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four psychoeducational reports were tendered into evidence. Both psychologists called to testify by Perkinson testified extensively about the school records and their contribution to the psychologists’ opinions that Perkinson was mildly mentally retarded.” Head v. Hill , 277 Ga. 255, 587 S.E.2d 613 (October 6, 2003). Habeas court erred in granting defendant’s petition for relief from his death sentence; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which “held that facts which determine the upper limit of punishment for particular criminal conduct must be proved to a jury unless, of course, the right to a jury is waived by the defendant,” does not establish “a constitutional requirement that a jury determine the question of mental retardation regardless of the procedural posture of a case.” In this case, Hill claims that he is not subject to the death penalty due to mental retardation; but Hill has procedurally defaulted on that issue “[b]ecause Hill did not seek a jury determination of his alleged mental retardation at trial.” “At his trial, Hill presented evidence of his intellectual slowness, but his psychological expert testified that Hill had an intelligence quotient of 77 and was not mentally retarded. Hill did not request that the jury be charged on a ‘guilty but mentally retarded’ verdict.” Thus, “Hill is now entitled only to have the habeas court determine, as this Court directed on remand, whether a miscarriage of justice would result if Hill were executed, in light of his alleged mental retardation.” 1. Ring not applied retroactively to cases no longer in the “pipeline,” like Hill’s habeas petition. “A new rule of criminal law will have retroactive effect if it falls within one of the following two exceptions: new rules that place certain conduct beyond the power of the State to proscribe, that is, a change in substantive criminal law; and, watershed rules concerning procedures that are implicit in the concept of ordered liberty and that implicate the fundamental fairness and accuracy of the criminal proceeding. See Bousley v. United States, 523 U.S. 614, 619-620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Teague v. Lane, 489 U.S. 288, 311(V), 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion).” Ring’s holding falls within neither exception: “we find that the fundamental fairness and accuracy of determining mental retardation would not be increased by having a jury rather than a trial judge make the determination.” 2. Ring doesn’t require jury determination of mental retardation in all death penalty cases. Rather than being a ‘fact which determines the upper limit of punishment, “a claim of mental retardation is a means by which a death penalty defendant may seek to have his possible sentence limited despite the fact that the statutory elements for the death penalty might be present.” The court in Ring “did not find a jury trial right for factors in mitigation of punishment, such as mental retardation. Ring v. Arizona, supra at 597(II), fn. 4, 122 S.Ct. 2428. … [W]e conclude that the absence of mental retardation is not the functional equivalent of an element of an offense such that determining its absence or presence requires a jury trial under Ring. ” 3. Statute requiring defendant to prove mental retardation beyond a reasonable doubt is not unconstitutional. “[T]his Court has already determined that, under the principles of federal constitutional law, it is acceptable to apply the beyond a reasonable doubt standard of proof to a mental retardation claim at trial. Mosher v. State, 268 Ga. 555, 558-560(4), 491 S.E.2d 348 (1997).” Now, following Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (declaring for the first time that execution of mentally retarded persons is unconstitutional) Court re-affirms the holding of Mosher : “nothing in Atkins instructs the states to apply any particular standard of proof to mental retardation claims.” As in Mosher , “[w]e again find the comparison between claims of insanity and of mental retardation to warrant a conclusion that the beyond a reasonable doubt standard may be applied constitutionally to mental retardation claims.” “We also conclude that a higher standard of proof serves to enforce the General Assembly's chosen definition of what degree of impairment qualifies as mentally retarded under Georgia law for the purpose of fixing the appropriate criminal penalty that persons of varying mental impairment should bear for their capital crimes, in light of their individual ‘diminish [ed] ... personal culpabilit[ies]’ and the varying degrees of deterrence possible. Atkins v. Virginia, supra at 318-320(IV), 122 S.Ct. 2242.” Sears, writing for Benham and Fletcher, dissents, relying on Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (state can’t demand defendant prove his incompetence to stand trial at a standard greater than preponderance of the evidence). “[D]ue process forbids the state from imposing a higher evidentiary burden on a condemned prisoner when determining his competency for execution than the burden borne by the prisoner at trial.” Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (June 20, 2002). Declares capital punishment cruel and unusual as applied to mentally retarded persons, finding consensus that it violates an “evolving standard of decency,” Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) as expressed in numerous state legislative actions, an absence of such executions even among those states which haven’t expressly prohibited it, and positions taken medical/psychological professionals, religious communities, the “world community,” and opinion polling of Americans. “To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, ‘we leave to the State[s] the task of developing