Green v. Johnson

defendants United States v. The American Association on Intellectu- true of Khan, (4th Cir.2006). Developmental Disabilities; 461 F.3d al and Here, contrast, States; Boynes whether volun- The Arc of the United Arc Virginia, Supporting tarily right jury Appel- waived to a is at Amici his inquiry. heart of the lant. No. 07-9. majority correctly notes Boynes post- could have testified at the of Appeals, United States Court he, it hearing, conviction but had would Fourth Circuit. assessing weight

have come down to Argued: Nov. 2007. testimony. his Whether one has waived right jury important his to a is too to be Decided: Feb. credibility judgment.

left to a Accepting signed by

waiver defense counsel is insuffi- satisfy knowing, intelligent,

cient to voluntary requirement, especially in

light of the clear adversarial nature of

Boynes’s relationship with attorney,

(see 49.) 46, 47, 48, J.A. The district court Boynes

should have determined that had

expressly right jury prior waived his to a

to conducting the bench trial. Because the

district court did not make this determina- prior trial,

tion conducting the bench

Boynes faced the Herculean challenge at a

post-conviction hearing of convincing the

judge who had earlier found him not credi- beyond

ble a reasonable doubt that he did right

not waive jury. to a Such an

exceptional burden should never attend

the defendant’s fundamental right to a

jury. GREEN,

Kevin Petitioner-Appellant, JOHNSON, M.

Gene Director of the

Virginia Department of Correc-

tions, Respondent-Appellee. Brace,

ARGUED: Virginia Michele Jill Capital Representation Center, Resource Charlottesville, Virginia, Appellant. for Matthew P. Dullaghan, Senior Assistant General, Attorney Attorney Office of the General, Richmond, Virginia, Appellee. for ON BRIEF: Timothy Richardson, M. Huff, P.C., Mahoney, Poole & Beach, Virginia, Appellant. for Robert F. McDonnell, General, Attorney Jerry P. Slonakеr, Attorney Senior Assistant Gen- eral, General, Attorney Office of the Rich- mond, Virginia, Appellee. for James W. Ellis, Bay, Homer, Norman C. K. Steven Land, April Suzuki, Carol M. Albuquerque, Friday its Appel- paid employees Mexico, company Amici Supporting New Consequently, Vaughan week. Mr. each lant. routinely Fridays went to a bank on WILKINSON, MOTZ, and Before currency payroll sufficient to cash obtain SHEDD, Judges. Circuit company employees. for the lumber checks And, Friday, did so on August he Judge by published opinion. Affirmed returning from Upon the bank on opinion, Judge in which wrote SHEDD $10,000 Friday, placed bag he in a bank joined. Judge MOTZ WILKINSON in a kept cabinet underneath the concurring in the opinion wrote $10,000 another elsewhere register, cash judgment. store, remaining and the cash in a safe. the OPINION day question, Vaughan in “On the as Mr. to eat starting lunch and to file was SHEDD, Judge: Circuit invoice, two men entered the store. Mr. inmate, Green, Virginia a capital Kevin recognized them the tal- Vaughan saw and оf his for a petition the denial writ appeals Green, the two men Kevin the ler of corpus. The district habeas for the defendant. had worked appealability a certificate of granted Green eight company approximately lumber (“COA”) (1) he is issues: whether on two during spring, preceding ten weeks the so his sentence mentally retarded frequented Vaughans’ grocery had the and under Amend- Eighth the unconstitutional lunchtime, work, at and on store after Virginia, interpreted Atkins v. in ment as payroll to cash his checks. Fridays L.Ed.2d 122 S.Ct. 536 U.S. store, two men entered “When (2002), coun- his trial and whether had to the door Vaughan Mrs. her back by fail- ineffective sel rendered assistance Mr. standing five feet from and was or six convictions non-capital his ing to man Thinking that the shorter Vaughan. denying two first of his trials. after the box,’ Mr. going over the ‘drink was relief, court concluded the district filing. turned finish his Vaughan around to mentally re- prove failed to he is scream, so, he his wife As he did heard that his law and tarded ‘Oh, trial, Vaughan At Mr. described God.’ claim is assistance of counsel ineffective heard: he then what 2244(d). For untimely under U.S.C. reasons, following affirm. we and I bangs. Bang, bang It was four hit, I didn’t I was

was hit. know where I complete hurt. I a I was turned but floor, down and fell on sit [sic] turn a the facts summary begin We my right my right foot broke on crimes, as underlying to the pertaining time I went And about ankle. [the] Virgi- by the Court articulated a down, up it was I looked and I realized nia: him, fired. gun being I could see victim, Vaughan, Patricia L. “The fourth my wife with the shot toward husband, Vaughan, T. her Lawrence in it. pistol a I saw hand with shot. store operated grocery small owned target holding like he was [it] He was County. part of their Brunswick As practicing. reg- operation, Vaughans grocery store Green, after Vaughan sev- testified that employees checks for “Mr. ularly cashed shots, businesses, back to the four nearby including firing a lumber walked eral door and stood there ‘as a lookout’ only while her back. This was the non-lеthal the other man came around behind the wound. The fourth bullet entered the open regis- counter and tried to the cash right Vaughan’s side of Mrs. back and ter. the drawer regis- When cash penetrated right two lobes of her lung. jammed, ter Green directed the shorter According to the forensic pathologist who man to look under the Upon counter. performed Abrenio, the autopsy, Dr. Jose so, doing bag he found the bank containing this wound caused hemorrhaging her $9,000 approximately in cash and Mr. thoracic cavity, difficulty which led to Vaughan’s pistol, which he then used to breathing and had the effect of suffocating through key shoot hole in the cash her. Dr. Abrenio opined also that Mrs. register Taking drawer. the bank bag and Vaughan survived ‘seconds to minutes’ af- pistol, the shorter man exited the ter she was first shot. store, but Green walked a steps few over days murder, “Four after the a warrant Vaughan lying to where Mrs. on the Green, residence, was issued tо search pointed gun floor and again. her During and automobile. the search of his According Vaughan, to Mr. gun mis- home, six bullets were retrieved from the fired, ejected and Green cartridge live trunk of a in yard. tree his The bullets onto the floor. Green then fired two more were found behind a ‘makeshift target’ in shots the direction of Vaughan. Mrs. hanging on the tree. testing Forensic on head, Lowering Vaughan Mr. heard the those six bullets and the four bullets recov- time, gun ‘snap’ one more but he did not Vaughan’s body ered from Mrs. during the know whether Green was pointing gun the autopsy revealed that all ten ‘caliber 25 then, at him or his Only wife. when the full jacketed Auto metal bullets’ had been gun empty* was did Green leave the store. fired weapon. from one About 35 to 50 left, “After Green Mr. Vaughan dragged tree, feet from the empty 25-caliber approximately himself five feet across the cartridge casings were also recovered. floor of the store to a teleрhone and dialed number, the emergency ’911’ but he was arrested, “After Green was he executed too weak to reach his wife who was still waiving form rights his Miranda and lying on the floor. One of the police first agreed to questioned by be law enforce officers to arrive at the scene testified that ment officers. During interrogation, ‘puddles just he observed pouring of blood cousin, Green admitted that he and his nose, out of Vaughan’s] mouth, [Mrs. her Green, David Vaughans’ gro robbed the [and] her head.’ A local volunteer medical cery store and that he selected their store examiner determined that Vaughan Mrs. Vaughans because he knew the kept a lot had died at the scene shooting. of the money of there. Green and his cousin had originally planned “A to wear subsequent masks to con autopsy of Mrs. However, ceal Vaughan’s their faces. body they revealed that she discarded sus- gunshot ‍​‌‌​‌‌‌​​​​​‌​​‌‌‌​​‌‌​‌​​‌​‌‌​​‌​​‌‌‌​‌​‌​​‌‌​​‍they tained four the masks after had to wounds. One bullet wait behind penetrated the store in head, the left side their of her automobile for about an passed hour through temporal the because other people and frontal were in the brain, lobes of her lodged grocery store. the inner Green also admitted that frontal sinus of her face. he shot both Vaughans, Another bullet hitting Mrs. entered right the Vaughan side of her four chest and times.” Green v. Common went into the upper right wealth, 81, lobe of lung. her 266 Va. 580 S.E.2d (2003) (“Green A third penetrated bullet ”). the left of side v. Commonwealth II ing non-capital II convictions and sen- trial, he received at the first tences was convicted In June jury presented during to the the sentenc- Vaughan during murder of Mrs. capital ing January of the retrial. In phase robbery; and of the the commission judge the trial sentenced Green accord robbery, malicious non-capital crimes jury’s recommendation. June three Vaughan, of Mr. wounding Supreme Virginia Court of af- illegal use of firearm. counts capital firmed Green’s at death for murder conviction jury punishment fixed Green’s conviction; impris- life capital murder death sentence. See Green v. Com- conviction; robbery for the II. appeal, onment monwealth Pertinent to this the malicious years imprisonment pre- court summarized evidence conviction; years im- wounding and three during penalty phase sented of Green’s convic- for each of the firearms prisonment trial: second judge the trial tions. On October jury heard from Dr. also evidence jury’s in accord with the sentenced Green Sautter, an expert neuropsy- Scott W. appealed trial counsel

verdict. Green’s I.Q. chology who had tested Green’s murder conviction and death sen- capital separate using two occasions two differ- non-capital but not his convictions. tence tests, in- ent abbreviated “Wechsler Court of In June telligence scale” and the “Wechsler capital reversed Green’s murder [Ajdult [Sjcale [Intelligence [RJevised.” sentence, holding that and death conviction that, Dr. Sautter testified while the for- judge trial abused his discretion similar, mats of the two tests are jurors refusing potential remove two exactly “two tests are not the same.” their lack of from the venire based on Dr. that had a reported Sautter Green v. impartiality. See Green Common I.Q. full-scale score of 74 on the Wech- (2001) wealth, 105, 262 546 S.E.2d 446 Va. Intelligence sler Adult Scale and a score (“Green I”). The su v. Commonwealth of 55 the “abbreviated” test.... juror that one had preme court concluded for psychologists Two clinical testified opinion punish a fixed about the formed in to Dr. the Commonwealth rebuttal should receive if ment Green convicted murder, testimony. Lynda Dr. J. juror and the other Sautter’s capital Hyatt I.Q. that had an opinion reported had formed a fixed about case Green Although this pretrial publicity. based on the “Ammons & Ammons score of 84 on a new trial on the test,” decision necessitated in quick placed which Green charge, it did not affect capital murder func- category average” of “low mental convic unappealed non-capital Green’s tioning. Pasquale Dr. Thomas A. evalu- (“Green ap tions. id. at 447 did not See personality ated as well as his Green’s non-capital his convictions. There peal Pasquale functioning. intellectual Dr. fore, those convictions are not before this dependen- alcohol diagnosed depression, by opin are not affected this Court and abuse, cy, drug personality anti-social ion.”). disorder, According to malingering. I.Q. had a full-scale Pasquale, Dr. Green in retrial occurred the latter Adult Intel- score of on Wechsler 2001, part jury again and a convicted Scale, him “bor- placing in the ligence capital during him of murder the commis- function- of intellectual range” derline robbery punishment and fixed his sion of record, ing. criminal includ- at death. Green’s (alterations Warden, supreme The origi- v. at 2-3. at 839-40 Green

580 S.E.2d nal). 2004, prove failed to 23, court also held February Supreme On claim was not “frivolous” his Atkins States denied Green’s Court United 8.01-654.2, purposes Virginia Code a writ of certiorari. See Green for petition for supreme court provides which 540 U.S. S.Ct. Virginia, v. (2004). consider a claim of mental retarda- shall 158 L.Ed.2d 107 tion filed under the statute and “if it deter- represented the same frivolous, it mines that the claim is not for both of his trials and direct counsel to the circuit court shall remand claim However, on June appeals. retardation; of mental determination appointed repre- new counsel to Green was otherwise, petition.” shall dismiss the [it] petition, sent him on his state habeas explained: The 22, 2004. In that April which was filed mental re- alia, legislature has defined asserted, inter petition, Green (1) tardаtion as: claims now us: he is mental- two before and, therefore, ly retarded sentence disability, originating before [A] as inter- Eighth violates the Amendment age years, characterized concur- Atkins, (I) preted in his trial counsel rently by significantly subaverage in- by failing rendered ineffective assistance functioning tellectual as demonstrated non-capital convictions after by performance on a standardized meas- trial. his first functioning of intellectual ure adminis- conformity accepted pro- tered in February On practice, fessional is at least two Court of dismissed Green’s state standard deviations below the mean and petition. habeas See Green Warden of (ii) significant adaptive limitations be- (Va. Prison, Sussex I No. 040932 State expressed conceptual, havior as social 2005) (“Green ”). Feb. v. Warden practical adaptive skills. supreme court held that Green’s ineffec 19.2-264.3:1.1(A). Code untimely tive assistance claim was previously This Court has held that the state law: ceiling for a re- classification of mental challenging Petitioner his counsel’s I.Q. tardation is an of 70. The score non-capital to appeal failure his convic- record that Green adminis- shows was 30, that final on tions became October tered four standardized tests for meas- § The provisions 2000. of Code 8.01- uring functioning. intellectual Green petition 654 state that a for writ of scored an 84 on the Ammons & Ammons corpus habeas shall be filed within two test, quick a 74 on the Wechsler Adult years judgment from the of final in date Scale, Edition, Intelligence Third a 74 year the trial court or within one from Intelligence on the Wechsler Adult disposition ap- either final of the direct Scale, Revised, and below a 70 on the peal filing state court or the time for Intelligence Abbreviated Wechsler Adult appeal expired, such has whichever is scores, Scale. Based on these test Any challenges petitioner later. wished Green has failed to meet his burden of regarding appellate to make coun- proving that his claim of mental retarda- ‍​‌‌​‌‌‌​​​​​‌​​‌‌‌​​‌‌​‌​​‌​‌‌​​‌​​‌‌‌​‌​‌​​‌‌​​‍non-capital sel’s failure to tion is not frivolous. to later convictions needed be filed no (internal Warden, 30, 2002, years than October or two v. at from Green citation omitted). judgment petition the date of final in the trial thereafter filed a Green charges. court on which the court rehearing, those for Ill April 2005. comment denied without the States United Supreme The Court begin with Green’s Atkins claim. We a of certio- petition for writ denied affirm the dismissal of this claim on We case) on his state habeas (relating to rari separate grounds. two True, 546 v. 2005. See Green December 163 L.Ed.2d 636 126 S.Ct. U.S. A.

(2005). in Atkins that The Court held petition habeas filed his federal Green Eighth prohibits the Amendment the exe- Virginia De naming on December mentally cution of the retarded. M. Director Gene of Corrections partment legislative сoncluded that a national Court respondent. Johnson as the Johnson of mental- against consensus the execution and the case petition, to dismiss the moved it ly developed, retarded offenders had for the magistrate judge referred to identified two reasons consistent with that and recommendation. report of a issuance justify categorical to exclusion consensus evidentiary held an magistrate judge mentally retarded from execution: thorough report, hearing and issued a (1) justifications recognizing petition recommended which he (ie., penalty death retribution and deter- be and the motion to dismiss be denied rence) apply mentally do not to retarded Johnson, No. granted. See Green (2) offenders; capacity the diminished (E.D.Va. 2:05cv340, 2006 I”). mentally places retarded offenders them 2006) (“Green Dec.15, th v. Johnson Al wrongful at risk of execution. 536 greater magistrate judge made several ough 316-21, 2242. The Court U.S. S.Ct. subsidiary rulings in Green’s fа important there is noted that the extent serious “[t]o alia, concluded, vor, inter ultimately men- disagreement about the execution of (1) prove that he is failed to offenders, tally retarded it is determin- mentally retarded under Code in fact retarded.” ing which offenders are 19.2-264.3:1.1(A) ineffec and Green’s Continuing, Id. at S.Ct. untimely claim is tive assistance of counsel people all who “[n]ot Court observed 2244(d). parties Both under 28 U.S.C. mentally retarded will be so claim be objections report. one filed With range impaired as to fall within minor, exception, irrelevant district mentally retarded offenders about whom adopted recommendation consensus;” however, a national there is See v. John petition. dismissed the range, the defining Court instead son, 2:05cv340, 2007 WL 951686 No. “ ‘task of expressly left to the states 2007) (“Green (E.D.Va. Mar.26, v. Johnson ways to enforce developing appropriate II”). upon exe- [their] constitutional restriction a COA granted The distriсt court ” (quoting Id. Ford cution of sentences.’ of and ineffective assistance on his Atkins 399, 405, 106 S.Ct. Wainwright, 477 U.S. claims, although agrees counsel and (1986)). 2595, 91 L.Ed.2d 335 reasoning, court’s with much of the district Assembly respond- Virginia General ultimate dismissal of his challenges statutory by enacting a ed to Atkins Conversely, agrees Johnson with claims. claims, capital defendants’ scheme to determine ultimate of Green’s dismissal Pertinent claims of mental retardation. of the district disagrees but he with some case, Assembly mandated the General several this reasoning, presents and he court’s of has the burden capital that a defendant support their dismissal. alternate bases —on, —, —, proving by prepon- mental retardation S.E.2d 2007 WL (Va. 2007) (“This evidence, Mar.7, § at derance of the Va.Code 19.2- *15 264.3:1.1(0), it term “men- maxi previously defined the Court has held tally mum score for a of mental retarded” as: classification 70.”). I.Q. retardation score of Fur is disability, originating age before the

[A] thermore, 8.01-654.2, § purposes for of “a concurrently years, of 18 characterized criminal defendant who seeks to demon (I) significantly subaverage intellec- ... that his claim of mental strate retarda functioning by per- tual as demonstrated point tion is not frivolous must be able to on a formance standardized measure of support to credible evidence in the record functioning intellectual administered ing requirements set forth the statu conformity accepted professional Commonwealth, tory test.” Johnson v. practice, least two standard 591 S.E.2d at 59. (ii) signif- deviations below the mean and adaptive icant limitations in behavior as B. expressed conceptual, prac- social and adaptive tical skills. The district court dismissed merits, claim Green’s Atkins on the con 19.2-264.3:1.1(A). Moreover, Va.Code cluding although on a de novo review that persons such as Green who were sen- proof he met his burden of on the first April to death tenced before prong Virginia’s statutory of definition for yet completed who had not both their di- retardation, mental he failed to meet his proceeding, rect and state habeas proof prong. burden of on the second Assembly the General directed the state Johnson contends that the district court supreme court to consider a claim of men- should have deferred to the tal retardation and “if it determines that court’s decision 28 U.S.C. frivolous, the claim is not it shall remand 2254(d) (e) §§ and dismissed claim this the claim to circuit court for determi- conducting without a de novo review. We retardation; otherwise, nation of mental agree. petition.” shall dismiss the [it] Va.Code § 8.01-654.2. “The federal habeas statute dic

Interpreting statutory provi these state highly tates a deferential standard for sions, evaluating Court of has rulings, state-court which de person ‘mentally held that is not re “[a] mands that state-court given decisions be tarded,’ meaning within the required Codе the benefit of the doubt. The 19.2-264.3:1.1, person unless that encompasses meets deference both the state comprehensive legal definition of this statu court’s conclusions and its factual term,” tory findings.” Lewis v. Warden the Flu Lenz v. Washington, 444 F.3d — Center, (4th denied, Cir.2006), vanna Correctional 645 S.E.2d cert. (Va.2007), —, intelligence and that an U.S. 127 S.Ct. 165 L.Ed.2d 992 (internal quotient (“IQ”) quotation score 70 is the maximum marks and cita omitted). score for a classification of mental retarda tion “The ... question is not ‍​‌‌​‌‌‌​​​​​‌​​‌‌‌​​‌‌​‌​​‌​‌‌​​‌​​‌‌‌​‌​‌​​‌‌​​‍prong statutory tion under the first whether a federal court believes state definition, Commonwealth, Johnson v. 267 court’s determination was incorrect but 53, 47, (2004), Va. 591 S.E.2d 59 vacated on whether that determination was unreason 901, grounds, other 544 substantially higher U.S. 125 S.Ct. able-a threshold.” — 1589, (2005); U.S. —, 161 L.Ed.2d 270 see also v. Landrigan, Schriro 127 1933, (2007). 1939, Winston v. Warden Sussex I State Pris- S.Ct. 167 L.Ed.2d 836

299 Intelligence ministered the Wechsler Adult adjudicat- has Thus, the state court where (“WAIS-III”) merits, Scale, federal habeas test on the 3rd Edition a claim ed only Green, if the state apрropriate Hyatt, 74. Dr. who relief is who scored in a decision judgment witness, resulted court’s expert was also a Commonwealth to, involved an unrea- “contrary or that is Am- that she administered the testified of, clearly established application sonable Green, Quick Ammons Test to mons and law, by the Su- as determined Federal Both of these witnesses who scored 84. or States” of the United preme Court mentally retard- testified that Green is not determination on an unreasonable “based for a although possible and that it is ed pre- the evidence light facts in of the score, I.Q. a lower it is not person to fake proceeding.” court 28 in the State sented higher Dr. Saut- possible to fake score. 2254(d).1 § U.S.C. Green, ter, expert who was an witness for I.Q. that he administered two testified contrary is to the Su A decision scored 55 on the tests Green: Green clearly prece established preme Court’s Intelligence Scale of Wechsler Abbreviated a rule that applied if the state court dents (‘WASI”) and 74 on the Adult Wechsler forth in governing law set contradicts (“WAIS-R”). Intelligence Scale—Revised cases, or if it confronted set the Court’s that Additionally, Dr. Sautter testified materially indistinguishable that is of facts mentally retarded. Based on this a Green of the Court but reached from a decision evidence, supreme court concluded for Payton, v. 544 result. Brown different 1432, 141, 161 L.Ed.2d had purposes 125 8.01-654.2 Green U.S. S.Ct. (2005). un A constitutes an proving decision “failed to meet his burden of the Court’s clear application of is not frivo- reasonable his claim of mental retardation if the state court precedents Warden, ly established at 10. lous.” Green the facts precedents to applied the Court’s that the magistrate judge concluded manner. objectively unreasonable in an correctly identi “Virginia Supreme Court reviewing petition, a habeas federal Id. In controlling opinion fied Atkins as of a prеsume the correctness courts must Court, un Supreme but States United unless court’s factual determinations state Atkins to Green’s reasonably applied petitioner presump rebuts the habeas I, 2006 WL case.” v. Johnson Green convincing by clear and tion of correctness noting at *39. After 2254(e)(1). 28 U.S.C. evidence. and that 70 on the WASI had scored below Virginia adjudi- Supreme Court of is mental Dr. testified Sautter during claim cated Green’s Atkins retarded, judge ly —refer pre- The record proceeding. state habeas ring to v. Commonwealt h —ex Johnson included, in- sented to plained: alia, testimony from expert ter evi- pointed to credible Because Green concerning I.Q. Dr. criminal trials two set requirements supporting dence witness for Pasquale, expert who was § 19.2- Commonwealth, forth Code that he ad- testified denied, - U.S. -, (4th Cir.), S.Ct. cert. case we have considered 1. This is first (2006); involving an claim that Walton v. John Atkins 165 L.Ed.2d 992 banc), Virginia adjudicated. son, (4th Cir.) (en We have been Court of 440 F.3d - by Virgi- presented claims made -, with Atkins denied, 126 S.Ct. cert. U.S. cases, but those cases nia inmates in other True, (2006); Walker v. 165 L.Ed.2d 298 involved de novo federal consideration (4th Cir.2005). F.3d 315 True, F.3d 342 Hedrick v. merits. See scores) 264:3.1.1(A), I.Q. disputed. at are not are thus including the result of We IQone test that is two standard least question of whether the su- left with mean, expert testi- deviations below preme applied objec- court Atkins in an retarded, mentally and mony that he is tively unreasonable manner. significant evidence of limitations succinctly: court supreme Stated behavior, objectively it was un- adaptive I.Q. that found three of Green’s four test Virginia Supreme for the reasonable scores exceed the maximum score of to find claim of mental Court Green’s Atkins, to retardation be frivolous and evidence the state habeas record and this Court will address the merits of although that a can person established Green’s claim. score, I.Q. I.Q. higher fake a lower score 3746138, at *39. The district WL record, cannot faked.3 be Based on this agreed, stating court that the supreme we do not believe that the court “correctly that judge concluded the Su- applied objectively Atkins in an unreason preme Virginia unreasonably Court of held by manner it discrediting, implicit able that claim of petitioner’s mental retarda- did, ly (along score of 55 WASI frivolous, Mag- tion was which allowed the opinion) with Dr. then con Sautter’s Judge istrate to conduct a de novo review cluding under state law that Green failed II, of this claim.” Green v. Johnson present to sufficient sup credible evidence 951686,at *11.2 WL porting requirement in the first prong Applying by the standard mandated statutory the Commonwealth’s test for 2254(d), conclude that the supreme we Quar mental retardation. See Woods v. court’s decision is entitled to deference. (5th terman, 493 F.3d Cir. supreme correctly court applied At- 2007) (holding that where petitioner controlling preсedent, kins as the I.Q. had four scores above 70 and one Green did not present set of facts score below the state court was not materially indistinguishable from a United in concluding peti unreasonable that the Thus, States Court decision. prove tioner failed to that he suffered from supreme “contrary court’s is not decision subaverage functioning). intellectual For clearly to” established federal law. More- reason, over, this Green is not entitled to relief pertinent underlying facts identi- (i.e., supreme fied court Green’s under affirm we the dismissal seeking rehearing premised, part, on his state habeas claim on counsel's failure petition, argued evidence). for the first time that present Flynn to effect To the ex- I.Q. adjusted scores should be for various tent that we held in Walker that the district error, I.Q. including theories of measurement required Flynn court was to consider the ef- ("SEM”) the standard error of measurement remand, fect on de case involved novo Walton, "Flynn generally and the effect.” See consideration of the inmate’s Atkins claim. (discussing 440 F.3d at 177-78 these theo ries). comment, supreme Without the state recognize parties dispute 3. We rehearing petition. court denied the Al legitimacy relevance of some of these and/or though magis the district court held that the tests; however, appears judge properly Flynn trate considered the ef analysis. have considered all of them in its fect and the SEM de in its novo consideration although part We also note that it was not scores, I.Q. of Green's neither Atkins nor Vir record, the state habeas Green scored 71 on ginia appears require expressly law Intelligence the Wechsler Scale Chil- for these theories be accounted in determin ("WISC-R”) dren —Revised when was 13 ing mental retardation status. Winston Cf. , years old. — at -, S.E.2d *15 (rejecting ineffective assistance of counsel

301 judge conducted thе evi- magistrate the claim.4 of this dentiary hearing, we review the district C. findings, magis- rather than the court’s Monroe, judge’s recommendations. trate noted, court did not the district As case, at In these are In 323 F.3d 299. this decision. supreme court’s defer to the essentially a de one and the same because the stead, conducted district court adopted magistrate and Atkins claim district of Green’s novo review alia, findings and recommen- concluded, judge’s pertinent that he failed inter II, on the 2007 proof of second dation. See Green v. Johnson WL meet his burden (“After statutory reviewing definition of *11 the entire Virginia’s at prong of le., “sig ..., objections that he has examining all of the mental record retardation — as adaptive in behavior by respondent petitioner, nificant limitations and and filed prac social and conceptual, findings respect with expressed making de novo to, must skills.” Because Green no adaptive portions objеcted tical this court finds statutory Virginia’s of prongs Magistrate both in law or fact in the prove ‍​‌‌​‌‌‌​​​​​‌​​‌‌‌​​‌‌​‌​​‌​‌‌​​‌​​‌‌‌​‌​‌​​‌‌​​‍error in order analysis mental retardation of mental Judge’s thorough definition for [the retarded, claim].”). mentally that he is to establish retardation Lewis, at the district court 645 S.E.2d magistrate judge correctly recog- The affirm the dis this claim. We dismissed adaptive be- “[assessment nized claim on this Atkins missal multiple havior shall be based on sources as well.5 basis information, interview, clinical including educational, psychological testing and cor- considering district records,” rectional and vocational Va.Code on the sec de novo determination court’s 19.2-264.3:1.1(B)(2), and he utilized the legal conclusions we review its prong, ond of Mental Retarda- novo, F.3d American Association Angelone, de Monroe (“AAMR”) (4th measuring standards for Cir.2003), factual find tion’s and its magistrate judge set clearly adaptive skills. highly deferential ings under the 52(a) testimony expert pre- forth detail set forth Rule erroneous standard evidentiary Procedure, by both sides at the sented Rules of Civil of the Federal findings and Walton, Where, here, explained hearing 440 F.3d at 173. proving met burden of the first concurring colleague's that Green respect our 4. With view, judge statutory cor- prong Virginia's we believe that the district test for mental magistrate judge relevant, rectly con- retardation). stated that the extent that it is To Atkins a de novo review of Green's ducted our assessment on we note that Green shares above, claim. As set forth Petitioner-Appel- Reply point. See this Brief of supreme court's judge found the state first lant, ("Having found the frivolousness at 6 friv- that Green’s Atkins claim was conclusion unreasonable, court cor- district decision law to be unreasonable olous under state de novo rectly claim the accorded Green's magis- meaning §of 2254. The within the prior to AED- it would have merited review plead- judge decision on the trate based this PA."). presented ings than on the evidence rather hearing, during evidentiary and he then met that Green district court concluded evidence in the proceeded this to consider prong proof on the first his burden of See Green v. a de novo review. context of agree we statutory definition. Because I, at **37-39 Johnson on the sec- determination the district court's (holding supreme court's frivolous- dispositive, not we need prong, which is ond unreasonable) ness determination ruling de novo the district court’s address (discussing produced the evidence **39-49 prong. hearing holding the first during evidentiary respect guy” joke around; conclusions with to Green’s who liked to had I, (3) v. Johnson adaptive girlfriends; regularly employed skills. Green was briefly at **49-59. sum- regarded good employ- We and was often as a findings marize these and conclusions. a responsibility ee who showed level of beyond expected sig- someone with magistrate judge The noted that acсord- (4) limitations; displayed nificant personal AAMR, ing conceptual adaptive to the responsibility by for his financial needs pertaining language, skills involve skills to (5) profitably distributing drugs; and reading writing, money concepts, and and manipulative. magistrate judge The also self-direction, and he concluded that al- propensity considered Green’s for ignoring though suggested evidence law, and the but found rules “the extent to conceptual adaptive Green’s skills are be- which his behavior is attributable to his average, by prove low Green failed to intellectual deficits [to be] unclear.” Id. at preponderance of the that he evidence has *59. significant magistrate limitations. The judge based this determination evi- Finally, magistrate judge noted that (1) freely AAMR, dence Green had: conversed according practical adaptive to the being while interviewed and shared his daily skills involve activities relevant to opinion diagnosis about his mental health skills, living, occupational and maintenance understanding and his of the status of environment; his aof safe and he concluded (2) case; requested sophisticated books that Green failed to meet his burden of prison library from the completed and a proving significant limitations in these effectively form on which he explained a by a preponderance skills of the evidence. (3) prison mistake with the commissary; magistrate judge explained: displayed understanding money an con- portrayed Green’s evidence him as hav- by cepts handling money, his own having a ing mobility issues difficulty and dress- account, rent, savings paying his own en- ing appropriately, himself cleaning his orders, gaging money with transactions house, cooking and for himself. Much of profiting and from dealing drugs; and contested, this evidence was however. engaged by doing self-direction such instance, For it is uncontroverted license, things obtaining a driver’s con- acquire was able to a driver’s cealing much activity of his criminal from navigate public license and transporta- family, requesting and a copy of his Also, systems. tion Green’s mother and (which release of medical records is indica- sister, who both stated their declara- tive of independent participation in the tions that difficulty caring Green had case). direction Id. at *58. himself, previously testified at trial that he could Finally, care for himself. magistrate judge then noted that employment Green’s experiences in res- AAMR, according to the adaptive social taurants show that he was able to cook by skills are measured interpersonal skills telephone. and use the responsibility, self-esteem, and gullibility naivete, ability skills, follow rules and respect occupational With to his obey laws. The judge conclud- jobs Green showed that his various al- show, ed that Green was ways unable to required low-level skills and low preponderanсe evidence, significant education usually and that he was hired limitations in his adaptive social skills help family be- from and friends. He (1) although socially cause Green: awk- difficulty was also shown to have retain- ward, was nonetheless regarded “good ing jobs. as a employers, Three former how- average magistrate judge’s) consideration of the ever, as an described Green fact, thorough, its average employee. findings evidence was are above evidence, at one promotion amply supported by a merit-based received that does not job, accomplishment challenges to the district court’s in occupa- limitations suggest significant rulings Accordingly, are without merit. tional skills. we affirm the denial of Green’s Atkins claim for this reason as well. omitted). (internal citations Id.6 findings and conclu- light In of these IV sions, judge recommended Atkins claim. dis- turn to denial of Green’s We now Green’s ineffec recommendation, clаim, accepted court this trict tive assistance of counsel which is explaining: premised on his trial counsel’s failure to non-capital convictions after his that he dis-

Despite presenting evidence first trial. That trial concluded in October plays some adaptive limitations in be- 2000; petition § 2254 havior, average Green filed his including having below per- Accepting magis to December 2005. intelligence, struggling mental recommendation, activities, judge’s and exhibit- trate district form some basic behavior, petitioner has court held that this claim is time-barred ing anti-social demonstrate, 2244(d), § to within the three under 28 which estab failed U.S.C. behavior, adaptive one-year of limitation for an period subsets lishes significant § limitations. petition. agree suffers inmate to file We Judge thoroughly considered Magistrate with this conclusion.7 petitioner’s adaptive limitations of behavior, by expert testi- presented A. evidence, mony yet persuasivеly and 2244(d)(l)(A)-(D), § one-year Under correctly petitioner concluded that sim- begins to run from the period limitation limita- ply significant failed to establish potential starting dates: latest of several evidence, tions, part, of upon based (A) judgment which the be- the date on history, use of petitioner’s employment by final the conclusion of direct came understanding money con- language, expiration of the time for review or self-direction, relationships cepts, review; seeking such with others. (B) impediment on which the the date II, 951686, at v. Johnson Green 2007 WL by created State filing application an omitted) (internal (emphasis *12 citation or action in violation of the Constitution Having carefully considered the original). removed, if laws of the United States arguments and the district court’s parties’ filing from applicant prevented the aforementioned standard ruling under action; by such State review, in the district we find no error (C) Indeed, constitutional the date on which the findings and conclusions. court’s (and initially recognized right asserted was the district court’s we believe untimely habeas held it was for state magistrate judge did find that Green court 6. The II, presented evidence of limita- had uncontested v. Johnson review. Green maintaining a safe environment. disposition tions light our at **4-5. claim, opinion express we no on this of this rejected Preliminarily, the district ruling. aspect of the district court’s proce- argument that claim is Johnson’s this durally the state defaulted because Court, respect if filed with to his ineffec- Supreme right properly has tive assistance of counsel claim because newly recognized by been proeedurally that claim was defaulted. retroactively applicable Court and made II, v. 2007 WL at Green Johnson review; or to cases on collateral Alternatively, *6. the district court held (D) predi- the date on which the factual untimely that this claim is even with the prеsented cate of the claim or claims 2244(d)(2). tolling benefit through the could have been discovered II, 2007 WL Green Johnson diligence. exercise of due *6 n. 14. Although non-capital convictions Finally, the district court consid final on about November became or equitable whether is entitled to ered 2000,8 the district court found tolling. have held that 2244 allows We petition impediment filing faced “ in equitable tolling those ‘rare until June when the Common- stances where—due to circumstances ex appointed represent wealth new counsel to party’s ternal to the own conduct—it proceeding him in his state habeas —the would be unconscionable to enforce the impediment being ongoing repre- Green’s period against party limitation the allegedly ineffective trial sentation ” injustice gross would result.’ Rouse v. the court Accordingly, counsel. district (4th Cir.2003) (en Lee, 238, 339 F.3d 246 2244(d)(1)(B) § concluded under that banc) Hutchinson, (quoting Harris v. 209 starting period date for the limitation is (4th Cir.2000)). 325, 330 enti F.3d To be II, 26, June 2003. v. Johnson 2007 Green equitable tolling, petition tled to habeas 951686,at *6. (1) pursued er must show that he has The district court next considered rights diligently and some “extraordi whether, 2244(d)(2), one-year § nary prevented circumstance” him from period limitation must be tolled for filing timely in a manner. Lawrence v. 22, 2004, 29, 2005, period April April — Florida, —, 1079, 127 U.S. S.Ct. proceeding when Green’s state habeas was (2007).9 1085, 166 L.Ed.2d 924 The dis 2244(d)(2) pending. provides Section that trict court concluded that Green failed to the limitation period is tolled while “a requisite diligence establish the because properly post- filed application for State 26, elapsed ten months between June 2003 conviction or other collateral review with (when appointed), habeas counsel was respect the pertinent judgment or claim (when 22, April he filed his state pending.” is The district court determined II, petition). habeas Johnson statutory tolling period for this is 2007 WL at *7. 2244(d)(2) § inappropriаte permits because B. tolling only a “properly applica- when filed filed, tion” for state habeas relief We review the district court’s 2244(d) petition application Green’s state habeas was not de novo. Frasch v. Lawrence, denying petition, 8. In the state habeas 9. noted it Court has non-capital 2244(d) court stated that Green's "not decided whether allows for convictions became final on October equitable tolling,” applied but it nonetheless Warden, However, 2000. Green v. at 2. John- parties agreed the doctrine because the that it actually son asserts those convictions be- was available. 127 S.Ct. 1085. came final on November 2000. Brief Respondent-Appellee, pur- at 53 n. 18. For case, poses discrepancy of this is immate- rial. Cir.2005). (4th run, until December when Green 518, 521 414 F.3d Peguese, here, petition, are filed his federal habeas more Where, facts the relevant Thus, filed for federal days passed. district court denied and the undisputed law, relief on his ineffective assistance we habeas as a matter tolling equitable Rouse, beyond one-year claim well novo. of counsel that decision de review also period. Accordingly, limitation the district Having reviewed the at 248. F.3d manner, correctly dismissed this claim. in this we court’s decision district no error. find V assistance of alleged ineffective affirm foregoing, Based on the we e., trial failure of Green’s counsel—i. ha- denying district court’s order non-capital counsel to file petition. beas November convictions—occurred Likewise, final those convictions became AFFIRMED 6, 2000. In our than November no later MOTZ, DIANA GRIBBON Circuit to run view, period started the limitation Judge, concurring judgment: in the habeas than when later June no At that for Green. appointed counsel judgment I concur in the and most of time, pre- purported impediment join I majority opinion. cannot Part filing petition a habeas from vented Green C, III B or of Part III which hold portions Moreover, trial counsel’s was removed. court erred in not defer- that the district non-capital convic- failure to the Court ring opinion to the knowledge for at public had been tions by the Antiterror- Virginia, required of as have years and therefore could least two Penalty Death Act of ism and Effective the exercise of through been discovered (e) (“AEDPA”), 2254(d), § 1996 28 U.S.C. See, e.g., v. Robin- diligence. Wade due (2000). clear, entirely Although not Cir.2003) (hold- (4th 328, son, 327 F.3d 333 the district court’s some- notwithstanding trig- period that the limitation was ing misleading magis- statement that the what 2244(d)(1)(D) § on the date gered under (whose the district judge report trate fac- could have discovered that the inmate re- adopted) conducted a “de novo judge “through public predicate tual of his claim view,” magistrate that it seems to me the sources”). the state court. judge actually did defer to 2:05CV340, Johnson, 2007 v. No. 26, 2003, Green days Starting on June 301 (E.D.Va. 26, 951686, Mar. аt *11 2004, WL 22, April until when Green passed 2007). properly magistrate judge petition. Because filed his state habeas evidentiary hearing under granted an court that Green agree we with the district 2254(e)(2) AEDPA, recognized that § if of equitable tolling, even is not entitled to findings enti- court’s factual were argument that he is the state accept Green’s we correctness,” but “presumption to a statutory tolling while his state tled entitled to and con- “by them clear tolling found rebutted petition pending, habeas was 29, 2005, accord with vincing evidence” April ended on period would have 2254(e)(1) § AEDPA. This conclusion the court denied when state 29, judge then to ad- required magistrate rehearing.10 April From petition for Virginia’s 2005, requirements additional filing again began clock to dress when the " 2244(d)(2) 1-year limita- § toll the petition does not Although for certiorari re- Green's petition during pendency of a petition period habeas tions view of the denial of his state Lawrence, 5, 2005, аt 1083. 127 S.Ct. for certiorari.” pending until December was 306 of correctness presumption “rebutt[ed] of mental retardation

statutory definition by convincing evidence.” See clear required had not been the state court Johnson, 2:05CV340, v. No. 2006 and in that Only for that reason to reach. (E.D.Va. 15, Dec. *39 conduct a magistrate judge sense did Dretke, 2006); see also Miller-El v. 545 phrase This should not “de novo review.” 231, 240, 125 S.Ct. 162 L.Ed.2d U.S. magistrate judge that the did hide the fact (2005); 444 Washington, 196 Lenz v. F.3d in full defer to the state court properly (4th Cir.2006). magis conformity AEDPA. judge rejected then the state court’s trate prior granting any to evi- Specifically, finding “significantly subaverage on the dentiary hearing, magistrate judge functioning” prong intellectual of the defi findings, required made extensive nition of mental retardation. It is not (1) AEDPA, Tay- v. under Williams completely magistrate clear whether the lor, 420, 432, 120 S.Ct. U.S. solely judge based this determination ‍​‌‌​‌‌‌​​​​​‌​​‌‌‌​​‌‌​‌​​‌​‌‌​​‌​​‌‌‌​‌​‌​​‌‌​​‍(2000), diligently Green had L.Ed.2d arguments presented by Green in his developed the factual basis of his claim to entirely court pleadings, state but what is practicable the extent the state habeas judge is that the clear not an proceeding -by repeatedly requesting — by AEDPA, to pleadings restricted these evidentiary hearing develop Atkins especially having properly after conducted 2254(e)(2) prevent did not claim—so 2254(e). evidentiary hearing (2) grant evidentiary hearing; of an Certainly presented the extensive evidence presented sufficient additional fac- three-day during evidentiary hearing petition, tual in his allegations habeas convincing” offered a “clear and rebuttal to which, true, relief; if him would entitle presumption of correctness afforded requirements and Green satisfied the findings provided the state court’s Sain, Townsend U.S. 83 proper magistrate judge’s for the basis (1963), S.Ct. 9 L.Ed.2d 770 as to when decision. 2006 WL 3746138 at **38-49. evidentiary hearing may properly be magistrate judge then considered granted petitioner. to a habeas See Green whether Green prong satisfied second Johnson, F.Supp.2d v. Virginia’s statutory definition of mental Polk, (E.D.Va.2006); Conaway see also retardation, namely, possess that Green (4th Cir.2006) (summar- 453 F.3d “significant limitations in adaptive behav- izing requirements granting an evi- 19.2-264.3:1.1(A) ior.” Va.Code Ann. AEDPA). dentiary hearing after (2007). Court, Because the magistrate judge’s approach granting Virginia had not addressed whether Green evidentiary hearing fully accorded with prong, magistrate judge satisfied this past holdings regarding our appropri- was forced to address the issue in the first ate deference due state courts under ”). respect instance so this “de novo (and AEDPA. majority For the reasons stated C, The magistrate judge’s report magistrate judge properly recom- Part III mending that held that Green had not met his burden on deny the district court prong this and so the state court had petition similarly Green’s habeas accords properly determined that Green not did opinion the state court required defer- meet the definition of mental retardation. recommendation, making ence. initially judge correctly that, 2254(e)(1), recognized

factual determinations the state court presumed

were to be correct unless Green

Case Details

Case Name: Green v. Johnson

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 11, 2008

Citation: 515 F.3d 290

Docket Number: 07-9

Court Abbreviation: 4th Cir.