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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - x
DAVID BOBBY WARDEN
Petitioner
v No 08-598
MICHAEL BIES
- - - - - - - - - - - - - - - - - x
Washington DC
Monday April 27 2009
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 1102 am
APPEARANCES
BENJAMIN C MIZER ESQ Solicitor General Columbus
Ohio on behalf of the Petitioner
JOHN H BLUME ESQ Ithaca NY on behalf of the
Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
BENJAMIN C MIZER ESQ
On behalf of the Petitioner 3
JOHN H BLUME ESQ
On behalf of the Respondent 19
REBUTTAL ARGUMENT OF
BENJAMIN C MIZER ESQ
On behalf of the Petitioner 42
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P R O C E E D I N G S
(1102 am)
CHIEF JUSTICE ROBERTS We will hear
argument next in Bobby versus Bies Mr Mizer
ORAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER Mr Chief Justice and may it
please the Court
Three separate lines of double jeopardy
analysis lead independently to the conclusion that the
Double Jeopardy Clause commits the Ohio postconviction
court to hold a hearing to determine whether Mr Bies is
mentally retarded for purposes of Atkins
First there has been no acquittal in this
case Second there is no successive jeopardy and
third even if collateral estoppel analysis applies
under Ashe versus Swenson the Atkins issue has not
actually and necessarily been decided Each of these
factors shows that the Ohio courts decision to go
forward with the Atkins hearing was reasonable and this
Court therefore should consistent with AEDPA give the
Ohio courts their first chance to adjudicate Mr Biess
Atkins claim
Much of the dispute in this case centers on
the parties disagreement over the meaning of Ashe
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versus Swenson and its application But Mr Bies cannot
benefit from Ashe because Ashe -- the Ashe collateral
estoppel rule only operates to benefit defendants who
have in hand an earlier acquittal and Mr Bies has
never been acquitted of the death penalty in any sense
of the word
This Court beginning in Bullington and
extending through Sattazahn has defined an acquittal
in a death penalty context as a finding by the sentencer
that the death -- that the sentence of death is
warranted in a particular case And the -- the jury and
the trial judge in this case agreed that death was
warranted and in fact the Ohio Supreme Court and
every reviewing court has agreed that death was
warranted
JUSTICE GINSBURG But they all agreed that
he was mentally retarded and that was a mitigator
They all agreed to that But assuming youre right on
issue preclusion what more -- the State says yes we
recognize mental retardation means you cant
administer the death penalty But what would the State
show at an Atkins hearing that is not already in the
record of this case I mean why do it again
MR MIZER The reason to do it again Your
Honor is because the -- the standard set forth by the
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Ohio Supreme Court in Lott when it was implementing this
Courts decision in Atkins contained three definitions
-- three elements of the Atkins definition of the
definition of mental retardation And those three
elements were not carefully demonstrated by Dr Winter
And in fact the -- the record here -- the Ohio
post-conviction court has concluded -- doesnt suffice
to make the post-Atkins Lott determination
The -- at pages 101a to 104a of the Petition
Appendix the State postconviction court looks at all
the evidence including Dr Winters testimony and says
that there needs to be a hearing where experts will be
called in order to determine whether Mr Bies not only
suffers from significant intellectual limitations which
includes IQ but there is conflicting IQ evidence in the
record It also includes findings that he suffers from
substantial limitations in adaptive skills the skills
needed for daily life which Dr Winter never
specifically spoke about She spoke only about IQ when
she was talking about mental retardation
JUSTICE KENNEDY I dont want to take you
too far outside the record and you can come back to it
but I -- I just have this question Suppose that in a
jury case the jury -- pre-Atkins the jury says we find
that the defendant has a 65 IQ but that in light of the
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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C O N T E N T S
ORAL ARGUMENT OF PAGE
BENJAMIN C MIZER ESQ
On behalf of the Petitioner 3
JOHN H BLUME ESQ
On behalf of the Respondent 19
REBUTTAL ARGUMENT OF
BENJAMIN C MIZER ESQ
On behalf of the Petitioner 42
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P R O C E E D I N G S
(1102 am)
CHIEF JUSTICE ROBERTS We will hear
argument next in Bobby versus Bies Mr Mizer
ORAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER Mr Chief Justice and may it
please the Court
Three separate lines of double jeopardy
analysis lead independently to the conclusion that the
Double Jeopardy Clause commits the Ohio postconviction
court to hold a hearing to determine whether Mr Bies is
mentally retarded for purposes of Atkins
First there has been no acquittal in this
case Second there is no successive jeopardy and
third even if collateral estoppel analysis applies
under Ashe versus Swenson the Atkins issue has not
actually and necessarily been decided Each of these
factors shows that the Ohio courts decision to go
forward with the Atkins hearing was reasonable and this
Court therefore should consistent with AEDPA give the
Ohio courts their first chance to adjudicate Mr Biess
Atkins claim
Much of the dispute in this case centers on
the parties disagreement over the meaning of Ashe
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versus Swenson and its application But Mr Bies cannot
benefit from Ashe because Ashe -- the Ashe collateral
estoppel rule only operates to benefit defendants who
have in hand an earlier acquittal and Mr Bies has
never been acquitted of the death penalty in any sense
of the word
This Court beginning in Bullington and
extending through Sattazahn has defined an acquittal
in a death penalty context as a finding by the sentencer
that the death -- that the sentence of death is
warranted in a particular case And the -- the jury and
the trial judge in this case agreed that death was
warranted and in fact the Ohio Supreme Court and
every reviewing court has agreed that death was
warranted
JUSTICE GINSBURG But they all agreed that
he was mentally retarded and that was a mitigator
They all agreed to that But assuming youre right on
issue preclusion what more -- the State says yes we
recognize mental retardation means you cant
administer the death penalty But what would the State
show at an Atkins hearing that is not already in the
record of this case I mean why do it again
MR MIZER The reason to do it again Your
Honor is because the -- the standard set forth by the
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Ohio Supreme Court in Lott when it was implementing this
Courts decision in Atkins contained three definitions
-- three elements of the Atkins definition of the
definition of mental retardation And those three
elements were not carefully demonstrated by Dr Winter
And in fact the -- the record here -- the Ohio
post-conviction court has concluded -- doesnt suffice
to make the post-Atkins Lott determination
The -- at pages 101a to 104a of the Petition
Appendix the State postconviction court looks at all
the evidence including Dr Winters testimony and says
that there needs to be a hearing where experts will be
called in order to determine whether Mr Bies not only
suffers from significant intellectual limitations which
includes IQ but there is conflicting IQ evidence in the
record It also includes findings that he suffers from
substantial limitations in adaptive skills the skills
needed for daily life which Dr Winter never
specifically spoke about She spoke only about IQ when
she was talking about mental retardation
JUSTICE KENNEDY I dont want to take you
too far outside the record and you can come back to it
but I -- I just have this question Suppose that in a
jury case the jury -- pre-Atkins the jury says we find
that the defendant has a 65 IQ but that in light of the
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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P R O C E E D I N G S
(1102 am)
CHIEF JUSTICE ROBERTS We will hear
argument next in Bobby versus Bies Mr Mizer
ORAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER Mr Chief Justice and may it
please the Court
Three separate lines of double jeopardy
analysis lead independently to the conclusion that the
Double Jeopardy Clause commits the Ohio postconviction
court to hold a hearing to determine whether Mr Bies is
mentally retarded for purposes of Atkins
First there has been no acquittal in this
case Second there is no successive jeopardy and
third even if collateral estoppel analysis applies
under Ashe versus Swenson the Atkins issue has not
actually and necessarily been decided Each of these
factors shows that the Ohio courts decision to go
forward with the Atkins hearing was reasonable and this
Court therefore should consistent with AEDPA give the
Ohio courts their first chance to adjudicate Mr Biess
Atkins claim
Much of the dispute in this case centers on
the parties disagreement over the meaning of Ashe
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versus Swenson and its application But Mr Bies cannot
benefit from Ashe because Ashe -- the Ashe collateral
estoppel rule only operates to benefit defendants who
have in hand an earlier acquittal and Mr Bies has
never been acquitted of the death penalty in any sense
of the word
This Court beginning in Bullington and
extending through Sattazahn has defined an acquittal
in a death penalty context as a finding by the sentencer
that the death -- that the sentence of death is
warranted in a particular case And the -- the jury and
the trial judge in this case agreed that death was
warranted and in fact the Ohio Supreme Court and
every reviewing court has agreed that death was
warranted
JUSTICE GINSBURG But they all agreed that
he was mentally retarded and that was a mitigator
They all agreed to that But assuming youre right on
issue preclusion what more -- the State says yes we
recognize mental retardation means you cant
administer the death penalty But what would the State
show at an Atkins hearing that is not already in the
record of this case I mean why do it again
MR MIZER The reason to do it again Your
Honor is because the -- the standard set forth by the
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Ohio Supreme Court in Lott when it was implementing this
Courts decision in Atkins contained three definitions
-- three elements of the Atkins definition of the
definition of mental retardation And those three
elements were not carefully demonstrated by Dr Winter
And in fact the -- the record here -- the Ohio
post-conviction court has concluded -- doesnt suffice
to make the post-Atkins Lott determination
The -- at pages 101a to 104a of the Petition
Appendix the State postconviction court looks at all
the evidence including Dr Winters testimony and says
that there needs to be a hearing where experts will be
called in order to determine whether Mr Bies not only
suffers from significant intellectual limitations which
includes IQ but there is conflicting IQ evidence in the
record It also includes findings that he suffers from
substantial limitations in adaptive skills the skills
needed for daily life which Dr Winter never
specifically spoke about She spoke only about IQ when
she was talking about mental retardation
JUSTICE KENNEDY I dont want to take you
too far outside the record and you can come back to it
but I -- I just have this question Suppose that in a
jury case the jury -- pre-Atkins the jury says we find
that the defendant has a 65 IQ but that in light of the
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
410121421 early 8221817 171 378 evidence 5111562 924 1117 easiest 1123demonstrated 4110 4317 71922 81 218172125 effect 144 1513 55 disagree 4419 1062224222425 236 2210 234denied 1718 disagreement 11710122522 2615 3215Denno 317 325 121623 1321 2921 3118 effectively 82depending 329 discover 3120 181420233315 3521 Eighth 131823describe 2310 discretion 141 1925 203 3623 37514 145 418192421 2521 discussion 1917 2317 296 401219 either 89 177 described 1525 disease 1225 3191117
decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
624 161013 entirely 336determinative doing 724 133 executing 84 16162023 3419261919 134 246 349 execution 406 287 291924 entitle 2924determine 312 342021 413 3018 312 311 4319513 617 double 3911 exhausted 1716 3314 381215 entitled 16171212 1412 1510171920 exhaustion
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
1614 Federal 164 261212 285 436 323 expert 1412 172125 181 3424 3723 granted 396 identity 3020
2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
191 368 final 2218 function 2324 grounds 3911 illuminate 132 4414 find 524 1012 263 guidepost 1319 imagine 27416
explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
G 31 H 117 25 1913 extensive 1217 20711 227 2110 3515general 115 habeas 164extent 1219 2222 24213 impose 1117
2018 1722 3952414 251218 2522 3622F generally 3049 hand 44 2718 2519 29923 imposing 173facing 1623 getting 314 happens 2242925 301719 improvidentlyfact 413 56 Ginsburg 416 hat 13123025 311 396
617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
factors 319 141012 253 76 815 9215 335 3918 310 920111320 124 go 319 1123 1014 11224214 437 individual 24312562124 135 1519 1216 138focused 1917 ineligible 2921131025 3615 182 261718 161 1714followed 3919 3315 401920
facts 1925 2810 2913 1810 196Ford 149 inquiries 824420 3521 3923 44725form 1918 insanity 149
factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
Jintent 4418 191115 2010 legal 1515 marking 1318 JA 1820 3817 interlocutory 201525 213 2216 296 1323
38181717 21615 2221 3313 431215 matter 111 289 Jackson 317intermediate 237 2445 legally 292324 3523 40513jeopardy 39112122 2222 256121524 lets 1418 274 412 442
315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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1519 2011 516 616 711 mistake 28811 1213 2613 371218252420 71515242816 3417 383 406 412
necessary 8621 1016 111124mitigating 61 overwhelming 4124 445 824 93457 121321227152325 3517 persons 4120 99 242223 13312161024 111920 persuasive
P2424 251317 148 171612561621 1023 11342521 2634 183102124 P 311224 131720 1112 2623 271 206625 213 page 22 3822 231316 3417 pertaining 452
necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
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normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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versus Swenson and its application But Mr Bies cannot
benefit from Ashe because Ashe -- the Ashe collateral
estoppel rule only operates to benefit defendants who
have in hand an earlier acquittal and Mr Bies has
never been acquitted of the death penalty in any sense
of the word
This Court beginning in Bullington and
extending through Sattazahn has defined an acquittal
in a death penalty context as a finding by the sentencer
that the death -- that the sentence of death is
warranted in a particular case And the -- the jury and
the trial judge in this case agreed that death was
warranted and in fact the Ohio Supreme Court and
every reviewing court has agreed that death was
warranted
JUSTICE GINSBURG But they all agreed that
he was mentally retarded and that was a mitigator
They all agreed to that But assuming youre right on
issue preclusion what more -- the State says yes we
recognize mental retardation means you cant
administer the death penalty But what would the State
show at an Atkins hearing that is not already in the
record of this case I mean why do it again
MR MIZER The reason to do it again Your
Honor is because the -- the standard set forth by the
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Ohio Supreme Court in Lott when it was implementing this
Courts decision in Atkins contained three definitions
-- three elements of the Atkins definition of the
definition of mental retardation And those three
elements were not carefully demonstrated by Dr Winter
And in fact the -- the record here -- the Ohio
post-conviction court has concluded -- doesnt suffice
to make the post-Atkins Lott determination
The -- at pages 101a to 104a of the Petition
Appendix the State postconviction court looks at all
the evidence including Dr Winters testimony and says
that there needs to be a hearing where experts will be
called in order to determine whether Mr Bies not only
suffers from significant intellectual limitations which
includes IQ but there is conflicting IQ evidence in the
record It also includes findings that he suffers from
substantial limitations in adaptive skills the skills
needed for daily life which Dr Winter never
specifically spoke about She spoke only about IQ when
she was talking about mental retardation
JUSTICE KENNEDY I dont want to take you
too far outside the record and you can come back to it
but I -- I just have this question Suppose that in a
jury case the jury -- pre-Atkins the jury says we find
that the defendant has a 65 IQ but that in light of the
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
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182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
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changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
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cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
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decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
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2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
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factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
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factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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judicial 3825 Kennedys 821issue 317 419 look 621 354 1361321243931516 kind 15237367 95 4111 14317 1923 426152224 251825141718 159 looked 3022 20478 2113
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405513 412 81821 9712 maintain 1723issued 1822 417 84 1118 44291618 1010 maintainedissues 614 129 1413
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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2418mild 392023 multiple 3979 2911 331 people 1422 obligation 1944318 outweigh 124 221420 2910
N occurred 1910mildly 381219 232 419 N 211 31 offense 61 95 411 44121 outweighed perceive 119 narrowing 303 offer 178 4410 minimizes 238 111320 1310 perfectly 1814 narrowly 4413 oh 3423mini-verdict 2620 permissiblenature 61 3518 Ohio 116 311 127 131724 overcome 923 1717 necessarily 318 31922 413 minutes 4211 overwhelmed person 3213
1519 2011 516 616 711 mistake 28811 1213 2613 371218252420 71515242816 3417 383 406 412
necessary 8621 1016 111124mitigating 61 overwhelming 4124 445 824 93457 121321227152325 3517 persons 4120 99 242223 13312161024 111920 persuasive
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necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
new 1066 43316 444 Pardon 21291922 102 plays 2624 22131516 Ohios 4418 3151013 12112 please 38 1915 289121317 okay 818 916 part 1823 2422 137 21724 point 2022 2910 311113 3023 3623233425 3520 2110 2419 32192425 operated 2017 particular 4113723 2625 4224 3325 345 operates 43 98 2914 303 mitigators 1214 448 41131718 operating 2119 305 409 428 1310 232 pointed 2516
normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
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rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
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ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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Ohio Supreme Court in Lott when it was implementing this
Courts decision in Atkins contained three definitions
-- three elements of the Atkins definition of the
definition of mental retardation And those three
elements were not carefully demonstrated by Dr Winter
And in fact the -- the record here -- the Ohio
post-conviction court has concluded -- doesnt suffice
to make the post-Atkins Lott determination
The -- at pages 101a to 104a of the Petition
Appendix the State postconviction court looks at all
the evidence including Dr Winters testimony and says
that there needs to be a hearing where experts will be
called in order to determine whether Mr Bies not only
suffers from significant intellectual limitations which
includes IQ but there is conflicting IQ evidence in the
record It also includes findings that he suffers from
substantial limitations in adaptive skills the skills
needed for daily life which Dr Winter never
specifically spoke about She spoke only about IQ when
she was talking about mental retardation
JUSTICE KENNEDY I dont want to take you
too far outside the record and you can come back to it
but I -- I just have this question Suppose that in a
jury case the jury -- pre-Atkins the jury says we find
that the defendant has a 65 IQ but that in light of the
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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heinous nature of the offense this is not a mitigating
factor and that he should be sentenced to death
In a subsequent Atkins proceeding can the
jury finding with reference to the IQ be conclusive
MR MIZER No it cannot
JUSTICE KENNEDY Or must that be reopened
MR MIZER It can Your Honor for two
reasons
JUSTICE KENNEDY It can -- can be reopened
MR MIZER It can be Yes Im sorry It
cant be preclusive It can be reopened for two
reasons one relating to the definition of mental
retardation post-Atkins and the other relating to the
different issues
First with respect to the definition the
Ohio Supreme Court has made clear in Lott that IQ is not
enough to determine mental retardation In fact the --
the clinicians and the American Association of Mental
Retardation say that IQ is not enough particularly in a
borderline case where IQ is close to the line And
there you need to look very carefully at adaptive
skills Moreover --
JUSTICE KENNEDY But could the -- could the
defendant argue the -- that -- the accused argue that at
least as to the finding of the 65 IQ that that is a
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
410121421 early 8221817 171 378 evidence 5111562 924 1117 easiest 1123demonstrated 4110 4317 71922 81 218172125 effect 144 1513 55 disagree 4419 1062224222425 236 2210 234denied 1718 disagreement 11710122522 2615 3215Denno 317 325 121623 1321 2921 3118 effectively 82depending 329 discover 3120 181420233315 3521 Eighth 131823describe 2310 discretion 141 1925 203 3623 37514 145 418192421 2521 discussion 1917 2317 296 401219 either 89 177 described 1525 disease 1225 3191117
decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
1614 Federal 164 261212 285 436 323 expert 1412 172125 181 3424 3723 granted 396 identity 3020
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191 368 final 2218 function 2324 grounds 3911 illuminate 132 4414 find 524 1012 263 guidepost 1319 imagine 27416
explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
G 31 H 117 25 1913 extensive 1217 20711 227 2110 3515general 115 habeas 164extent 1219 2222 24213 impose 1117
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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reasoning 31211620 2023 requirement retroactive
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T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
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71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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given
MR MIZER And --
JUSTICE KENNEDY And that that issue ie
the level of IQ cannot be relitigated the number
MR MIZER And the answer to that is no
Your Honor for issue preclusive purposes because the
issue is completely different in the mitigation context
from the post-Atkins context And I think that
difference is highlighted by the difference between
Penry and Atkins Pre-Atkins what the sentencer was
talking about the jury and then the Ohio Supreme Court
when it affirmed was what this Court told it to talk
about in Penry
It was talking about mental retardation as a
mitigating factor and the State of Ohio and the Ohio
courts had to know the definition of mental
retardation pre-Atkins In fact I think if there had
been a definition and if the courts had excluded
evidence from the jury that didnt rise to a certain
level of severity then we would have run into a -- a
post -- a Penry and Tennard problem And so all of the
evidence was allowed in and it was treated as
mitigating
And so what the Ohio Supreme Court was doing
was what Penry told it to do Considering mitigating
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
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42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
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judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
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role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
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rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
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1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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evidence of mental retardation But post-Atkins the
inquiries are different because Atkins effectively
constitutionalized a clinical judgment in making -- in
defining a categorical bar on executing the mentally
retarded
And so post-Atkins it is necessary to be
very careful about the clinical judgment and this
record does not suffice for that clinical judgment And
I think it -- think it does not behoove either party to
suggest that the record --
JUSTICE SOUTER Well when you say the
clinical judgment you mean the specific finding of a
65 IQ
MR MIZER The -- the clinical judgment
that I refer to Your Honor is that required by -- by
Lott It looks not only at IQ but also at the adaptive
skills limitation
JUSTICE SOUTER Okay I grant you that
under -- under the earlier case the 65 IQ was not
dispositive and I mean that was the -- the case in
Justice Kennedys hypothetical But it was necessary
under the early case to come to a determination of what
the IQ was even though that determination was not
dispositive of the result And because it was necessary
to come to a determination why shouldnt there be a
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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preclusion
MR MIZER Because Your Honor I think
there are two different meanings of necessary It was
-- it was necessary in the sense that it had to be done
but it wasnt necessary in the issue preclusive offense
because it -- it was --
JUSTICE SOUTER It wasnt necessary to
reach that particular -- in other words the
determination of 65 was not necessary to reach the
conclusion that they reached
MR MIZER Correct
JUSTICE SOUTER And you -- you are saying
the very fact that it was not dispositive of the result
means that it cannot be preclusive now
MR MIZER Thats correct Your Honor
JUSTICE SOUTER Okay
MR MIZER And -- and --
JUSTICE GINSBURG May I ask how it worked
pre-Atkins when mental retardation was a mitigator We
are told that the appellate courts independently
reviewed We have a finding at the trial level that
yes there is a mitigator mental retardation but it
doesnt overcome the aggravator so the jury comes in
with a death sentence
Then at the appellate level is there a
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
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169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
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changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
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decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
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2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
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explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
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factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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judicial 3825 Kennedys 821issue 317 419 look 621 354 1361321243931516 kind 15237367 95 4111 14317 1923 426152224 251825141718 159 looked 3022 20478 2113
jurors 118 kinds 42231511 162425 looking 103 2124 2279jury 411 524 know 716 136 1714 1822 2818 2214 2322
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405513 412 81821 9712 maintain 1723issued 1822 417 84 1118 44291618 1010 maintainedissues 614 129 1413
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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2418mild 392023 multiple 3979 2911 331 people 1422 obligation 1944318 outweigh 124 221420 2910
N occurred 1910mildly 381219 232 419 N 211 31 offense 61 95 411 44121 outweighed perceive 119 narrowing 303 offer 178 4410 minimizes 238 111320 1310 perfectly 1814 narrowly 4413 oh 3423mini-verdict 2620 permissiblenature 61 3518 Ohio 116 311 127 131724 overcome 923 1717 necessarily 318 31922 413 minutes 4211 overwhelmed person 3213
1519 2011 516 616 711 mistake 28811 1213 2613 371218252420 71515242816 3417 383 406 412
necessary 8621 1016 111124mitigating 61 overwhelming 4124 445 824 93457 121321227152325 3517 persons 4120 99 242223 13312161024 111920 persuasive
P2424 251317 148 171612561621 1023 11342521 2634 183102124 P 311224 131720 1112 2623 271 206625 213 page 22 3822 231316 3417 pertaining 452
necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
new 1066 43316 444 Pardon 21291922 102 plays 2624 22131516 Ohios 4418 3151013 12112 please 38 1915 289121317 okay 818 916 part 1823 2422 137 21724 point 2022 2910 311113 3023 3623233425 3520 2110 2419 32192425 operated 2017 particular 4113723 2625 4224 3325 345 operates 43 98 2914 303 mitigators 1214 448 41131718 operating 2119 305 409 428 1310 232 pointed 2516
normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
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review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
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rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
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rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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continuing adversary contest about whether retardation
exists and therefore is a mitigator or is it just the
-- the judge the appellate judge looking over the
record that has been made at trial
MR MIZER The -- the appellate courts
engaged in a de novo record and new -- new evidence
doesnt come into the record on direct review But
there is still argument -- the parties are still in an
adversarial posture
JUSTICE GINSBURG So -- so that the
prosecutor could still argue that was unreasonable for
them to find mental retardation so there shouldnt be
that mitigator
MR MIZER Thats correct Your Honor but
there wasnt at the time a -- a great deal of incentive
to litigate that question because the Ohio Supreme Court
had said that mental retardation only merited some
weight in mitigation And in fact the -- the
appellate briefs on direct review are in the Joint
Appendix and -- excerpts of those briefs And Mr Bies
himself on direct review didnt vigorously argue his
mental retardation evidence In fact he said that the
arguably in his words the most persuasive
mitigating evidence was his lack of a prior record and
his lack of prior violent history
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
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68 1813 69 1813 38113
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And so none of the parties thought that
mental retardation in 1992 through 1996 was very
persuasive because the courts didnt treat it and the
jury didnt treat it as very persuasive Perhaps for the
reasons that this Court underscored in Atkins where the
Court said that as it had said in Penry that mental
retardation evidence presented to a jury in mitigation
could be a two-edged sword because some jurors might
perceive and the prosecutor might argue that that
evidence went to future dangerousness and therefore the
-- the State of Ohio argued that the mental retardation
evidence here was simply not persuasive and it was
outweighed by the -- the aggravating factors that the
jury had found Atkins told the --
JUSTICE STEVENS May I interrupt right
there Mr Mizer Is it fair to interpret the jurys
decision to impose the death penalty as having found
that he was not mentally retarded and therefore was not
a mitigating factor or that even though he was -- a
mitigating factor the aggravating factors outweighed
that factor
MR MIZER I think Your Honor that its
fairest and the record thats easiest to go by is what
the Ohio Supreme Court said because the jury didnt
make any specific remarks about mental retardation as a
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
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42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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mitigator the Ohio Supreme Court did
But the -- the jurys verdict and then the
Ohio Supreme Courts affirmance should best be read as a
determination that the aggravating factors outweigh the
mitigating factors beyond a reasonable doubt and that
mental retardation was one of those mitigating factors
But it should not be read as a mini-verdict on the
existence of or the question of whether Mr Bies is
mentally retarded Because --
JUSTICE GINSBURG If they didnt make a
finding on mental retardation how -- how could the
appellate court determine that it was a mitigator but
overwhelmed by the aggravating -- what did the judge
charge the jury about mitigators and aggravators
MR MIZER The judge charged the jury that
-- first of all Your Honor the mitigating evidence
introduced by Mr Bies was not extensive He -- he
introduced an unsworn statement by himself and then Dr
Winter testified and that was the extent of the case in
mitigation So the jury was charged with the various
statutory mitigating factors in Ohio which is found in
Ohio Revised Code 292904
The mental retardation evidence was relevant
under two of those mitigating statutory factors one
factor 3 which went to mental disease or defect and
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
410121421 early 8221817 171 378 evidence 5111562 924 1117 easiest 1123demonstrated 4110 4317 71922 81 218172125 effect 144 1513 55 disagree 4419 1062224222425 236 2210 234denied 1718 disagreement 11710122522 2615 3215Denno 317 325 121623 1321 2921 3118 effectively 82depending 329 discover 3120 181420233315 3521 Eighth 131823describe 2310 discretion 141 1925 203 3623 37514 145 418192421 2521 discussion 1917 2317 296 401219 either 89 177 described 1525 disease 1225 3191117
decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
624 161013 entirely 336determinative doing 724 133 executing 84 16162023 3419261919 134 246 349 execution 406 287 291924 entitle 2924determine 312 342021 413 3018 312 311 4319513 617 double 3911 exhausted 1716 3314 381215 entitled 16171212 1412 1510171920 exhaustion
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
1614 Federal 164 261212 285 436 323 expert 1412 172125 181 3424 3723 granted 396 identity 3020
2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
191 368 final 2218 function 2324 grounds 3911 illuminate 132 4414 find 524 1012 263 guidepost 1319 imagine 27416
explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
G 31 H 117 25 1913 extensive 1217 20711 227 2110 3515general 115 habeas 164extent 1219 2222 24213 impose 1117
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
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quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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then the catch-all factor 7 But the -- but I think
Poland helps to illuminate what the -- not only what the
jury was doing but also what the Ohio Supreme Court was
doing when it --
JUSTICE GINSBURG First go back to the
jury How do we know that the jury found mental
retardation as a mitigator
MR MIZER We dont Your Honor All that
we know is that the jury determined that the aggravating
factors outweighed the mitigators beyond a reasonable
doubt What we do know and what the Sixth Circuit hung
its hat on was the statement by the Ohio Supreme Court
on direct review that Mr Biess mental retardation
merits weight in mitigation
Poland explains that that -- that statement
by the Ohio Supreme Court should not be treated as a
mini-verdict on the mitigating factor but instead it
should be read as an Eighth Amendment-required marking
of the guidepost the very guidepost that this Court in
Penry said must be marked the relevance of mitigating
evidence of mental retardation
But -- but Poland says its wrong to think
of that marking of that Eighth Amendment guidepost as a
mini-verdict on mental retardation and instead it
should just be thought of as one of the factors that was
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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bounding the discretion of the sentencer And so Poland
instructs that Mr Bies and the Sixth Circuit are wrong
to think of mental retardation as actually having been
found in some sense that affords preclusive effect
because instead it was just an Eighth Amendment
balancing
And instead what Atkins tells us is that the
State of Ohio just as the States were given the
opportunity after Ford v Wainwright in the insanity
context should be given the opportunity for the very
first time in this case to implement Atkins to
determine given clinical expert judgment whether or
not Mr Bies is in fact mentally retarded under the
three-part --
JUSTICE BREYER I understand the argument
that the issues are not quite the same that the Atkins
issue of mental retardation is not quite the same as the
issue that was litigated Lets try and get that out of
the case I think thats where Justice Kennedy was
going
Suppose it was a gun case and the Supreme
Court originally thought you could convict people who
sell drugs of simple possession of a gun Theres a
finding because its a bench trial that he simply
possessed but did not otherwise use the gun Then the
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
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judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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Supreme Court holds that that isnt enough under the
statute So now the State wants to argue because the
proceeding on appeal or whatever is still going on we
want a second shot at this we want to show he did more
than simply possess Is the State bound by what it
previously lost on or can the State -- can he get a
second shot
MR MIZER The answer is that the State is
not bound for two reasons the first relating to issue
preclusion and the second relating to the double
jeopardy doctrine in Ashe On issue preclusion the --
the finding with respect to the gun doesnt carry
preclusive effect because this Court said in --
Sunnen and other cases that when there is a change in
legal consequences that change is enough to prevent the
operation of preclusive rules
But on the double jeopardy doctrine --
JUSTICE BREYER Im not -- Im not going to
go into double jeopardy I dont think necessarily that
its double jeopardy that -- that is relevant here But
I have a -- have you run into this in a different
context They wouldnt use the word double jeopardy
It would be some kind of due process problem Maybe
there isnt a problem Have you run in your research to
anything like what I described
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
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changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
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cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
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decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
factors 319 141012 253 76 815 9215 335 3918 310 920111320 124 go 319 1123 1014 11224214 437 individual 24312562124 135 1519 1216 138focused 1917 ineligible 2921131025 3615 182 261718 161 1714followed 3919 3315 401920
facts 1925 2810 2913 1810 196Ford 149 inquiries 824420 3521 3923 44725form 1918 insanity 149
factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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38181717 21615 2221 3313 431215 matter 111 289 Jackson 317intermediate 237 2445 legally 292324 3523 40513jeopardy 39112122 2222 256121524 lets 1418 274 412 442
315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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judicial 3825 Kennedys 821issue 317 419 look 621 354 1361321243931516 kind 15237367 95 4111 14317 1923 426152224 251825141718 159 looked 3022 20478 2113
jurors 118 kinds 42231511 162425 looking 103 2124 2279jury 411 524 know 716 136 1714 1822 2818 2214 2322
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land 2724 MJustice 337351525 3824 412225 423 Laughter 293416 521 669 magistrate3825 391215 43218 453 law 1688 2724 623 73 811 1725427 mentally 313
405513 412 81821 9712 maintain 1723issued 1822 417 84 1118 44291618 1010 maintainedissues 614 129 1413
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merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
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normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
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questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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MR MIZER No Your Honor because it is
important to remember that this is -- this is a double
jeopardy case because of Ashe and because this is in
Federal habeas
With respect to your question about due
process or -- or other rules aside from due process
its possible that the State could have more expansive
common law or State law interpretations of the
collateral estoppel rules and maybe those would benefit
the defendant This Court in -- in the Hoag case
declined to use due process to incorporate collateral
estoppel rules constitutionally So in your case the
defendant would only be left with the hope that the
State would have more expansive collateral estoppel
rules
But to return to Ashe the defendant here is
claiming that he is entitled to a constitutionalized
version of collateral estoppel because of Ashe but hes
not entitled to that protection because Ashe applies
only where a defendant has previously been acquitted
and he has not
It also applies only in a case where the
defendant is facing a successive jeopardy of some sort
Now Mr Biess sentence is -- is surely at issue in
this case but its at issue in the sense that it would
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
410121421 early 8221817 171 378 evidence 5111562 924 1117 easiest 1123demonstrated 4110 4317 71922 81 218172125 effect 144 1513 55 disagree 4419 1062224222425 236 2210 234denied 1718 disagreement 11710122522 2615 3215Denno 317 325 121623 1321 2921 3118 effectively 82depending 329 discover 3120 181420233315 3521 Eighth 131823describe 2310 discretion 141 1925 203 3623 37514 145 418192421 2521 discussion 1917 2317 296 401219 either 89 177 described 1525 disease 1225 3191117
decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
624 161013 entirely 336determinative doing 724 133 executing 84 16162023 3419261919 134 246 349 execution 406 287 291924 entitle 2924determine 312 342021 413 3018 312 311 4319513 617 double 3911 exhausted 1716 3314 381215 entitled 16171212 1412 1510171920 exhaustion
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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reasoning 31211620 2023 requirement retroactive
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T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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be at issue in say a direct appeal Its only --
there has only been one prosecution The State has only
taken one crack at convicting him or imposing a
sentence and that one sentence is whats at issue here
And so there is not anything successive
about this case and so the Double Jeopardy Clause
either through the put-in-jeopardy text or through the
acquittal requirement simply has nothing to offer Mr
Bies in the way of assistance
JUSTICE ALITO Could I ask you about --
about exhaustion What should we do about exhaustion
here I take it you dont -- youre not waiving
exhaustion
MR MIZER Your Honor were not contending
that the Ashe claim is unexhausted We agree that
thats exhausted because in the Ohio courts it is not
permissible to take an interlocutory appeal when a
double jeopardy claim has been denied as it was in this
case
And so we are fine with the Sixth Circuit
precedent that holds that in that case the Federal
courts can act in habeas to prevent exposure to a double
jeopardy We simply maintain that there is no second
jeopardy here But the Atkins claim itself is
unexhausted and the Federal magistrate that first dealt
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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with this case in Federal Court held that it was
unexhausted And so now this case needs to go back down
to the Ohio postconviction court for what that court to
do what it was about to do which is to hold an Atkins
hearing for the very first time in this case
If there are no further questions Ill
reserve the balance of my time
JUSTICE KENNEDY Let -- let me just ask
does the State have any position now as to his IQ
MR MIZER No Your Honor The Ohio
postconviction court said at pages 101 to 104a of the
Petition Appendix that the IQ remains in question Dr
Winters testified at trial that it was 68 or 69 she
wasnt perfectly consistent But other record evidence
introduced later on postconviction proceedings is not
consistent with that and so that still needs to be
definitively --
JUSTICE STEVENS Wasnt there some
testimony that one test was only 50
MR MIZER That evidence is in the JA and
it was introduced after -- after the Ohio Supreme Court
had issued the decision at issue in this case So that
evidence is in the record but it is not part of the
Ohio Supreme Courts finding It was introduced on
postconviction review So it needs to be considered by
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
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the experts and by the postconviction court when this
goes back to --
JUSTICE KENNEDY Will the State -- would
you say the State has an independent obligation to -- to
ensure itself that he has an adequate IQ
MR MIZER Absolutely Your Honor in order
to be constitutionally consistent with -- with Atkins
But that would be borne out through the -- the
adversarial process in the Atkins hearing that hasnt
occurred yet
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Blume
ORAL ARGUMENT OF JOHN H BLUME
ON BEHALF OF THE RESPONDENT
MR BLUME Mr Chief Justice may it please
the Court
Much of the discussion so far has focused on
issues which did not form the basis of the panels
decision The panel decided this case under 2254(d)(2)
And what the panel determined was that the State courts
decision that Dr Winter who was the testifying
psychiatrist did not apply the clinical definition of
mental retardation in forming her opinions and rendering
her conclusions was an unreasonable determination of the
facts in light of the evidence presented in the State
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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court proceeding
And it was on that basis the court went
through the evidence and determined that in fact
Dr Winter had used the clinical definition of mental
retardation in rendering her opinion and that that
meant that the Ohio Court of Appeals and the Ohio
Supreme Court made a finding of mental retardation based
on the clinical -- the clinical definition of mental
retardation
JUSTICE SOUTER But even -- even if thats
so thats not necessarily an -- an Atkins finding
isnt that correct
MR BLUME No I think it is Its not as
if theres something --
JUSTICE SOUTER Atkin -- Atkin -- we didnt
determine what the definition of retardation was We --
we operated in Atkins on a broad conception of
retardation and we came down with a general rule But
we left it for later litigation starting in the States
to determine exactly how that line ought to be drawn
We didnt know where the line ought to be
drawn at that point and certainly the clinical
psychologists didnt know regardless of what the --
what definition was being used
JUSTICE GINSBURG And the Ohio Supreme
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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Court acting years before Atkins
MR BLUME Pardon me
JUSTICE GINSBURG The -- wasnt the Ohio
Supreme Court decision in this case pre-Atkins
MR BLUME Yes it was But the --
JUSTICE GINSBURG And it was dealing with
retardation as a mitigator not retardation as
conclusive that there can be no death penalty
MR BLUME Thats true but the -- the
important point I think that formed the basis of the
Sixth Circuit opinion was that in Lott versus -- which
is the Ohio decision post-Atkins in Lott they said
were embracing the clinical definition of mental
retardation
JUSTICE GINSBURG But before you get to
whether -- anything like that you are urging issue
preclusion against the winner It was a death sentence
in this case And I am not aware of issue preclusion
operating against a judgment winner Issue preclusion
is for the party who fought this out and won
Here we have a death sentence So there --
the ultimate determination whatever intermediate
determinations might have been made on the way like
mental retardation exists and was a mitigator the
ultimate judgment is death And I am not aware of in
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
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all of issue preclusion where a judgment winner is
precluded
MR BLUME Well clearly that is the more
typical procedural context and it happens normally in
the criminal context of someone thats been acquitted
But the procedural posture here is unique because what
you have is a prior finding of mental retardation
pre-Atkins and clearly at least according to the
panel using the definition of mental retardation which
is now in effect in Ohio
Then subsequent to that you had this Courts
decision in Ohio -- I mean this Courts decision in
Atkins which creates a retroactive new rule which says
that people with mental retardation cant be executed
The essence of a retroactive new rule is that it
attaches new legal consequences to prior conduct
So it is both the rule of Ashe which says
when an issue has been determined in a final proceeding
combined with this Courts decision in Atkins placing a
category of people --
JUSTICE GINSBURG But the question is what
is the issue and an intermediate finding say
mitigation on the way to the ultimate conclusion life
or death is not the same issue as if retardation is
found no death penalty Its -- its the ultimate
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
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issue in the case that was before the Ohio Supreme Court
is do the aggravators outweigh the mitigators Thats
the ultimate determination and thats what would have
preclusive effect not the many intermediate findings
that may have been made on the way to the ultimate
determination of death
MR BLUME Well Justice Ginsburg I think
that minimizes or does not give adequate significance to
what the Ohio Supreme Court describes as its role in --
on the appellate review And they describe their role
as being that they engage in an independent reweighing
of the mitigation against the aggravation A first step
of that is the identification of the mitigating
circumstances
So they have taken it upon themselves to
identify the mitigating circumstances and they have to
do that by a preponderance of the evidence which is the
same standard which exists now in a Lott proceeding
In the course of reviewing Mr Biess
sentence on appeal intermediate appeal of the court of
appeals and then the Ohio Supreme Court both courts
found that Mr Bies had mental retardation Its not
also -- I mean they have described this as an essential
function of their role and they also dont do it
uncritically
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
410121421 early 8221817 171 378 evidence 5111562 924 1117 easiest 1123demonstrated 4110 4317 71922 81 218172125 effect 144 1513 55 disagree 4419 1062224222425 236 2210 234denied 1718 disagreement 11710122522 2615 3215Denno 317 325 121623 1321 2921 3118 effectively 82depending 329 discover 3120 181420233315 3521 Eighth 131823describe 2310 discretion 141 1925 203 3623 37514 145 418192421 2521 discussion 1917 2317 296 401219 either 89 177 described 1525 disease 1225 3191117
decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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There are other cases State v White for
example in which they made an express finding that the
individual had not proven his mental retardation
JUSTICE SOUTER In -- in response to
Justice Ginsburgs question I dont see why it makes
any difference which court is doing what She -- she
raised two objections Number one is that so far as the
issue being determined in the prior proceeding the
characterization of his mental state as retardation was
at most a subsidiary not an ultimate fact
Number two the conclusion of that prior
proceeding was that he lost And shes saying in those
in either of those circumstances the subsidiary finding
is not preclusive and any finding is not preclusive in
the manner in which he wishes to use it here
I dont see what difference it makes whether
were talking about court A or court B What is -- what
is your response to those two objections
MR BLUME Well on the first point I
didnt mean that it necessarily matters which court it
did I was saying that -- trying to describe -- usually
the necessary part which is in some ways what were
talking about here was it necessary turns on two
considerations And the necessary -- its designed to
determine as I understand it one was the issue
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
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decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
624 161013 entirely 336determinative doing 724 133 executing 84 16162023 3419261919 134 246 349 execution 406 287 291924 entitle 2924determine 312 342021 413 3018 312 311 4319513 617 double 3911 exhausted 1716 3314 381215 entitled 16171212 1412 1510171920 exhaustion
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
1614 Federal 164 261212 285 436 323 expert 1412 172125 181 3424 3723 granted 396 identity 3020
2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
191 368 final 2218 function 2324 grounds 3911 illuminate 132 4414 find 524 1012 263 guidepost 1319 imagine 27416
explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
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2018 1722 3952414 251218 2522 3622F generally 3049 hand 44 2718 2519 29923 imposing 173facing 1623 getting 314 happens 2242925 301719 improvidentlyfact 413 56 Ginsburg 416 hat 13123025 311 396
617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
factors 319 141012 253 76 815 9215 335 3918 310 920111320 124 go 319 1123 1014 11224214 437 individual 24312562124 135 1519 1216 138focused 1917 ineligible 2921131025 3615 182 261718 161 1714followed 3919 3315 401920
facts 1925 2810 2913 1810 196Ford 149 inquiries 824420 3521 3923 44725form 1918 insanity 149
factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
Jintent 4418 191115 2010 legal 1515 marking 1318 JA 1820 3817 interlocutory 201525 213 2216 296 1323
38181717 21615 2221 3313 431215 matter 111 289 Jackson 317intermediate 237 2445 legally 292324 3523 40513jeopardy 39112122 2222 256121524 lets 1418 274 412 442
315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
K1412 211925258 38113 litigate 1016 618 71416221 261011 Kennedy 5213820 3921 3023 3524 81 91922282 322347 66923 73 412 441614 litigated 1418 101217223279 336 1419 18844141621 litigation 2019 11261125361 3819 1934523 2714 126112325
judicial 3825 Kennedys 821issue 317 419 look 621 354 1361321243931516 kind 15237367 95 4111 14317 1923 426152224 251825141718 159 looked 3022 20478 2113
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasoning 31211620 2023 requirement retroactive
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
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rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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decided and two was it decided with some care for its
significance to the proceeding
And I think given the unique way in which
Ohio does the sentence review both of those concerns
are satisfied As for --
JUSTICE SOUTER If -- if the Ohio court had
found the court of first instance had found that the
IQ was at some different level it could have come out
exactly the same way it came out in this case couldnt
it
MR BLUME Yes it could have
JUSTICE SOUTER So the finding was not
necessary to the result
MR BLUME Well --
JUSTICE SOUTER I mean we went through
this with your brother and he pointed out yes it was
necessary to -- to consider the issue and to make some
kind of a finding -- I dont know how precise it had to
be -- but the finding that it made the -- the actual
number that was used or the characterization that was
used to describe that number was not necessary in order
in fact to impose the death penalty
MR BLUME Well I --
JUSTICE SOUTER And -- and the sense of
necessity which is used normally in -- in this kind of
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
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normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
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reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
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rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
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rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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preclusion analysis just doesnt apply here
MR BLUME Well that is not my reading of
the necessary cases I read that the function that the
necessary prong serves as trying to serve two goals
Number one was the issue the question the issue --
JUSTICE GINSBURG How do you say you
have -- you dont find that in the cases when you said
to me and I think frankly you were right that issue
preclusion -- and there are many many cases on issue
preclusion -- is something that a judgment winner uses
not a judgment loser and here the Ohio -- yes they
weighed and they found retardation but they also found
overwhelmed by the aggravating circumstances So the
ultimate determination of that of all the courts is
death
I dont see how you get to elevate an
intermediate determination -- there are many some go
for one party some go for the other -- to become the
outcome determinative factor The outcome determinative
factor is that the aggregators outweighed whatever
mitigators there were
MR BLUME Well I mean -- again that is
not my understanding of the role the necessary clause
plays
But now on to the winner point So if
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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thats necessary -- I dont think theres anything in
Ashe v Swenson that says you have to win on the
ultimate outcome Its do you win on the fact If
thats right -- and lets imagine --
JUSTICE GINSBURG But Ashe is about
somebody who was acquitted He won There was no doubt
that he won
MR BLUME I understand
JUSTICE GINSBURG It didnt say anything
about well suppose he didnt win
MR BLUME But the Ashe rule is stated in
terms of when an issue of fact has been determined in a
defendants favor its binding in any subsequent
litigation
But if the Warden is right -- and lets
imagine now Mr Bies goes back for his mental
retardation hearing and the court says Yes Mr Bies
is mentally retarded on the other hand I think Atkins
was wrongly decided
It goes up on appeal to the Ohio Supreme
Court and they say Yes Mr Bies is mentally retarded
but we think Atkins was wrongly decided The case comes
to this Court and you summarily reverse and say Atkins
is still the law of the land
Now it goes back and the Warden could then
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
4111223 2111 438 commits 311 3715 4120 2914 3022 524 620 819 456 committed constitutionali 3321 3416 82022 1219 Circuits 435 3523 83 1617 3620 3712614111921 4313 common 168 constitutionally 371923 3810 163101222 circumstances 2920 1612 197 3912 4024 1625 17619 231416 2413 compelling 391 411824 439 1721 18125 2613 422 3615 contained 52 4321 444 1822 1919 claim 323 1715 completely 77 contending 451 21418 231 171824 3711 conceded 3717 1714 courts 322 716 259 2722 3916 4099 3815 4122 contest 101 718 920 105 2824 291 40171818 conception 3657 371 113 1716223110 3358 41782223 2017 contesting 3625 2321 2614 342 35322 422 concerns 254 context 49 778 courts 319 52 366121417 claimed 386 concession 1410 1522 123 1824 4316 45189 claiming 1617 3821 391823 2245 3036 1920 221112
cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
E3614 4220 difficulty 402 evaluated 369 dealt 1725 E 21 311 definitions 52 direct 10719 Everythingsdeath 45910 earlier 44 819 definitively 1021 1313 2812
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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say Well now that we know youre serious about
Atkins we want to reopen the judgment and we want
another shot --
JUSTICE BREYER Its not reopen -- its --
its the same problem And maybe you found some
authority to the contrary other than statements but
actual authority The defendant loses He appeals He
says they made a mistake And the normal remedy is you
give him a new trial Does it matter that its a
collateral proceeding I dont think so They go to
the Federal court Judge they made a mistake at my
trial You give him a new trial Everythings up for
grabs normally at the new trial I cant think of an
instance where it isnt
Here they are saying Judge they made a
mistake They should have applied the mental
retardation rule of Atkins So give him a new trial
Now what Im looking for is just one
example somewhere that supports you --
MR BLUME Well --
JUSTICE BREYER -- that didnt proceed on
the theory Ive just announced or just said
MR BLUME Well I -- I mean I cant give
you a case exactly like that but again I think the
procedure --
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
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balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
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169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
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fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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405513 412 81821 9712 maintain 1723issued 1822 417 84 1118 44291618 1010 maintainedissues 614 129 1413
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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2418mild 392023 multiple 3979 2911 331 people 1422 obligation 1944318 outweigh 124 221420 2910
N occurred 1910mildly 381219 232 419 N 211 31 offense 61 95 411 44121 outweighed perceive 119 narrowing 303 offer 178 4410 minimizes 238 111320 1310 perfectly 1814 narrowly 4413 oh 3423mini-verdict 2620 permissiblenature 61 3518 Ohio 116 311 127 131724 overcome 923 1717 necessarily 318 31922 413 minutes 4211 overwhelmed person 3213
1519 2011 516 616 711 mistake 28811 1213 2613 371218252420 71515242816 3417 383 406 412
necessary 8621 1016 111124mitigating 61 overwhelming 4124 445 824 93457 121321227152325 3517 persons 4120 99 242223 13312161024 111920 persuasive
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necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
new 1066 43316 444 Pardon 21291922 102 plays 2624 22131516 Ohios 4418 3151013 12112 please 38 1915 289121317 okay 818 916 part 1823 2422 137 21724 point 2022 2910 311113 3023 3623233425 3520 2110 2419 32192425 operated 2017 particular 4113723 2625 4224 3325 345 operates 43 98 2914 303 mitigators 1214 448 41131718 operating 2119 305 409 428 1310 232 pointed 2516
normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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JUSTICE BREYER No I want a case even
vaguely like that
(Laughter)
MR BLUME I think what you have are the
cases -- you had the cases which essentially are the
legal equivalent of insufficient evidence on appeal
Now thats not technically an acquittal but its
treated as an acquittal But what you have here is a
finding of fact combined with a later decision on the --
establishing a retroactive new rule moving people
outside --
CHIEF JUSTICE ROBERTS How far -- how far
down do you go on applying the issue preclusion Lets
say theres a ruling by the court that a particular
expert was not credible I mean is that binding in a
subsequent proceeding
MR BLUME No Mr Chief Justice I think
it would have to do one of two things It would either
have to absolve the criminal defendant of liability
which is sort of the common rule under Ashe or it would
have to render him ineligible for the death penalty
though the definition of acquittal used in Sattazahn is
had there been a finding which -- legally sufficient to
legally entitle the defendant to a life sentence And
it is Mr Biess position that the finding of mental
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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retardation --
CHIEF JUSTICE ROBERTS Well thats
narrowing it to your particular context I would have
assumed that the theory has to be more generally
applicable and not just applicable in the particular
Atkins context If you can have issue preclusion with
respect to an underlying factual question under which
the loser can assert that I dont see why it wouldnt
apply more generally Thats a theory of the Double
Jeopardy Clause not of Atkins
MR BLUME Well its a theory of
collateral estoppel which is based in the Double
Jeopardy Clause which is what -- the issue on which the
panel resolved this question And I think that -- as I
read the collateral estoppel cases again and even in
the context of capital sentencing and double jeopardy
the finding would have to be either at the -- at the
criminal liability stage would it absolve the defendant
of liability like in the Ashe context The finding was
one of identity In the first trial the jury
acquitted The only issue was identity When this
court looked at the record as a whole -- and then they
said okay you cant subsequently litigate the prior --
the nuts crimes on the issue of identity In the
capital sentencing context at least here a finding of
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
4221 certain 719 1922 20488 218 416 1014 2012 briefs 101920 certainly 2022 2022 2113 condition 3617 3115 broad 2017 364 clinicians 618 conduct 2216 counsel 1911 brother 2516 challenge 4012 close 620 conflicting 515 4210 457 Bullington 47 4424 Code 1222 consensus 4118 course 2319 burden 3510 chance 322 collateral 316 consequences court 1112 38 burdens 3510 change 151415 42 1691114 1515 2216 31221 4713
changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
C 115 2138 characterizati 3120 consider 2517 724 1016 315 4212 249 2520 Columbus 115 considerations 115624 121
call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
621 457 comes 923 336 246171720 carry 1512 Circuit 1311 2722 Constitution 2567 2717 case 31524 142 1720 coming 3218 3191219 272123 2811
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cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
1110 20481624 77 82 93 drugs 1423 43 1691214DAVID 13 2113 229 1521 258 due 1523 1656 1618 301215de 106 2922 3214 341419 3515 1611 3678 3825 3939deal 1015 3556 432 3613 373 DC 18 391516 426 dealing 216 definitional 407 4418 42152224
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decided 318 2413 29182323 dismissed 396 3517 368211919 2511 3017 3314describes 239 dispositive 820 3625 4410 271922 3422 elements 535describing 325 824 913 452 3513 3911 3413 4414designed 2424 3925 exactly 2020
decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
declined 1611 engaged 106454 distortion 4321 4120 423 defect 1225 ensure 195determinations doctrine 1511 executed 2214 defendant 525 enters 37192123 1517 446
624 161013 entirely 336determinative doing 724 133 executing 84 16162023 3419261919 134 246 349 execution 406 287 291924 entitle 2924determine 312 342021 413 3018 312 311 4319513 617 double 3911 exhausted 1716 3314 381215 entitled 16171212 1412 1510171920 exhaustion
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17111113 fair 1116 353 fought 2120 going 1420 153 I existence 128 fairest 1123 found 111417 1518 3411 identical 36310exists 102 2124 far 522 1917 1221 136 3518 identification
2318 4118 247 291212 144 2225 grabs 2813 2313 expansive 167 favor 2713 2322 2577 grant 818 395 identify 2316
1614 Federal 164 261212 285 436 323 expert 1412 172125 181 3424 3723 granted 396 identity 3020
2915 2811 318 4124 granting 4314 302124experts 512 filed 4110 frankly 268 great 1015 ignores 4218
191 368 final 2218 function 2324 grounds 3911 illuminate 132 4414 find 524 1012 263 guidepost 1319 imagine 27416
explains 1315 267 further 186 131923 implement exposure 1722 finding 49 64 443 455 gun 14212325 1411 express 242 625 812 921 future 1110 1512 implementingexpressly 349 1211 1424 51G Hextending 48 1512 1824 important 162
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2018 1722 3952414 251218 2522 3622F generally 3049 hand 44 2718 2519 29923 imposing 173facing 1623 getting 314 happens 2242925 301719 improvidentlyfact 413 56 Ginsburg 416 hat 13123025 311 396
617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
factors 319 141012 253 76 815 9215 335 3918 310 920111320 124 go 319 1123 1014 11224214 437 individual 24312562124 135 1519 1216 138focused 1917 ineligible 2921131025 3615 182 261718 161 1714followed 3919 3315 401920
facts 1925 2810 2913 1810 196Ford 149 inquiries 824420 3521 3923 44725form 1918 insanity 149
factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
Jintent 4418 191115 2010 legal 1515 marking 1318 JA 1820 3817 interlocutory 201525 213 2216 296 1323
38181717 21615 2221 3313 431215 matter 111 289 Jackson 317intermediate 237 2445 legally 292324 3523 40513jeopardy 39112122 2222 256121524 lets 1418 274 412 442
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JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
K1412 211925258 38113 litigate 1016 618 71416221 261011 Kennedy 5213820 3921 3023 3524 81 91922282 322347 66923 73 412 441614 litigated 1418 101217223279 336 1419 18844141621 litigation 2019 11261125361 3819 1934523 2714 126112325
judicial 3825 Kennedys 821issue 317 419 look 621 354 1361321243931516 kind 15237367 95 4111 14317 1923 426152224 251825141718 159 looked 3022 20478 2113
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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reasoning 31211620 2023 requirement retroactive
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T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
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warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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mental retardation is a finding sufficient to entitle
the defendant --
JUSTICE BREYER Your argument then --
were getting somewhere maybe
MR BLUME Pardon me
JUSTICE BREYER Youre saying to me think
of Jackson and Denno If youre in a collateral
proceeding and the Federal judge said there wasnt
enough evidence to convict him under the Constitution
like the Shuffling Sam case there isnt enough
evidence it isnt that he gets a new trial The
Constitution entitles him to acquittal and therefore
there is no new trial because of the Double Jeopardy
Clause right
MR BLUME Thats correct
JUSTICE BREYER All right So youre
saying here the evidence the first time was such that
they couldnt give him the death penalty under the
Constitution as later interpreted So if thats what
you discover on the collateral appeal a similar
reasoning would somehow lead you to the similar result
Is that the argument
MR BLUME Thats more or less the
argument And the panel --
JUSTICE SOUTER But if that is the
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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argument then what is being preclusive here is not the
first judgment I mean in preclusion cases its the
first judgment that precludes and we identify a
judgment which is preclusive in the way weve been
describing But in the hypothetical that Justice Breyer
gave you theres nothing preclusive about the first
judgment because the first judgment stands and properly
can stand And youre saying there cant be a second
judgment but you are not depending upon a rule of
preclusion that turns on the first So whatever your
argument is its not -- its not issue preclusion
MR BLUME Well it is the combination of
the determination that Mr Bies is a person with mental
retardation using the same definition according to the
panel which is now in effect in the State of Ohio
which would apply in a Lott proceeding if he were to
have it tomorrow
JUSTICE SOUTER Sure but youre coming up
with a brand new rule Whatever your rule is its not
a rule of double jeopardy and its not -- its not the
traditional rule of issue preclusion
MR BLUME Well it is the combination of
that factual determination with the subsequent rule a
retroactive new rule I mean its unusual because
there are very few retroactive new rules of procedure
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
2110 35913372 asking 3317 3417 352adversarial 109 3623 394APPEARAN assert 308 36219 3724199
beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
2469 36925 103519 assume 381 4116affirmance 123 1914 42131212 2310 assumed 304 Bobby 13 34affirmed 712
behoove 89Appendix 510 assuming 418 borderline 620affords 144 believe 37131020 1812 Atkin 201515 3614 4318aggravating
411738922 Atkins 31317 borne 198111320 124 bench 1424applicable 305 32023 422 bound 15591213 139 benefit 423305 523 63 710 bounding 1412613 3615
169application 41 82 11514 brand 3219422 BENJAMIN4024 1471116 3324 345aggravation
115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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Breyer 1415 categorical 84 452 conclusion 310 convict 1422 1518 28421 3711 4219 clearly 2238 910 2223 319 291 313616 categorically 427 2411 373 convicting 173 325 4019 client 3378 conclusions conviction 3821
Breyers 333 category 2220 clinical 8378 1924 3610 4111 brief 4011 centers 324 81214 1412 conclusive 64 correct 91115
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changed 3713 1618 2810 consequential 414 51710C 4021 4218 301215 317 4219 616 71112
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call 3616 charge 1214 combination 2424 1212 13312called 513 charged 1215 321222 considered 131619 1422
401523 1220 combined 2219 1825 15113 1610 capital 301625 Chief 337 299 Considering 181331121 care 251 3518 191115 2912 come 522 822 725 19116 2012 careful 87 2917 302 825 107 258 consistent 321 2067 2114 carefully 55 361120 4210 4423 181416 197 23192021
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cases 1514 241 clarifying 4324 3925 4010 30161925 2219 3624 26379 2955 clause 311 176 4324 34141423 3712 4020 3015 322 2623 301013 concessions 379 428 4316 3621 376 3114 397 4216 continuing 101 crack 173
catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
2919 3018 2713 2218 248 doubt 125 258 3314 defense 338 2712 1311 276 essence 2215
defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
D 31 definition 534 difference 799 1921 204 establishingdaily 518 61215 716 24616 3520 357 2910 3511 dangerousness 718 1922 different 614 drawn 202022 estoppel 316
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decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
factors 319 141012 253 76 815 9215 335 3918 310 920111320 124 go 319 1123 1014 11224214 437 individual 24312562124 135 1519 1216 138focused 1917 ineligible 2921131025 3615 182 261718 161 1714followed 3919 3315 401920
facts 1925 2810 2913 1810 196Ford 149 inquiries 824420 3521 3923 44725form 1918 insanity 149
factual 307 goals 264 hope 1613formed 2110 insofar 44193223 4424 goes 192 2716 hung 1311forming 1923 instance 257
fails 4222 272025 3710 hypotheticalforth 425 2814failure 366 4111 821 325forward 320 instructs 142
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insufficient 296 1416 1918 1115 1210 laws 4113 3917 intellectual 514 Ithaca 117 135 141519 lead 310 3121 making 83 intend 4423 ie 73 1518 1710 leave 3411 manner 2415 intends 445 18818 193 left 1613 2019 marked 1320
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38181717 21615 2221 3313 431215 matter 111 289 Jackson 317intermediate 237 2445 legally 292324 3523 40513jeopardy 39112122 2222 256121524 lets 1418 274 412 442
315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
JOHN 117 25 interrupt 1115 3438 3514 2924 4320 2823 2915 1913introduced 362111320 light 525 1925 32224 3914
Joint 1019 389 121718 1815 3721 38414 414 meaning 325 3822182124 3823 3913 limitation 817 meanings 93
judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
K1412 211925258 38113 litigate 1016 618 71416221 261011 Kennedy 5213820 3921 3023 3524 81 91922282 322347 66923 73 412 441614 litigated 1418 101217223279 336 1419 18844141621 litigation 2019 11261125361 3819 1934523 2714 126112325
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52424 64 13911 2021 21161819 looks 510 816 2439 2716 71119 923 2023 2518221182224 loser 2611 308 2816 2925 11471424 281 3321231 24825 loses 287 311 3213 12141520 36162517 26558 lost 156 2412 35571119133669269 2712 Lott 518 616 365101721L3020 36222913 30613 816 211112 3712171822
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land 2724 MJustice 337351525 3824 412225 423 Laughter 293416 521 669 magistrate3825 391215 43218 453 law 1688 2724 623 73 811 1725427 mentally 313
405513 412 81821 9712 maintain 1723issued 1822 417 84 1118 44291618 1010 maintainedissues 614 129 1413
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271821 3411 196 421112 3716 order 513 196 2225 2522 388121520 4214 4323 nuts 3024 2521 3810 2921 3118 411 44521 4471225 NY 117 originally 1422 3521 4019
merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
O 21 31 4318 416 2619 273 1320 3713 objections 247MICHAEL 16 moving 2910 outside 522 411617
2418mild 392023 multiple 3979 2911 331 people 1422 obligation 1944318 outweigh 124 221420 2910
N occurred 1910mildly 381219 232 419 N 211 31 offense 61 95 411 44121 outweighed perceive 119 narrowing 303 offer 178 4410 minimizes 238 111320 1310 perfectly 1814 narrowly 4413 oh 3423mini-verdict 2620 permissiblenature 61 3518 Ohio 116 311 127 131724 overcome 923 1717 necessarily 318 31922 413 minutes 4211 overwhelmed person 3213
1519 2011 516 616 711 mistake 28811 1213 2613 371218252420 71515242816 3417 383 406 412
necessary 8621 1016 111124mitigating 61 overwhelming 4124 445 824 93457 121321227152325 3517 persons 4120 99 242223 13312161024 111920 persuasive
P2424 251317 148 171612561621 1023 11342521 2634 183102124 P 311224 131720 1112 2623 271 206625 213 page 22 3822 231316 3417 pertaining 452
necessity 2525 2112 221012 4015 43243616 382 Petition 59 need 621 231921 254 pages 59 1811 mitigation 77 1812 needed 518 256 2611 42221018 117 Petitioner 14 needs 512 182 2720 3215 panel 1919201220 1314 116 249 36
181625 349141521 229 30142223 2312 4213 never 45 518 3423 355 3124 3215374 3924 place 331
3320 345 3625 37125 3534 3910 4011 4319 placing 2219 4310 371423 4120 panels 1918mitigator 417 4219
new 1066 43316 444 Pardon 21291922 102 plays 2624 22131516 Ohios 4418 3151013 12112 please 38 1915 289121317 okay 818 916 part 1823 2422 137 21724 point 2022 2910 311113 3023 3623233425 3520 2110 2419 32192425 operated 2017 particular 4113723 2625 4224 3325 345 operates 43 98 2914 303 mitigators 1214 448 41131718 operating 2119 305 409 428 1310 232 pointed 2516
normal 288 operation 1516 particularly2621 341524 points 4217 normally 224 3419 619Mizer 115 238 Poland 13215
2525 2813 opinion 205 parties 3253457 424 1322 141 noted 4216 2111 108 11165710 725 posed 4413 novo 106 opinions 1923 party 89 2120 814 921115 position 189 number 74 247 opportunity 2618917 10514 2925 443
2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
1318 263241414 321 prosecution remember 162 392024 401 3015 4143246 172 364 render 2921 419212325
reading 262preponderance prosecutor rendering 1923 424 43218really 4252317 3512 1011 119 205 454 reason 424presented 117 35161821 reopen 2824 retarded 313
3322 3441925 protection 1619 reopened 669 417 85 1118 395prevent 1515 proven 243 611 129 1413
reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
return 1616 set 425 standard 425 subsequentlysake 382 reveals 371824 severe 4321 2318 4310 3023 4119Sam 3110
3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
x 1274115 431 3814 unexhausted 1015 181418 technical 394 tomorrow 3217 171525 182 213 318 367 Ytechnically 297 tracking 4112 unique 226 401111 415
years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
Tennard 721 treat 1134 3715 2223 235 0 terms 2712 treated 722 unreasonable 2539 324 08-598 15test 1819 1316 298 1011 1924 3525 testified 1219 trial 412 921 unsworn 1218 ways 2422 1
1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
10212711822 two-edged 118 Winter 5518 391112 434 violates 4181928101324 typical 224 1219 1921 4311violent 102529417 3014 204 357 27 19U virtually 369316 331822 Winters 1813 292904 1222
ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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which place someone outside --
JUSTICE SOUTER No but what your rule is
as I understand it in your response to Justice Breyers
question is if there was a subsidiary fact
determination in the first case even though it was
entirely consistent with the judgment against your
client thats subsidiary fact determination can be used
as a defense by your client in the second case Thats
your rule as I understand it and that is not the rule
of Ashe v Swenson and it is not the rule of issue
preclusion
MR BLUME It could be used if there is a
later legal ruling which means the significance of that
fact would either absolve the criminal defendant of
liability or make him ineligible for death
JUSTICE SOUTER Well you -- do you agree
with me that youre asking for a brand-new rule here
MR BLUME I dont think it is a brand-new
rule
JUSTICE SOUTER We have never held this
and I dont know of any court thats ever held this
MR BLUME But I think the reason you
havent isnt --
JUSTICE SOUTER Well why isnt it brand
new
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
aggregators 4225 34222225 414 513absolve 2919 2620 applying 2913 3642124 1020 128173018 3314
agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
ALITO 1710 152 442522 attaches 2216 3725 383829822 3112 3823 argued 1111 attention 3616 398 412443162022
allowed 722 argues 43414 401523 4217 43414acquitted 45 Amendment argument 112 authority 2867 43171620 225
1323 145 227 345 aware 211825 Biess 322276 3021 41820 108 1415 am 113 32 1313 1624act 1722
Amendment-r 1913 31322 459 2319 2925acting 211 1318 3124 32111 358 4217actual 2519 BAmerican 618 382 421218 4318287
B 2417analysis 31016 4222 437 binding 2713adaptive 517 back 522 135261 3924 arguments 2915621 816
182 192announced 4215 Blume 117 25additional 378 271625 40222822 Ashe 31725 42 19121315adequate 195
balance 187answer 75 158 422 1511 2013 21259238 373 421appeal 153 171 163161819 223 237adequately 366
balancing 1461717 232020 1715 2217 2419 251114adjudicate 322 bar 84 37112720 296 272511 2523 26222administer 421
42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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MR BLUME Its because of the unique
procedural posture of this case
JUSTICE SOUTER Well maybe the unique
procedural posture is precisely the reason that the rule
is brand new If its unique weve never had it
before
MR BLUME But --
JUSTICE GINSBURG We have the factor that
you would preclude Ohio from doing when we expressly
said that here is the rule You cant execute the
mentally retarded However we are going to leave it to
the State to shape the procedure and what are the
elements of retardation You would take all that away
from Ohio because in a different context the context of
weighing mitigators against aggravators the Ohio
Supreme Court said there was retardation it is
mitigating however it was overwhelmed by the
aggravators
Its an entirely different operation than
States heres the rule the procedure for doing it is
up to you Ohio didnt have a procedure for doing
Atkins It couldnt until Atkins was decided And now
youre saying oh Ohio because you in the context of
weighing mitigators against aggravators found this
mitigator you cannot shape the Atkins procedure as
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
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judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
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precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
1717 34131524 spoke 51919 4510separate 39 taken 173 2315 stage 3018 subsequent 63serious 281
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3925 time 1015 1411 1415 2425 3911 142 talk 712 1857 3117 278 3339 warranted 411 wrongly 2719 talking 520 416 428 431 441722 41315 2722
71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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years 211tells 147 traditional 253 34135 421 yellow 4221ten 4211 3221 United 1112 way 179 2123
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1813 104 1424 unusual 3224 4218 101 1811testifying 1921 1813 28912 urging 2116 weighed 2612 101a 59testimony 511 28121317 use 1425 1522 weighing 3415 104a 59 1811
1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
42910 457 try 1418 went 1110 153 3810Vtheory 2822 trying 2421 1225 202 16 4222 v 15 149 241 304911 264 2515 160 3822 4324 272 3310things 2918 turns 2423 were 1714 18 4222vaguely 2923713 4021 3210 2113 241722 19 26various 12204112 4218 two 6711 93 314 40922 1992 112vastly 3515think 7817 89 1224 159 4114 1996 112verdict 12289 92 1122 247111823 weve 324 345 version 161813122 143 251 264 White 241 2 versus 34171419 1519 2918 374 win 272310 2009 19
41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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ultimate 2122352 36215 Winters 511W2125 222325 33619 39222 wishes 2415Wainwright2335 2410 427 won 2120 276 3 24 1225
1492614 273thinks 351622 277 3617waiving 1712 43525 361third 316 word 46 1522 want 521 1544 uncritically 42 29thought 111 words 98 1023
2822 291 23251325 1422 worked 918 5wants 152underlying 307three 39 5234 wouldnt 15223521 50 1819underscored36819 4414 308
warden 13115three-part 1414 writ 395 4314 6271525 3910 understand432 wrong 1322
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
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every other State can
MR BLUME Well I dont think thats a
fair determination of what the panel did in this case
What the panel said is number one that we look at the
procedure and definition of mental retardation that Ohio
has adopted Now it is the same as the definition of
mental retardation which was used by Dr Winter in her
testimony in Mr Biess trial and is the -- that is the
sole basis for the determination And they said the
burdens of proof are the same He had the burden of
establishing this fact of mental retardation by a
preponderance and thats the same So therefore on
that basis they decided he --
JUSTICE GINSBURG But the incentive is
vastly different which is an important factor in issue
preclusion That is if the prosecutor thinks that
theres overwhelming evidence of the aggravators the
nature of the crime the prosecutor is not going to care
so much about so there is mental retardation as a
mitigator but when its a difference when the
prosecutor wants to go for the death penalty and it
thinks that its got a secure case on the atrocious
matter in which the crime was committed there isnt the
same incentive to litigate as there is when it is the
ultimate question not an issue on the way to reaching
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
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30124110 aside 166 3011 31515admit 3721 bases 3910appeals 206 asked 3816 3123 321222adopt 4112 basis 1918 2022321 287 3999 33121822adopted 356
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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reasoning 31211620 2023 requirement retroactive
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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the ultimate judgment
MR BLUME Well I dont think Justice
Ginsburg the incentives have to be identical but
certainly prior to Atkins the prosecution had the
incentive to contest the mental retardation question
and in fact in this case the failure to more adequately
contest it wasnt due to a lack of incentives it was
due to a lack of evidence There were three experts
that evaluated Mr Bies all of whom came to virtually
identical conclusions About his mental state
CHIEF JUSTICE ROBERTS Well this strikes
me as the sort of case where their incentives might well
be different as Justice Ginsburg suggested If youre
dealing with a borderline case you dont -- and you
think you have very compelling aggravating factors you
know why call attention to the -- the mitigating factor
of the mental condition when your case can be won on the
others
MR BLUME Well I think for three reasons
Mr Chief Justice Number one as this Court recognized
in Atkins in cases where there was evidence of mental
retardation the jury was much less likely to impose a
death sentence that in part was part of the basis of
this Courts decision in Atkins Second on appeal by
not contesting the evidence -- the State of Ohio did
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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contest it here -- you ran the risk that the Ohio Court
of Appeals or the Ohio Supreme Court would reach a
different conclusion number one on the balance of
aggravation and mitigation or number two on whether
the death sentence was disproportion And the Ohio
Supreme Court had done that in several other cases
But here also right you had not only the
direct appeal and the findings but you have additional
findings and concessions in State postconviction where
Mr Bies goes in in State postconviction and he raises
a pre-Atkins categorical bar claim and says Im a
person with mental retardation since this Courts
decision in Penry things have changed and I believe my
death sentence is disproportionate under the Ohio and
the United States Constitution
In response to that the State number one
conceded mental retardation and said we agree the record
reveals Mr Bies is a person with mental retardation
and the postconviction court then enters a finding of
fact
JUSTICE GINSBURG Did they admit that as a
finding of fact or did they say that mental retardation
had been found as a mitigator by the Ohio Supreme Court
MR BLUME No they said the record reveals
Mr Bies to be a person with mental retardation with an
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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IQ of 69 It is not that there was we assume for the
sake of argument it was nothing like a mitigating It
was a finding of fact now that Mr Bies was a person --
JUSTICE GINSBURG It was an admission it
couldnt have been a finding of fact You said that
thats what the State claimed Where is the admission
of the State in this State postconviction proceeding
that Mr Bies is mentally retarded
MR BLUME It is in the Joint Appendix at
153 This is actually the State court order the
finding of fact and it says Findings of fact The
defendant is shown by the record to be mildly mentally
retarded with an IQ of 69
JUSTICE GINSBURG You told me that this --
that State conceded that the defendant was mentally
retarded and Im -- thats what I asked you
MR BLUME Im sorry that is both at JA
143 where -- JA 143 in the States motion response for
judgment The record reveals defendant to be mildly
mentally retarded with an IQ of 69 And that
concession is repeated in the post conviction appeal at
page 160 of the Joint Appendix
JUSTICE ALITO What does that have to do
with issue preclusion The State cant -- that may
raise an issue of judicial estoppel Is that
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
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agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
agreed 41214 argue 62424 4310 441323 2721 3213acquittal 314 41618 101121 119 atrocious 3522 369 371018448 178 297
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42203120 3624 2920 3019 27811 2820admission 384 based 207378 3821 3310 2823 29417386
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beginning 47114 assistance 179 38917 392adversary 101 behalf 11617appellate 920 Association 618 40817 417AEDPA 321
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115 238 35applied 2816 1724 184 brand-new2312 374 42124310 1979 2011 331718aggravator 923
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catch-all 131 clear 616 402 concluded 57 contrary 286 creates 2213
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credible 2915 3819 411 201620 2425 1522 162 1619 crime 351823 4325 4420 4415 1761822 entitles 3112 crimes 3024 defendants 43 determined 139 3091216 equivalent 296 criminal 225 defendants 1920 203 3113 3220 ESQ 11517 23
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judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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merited 1017 Monday 19 ought 202021 Penry 71013Omerits 1314 motion 3818 outcome 2619 72125 116
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2411 252021 14910 passages 3917111622 1215 positions 403 265 354 oral 111 22 35 penalty 45921138 158 161 possess 155 3620 3734 1913 1117 2181714 181020 possessed 1425
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
Q4012 439 2411 3023 3620 responding 425 question 5234415 451 364 record 423 56 response 244
1016 128posture 109 problem 721 51622 8810 2418 333 165 1812226 3424 152324 285 1046724 3716 3818 2221 245post-Atkins 58 4371115 1123 181423 412123265 30714613 78 816 problems 437 3022 371724 result 824 913 334 35252112 432 4312 381219 3916 2513 3121 365 393 421 449 procedural 224 4025 432525 retardation 420 4324 44812post-conviction 226 3424 4420 452 5420 61317 441357 procedure 2825 refer 815 619 71417
questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
39121421171819 318 3216 relevance 1320 22791424raised 247 393 221 261910 387 444 relevant 1223 2322 2439
3982913 306 proceedings 1520 2612 2717raises 3710322101121 1815 relief 4366 2817 301 ran 3713311 3516 process 1523 relitigated 74 311 3214reach 989 372 3824 166611 199 remaining 4211 341316 355 reached 910preclusive 611 prong 264 remains 1812 3571119reaching 352576 9514 144 proof 3510 remarks 1125 36522 3712 read 1237151316 234 properly 327 remedy 288 3717182225
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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3819 411 severity 720 stands 327 subsidiarysatisfied 255 4325 4420 shape 341225 starting 2019 241013 334 Sattazahn 48
reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
2319 significant 514 3791016 suggested 36132717 288 Revised 1222 similar 312021 386771015 summarily3711 3811 reweighing simple 1423 3824 4024 27234111
2311 simply 1112 412224 4225 Sunnen 1514second 315 154 right 418 1115 1424 155 44425 support 43515710 1723
268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
rise 719 1720 2111 statement 1218 1421 27104310 risk 371 435812 456 131215 414 Supreme 1112secondly 3919 ROBERTS 33 skills 51717 4216 4317 413 51 616 secure 3522
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role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
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41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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constitutionally required
MR BLUME I think it primarily does raise
a question of judicial estoppel which we raised which
is -- and that is not a technical basis on which to
grant habeas It is a reason that the writ should be
dismissed as improvidently granted
There have been multiple concessions after
that This was raised by Mr Bies in his sort of --
when he asked for estoppel he asked for it on multiple
bases Just as the fact that the warden the panel
again decided this under 2254(d)(2) grounds The warden
did not raise an issue under 2254(d)(2) in this Court
JUSTICE SOUTER But Im not sure that
theres even anything -- I mean it does raise a
judicial estoppel issue but Im not sure there is a --
a record hereupon which a -- a judicial estoppel claim
could be maintained because in the passages that you
referred us to first the States concession and
secondly the finding which -- which followed from it it
was a reference to mild mental retardation and a
specific reference to an IQ of 69
I think its a stretch would be a stretch
to go from saying that a concession of mild mental
retardation for purposes of mitigation analysis should
be taken as a concession for dispositive mental
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
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questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
quite 141617precisely 344 proceed 2821 referred 3918 11271125407preclude 349 proceeding 63 regard 408 1261123
precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
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T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
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41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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3820 3921 412 441621
77 131
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retardation for Atkins purposes So I -- I have
difficulty in seeing any clear inconsistency in the
States two positions
JUSTICE GINSBURG The very next sentence is
as a matter of law -- the law as it was then -- such a
person may be punished by execution So again its --
the stakes are quite different
MR BLUME Well not in regard to this
particular claim The claim that were talking about
where this concession was made and where this finding
was made wasnt -- this wasnt the brief on mitigation
this was a postconviction challenge to his death
sentence as a matter of law saying --
JUSTICE GINSBURG But that must have been
the page you called my attention to must have been
pre-Atkins
MR BLUME It was pre-Atkins but the claim
was a pre-Atkins Atkins claim The claim was not - was
I am categorically ineligible for the death penalty and
I am ineligible because since the Courts decision in
Atkins things have changed
JUSTICE GINSBURG No no were back --
what you called my attention to was pre-Atkins It was
the application made to the State court before Atkins
which put two sentences together One was the record
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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aggravators applies 316 2017 211 best 123A 1214 232 161922 221319 2718 beyond 125above-entitled 34151824 apply 1922 261 272223 282 1310111 4510 3517 309 3216 2817 30610 Bies 16 3412Absolutely 196
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3820 3921 412 441621
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reveals defendant to be mildly mentally regarded with an
IQ of about 69 As a matter of law such a person may
be punished by execution This is all pre-Atkins
So one statement has to be read in the light
of what was its significance and it wasnt the
conclusive factor at the time of that motion
MR BLUME Well that was the claim His
claim was it violates the Eighth Amendment to excuse
people with mental retardation This was not -- this
was after the direct appeal He now filed for post
conviction and he goes in and says look Ive been sort
of tracking things since Atkins States have -- adopt
new laws
JUSTICE GINSBURG Since Atkins were
talking about --
MR BLUME Im sorry since Penry Since
Penry there have been new developments and I believe
that a new consensus exists the one that this Court
subsequently embraced and it violates the Eighth
Amendment and the Ohio Constitution to execute persons
with mental retardation And it was in response to that
claim that the State conceded the fact of mental
retardation and it was in response to that claim that
the State court found again Mr Bies to be a person with
mental retardation
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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That wasnt in some question of the balance
of aggravating circumstances That was a straight claim
that you cannot execute me because I have mental
retardation
And so I was really responding more to
Justice Souters questions of judicial estoppel and was
it the same issue in this and I think it clearly was at
that time in this particular context
Thank you
CHIEF JUSTICE ROBERTS Thank you counsel
Mr Mizer you have ten minutes remaining
REBUTTAL ARGUMENT OF BENJAMIN C MIZER
ON BEHALF OF THE PETITIONER
MR MIZER First with respect to the
judicial estoppel arguments and the States purported
concessions as Justice Ginsburg noted the statement to
which Mr Bies points was pre-Atkins and Mr Biess
argument ignores that Atkins changed things in two ways
one consequential by enacting by placing a categorical
bar on the States and the second definitional So for
the reasons stated of our -- in our yellow brief at
pages 16 to 18 the judicial estoppel argument fails for
all kinds of reasons
But more to the point judicial estoppel
shouldnt apply here also because the State whatever it
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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was saying at the time was not talking about the
three-part post-Atkins definition of mental retardation
in Ohio
Mr Bies also argues that 2254(d)(2) is
enough to give support to -- to the Sixth Circuits
grant of relief -- of relief here but there are two
problems with that argument The first problem is that
the Sixth Circuit disregarded the reasonable
determination by the States postconviction court that
the Atkins standard had never been applied The second
problem is that we shouldnt even get to 2254(d)(2)
because there are legal problems with the Sixth
Circuits reasoning that should have prevented it from
granting the writ under 2254(d)(1) Mr Bies argues
that there is not a legal problem because there was an
acquittal in this case because the Ohio Supreme Courts
statement on direct review that Mr Bies -- that Mr
Biess mild to borderline mental retardation merits
weight and mitigation was enough to entitle him to a
life sentence But thats not an acquittal and its a
severe distortion of what this Court said in Sattazahn
about an acquittal
JUSTICE STEVENS Mr Mizer can I just get
one clarifying question The concession at page 160 of
the record The record reveals the defendant to be
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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mildly retarded with an IQ of about 69 and then they
argue as a matter of law that he cannot be -- he may be
punished Is it your position that the further
proceeding in the Ohio trial court that the State
intends to argue that a person who is mentally retarded
with an IQ of about 69 may be executed
MR MIZER No Your Honor the -- this
statement will be beside the point and the question now
post-Atkins --
JUSTICE STEVENS So youll offer evidence
to show that statement is inaccurate
MR MIZER The -- the question is the
question posed in Atkins doesnt hinge so narrowly on
IQ IQ is one of the three elements and so the experts
on -- on postconviction review will now determine what
his IQ is
JUSTICE STEVENS I understand that The --
could well be different But is it Ohios intent to
disagree with that statement insofar as it recites
facts That the record reveals the defendant to be
mildly mentally retarded with an IQ of about 69 I
understand you will argue that thats not sufficient to
-- to come within Atkins But do you intend to say --
to challenge the accuracy of that factual statement
MR MIZER Yes Your Honor as the State
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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postconviction court stated in this case that -- the
record evidence pertaining to IQ is not clear and so
IQ among all of the other elements of the mental
retardation will be up for determination
If there are no further questions we would
ask that you reverse the Sixth Circuit
CHIEF JUSTICE ROBERTS Thank you counsel
The case is submitted
(Whereupon at 1154 am the case in the
above-entitled matter was submitted)
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agree 1715 April 19 401182124 14213 179accuracy 4424 3316 3717 arguably 1023 411214 4218 2322 271617accused 624
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Alderson Reporting Company
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Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
Official - Subject to Final Review
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49
Alderson Reporting Company
Official - Subject to Final Review
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judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
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Alderson Reporting Company
Official - Subject to Final Review
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53
Alderson Reporting Company
Official - Subject to Final Review
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54
Alderson Reporting Company
Official - Subject to Final Review
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55
Alderson Reporting Company
Official - Subject to Final Review
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defined 48 developments Dr 551118 essential 2323 D defining 84 4117 1218 1812 essentially 295
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decision 319 453determination disproportion 259 2824 52 1117 elevate 261658 8222325 375 example 242 1822 191921 embraced 411999 124 1924 disproportion 2819 21412 2212 embracing2122 2336 3714 excerpts 1020 221219 299 2113261417 3213 dispute 324 excluded 718 3624 3713 enacting 42193223 3357 disregarded excuse 418 4020 engage 23113539 439 438 execute 3410
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48
Alderson Reporting Company
Official - Subject to Final Review
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617 717 913 918 1010 hear 33371922 383 inaccurate101822 1413 1210 135 hearing 3122038511 3919 4411203 2410 2025 2136 422 512 185 4010 incentive 10152522 27312 2115 2221 199 2717findings 516 351424 365 299 334714 237 266 275 heinous 61234 3789 incentives 3633511 366 279 348 held 181 3320 3811 36712372022 383 3514 36313 3321fine 1720 includes 515163851111 3721 38414 helps 132first 31422 including 5113910 4122 4041422 highlighted 79615 1216 inconsistency
factor 62 715 4114 4216 hinge 4413135 1411 40211192021 Ginsburgs 245 history 1025159 1725 incorporate1225 13117 give 321 238 Hoag 1610185 2312 1611261920 348 289121723 hold 312 184 2419 257 independent3515 3616 3118 435 holds 151 1721 3020 3117 194 2311416 given 71 148 Honor 425 67 32236710 independently
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49
Alderson Reporting Company
Official - Subject to Final Review
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315 15111723420 2617 266 2759 2715 2913 4510 15192022interpret 1116 28421 291 level 7420 921 matters 2420 16323 176 interpretations 291217 302 925 258 mean 423 812 17182324168 31361625 liability 2919 820 2212 30101316interpreted 32518 3323 301819 3315 2323 2420 3113 32203119 33162024 life 518 2223 2515 2622
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judge 412 103 IQ 515151925 4041422 limitations 514 means 420 914 103 12131564161920 4114 42610 517 3313 281115 318 625 74 813 4216 4323 line 620 2020 meant 206
judgment 8378161923 441017 457 2021 mental 420 54 88121418912 195 lines 39 520 61217
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Alderson Reporting Company
Official - Subject to Final Review
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51
Alderson Reporting Company
Official - Subject to Final Review
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52
Alderson Reporting Company
Official - Subject to Final Review
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53
Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
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49
Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
Official - Subject to Final Review
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51
Alderson Reporting Company
Official - Subject to Final Review
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52
Alderson Reporting Company
Official - Subject to Final Review
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53
Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
Official - Subject to Final Review
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Alderson Reporting Company
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Alderson Reporting Company
Official - Subject to Final Review
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51
Alderson Reporting Company
Official - Subject to Final Review
possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
52
Alderson Reporting Company
Official - Subject to Final Review
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
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T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
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53
Alderson Reporting Company
Official - Subject to Final Review
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1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
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54
Alderson Reporting Company
Official - Subject to Final Review
65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
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55
Alderson Reporting Company
Official - Subject to Final Review
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51
Alderson Reporting Company
Official - Subject to Final Review
possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
4110 3711 401617 purposes 313 3619 422123 resolved 3014 postconviction 401823 413 76 3924 401 REBUTTAL respect 615
311 510 183 4217 put 4025 27 4212 1512 165 18111525 primarily 392 put-in-jeopardy recites 4419 307 4214 191 37910 prior 102425 177 recognize 420 Respondent 3719 387 22716 248 recognized 118 26 1914
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questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
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precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
52
Alderson Reporting Company
Official - Subject to Final Review
221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
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reverse 2723 shot 1547 283 state 41921 3372922 4321 456 show 422 154 510 715 substantial 517saying 912
review 10719 4411 1111 148 successive 315241221 2815 1021 1313 shown 3812 152568 167 1623 17531617 328 1825 2310 shows 319 16814 172 suffers 514163423 3923 254 4317 Shuffling 3110 189 193420 suffice 57 88 4013 431 4415 significance 1925 2419 sufficient 2923says 419 511
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268 27415 17823 stated 2711 supports 2819328 338 311416 377 Sixth 1311 142 4221 451 suppose 5233624 4220
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1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
T 2113313 1125 3921 strikes 3611sentencing take 521 1712 run 720 1521 specifically 519 submitted 458301625
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53
Alderson Reporting Company
Official - Subject to Final Review
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54
Alderson Reporting Company
Official - Subject to Final Review
65 525 625 81319 99
68 1813 69 1813 38113
3820 3921 412 441621
77 131
55
Alderson Reporting Company
Official - Subject to Final Review
possession 1423 pre-Atkins 524 punished 406 4313 178 possible 167 71017 919 413 443 reasons 6812 research 1524 post 721 3821 214 228 purported 4215 115 159 reserve 187
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questions 186precedent 1721 3225 341220 reference 64 81 91922426 455precise 2518 342125 355 392021 101121722
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precluded 222 153 201 regarded 411 137132124Rprecludes 323 2218 2318 regardless 2023 14317 1923 R 31preclusion 419 24812 252 relating 61213 205791618raise 3825 392 91 151011 2810 2916 15910 21771424
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reasonable 3201722 psychiatrist repeated 3821 271821 3411 125 1310prevented 4313 1922 required 815 388131620438previously 156 psychologists 391 441521
reasoning 31211620 2023 requirement retroactive
52
Alderson Reporting Company
Official - Subject to Final Review
221315 2910 serve 264 stakes 407 2211 2713S 322425 serves 264 stand 328 2916 3223S 21 31
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reviewed 921 238 252 3215 3412 311 4422524 1322 reviewing 414 3313 415 351 361025 suggest 810221317 272
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1911 2912 622 817 448111924 71124 1016 see 24516302 3611 sole 359 statements 286 1124 12132616 308 4210 457 Solicitor 115 States 1112 1331216seeing 402
role 2391024 somebody 276 148 2019 1421 151sell 1423 2623 sorry 610 3817 3420 3715 182124 207 sense 45 94
rule 43 2018 4116 4112 4220 2025 214144 1625 22131517 sort 1623 2920 States 3818 2319212524 2711 2817 3612 398 3918 403 2720 3416sentence 410 291020 329 4111 4215 439 372623924 1624 3219192021 SOUTER 811 statute 152 43161744 2117 322324 332 818 971216 statutory 1221 sure 3218 3913 2121 2320 33991017 201015 244 1224 3915254 2924 3319 34410 256121524 step 2312 surely 16243623 375143420 3125 3218 STEVENS Swenson 31740413 4320
rules 1516 166 332162024 1115 1818 41 272 3310 sentenced 62 1691215 343 3913 4323 441017 sword 118sentencer 49 3225 Souters 426 straight 422710 141 Truling 2914 specific 812 stretch 392222sentences 4025
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53
Alderson Reporting Company
Official - Subject to Final Review
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71114 2417 told 71225 understanding Washington 18 X2423 409 920 1114 2623 wasnt 957
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1819 358 3020 311113 1611 2415 3424 1102 113 32 text 177 358 444 uses 2610 weight 1018 1154 459Thank 1911 true 219 usually 2421 1314 4319 143 381818
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41 21112013 2110 40325 4218 winner 211719 2254(d)(1) 4314vigorously237 253 268 436 221 261025 2254(d)(2) 1919
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54
Alderson Reporting Company
Official - Subject to Final Review
65 525 625 81319 99
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55
Alderson Reporting Company
Official - Subject to Final Review
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53
Alderson Reporting Company
Official - Subject to Final Review
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54
Alderson Reporting Company
Official - Subject to Final Review
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55
Alderson Reporting Company
Official - Subject to Final Review
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54
Alderson Reporting Company
Official - Subject to Final Review
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55
Alderson Reporting Company