Bies v. Bagley

• Decision Date: 05 August 2008
• Docket Number: No. 06-3471.,06-3471.
• Citation: 535 F.3d 520
• Parties: Michael BIES, Petitioner-Appellee, v. Margaret BAGLEY, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

535 F.3d 520

Michael BIES, Petitioner-Appellee, v. Margaret BAGLEY, Warden, Respondent-Appellant.

No. 06-3471.

United States Court of Appeals, Sixth Circuit.

August 5, 2008.

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

ORDER

The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active^* judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.

CLAY, Circuit Judge, concurring in the denial of rehearing en banc.

When a court "enter[s] findings sufficient to establish legal entitlement to the life sentence," the Double Jeopardy Clause "bars any retrial of the appropriateness of the death penalty." Sattazahn v. Pennsylvania, 537 U.S. 101, 108, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). Furthermore, under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), "death is not a suitable punishment for a mentally retarded criminal." Id. at 321, 122 S.Ct. 2242. Therefore, when the Ohio Supreme Court entered a finding that Michael Bies is mentally retarded, State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 761 (1996), that finding barred any future trial regarding whether Bies could be executed, and every Article III judge to hear Bies' case has said as much. See Bies v. Bagley, 519 F.3d 324, 329 342 (6th Cir. 2008). Nevertheless, the dissent from the denial of rehearing en banc attempts to argue that the uncontroversial issues presented by Bies' case somehow warrant en banc review. This opinion explains why Bies v. Bagley does not require such an extraordinary procedure.

I.

On October 13, 1992, Michael Bies was found guilty, by an Ohio jury, of kidnapping, attempted rape and murder. During the sentencing phase of his trial, Bies introduced the testimony of Dr. Donna Winter, a licensed clinical psychologist, who testified both that Petitioner has an IQ of 69, and that he possesses all the traits necessary for a clinical diagnosis of mental retardation. Dr. Winter's testimony was corroborated by a letter from Dr. Myron S. Fridman, another licensed clinical psychologist who diagnosed Petitioner as a "marginally functioning, mildly mentally retarded man...." Bies, 519 F.3d at 327. Nevertheless, the jury recommended the death sentence, and on October 30, 1992, the trial court accepted this recommendation.

Bies appealed his sentence to the Ohio Court of Appeal, and eventually to the Ohio Supreme Court. Although both courts affirmed the death sentence, both courts also expressly held that Bies is mentally retarded, and the state supreme court explicitly credited Dr. Winter's diagnosis in making this finding. See Bies, 658 N.E.2d at 761; State v. Bies, No. C-920841, 1994 WL 102196 at * 9 (Ohio Ct. App. March 30, 1994).

On June 20, 2002, the Supreme Court decided Atkins v. Virginia, which held that mentally retarded individuals cannot constitutionally be executed. See 536 U.S. at 321, 122 S.Ct. 2242. In light of Atkins, Bies challenged his death sentence in a habeas petition filed pursuant to 28 U.S.C. § 2254. After Bies exhausted his remedies in state court, the district court held that, under the Double Jeopardy Clause the government could not relitigate the already-decided question of whether Bies is mentally retarded, and thus held that Atkins entitles Bies to a sentence other than death. Bies, 519 F.3d at 329. In a unanimous decision, a panel of this Court affirmed. Id. at 342, 122 S.Ct. 2242.

II.

Under existing Supreme Court precedent, a person challenging their death sentence may claim relief under two separate double jeopardy doctrines. The first of these doctrines, which the panel opinion in Bies largely relied upon, stems from Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which held that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443, 90 S.Ct. 1189; Bies, 519 F.3d at 332. As the panel opinion explained, this holding in Ashe incorporates the collateral estoppel doctrine into in the Double Jeopardy Clause. Bies, 519 F.3d at 332-33. To bar relitigation of an issue under the collateral estoppel doctrine, four requirements must be met:

(1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.

Id. at 333 (quoting N.A.A. C.P., Detroit Branch v. Detroit Police Officers Ass'n, 821 F.2d 328, 330 (6th Cir.1987) (footnotes omitted)).

In Sattazahn v. Pennsylvania, the Supreme Court described a second avenue which a death row inmate may pursue in challenging their sentence under the Double Jeopardy Clause. Under Sattazahn, once a judge or jury has "acquitted" a capital defendant "by entering findings sufficient to establish legal entitlement to the life sentence," jeopardy attaches to such an "acquittal," and the defendant cannot again be placed in danger of a death sentence for the same offense. 537 U.S. at 108-09, 123 S.Ct. 732. Unlike collateral estoppel, which is available to capital and non-capital defendants alike, see Ashe, 397 U.S. at 446, 90 S.Ct. 1189 (applying collateral estoppel to benefit a robbery defendant), Sattazahn affords double jeopardy protections to capital defendants above and beyond those enjoyed by persons accused of less serious crimes; ensuring that once a defendant is declared entitled to a life sentence, that declaration will not be relitigated. 537 U.S. at 108-09, 123 S.Ct. 732; see also Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion) ("When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed.")

Focusing on Sattazahn's use of the word "acquittal," the dissent claims that we must limit application of the Double Jeopardy Clause to the circumstances described in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, the Supreme Court held that a defendant is protected against a second capital sentencing proceeding when the court in the first proceeding, "`decid[ed] that the prosecution has not proved its case' for the death penalty and hence has `acquitted' petitioners." 476 U.S. at 154, 106 S.Ct. 1749 (quoting Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)). In Sattazahn, however, the Court clarified Poland's holding, explaining that, unlike other cases where double jeopardy shielded a defendant against a second capital sentencing hearing, "in Poland ... neither the judge nor the jury had `acquitted' the defendant in his first capital-sentencing proceeding by entering findings sufficient to establish legal entitlement to the life sentence." Sattazahn, 537 U.S. at 108-09, 123 S.Ct. 732 (emphasis added).

As this language from Sattazahn makes clear, the Supreme Court understands Poland to establish two propositions. First, the Double Jeopardy Clause prohibits a second capital sentencing proceeding when the first such proceeding results in an "acquittal." Id. Just as importantly, however, Sattazahn defines an acquittal as a judgment which enters "findings sufficient to establish legal entitlement to the life sentence." Id.

This understanding of Sattazahn is consistent with the facts underlying Poland, which concerned capital defendants who, after their conviction and capital sentence was overturned by a state appellate court, were retried and again sentenced to death. Poland, 476 U.S. at 150, 106 S.Ct. 1749. At the first trial, the prosecution argued that two statutory aggravating circumstances were present in the defendants' act of murder: (1) "[defendants] had committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value; and (2) [defendants] had committed the offense in an especially heinous, cruel, or depraved manner." Id. at 149, 106 S.Ct. 1749 (internal citations and quotation marks omitted). Although the trial court found that the second aggravating circumstance was present, it also concluded that the first circumstance did not exist because, as a matter of law, that circumstance could only exist in a case involving a "contract killing." Id.

On appeal, the Arizona Supreme Court held that the Poland defendants' verdict was tainted, and thus ordered a new trial. Id. at 150, 106 S.Ct. 1749. In so holding, however, the state supreme court held both that the evidence presented in the first trial did not show that the defendants had acted in a "heinous, cruel, or depraved manner," and that the trial court was incorrect, as a matter of law, in holding that the "pecuniary value" aggravating factor could only be applied to contract killings. Id. On remand, the defendants were once again convicted and sentenced to death, and the trial court found both aggravating factors were present.

In light of these facts, Sattazahn's holding that a court acquits a defendant "by entering findings sufficient to establish legal entitlement to the life sentence" is consistent with Poland's holding that the defendants in that case were not entitled to relief under the Double Jeopardy Clause. In their first trial, the Poland defendants were sentenced to death pursuant to the trial court's factually...