In Re: Robert Karl Hicks
375 F.3d 1237
11th Cir.
2004
Check Treatment
Docket

*1 are an imperfect quite recently ments counsel substi- until is more than appropri- explicit provided by tute for instruction ate. It required. be should Where re- States, court, see Starr v. United quested, I it is believe error to refuse to (1894) L.Ed. 841 give pretext instruction.. (“[T]he trial judge influence on the

jury necessarily properly great and

weight, lightest and ... his work inti- deference,

mation is may received with and case,

prove controlling.”), in this such ar-

guments mitigated any may harm that inadequate

have resulted from jury in- struction. In Re: HICKS, Karl Robert Petitioner. Moreover, evidence uncontroverted No. 04-13248. Conroy’s trial was that Mr. position United States Court of Appeals, filled a man older Conroy. than Mr. Eleventh Circuit.

The evidence also that Mr. demonstrated Conroy failed to meet Abraham Chevro- let’s standards for commercial sales. In evidence,

light of this probable that jury chose to believe the artic- reasons

ulated Abraham Chevrolet for Mr. Con-

roy’s Thus, discharge. I while that believe

the district court in refusing give erred requested instruction, pretext there prejudicial

was no harm in this cáse.

Providing jurors clarification on a

point of law has eluded federal courts employer’s discrimination if it disbelieved the discrimination even if it disbelieved Abraham proffered stated reasons for Chevrolet's discharge. termination. reasons for jury district court also instructed the on district court instructed Mr. Con- jurors reasonable inferences are entitled to roy prove by preponderance must of the However, upon make common sense. intentionally evidence that the defendant dis- such an does not instruction mean against criminated him on the basis of his jury being will without know told that its age. juror might A rational very well inter- employer's proffered disbelief in the reason pret require such an instruction to affirmative may be support finding that will evidence proof discriminatory In other intent. light intentional discrimination. words, case, Conroy's juror in Mr. a rational amount of law dedicated shaping that, might have Conroy concluded Mr. while refining law pres- the discrimination into its successfully demonstrated Abraham form, disingenuous ent argue it would be proffered discharging Chevrolet's reason for the application nothing of the law is pretextual, him was Conroy Mr. could not more than matter of common sense. prevail having any failed to offer credible Finally, jury the district court instructed the directly suggesting discriminatory testimony that it discredit a could witness's if Combined with animus. court's district testimony it found the inconsistent or unbe- judgment, on business instruction, however, instruction which ex- merely lievable. This plained jury to the that it not could second juror allowed particular to disbelieve a guess legitimate Abraham Chevrolet’s busi- nothing jury witness. It said about what motives, it is not may ness difficult to see how a jurors do or infer once the had decided

jury might finding have been dissuaded employer’s proffered from to disbelieve the reason. *2 1238 GA, McGlasson, II, Decatur, L.

Robert for Hicks. At- Dept., Boleyn, State Law

Susan V. GA, lanta, Appellee. for EDMONDSON, Judge, Chief Before DUBINA, Circuit and BIRCH and Judges.

BY THE COURT: Georgia death Hicks is Robert Karl row inmate. affirmed We seeking 28 petition first denial of his relief. See § 2254 U.S.C. Cir.2003), (11th Head, 333 F.3d 1280 — denied, —, 124 U.S. rt. ce 03-9864, L.Ed.2d No. (U.S. June WL scheduled The trial court Hicks’s 30, 2004, day of the but on the for June execution, Court scheduled temporary stay granted Hicks a July p.m. at 3:00 On until for Authorization Hicks filed Motion Petition a Writ file a Successive to 28 U.S.C. Corpus, Habeas 2244(b), of Execution. and a considering A. Successive Petition Writ whether the met the Habeas requirements enunciated 2244(b)(2), held there.was 2244(b) Appeal directs Courts of Section *3 question no recently the rule an- a filing to authorize the second habeas by nounced the Supreme Court in application only if At- corpus applicant the kins —that the prima mentally makes a facie that one of re- (cid:127) specific requirements persons two has been satis- tarded constitutes “cruel 2244(b)provides fied. Section that: punishment” unusual in violation of the (1) Eighth presented A claim in a or Amendment —is a new rule of second corpus application successive habeas un- constitutional law made to retroactive presented der section 2254 that was in a on collateral by .cases review the Su- prior application shall be dismissed. preme Court that was previously un- (2) presented A claim in a second or available. corpus application successive habeas un- (citation omitted). 331 F.3d at 1172 der section 2254 that was not Although the in Holladay met prior in a application shall be dismissed requirement .of 28 U.S.C. unless— 2244(b)(2)(A), we noted that our analysis (A) applicant claim shows that the did not end there. “[I]n order to make a a relies on new rule of constitutional prima showing that he is entitled to facie law, made retroactive on col- to cases a file second or petition successive Court, by lateral Supreme review on [the] Court’s decision in At- unavailable; was kins, petitioner] [the also must demon- (B)(i) predicate the factual for the strate that there is reasonable likelihood claim could not have been discovered that he is in fact mentally retarded.” Id. previously through the exercise due at 1173. Adopting requisite showing diligence; and articulated the Seventh Circuit in Ben- (ii) claim, underlying the facts if States, nett v. United 119 F.3d proven and viewed in light the evi- (7th Cir.1997), we held that “if petitioner’s whole, dence as a would be sufficient proofs, when against measured the entire to convincing establish clear and case, record establish reasonable that, but constitutional likelihood that mentally he is fact re- error, no reasonable factfinder would tarded, required then we are him applicant guilty have found the leave to file a second or successive habeas underlying offense. petition on the basis of Atkins.” Id. at 2244(b)(1) (2). & Hicks now asserts a claim We then considered the evidence re- Virginia, to Atkins v. garding petitioner’s capacity and found the (2002), alleg 153 L.Ed.2d 335 “conflicting.” evidence to be Id. pe- retarded, ing mentally that he is and that tests, I.Q. titioner had taken numerous Atkins, Eighth under Amendment ranging with results from 49 to 73. The

the U.S. Constitution forbids his execution. petitioner presented evidence from his Hicks relies on our decision in In re Holla early years school that indicated that he (11th day, Cir.2003), sup F.3d 1169 Department slow learner and a port petitioner Holladay his claim. The report Human Resources that denoted filed an hour application “eleventh “barely him leave to file a second federal as educable with Wechsler petition” Moreover, based on Atkins. Id. at 1171. In of 54.” Id. at 1175. his days before two On June jury petition- instructed court

trial execution, filed his third Hicks scheduled peti- consider it could sentencing that er’s raising a again claim petition mitigating aas retardation mental tioner’s denying mentally retarded. that he is trial court even circumstance. relief, found that court trial pe- that it found judgment in its noted relitigate his mental seeking to Hicks was retarded.” “slightly titioner the trial court had claim which in- retardation petitioner’s Considering the evidence trial court merits. The rejected on the con- totality, in its capacity tellectual although Hicks based claim noted likelihood reasonable cluded *4 decision, Atkins Supreme Court’s existed. on mentally retarded was retardation its mental Georgia enacted at 1176. Atkins, and remained prior to statute from distinguishable is present The trial court unchanged post-Aifcms. First, Holladay, peti- Holladay. this allowing to raise that Hicks found had retardation of claim mental tioner’s corpus action in this again claim habeas any court. See id. adjudicated by not been chance to allowing him a second would be retar- of mental Here, raised a claim Hicks establishing proof of meet the standard In federal courts. state and in the dation O.C.G.A. 17- retardation under mental corpus petition second state habeas his 7-131, court the trial which imposi- claim that the 1991, raised a Hicks proven not his second found had [Hicks] would constitute penalty of the death tion fur- The trial court proceeding. habeas to al- punishment due unusual cruel and type relitiga- of that this is the ther noted The state ha- retardation.1 mental leged Georgia’s pe- successive prohibited by tion hearing on Hicks’s court conducted beas § 9-14-51. tition See O.C.G.A. bar. Hicks I.Q. test score petition. sole prima establish attempt to in an offered Second, does Hicks’s not application retardation of mental was facie case prima “a facie demonstrate dismissing 94. I.Q. of pre-trial score requirements application satisfies the trial petition, habeas state Hicks’s this subsection.” failed to meet his court found Hicks 2244(b)(3)(C). Holladay, Unlike Hicks on his mental retardation proof burden like- cannot demonstrate reasonable claim. mentally retarded lihood that he in fact at 1174. At Holladay, F.3d exists. a mental retarda-

Further, raised Hicks hearing habeas on his second the state federal habeas in his second claim tion presented petition, court denied district The federal petition. 94, I.Q. is well of an score which above claim. Hicks filed a relief on this

him used mental re- court, guideline to describe we appeal and notice of Atkins, n. 536 U.S. at 308 tardation. See of Appealability granted a Certificate 3, at 2245 n. 3. Hicks also (“COA”) 122 S.Ct. Hicks’s Ake v. Okla- solely on independent an homa, evidence that 105 S.Ct. (1985), prior evaluated him trial psychiatrist denied claim. We L.Ed.2d 53 range low claim, him to be in the Ake and found on his Hicks relief mentally intelligence, not re- average cer- but Supreme Court denied States United Furthermore, of his part as first tarded. on tiorari June Zant, mentally would vio- Fleming retarded on 1. Hicks based his claim (1989), which Georgia’s 259 Ga. 386 S.E.2d late constitution. held that Court a neurol- proceedings, consideration of the merits requir- without ogist neurologist ing entry Hicks. The of a stay.” Id. evaluated mentally- that Hicks did not determine We have determined there is retarded and noted that Hicks had ob- not a reasonable likelihood that Hicks.is year college tained his GED and one mentally retarded, and we noted that credit since his incarceration. prior Hicks had á knowledge of claim of such, present As case is different mental retardation. Hicks could'have filed Holladay. reviewing from When the evi- a motion with this court soon after the capacity dence of Hicks’s intellectual in its Supreme pronouncement Court’s in At totality, say are not compelled we , kins, but he did do so. Because there no.t “a reasonable likelihood” exists that Hicks “strong equitable is a presumption against Accordingly, retarded. stay of á where a claim could deny Motion Hicks’s for Leave to file brought have been such time as to Successive Habeas Petition. allow consideration of the merits without requiring entry stay,” of a we will not *5 B. a Motion for grant stay.2 Hicks a We will “consider the last-minute DENIED; APPLICATION STAY OF application stay nature of an EXECUTION DENIED. , in deciding grant equitable whether to re lief.” v. Gomez United States Dist. Court BIRCH, Judge, Circuit dissenting: Cal., 653, 654, N. Dist. 503 U.S. 112 for respectfully my I dissent. judgment (1992). 1652, S.Ct. 118 L.Ed.2d 293 We Hicks, movant, to In Re Hol must consider “the extent to which .[Hicks] 1169, (11th Cir.2003), laday, 331 F.3d 1173 has delayed unnecessarily bringing in adequately has demonstrated that there is claim ... a strong equi [because] there is a reasonable likelihood that he is in fact presumption against grant table Virgi retarded under Atkins v. stay where a claim could have been nia, 304, 2242, 122 S.Ct. 153 brought at such a time as allow consid (2002). Clearly L.Ed.2d 335 Hicks has eration of the without requiring merits possible made a sufficient merit — entry stay.” of a Campbell, Nelson v. exploration by to warrant a fuller the dis —, U.S. 124 S.Ct. 158 Holladay, trict court. at 1173- F.3d (2004). L.Ed.2d 924 The Court noted that stay equitable remedy, is an “[equi ty take into grant stay must consideration the State’s I would of execution until in strong proceeding judg interest with its evidentiary district court could hold an attempts] manipulation.” ment and ... at hearing finding to make a as to mental Gomez, (quoting 503 U.S. at 112 retardation under Atkins. I concur with 118 L.Ed.2d Further Georgia Justice Norman Fletcher of the more, the Court stated that in “there is his observation that: C°urt strong equitable presumption against the procedure law that allows a ha- “[a] state an, stay deny of a where a claim could have expert beas court to access to brought [psychologist] peti been such a time as to allow and then dismiss the Commission, deny request stay pending any finding by 2. We also for a nor is made complaint consideration of his filed in the binding Lap Commission on us. See Garza Inter-American Commission on Human (7th Cir.2001). pin, 253 F.3d 924-26 Rights. jurisdiction We have no over this in fact Bradford recommended fails to rate and expert [opinion] an lack of tion for for federal IQ be adminis- adequate protection complete that a test provide Schofield, Hicks v. right.” constitutional .... tered S04W1751; (Ga. S.Ct.; no. Case by not raised the State While

2004) (dissenting). IQ an invalid Petitioner is aware of by Hicks’ following representations in 1985 of 94 that was obtained score court, counsel, of this resonate an officer Grigsby. IQ This score is invalid Dr. me: with an incom- it was obtained with because rou- corpus judges Dr. Dale plete and outdated test. Wat- testing. for Petition- access tinely grant explains: son 86 cases which er below that the my professional opinion [I]t Georgia has granted. been [has] access score of 94 obtained on standard distinguishing be- no basis provided administered the “abbreviated WAIS” per- 86 other and the tween Petitioner is invalid as an Grigsby Dr. frequently life- have received sons who measure of Mr. Hicks’ intelli- accurate testing. The saving access to probability signifi- in all gence and is judge in 1992 Petitioner’s cantly inaccurate. the motion access simply denied }J« $ ifc & explanation, and day it was filed without Respondent contends that now Grigsby gave an abbreviated or Dr. provides sufficient unexplained denial test, practice form of the short deny testing post-Atkins. It is cause to been criticized as sometimes re- has *6 of arbitrary and violative utterly sulting high in levels of classification and Fourteenth Amendments Eighth inaccuracy. similarly per- situated Georgia to treat differently. sons show some versions [S]tudies retarded. the State The State existed that Petitioner was not The evidence relied faulty also sfi [*] * * argued and could not be the Si« in 1992 that upon by short overestimated actual administration of the (Thompson, form Full Scale testing yield significantly 1985). IQ’s when obtained complete compared to from the test. basis refusing testing. First, [*****] had argued State Petitioner ob- from administer- results obtained completed and had tained a GED ing a whether adminis- WAIS college, equivalent year of one fully likely partially, tered or are also of a trial defense

upon report the 1985 artificially to have been inflated report it true that the expert. While Flynn what has been labeled “The information, Appendix recites this see Effect.” 13, the information came from Petition- ;Ji j}j >{« í}í self-report er’s and is unreliable. Sec- only portion Because the WAIS ond, argued that a defense State (and it was administered is unknown expert opined named Bradford portions which subtests subtests “intelligence esti- that Petitioner’s utilized); were because WAIS average range.” mated to be the low was, administered, at the time an out- added). Hearing (emphasis at 27 Brad- dated, obsolete and invalid test for any IQ testing. ford did not perform IQs accurately determining IQ; and notoriously Estimated are inaccu- be- Flynn cause the Effect would cause

any score obtained on the WAIS inflated, artificially my

1985 to be it is

opinion that the test results obtained Grigsby Dr. are invalid and of determining

little use in Mr. Hicks

IQ.

App. Interpretation Clinical of the WAIS

(Zimmerman, Stratton, 1973), & Gruñe present- states ‘Wechsler himself cogent

ed one of the most criticisms of

the brief form ... reliabilities of some are

subtests so low so that reliance on

half only the items or a few subtests to

draw conclusions is inadvisable.” (p. Psychological The Handbook on similarly

Assessment is clear about the

unreliability of “short form” tests. See Marnat,

Gary Psy- Groth Handbook on (4th Ed.)

chological Assessment 191

(“None of the short [Wechsler] forms

should be confused a full with intellectu-

al assessment or even a valid indicator IQ”).

Motion for Authorization to File a Succes-

sive Petition for Writ Habeas 11; of Execution at n. 25-27. *7 America,

UNITED STATES

Plaintiff-Appellee Cross-

Appellant, MANDHAI,

Imran Defendant-

Appellant Cross-Appellee.

No. 02-15933. Appeals,

United States Court of

Eleventh Circuit.