Federal Judiciary

A Remarkable Death Row Habeas Decision from the Sixth

By Robert Loblaw

Bies v. Bagley, 06-3471 (6^th Cir., Feb. 26, 2008)

In a surprising decision, a panel of the Sixth Circuit has held that Double Jeopardy bars a state from relitigating the issue of a death row inmate?s mental retardation. Petitioner Michael Bies is sitting on death row for the kidnapping, attempted rape, and murder of a ten year old boy. In direct appeals more than ten years ago, the Ohio state courts determined that Bies was mentally retarded but nonetheless affirmed his conviction and death sentence. But Bies? efforts to avoid execution grew new legs in 2002 when the Supreme Court declared that it was cruel and unusual to execute the mentally retarded.

Bies filed another state court petition for relief, but Ohio fought it by challenging the earlier determination that Bies was mentally retarded. The state trial court held that the state was allowed to relitigate the earlier determination, so Bies filed a federal habeas petition. The district court granted relief and vacated the death sentence. On appeal by the state, a unanimous panel of the Sixth Circuit affirms. In a groundbreaking ruling, the Court holds that the Double Jeopardy clause bars Ohio from relitigating the issue of mental retardation.

Since the panel?s Double Jeopardy holding is not based on clearly established federal law, AEDPA would ordinarily prevent the Sixth from granting habeas relief. But the panel turns to the other safety valve of AEDPA: whether the state court?s decision involves an unreasonable determination of fact. In a creative ruling, the majority concludes that the state court made some unreasonable findings about the expert who initially diagnosed Bies as mentally retarded.

Will this decision survive the en banc Sixth Circuit, which is known for its sharp divisions in death row habeas cases? The fact that the panel consists of Judges Daughtry, Moore, and Clay suggests that reversal is inevitable.

Full post as published by Decision of the Day on February 27, 2008 (boomark / email).