Bobby v. Bies
From ScotusWiki
Author: Martine Cicconi
Contents |
[edit] Briefs and Documents
Docket: 08-598
Issue: Whether the holding of a state post-conviction hearing to determine the mental capacity of a capital defendant whose death sentence was affirmed before Atkins v. Virginia (2002), which barred the execution of mentally retarded defendants, violates the Double Jeopardy clause.
Merit briefs
- Brief for Petitioner David Bobby
- Brief for Respondent Michael Bies
- Reply Brief for Petitioner David Bobby
Oral argument: Transcript
Decision: Reversed and remanded in an opinion by Justice Ginsburg
[edit] Pre-Argument Articles
[edit] Grant write-up
[edit] 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.”
[edit] Background
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.
[edit] 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.”
[edit] 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.
[edit] Oral Argument Recap
At oral argument in Bobby v. Bies, the Supreme Court considered the effect of collateral estoppel on a state’s capacity to contest an inmate’s mental retardation in a post-conviction Atkins hearing.
Arguing for petitioner David Bobby, Ohio Solicitor General Benjamin Mizer began by noting that double jeopardy does not preclude the state from litigating Bies’s mental state for three reasons: Bies was never “acquitted” of the death penalty; there was no successive prosecution; and the state did not determine the Atkins issue in a prior proceeding.
Justice Kennedy began by asking what the state would prove in a subsequent hearing. Even presuming that preclusion did not apply, Kennedy wondered, why re-litigate the issue? Mr. Mizer answered that the standard Ohio developed in the wake of Atkins for determining mental retardation contains several elements that were not addressed in Bies’s trial or direct appeal: in particular, the court did not consider whether, in addition to having a low IQ, Mr. Bies shows substantial limitations in adaptive skills. Moreover, preclusion cannot apply because the state courts first considered Bies’s mental competency as a possible mitigating factor rather than as a complete bar to capital punishment. Because Atkins constitutionalized a clinical judgment as to retardation, the state has a stronger incentive to aggressively litigate the determination than it did before Atkins became law.
Focusing on Mr. Mizer’s use of the clinical definition of mental retardation, Justice Souter asked why preclusion would not apply, because a determination of a defendant’s IQ was required even before Atkins. Mr. Mizer answered that although the court necessarily had to determine Bies’s IQ, that determination was not necessary to the conclusion that Bies should be sentenced to death.
Justice Ginsburg then turned to the appellate court’s review of a death sentence. Before Atkins, she asked, would the state engage in an adversarial process at the appellate level to contest a finding of retardation? Mr. Mizer responded that, although the prosecutor could have vigorously contested the finding of mental retardation, there was little reason to do so. The aggravating factors were persuasive and likely to outweigh whatever force Bies’s mental competency held as a mitigator.
Finally, Justice Kennedy - appearing concerned about the sanctity of Atkins - asked whether the state had “an independent obligation to ensure itself that [Bies’s] IQ is adequate” before executing him. Mr. Mizer responded that the state would indeed answer that question consistent with Atkins, and that the proper venue for the determination was the yet-unconvened hearing.
Respondent’s counsel, John H. Blume, faced aggressive questioning early in his argument. Justice Ginsburg quickly pointed out that Mr. Blume’s preclusion argument was novel. “You are urging preclusion against the winner,” she asserted. Since the state prevailed on its argument that Bies deserved a death sentence, it would be inconsistent to permit the losing party to argue preclusion. The decision on mental retardation was a subsidiary issue at best. Only the ultimate issue - in this case the finding that the aggravating circumstances of the crime outweighed the mitigating factors - would have preclusive effect.
Mr. Blume responded that the perception of its mental retardation finding as merely collateral “minimizes the Ohio Supreme Court’s role in appellate review.” The determination of mitigating factors, Mr. Blume argued, “is an essential function of [the court’s] role” and one it does not undertake “uncritically.” Moreover, the “necessary” requirement of collateral estoppel contains only two elements: that the issue be finally decided, and that it be of significance in the proceeding. The state court’s finding with regard to Bies’s mental retardation satisfied both.
Justice Souter disputed this reasoning, pointing out that the finding regarding Bies’s IQ was not necessary to the state court’s decision because the court could have rendered the same judgment while finding Bies’s IQ to be at a different level. Joining Justice Souter, Justice Ginsburg reiterated that one could not “elevate an intermediate factor” - in this case the determination that Bies was mentally retarded - “to become the outcome determinative factor.”
In an effort to address both Justices’s concerns, Mr. Blume asserted that Ashe v. Swenson (1970), the case that established the collateral estoppel doctrine on which he relied, did not require ultimate victory. Ashe, he argued, merely required that the party claiming preclusion win on a relevant fact. Not so, countered Justice Ginsburg. “Ashe is about someone who was acquitted . . . There is no doubt that he won.”
Switching gears, Mr. Blume offered a hypothetical. Imagine the Warden is right, he suggested, and Bies returns to state court for his Atkins hearing. If the state court concluded that Bies was indeed mentally retarded, but refused to vacate his death sentence because it felt Atkins was wrongly decided, this Court would summarily reverse. Suppose then that the state wanted to reopen the issue to aggressively contest the court’s determination - that, Mr. Blume argued, would be no different than the facts of this case.
This argument also failed to gain traction with the Justices. Indeed, Justice Breyer argued, this case is the same as the hypothetical. There, as with all legal mistakes, the answer is that the accused receives a new trial. Engendering laughter, Justice Breyer challenged Mr. Blume to provide an example of a case “even vaguely” different from that scenario.
Chief Justice Roberts, who until that point had not asked Mr. Blume any questions, then asked how extensively he would apply issue preclusion. If a court, for example, ruled that a particular expert was not credible, “is that binding in a subsequent proceeding?” No, Mr. Blume answered. To warrant preclusion, the finding would have to absolve the criminal defendant of liability, or render him ineligible for the death penalty. “That’s narrowing it to your particular context,” the Chief Justice responded. But preclusion is a theory of double jeopardy, not Atkins, and should have broader applicability.
Justice Breyer, however, seemed to respond to this line of reasoning. The import of the argument, he summarized, is that because the finding at issue rendered the defendant ineligible for the death penalty, it is similar to a finding of insufficient evidence to convict, which entitles the accused to an acquittal and triggers double jeopardy.
But Justice Souter suggested that Mr. Blume was arguing for a new rule. “What is being precluded is not the first judgment,” he pointed out. “You’re saying there can’t be a second judgment but you are not depending upon a rule of preclusion that turns on the first.” “Whatever the argument is, it’s not issue preclusion.”
In response, Mr. Blume claimed his proposal was a combination of a “factual determination with a subsequent rule and a retroactive new rule.” Justice Souter, however, was not persuaded. “A subsidiary fact determination in the first case,” he asserted, has never been permitted as a defense in a subsequent case. And Justice Souter rejected the claim that the procedural posture of the case was merely unique. “The unique procedural posture of the case,” he countered, “is precisely the reason that the rule is brand new.”
Justice Ginsburg then offered a grim summary of Bies’s arguments. In Atkins, the Court left to the states the procedure for determining mental 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. . . Ohio didn’t have a procedure for doing Atkins. It couldn’t until Atkins was decided.”
Mr. Blume argued in response that the burden of proof had not changed, and that Bies’s mental retardation had in fact been shown consistent with the post-Atkins standard. But the Justices were unconvinced. They returned to the argument that the pre- and post-Atkins proceedings were too distinct for preclusion to apply. “The incentives are vastly different,” Justice Ginsburg argued. When a prosecutor believes that the aggravators are strong, he may not aggressively challenge the mitigators; when mental capacity is the outcome-determinative factor, the state will argue its case differently. Indeed, Chief Justice Roberts asked, why would a prosecutor dealing with a borderline case of mental retardation challenge the defendant’s mental status when the aggravating factors of the crime were compelling?
In his brief rebuttal, Mr. Mizer was interrupted by Justice Stevens, who had been silent throughout Mr. Blume’s argument. Will the state, Justice Stevens asked, contest the previous finding that Bies has an IQ of 69, or will it argue that it may execute someone with such an IQ? The state will contest the finding, Mr. Mizer answered, as well as subjecting Bies to the other elements of the standard Ohio now uses to determine mental retardation.
[edit] Opinion Analysis
The Court unanimously reversed the Sixth Circuit’s decision in favor of the criminal defendant. At issue in the case was whether double jeopardy barred Ohio from holding a hearing to determine the mental competency of an inmate sentenced to death before Atkins v. Virginia when the state supreme court had previously recognized the inmate’s “borderline mental retardation.”
Writing for the Court, Justice Ginsburg quickly disposed of each of the rationales advanced by the Sixth Circuit in its opinion and denial of rehearing en banc. She began with Judge Clay’s opinion concurring in the denial of rehearing, in which he reasoned that Sattazahn v. Pennsylvania provided an adequate basis for affirming the district court’s decision to grant habeas relief by holding that “jeopardy attaches, and relitigation is precluded, once a judge or jury has ‘acquitted’ a criminal defendant by entering findings sufficient to establish legal entitlement to a life sentence.” In Bies’s case, he continued, the Ohio court’s conclusion that Bies was mentally retarded entitled him to a life sentence, triggered double jeopardy, and precluded the state from later disputing the claim.
In the Court’s opinion, this reasoning was unpersuasive and required “little explanation” for its rejection. “The touchstone for double jeopardy in capital-sentencing proceedings is whether there has been an acquittal,” Justice Ginsburg emphasized. Because a jury sentenced Bies to death, he was never acquitted. Moreover, the state made no attempt to convict or sentence Bies a second time - the case arose not from successive prosecutions, but from the defendant’s “second run at vacating his death sentence.”
In addition, the state court’s determinations regarding Bies’s mental competency did not “entitle” him to a life sentence. Because Atkins had not been decided when the state court reviewed Bies’s sentence, that court assessed only whether his limited mental capacity mitigated responsibility for his crime.
Justice Ginsburg then turned to the foundation of the Sixth Circuit’s decision - the issue preclusion doctrine recognized in Ashe v. Swenson. Issue preclusion, she began, applies when an issue of fact or law is actually litigated and determined by a valid and final judgment that is essential to the disposition of the case. The state court’s offhanded comments regarding Bies’s mental retardation fulfilled none of these elements. To start, Justice Ginsburg noted, it was not clear whether the issue was actually decided by the state courts. The standard established after Atkins to determine retardation was not in place at the time of Bies’s trial and direct appeal, and nothing in the record indicated that the state courts made the findings necessary to comply with that standard. The court did not, for example, determine whether Bies suffered “significant limitations in two or more adaptive skills.” More fundamentally, Justice Ginsburg argued, the conclusions regarding Bies’s mental capacity were not necessary to the imposition of his death sentence; if anything, they cut against that determination.
At this point, the Court took issue with the reasoning underlying the Sixth Circuit’s decision. By weighing aggravating and mitigating factors, the Sixth Circuit had concluded, the state court must have made an adequate determination of Bies’s mental retardation - otherwise, how would the court have decided “what to place on either side of the scale”? Justice Ginsburg soundly rejected this reasoning, finding that the Sixth Circuit “conflate[ed] a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative.” “Issue preclusion,” she concluded, “does not transform final judgment losers into partially prevailing parties.” Bies’s case “d[id] not involve an ‘ultimate fact’ of the kind Ashe addressed.” Unlike in Ashe, the determinations at issue in Bies’s case did not trigger an acquittal, nor were they necessary to the ultimate disposition of the case.
Even if the core requirements of the doctrine had been met, the Court reasoned, the intervening Atkins decisions would warrant an exception to the application of issue preclusion. Before Atkins, a finding of mental retardation could be a double-edged sword in capital sentencing, leaving prosecutors little reason to contest a defendant’s claim. “Because the change in law substantially altered the State’s incentive to contest Bies’s mental capacity, applying preclusion would not advance the equitable administration of the law.”
Finally, the Court noted that the Sixth Circuit’s decision derailed the state’s effort to determine the strength of Bies’s Atkins claim. Because recourse to the state courts is precisely what the Court envisioned when it remitted to the states responsibility for implementing Atkins, the Sixth Circuit’s intervention was inappropriate. The state, the Court concluded, rightly deserved a full and fair opportunity to contest Bies’s claims.
