the
crime was especially heinous, cruel or depraved. 476 U.S. at 149. In imposing the death penalty, the
state sentencing court held that the State proved the second aggravating factor but not the first
(because the crime was not a contract killing). Id. On appeal, the Arizona Supreme Court came to
the opposite conclusion on each point, holding (1) that the pecuniary-gain aggravator was not limited
to contract killings and (2) that the State had not proved that the second aggravating factor applied.
Id. at 150. After being retried and sentenced to death again, the defendant appealed to the United
States Supreme Court, arguing that his independent acquittals on both aggravating factors taken
together barred the State from relitigating his eligibility for the death penalty. The Supreme Court
disagreed, holding—in words with direct relevance here—that “[a]ggravating circumstances are not
separate penalties or offenses” upon which jeopardy can attach, but are instead “standards to guide
the making of the choice between the alternative verdicts of death and life imprisonment.” Id. at 156
(internal quotation marks and alterations omitted). Because double jeopardy’s concern is the death
determination itself, and because no court had held “that the prosecution had failed to prove its case
that the petitioners deserved the death penalty,” id. at 154 (internal quotation marks omitted), the
Court held that the State was not barred from relitigating the petitioners’ eligibility for it, id. at
156–57. What is true of aggravating factors is also true of mitigating factors. The Ohio courts all
individually affirmed Bies’ capital sentence, and therefore no statement from those courts, whether
about aggravating factors or mitigating factors, implicates the double-jeopardy bar.
        These principles, it seems to me, suffice to resolve this case. In reaching a different
conclusion, the panel (and the concurrence) principally rely on three double-jeopardy
decisions—Ashe v. Swenson, 397 U.S. 436 (1970), Turner v. Arkansas, 407 U.S. 366 (1972) (per
curiam), and Sattazahn. I am not persuaded. Ashe involved two prosecutions, not one, and one
acquittal, not none. See 397 U.S. at 439–40. In the first prosecution in Ashe, the question was
whether the defendant was one of the individuals who had robbed a multi-participant poker game.
The jury acquitted the defendant. In the second prosecution, the government charged the same
defendant with robbing other participants in the same poker game. The Court barred the second
prosecution, holding that the State could not relitigate the defendant’s involvement in the robbery
because “the single rationally conceivable issue in dispute before the [first] jury was whether the
petitioner had been one of the robbers.” Id. at 445. Turner is of a piece with Ashe, as it involved
strikingly similar facts and the same result. See 407 U.S. at 368–70 (holding that double jeopardy
barred prosecution of the defendant for robbing a poker game participant where the defendant’s prior
acquittal for being an accessory to the robbery victim’s murder necessarily included a finding that
he was not present at the time of the robbery). Unlike Ashe and Turner, however, the State has not
reprosecuted Bies after an acquittal, and thus “the controlling constitutional principle” of a
“prohibition against multiple trials” has not been offended. United States v. Wilson, 420 U.S. 332,
346 (1975). Ashe and Turner, in short, involved serial prosecutions by the government while this
case involves serial efforts by the defendant to vacate his capital sentence.
        As the panel reads Sattazahn, it establishes that double jeopardy applies “when a judge or jury
‘enter[s] findings sufficient to establish legal entitlement to the life sentence,’” Bies v. Bagley, 519
F.3d 324, 332 (6th Cir. 2008) (quoting Sattazahn, 537 U.S. at 109), whether there has been an
acquittal or not. But that is not how I read the case. The rest of the quotation reiterates the time-
honored precondition that jeopardy does not attach in a sentencing proceeding unless there has been
an “acquittal” on the death penalty itself. In full, the Court says that “in Poland, unlike in [Bullington
and Arizona v. Rumsey, 467 U.S. 203 (1984)], neither the judge nor the jury had ‘acquitted’ the
No. 06-3471            Bies v. Bagley                                                          Page 12


defendant in his first capital-sentencing proceeding by entering findings sufficient to establish legal
entitlement to the life sentence.” Sattazahn, 537 U.S. at 108–09. The holding for the State in
Sattazahn confirms the point—namely, that a hung jury regarding the death penalty did not present
a double-jeopardy problem because that “result—or more appropriately, that non-result—cannot
fairly be called an acquittal.” Id. at 109. Because “the touchstone for double-jeopardy protection in
capital-sentencing proceedings” remains “whether there has been an ‘acquittal,’” and because Bies,
like Sattazhan, “cannot establish that the jury or the court ‘acquitted’ him during his first capital-
sentencing proceeding,” id., the double-jeopardy bar does not apply.
         Besides ignoring the traditional acquittal requirement for invoking the double-jeopardy bar,
the panel takes a wrong turn in its application of traditional issue-preclusion principles to this case.
Preclusion generally attaches only to questions that were both “actually and necessarily determined”
by “prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979) (emphasis added). As to
the first requirement, the constitutionality of Bies’ death sentence was not “actually . . . determined”
by the state courts for this basic reason: saying that Bies suffered from mild mental retardation in
considering the mitigating factors that counsel against a death sentence is not the same thing as
holding that Bies is ineligible for the death penalty under Atkins. Just as the law contains many
similar, yet distinct, inquiries for competence—competence to stand trial, competence to waive jury
trial rights, competence to represent oneself—so too here. Cf. Indiana v. Edwards, 128 S. Ct. 2379
(2008). The mitigation and Atkins inquiries flow from different constitutional requirements under
the Eighth Amendment—the requirement that capital defendants receive individualized consideration
of mitigating factors, see Lockett v. Ohio, 438 U.S. 586, 604–05 (1978), and the categorical (i.e., non-
individualized) requirement that those who are mentally retarded not be executed due to the
diminished deterrent value of the death penalty on, and the diminished culpability of, such
individuals, see Atkins, 536 U.S. at 317–21. But if proof were needed to establish that the Ohio
courts did not “actually . . . determine[]” the Atkins issue, it ought to suffice to point out that they
could not have decided the question: Atkins was decided six years after the Ohio Supreme Court’s
opinion.
         As to the second requirement, I am hard-pressed to understand how the Ohio courts
“necessarily determined” the Atkins issue—how in other words they necessarily decided an issue
“that did not affect the result” of the state courts’ review of Bies’ capital sentence. 18 Charles Alan
Wright et al., Federal Practice & Procedure: Jurisdiction 2d § 4421 (2008) (emphasis added); see
also NLRB v. Master Slack &/or Master Trousers Corp., 773 F.2d 77, 81 (6th Cir. 1985). Unlike
Ashe and Turner, where the precluded issue was necessary to the first judgment, see Ashe, 397 U.S.
at 445; Turner, 407 U.S. at 369, the Ohio courts’ mitigation determinations had no bearing on the
results of those cases, for the simple reason that they would have affirmed his capital sentence either
way—whether he suffered from mental retardation or not. Far from being necessary to the judgment,
the Ohio courts’ mental-retardation findings cut against it—making them quintessentially the kinds
of rulings not eligible for issue-preclusion treatment. See, e.g., McKinley v. City of Mansfield, 404
F.3d 418, 429 (6th Cir. 2005); Fletcher v. Atex, Inc., 68 F.3d 1451, 1457–58 (2d Cir. 1995); Balcom
v. Lynn Ladder & Scaffolding Co., Inc., 806 F.2d 1127, 1127–28 (1st Cir. 1986); see also 18 Wright
et al., supra, § 4421 (explaining that the classic example of issues not necessary to the judgment are
those that are contrary to the ultimate result, such as jury findings of negligence where the defendant
wins on contributory-negligence grounds).
        The effect of the panel’s decision is to say that the State lost this criminal case by winning
it. Yet issue preclusion generally does not bar the State (or any party) from relitigating an issue
decided in proceedings from which it could not appeal. See 18 Wright et al., supra, § 4421; see also
Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1204–05 n.7 (1st Cir. 1993); White v. Elrod, 816
F.2d 1172, 1174 (7th Cir. 1987). But the panel opinion does just that. As a mitigating factor that the
state courts had to weigh against the aggravating factors, a finding of Bies’ mental retardation was
an obstacle to the judgment entered rather than a necessary step toward it. Having won the case in
No. 06-3471            Bies v. Bagley                                                           Page 13


the state courts, Ohio of course had no reason to seek review in the United States Supreme Court
(even had Atkins already been decided), and Bies will search in vain for a case in which that Court
accepted review of a State’s appeal from a victory. I know of no case in which any court applied the
double-jeopardy bar to invalidate a decision that the State (or United States) had won.
        The panel’s only argument that Bies’ mental capacity was necessary to the state courts’
judgments is that the courts had a “duty to examine the entirety of the facts available to the jury and
weigh them against the aggravating factors proven at trial.” Bies, 519 F.3d at 338. But the fact that
the state courts had to consider (or even to decide) Bies’ mental capacity does not mean that the
determination they reached was necessary to the outcome of the decision. Because any state court
finding that Bies was mentally retarded was in no sense “necessarily determined” by the prior
judgment, Montana, 440 U.S. at 153, and because no court has ever held that the prosecution “failed
to prove its case that [Bies] deserved the death penalty,” Poland, 476 U.S. at 154 (internal quotation
marks omitted), neither issue preclusion nor double jeopardy bars relitigation of the issue.
         All of this would be true even if AEDPA did not apply. But of course AEDPA does govern
this case, and, as I have shown, the only Supreme Court decisions bearing on this case all cut against
the panel’s decision. It is true, as Bies and the panel point out, that AEDPA permits a federal court
to grant habeas relief solely on the ground that the state courts made unreasonable findings of fact.
And it is true that the panel rested its AEDPA analysis on the view that the state trial court, in ruling
on Bies’ double-jeopardy claim, unreasonably questioned whether the Ohio Supreme Court relied
on the same standard for assessing mental retardation in conducting its direct review of Bies’
sentence that was later adopted as “a standard for evaluating an individual’s claim of mental
retardation” under Atkins in State v. Lott, 779 N.E.2d 1011, 1014 (Ohio 2002). See Bies, 519 F.3d
at 340–42. But this does not satisfy AEDPA, even if I accept for the sake of argument that the state
trial court’s finding was unreasonable. A federal court cannot simply identify an unreasonable fact
finding, then conclude that AEDPA has been satisfied. It must connect that allegedly botched finding
to an established legal doctrine. Here there are a series of legal hurdles that Bies must clear before
this alleged fact question has any bearing on this case: Does the Double Jeopardy Clause apply
without an acquittal? Do issue-preclusion principles apply when the issue purportedly decided in the
earlier case was not actually or necessarily decided in that case? Because Bies cannot satisfy these
requirements under established law, much less under AEDPA, his fact-finding argument simply
chases the tail of identifying a cognizable theory of relief.
                                               *   *    *
         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. See Turner v.
Bagley, 401 F.3d 718, 724 (6th Cir. 2005). And unlike cases where we have permitted unexhausted
double-jeopardy challenges before the defendant’s second prosecution commenced, see Gully v.
Kunzman, 592 F.2d 283, 286 (6th Cir. 1979), 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
No. 06-3471            Bies v. Bagley                                                        Page 14


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, Atkins, 536 U.S. at 308–09, and Bies’ IQ
places him within the category of individuals the Court recognized might be affected by its decision,
see id. at 316 (noting that the practice of executing mentally retarded individuals has become “truly
unusual” given that “only five [States] have executed offenders possessing a known IQ less than 70”
since the Court last ruled on the question).
         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, see Karen Farkas, Ruling on Mental Retardation
Takes 6 Off Ohio’s Death Row, Cleveland Plain Dealer, May 12, 2008, at B1. 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,” id. at 317 (internal quotation marks and alteration
omitted), and principles of comity and federalism mandate that we give the Ohio courts the first
opportunity to apply that restriction to Bies’ case.
       I respectfully dissent from the court’s denial of rehearing en banc.


                                              ENTERED BY ORDER OF THE COURT


                                                    /s/ Leonard Green
                                              ___________________________________
                                                            Clerk
