Bies v. Bagley

accompanying copy picture of motion were counterfeit.8 The district court reached this conclusion recounting within the United States. See 18 after English’s § credible assertions that U.S.C. 2318. The terms “counterfeit la- packaging DVDs and their contained blur- bel” and “counterfeit documentation or ry words; labels, misspelled and and that artwork packaging” refer to documentation made[,]” appeared the labels to be “home packaging appears genuine, or “that to be poor quality, were of 2318(b)(1), misspell- contained § but is not.” 18 U.S.C. ings, and were not centered. As the case, dis- although this the district court noted, trict court Teh offered no evidence § apprised was never that 2318 was the suggest packaging the labels or statute, applicable clearly it found facts genuine. any were And there was never satisfying each of these elements. doubt that the copies DVDs issue were First, the district found that pictures. motion transporting Teh knew that he was coun Finally, it undisputed is these packaging. terfeit DVD labels and Recog States, events occurred within the United nizing that “the critical element this at Detroit Metropolitan Airport. Accord- knowledge,” case district court found ingly, we conclude that the district court that Teh must have known the content of rationally found facts showing Teh’s Express packages. the Federal It made actions violated the essential elements of this noting: previ after the three 2318, which, turn, § provided sufficient ous instances in which fraudulent or coun satisfy evidence to “contrary to law” terfeit DVDs addressed Teh had been § element of Teh’s 545 violation. intercepted; expla inconsistencies Teh’s nation; and Teh’s dubious assertion that IV. he not inquire did as to the contents of reasons, For foregoing we affirm heavy packages. such Teh’s conviction. Second, the district court found facts showing that Teh “trafficked” the labels §

and packaging. Under “traffic”

means, alia, import inter “to ... ... or

possess, with intent transport, to so trans- fer, dispose or otherwise of.” 18 U.S.C. BIES, Petitioner-Appellee, Michael 2320(e)(2)). § (citing § Importation § is also an element of and Teh does Margaret BAGLEY, Warden, dispute DVDs, imported he Respondent-Appellant. labels, packaging into the United Moreover, States. spe- district court No. 06-3471. cifically found that transported Teh United States Appeals, Court of

merchandise into the United States. Sixth Circuit. elements, toAs the third and fourth Aug. 2008. found, district court based on the credible testimony of English, that the DAUGHTREY, MOORE, labels and Before: packaging accompanying CLAY, sleeves the DVDs Judges. Circuit Although the district court "appear[ed] genuine, used both the lo be but [were] not.” "counterfeit,” terms “fraudulent” and both 2318(b)(1), (6). § 18 U.S.C. imply packaging terms that the labels and Bagley require Bies v. does not such an

ORDER extraordinary procedure. a for having petition The court received banc, rehearing petition having and the en I. only original not to the circulated been 13, 1992, On October Michael Bies was to all other ac- members also panel but guilty, by jury, kidnap- found an Ohio of * court, judges of this and less than tive rape ping, attempted During and murder. judges having favored the majority of the trial, in- sentencing phase of his Bies rehearing for suggestion, petition testimony troduced the of Dr. Donna Win- original panel. referred to the been ter, a licensed clinical psychologist, who peti- The has further reviewed IQ that testified both Petitioner has an of rehearing tion for and concludes possesses and that he all the traits petition fully in the were issues raised necessary for a clinical diagnosis of mental upon original submission considered testimony retardation. Dr. Winter’s Accordingly, of the case. and decision Myron a letter from Dr. corroborated petition is denied. Fridman, another clinical psy- S. licensed

chologist diagnosed who Petitioner as a mildly “marginally functioning, mentally CLAY, Judge, concurring Circuit Bies, retarded man....” 519 F.3d at rehearing en banc. denial Nevertheless, jury recommended the findings suffi When a court “enter[s] sentence, 30, 1992, death and on October to the cient to establish entitlement accepted the trial court this recommenda- sentence,” Jeopardy life the Double Clause tion. any appropriateness retrial of the “bars appealed Bies his sentence to the Ohio penalty.” Pennsyl the death v. Sattazahn Appeal, eventually to the Court of vania, 101, 108, 109, Supreme Although Court. both Ohio 732, 154 L.Ed.2d 588 Further sentence, courts affirmed the death both more, Virginia, under Atkins v. that Bies is expressly courts also held L.Ed.2d 335 S.Ct. retarded, supreme mentally and the state (2002), punishment “death is not suitable diag credited Dr. explicitly Winter’s mentally criminal.” Id. at retarded Bies, finding. making nosis in See Therefore, S.Ct. 2242. when Bies, 761; State v. No. C- N.E.2d finding entered a Ohio Court * (Ohio 920841, 1994 WL 102196 at Ct. retarded, mentally Michael Bies is State 30,1994). App. March 658 N.E.2d Ohio St.3d (1996), any barred future On June Virginia, which held regarding trial whether Bies could be exe decided Atkins cuted, cannot every judge mentally Article III to hear retarded individuals constitutionally be executed. See 536 U.S. Bies’ case has said as much. See Bies v. (6th light 2242. In 329 342 Bagley, 519 F.3d Cir. 2008). in a Nevertheless, challenged his death sentence the dissent from the Bies petition pursuant filed to 28 U.S.C. rehearing attempts en banc habeas denial reme- § Bies exhausted his pre issues 2254. After argue the uncontroversial court, court held in state the district by Bies’ case somehow warrant en dies sented Clause, that, Jeopardy the Double opinion explains why This under banc review. * ruling. Judge participation herself from in this Cook recused may pursue a death row inmate the which relitigate could government Dou- under the challenging their sentence of whether already-decided Sattazahn, Clause. Under ble retarded, held that and thus “acquitted” a judge jury a or once a sentence other to Atkins entitles Bies entering findings “by capital defendant Bies, In at 329. a 519 F.3d than death. to to establish entitlement sufficient decision, of this Court unanimous sentence,” jeopardy attaches to life the 2242. affirmed. Id. at can- “acquittal,” an and the defendant such II. danger in of a death again placed be at for the same offense. 537 U.S. sentence prece- Supreme Court existing Under 108-09, collateral 732. Unlike 123 S.Ct. dent, challenging their death sen- person capital to and estoppel, which is available separate under two may tence claim relief Ashe, alike, see 397 non-capital defendants The first of jeopardy doctrines. double 446, (applying collat- at 90 S.Ct. 1189 U.S. doctrines, in panel opinion these which robbery estoppel to benefit a defen- eral from Ashe largely upon, relied stems dant), jeopardy Sattazahn affords double 1189, Swenson, 436, 90 S.Ct. 25 397 U.S. above capital to defendants protections (1970), held that “when 469 L.Ed.2d which by persons ac- beyond enjoyed and those fact has once been an issue of ultimate crimes; ensuring that cused of less serious judgment, a valid and final determined entitled to a a defendant is declared once again litigated be be- issue cannot sentence, will not be life that declaration any in future law- parties tween the same 108-09, relitigated. 537 U.S. 123 S.Ct. at Bies, 1189; Id. at 90 S.Ct. suit.” 732; Georgia, Gregg also panel opinion at As ex- F.3d L.Ed.2d 859 96 S.Ct. incorporates in Ashe plained, (“When (1976) a defen- (plurality opinion) into in the estoppel collateral doctrine stake, has been dant’s life is at the Court 519 F.3d Double Clause. every sensitive insure particularly to relitigation To bar issue at 332-33. observed.”) safeguard is doctrine, four estoppel the collateral under be met: requirements must of the word Focusing on use Sattazahn’s (1) precise pres- raised in the claims that we “acquittal,” dissent and ent case must have been raised application Jeop- limit the Double must actually litigated prior proceeding; ardy to the circumstances de- Clause (2) determination the issue must have Arizona, scribed Poland v. U.S. necessary the outcome of the been In L.Ed.2d (3) proceeding; prior proceed- prior Poland, held that a ing judg- must have a final resulted against a second protected defendant is merits; party ment on the proceeding when the capital sentencing “ against estoppel sought whom must proceeding, ‘decid[ed] the first opportunity had a full fair have prosecution proved has not proceeding. litigate prior the issue in the penalty for the death and hence has case’ C.P., (quoting N.A.A. Detroit Id. ‘acquitted’ petitioners.” 476 U.S. Ass’n, Branch v. Detroit Police Bullington Officers v. Mis- (quoting 106 S.Ct. 1749 Cir.1987) (footnotes (6th 821 F.2d souri, 430, 443, 101 S.Ct. omitted)). (1981)). Sattazahn, how- L.Ed.2d 270 In ever, holding, Pennsylvania, the Court Poland’s Sattazahn v. Su- clarified that, where explaining unlike other cases preme Court a second avenue described shielded a jeopardy appeal, double defendant On the Arizona Supreme Court capital sentencing hear held that second Poland defendants’ verdict tainted, ... and thus ordered a ing, judge “in Poland neither the nor new trial. 106 S.Ct. 1749. In holding, so jury ‘acquitted’ the defendant in however, the state supreme court held capital-sentencing proceeding by his first both that presented the evidence in the entering le findings establish sufficient first trial did not show that the defendants gal entitlement to the sentence.” Sat life “heinous, cruel, had acted in a or depraved tazahn, 123 S.Ct. 732 manner,” and that the trial court was in- added). (emphasis correct, law, as a matter of in holding that language this As from Sattazahn makes the “pecuniary value” aggravating factor clear, Court understands Po- only applied could be killings. to contract First, land to two propositions. establish remand, Id. On the defendants were once the Double Jeopardy prohibits Clause a again death, convicted and sentenced to capital sentencing proceeding second when and the trial court found both aggravating proceeding the first such results in an factors present. were “acquittal.” importantly, Id. Just as how- light facts, of these Sattazahn’s hold- ever, acquittal defines an Sattazahn as a ing that a acquits a “by defendant judgment “findings which enters sufficient entering findings sufficient to establish le- legal to establish entitlement to the life gal entitlement to the life sentence” is sentence.” Id. consistent with Poland’s defendants in that case were not entitled understanding This of Sattazahn is con to relief under the Double Poland, underlying sistent with the facts trial, Clause. In their first the Poland who, which capital concerned defendants defendants pur- were sentenced to death after their conviction capital sentence suant to trial factually unsup- court’s court, by appellate was overturned a state ported aggravating conclusion that one again were retried and sentenced to death. present, circumstance was legally and its Poland, 106 S.Ct. 1749. erroneous conclusion that another did not trial, prosecution At the first argued apply. Although Id. supreme the state statutory two aggravating circum court reversed the trial court’s factual de- in present stances were the defendants’ act termination that the defendants’ crime (1) of murder: had commit “[defendants] “heinous, cruel, in a committed or de- ted the offense as consideration for the manner,” praved it also reversed the trial receipt, or in expectation receipt, legal court’s pecu- determination that the value; [something] pecuniary niary aggravating value circumstance was [defendants] committed offense present. Thus, point Id. at no did a heinous, cruel, especially or depraved finding court enter a fact aggra- that no (inter manner.” Id. S.Ct. 1749 vating present circumstances were Po- omitted). nal quotation citations and marks land, entitling thus the Poland defendants Although the trial court found that to a life sentence. aggravating second circumstance was present, it Poland, also concluded that the first however, Unlike a court because, circumstance did not a exist as finding did issue a of fact which entitles law, only matter of that circumstance could Bies to a life sentence. appeal On direct sentence, exist in a case kill involving “contract of Bies’ Ohio ing.” retarded, found that Bies is as “Actually Litigated” Bies, A. clinically defined. See that term is finding such at 761. Because 658 N.E.2d argues that “the constitu- The dissent constitutionally ineligible renders Bies was not tionality of Bies’ death sentence penalty, the death ... determined’ the state ‘actually Lott, 2242; 97 Ohio State that Bies suffered saying courts because (2002), it 779 N.E.2d St.3d deciding mental retardation from mild under Satta- “acquittal” amounts to an mitigating factors counsel zahn, attaches to jeopardy and thus thing the same a death sentence is not mentally retard- that Bies is determination ineligible for the death saying that Bies is Sattazahn, 537 U.S. at ed. Dissenting Op. Atkins.” penalty under S.Ct. 732. claims Essentially, argument 532-33.

that, Supreme Court though the Ohio finding during of fact its resolution made III. issue, fact that same of one provides sufficient Although Sattazahn in the context of a may relitigated now be cannot to hold that Michael Bies grounds legal inquiry. different constitutionally relitigate to the be forced Supreme disagrees with the The Court retardation, panel mental the issue of his Arkansas, dissent, In Turner v. however. estoppel princi- instead relied on collateral 32 L.Ed.2d 798 407 U.S. S.Ct. Jeopar- into the Double ples incorporated (1972), charged Turner was with Dennis Bies, 519 at 332- dy by Ashe. F.3d Clause Wayne during a murdering Larry Yates length at in its panel explained the 40. As game, acquitted upon but was poker the four proved each of opinion, Bies jury’s finding present that Turner was not es- necessary to assert collateral elements game. at Id. at 92 S.Ct. 2096. (1) is, that: toppel; that he has shown on the murder Subsequent acquittal to his of his mental retardation was question charge, charged robbing Turner was with prior in actually litigated raised and game. poker another member of the same (2) of this issue proceeding; determination Id. at 92 S.Ct. 2096. The two trials necessary pro- of that to the outcome very legal ques- presented two different (3) prior proceeding resulted ceeding; tions; Turner the first concerned whether (4) merits; judgment in final on the a murder, and the sec- could be convicted government oppor- had a full and fair he could be convicted of rob- ond whether tunity litigate question of whether Nevertheless, bery. Supreme Court (cit- mentally Bies is retarded. Id. at 333 estoppel, holding that applied collateral 330). N.A.A.C.P., ing 821 F.2d at a the factual determina- once court made at the present tion that Turner was not that The dissent does not contest poker game, the state could not constitu- in panel applied legal the correct standard actually tionally claim that Turner was at prove that Bies must these four proceeding. in a future poker game that in elements order to succeed under Ashe. 369-70, Id. at Instead, argues panel the dissent by case is controlled Turner. determining both that Bies’ men- The instant erred appeal, Supreme direct the Ohio Court litigated tal retardation was raised and On Court, determined, clinically accepted and that under the Supreme before the Ohio term, necessary that Michael Bies is of this issue was definition determination mentally person retarded. Because who proceeding. the outcome of that Nei- under the clinical def- mentally claims has merit. is retarded ther of these proceedings, cannot constitutional various of fact inition of term Ohio, see At- by Supreme executed in the State resolved the Ohio be Court 2242; Lott, kins, S.Ct. by identical to the one now contested argues Bies now 779 N.E.2d state. Though At- cannot be executed. Bies’

he “Necessary claim raises a different kins B. to the Outcome” originally by one considered than the Next, that, argues though the dissent Court, both claims involve Supreme Ohio appellate law forbids a state Ohio fact; the same issue of the Ohio affirming from a death it sentence unless mentally determined that Bies is mitigating first determines which factors retarded, defined, clinically as that term is present weighs are the case and those government and the does not contest against any aggravating factors de novo retarded, mentally if he cannot Bies is factors, Jenkins, State 15 Ohio St.3d constitutionally be executed. See (holding 473 N.E.2d 122 S.Ct. 2242. More- appellate that an Ohio court’s role in re- over, Turner, the not under State is free viewing “parallels a death sentence that of contest Bies’ mental retardation. Once a jury the sentence death is im- when once been determined factual issue “has posed”), the Ohio Court’s deter- judgment, a valid and final issue can- mination that Michael Bies is re- again litigated be between the same “necessary” tarded was somehow not to its Ashe, any parties future lawsuit.” to affirm Bies’ death If decision sentence. ap- 1189. This rule however, otherwise, had held it if plies even the future lawsuit concerns applied meaning would have a tortured to Turner, question different of law. See 407 “necessary.” the word According- S.Ct. an estoppel, order to invoke collateral ly, in that panel did not err prove, among things, accused must other government relitigate question cannot resolving that the factual issue determined mentally of whether or not Bies is retard- necessary ed. an earlier was to proceeding proceeding. outcome of that that Additionally, suggests the dissent N.A.A.C.P., 330; Allen v. 821 F.2d see might there be some relevant distinction 90, 96, 101 McCurry, S.Ct. between the “individualized” determination (1980) (“Under L.Ed.2d 308 collateral es- particular mentally that a defendant is re- of toppel, once a court has decided an issue “categorical” and the on execut- tarded bar judgment, that necessary fact or law to its However, mentally persons. retarded ing relitigation of the may preclude decision whatever distinction the dissent is draw- in a on a different cause of action issue suit it not relevant to Bies. The Ohio ing, is case.”) the first To involving party to determined, in mitigation “necessary” Y say that X is to is the same that Michael Bies is proceeding, Y thing saying impossible that it is clinical retarded under the definition of Accordingly, to exist unless X also exists. finding that term. Had the identical of appel it for an Ohio impossible because is hearing, in an that fact been made Atkins a death sentence with late court to affirm finding alone would have been sufficient to fac determining mitigating first which out ineligible penal- render Bies for the death Jenkins, case, present tors are ty. See Lott, Supreme Court’s 2242; N.E.2d at the Ohio Regard- 779 N.E.2d at 1014. or of the of whether legal questions less of what were at issue resolution Weems, See, v. e.g., was fect. United States mentally retarded Bies is not Michael (9th Cir.1995); United Air- affirm F.3d decision to necessary to its eventual in United sentence; craft, com- F.2d at 99. Thus and the death Bies’ Weems, es- Clarke Weems collateral v. defendant applying States mitted no error purchase funds to two used structured toppel in Bies. land,1 was used for one of which parcels of estop- that collateral claims The dissent marijuana. 49 F.3d at cultivation the Ohio apply not pel does concerning wheth- opinion 530. In a 1990 Bies is mental- that determination Court’s subject properties er or not the were finding that “cuts ly retarded because forfeiture, found that a district court ultimate conclusion that court’s against” marijuana cul- unaware Weems was Dissenting be executed. that Bies should property, on his but nevertheless tivation however, claim, over- This Op. at 533. subject to properties held that were that a to which fact states extent they pur- been because forfeiture contrary to its was court’s determination funds. Id. illegally structured chased with holding precludes application ultimate later, months Weems was About fifteen generally the estoppel. It is of collateral structuring counts indicted on three estoppel collateral context case transactions, currency trial court winning adverse to the determination “[a] prosecution to introduce evi- permitted the effect.” preclusive does have party not marijuana growing was dence Weems Int’l Market Ins. Co. v. Fireman’s Fund on his as evidence Weems’ (9th Cir.1985). property Place, 773 F.2d structuring the transactions. motive in states, Moreover, correctly dissent as the convicted, appealed After he was Weems general pro- this rule purpose estoppel on his conviction collateral “from being estopped litigants tect from the 1990 grounds, arguing proceedings decided in relitigating marijuana cultiva- that he unaware of appeal.” it Dissent- from which could prose- property precluded tion on his 533; Corp. ing Op. at see United Aircraft pro- arguing cution a successive (2d from Cir.1971); NLRB, F.2d cultivation motivated his ceeding Elrod, 816 F.2d see also White decision structure funds. to (7th Cir.1987) (“[W]hen a decision of subject instance is to a tribunal of first argued appeal that government The on given collat- appeal, the cannot be decision appeal, entitled as of because it was “not to (or judicata) effect if the estoppel eral res finding right, [which] the district court’s sought be bound could not have party to judgment govern- in a in the was contained it, had example because he appealed favor,” finding that should not be ment’s won.”) effect. Id. at 533. The given preclusive Circuit, however, When, however, rejected argu- the whom Ninth party ment, government that “the had explaining able to estoppel collateral asserted was cross-appeal to the court’s challenge findings prior opportunity the reached in the the ap- in this case when defendant appeal, courts held decision proceeding on have forfeiture,” did to and thus Weems finding pealed that a of fact which is adverse complement not fall the normal prevailing in that within party prior proceed- favor of the judgment ef- eases where a ing may preclusive nonetheless have governing 31 U.S.C. "Structuring” manipulating such institutions. consists of ments a financial with 5324(a)(3). transactions with institution § evading require- purpose reporting Court, estoppel is which reached the same conclusion. whom collateral party against Thus, by although Bies’ mental retardation appealed not have be could asserted Weems, initially determined in a decision fa- when was party. that Under government, judgment govern- was obtained a vorable to the fact that a any findings prevented seeking ment was never from prevent favor does not party’s being ap- of this determination on judgment in that from reconsideration contained Indeed, estoppel appeal. the final by party, collateral decision de- pealed party mentally with re- termine that Bies is retarded was may operate against Court, findings of fact. the Ohio which judgment’s to the issued spect all is the court last resort for issues a similar The Circuit reached Second fact raised Ohio state See Ohio court. NLRB. Corp. result United Aircraft Thus, § government 2953.02. Rev.Code case, attempted a union to reliti- In that every opportunity appeal possible employer’s of whether gate the determination Bies is union practice had caused the unfair labor retarded, and the determination nonethe- among the em- majority support to lose appellate less survived review. such workers, though prior even ployer’s circumstances, general “the rule that ‘de- decision, whose ultimate result was NLRB winning terminations adverse to the liti- union, had found that the favorable to the gant do not have conclusive effect collat- as practices unfair labor did employer’s estoppel’ applied.” eral should not be losing majority. in the union result Aircraft, (quoting 440 F.2d at 99 United Aircraft, Although 440 F.2d at 99. United 3923). IB Moore finding of fact adverse to the union Indeed, the dissent does not contest the contained in a decision favorable union, of the rule described in the court held that collateral existence Weems Instead, the dissent the union from relit- and United estoppel prevented Aircraft. may of fact because claims that Bies not benefit from the igating the adverse estoppel of the collateral doctrine because the sought “the union could have review victory government’s on this is- before the Ohio Su- Board’s adverse determination preme prevented appealing rule it from again, general sue.” Id. Once “the question of Bies’ mental retardation to adverse to the win- ‘determinations Dis- effect States Court. ning litigant do not have conclusive United claim, senting at 532-35. This howev- estoppel’ ap- Op. collateral should not be er, misunderstanding victory in the reflects plied” litigant’s when the jurisdic- Supreme Court’s prevent did not them United States prior proceeding determination. tion. appealing from adverse Moore, IB (quoting James William exceptions, Supreme a few rare With (1965)). Federal Practice 3923 jurisdiction entirely is discretion- Court’s only ary, generally will ex- Bagley comfortably fits within and Court

Bies v. “impor- discretion to resolve an by articulated and United ercise its the rule Weems law,” of federal or to resolve question Bies convicted and tant Michael Aircraft. created federal law which has to death in an trial court. sentenced Ohio amongst the lower courts. See an interme- confusion appealed Bies his sentence to (describing Supreme court, Sup.Ct. that R. 10 appeals which found both diate Governing Review that he “Considerations mentally is retarded and Court’s Certiorari”). executed, The States Su- and he on United nonetheless be should jurisdic- Court does not exercise again Supreme preme it to the Ohio appealed Ashe, Atkins, compel the finding of and Sattazahn a state court’s tion to review held fact, multiple by panel. state courts reached Ashe especially when result Clause, conclu- that, the same factual have all reached the Double under States, See, e.g., sion. Oliver United ultimate fact has once once “an issue of 1735, 4, 175 n. 104 S.Ct. U.S. by judg a valid and final been determined (1984) (“[W]e do not review L.Ed.2d ment, again litigated cannot be finding as a matter here the state courts’ any future parties between the same was not an of ‘fact’ that the area searched lawsuit.” 397 U.S. at 90 S.Ct. 1189. ”); v. Arkansas Natural ‘open Page field.’ mentally that a retarded of Atkins held Corp., 286 U.S. S.Ct. Gas constitutionally execut may fender not be (1932) (“Many compli- L.Ed. 1096 2242. Sat ed. 536 U.S. fact involved and questions cated of are tazahn, that a “based on judgment held here, but, they argued as have been were legal sufficient to entitle findings establish respondent by of the both found favor sentence, to an ment to the life amounts below, we do not review courts and, such, acquittal on the merits bars ”); Lodge them.... Creswill v. Grand of the any appropriateness retrial of the Knights Pythias Georgia, 225 U.S. of penalty.” death 123 S.Ct. L.Ed. 1074 removed). Bies, (emphasis (“[I]t upon true that a writ of error to a Supreme determined in a valid Ohio findings do not review state we judgment and final that Michael Bies is fact”). Thus, concern'—that the dissent’s mentally retarded. Because Atkins ren apply it is somehow unfair to collateral ineligi ders a retarded individual estoppel when the outcome Ohio penalty, ble for the death the determina prevented re- Supreme Court’s decision “finding[ ] tion that Bies is retarded was a a factual conclusion the United view of legal sufficient to establish entitlement to baseless. Re- States Court—is sentence;” the life and it could not be gardless of the outcome of the Ohio Su- relitigated proceeding. Any in a future decision, the United States preme Court’s Ashe, contrary other would be does not a state Supreme Court review Atkins, and Sattazahn. findings of fact. court’s Moreover, even if these three cases do

IV. Bies, compel the result reached Finally, that the Anti- the dissent claims panel determined that the state decision Penalty and Effective Death Act terrorism denying post-conviction to Bies was relief (“AEDPA”), 2254(d), requires § 28 U.S.C. based on an unreasonable determination of opinion deference to the state court’s de- Although the facts. the dissent does not nying Specifically, relief to Bies. the dis- contest that the state decision under re- alleges sent Court’s fact, an finding view made unreasonable cases cut the decision panel failing it to “connect accuses determining erred in allegedly botched fact [an] denying post-conviction state decision Dissenting established doctrine.” an unreason- relief to Bies was based on accusation, curious Op. at 529. This is able determination of facts. however, because, panel opinion as the ex- Bies, great length, at plains 519 F.3d simply wrong in its char- The dissent is 333-37, 340-42, the state court’s unreason- Supreme precedent; acterization Court Supreme finding indeed the decisions in able concerned a factual Court’s which, court, according very precise to that state present issue raised in the case of Bies’ case. dispositive was raised and actually litigated [was] in the prior N.A.A.C.P., proceeding.” 821 F.2d prisoner ineligible An Ohio is for the Accordingly, when the Ohio court penalty mentally death if he is retarded as determined that the issue of whether or clinically that term is defined. See (as is mentally Bies retarded that term 2242; Lott, defined) clinically is not litigated was in determining N.E.2d at 1014. In that Bies prior proceeding that found him to be retarded, mentally Supreme is the Ohio retarded, mentally by this determination adopted testimony Court of Dr. Donna necessarily the Ohio court foreclosed relief Winter, psychologist a clinical who clinical- under estoppel collateral doctrine. ly diagnosed mentally as being re- panel When the determined the Ohio panel opinion tarded. As the in Bies ex- finding unreasonable, court’s to be detail, 333-37, plains in F.3d thus found that precise “the issue raised in applied Dr. appropriate Winter present case raised actually [was] clinical definition of mental retardation litigated prior in the proceeding,” it al diagnosed when she Bies. Yet in post- lowed Bies’ collateral estoppel claim to proceeding conviction under review Thus, move contrary forward. to the dis Bies, an Ohio court found Dr. Winter sent’s claim failed to “con other, might have applied some non-clinical nect allegedly [an] botched fact finding to standard in diagnosis, her and relied on doctrine,” an established the Ohio finding denying this relief to Bies. In- court’s finding “botched” of fact inti deed, as the opinion Ohio court’s makes mately connected to question of wheth clear, only the court not relied on this may er Bies seek relief under the collater finding, the finding was the sole basis for al estoppel doctrine. the court’s decision. According to the court, Ohio “provide Atkins and Lott CONCLUSION

test determine whether someone is purposes retarded for Bagley Bies v. an easy case. It war- “[tjhere present analysis,” but is no indica- rants no further review the en banc Supreme] tion that the applied [Ohio panel opinion Court. As the correctly ex- (J.A. 1612) analysis required.” now plained, the collateral estoppel doctrine finding This of fact up made the sole factu- which the Court articulated al basis of the deny court’s decision to Ashe v. Swenson mandates Michael relief to Bies under the Double granted corpus. Bies be a writ of habeas Clause—absent this finding, which the Moreover, if any uncertainty even did exist unreasonable, panel determined to be Ashe, regarding proper application there is no basis whatsoever for the Ohio provides abysmal Bies’ case vehicle to court’s decision. alleged uncertainty resolve such because

Furthermore, the Ohio court’s unreason- Court’s decision Sattazahn only dispositive able of fact was not Pennsylvania provides an alternative decision, hugely it was to grounds upon relevant which Bies is entitled to Thus, of whether Bies is despite entitled to relief. the dissent’s efforts exists, relief under the estoppel controversy collateral doc- to stir where none trine. As opinion already correctly ex- en banc Court decided not to plained, the prong subject unnecessary litiga- first of the collateral Bies to further estoppel analysis concerns whether “the tion. capital-eligible whether determining dissenting for

SUTTON, Judge, Circuit retardation, mental suffer from defendants rehearing en banc. from the denial enough, 317, 2242. id. at 122 S.Ct. Soon have reviewed judges III Four Article state-court, re- post-conviction sought Bies come to case, them has and each of this Eighth grounds: lief on two the Double conclusion—that the same Atkins, Amendment, re- construed liti- from bars the Jeopardy State Clause sen- capital his to vacate quired State penal- death eligibility for the gating Bies’ tence, Double and 304, Virginia, ty under Atkins his to vacate required the State Clause (2002). 153 L.Ed.2d courts’ of the Ohio view capital sentence today, howev- I write They may right. be suffers that he mitigation determinations may that there be er, point to out simply After the retardation. from mild mental story. to the another side double-jeopardy court denied his state trial at- and friend In Michael Bies claim, a chance to rule on it had but before ten-year-old boy, beat rape a tempted to claim, his Atkins moved to amend his resisted, then left severely when he him to in- petition habeas then-pending federal Bies, 74 Ohio St.3d him to die. State v. The dis- claim. double-jeopardy clude a An 756-57 N.E.2d the amendment. permitted trict court aggravated jury convicted Bies Ohio court, later a Then district specifi- capital-eligibility three murder and court, Jeopar- that the held Double of this and on direct at At cations. 758. trial federal courts to dy required the Clause that his diminished argued appeal, Bies impose and to capital vacate Bies’ sentence mitigated culpability his capacity mental a life sentence instead. offense, acknowl- and each for the retarda- that Bies had “mild mental edged to panel’s approach questioning retardation.” mental tion borderline case, by acknowledging let me start Bies, C-920841, No. 1994 WL State many premis- that I do not 1994) (Ohio Mar.30, Ct.App. at *9 it. The States es that underlie United Bies, omitted); (internal marks quotation require law indeed Ohio Constitution and But in the end 658 N.E.2d weigh independently the state courts that Bies’ diminished all found state courts that favor a aggravating circumstances fac- mitigating and other capacity mental any mitigating fac- capital sentence “outweigh aggravating did not tors tors, defen- including appropriate if murder” and found circumstances of the profile, be- psychological mental and dant’s penalty for appropriate the death I will upholding fore death sentence. Bies, *10; crime. WL argument that the accept for the sake Bies, also N.E.2d at 762. determined independently Ohio courts his upholding retarded in Bies is Bies’ efforts to overturn years after Six conviction, though that even death-penalty on review capital his sentence direct Bies, far from clear. See end, 658 N.E.2d Su- the United States come at *9. Atkins 761; 1994 WL which held preme Court decided Fourteenth) (and imposing from death prevents a Amend- State Eighth suffering from penalty on an individual governments impos- from prohibits ment Jeop- And the Double mental retardation. on individuals suffer- ing capital sentence relit- retardation, prevents a State from ardy Clause ing from mental eligibility defendant’s igating a criminal directed which v. Mis- Bullington See penalty. the death appropriate standards develop States to

531 430, 445, 1852, souri, ing). appeal, 68 451 U.S. S.Ct. On Arizona (1981). to the opposite Court came conclusion on L.Ed.2d (1) point, holding pecuniary- each find- legal principles Yet these gain aggravator was not limited to contract applying jeop- for double ing offer no basis (2) killings and the State had not decision that ardy to a state court affirms proved aggravating that the second factor jeopardy sentence. Double bars a death 150, applied. Id. at 106 S.Ct. 1749. After eligi- a defendant’s relitigating State from being retried and sentenced to death only when bility capital punishment for again, appealed the defendant to the Unit- sentencing judge reviewing “the or the Court, arguing ed States that his prosecution has decided that the has independent acquittals aggrava- on both penalty its case for the death proved ting together factors taken barred the petitioners.” Po- acquitted and hence has relitigating eligibility State from his for Arizona, 147, 154, land v. 476 U.S. penalty. the death The Supreme Court (1986) (internal S.Ct. 90 L.Ed.2d 123 disagreed, holding words with direct —in omitted). quotation marks and alteration relevance here —that cir- “[aggravating Or, put point as the more cumstances are not separate penalties or recently, double-jeop- “the touchstone for upon attach, offenses” which jeopardy can ardy protection capital-sentencing pro- are guide but instead “standards to ceedings is whether there has been an making of the choice between the alterna- ” Pennsylvania, ‘acquittal.’ Sattazahn tive verdicts of death and imprison- life (internal ment.” Id. at 106 S.Ct. 1749 L.Ed.2d 588 But no court in this omitted). quotation marks and alterations prosecution ever determined that the case jeopardy’s Because double concern is the prove sentencing case: The failed itself, death determination and because no serially rejected state courts Bies’ claims prosecution court had held “that the im- penalty that the death should not be prove petitioners failed to its case that the way posed. way Put another —the penalty,” deserved the death id. at it—Bies never Constitution describes was (internal quotation S.Ct. marks Const, jeopardy,” put “twice omitted), the Court held the State was V, in claim that post-conviction amend. relitigating petition- not barred from Quite con- he filed state court. to the it, eligibility ers’ id. at run at trary: taking he was second aggravating is true of S.Ct. What vacating his as- death sentence —which is mitigating is also true of factors. factors just suredly right assuredly his but does individually The Ohio courts all affirmed double-jeopardy not offend the bar. sentence, capital Bies’ and therefore no courts, statement from those whether on guidance Poland offers considerable mitigating or aggravating about factors Poland, point. prosecution In re- factors, implicates double-jeopardy (1) factors: aggravating lied on two bar. expected pecuniary gain the defendant me,

from the murder and the crime principles, These it seems to suffice heinous, depraved. cruel or especially reaching to resolve this case. differ- (and In impos- conclusion, 476 U.S. at 106 S.Ct. 1749. the concur- ent rence) ing penalty, sentencing rely the death the state on three double- principally Swenson, proved jeopardy court held that the State the sec- decisions—Ashe v. 25 L.Ed.2d 469 aggravating ond factor but not first U.S. Arkansas, (because (1970), kill- the crime was not a contract Turner 732), 109, whether there (1972) S.Ct. at (per U.S. 2096, L.Ed.2d 92 S.Ct. not. But acquittal an or per- am not has been I curiam), and Sattazahn. rest of the the case. The prosecutions, how I read involved two not Ashe suaded. pre- none. See time-honored not reiterates the one, acquittal, quotation one not In the in 439-40, 1189. not attach jeopardy 90 S.Ct. does condition that 397 U.S. Ashe, question was in the there has unless prosecution sentencing proceeding first a the indi- one of defendant was penalty on the death “acquittal” whether an been multi-participant a had robbed full, says who that “in viduals itself. the de- jury acquitted The poker game. Poland, and Arizona [Bullington in unlike prosecution, In the second fendant. 203, 104 S.Ct. Rumsey, 467 U.S. defendant the same charged government (1984)], judge neither L.Ed.2d 164 in the participants robbing other with the defendant jury ‘acquitted’ nor the barred The Court poker game. same proceeding capital-sentencing in his first that the State holding prosecution, second to establish findings sufficient by entering involve- relitigate the defendant’s could not to the life sentence.” legal entitlement single “the robbery in the because ment 108-09, Sattazahn, 123 S.Ct. dispute be- rationally conceivable in Satta- holding the State 732. The for peti- jury was whether fore the [first] that a point namely, confirms zahn — robbers.” Id. one of the had been tioner did penalty the death hung jury regarding piece is of a Turner 90 S.Ct. 1189. double-jeopardy problem be- present not a Ashe, strikingly similar itas involved with appropriately, more cause that “result —or See U.S. the same result. facts and fairly be called that non-result —cannot that double (holding S.Ct. 2096 Be- acquittal.” Id. at of the defen- prosecution jeopardy barred double-jeopardy for cause “the touchstone participant robbing poker game dant for capital-sentencing proceed- protection acquittal for prior the defendant’s where has been an “whether there ings” remains robbery victim’s accessory being an ” Bies, like Satta- and because ‘acquittal,’ finding that necessarily included a murder zhan, jury or the “cannot establish time of the at the present was not he capi- during him his first ‘acquitted’ Turner, how- robbery). Unlike Ashe id., the double- tal-sentencing proceeding,” ever, reprosecuted has not the State apply. does not jeopardy bar control- and thus “the acquittal, after an “prohibi- of a principle” acquittal ling ignoring constitutional the traditional Besides has not been multiple trials” against double-jeop- tion invoking for requirement Wilson, 420 offended. United States bar, wrong turn in panel takes a ardy 43 L.Ed.2d 95 S.Ct. issue-preclu- application of traditional Turner, short, Ashe and this case. Preclusion principles to sion by govern- prosecutions involved serial only questions generally attaches serial efforts this case involves ment while necessarily deter- “actually and were both capital his sen- by to vacate the defendant Montana v. by “prior litigation.” mined” tence. States, 147, 153, 99 S.Ct. United (emphasis add- 59 L.Ed.2d 210 Sattazahn, it estab- reads

As the ed). the con- requirement, first As to the “when applies jeopardy lishes that double Bies’ death sentence stitutionality of findings sufficient jury judge ‘enter[s] or ... the state “actually determined” to the life legal entitlement to establish ” saying that this basic reason: courts for sentence,’ 519 F.3d Bagley, Bies v. Sattazahn, retardation (6th Cir.2008) from mild mental 537 Bies suffered (quoting considering the mitigating factors that mitiga Ohio courts’ counsel death sentence is not the tion had no bearing determinations on the thing same ineligi that Bies is cases, results of those simple rea ble for the death penalty under Atkins. they son that have would affirmed his capi similar, many yet Just as the law contains tal way- sentence either he suf —whether distinct, inquiries for competence compe fered from mental retardation or not. Far — trial, tence to competence stand to waive being from necessary to judgment, trial jury rights, competence to represent Ohio courts’ mental-retardation findings too oneself—so here. Indiana v. Ed Cf. cut against making quintessen them it— —wards, U.S.-, 2379, 128 S.Ct. 171 rulings kinds of eligible for tial^ (2008). L.Ed.2d 345 mitigation The See, issue-preclusion treatment. e.g., inquiries Atkins flow different from consti McKinley City Mansfield, 404 F.3d of requirements tutional Eighth under the (6th 418, Cir.2005); 429 Atex, Fletcher v. requirement Amendment —the that capital Inc., (2d 1451, 68 F.3d Cir.1995); 1457-58 receive defendants individualized consider Lynn Co., Balcom v. & Scaffolding Ladder factors, ation mitigating see Lockett v. Inc., (1st Cir.1986); 806 F.2d 1127-28 Ohio, 586, 604-05, 438 U.S. 98 S.Ct. see Wright al., § also 18 supra, et (1978), categorical L.Ed.2d 973 and the (explaining that the classic example of is non-individualized) (i.e., requirement sues not necessary judgment to the are who are mentally those retarded not be those that are contrary to the ultimate executed due to the diminished deterrent result, such jury findings of negligence on, of the death penalty value where the defendant wins on contributory- of, individuals, culpability diminished such negligence grounds). see at The effect of proof panel’s 2242. But if were needed to estab decision tois say lish that “actually the Ohio did not lost this courts State criminal case ... issue, it. ought winning preclusion determine[ ]” Atkins it issue gener Yet (or point they ally suffice to out that could not does not bar any party) the State question: have decided the Atkins was relitigating from an issue decided in pro years decided six the Ohio Supreme ceedings from it which could not appeal. after opinion. Court’s al., Wright 4421; § See 18 supra, et see Co., also Univ. v. A.W. Chesterton to the requirement, As second I am of R.I. (1st Cir.1993); F.3d 1204-05 n. hard-pressed to understand how the Ohio Elrod, (7th White v. 816 F.2d “necessarily courts determined” the Atkins Cir.1987). But opinion just does issue—how in other they necessarily words that. mitigating As a factor that the state decided an issue “that did not affect the ” against courts had to weigh aggrava result the state courts’ review of Bies’ factors, ting a finding of Bies’ mental re capital sentence. Wright, 18 Charles Alan tardation was an obstacle judgment R. to the Arthur Miller & Edward H. Cooper, necessary entered rather a to step Practice & than Federal Procedure: Jurisdic- it. added); Having § 4421 ward the case in (emphasis tion 2d won the state courts, see Ohio of also NLRB v. course had no reason to Master Slack & /or seek review in the Corp., Master Trousers 773 F.2d United States (6th Cir.1985). (even Turner, Unlike Court had already Ashe and Atkins been de precluded cided), necessary where the and Bies search vain will Ashe, judgment, the first accepted case which review 1189; Turner, appeal victory. 407 U.S. at of a State’s from I know Lott, 779 N.E.2d 97 Ohio St.3d applied the any court in which of no case Bies, 519 F.3d See invalidate a deci- double-jeopardy bar AEDPA, satisfy But this does not States) 340-42. (or United that the State sion argument accept if I for the sake even won. finding was trial court’s the state that Bies’ only argument The panel’s court cannot sim A federal unreasonable. necessary to the state capacity was mental finding, fact identify an unreasonable ply had a the courts is that judgments courts’ been satis that AEDPA has then conclude the facts entirety of “duty to examine the allegedly It must connect fied. weigh them jury and to the available legal doc finding to established botched proven factors aggravating there are series trine. Here fact But the trial.” F.3d before this that Bies must clear hurdles (or to consider that the state courts any bearing on fact has alleged decide) does capacity mental Bies’ even to Double case: Does the this they determination the not mean Do acquittal? apply without Clause outcome of necessary to the was reached apply when principles issue-preclusion any state court Because the decision. in the earlier purportedly decided mentally retarded that Bies was actually necessarily or decid case was “necessarily determined” in no sense cannot in that case? Because Bies ed Montana, 440 U.S. judgment, prior requirements under estab satisfy these no court and because AEDPA, law, his much less under lished prosecution “failed that the has ever held chases the fact-finding argument simply deserved [Bies] its case that prove theory of identifying cognizable tail of Poland, penalty,” death relief. (internal quotation marks 106 S.Ct. 1749 nor dou- omitted), preclusion neither issue the issue. relitigation of jeopardy bars

ble all of this is is most about trying What if AEDPA true even All of this would be necessary. When it does not seem AEDPA does But course apply. did not of case, courts acted this the federal first and, shown, case, I have as govern this pro- trial court they interrupted a state bearing on decisions only Supreme Court to determine whether ceeding designed panel’s deci- all cut this case claim. The had a successful Atkins Bies true, panel Bies and the It is sion. argu- double-jeopardy point whole out, permits a federal point that AEDPA proceed- state court stop ment was to solely on the grant habeas relief court to prevent the same ing in its tracks and made unrea- courts ground that the state validity opining from about courts And it is true findings of fact. sonable howev- obliging claim. In his Atkins analysis AEDPA er, rested state courts a give we have failed to court, trial state on the view their to bear on bring judgment chance to claim, un- double-jeopardy federal ruling on Bies’ and after decision point, this reasonably presum- whether the Ohio the circuit questioned courts within district other thing on the same stan- with ably Court relied will do same State assessing similarly retardation cases. See dard for mental situated Atkins Hill, No.2006-T-0039, 2008 WL review of Bies’ sen- v. conducting its direct *6, App.3d 177 Ohio adopted as “a stan- that was later tence (Ohio July Ct.App. claim N.E.2d an individual’s of 894 evaluating dard for 2008) and (disagreeing with Atkins State mental retardation” under retardation if the “that the issue of Hill’s mental Ohio courts should conclude that ‘actually directly litigated’ was not at Bies was not retarded under At- kins, sentencing hearing”). AEDPA’s ex- he could his seek certiorari on the ques- prevent exists to tion or requirement haustion seek habeas relief in the district just premature this kind of intervention court. Far from undermining determinations) petitioner’s path while a State addresses the (through state court Bagley, exactly Turner v. 401 F.3d challenge. See what the Court envi- (6th Cir.2005). 718, 724 And unlike cases sioned: For left Atkins “to the States permitted where we have unexhausted task of developing appropriate ways to double-jeopardy challenges restriction,” the de- before enforce the constitutional id. commenced, (internal prosecution fendant’s second S.Ct. 2242 quotation Kunzman, Gully omitted), 592 F.2d 286 marks and princi- alteration (6th Cir.1979), ples comity Bies faces no risk of a and federalism mandate prosecution. give second that we the Ohio courts the first opportunity to apply that restriction to contrast, By were we to allow the state Bies’ case. forward, proceeding go Bies is hardly disadvantaged in a position. He respectfully I dissent from the court’s IQan and two licensed clinical denial of rehearing en banc. psychologists have concluded that he is

mildly mentally Assuming retarded. opinions

these stem from balanced evalua

tions of Bies’ mental there capacity, think that

ample reason to the Ohio courts seriously.

will take his claim like retarded, mildly mentally At kins, 536 U.S. at Randy GEORGE, Plaintiff-Appellant, IQ places catego Bies’ him within the ry of recognized individuals the Court decision,

might be affected see id. at Roger WALKER, Frey, Shelton 2242 (noting prac Warden, Bard, al., Richard et executing mentally tice of retarded individ Defendants-Appellees. “truly given uals has become unusual” No. 07-3022. “only five have executed offenders [States] IQ possessing known less than 70” since Appeals, United States Court question). the Court last ruled on the Seventh Circuit. Nor have the Ohio courts been reluctant Argued May 2008. grant relief under Atkins. The Ohio July Decided already granted relief case, White, in one such State v. 118 Ohio (2008),

St.3d 885 N.E.2d

the state trial courts have the same done others, Farkas, Ruling

in six Karen on

Mental Retardation Takes 6 Ohio’s Of Row, Dealer, May Death Plain Cleveland

12, 2008, at B 1. And even if the worst happen perspective,

should from Bies’ even

Case Details

Case Name: Bies v. Bagley

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 5, 2008

Citation: 535 F.3d 520

Docket Number: 06-3471

Court Abbreviation: 6th Cir.