Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/36

Rh retardation” did not render a defendant ineligible for a death sentence but was treated as simply a mitigating factor to be taken into account in weighing whether such a sentence should be imposed. When Bies contested his death sentence on appeal, the state appellate court observed that he suffered from a mild form of intellectual disability, but it nevertheless affirmed his sentence. Years later, in Atkins v. Virginia, 536 U. S. 304 (2002), this Court ruled that an intellectually disabled individual cannot be executed, and the Sixth Circuit then held that the state court’s prior statements about Bies’s condition barred his execution under issue-preclusion principles.

This Court reversed, and its primary reason for doing so has no relation to the question presented here. We found that issue preclusion was not available to Bies because he had not prevailed in the first action; despite the state court’s recognition of mild intellectual disability as a mitigating factor, it had affirmed his sentence. As we put it, “[i]ssue preclusion. . . does not transform final judgment losers. . . into partially prevailing parties.” Bies, 556 U. S., at 829; see also id., at 835.

Only after providing this dispositive reason for rejecting the Sixth Circuit’s invocation of issue preclusion did we go on to cite the Restatement’s discussion of the change-in-law exception. And we then quickly noted that the issue addressed by the state appellate courts prior to Atkins (“[m]ental retardation as a mitigator”) was not even the same issue as the issue later addressed after Atkins. Bies, supra, at 836 (the two “are discrete legal issues”). So Bies is very far afield.