Page:Tim Shoop, Warden v. Danny Hill.pdf/7

Rh Ohio) (Doc. 94), p. 15, ¶44 (citing §2254(d)(2)), and he closed with the claim that the state trial court’s assessment that he is “not mentally retarded” was based on “an unreasonable determination of the facts,” id., at 36–37, ¶101 (citing §2254(d)(2)). Indeed, Hill’s reply to the State’s answer to his petition explicitly “concur[red]… that it is proper to review [his Atkins claim] under §2254(d)(2).” Traverse in No. 96–CV–795 (ND Ohio) (Doc. 102), p. 47. And so, unsurprisingly, the District Court analyzed Hill’s Atkins claim solely under §2254(d)(2), noting that “[a]s Hill concedes in his Traverse, his Atkins claim is more appropriately addressed as it relates to the Ohio appellate court’s factual analysis under §2254(d)(2).” App. to Pet. for Cert. 121a.

Hill pressed the same §2254(d)(2) argument in his opening brief in the Sixth Circuit. There, he argued that the state courts’ finding on “adaptive functioning… was an unreasonable determination of the facts.” Brief for Petitioner-Appellant in No. 14–3718 (CA6), p. 34 (citing §2254(d)(2)); see also id., at 65 (“As such, the state courts’ findings of fact that [Hill] is not mentally retarded constitute an unreasonable determination of facts in light of the evidence presented. (§2254(d)(2))”).

It appears that it was not until the Court of Appeals asked for supplemental briefing on Moore that Hill introduced the §2254(d)(1) argument that the Court of Appeals adopted. Although, as noted, the Court of Appeals ultimately disclaimed reliance on Moore, it explicitly asked the parties for supplemental briefing on how Moore “should be applied to this case.” Because the reasoning of the Court of Appeals leans so heavily on Moore, its decision must be vacated. On remand, the court should determine whether its conclusions can be sustained based strictly on legal rules that were clearly established in the decisions of this Court at the relevant time.