MURPHY, Circuit Judge.

I. INTRODUCTION

In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins, the Oklahoma Court of Criminal Appeals ("OCCA") granted George Ochoa, a convicted murderer under sentence of death, a post-conviction jury trial to determine whether he was mentally retarded. The jury found Ochoa failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded. The OCCA affirmed. Ochoa v. State, 136 P.3d 661, 670 (Okla.Crim.App.2006). This court granted Ochoa permission to file a second 28 U.S.C. § 2254 petition raising his Atkins claims in federal district court. Ochoa v. Sirmons, 485 F.3d 538, 546 (10th Cir.2007). After the district court denied Ochoa's second § 2254 habeas petition on the merits, Ochoa filed the instant appeal.

Ochoa's appeal implicates the intersection of Atkins and the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Ochoa contends Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is "contrary to, or . . . an unreasonable application of" Atkins. 28 U.S.C. § 2254(d)(1). We reject this contention. Oklahoma's determination that mental retardation is not a fluid concept is entirely consistent with Atkins. Ochoa further asserts his trial was fundamentally unfair because (1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial. Despite Oklahoma's arguments to the contrary, this court concludes these claims are Atkins claims. Thus, the district court properly resolved them on the merits. 28 U.S.C. § 2244(b). We further hold the district court correctly concluded none of the alleged errors identified by Ochoa entitle him to habeas relief. Thus, exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A), this court affirms the order of the district court denying Ochoa's § 2254 habeas petition.1

II. BACKGROUND

An Oklahoma state jury found Ochoa guilty of, inter alia, two counts of first degree murder and sentenced him to death. On direct appeal, the OCCA affirmed. Ochoa v. State, 963 P.2d 583, 606 (Okla.Crim.App. 1998). After exhausting his state post-conviction remedies, Ochoa filed a 28 U.S.C. § 2254 petition in federal district court. The district court denied habeas relief in an extensive order. Ochoa appealed the district court's denial of habeas relief to this court (No. 02-6032).

After briefing was complete and No. 02-6032 was set for oral argument, this court stayed the appeal, upon Ochoa's motion, so he could exhaust an Atkins claim in state court. Oklahoma held a jury trial on Ochoa's Atkins claim; the jury concluded Ochoa did not prove he was mentally retarded. The OCCA affirmed. Ochoa v. State, 136 P.3d 661, 670 (Okla.Crim.App. 2006). This court then granted Ochoa permission to file a second § 2254 petition raising his Atkins claim in federal district court. Ochoa v. Sirmons, 485 F.3d 538, 539 (10th Cir.2007). After the district court denied habeas relief, Ochoa brought the instant appeal to this court (No. 10-6088).2

III. STANDARD OF REVIEW

Ochoa is entitled to federal habeas relief only if the OCCA's resolution of his claims "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This court presumes a state court's factual findings are correct unless the petitioner rebuts that presumption by "clear and convincing evidence." Id. § 2254(e)(1).

We first determine whether the principle of federal law upon which Ochoa relies was "clearly established by the Supreme Court at the time of the state court judgment." Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006). Clearly established law consists of Supreme Court holdings in cases "where the facts are at least closely related or similar" to the facts in Ochoa's case. House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.2008). "The absence of clearly established federal law is dispositive under § 2254(d)(1)." Id. at 1018. If clearly established federal law exists, this court moves on to consider whether the OCCA decision was contrary to or an unreasonable application of that clearly established federal law.

Bland, 459 F.3d at 1009 (quotations omitted). "A state court decision involves an `unreasonable application' of federal law if the state court identifies the correct governing legal principle from Supreme Court decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (quotation omitted).

IV. ANALYSIS

A. Temporal Focus of Mental Retardation Determination

1. Background

At his mental retardation trial, Ochoa asked for a jury instruction focused on whether he was retarded at the time he committed the crimes. The trial court denied the request and instructed the jury to determine whether Ochoa was mentally retarded at the time of the trial. On direct appeal,3 Ochoa asserted the trial court's instruction was at odds with Atkins. The OCCA rejected Ochoa's assertion of error, concluding:

Ochoa, 136 P.3d at 665-66.

2. Discussion

Ochoa contends the OCCA's decision to adopt a definition of mental retardation in which the disability is static is "contrary to, or an unreasonable application of," Atkins. 28 U.S.C. § 2254(d)(1). According to Ochoa, the Supreme Court's focus in Atkins was upon the moral culpability of the offender at the time of his commission of the crime. In support of this contention, Ochoa cites the following language from Atkins: "Because of their disabilities in the areas of reasoning, judgment, and control of their impulses, . . . [the mentally retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." 536 U.S. at 306, 122 S.Ct. 2242 (emphasis added).4 In essence, Ochoa asserts Atkins requires that Oklahoma adopt a fluid definition of mental retardation, i.e., a definition specifically contemplating the possibility an individual may outgrow his mental retardation.5 Because the jury at his mental retardation trial was instructed to determine whether Ochoa was mentally retarded at the time of the trial, rather than at the time of the murders, Ochoa asserts Oklahoma's resolution of his mental retardation claim was contrary to, or an unreasonable application of, Atkins.

Atkins concluded "a national consensus has developed against" the execution of the mentally retarded. 536 U.S. at 316, 122 S.Ct. 2242. In so concluding, however, the Court explicitly recognized that no such consensus existed as to the exact parameters of the term "mentally retarded":

Id. at 317, 122 S.Ct. 2242. Furthermore, the Court recently reiterated that Atkins specifically avoided establishing "substantive guides for determining when a person who claims mental retardation will be so impaired as to fall [within Atkins' compass]," instead leaving that task to the states in the first instance. Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009) (alteration in original) (quotation omitted); see also Hill v. Humphrey, 662 F.3d 1335, 1351-52 (11th Cir. 2011) (en banc) ("Atkins did not bestow a substantive Eighth Amendment right to a fixed and rigid definition of `mentally retarded persons.' Indeed, various states use different definitions of intellectual functioning (some draw the line at an IQ of 75 or below, some at 70 or below, others at 65 or below) and consider different factors in assessing adaptive functioning." (footnote omitted)). This court can say with certainty that Atkins did not address "the time frame, if any, at which a finding of mental retardation is relevant, i.e., time of offense, time of trial, or time of execution." Bowling v. Commonwealth, 163 S.W.3d 361, 369 (Ky.2005). This absolute absence of clearly established Supreme Court precedent dooms Ochoa's claim. House, 527 F.3d at 1018 ("The absence of clearly established federal law is dispositive under § 2254(d)(1)."). Thus, the OCCA's determination that mental retardation is a static condition—and that those who at the time of the mental retardation trial are not mentally retarded, never were mentally retarded—is neither contrary to, nor an unreasonable application of, Atkins prohibition on the execution of the mentally retarded. See Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (concluding that because no decision of the Court "squarely addresse[d]" the issue presented and because none of the Court's cases gave a "clear answer to the question presented," the federal habeas court could not find the state court unreasonably applied clearly established law).

Furthermore, Ochoa does not cite a single authority for the proposition that mental retardation is a fluid concept.6 The Supreme Court, on the other hand, citing to scholarship in the field, has noted "[m]ental retardation is a permanent, relatively static condition." Heller v. Doe ex rel. Doe, 509 U.S. 312, 323, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). For this reason, the Kentucky Supreme Court concluded the question of temporal focus "is more semantical than real." Bowling, 163 S.W.3d at 377 (citing Heller and the scholarship cited therein for the proposition that because mental retardation is a "permanent, relatively static condition," it would be "exceedingly rare" for the condition to "recede during the interim between the offense and the execution"); see also State v. Arellano, 213 Ariz. 474, 143 P.3d 1015, 1020 (2006) (holding that because mental retardation is a static condition, "evidence of any skills or deficiencies in adaptive behavior exhibited by a defendant, even after age eighteen, helps determine whether a defendant has mental retardation").

Ochoa has failed to carry his burden of demonstrating the definition of mental retardation adopted by the OCCA is "contrary to . . . or an unreasonable application of" Atkins. 28 U.S.C. § 2254(d)(1).

B. Fundamental Fairness of Ochoa's Mental Retardation Trial

1. Background

On direct appeal from the jury's determination he had not proven he was mentally retarded, Ochoa asserted three procedural irregularities rendered his trial unfair: (1) the jury learned of Ochoa's prior conviction; (2) Ochoa went to trial wearing his orange prison jumpsuit; and (3) Ochoa was forced to wear a shock sleeve during the trial. The OCCA determined Ochoa was not entitled to relief:

Ochoa, 136 P.3d at 667-70 (citations omitted).

2. Discussion

a. 28 U.S.C. § 2244(b)(4)

i. Procedural Background

The filing of a second or successive § 2254 habeas petition, and the contents thereof, are tightly constrained by the provisions of the AEDPA. As relevant to the instant case, the AEDPA provides

28 U.S.C. § 2244(b)(2)(A). A three-judge panel of this court concluded Ochoa made a prima facie showing that his application satisfied the requirements of § 2244(b)(2)(A) and, thus, authorized Ochoa to file "a second or successive habeas petition raising an Atkins challenge to his death sentence." Ochoa, 485 F.3d at 546.7 Upon the filing of Ochoa's second or successive habeas petition in district court, Oklahoma sought dismissal of Ochoa's claims of procedural irregularity on the ground those particular claims did not satisfy the standard set out in § 2244(b)(2)(A). See 28 U.S.C. § 2244(b)(4) (providing that "[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless" the claim satisfies the requirements of § 2244(b)(2)).8 In particular, Oklahoma asserted the claims must be dismissed because these claims are based on non-Atkins Supreme Court decisions and decisions of the OCCA. The district court refused to dismiss Ochoa's claims of procedural irregularity on this ground, concluding as follows:

On appeal, Oklahoma asserts the district court erred in refusing to dismiss, pursuant to the terms of § 2244(b)(4), Ochoa's procedural irregularity claims. The district court's determination that Ochoa's claims "satisfy the requirements of § 2244(b) is a legal conclusion which this court reviews de novo." LaFevers v. Gibson, 238 F.3d 1263, 1266 (10th Cir.2001) (citation omitted).

ii. Analysis

For those reasons set out below, the court concludes Ochoa's procedural irregularity claims are proper Atkins claims and, therefore, the district court properly denied Oklahoma's motion to dismiss.

We begin by noting the question whether Ochoa's procedural-irregularity claims fall within the ambit of § 2244(b)(2)(A) is one of first impression. This court has never addressed the contours of § 2244(b)(2)(A). Furthermore, it does not appear that any other circuit has addressed this question. This dearth of precedent is not surprising, given that "Atkins reflects one of the rare instances in which the Supreme Court has announced a new rule of constitutional law that it has also expressly made retroactively applicable to cases on collateral review." Ochoa, 485 F.3d at 540.9 Those limited precedents that do exist, however, indicate Ochoa's procedural irregularity claims, although drawing their substance from the Fourteenth Amendment's Due Process Clause, are based on Atkins.

The Supreme Court has made clear that its decision in Atkins "did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation will be so impaired as to fall [within Atkins' compass]." Bobby, 129 S.Ct. at 2150 (quotation omitted) (alteration in original).10 Instead, it left "to the States the task of developing appropriate ways of enforcing the constitutional restriction" on the execution of the mentally retarded. Id. (quotation omitted). For that reason, the Court has indicated federal habeas courts should not preemptively dictate to the states matters of procedure or substance in the Atkins realm. Id. at 2153-54 ("[Federal court] intervention . . . derailed a state trial court proceeding designed to determine whether Bies ha[s] a successful Atkins claim. Recourse first to Ohio's courts is just what this Court envisioned in remitting to the States responsibility for implementing the Atkins decision. [Ohio recognizes] Bies is entitled to such recourse, [and] rightly seeks a full and fair opportunity to contest his plea under the postsentencing precedents set in Atkins and [Ohio law]." (quotation and citation omitted)); Schriro v. Smith, 546 U.S. 6, 7-8, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005) (concluding Ninth Circuit erred when it preemptively ordered Arizona to use jury trial procedures to resolve Atkins claims).11

The Supreme Court has also indicated, however, that state court "measures for adjudicating claims of mental retardation. . . might, in their application, be subject to constitutional challenge." Schriro, 546 U.S. at 7, 126 S.Ct. 7. That is the exact situation faced by this court. Oklahoma has adopted the full-blown jury trial, "with all its historic and procedural protections,"12 as the appropriate mechanism for resolving claims of mental retardation. Lambert v. State, 71 P.3d 30, 31 (Okla. Crim.App.2003). Ochoa has asserted certain aspects of that procedural mechanism, as applied to him, rendered his mental retardation trial fundamentally unfair. Schriro indicates such a challenge is properly brought in a § 2254 habeas petition. 546 U.S. at 7, 126 S.Ct. 7; United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007) ("We are bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements." (quotations omitted)).

That each of the procedural irregularities identified by Ochoa implicate protections flowing from the Fourteenth Amendment's Due Process Clause does not change the result. "The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). The liberty interest at issue in this case, the right of the mentally retarded to avoid execution, flows directly from the Eighth Amendment. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 ("Construing and applying the Eighth Amendment in the light of our evolving standards of decency, we. . . conclude that [the death penalty] is excessive and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." (quotation omitted)). Oklahoma adopted the jury trial, with its historically attendant procedural protections, as the method to vindicate that liberty interest. Ochoa's interest in ensuring Oklahoma applied that procedure in a fundamentally fair fashion flows directly from the liberty interest announced in Atkins. Accordingly, Ochoa's procedural irregularity claims are Atkins claims and, furthermore, those claims are properly brought in a second or successive habeas petition under the provisions of § 2244(b)(2)(A).

b. Merits

i. Jail Attire at Trial

Ochoa asserts he was denied his right to a fundamentally fair proceeding when he was forced to attend his mental retardation trial in prison garb. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The very basic problem with this claim of error, however, is the OCCA specifically found Ochoa chose to attend the trial in prison attire. Ochoa, 136 P.3d at 667 ("[T]he record shows Ochoa's decision to appear before the jury in jail dress was his own. He was compelled by no one but himself."). The OCCA's finding of fact is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1). In any event, the record fully supports the OCCA's finding. Before jurors were present in the courtroom, Ochoa's counsel indicated she wanted to make a record about Ochoa's refusal to change out of his jail uniform. She then stated as follows: "We're on the record. Mr. Ochoa has chosen not to dress out and he's in orange. I don't believe he's cuffed, but I believe he's in his jail uniform and he chooses to do so." The trial court then allowed Ochoa to address the court; Ochoa complained about his counsel's failure to call certain witnesses, but did not address the prison-garb issue.

Ochoa does not contest this sequence of events. Instead, he asserts the trial court did not "flesh out" the issue of his refusal to dress out and that it is possible his conduct was an act of defiance against trial counsel. The problem for Ochoa, however, is that even assuming his suppositions are true, they do not bear on the question whether the decision of the OCCA was contrary to or an unreasonable interpretation of Estelle. 28 U.S.C. § 2254(d)(1). The Court in Estelle made absolutely clear that the absence of an objection in the trial record to being forced to wear prison garb "negate[s] the presence of compulsion necessary to establish a constitutional violation." 425 U.S. at 512-13, 96 S.Ct. 1691. Thus, the OCCA's conclusion that the Due Process Clause was not implicated by Ochoa's decision to proceed to trial in prison garb is entirely consistent with Estelle.

ii. Evidence of Prior Criminal Convictions

Ochoa asserts he was denied a fundamentally fair mental retardation trial when the jury learned he had been convicted of a crime. In particular, he asserts information regarding the fact of his conviction is entirely irrelevant to the question of his mental retardation and the admission of that information is at odds with Oklahoma law.13 The OCCA rejected this claim on the merits, concluding the very limited nature of the information conveyed to the jury (i.e., the mere fact Ochoa had been convicted of some type of crime) was consistent with Oklahoma law and did not prejudice Ochoa. Ochoa, 136 P.3d at 667 (cataloging limited evidence before jury and concluding such evidence "does not create the prejudicial effect Lambert sought to avoid").

On appeal, Ochoa reasserts that the provision to the jury of this irrelevant and prejudicial evidence rendered his trial fundamentally unfair. In response, Oklahoma asserts this is solely a matter of state law and, therefore, not a proper subject for habeas relief. Oklahoma is correct in arguing "Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights." Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999). Thus, even assuming the admission of this evidence was inconsistent with state law, a proposition the OCCA conclusively rejected, that fact alone would not entitled Ochoa to habeas relief.

Nevertheless, when a state court admits evidence that is "so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). That is true without regard to whether the evidence was properly admitted pursuant to state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Oklahoma is correct, however, in asserting the limited criminal background evidence at issue in this case was not so unduly prejudicial as to render Ochoa's mental retardation trial fundamentally unfair. This court has examined the entire transcript of Ochoa's mental retardation trial and concludes there is simply nothing in the limited information conveyed to the jury about Ochoa's background that suggested to the jury it should decide the case on any basis other than the facts adduced at trial and the law as set out in the trial court's instructions. Furthermore, given that Ochoa insisted on attending trial in prison garb, any potential for prejudice flowing from the provision of the background evidence as to Ochoa's status as a convicted criminal is de minimis. Because the evidence at issue here did not render Ochoa's trial fundamentally unfair, the district court properly denied Ochoa's request for habeas relief.

iii. Shock Sleeve

Ochoa contends he was denied a fundamentally fair mental retardation proceeding because he was forced to wear a shock sleeve during trial. In support of this assertion, Ochoa relies on the Supreme Court's decision in Deck v. Missouri, which held that "the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is justified by an essential state interest—such as the interest in courtroom security—specific to the defendant on trial." 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quotation omitted). The OCCA resolved this issue on the merits on direct appeal, concluding the trial court erred in requiring Ochoa to wear the shock sleeve but the error was harmless. Ochoa, 136 P.3d at 669-70. In so doing, the OCCA specifically concluded the procedural protections animating the Supreme Court's decision in Deck applied to Oklahoma's system of holding jury trials to determine the issue of mental retardation. Id. at 669.14 Nevertheless, the OCCA held Ochoa was not entitled to relief because (1) there was nothing in the record indicating the shock sleeve was visible to the jury and (2) Ochoa did "not claim the shock sleeve prevented him from physically or mentally assisting his counsel at the mental retardation hearing." Id. at 670.

The OCCA's resolution of this claim is neither contrary to nor an unreasonable application of Deck. As Deck makes clear, it is the potential impact on the jury of visible restraints that implicates the fundamental fairness of a jury trial proceeding. 544 U.S. passim, 125 S.Ct. 2007 (focusing on the use of "visible" restraints); see also United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir.2000) (refusing to presume prejudice where defendants were forced to wear stun belts at trial, but belts were not visible to jurors); United States v. Baker, 432 F.3d 1189, 1245-46 (11th Cir.2005) (concluding district court's failure to justify shackling was not an abuse of discretion where, among other things, shackles were not visible to jurors); Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir.2008) ("Deck's facts and holding . . . concerned only visible restraints at trial. The Supreme Court was careful to repeat this limitation throughout its opinion."). Ochoa does not challenge the OCCA's finding that the shock sleeve he was forced to wear during his mental retardation trial was not visible to the jury. Given that uncontested finding, which is in any event entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), the OCCA's resolution of this claim is clearly consistent with Deck.15

C. Cumulative Error

Ochoa asserts that even if the individual errors identified above do not entitle him to relief, the cumulative impact of those errors rendered his mental retardation trial fundamentally unfair. See Matthews v. Workman, 577 F.3d 1175, 1195 n. 10 (10th Cir.2009) ("In the federal habeas context, the only otherwise harmless errors that can be aggregated are federal constitutional errors, and such errors will suffice to permit relief under cumulative error doctrine only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness." (quotation omitted)). Here the only demonstrated federal constitutional error is the decision to force Ochoa to wear a shock sleeve at trial. For those reasons set out above, the OCCA's determination that this particular error was harmless is neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Because there are no additional constitutional errors to aggregate, Ochoa's cumulative error claim necessarily fails.

V. CONCLUSION

For those reasons set out above, the order of the United States District Court for the Western District of Oklahoma denying Ochoa's § 2254 habeas petition is hereby AFFIRMED.

HARTZ, Circuit Judge, concurring:

I am pleased to join Judge Murphy's fine opinion except for § IV(B)(2)(a)(ii), which states that Ochoa's procedural-irregularity claims are properly brought in a second-or-successive habeas petition because they are Atkins claims. In my view, they are proper habeas claims because they are timely and are not second or successive.

In our first opinion addressing Ochoa's death sentence, we held that his Atkins claim was a second-or-successive application but could proceed because it satisfied the stringent conditions for such applications set forth in 28 U.S.C. § 2244(b)(2). Although that holding was clearly correct, some language in the opinion is no longer good law. In particular, we said that "a request to add new claims after the district court has adjudicated a habeas action must be preceded by a motion to vacate under Rule 60(b) and that . . . § 2244(b) applies to the Rule 60(b) motion as if it were a stand-alone second or successive petition." Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir.2007). But an opinion by the United States Supreme Court two months later, Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), explained that some subsequent habeas claims are not "second or successive" within the meaning of § 2244.

In Panetti the prisoner had already pursued one round of claims under § 2254 through denial of certiorari by the Supreme Court. After his execution date was set, however, he pursued a second application under § 2254 contending that, under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), he was incompetent to be executed because of mental illness. The Court, recognizing that it "has declined to interpret `second or successive' as referring to all § 2254 applications filed second or successive in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application," id. at 944, 127 S.Ct. 2842, held that the second-or-successive constraint on applications "does not apply to a Ford claim brought in an application filed when the claim is first ripe," id. at 947, 127 S.Ct. 2842. As Panetti was recently described by its author, "[I]f the petitioner had no fair opportunity to raise the claim in the prior application, a subsequent application raising that claim is not `second or successive,' and § 2244(b)(2)'s bar does not apply[, such as] where the claim was not yet ripe at the time of the first petition." Magwood v. Patterson, ___ U.S. ___, 130 S.Ct. 2788, 2805, 177 L.Ed.2d 592 (2010) (Kennedy, J., dissenting). This view of Panetti has the endorsement of not only the three other justices who joined Justice Kennedy's dissent but also three justices who joined the majority opinion in Magwood. See 130 S.Ct. at 2803 (Breyer, J., concurring). A later example provided by Justice Kennedy in his dissent is close in point to our case. He wrote: "[I]f the petitioner raises a claim in his second habeas petition that could not have been raised in the earlier petition—perhaps because the error occurred for the first time during resentencing—then the application raising the claim is not `second or successive' and § 2244(b)(2)'s bar does not apply." Id. at 2806.

As I understand Supreme Court doctrine, Ochoa's procedural-irregularity challenge to the conduct of his Atkins trial is not a second-or-successive claim because there is no way it could have been raised in his original § 2254 application. That trial did not take place until his original application was on appeal to this court. And the procedural-irregularity claim is not time-barred because the one-year limitations period did not begin to run until his Atkins trial, see 28 U.S.C. § 2244(d)(1)(D) (limitations period cannot begin before "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence"), and the period was tolled during the state proceedings. This analysis is supported by the few circuit opinions that have applied Panetti. See, e.g., Stewart v. United States, 646 F.3d 856 (11th Cir.2011) (challenge to federal sentence raised after state convictions set aside); Leal Garcia v. Quarterman, 573 F.3d 214, 220-24 (5th Cir.2009) (habeas claim based on recent presidential declaration). It is important to recognize that Panetti does not suggest that Ochoa's Atkins claim is not second or successive; although the claim is based on a Supreme Court decision that postdated his original application, the issue could have been raised from the outset. See Leal Garcia, 573 F.3d at 221-22 (Panetti does not apply just because the claim relies on a new decision). (I should also note that Panetti suggests that claims by state prisoners challenging the execution of their sentences should be pursued under § 2254, rather than under 28 U.S.C. § 2241, as has been the rule in this circuit. See Magwood, 130 S.Ct. at 2805 (Kennedy, J., dissenting) (indicating that a state prisoner's challenge to failure to grant parole is an original application under § 2254); In re Jones, 652 F.3d 603 (6th Cir.2010) (similar).)

Consequently, Ochoa's procedural-irregularity claims are properly before this court. It is unnecessary for us to engage in analyzing whether those claims are, in the words of the majority opinion, "based on Atkins," a concept that eludes my grasp.