In Re Hawthorne

Opinion

BROWN, J.

Petitioner Anderson Hawthorne, Jr., is under a judgment of death. He challenges his sentence as cruel and unusual punishment based on allegations he is mentally retarded. Under the authority of Penry v. Lynaugh (1989) 492 U.S. 302 [106 L.Ed.2d 256, 109 S.Ct. 2934], we denied three previous petitions for writ of habeas corpus raising this same claim. Subsequently, however, the United States Supreme Court overruled Penry and held that execution of the mentally retarded violates the Eighth Amendment. *44(Atkins v. Virginia (2002) 536 U.S. 304, 321 [153 L.Ed.2d 335, 122 S.Ct. 2242]…