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Argument Preview: Bobby v. Bies

Stanford student Martine Cicconi previews today’s argument in Bobby v. Bies. Filings in the case are available at SCOTUSWiki here.

Oral Argument Preview

In Atkins v. Virginia (2002), the Supreme Court held that the execution of mentally retarded individuals violates the Eighth Amendment. On April 27, in No. 08-598, Bobby v. Bies, the Court will consider whether double jeopardy protections apply to a state post-conviction hearing to determine a death-sentenced inmate’s mental competency under Atkins, when the state supreme court has previously referenced the inmate’s “borderline mental retardation.”


In 1992, Michael Bies was sentenced to death for the murder of a ten-year-old boy. At the penalty phase of his trial, Bies offered as mitigating evidence the testimony of a psychologist, who explained that his IQ fell within the range of mild to borderline mental retardation.

On direct appeal, the Ohio Supreme Court agreed that Bies’s “borderline mental retardation” warranted mitigation. But it nonetheless concluded that the aggravating circumstances of his crime outweighed the mitigating factors and affirmed his death sentence.

After his initial efforts to seek state post-conviction relief were unsuccessful, Bies filed a petition for habeas corpus in federal court, arguing that because he was mentally retarded, the Eighth Amendment prohibited his execution. Following the Atkins decision, the federal district court directed Bies to return to state court to seek relief. Bies thus filed a third petition for state post-conviction relief and then filed a motion for summary judgment. He argued that because the trial record established and the state supreme court recognized his retardation, double jeopardy now precluded the state from disputing it.

The Ohio Court of Common Pleas denied Bies’s motion for summary judgment. In that court’s view, the Ohio Supreme Court had not conclusively determined that Bies was mentally retarded because the state’s standard for finding retardation under Atkins was not established at the time the court reviewed his death sentence. Bies then returned to federal court to press his claims, this time successfully: the district judge granted his petition for habeas relief, agreeing that double jeopardy’s collateral estoppel component prevented the state from relitigating his mental capacity.

Ohio appealed, and the Sixth Circuit affirmed. Noting that an issue of ultimate fact cannot be re-litigated when it has been determined by a valid and final judgment, the Sixth Circuit used a four-part test to determine whether the state could contest Bies’s mental retardation. First, the court considered whether Bies had met the burden of demonstrating that the issue was actually decided in a previous proceeding. Rejecting the government’s argument that the standard for assessing mental retardation had not been established at the time of Bies’s direct appeal, the Sixth Circuit found that the state supreme court had determined Bies’s mental status based on the clinical definition of retardation — the same standard it used after Atkins. Next, the court concluded that the determination of Bies’s mental retardation was necessary to the outcome of his appeal because the Ohio Supreme Court was statutorily required to weigh all aggravating and mitigating factors when reviewing a death sentence. Moreover, the state had an opportunity to litigate the issue of Bies’s mental competency throughout his direct appeal. Lastly, the Sixth Circuit determined that the Ohio Supreme Court’s determination was final, and thus collateral estoppel precluded the state from disputing Bies’s mental retardation.

The Sixth Circuit also addressed whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited the district court’s authority to grant Bies’s petition. Under AEDPA, a federal court may only issue a writ of habeas corpus if the inmate is in custody “pursuant to a state court decision that is contrary to or involved an unreasonable application of clearly established” Supreme Court precedent, or a decision based on “an unreasonable determination of the facts in light of the evidence.” Focusing on the latter provision, the Sixth Circuit found that the state post-conviction court had unreasonably analyzed the facts of the case when it found that the Ohio Supreme Court had not determined Bies’s mental retardation consistent with the post-Atkins standard. The Sixth Circuit noted that the state supreme court’s conclusion was based largely on the testimony of the psychologist who interviewed Bies; her extensive findings, the court reasoned, permitted a diagnosis of mental retardation consistent with the clinical definition. Because the clinical definition continues to be the appropriate standard for determining mental retardation post-Atkins, the state court’s conclusion was unreasonable in light of the evidence presented and therefore ripe for review by the federal courts.

Petition for Certiorari

In his petition for certiorari, Warden David Bobby argued that the Sixth Circuit violated AEDPA by granting Bies’s habeas petition in the absence of a state court decision contrary to established Supreme Court precedent. He argued that the state post-conviction court’s decision was consistent with precedent — and the Sixth Circuit’s holding inconsistent with that precedent — for three reasons.

First, double jeopardy protections are premised on the accused being “acquitted.” In the death penalty context, this requires a finding that the prosecution failed to prove its case for capital punishment. Because every court that had reviewed his case had determined that death was an appropriate sentence, “Bies was never ‘acquitted’ of capital punishment, jeopardy never terminated, and the Double Jeopardy clause was never triggered.”

Second, a state post-conviction proceeding on the question of Bies’s mental retardation would not trigger double jeopardy because the state neither initiated the proceeding nor exposed him to additional criminal punishment. When the accused hales himself into court and the proceeding cannot increase his punishment, double jeopardy does not apply.

Third, even if double jeopardy did apply, collateral estoppel would not bar the state from litigating Bies’s mental status because the state supreme court issued its decision before Atkins. In Ohio, to determine whether a defendant is mentally retarded, a court must consider whether the accused exhibits both significantly sub-average intellectual capacities and limitations in two or more adaptive skills with an onset before the age of eighteen. Because that test had not yet been established when the Ohio Supreme Court reviewed Bies’s death sentence, the court’s conclusions regarding his mental capacity were not determinative. Furthermore, the state supreme court’s finding with regard to mental retardation was not necessary to its affirmance of the death penalty — rather, the finding cut against that determination.

Finally, the Warden also argued that the Sixth Circuit’s decision denied the state an opportunity to fairly litigate Bies’s Atkins claims. Noting that preclusion is inappropriate when Supreme Court decisions have altered precedent, he argued that Atkins changed the legal landscape regarding the execution of mentally retarded inmates. The Warden concluded by cautioning the Court that the Sixth Circuit’s holding should be overturned before its “errant precedent [was] applied . . . to other capital defendants who introduced evidence of their limited intellectual functioning in pre-Atkins penalty-phase proceedings.”

Opposing certiorari, Bies emphasized the accuracy of the Sixth Circuit’s holding and fact-bound nature of the case. He began by reciting the facts that highlighted Bies’s history of mental retardation and the state’s recognition of his limitations. Next, he attacked the premise underlying the Warden’s AEDPA claim, arguing that the Warden had erroneously suggested that the Sixth Circuit’s holding rested on the state court’s decisions being contrary to established Supreme Court precedent. Instead, Bies argued, the Sixth Circuit held that the state post-conviction court unreasonably analyzed the facts of the case in light of the evidence — a finding that also authorizes the federal courts to grant habeas relief. Like the Sixth Circuit, Bies argued that the state post-conviction court had simply reached an unreasonable conclusion when it found that Bies’s retardation had not been finally determined.

Next, Bies asserted that the Warden ignored the basis for the Sixth Circuit’s decision when he argued that double jeopardy does not apply unless a defendant has been acquitted. Here, Bies explained, the Sixth Circuit held that double jeopardy protections applied because of collateral estoppel — an element also embodied in the Fifth Amendment. Citing the Supreme Court’s decision in Ashe v. Swenson (1970), Bies argued that collateral estoppel applies “when an issue of ultimate fact has once been determined in a final judgment.” Because the state supreme court had determined that Bies is mentally retarded, the Sixth Circuit correctly held that the issue could not be re-litigated without requiring Bies to “run the gauntlet” a second time.

Bies concluded by arguing that the Warden attempted to create a cert-worthy issue where none existed. Because no other case presented the idiosyncratic facts at issue — namely, a finding by the state supreme court that the accused is mentally retarded — the question lacked “national significance.”

Merits Briefing

In his brief on the merits, the Warden elaborated on the arguments made in his petition and addressed Bies’s Ashe claims. He argued that Ashe‘s collateral estoppel doctrine “require[s] an ‘acquittal’ no less than a routine double jeopardy case.” In Ashe, the petitioner’s right to avoid relitigating an issue material to his guilt was based on the jury’s conclusion that the prosecution had not proved the elements of the crime. When, as here, the accused has not been acquitted of a relevant fact — such as the application of the death penalty — there can be no collateral estoppel. Moreover, Bobby argued, collateral estoppel is not a free-standing doctrine wholly independent of double jeopardy. Instead, when there is no subsequent prosecution or threat of multiple punishments to trigger double jeopardy, collateral estoppel cannot apply. The “anti-harassment, finality and repose” concerns that underlie both doctrines simply are not implicated in a quasi-civil habeas proceeding, initiated by the accused, at which punishment cannot be increased. And even if double jeopardy did preclude the state from relitigating Bies’s mental competency, the Sixth Circuit still violated AEDPA because such a conclusion is not compelled by clearly established precedent.

The Warden also reiterated that the state supreme court did not in fact determine that Bies was mental retarded. Emphasizing the differences in the pre- and post-Atkins standards for determining mental retardation, he argued that the state supreme court’s finding could not in any event preclude later litigation, because collateral estoppel applies only when the matter at issue is identical in the two proceedings. Moreover, principles of comity weigh against the application of collateral estoppel: by precluding the state from assessing Bies’s Atkins claim, the Sixth Circuit “unduly interfere[d] with the legitimate activities of the state and fail[ed] to award proper respect for state functions.” Even if Bies had a meritorious Atkins claim, the Warden concluded, Ohio should not be denied the opportunity to hold him to the burden established in the years following his conviction.

In his brief on the merits, Bies countered that Ashe‘s collateral estoppel doctrine did not require an acquittal. Instead, he argued, Ashe should be applied with “rationalism and rationality” and is clearly implicated in cases that require enforcement of a retroactive substantive law in a proceeding other than a prosecution. All that is required tao trigger collateral estoppel is a “valid and final judgment.”

Bies also emphasized that the Warden devoted only a small portion of his brief to arguments regarding the AEDPA — which, he argued, demonstrated that the case did not implicate AEDPA concerns, but instead simply asked the court to apply “settled double jeopardy principles to admittedly idiosyncratic factual circumstances.”

Bies also disputed the Warden’s claim that no competency determination made prior to Atkins could be sustained after the decision, explaining that the standard used to determine retardation on direct appeal was the same standard Ohio used after Atkins. Although the legal consequences of the finding changed, the facts remained the same. Finally, Bies challenged the Warden’s assertion that the state had been denied an opportunity to litigate the issue. Given the strength of mental retardation as a mitigating factor prior to Atkins, the notion the state lacked incentives to aggressively contest the determination is simply untenable. As such, he concluded, permitting the state to dispute his mental status in a later proceeding would violate double jeopardy.

Cases: Bobby v. Bies