                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0095p.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
                    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


                                           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

         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.
No. 06-3471              Bies v. Bagley                                                                     Page 3


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 also2 found that “[t]he defendant is shown by the record to be mildly
mentally retarded . . . .” (J.A. 881)
        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.




        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.
No. 06-3471               Bies v. Bagley                                                                          Page 4


                                                   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 court3 proceeding.” 28 U.S.C. § 2254(d)(2). We
hold that this AEDPA standard should be applied here. 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 that4 just such circumstances exist when a
defendant raises a double jeopardy claim on habeas review. 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



         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).
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


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.




         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.
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


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


         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.”).
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


        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 all-
encompassing 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 necessary8 first step to determining whether those factors outweigh the aggravating
circumstances.
         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.


         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.
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


         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.


         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.
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.
