dissenting from the denial of rehearing en banc.
Four Article III judges have reviewed this case, and each of them has come to the same conclusion — that the Double Jeopardy Clause bars the State from litigating Bies’ eligibility for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). They may be right. I write today, however, simply to point out that there may be another side to the story.
In 1992, Michael Bies and a friend attempted to rape a ten-year-old boy, beat him severely when he resisted, then left him to die. State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 756-57 (1996). An Ohio jury convicted Bies of aggravated murder and three capital-eligibility specifications. Id. at 758. At trial and on direct appeal, Bies argued that his diminished mental capacity mitigated his culpability for the offense, and each court acknowledged that Bies had “mild mental retardation to borderline mental retardation.” State v. Bies, No. C-920841, 1994 WL 102196, at *9 (Ohio Ct.App. Mar.30, 1994) (internal quotation marks omitted); Bies, 658 N.E.2d at 761. But in the end the state courts all found that Bies’ diminished mental capacity and other mitigating factors did not “outweigh the aggravating circumstances of the murder” and found the death penalty appropriate for the crime. Bies, 1994 WL 102196, at *10; see also Bies, 658 N.E.2d at 762.
Six years after Bies’ efforts to overturn his capital sentence on direct review had come to an end, the United States Supreme Court decided Atkins, which held that the Eighth (and Fourteenth) Amendment prohibits governments from imposing a capital sentence on individuals suffering from mental retardation, 536 U.S. at 321, 122 S.Ct. 2242, and which directed the States to develop appropriate standards for determining whether capital-eligible defendants suffer from mental retardation, id. at 317, 122 S.Ct. 2242. Soon enough, Bies sought state-court, post-conviction relief on two grounds: that the Eighth Amendment, as construed in Atkins, required the State to vacate his capital sentence, and that the Double Jeopardy Clause required the State to vacate his capital sentence in view of the Ohio courts’ mitigation determinations that he suffers from mild mental retardation. After the state trial court denied his double-jeopardy claim, but before it had a chance to rule on his Atkins claim, Bies moved to amend his then-pending federal habeas petition to include a double-jeopardy claim. The district court permitted the amendment. Then the district court, and later a panel of this court, held that the Double Jeopardy Clause required the federal courts to vacate Bies’ capital sentence and to impose a life sentence instead.
In questioning the panel’s approach to this case, let me start by acknowledging that I do not question many of the premises that underlie it. The United States Constitution and Ohio law indeed require the state courts independently to weigh the aggravating circumstances that favor a capital sentence against any mitigating factors, including if appropriate the defendant’s mental and psychological profile, before upholding a death sentence. I will accept for the sake of argument that the Ohio courts independently determined that Bies is mentally retarded in upholding his death-penalty conviction, even though that is far from clear. See Bies, 658 N.E.2d at 761; Bies, 1994 WL 102196, at *9. Atkins prevents a State from imposing the death penalty on an individual suffering from mental retardation. And the Double Jeopardy Clause prevents a State from relit-igating a criminal defendant’s eligibility for the death penalty. See Bullington v. Mis*531souri, 451 U.S. 430, 445, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).
Yet these legal principles and this finding offer no basis for applying double jeopardy to a state court decision that affirms a death sentence. Double jeopardy bars a State from relitigating a defendant’s eligibility for capital punishment only when “the sentencing judge or the reviewing court has decided that the prosecution has not proved its case for the death penalty and hence has acquitted petitioners.” Poland v. Arizona, 476 U.S. 147, 154, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (internal quotation marks and alteration omitted). Or, as the Court has put the point more recently, “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). But no court in this case ever determined that the prosecution failed to prove its sentencing case: The state courts serially rejected Bies’ claims that the death penalty should not be imposed. Put another way — the way the Constitution describes it — Bies was never “twice put in jeopardy,” U.S. Const, amend. V, in the post-conviction claim that he filed in state court. Quite to the contrary: he was taking a second run at vacating his death sentence — which is assuredly his right but just as assuredly does not offend the double-jeopardy bar.
Poland offers considerable guidance on the point. In Poland, the prosecution relied on two aggravating factors: (1) that the defendant expected pecuniary gain from the murder and (2) that the crime was especially heinous, cruel or depraved. 476 U.S. at 149, 106 S.Ct. 1749. In imposing the death penalty, the state sentencing court held that the State proved the second aggravating factor but not the first (because the crime was not a contract killing). Id. On appeal, the Arizona Supreme Court came to the opposite conclusion on each point, holding (1) that the pecuniary-gain aggravator was not limited to contract killings and (2) that the State had not proved that the second aggravating factor applied. Id. at 150, 106 S.Ct. 1749. After being retried and sentenced to death again, the defendant appealed to the United States Supreme Court, arguing that his independent acquittals on both aggravating factors taken together barred the State from relitigating his eligibility for the death penalty. The Supreme Court disagreed, holding — in words with direct relevance here — that “[aggravating circumstances are not separate penalties or offenses” upon which jeopardy can attach, but are instead “standards to guide the making of the choice between the alternative verdicts of death and life imprisonment.” Id. at 156, 106 S.Ct. 1749 (internal quotation marks and alterations omitted). Because double jeopardy’s concern is the death determination itself, and because no court had held “that the prosecution had failed to prove its case that the petitioners deserved the death penalty,” id. at 154, 106 S.Ct. 1749 (internal quotation marks omitted), the Court held that the State was not barred from relitigating the petitioners’ eligibility for it, id. at 156-57, 106 S.Ct. 1749. What is true of aggravating factors is also true of mitigating factors. The Ohio courts all individually affirmed Bies’ capital sentence, and therefore no statement from those courts, whether about aggravating factors or mitigating factors, implicates the double-jeopardy bar.
These principles, it seems to me, suffice to resolve this case. In reaching a different conclusion, the panel (and the concurrence) principally rely on three double-jeopardy decisions — Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Turner v. Arkansas, 407 U.S. 366, *53292 S.Ct. 2096, 32 L.Ed.2d 798 (1972) (per curiam), and Sattazahn. I am not persuaded. Ashe involved two prosecutions, not one, and one acquittal, not none. See 397 U.S. at 439-40, 90 S.Ct. 1189. In the first prosecution in Ashe, the question was whether the defendant was one of the individuals who had robbed a multi-participant poker game. The jury acquitted the defendant. In the second prosecution, the government charged the same defendant with robbing other participants in the same poker game. The Court barred the second prosecution, holding that the State could not relitigate the defendant’s involvement in the robbery because “the single rationally conceivable issue in dispute before the [first] jury was whether the petitioner had been one of the robbers.” Id. at 445, 90 S.Ct. 1189. Turner is of a piece with Ashe, as it involved strikingly similar facts and the same result. See 407 U.S. at 368-70, 92 S.Ct. 2096 (holding that double jeopardy barred prosecution of the defendant for robbing a poker game participant where the defendant’s prior acquittal for being an accessory to the robbery victim’s murder necessarily included a finding that he was not present at the time of the robbery). Unlike Ashe and Turner, however, the State has not reprosecuted Bies after an acquittal, and thus “the controlling constitutional principle” of a “prohibition against multiple trials” has not been offended. United States v. Wilson, 420 U.S. 332, 346, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Ashe and Turner, in short, involved serial prosecutions by the government while this case involves serial efforts by the defendant to vacate his capital sentence.
As the panel reads Sattazahn, it establishes that double jeopardy applies “when a judge or jury ‘enter[s] findings sufficient to establish legal entitlement to the life sentence,’ ” Bies v. Bagley, 519 F.3d 324, 332 (6th Cir.2008) (quoting Sattazahn, 537 U.S. at 109, 123 S.Ct. 732), whether there has been an acquittal or not. But that is not how I read the case. The rest of the quotation reiterates the time-honored precondition that jeopardy does not attach in a sentencing proceeding unless there has been an “acquittal” on the death penalty itself. In full, the Court says that “in Poland, unlike in [Bullington and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) ], 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. The holding for the State in Satta-zahn confirms the point — namely, that a hung jury regarding the death penalty did not present a double-jeopardy problem because that “result — or more appropriately, that non-result — cannot fairly be called an acquittal.” Id. at 109, 123 S.Ct. 732. Because “the touchstone for double-jeopardy protection in capital-sentencing proceedings” remains “whether there has been an ‘acquittal,’ ” and because Bies, like Satta-zhan, “cannot establish that the jury or the court ‘acquitted’ him during his first capital-sentencing proceeding,” id., the double-jeopardy bar does not apply.
Besides ignoring the traditional acquittal requirement for invoking the double-jeopardy bar, the panel takes a wrong turn in its application of traditional issue-preclusion principles to this case. Preclusion generally attaches only to questions that were both “actually and necessarily determined” by “prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (emphasis added). As to the first requirement, the constitutionality of Bies’ death sentence was not “actually ... determined” by the state courts for this basic reason: saying that Bies suffered from mild mental retardation *533in considering the mitigating factors that counsel against a death sentence is not the same thing as holding that Bies is ineligible for the death penalty under Atkins. Just as the law contains many similar, yet distinct, inquiries for competence — competence to stand trial, competence to waive jury trial rights, competence to represent oneself — so too here. Cf. Indiana v. Edwards, — U.S.-, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). The mitigation and Atkins inquiries flow from different constitutional requirements under the Eighth Amendment — the requirement that capital defendants receive individualized consideration of mitigating factors, see Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and the categorical (i.e., non-individualized) requirement that those who are mentally retarded not be executed due to the diminished deterrent value of the death penalty on, and the diminished culpability of, such individuals, see Atkins, 536 U.S. at 317-21, 122 S.Ct. 2242. But if proof were needed to establish that the Ohio courts did not “actually ... determine[ ]” the Atkins issue, it ought to suffice to point out that they could not have decided the question: Atkins was decided six years after the Ohio Supreme Court’s opinion.
As to the second requirement, I am hard-pressed to understand how the Ohio courts “necessarily determined” the Atkins issue — how in other words they necessarily decided an issue “that did not affect the result ” of the state courts’ review of Bies’ capital sentence. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4421 (2008) (emphasis added); see also NLRB v. Master Slack & /or Master Trousers Corp., 773 F.2d 77, 81 (6th Cir.1985). Unlike Ashe and Turner, where the precluded issue was necessary to the first judgment, see Ashe, 397 U.S. at 445, 90 S.Ct. 1189; Turner, 407 U.S. at 369, 92 S.Ct. 2096, the Ohio courts’ mitigation determinations had no bearing on the results of those cases, for the simple reason that they would have affirmed his capital sentence either way- — whether he suffered from mental retardation or not. Far from being necessary to the judgment, the Ohio courts’ mental-retardation findings cut against it — making them quintessential^ the kinds of rulings not eligible for issue-preclusion treatment. See, e.g., McKinley v. City of Mansfield, 404 F.3d 418, 429 (6th Cir.2005); Fletcher v. Atex, Inc., 68 F.3d 1451, 1457-58 (2d Cir.1995); Balcom v. Lynn Ladder & Scaffolding Co., Inc., 806 F.2d 1127, 1127-28 (1st Cir.1986); see also 18 Wright et al., supra, § 4421 (explaining that the classic example of issues not necessary to the judgment are those that are contrary to the ultimate result, such as jury findings of negligence where the defendant wins on contributory-negligence grounds).
The effect of the panel’s decision is to say that the State lost this criminal case by winning it. Yet issue preclusion generally does not bar the State (or any party) from relitigating an issue decided in proceedings from which it could not appeal. See 18 Wright et al., supra, § 4421; see also Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1204-05 n. 7 (1st Cir.1993); White v. Elrod, 816 F.2d 1172, 1174 (7th Cir.1987). But the panel opinion does just that. As a mitigating factor that the state courts had to weigh against the aggravating factors, a finding of Bies’ mental retardation was an obstacle to the judgment entered rather than a necessary step toward it. Having won the case in the state courts, Ohio of course had no reason to seek review in the United States Supreme Court (even had Atkins already been decided), and Bies will search in vain for a case in which that Court accepted review of a State’s appeal from a victory. I know *534of no case in which any court applied the double-jeopardy bar to invalidate a decision that the State (or United States) had won.
The panel’s only argument that Bies’ mental capacity was necessary to the state courts’ judgments is that the courts had a “duty to examine the entirety of the facts available to the jury and weigh them against the aggravating factors proven at trial.” Bies, 519 F.3d at 338. But the fact that the state courts had to consider (or even to decide) Bies’ mental capacity does not mean that the determination they reached was necessary to the outcome of the decision. Because any state court finding that Bies was mentally retarded was in no sense “necessarily determined” by the prior judgment, Montana, 440 U.S. at 153, 99 S.Ct. 970, and because no court has ever held that the prosecution “failed to prove its case that [Bies] deserved the death penalty,” Poland, 476 U.S. at 154, 106 S.Ct. 1749 (internal quotation marks omitted), neither issue preclusion nor double jeopardy bars relitigation of the issue.
All of this would be true even if AEDPA did not apply. But of course AEDPA does govern this case, and, as I have shown, the only Supreme Court decisions bearing on this case all cut against the panel’s decision. It is true, as Bies and the panel point out, that AEDPA permits a federal court to grant habeas relief solely on the ground that the state courts made unreasonable findings of fact. And it is true that the panel rested its AEDPA analysis on the view that the state trial court, in ruling on Bies’ double-jeopardy claim, unreasonably questioned whether the Ohio Supreme Court relied on the same standard for assessing mental retardation in conducting its direct review of Bies’ sentence that was later adopted as “a standard for evaluating an individual’s claim of mental retardation” under Atkins in State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011, 1014 (2002). See Bies, 519 F.3d at 340-42. But this does not satisfy AEDPA, even if I accept for the sake of argument that the state trial court’s finding was unreasonable. A federal court cannot simply identify an unreasonable fact finding, then conclude that AEDPA has been satisfied. It must connect that allegedly botched finding to an established legal doctrine. Here there are a series of legal hurdles that Bies must clear before this alleged fact question has any bearing on this case: Does the Double Jeopardy Clause apply without an acquittal? Do issue-preclusion principles apply when the issue purportedly decided in the earlier case was not actually or necessarily decided in that case? Because Bies cannot satisfy these requirements under established law, much less under AEDPA, his fact-finding argument simply chases the tail of identifying a cognizable theory of relief.
What is most trying about all of this is that it does not seem necessary. When the federal courts first acted in this case, they interrupted a state trial court proceeding designed to determine whether Bies had a successful Atkins claim. The whole point of the double-jeopardy argument was to stop the state court proceeding in its tracks and to prevent the same courts from opining about the validity of his Atkins claim. In obliging Bies, however, we have failed to give the state courts a chance to bring their judgment to bear on the point, and after this decision federal district courts within the circuit presumably will do the same thing with other similarly situated Atkins cases. See State v. Hill, No.2006-T-0039, 2008 WL 2719570, at *6, 177 Ohio App.3d 171, 181, 894 N.E.2d 108, 116 (Ohio Ct.App. July 11, 2008) (disagreeing with Bies and holding *535“that the issue of Hill’s mental retardation was not ‘actually and directly litigated’ at his sentencing hearing”). AEDPA’s exhaustion requirement exists to prevent just this kind of premature intervention while a State addresses the petitioner’s challenge. See Turner v. Bagley, 401 F.3d 718, 724 (6th Cir.2005). And unlike cases where we have permitted unexhausted double-jeopardy challenges before the defendant’s second prosecution commenced, see Gully v. Kunzman, 592 F.2d 283, 286 (6th Cir.1979), Bies faces no risk of a second prosecution.
By contrast, were we to allow the state court proceeding to go forward, Bies is hardly in a disadvantaged position. He has an IQ of 69, and two licensed clinical psychologists have concluded that he is mildly mentally retarded. Assuming that these opinions stem from balanced evaluations of Bies’ mental capacity, there is ample reason to think that the Ohio courts will take his claim seriously. Atkins, like Bies, was mildly mentally retarded, Atkins, 536 U.S. at 308-09, 122 S.Ct. 2242, and Bies’ IQ places him within the category of individuals the Court recognized might be affected by its decision, see id. at 316, 122 S.Ct. 2242 (noting that the practice of executing mentally retarded individuals has become “truly unusual” given that “only five [States] have executed offenders possessing a known IQ less than 70” since the Court last ruled on the question).
Nor have the Ohio courts been reluctant to grant relief under Atkins. The Ohio Supreme Court already has granted relief in one such case, State v. White, 118 Ohio St.3d 12, 885 N.E.2d 905, 917 (2008), and the state trial courts have done the same in six others, see Karen Farkas, Ruling on Mental Retardation Takes 6 Of Ohio’s Death Row, Cleveland Plain Dealer, May 12, 2008, at B 1. And even if the worst should happen from Bies’ perspective, even if the Ohio courts should conclude that Bies was not mentally retarded under Atkins, he could seek certiorari on the question or seek habeas relief in the district court. Far from undermining Atkins, this path (through state court determinations) is exactly what the Supreme Court envisioned: For Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” id. at 317, 122 S.Ct. 2242 (internal quotation marks and alteration omitted), and principles of comity and federalism mandate that we give the Ohio courts the first opportunity to apply that restriction to Bies’ case.
I respectfully dissent from the court’s denial of rehearing en banc.