Whether the Tenth Circuit contravened Supreme Court precedent in holding that the Oklahoma Court of Criminal Appeals made an unreasonable determination of the facts

QUESTIONS PRESENTED Oklahoma juries sentenced Jimmy Dean Harris to death initially and following a 2005 retrial on the penalty. In his appeal of that sentence, Harris alleged that his counsel was ineffective for not requesting a pre-trial hearing on whether he was intellectually disabled and therefore ineligible for the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) rejected that claim, concluding that the weight of the expert evidence was that Harris was not intellectually disabled. The Tenth Circuit granted Harris habeas relief. The court reviewed the claim de novo, not deferentially, because it concluded that the OCCA based its holding on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). The Tenth Circuit pointed to the OCCA’s statement that “all Harris’s experts, including the ones who testified at his first trial and competency hearing, ... concluded he was not mentally retarded.” That was untrue, said the Tenth Circuit, because one expert testified that Harris had a mild intellectual disability. The Tenth Circuit concluded this isolated sentence rendered the OCCA’s decision unreasonable in spite of a footnote in which the state court expressly acknowledged that one dissenting expert’s views. The questions presented are: 1. In holding that the OCCA made an “unreasonable determination of the facts,” did the Tenth Circuit contravene this Court’s repeated admonition that “state-court decisions be given the benefit of the doubt,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); ii Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)? 2. Was the OCCA objectively unreasonable in crediting the testimony of three experts who opined that Harris was not intellectually disabled and not crediting the testimony of the one dissenting doctor, who has been censured, used an outdated test, made no assessment of adaptive functioning, and disregarded the influence of factors he acknowledged could influence IQ test scores? iii LIST OF PROCEEDINGS Oklahoma Court of Criminal Appeals OCCA No. PR-2001-898 Harris v. State Judgment entered on July 26, 2001 Oklahoma County District Court Case No. CF-1999-5071 State v. Harris Judgment and Sentence entered on November 28, 2001 Oklahoma Court of Criminal Appeals OCCA Case No. D-2001-1268 Harris v. State Mandate issued on February 11, 2004 Oklahoma Court of Criminal Appeals OCCA Case No. PCD-2002-629 Harris v. State Order of Dismissal entered on March 11, 2004 Oklahoma County District Court Case No. CF-1999-5071 State v. Harris Judgment and Sentence entered on February 28, 2005 Oklahoma Court of Criminal Appeals OCCA Case No. D-2005-117 Harris v. State Mandate issued on July 19, 2007 iv Oklahoma Court of Criminal Appeals OCCA Case No. PCD-2005-665 Harris v. State Mandate issued on August 20, 2007 United States Supreme Court Case No. 07-9101 Harris v. Oklahoma Petition for Certiorari denied on March 24, 2008 United States District Court for the Western District of Oklahoma Case No. CIV-08-375-F Harris v. Royal Judgment entered on April 19, 2017 United States Court of Appeals for the Tenth Circuit Case No. 17-6109 Harris v. Sharp Judgment entered on October 28, 2019