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previous habeas appeal, conviction was allowed to stand, but remanded for retrial of mental retardation issue. Court now rules that proper procedure for such proceeding is as follows: State has right to first opening statement, and to opening and closing argument; State has right to present evidence first, but may choose to present none, as its burden has already been carried, or may wait and present rebuttal evidence after Defendant’s evidence. Defendant has right to opening statement after State, or before evidence if State chooses not to open, or after State’s evidence, or can waive opening statement. 3. Trial court erroneously concluded that it couldn’t accept a plea agreement from the parties. “We hold that the completion of that now-incomplete verdict may be done through a plea of guilty but mentally retarded if both parties are willing to do so and if the trial court finds a factual basis to enter judgment on such a plea. See OCGA § 17–7–131(b)(2) (requiring that a factual basis be found before a plea of guilty but mentally retarded is accepted).” Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (June 1, 2009). Defendant Bies received death penalty after Ohio murder conviction in 1992. On direct appeal, the Ohio Supreme Court “observed that Bies' ‘mild to borderline mental retardation merit[ed] some weight in mitigation,’ but concluded that ‘the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt.’” After Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ruled that the Eighth Amendment bars execution of mentally retarded offenders, “the Ohio trial court ordered a full hearing on the question of Bies' mental capacity.” Defendant, however, filed federal habeas petition, contending that the Double Jeopardy Clause of the Eighth Amendment bars the imposition of the death penalty here, inasmuch as the Ohio Supreme Court has already made a determination that he is mentally retarded. The U.S. District Court and Sixth Circuit Court of Appeals agreed with Bies. A unanimous U.S. Supreme Court reverses, holding that no double jeopardy violation has occurred because a) Bies has only been put in jeopardy once; b) “mental retardation for purposes of Atkins, and mental retardation as one mitigator to be weighed against aggravators, are discrete issues;” and c) issue preclusion does not apply because the original mental retardation determination was not “necessary to the ultimate outcome” and Bies was not a “prevailing party,” two necessary conditions to application of the doctrine. 1. Jeopardy here only attached once. “‘[T]he touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an “acquittal,”’” quoting Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). “Here, as in Sattazahn, there was no acquittal. Bies' jury voted to impose the death penalty. At issue now is Bies' ‘second run at vacating his death sentence.’” 2. Determination of mental retardation as a mitigating factor pre- Atkins doesn’t preclude litigation of the issue as a preclusive factor post- Atkins . “Mental retardation as a mitigator and mental retardation under Atkins … are discrete legal issues. The Atkins decision itself highlights one difference: ‘[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury.’ 536 U.S., at 321, 122 S.Ct. 2242. This reality explains why prosecutors, pre- Atkins, had little incentive vigorously to contest evidence of retardation. … Because the change in law substantially altered the State's incentive to contest Bies' mental capacity, applying preclusion would not advance the equitable administration of the law.” 3. Issue preclusion doesn’t apply because the original mental retardation determination was not “necessary to the ultimate outcome.” “[I]t is clear that the courts' statements regarding Bies' mental capacity were not necessary to the judgments affirming his death sentence. A determination ranks as necessary or essential only when the final outcome hinges on it. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4421, p. 543 (2d ed., 2002). ‘Far from being necessary to the judgment, the Ohio courts' mental-retardation findings cut against it-making them quintessentially the kinds of rulings not eligible for issue-preclusion treatment.’” Hall v. Brannan, 284 Ga. 716, 670 S.E.2d 87 (November 3, 2008). Rejects defendant’s contention that “it is unconstitutional to execute any persons who are severely mentally ill.” “unlike the case of juvenile offenders and mentally retarded persons, there is no consensus discernable in the nation or in Georgia sufficient to show that evolving standards of decency require a constitutional ban, under either the Constitution of the United States or under the Georgia Constitution, on executing all [fn: We address here only whether it is unconstitutional to execute all persons with mental illnesses. We acknowledge, of course, that it is both unconstitutional and unlawful under Georgia statutory law to execute persons who are insane at the time of their executions. Ford v. Wainwright, 477 U.S. 399, 409-410(II)(B) (106 S.Ct. 2595, 91 L.Ed.2d 335) (1986). See also OCGA § 17-10-60 et seq. ] persons with mental illnesses, particularly persons who have shown only the sort of mental health evidence that Brannan has shown.” Brannan showed bipolar disorder and post- traumatic stress syndrome, but jury rejected his defense of insanity. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (November 5, 2007). On habeas petition following murder conviction and death sentence, finding that defendant wasn’t mentally retarded affirmed. 1. Held, “ a rational trier of fact could have found that Rogers failed to meet his burden of proof. See Morrison v. State, 276 Ga. 829, 830-831(1) (583 S.E.2d 873) (2003). See also Stripling v. State, 261 Ga. 1, 4(3)(b) (401 S.E.2d 500) (1991) (IQ test scores of 70 or below are not conclusive); Fleming [ v. Zant, 259 Ga. 687, 691 (386 S.E.2d 339) (1989)] (jury not bound by expert opinions or test