N.D. Ohio Finds Split Among Circuits Re Question of Habeas Petitioners' Mental State as one of Fact or Mixed Law and Fact
Per Stallings v. Bagley, --- F.Supp.2d ----, 2008 WL 918712 (N.D. Ohio Mar 31, 2008):
In its prior discovery order, the Court assumed, without deciding, that § 2254(d)(2) would apply. Since issuing that order, however, it appears that circuit courts have split on this issue. The Fifth Circuit in Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006), held that "the question of whether [a habeas petitioner] suffers from significantly subaverage intellectual functioning is a question of fact, and not a mixed question of law and fact...." Id. Recently, however, the Fourth Circuit applied the test used in § 2254(d)(1) without expressly adopting it. See Green v. Johnson, 515 F.3d 290, 300 (4th Cir.2008)(finding that Supreme Court of Virginia correctly applied Atkins and thus its opinion was not " 'contrary to' clearly established federal law .").
While the Sixth Circuit has yet to adjudicate whether a state court finding regarding a habeas petitioner's mental retardation is a question of pure fact under § 2254(d)(2), that Court has held that the issue of whether a petitioner is competent to stand trial is a factual question. In Mackey v. Dutton, 217 F.3d 399, 413 (6th Cir.2000), the Sixth Circuit, contrary to its prior findings, held " § 2254(d)'s presumption of correctness applies to a trial court's competency determination." Id. Although the Mackey court noted it previously had held in Cremeans v. Chapleau, 62 F.3d 167 (6th Cir.1995), that competency determinations are mixed questions of law and fact, it concluded that the subsequent United States Supreme Court holding in Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), superceded the Cremeans holding. Id.