DEAN KILGORE v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA
No. 13-11825
United States Court of Appeals, Eleventh Circuit
November 16, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11825
________________________
D.C. Docket No. 8:11-cv-01329-EAK-TBM
DEAN KILGORE,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 16, 2015)
Bеfore ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Petitioner Dean Kilgore was serving a life sentence for first-degree murder, a consecutive life sentence for kidnapping, and an additional consecutive five-year sentence for armed trespass when he was convicted of capital murder and
I.
A.
These are the essential facts. Petitioner Dean Kilgore has been incarcerated most of his adult life. Kilgore v. State, 55 So. 3d 487, 493 (Fla. 2010). His entry into the Florida prison system began in 1970 when he was found guilty of, among other charges, three counts of aggravated assault with intent to kill. Id. He was released from custody on September 30, 1977. Id. On July 31, 1978, Kilgore broke into a woman’s home late at night while she, her boyfriend, and their children wеre there. Armed with a firearm, Kilgore shot the boyfriend to death in the presence of one of the children. Kilgore then kidnapped the woman and took her to an orange grove where he kept her for the rest of the night. After standing trial for these crimes in Florida’s Circuit Court in Polk County, Kilgore was convicted in December 1978 of first-degree murder, kidnapping, and armed
Kilgore had served approximately eleven years of this sentence at the Polk Correctional Institution when he killed Emerson Robert Jackson. Kilgore and Jackson were lovers who had fought about Jackson’s relationship with other inmates аnd the way Jackson would play his partners against each other. On February 13, 1989, Kilgore waited outside Jackson’s cell and smoked a cigarette with another inmate until Jackson came out. At that point, Kilgore and Jackson got into a verbal argument, they struggled, and Kilgore pulled out of his pocket a homemade shank knife that he had borrowed from another inmate. Kilgore stabbed Jackson three times: one small stab above the rib cage; a larger stab in the back that hit his shoulder blade; and the fatal wound, a stab to the front that penetrated his chest cavity, went through his left lung, and punctured his aorta.
After the stabbing, Kilgore reached into the shower from the hallway and grabbed a can he had stashed there earlier. From this can, Kilgore poured a strong-smelling, caustic substance onto Jackson’s face and neck, and tried unsuccessfully to light some matches. Jacksоn died as a result of the stab wounds. Kilgore went
Following Jackson’s death, Kilgore was indicted for first-degree murder and possession of contraband by an inmate. Kilgore, 55 So. 3d at 493. After a jury trial, Kilgore was found guilty on both counts and, by a vote of nine to three, the jury recommended that he be sentenced to death. Id. at 494. At sentencing, the trial court found that two aggravating circumstances were proven beyond a reasonable doubt: (1) Kilgore was under sentence of imprisonment at the time he committed the murder,
The Florida Supreme Court affirmed Kilgore’s conviction and death sentence on direct appeal, Kilgore, 688 So. 2d at 901, and the United States Supreme Court denied certiorari review, Kilgore v. Florida, 522 U.S. 832 (1997).
B.
Kilgore then moved collaterally for post-conviction relief under Florida Rule of Civil Procedure 3.850 in the Circuit Court of Polk County, Florida. The court conducted a five-day evidentiary hearing on June 13-17, 2005. Kilgore later amended his post-conviction application claiming that he was intellectually disabled and, therefore, he could not be executed. The court appointed Dr. Hyman
The defense presented the testimony of Dr. Eisenstein and Dr. Henry Dee, a neuropsychologist, along with the testimony of Capital Collateral Regional Counsel investigator Katrina McNish. As Dr. Eisenstein explained, the elements of an intellectual disability claim under Florida law are: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifested during the period from conception to age eighteen.2 As for the first prong of the intellectual disability test, the Wechsler Adult Intelligence Scale (“WAIS”) had been administered to Kilgore on six separate occasions, yielding full-scale IQ scores of 76 (Dr. William Kremper -- August 1989); 84 (Dr. P.V. Ciotola -- March 1990); 67 (Dr. Dee -- March 1994); 75 (Dr. Eisenstein -- August 2000); 74 (Dr. Dee -- October 2004); and 85 (Dr. Gamache -- May 2006). Dr. Eisenstein opined that the full-scale IQ scores of 74, 75, and 76 were likely most representative of Kilgore’s actual IQ. Based on these
As for the second prong of Florida’s test -- impaired “adaptive functioning” -- Dr. Eisenstein concluded that Kilgore met the criterion because, according to family members and acquaintances, as a child Kilgore interacted with younger children and was described as “stupid” and “slow”; his communication skills were deficient and he was unable to properly file prison grievances, even if instructions were given; he was “slow” academically, according to inmate Charlie Thompson; and he “required” others to provide for him. Eisenstein reported that Kilgore had worked picking cotton, picking oranges by hand, and dishwashing -- none of which required a high level of skill. He also averred that Kilgore’s 2004 Department of Corrections (“DOC”) records indicated that Kilgore was not “motivated” to practice walking with a prosthetic leg he had received and did not wear it. Eisenstein also opined that if Kilgore were not incarcerated, he would be unable to care for himself and, indeed, probably would not be alive. The neuropsychiatrist offered that it would not be useful to examine Kilgore’s current level of adaptive functioning because Kilgore was on death row where his environment was highly structured.
Dr. Dee, Kilgore’s neuropsychology expert, agreed with Eisenstein’s conclusion, although Dee advised the court that he had undertaken no additional
The State countered with the opinion of Dr. Gamache, who opined that Kilgore did not meet Florida’s definition for intellectual disability. As for the first prong, Dr. Gamache administered the WAIS-III test to Kilgore, who obtained a full-scale IQ score of 85. Dr. Gamache determined that these results accurately
As for Kilgore’s intellectual functioning before age eighteen, Dr. Gamache reported that Kilgore grew up in an impoverished background, without the kind of academic and intellectual stimulation that would be ideal in facilitating school achievement and in maximizing one’s intelligence. Kilgore told Dr. Gamache that he had come from a large family, his parents had remained together until he was about five, and he alsо lived with an aunt. Kilgore also admitted to Gamache that he had begun to get into trouble around the age of twelve, and was sent to the
As for Kilgore’s adaptive functioning, Gamache noted that Kilgore got out of the reform school around 1965 and went to prison as an adult in 1970. Between 1965 and 1970, Kilgore lived with his mother and step-father in Lakeland, Florida, for part of that time, and he also lived with a female acquaintance and then on his own for part of the time. As a teenager, Kilgore worked for a woman who was a palm reader -- Kilgore took care of her home and office, tended the grounds, and passed out promotional cards around town. Although Kilgore operated a vehicle, he never tried to get a driver’s license.
When Dr. Gamache asked Kilgore about his adult employment, Kilgore explained that he’d been locked up for most of his adult life; therefore, his adult vocational activities were in an institutional setting. Kilgore said he worked at the license tag factory, twice for extended periods of time, and he’d also done custodial work and kitchen work at the prison. Kilgore also said that he had taught himself to read and write by repeatedly going through comic books and magazines available at the Department of Corrections. Dr. Gamache thought this was significant since it showed that Kilgore was motivated and “creative” and made “use of the resources that he had available to him to try and improve his abilities.”
C.
The state trial judge ultimately issued a 110-page final order on December 3, 2008, denying Kilgore’s post-conviction motion in its entirety. In discussing the intellectual disability claim, the court first noted that “under Florida law, one of the criteria to determine if a person is [intellectually disabled] is that he or she has an IQ of 70 or below.” The court observed that of the six IQ tests that Kilgore had taken, “the only full scale IQ score which meets Florida’s [intellectual disability]
The state trial court concluded that without the IQ score of 67, whether measured by a preponderance of the evidence or under a clear and convincing evidence standard, the petitioner did not meet Florida’s requirements for finding significantly subaverage general intellectual functioning. The court also said that because Kilgore did not show subaverage general intellectual functioning, it would not consider the other two prongs of Florida’s intellectual disability test. See
Kilgore appealed to the Florida Supreme Court, which denied all relief on November 18, 2010. The Florida Supreme Court began its analysis of Kilgore’s intellectual disаbility claim by recognizing that the United States Supreme Court
D.
After the Florida Supreme Court denied Kilgore’s motion for rehearing and issued its mandate, Kilgore commenced this federal habeas petition, pursuant to
In rejecting Kilgore’s intellectual disability claim, the district court concluded that the Florida Supreme Court’s decision -- imposing a cut-off IQ score of 70 -- was neither contrary to, nor an unreasonable application of controlling Supreme Court law. Among other things, the court found no merit to Kilgore’s charge that Atkins required the states to impose an IQ cutoff of 75. Citing Atkins, the district court explained that the Supreme Court expressly had left to the states the determination of who should be classified as intellectually disabled. Because of this explicit delegation in Atkins, the district court determined that the Florida Supreme Court’s decision did not run afoul of Supreme Court law.
After the district court denied Kilgore’s petition, the United States Supreme Court ruled differently in Hall v. Florida, 572 U.S. ––––, 134 S. Ct. 1986 (2014). Hall held that “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error [±5], the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 2001. Hall explained that a state’s assessment of a defendant’s intellectual disability should focus on whether he has evidenced, beginning “during the developmental period,” both (1) “significantly subaverage
In light of this intervening decision, we granted Kilgore a certificate of appealability to address whether “the Florida Supreme Court’s refusal to grant Kilgore relief on the basis of [intellectual disability] violated the Cruel and Unusual Punishment Clause of the Eighth Amendment, applied to the States through the Fourteenth Amendment.” This timely appeal followed.
II.
A.
We review de novo the district court’s denial of a
B.
We address today one issue -- Kilgore’s argument that the Florida Supreme Court unreasonably applied clearly established Supreme Court law when it upheld the imposition of the death penalty despite his claim of intellectual disability. First, he argues that the Florida Supreme Court’s decision violated clearly established Supreme Court law embodied in Hall v. Florida, 134 S. Ct. at 2001. Kilgore says that because the Florida Supreme Court imposed a bright-line IQ cutoff of 70 in his case, it violated Hall. Second, the petitioner argues that if Hall was not clearly established Suprеme Court law at the time the Florida Supreme Court denied him relief, then Hall should be applied retroactively. Finally, he
We begin with this first principle: under § 2254(d)(1) of AEDPA, we must uphold a state court decision unless it is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
The Florida Supreme Court affirmed Kilgore’s convictions and sentences in 1996, and rejected Kilgore’s intellectual disability claim in 2010. As of 2010, the United States Supreme Court had not yet decided Hall. Because the Florida Supreme Court’s decisions in Kilgore’s case predated Hall, Hall’s holding was not “clearly established” for purposes of § 2254(d)(1) of AEDPA.
Kilgore claims that even if Hall was not “clearly established” in 2010, its holding merely “interpreted” or “refined” the “clearly established [Supreme Court] law” extant at the time of the Florida Supreme Court’s decision. At that time, Atkins set forth the “clearly established [Supreme Court] law” concerning intellectual disability. See Hill v. Humphrey, 662 F.3d 1335, 1337 (11th Cir. 2011) (en banc) (applying “clearly established federal law, as announced in Atkins” to a 2003 state post-conviction decision); see also In re Holladay, 331 F.3d 1169, 1172 (11th Cir. 2003) (holding that Atkins applied retroactively on federal habeas review, no matter when the sentence was imposed). However, if Hall “interpreted” or “refined” Atkins, that does not mean its holding was “clearly established Federal law” under § 2254(d)(1). As we’ve said, “[t]he Supreme Court has repeatedly held that only the actual holdings of its decisions can ‘clearly
Hall’s holding was not clearly established by Atkins. Atkins held that the execution of intellectually disabled offenders is categorically prohibited by the Eighth Amendment. Notably, Atkins did not define intellectual disability, nor did it direct the states on how to define intellectual disability, nor, finally, did it provide the range of IQ scores that could be indicative of intellectual disability. Rather, Atkins expressly left it to the states to develop “appropriate ways to enforce the constitutional restriction” on executing the intellectually disabled. See Atkins, 536 U.S. at 317 (citation and quotation omitted). Or as the Supreme Court put it in Bobby v. Bies, “[Atkins] did not provide definitive procedural or substantive guides for determining when a person who claims [intellectual disability] ‘will be so impaired as to fall [within Atkins’s compass].’” 556 U.S. 825, 831 (2009); see also Hill, 662 F.3d at 1338 (“Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is [intellectually disabled].” Maldonado.).
Hall, however, changed course by requiring the states to recognize a margin of error of five points above or below an IQ score of 70 in assessing intellectual disability. As we’ve previously observed, “[f]or the first time in Hall, the Supreme Court imposed a new obligation on the states not dictated by Atkins because Hall
Even Hall itself expressly acknowledged that its holding was taking the Supreme Court’s prior precedents “further” and that the Court was using its “independent judgment” to declare the Florida statute unconstitutional. See Hall, 134 S. Ct. at 1999-2000 (“[T]he precedents of this Court ‘give us essential instruction,’ . . . but the inquiry must go further. . . . In this Court’s independent judgment, the Florida statute, as interpreted by its courts, is unconstitutional.”).
Moreover, Justice Alito’s dissenting opinion (joined by Chief Justice Roberts, Justice Scalia, and Justice Thomas) observed that the Hall majority “sharply depart[ed] from the framework prescribed in prior Eighth Amendment cases,” id. at 2002 (Alito, J., dissenting); that Hall “mark[ed] a new and most unwise turn in our Eighth Amendment case law,” id.; and that Hall relied on “the standards of professional аssociations,” unlike “our modern Eighth Amendment cases,” which relied on “our society’s standards,” id. at 2005.
Indeed, in Beard v. Banks, 542 U.S. 406, 416 (2004), the Supreme Court observed that it may rely on a dissenting opinion to determine whether the holding
The long and short of it is that the Florida Supreme Court was tasked with applying Atkins to Kilgore’s case. Florida’s high court properly recognized Atkins as the controlling law, and did not unreasonably apply it. As the Supreme Court has made abundantly clear, whether a state court “unreasonably applies” clearly established Supreme Court law depends “not [on] whether a federal court believes
Atkins expressly left it to the states to develop “appropriate ways to enforce the constitutional restriction” on executing the intellectually disabled. See Atkins, 536 U.S. at 317 (citation and quotation omitted). In rejеcting Kilgore’s claim, the Florida Supreme Court relied on its prior precedent, which repeatedly had held that the firm IQ-of-70 cutoff used in its intellectually disability test did not violate Atkins. See, e.g., Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009); Cherry v. State, 959 So. 2d 702, 711-14 (Fla. 2007) (per curiam). Nothing in Atkins suggested that a bright-line IQ cutoff of 70 ran afoul of the prohibition on executing the intellectually disabled. Thus, the Florida Supreme Court did not unreasonably apply Atkins’s ban on the execution of the intellectually disabled by setting a bright-line IQ cutoff at 70.
C.
Our inquiry does not end there because Kilgore argues that even if Hall was not clearly established Supreme Court law at the time the Florida Supreme Court ruled, Hall should be applied retroactively to his case. In Williams, Justice
Under Teague, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301. If that requirement has been met, there are two exceptions to Teague’s bar on retroactivity: (1) new rules that place an entire category of primary conduct
In the application of Teague, we first ask whether Hall announced a new rule of law, or whether it was “dictated” by existing precedent at the time the Florida Supreme Court ruled. See Graham v. Collins, 506 U.S. 461, 467 (1993) (“A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’”) (quoting Teague, 489 U.S. at 301); Butler v. McKellar, 494 U.S. 407, 415 (1990) (“[T]he fact that a court says that its decision is within the ‘logical
Since Hall’s holding undeniably is “new,” we turn to Kilgore’s claim that it meets the first Teague exception -- that it prohibits the imposition of a certain type of punishment for a class of defendants because of their status or offense.
Applying this exception, the Supreme Court has said that a rule prohibiting “the execution of [intellectually disabled] persons . . . would be applicable to defendants on collateral review” because “a new rule placing a certain class of individuals beyond the State’s power to punish by death is analogous to a new rule placing certain conduct beyond the State’s power to punish at all.” Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Thus, when Atkins later held that “an exclusion for the
But the same result does not hold true for Hall, which merely provides new procedures for ensuring that states follow the rule enunciated in Atkins. As we held in In re Henry, Hall did not expand the class of individuals protected by Atkins’s prohibition. In re Henry, 757 F.3d at 1161. Rather, Hall created a procedural requirement that those with IQ test scores within the test’s standard of error would have the opportunity to otherwise show intellectual disability. Hall guaranteed only a chance to present evidence, not ultimate relief. Therefore, as we recognized in In re Henry, Penry in no way dictated that the rule announced in Hall is retroactive to cases on collateral review. See id.
Nor did Hall, as the petitioner recognizes, announce a “watershed” rule under Teague’s second exception. “To fall within this exception, a new rule must meet two requirements: Infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction, and the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Tyler v. Cain, 533 U.S. 656, 665 (2001) (quotation and emphasis
Kilgore attempts to distinguish In re Henry in order to avoid its unambiguous holdings about nonretroactivity. We remain unpersuaded. There is no denying that In re Henry arose in the context of a “second or successive” application for habeas relief,
Nor does it matter that Henry’s IQ allegedly may have been 78, which, says Kilgore, put Henry outside the protection of Hall. To begin with, In re Henry’s ruling on retroactivity in no way hinged on Henry’s IQ. Rather, we addressed the retroaсtivity issue first, and, only after having decided the statutory question of retroactivity did we hold that Henry had not met the other prudential requirement we established in the case law -- that “there is a reasonable likelihood” he is entitled to relief under the new rule, In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). See In re Henry, 757 F.3d at 1161 (Henry’s “problem is compounded, . . . because even if the Supreme Court had made the rule announced in Hall retroactive to cases on collateral review -- and it has not done so -- we still could not authorize the filing of a second or successive habeas petition because Henry has not made a ‘sufficient showing of possible merit to warrant a further exploration by the district court.’”) (citation omitted). We arranged the analysis in
Moreover, even if we were to say that this was an alternative holding, alternative holdings are binding precedent. Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008) (“[I]n this circuit additional or alternative holdings are not dicta, but instead are as binding as solitary holdings.”); see also Massachusetts v. United States, 333 U.S. 611, 623 (1948) (explaining that where a decision “rested as much upon the one determination as the other . . . the adjudication is effective for both”). This means that if our ruling on the merits of Henry’s claim was on equal footing with our ruling on retroactivity, both rulings are of equal import, and both bind us today. Plainly, nothing meaningfully distinguishes In re Henry from this case, nor otherwise convinces us that Hall can be applied retroactively.
D.
Finally, even if we were writing on a blank slate, unencumbered by the command of
Justice O’Connor, writing for a plurality in Teague, concluded that habeas does not exist just to serve some “perceived need to assure that an individual accused of a crime is afforded a trial free of cоnstitutional error,” id. at 308 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 447 (1986)); instead, weighty “interests of comity and finality” persuaded the Court that new rules governing criminal prosecutions should not be applied retroactively on collateral review to cases that are already final, id. These considerations apply here. In Hall, the United States Supreme Court no longer took a hands-off approach to the states’ intellectual disability definitions. To retroactively apply this kind of new procedural rule to the final determination of a state court appeal would impose the very uncertainty and costs on the states that Teague warned against -- discouraging the states from rigorously developing and following their intellectual disability law, decreasing the importance of finality and its effect on deterrence given the ever-changing nature of our understanding of intellectual disability, and
III.
In short, Kilgore has failed to establish that the Florida Supreme Court’s decision was either contrary to, or an unreasonable application of, clearly established Supreme Court law, as it existed at the time the state court rendered its decision. He has also failed to convince us that we should apply retroactively the Supreme Court’s recent decision in Hall. We, therefore, affirm the denial of Kilgore’s petition for habeas relief.
AFFIRMED.