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GREEN v. JOHNSON

No. 07-9.

515 F.3d 290 (2008)

Kevin GREEN, Petitioner-Appellant, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent-Appellee. The American Association on Intellectual and Developmental Disabilities; The Arc of the United States; The Arc of Virginia, Amici Supporting Appellant.

United States Court of Appeals, Fourth Circuit.

Decided: February 11, 2008.

Attorney(s) appearing for the Case

ARGUED: Michele Jill Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Timothy M. Richardson, Huff, Poole & Mahoney, P.C., Virginia Beach; Virginia, for Appellant. Robert F. McDonnell, Attorney General, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. James W. Ellis, Norman C. Bay, Steven K. Homer, April Land, Carol M. Suzuki, Albuquerque, New Mexico, for Amici Supporting Appellant.

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON joined. Judge MOTZ wrote an opinion concurring in the judgment.

OPINION

SHEDD, Circuit Judge:

Kevin Green, a Virginia capital inmate, appeals the denial of his petition for a writ of habeas corpus. The district court granted Green a certificate of appealability ("COA") on two issues: (1) whether he is mentally retarded so that his sentence is unconstitutional under...

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