In re: Warren Lee Hill, Jr.

grant of sum- existing has an VERSE the District Court’s here prison whether the from outside mary judgment items on Mr. Davila’s claim for system processing through allowing more items prison, RFRA, AF- injunctive relief under indisputably impact the would process FIRM remainder of the District Unlike prison’s of the resources. use rulings. Court’s RFRA, all the meager showing such a PART, IN AFFIRMED REVERSED requires. Amendment First PART, IN AND REMANDED. Finally, genuine dispute there is no obvious, easy al- whether there are about prison’s policy prohibiting

ternatives to religious items from outside the

receipt of noted; “prison offi-

prison. As the Court up have and then shoot cials do not to set HILL, Jr., In re Warren Lee Petitioner. every alternative method down conceivable No. 15-10192. accommodating the claimant’s constitu- 90-91, complaint.” Id. at tional Appeals, United States Court of any “fully at 2262. And alternative must Eleventh Circuit. rights at de prisoner’s accommodate[ ] Jan. penological minimis cost to valid inter- ests.” Id. at 107 S.Ct. at 2262. The Mr. Davi- alternative would allow

la to obtain his beads and shells is to

permit prisoners religious to receive items prison,

from re- outside which would ” sult in a more than minimis cost to “de prison’s interests. short, correctly the District Court

granted summary judgment to the Defen-

dants on First Mr. Davila’s Amendment

claims. Since Mr. Davila has not estab- violation,

lished First Amendment we do money damages

not address his claims for

on that claim.

VI. CONCLUSION Term, expect

This we to hear from the in a case similar to this addressing religious rights pris-

one Hobbs,

oners under RLUIPA. Holt v. See 2014). (argued

No. 13-6827 Oct. Even

in light ongoing developments law, however,

this area of the on this rec-

ord—where the Defendants have failed to any justifying

offer evidence their con- prison safety

cerns about and costs—a

grant summary judgment to the Defen-

dants was in error. therefore RE- We Kammer, Atlanta, GA,

Brian for Peti- tioner. Burton, Attaway

Beth Depart- Law, Atlanta, GA, ment of for Successive Respondent. Habeas person prison. he murdered another board, Hill blud- Using nail-studded inmate to death his bed. geoned fellow slept, “Hill removed a two- As his victim by-six leg that served as a sink board forcefully and beat prison bathroom the board the victim numerous times with HULL, and MARCUS Before onlooking about the head and chest MARTIN, Judges. Circuit stop.” him to prisoners pleaded with PER CURIAM. Hill, 255, 256, v. 277 Ga. 587 S.E.2d Head (“Hill III”).1 (Ga.2003) 613, Hill Lee has scheduled Warren The State he beat him.” Id. “mocked the victim as Tuesday, January execution for Jr.’s 15, 2015, January 27, On p.m. 2015 at 7:00 Hill of jury unanimously A convicted 2244(b), peti- pursuant to 28 U.S.C. and unanimously imposed a malice murder and second, ap- Hill counseled tioner filed Georgia Supreme death sentence. The to file a second or plication permission affirmed Hill’s conviction and death petition for a writ of successive federal State, 37, 37, 427 v. 263 Ga. sentence. Hill corpus under 28 U.S.C. (Ga.1993) (“Hill I”). 770, S=.E.2d 16, 2015, January the district court. On U.S. Court denied Hill’s response opposing peti- the State filed Georgia, 510 U.S. for certiorari. Hill nu- application Hill’s successive tioner (1993). 950, 396, 126 L.Ed.2d 344 grounds. past Because over the merous years petitioner Hill has filed four coun- Disability at B. No Intellectual Claim cases and three coun- seled state habeas Appeal Trial or on Direct cases, we first review seled federal habeas Hill’s current successive cen- just lengthy proce- factual and some of allegation ters on his that he is intellectu- background discussing before his dural ally At of Hill’s 1991 disabled.2 the time application. current trial, prohibited executing in- Georgia law Yet, tellectually disabled defendants.3 I. PROCEDURAL HISTORY Hill appeal, his trial and on direct never Murder A. Malice Conviction intellectually In- claimed to be disabled. Death Unanimous Sentence deed, Hill’s trial counsel had Hill evaluated 1990, serving psychologist expert Hill a life a clinical who found while was intellectually Hill was not disabled. Hill v. girlfriend, sentence for the murder of his 1988, Georgia 1. We have numbered cases in their 3.In became the first state Hill's state chronological order. the nation to abolish the execution of intellec- tually persons. 17- disabled See O.C.G.A. employs "intellectually 2. This order the terms 7-131(c)(3), (j). The national consensus disability” disabled” and "intellectual be- against executing intellectually disabled cause, as the Court stated in Hall Virginia, gave birth to the Atkins v. Florida, have moved both law and medicine 304, 2242, 153 L.Ed.2d 335 122 S.Ct. away "mental retardation” from the terms (2002), prohibition in 2002 was a consensus -, "mentally retarded.” very by enacting started -, 134 S.Ct. 17-7-131(c)(3), (j) peti- same Thus, statute — (2014). plead- past Hill’s —that while in Hill now claims violates Atkins retarded,” tioner ings "mentally he used the term 313-14, Atkins, disabled,” Hall. See 536 U.S. at "intellectually now uses the term addressing at 2248. and we do too in his claim. (11th Humphrey, 662 F.3d Cir. case, 134 S.Ct. 1994. In this 2011) (en banc), denied, cert. however, Hill both and the presented State 183 L.Ed.2d 80 evidence of adaptive behavior and oth- er evidence in various courts. first, Hill filed his counseled The state Hill habeas court found estab- habeas case claim state but did not he was prong lished the first “significantly sub- intellectually It disabled. in average general intellectual functioning.” trial, years or five after his 1991 III, 277 Ga. at 587 S.E.2d at 617- claimed, time, for the first he was 18. The court did IQ not find an exact intellectually explained disabled. As score, multiple but placed tests had below, procedural history over the course score between 69 and 77. In re nearly years, fully litigated Hill has (11th Cir.2013) 715 F.3d 286 & n. 1 his intellectual claims in numer- (collecting IQ various scores from tests proceedings ous in both state and federal times). administered at different just court. Here are examples few however, As to the second prong, why his claims have repeatedly been de- state habeas court found that Hill had not nied. shown that he had “impairments in adaptive Proceedings C. 1996-2003 beyond behavior” a reasonable State Habeas III, doubt. Hill 277 Ga. at 587 S.E.2d conducting After an evidentiary hearing at 618. Hill’s case always been about and after a remand Georgia Su- behavior, his adaptive IQ not his scores. Court, preme the state habeas court in Based on presented by the evidence Hill 2002 determined that Hill’s evidence failed State, and the the state prove habeas court found intellectually he was disabled be- yond a Hill impairments reasonable doubt as did not have in required by “commu- nication, law to bar his self-care, execution. See home living, social/inter- (c)(3), (j). O.C.G.A. 17—7—131 The state skills, personal use community re- employed habeas court the definition of sources, direction, self functional academic mental retardation in O.C.G.A. 17-7- skills, work, leisure, health, safety.” and 131(a)(3), which provides “mentally Hill, 1341; Hill, 662 F.3d at In re (1) retarded” means having “significantly F.3d at Specifically, court not- “[t]he subaverage general intellectual function- (1) history ed Hill’s extensive work and (2) ing,” “resulting in or associated with ‘apparent ability to in function well such (3) behavior,” impairments adaptive in (2) employment,’ disciplined savings plans “which during developmen- manifested pursued purchase motorcycles, cars and period.” tal Georgia’s definition essential- (3) (4) service, (5) military life, active social ly tracks the clinical definitions mentioned skills, writing ability and to care for by the Supreme Court in v. Virgi- Atkins himself.” In re 715 F.3d at 286. nia, 308 n. 122 S.Ct. Because failed to establish the second 2245 n. As prong, the state habeas court did not dis- later, explained Georgia’s definition does prong, cuss the third which is onset before not have Florida’s strict cut-off of 70 age 18. Florida, that was at issue in Hall v. Among the evidence before the state 188 L.Ed.2d record, military habeas court was Hill’s (2014), and that precluded defendant showing promotions, his five Hall from successful presenting any adaptive-behav- education, military ior or other evidence courses in as to intellectual instruction disability. See 572 U.S. at training leadership management, tionally with others and assists English lan- well oral and written his excellent skills, guage weapons-loading as follows: team training E-l military at the rank a new Implemented entered the members. He W/C and, year, attained the advancing each program and aided in the tool control years. E-5 in five Hill was rank of redesigning of the technical Pubs W/C sharpshooter. as a .38 caliber decorated receiving an out- library, both areas in nucle- military education He received during the latest standing COMHEL fund loading, aviation weapons ar quiet person- visit. His WINGGRES school, He com- corrosion control. squadron morale. ality enhances Uni- training an 80-hour instructor pleted continually out- appearance forms and complet- attended and course. Hill also standing. Actively supports military course leader- ed 2-week Navy’s equal opportunity goals. and train- management education ship Demonstrates excellent command of qualified He was assistant ing. English language orally and writ- systems main-' and ordnance supervisor for ad- Strongly ten. recommended troubleshooter, man and with tenance vancement and retention the Naval shop training, as a collateral duties service. officer, as a nuclear publications petty (footnote 715 F.3d at 286-87 load team mem- weapons conventional omitted). eligible for an E-6 ber, a corrosion and as control/reclama- however, promotion military; in the he Hill salvage tion and team member. any was demoted not because of mental weapons technician qualified was as council a Human Relations inability, girl- and was but because he murdered his tour completed member. He 2-week at n. 4. friend. Id. recruiting program, with a hometown just examples These are some team, played on the football and was before the state plethora of evidence habe- Hill Petty Officer of the Watch. also Georgia Supreme as court and the Court. functioned as an assistant work center Ultimately, the state habeas court and troubleshooter, supervisor, an ordnance Georgia Supreme then the Court in 2003 qualified, played

was CPR and concluded that Hill had not shown the intramural team. basketball required impairments adaptive behavior during military Hill Evaluations of and thus had not established his intellectu- of him: duty descriptions contain these disability beyond a al reasonable doubt as petty reliable officer. Dedicated and III, required by Georgia Hill law. Ga. at Completes expeditiously, all tasks 260-63, 587 S.E.2d at 620-23. The very times under adverse conditions. Georgia Supreme Court also concluded in manner, Quiet, friendly positive and beyond-a-reasonable- 2003 that greatly squadron attitude enhances was not unconstitutional doubt standard appearance morale. Uniforms and al- under Atkins. Id. 587 S.E.2d at outstanding. Actively ways supports Navy’s equal opportunity goals. the English language Good use of § D. First Federal 28 U.S.C. 2254 Peti- orally Strongly and written. recom- tion —Filed October mended advancement and reten- § tion. filed a assert- then retarded, Similarly, ing “mentally and reported Hill was to be: he Eighth his execution would violate the reliable individual and devoted sec- [a] to petty excep- ond class officer. Fourteenth Amendments the United Works heading, Under that retardation Eighth States Constitution.” violates the Amend- subclaims, including arguments Hill raised such, ment.” Id. As the en banc Court Georgia’s beyond-a-reasonable-doubt held that had to failed show that the Eighth standard violated the and Four- rejection state courts’ of his burden-of- teenth Amendments Atkins. proof claim involved an ap- unreasonable the district court denied Hill’s 2254 peti- plication clearly law, established federal tion, appealabili- but issued a certificate of 2254(d). required under Id. at 1360- ty question Georgia on the of whether the 61.5 to uphold Court’s decision The en banc Court emphasized that beyond-a-reasonable-doubt standard was hold, do not contrary clearly “[w]e established federal as one dissent charges, law as announced in Atkins. 662 F.3d at ‘that complete states have discretion to 1342-43. any procedures choose govern the de- termination of mental retardation’” and en this Court banc affirmed the us, only “[w]e decide the issue before ruling denying district court’s Hill’s 2254 only which concerns proof, standard of petition. Id. at 1360-61. The en banc hold AEDPA,4 only Georgia we Su- explained, under “our re- preme view of a final state habeas decision Court’s decision in Hill III [holding greatly highly circumscribed and is defer- burden-of-proof statute was not uncon- ential to the state courts.” Id. to, contrary was not stitutional] and did omitted). (quotations “Under 28 U.S.C. of, not involve an unreasonable 2254(d)(1), by AEDPA, as amended a Atkins.” Id. at 1352 n. 19. The en banc federal, prisoner state cannot obtain habeas Court never said states have limitless au- relief unless he can show the decision of thority or unfettered discretion choose to, contrary the state court ‘was in- Rather, procedural rules. the en banc application of, volved an unreasonable narrowly held that Hill had ” clearly established Federal law....’ Id. shown the Supreme Court deci- 2254(d)(1)). short, (quoting § 28 U.S.C. sion contrary was to or an unreasonable precludes “AEDPA a federal court from application clearly established federal will, imposing invalidating its that state at the time law of Hill’s case. Id. at 1347- unconstitutional, statute as and granting 61. federal habeas relief in the absence of law, ‘clearly established’ federal the which Petitioner Hill for a writ of petitipned United States Court admonishes alleged certiorari on the unconstitutionali holding is a of that Court.” Id. at 1360. ty Georgia’s burden proof as to intel claims, disability lectual relying on the Based on the strict limitations on our Eighth Amendment and The Atkins. U.S. AEDPA, by federal review enacted the en peti Court thereafter denied his banc Court concluded that there was no tion for writ of certiorari in June 2012. holding federal law or U.S. clearly establishing Humphrey, the 566 U.S. 132 “reasonable (2012). proof 2727, 183 doubt burden of for claims of mental S.Ct. L.Ed.2d 80 4. Penalty great many Antiterrorism and Effective Death banc Court reviewed in the detail 1996, part Act of in relevant in 28 procedural protections afforded under Geor- codified § U.S.C. 2254. gia’s processes statute and defendant Hill, asserting an intellectual claim. petitioner solely 5. While Hill focuses on 662 F.3d at 1352-53. isolation, reasonable doubt standard in the en

1220 Application to File Petition— G. First Successive Habeas E. State Second February 19, § Petition —Filed 2254 18, July 2012 Filed 2013 day of his first July On 19, 2013, just February three hours On execution, Hill filed a second scheduled execution, Hill before his third rescheduled reasserting petition, corpus state habeas filed in this Court his first disability and intellectual claim of same § petition. or 2254 file a second successive claim that burden-of- the same Hill, argued 715 F.3d at 288. Hill In re unconstitutional. See In proof standard experts’ mental health that certain Hill, habeas F.3d at 288. state re recanting of their assessments claim, as did the court denied establishing that he was in- new evidence ground on the Supreme Court tellectually disabled and his execution judicata. res Id. The claim was barred Eighth Amendment and would violate denied certiorari. Supreme Court 289-90, 292. This Atkins. See id. Humphrey, Hill v. application, stating Court denied Hill’s 1324, 185L.Ed.2d 233 2244(b)(1) him from first barred proposed his claim because he al- raising ready original had raised it Third Habeas Petition —Filed F. State petition in 2004. Id. at 291. February 15, 2013 Alternatively, this Court determined petition Hill filed his third state habeas prima that Hill had failed to make a facie February days four before his 2244(b)(2)(B) showing under because his February rescheduled execution date on evidence related to his innocence of new In re F.3d at This 2013. 288. penalty the death instead of his innocence time, Hill that certain mental asserted 295-97, underlying “of the offense.” Id. (who experts initially had evaluated health Lastly, concluded that the 2000) (13 him in had now altered “actual pre-AEDPA innocence sen- later) years 2000 conclusions prior their exception filing tence” a successive ha- (even capabilities though mental about his Sawyer Whitley, beas from none had seen Hill since experts L.Ed.2d evaluations). (out their 2000 Id. 288-89 (1992), did not survive the AEDPA. lining chronological history regarding Accordingly, 715 F.3d at 299-301. experts). February these On grounds because no existed to allow petition, state court denied petition, file second successive it barred finding proeedurally was application. denied Id. at this Court already a claim that had because it raised 301. Id. at been asserted twice before. 289. Original Proceeding H. in the Su- U.S. that Hill’s

The state court also concluded May 22, preme Court —Filed 2013 “new evidence” did not establish a miscar justice him to riage of that would allow May original peti- Hill an filed Id. The procedural overcome the bar. corpus tion for a writ of habeas Georgia Supreme ap Court denied Hill Supreme petition, Court. In his cites plication probable for a certificate of cause. times, Sawyer Whitley multiple claiming Supreme Id. The Court denied certio U.S. not allow AED- Supreme Court should 2244(b)(2) -, rari. a Humphrey, Hill v. PA’s restrictions in to bar (2013). 115, 187 petition and habeas relief but 134 S.Ct. L.Ed.2d 84 successive

1221 IQ original petition and and each test accept should had a standard error relief, reasons, grant among habeas other measurement, of such score of 71 miscarriage-of-justiee princi- on the based generally is demonstrate, considered to in Sawyer Turpin, and Felker v. ple confidence, with percent that the test- U.S. 135 L.Ed.2d 827 IQ taker’s between was 66 and 76. Id. at (1996). argued underlying Hill also as his 1995-96. proof claim that burden of under unconstitutional Atkins. J. Fourth State Habeas Petition Based Supreme U.S. Court denied Hill’s August 29, on Hall —Filed original petition in October 2013. Supreme After the Court’s decision in Hall, petitioner Hill returned the Geor- gia state courts. Hill his fourth filed state Supreme I. Hall v. Court’s Decision petition corpus. for habeas In his fourth May 27, Florida —Issued state petition, again argued Geor- Florida, May On in Hall v. gia’s beyond-a-reasonable-doubt standard Supreme held Court that a State cannot was unconstitutional but this time Hill person IQ execute a whose score test falls based his claims on both Hall and Atkins. margin

within the test’s error unless he The state habeas court dismissed his present has been able to additional evi petition fourth as procedurally barred. On disability, dence of including intellectual January 20, Supreme testimony regarding adaptive deficits. 572 Court of probable denied certificate at-, S.Ct. at 2001. The Flori cause and denied a stay also execution. Fla. interpreted da Stat. provide prisoner 921.137 to that a sen required tenced to death was an show II. DISCUSSION IQ present test score 70 or below before In the federal applica- instant successive ing any additional evidence his intellec tion, State, petitioner seeks raise a claim tual See disability. Hall v. (Fla.2012); Cherry So.3d 707-08 in a successive that he is State, (Fla.2007). 959 So.2d 712-13 innocent penalty ineligible of the death and But IQ Florida’s cut-off of strict score for execution because of the failed to into account take the standard Court’s decision Hall v. Florida. For error of the test. starters, Georgia’s nothing statute is like struck down Florida’s strict cut-off Florida, Florida statute Hall v. violating Eighth as Amendment’s nothing Rather, Hill’s case is like Hall’s. prohibition punish on cruel and unusual the Georgia fully adaptive- statute allowed ground ment on the rule “mis evidence, behavior Hill had eviden- on its in way use[d] score own terms” tiary hearing presented adaptive-be- that risked the execution of those with courts, havior in state evidence did the at -, intellectual disabilities. 572 U.S. State. 134 S.Ct. at event, any to obtain permission file

Specifically, Supreme the Court Hall § Hill petition, successive must noted of accepted prac- evidence medical requirements meet the of 28 U.S.C. result, tice that an test without 2244(b). § evidence, require- outline those reference We to other was not con- clusive capacity; evidence intellectual ments. 2244(b) disability claim § intellectual based Requirements proposed 28of U.S.C.

A. on Hall v. Florida . 2244(b)(1) pro of Title 28 Section in a second presented claim vides “[a] Disability B. Hill’s Intellectual Claim un corpus application or successive habeas 2244(b) § Not a “New” Claim for presented in a 2254 that was der section Purposes be dismissed.” 28 prior-application shall 2244(b)(1). Accordingly, § in rul matter, U.S.C. petitioner As a threshold to file a successive application ing on raising proposed Hill is barred from his a threshold deter we-must make petition, 2244(b)(1). § disability by claim intellectual pre the claim to be mination of whether § back in petition In his first petition or successive sented in the second his intellectual claim raised petition. In re presented in the first was Eighth Amendment. based on the Hill, 715 F.3d at 291. support 715 F.3d at 287. Further, a claim was not § even where argument, prior petition Hill’s petition, in a federal presented prior sub-claims, one of raised numerous which of 28 satisfy requirements claim must asserted that be specifically 2244(b)(2). § that provision, Under U.S.C. was yond-a-reasonable-doubt standard court authoriza- may grant we the district contrary ruling to the Court’s tion to consider second or successive Thus, the “the basic thrust or Atkins. only if: petition argument” in his gravamen legal of [Hill’s] (A) claim applicant shows that the § that his original death- law, relies on a new rule of constitutional Eighth and penalty sentence violated the made retroactive to cases on collateral as set forth in Fourteenth Amendments Court, by review the that was omitted). (quotation id. at 294 Atkins. See unavailable; previously petition qualifies first federal habeas Hill’s (B)(i) predicate the factual for the “prior application” purposes as a for the claim could not have discovered been 2244(b)(1). § Id. at 291. through the of due previously exercise Further, application, in the instant diligence; and petitioner again argues that his execu (ii) claim, if underlying the facts Eighth violate and Four tion would light evi- proven and viewed Amendments, teenth differ whole, dence as a would be sufficient to previously his asserted claim is ence from convincing evi- establish clear relying that he is now error, that, dence but for constitutional subsequent sup in Hall to Court’s decision no factfinder would have reasonable port challenge Georgia’s his burden of applicant guilty found the of the under- lying proof. Accordingly, purportedly new offense. claim is the same claim that he raised in 2244(b)(2). § ap- “The court of U.S.C. original petition, sup albeit peals may filing authorize the second ported by legal argument. a new See id. if it application only or successive deter- in In re at 292. As we noted “new application prima mines that the makes a prior of a claim showing legal arguments support facie that the satisfies requirements of this subsection.” Id. to create a new claim and are insufficient 2244(b)(3)(C). 2244(b)(l)’s peti avoid bar on successive Hill cannot convert his tions.” Id. at 293. below, For explained the reasons we claim into a new claim previously asserted must conclude that Hill has failed to meet 2244(b) merely by coming legal forward with new requirements with his Again, Penry Id. at 292. Hill’s core nounced v. arguments. Lynaugh, exactly claim has the same since remained petition (1989) his first state habeas execu- any placing rule a class of —his —“that Eighth Four-

tion would violate the beyond power individuals the state’s to Amendments, teenth in At- guaranteed execute is retroactive” —did not make Hall 285, 287-89, 291-92, at 294. kins. Id. retroactive merely provides because “Hall Therefore, Hill’s is proposed current claim procedures ensuring new that States 2244(b)(1). § by barred See 28 U.S.C. do not execute already members of an 2244(b)(1). § protected group.” In re Henry, 757 F.3d Thus, at 1161. this Court concluded that-a C. Hall v. Florida Is Not Retroactive claim based on Hall Florida “cannot assuming petitioner Even requirements meet the by Congress set [in by Hill’s claim proposed were barred 2244(b)(2)(A)].” § at Id. 2244(b)(1), panel precedent, our binding panel by is Henry, This bound In re In Henry, argument re forecloses his therefore, reject we petitioner must Hill’s applies retroactively Hall on collateral re attempt rely to on Hall v. to bring view him file a or Florida and entitles to second petition. successive habeas a claim in a or Henry, In re second successive habeas (11th Cir.2014). F.3d 1151 based on “a new rule constitu- law, tional made retroactive to cases on Henry, In re petitioner filed Court, by Supreme collateral review successive pro- based on the previously that was unavailable.” that, posed claim under his execution 2244(b)(2)(A). U.S.C. would violate Constitution he because' allegedly was intellectual disabled. at Id. similarly reject We petitioner Hill’s held,

1153-54. This Court as an initial argument that we not give binding should matter, that Hall did announce a new rule precedential prior effect to a deci panel within meaning law in the of applications sion context to file 2244(b)(2)(A). at Id. 1158-59. petitions. or second successive habeas held, however, This further Court held, in recently This In re Lam Court “the Court new made the brix, prior panel’s holding that “a in a rule announced in Hall retroactive to cases published three-judge order issued under on collateral review.” Id. 1159. This 2244(b) binding subsequent ‘is on all Court first reasoned that the Supreme panels unless and until it is or overruled Court explicitly had not made Hall retro- by point abrogation undermined actively on applicable cases collateral by sitting this court review. Id. We further noted that “[t]he ” 789, 794, en banc.’ F.3d WL Supreme Court has never held that a rule (11th 2015) at *4 Cir. Jan. requiring procedural protections pris- Archer, (quoting United States v. 531 F.3d oners with scores within the test’s stan- (11th Cir.2008)). Thus, 1347, 1352 under retroactive,” dard of error would be id. Lambrix, panel In re bound 1161, and thus that no combination of “ Henry’s holding re that “the logically ‘multiple holdings ... dictate[s] ” has not rule an made new retroactivity rule.’ new Id. Cain, cases nounced Hall (quoting Tyler 1159-60 retroactive 2478, 2485, Henry, collateral review.” F.3d 150 L.Ed.2d J., (O’Connor, concurring)). Accordingly, proposed at 1159. in We an- principle also observed that tellectual claim Hall v. based on margin of unless he has been requirements test’s error meet the of

Florida cannot 2244(b)(2)(A): evidence of intel- present able to additional disability, including testimony re- lectual If Hall Florida Were Retro- D. Even simply no garding adaptive has deficits'— Materially Hall Florida active, Is in this As bearing on Hill’s claim case. from Different this Case above, for Georgia’s test intellectual noted that the new rule assuming Even disability IQ does not a strict cut-off as use in Hall is made retro announced somehow Rather, Georgia the iñ Hall law one did. review, this Court al active on collateral of re- allows the consideration evidence deny ap Hill’s ternatively petitioner must impairments adaptive in function- garding ground that Hall and its plication 17-7131(c)(3); Hill, ing. See O.C.G.A. IQ of strict cut-off consideration Florida’s presented IQ, 662 F.3d at Hill 1353. (that any presenting other of 70 barred adaptive-behavior, and other evidence. evidence) materially are different from help Hall Hill if Hall thus does not even Georgia’s concerning in case be issue this retroactive. were capi yond-a-reasonable-doubt standard Nor, importantly, ap- can more Hall be disability claims. tal intellectual broadly to rea- plied Georgia’s undermine very specific Hall facts of involved for intellectual dis- sonable doubt standard interpretation its definition of Florida’s Georgia’s that ability argues claims. Hill disability. intellectual The U.S. doubt Hall reasonable standard offends explicitly in Hall stated that Flori doubt standard de- because reasonable IQ cutoff of da’s “strict test score 70 is fair opportunity nies like Hill a defendants “[i]f, issue,” Florida, from test prohibits to show that the Constitution scores, IQ is prisoner a deemed have an Contrary to argu- their execution. 70, all further of intellec exploration above ment, Hall law while concerned state Hall, disability tual is foreclosed.” IQ a strict of 70 -, -, had cut-off Hall 134 S.Ct. at 1994. IQ prevented capital pre- from was about a strict of 70 cut-off for the defendant senting substantive definition of intellectual dis evidence of his intellectual disabili- case, contrast, ability. Georgia’s in this ty, 572 U.S. at disability is definition of intellectual consis 2001, Georgia’s reasonable doubt standard tent with Atkins and Hall. case both This any way Hill from prevented Georgia’s is about definition intellec evidence, adaptive-behavior presenting trial proce tual but about the evidence, any support claim of other proof. dure burden presented Hill such disability. intellectual times, multiple evidence as did Put make a simply, prima cannot 2244(b)(3)(C), noted pursuant previously, State. As showing, facie Georgia’s statutory that his on Hall satisfies undisputed based is “[i]t 2244(b), §of requirements which re- definition of retardation consis- mental is possible quires showing “a sufficient tent with the clinical definitions cited exploration by merit to warrant fuller case ... is not a about the [T]his Atkins. court.” Holladay, district mentally categorical mildly exclusion of the (11th Cir.2003) (quotation F.3d any group retarded or other from the At- omitted). Instead, it prohibition. kins is about procedure determining who Furthermore, rule new announced ” Hill, mentally retarded.... 662 F.3d per- Hall —that a execute a State cannot son test falls within the 1352. whose score argues that the vive the AEDPA. further reasonable re 715 F.3d at unacceptable 299-301; Gilbert,

doubt standard creates an Thus, F.3d at executing person risk a who suffers rely Hill’s to attempt Sawyer on to avoid disability. argument a But from this is 2244(b)’s § complying statutory with re essentially identical to one this Court has quirements by is foreclosed both the law of already rejected in our en banc decision prior panel the case and precedent. Lam Hill, 1354-56, F.3d at 662 cf. brix, 793-95, 167685, 776 F.3d at 2015 WL panel by is now that bound decision. at *3-4. Brings E. To the Extent that Hill a Request Certify F. to 2244(b)(2)(B), § Claim under His that, We recognize on the eve of his Sentencing Pure Does Claim Not execution, fourth petitioner rescheduled Requirements Meet the of that Pro- Sawyer Argument request vision and His has filed a that this Court Is now Barred certify several issues to U.S. Supreme 1254(2). § Court under 28 U.S.C. present application, petition AEDPA grant states or denial “[t]he er Hill repeatedly contends that he is “ac by of an appeals authorization a court of to tually penalty” innocent the death be file a disability, application cause second or successive shall of his intellectual and that 333, 2514, Sawyer, 112 pro 505 U.S. S.Ct. not be not appealable and shall be the equitable exception vides such an to the subject rehearing of a for or for a § restriction on second successive 2254 writ certiorari.” 28 U.S.C. matter, petitions. an initial to As the ex 2244(b)(3)(E). § We need decide tent that Hill is a claim proposing under 1254(2) whether § certification avenue 2244(b)(2)(B), § even assuming that he had may because, event, any be available we newly discovered evidence intellectu certify decline to for several reasons. al disability, his claim of actual innocence The Supreme discouraged Court has of his death showing sentence is not a use of this procedure certification and has “no reasonable factfinder would have accepted questions only certified four found guilty underlying [him] of years. times in the last Iran Nat’l See 2244(b)(2)(B)(ii) (em 28 U.S.C. fense.” Co., Corp. Airlines v. Marschalk 453 U.S. added). Indeed, phasis attempt Hill’s to 919, 3154, 69 L.Ed.2d 1002 raise such a claim is foreclosed both (1981); Co., Moody v. Paper Albemarle prior-pan law-of-the-case doctrine and the 417 U.S. 94 S.Ct. rule, el-precedent as we in In re held Barnett, (1974); United States v. 376 U.S. law does not authorize the “federal (1964); 84 S.Ct. L.Ed.2d 23 filing of a successive application under Rice, United v. States 2244(b)(2)(B) sentencing based on a (1946). L.Ed. The Su- claim even in death cases.” In re preme F.3d at Court has admonished the cer- procedure tification is proper “rare Moreover, argument Hill’s that Sawyer instances.” See Wisniewski United provides equitable exception the re- States, 633, striction on petitions successive 1 L.Ed.2d have located We no similarly foreclosed. This Court held appeals court of that has certified a ever In re Hill both and Gilbert United States, (11th Cir.2011) question arising proceedings from on an (en 640 F.3d 1293 banc), peti- to file successive Sawyer that the actual-innocence-of- the-death-penalty exception tion. did sur- certify questions to the request Hill’s which he

Additionally, questions, be- Court. Court to resolve wishes the prior with this Court’s disagrees cause he MARTIN, dissenting: Judge, Circuit decisions, inappropriate would be panel Further, as certification. questions way look Hill continues to Warren above, Hall were retro- even if explained Georgia’s unique rule which challenge help Hill be- it would not actively applied, row inmate to burden a death puts the defini- involved the substantive cause Hall disability beyond prove his own intellectual disability and did not tion of intellectual to file doubt. He now seeks reasonable proof. disagree We involve burden the corpus peti or a second successive of Hall as “a description the with dissent’s court, arguing that this tion in federal “revolutionary and a paradigm shift” unconstitutionally denied Georgia standard (Dissent- 1230-31 thing.” Infra, opportunity to show that the him “a fair J.). Martin, As outlined ing opinion of prohibits [his] Constitution execution” above, narrowly Florida’s Hall invalidated disability. his intellectual Hall based on that, applied cut-off of strict Florida, 572 U.S. case, wholly precluded defendant Hall’s 1986,2001, 188 L.Ed.2d adaptive-behavior presenting Hall from majority the explains, precedent As the nothing is any' evidence. There and other in the Eleventh Circuit erects formidable revolutionary about Hall. paradigmatic have, past, to his I in the barriers efforts. multiple insurmounta- In the face of and disagreement of our expressed with some by AED- procedural hurdles erected ble See, him. precedent impedes e.g., which including that the instant habeas PA— (11th Henry, 757 F.3d 1168-69 exactly the the claim is same as one we Cir.2014) (Martin, J., dissenting) (disagree already rejected, that Hall v. Florida have ing majority’s the conclusion that with not made retroactive to cases on been retroactive); Hall not Hill v. Hum Court, by the collateral review (11th F.3d Cir. phrey, 662 1381-86 retroactive, it that even if Hall were could banc) 2011) (en (Martin, J., dissenting) finally that help petitioner, and (concluding, things, other among showing no that Hill is not there has been requirement capital de “Georgia’s guilty “underlying of the offense”—we de- prove disability] fendant his [intellectual certify.6 cline to beyond a doubt would seem reasonable III. CONCLUSION risk inevitably to enhance the of unwar imposition death ranted sentence on the of Hill’s fourth Accordingly, eve [intellectually those who dis upon are execution, for all of rescheduled and these omitted)); (quotation marks id. abled]” reasons, 2244(b), pursuant we and (Barkett, J., dissenting, joined by 1365-78 January 15, application DENY Hill’s Martin, JJ.); and id. at Marcus 1378-81 peti- for leave file a successive Martin, (Wilson, J., dissenting, joined by corpus tion for of habeas DENY writ addition, post-Af- present many Georgia’s appeal) direct exists to In tition on cases, way penalty issue here in that is kins death constitutional by capital pe- deference in first certiorari AEDPA denied defendants’ .constrained (the requirement clearly petitions constitutional rea- titions that made same challenge by federal law as shown a U.S. sonable that Hill makes here. established doubt holding) proce- (collecting other See 662 F.3d 1348 n. 14 cases, including applicable applications bars for suc- some direct dural Thus, (certiorari petitions, pe- such as this one. appeals). another avenue cessive J.). section, fully agree I with the dissenting also second I address the by Judge Barkett when opinion written Supreme Court’s recent decision Hall she as a member of the earlier served why it represents paradigm shift re panel for Mr. case. prior that undermines state and federal (11th Cir.2013) (Barkett, J., F.3d opinions about Mr. Hill’s intellectual-dis- (“When Hill has un- dissenting) proffered ability support claim. I read Hall to controverted evidence of his [intellectual conclusion that requirement that we disability], agree I cannot have no prove death-row they inmates are intellec- execute him anyway choice but to because tually beyond disabled a reasonable doubt neatly his claim not fit into the nar- does is unconstitutional because it “creates an procedural by row confines delimited unacceptable persons risk that with intel- omitted)). My AEDPA.” (quotation views lectual will be executed.” by majority judges are not shared at-, 134 S.Ct. at 1990. however, Court, by on this and I am bound rulings contrary. this Court’s to the AEDPA, our Under denial of Mr. Hill’s recognize process I also to file a second or successive which asks to certify Mr. Hill this court a petition cannot appealed. be question Supreme to the United States 2244(b)(3)(E). U.S.C. That means the encouraged by Supreme Court is not the only method available to Mr. Hill to seek hardly Court and ever But is used. be- Supreme Court review of deny- our order presents cause Mr. Hill’s case such impor- him ing by way is relief of certification tant the questions, because answers 1254(2). under 28 U.S.C. That statute the Circuit given Eleventh has to these provides: questions subject to are otherwise re- in appeals may Cases the courts of be 2244, I view under 28 U.S.C. would cer- by by Supreme reviewed the the Court tify to questions Supreme two the Court. following methods: Specifically, certify ques- I would these (1) miscarriage jus- tions: whether the of (1) of By granted upon writ certiorari exception Sawyer tice described in v. any party any the of to civil 333, 2514, Whitley, 505 U.S. S.Ct. case, or criminal before or after rendi- (1992),1 L.Ed.2d 269 survived the enact- decree; judgment tion of or ment of AEDPA and allows therefore Mr. (2) By any by certification at time a bring actually to his claim that he is any court of of of appeals question law innocent of the death penalty succes- or any civil criminal case as to sive habeas petition; whether Hall desired, which instructions are applies retroactively to cases collateral upon Supreme such certification the first this opinion review. The section of give may binding Court instructions explains why certification of these two is- require sues is to be proper. the entire record sent 335, Sawyer, 1. case decided AEDPA claim.” 505 U.S. at 112 S.Ct. at 2517. before law, Supreme the became Court considered The Court held "to show 'actual innocence' convincing determining peti- “the standard for whether a one must clear and evi- show abusive, error, successive, that, bringing a tioner or de- dence but for constitutional no peti- juror faulted habeas claim shown reasonable would have federal has he is found 'actually penalty eligible penalty of tioner under the innocent’ the death to death 336, applicable which he been that the Id. S.Ct. at [fed- has sentenced so state law.” may eral habeas] court reach the merits of the AED- Sawyer exception in that survived entire matter up for decision Gibson, PA); also LaFevers v. controversy. see (10th Cir.2001) 1263, (noting F.3d § 1254. 28 U.S.C. ... split among is a circuits “there (cid:127) Supreme Court well aware that I am but question,” that have addressed the discouraged of this certification use has question the “difficult because resolving has instructed us procedure. Court 2244(b)(2)(B)(ii) assuming does en- even procedure proper certification is that the sentence,” compass challenges a death to See Wisniewski only in “rare instances.” fail). I petitioner’s claim under- would 901, States, 902, 77 353 U.S. United stand itself have (1957). 633, 634, 1 L.Ed.2d 658 In- S.Ct. indicated, reviewing in the context deed, four cases I am aware mandate, appeals recall of its court’s accepted which the Sawyer’s “miscarriage justice standard questions from Courts Appeals certified ... with AEDPA’s altogether consistent sixty years. last See Iran Nat’l in the that the merits of conclud- central concern Co., Corp. v. Marschalk 453 U.S. Airlines not be proceedings ed criminal revisited 101 S.Ct. strong showing of a actual absence Co., (1981); Moody v. Albemarle Paper Thompson, Calderon v. innocence.” 2513, 41 94 S.Ct. L.Ed.2d 358 Barnett, (1974); States v. 376 U.S. United (1998). L.Ed.2d 728 (1964); 984, 12 L.Ed.2d 23 Rice, United States question give Certification of this would 835, 90 L.Ed. 982 way bring Court a consis tency an area of which other the law However, I believe the two issues I men Indeed, in wise evades its review.2 Felker exceptional importance, are of well tioned 651, 2333, v. U.S. Turpin, 518 beyond mere “internal difficulties” of this (1996), Souter, 135 L.Ed.2d 827 Justice Wisniewski, 902, Circuit, 77 joined by Breyer, Justices Stevens and 633, Supreme and we need Court S.Ct. concurring opinion observing wrote a that First, of guidance. Appeals the Courts precluded AEDPA certiorari although re question divided on the of are now whether “ Appeals’ ‘gatekeep view a Court of over holding that an inmate can be SawyePs determination,” text er’ the “statute’s does penalty innocent of death survived necessarily all of [the foreclose Su gatekeeping provisions. AEDPA’s Com preme appellate jurisdiction” giv Court’s] (holding at 301 pare In re 715 F.3d statutory authority certify ques en the Sawyer “there is no post-AEDPA, that 1254(2). 666-67, tions under Id. at 116 to the on second succes exception bar J., (Souter, concurring). S.Ct. at 2341 corpus for petitions habeas claims as sive added, “if it Justice Souter should later serting pen ‘actual innocence of the death other States, statutory turn out that avenues than ”), alty’ Hope v. United 108 (7th Cir.1997) 119, reviewing gatekeeping certiorari for de (holding 120 that F.3d closed, question termination were Sawyer exception did not survive AEDPA), Calderon, Congress’s the statute exceeded Thompson with v. 151 whether Cir.1998) (9th 918, power be (holding Exceptions open. 924 & 4 Clause would F.3d n. recognize Supreme exception gatekeep- AEDPA's I that the Court could table survived granted ing provisions cannot also Mr. Hill’s writ travel to the Court have definition, By AEDPA’s restric- of certiorari from the state court's denial of route. corpus corpus habeas petition. second and successive his successive state habeas tions on However, Sawyer’s applications apply only courts. equi- to federal the issue of whether of question signals The could arise if courts of Hall the Supreme Court divergent interpretations appeals adopted intended for to apply retroactively Hall 667, Id. at gatekeeper of the standard.” all cases on collateral review. (footnote omitted). It 116 S.Ct. at The Majority emphasizes the extensive to pass has now come that the Courts of process given Mr. Hill by both federal Appeals adopted divergent interpre have and state courts over years. Right stan gatekeeper tations of the AEDPA’s they are, but Mr. Hill’s not unique case is question Sawyer1 dard on the s actual in in that regard.3 For Mr. Hali example, exception. nocence death penalty burton’s conviction for a commit murder Second, only the Supreme Court can ted in 1981 final purposes became for the decide the Hall question ap whether 28, of retroactivity analysis 1991, on June retroactively plies to cases collateral when the Supreme United States Cain, Tyler 656, review. See denied certiorari review from direct 662, 150 L.Ed.2d 632 S.Ct. State, appeal. See Haliburton v. 561 So.2d 2244(b)(2)(A)’s (holding ret (Fla.1990), nom., cert. sub denied roactivity requirement “is satisfied if Florida, Haliburton v. that the [the Court] held new (1991). The retroactively applicable rule is to cases on Florida Supreme Court then affirmed the review”). collateral If had been there no denial of state postconviction relief contrary legal other developments since see v. Singletary, Haliburton 691 So.2d we I Henry, decided would not think (Fla.1997), originally this Court retroactivity question certification affirmed the denial federal habeas cor But appropriate. signifi there has been pus relief in see v. Sec’y Haliburton cant development ignore. that I cannot Corr., (11th Dep’t F.3d October granted Cir.2003). If Court viewed a writ of certiorari to a successive capital Hall as trump sufficient to the interests in petitioner, vacated the Florida Su finality that existed Haliburton —a case preme judgment, Court’s and remanded long became final before Mr. Hill’s— light for further consideration in of Hall. surely the Supreme speak Court’s actions — Florida, U.S. -, See Haliburton retroactivity. volumes about Hall’s I L.Ed.2d 8 can Majority years truly labored for over think of Supreme no reason for the Court Mr. Hill’s That what case. because Haliburton, to remand a case like arising process matters is not the extent of the he as it in the a did context of successive gets, arriving but rather at the correct application, unless it intended for questions to he answers the difficult raises.

Hall to apply retroactively. Supreme The Court does “create new constitutional II. procedure rules of criminal unless those held, parties This Court has and the do applied retroactively rules would be to all dispute, that Hall announced new through defendants on collateral review rule constitutional law. See In re Hen- one of ... exceptions.” Teague two v. (“Hall Lane, ry, 288, 316, 757 F.3d at 1158 did indeed 1060, 489 U.S. 109 S.Ct. (1989) 1078, announce a rule of (plurality 103 L.Ed.2d 334 new constitutional law.”). opinion). Remanding light It “a Haliburton is well settled that case an- Hill, Haliburton, my I have attached a chart the end of between and to Messrs. Hall. comparing dissent some of the dates relevant (rejecting Mr. law F.3d at 1347-48 of constitutional a new rule nounees beyond-a- argument a Hill’s ground imposes it breaks new when contrary to standard or the Feder reasonable-doubt obligation on the States new left the (quoting Teague, “expressly 489 Atkins because Atkins government.” Id. al 1070). 301, was in procedures” determining at who at S.Ct. As U.S. (citing to tellectually “For the first time disabled the states Henry explained: Atkins, 317, 122 2250)); at at imposed a new 536 U.S. S.Ct. Supreme the Head 277 Ga. S.E.2d not dictated obligation on the states (2003) (“[I]n Atkins, 304, 122 the Virginia, 536 U.S. Atkins [v. (2002)] Court of the United States made clear because L.Ed.2d entrusting power it was the the rec states with Hall restricted the states’ previously necessary to governing develop procedures to the ognized power procedures to set newly recognized con intellectually dis enforce the federal the execution of the on the of the at 1158-59. stitutional ban execution abled.” 757 F.3d Atkins, [intellectually (citing disabled].” Hall shift in the paradigm I read as a 2250)). 317, 122 at S.Ct. at assumptions about how much discre- basic words, assumption that states other define intellectual dis- tion states have to up to with “appropriate were free come to enforce ability procedures craft ways” disability was a to define intellectual Amendments’ Eighth and Fourteenth primary indispensable part against executing people who prohibition rejection state court’s and Court’s At- intellectually are disabled.4 beyond-a- challenge Georgia’s Mr. Hill’s states kins left to individual “the task standard of proof. reasonable-doubt developing ways to enforce the appropriate revolutionary thing at Hall is its constitutional restriction.” about omitted). holding (quotation give 122 S.Ct. that “Atkins did not later, years re- States unfettered discretion to define Seven provide full scope protection affirmed that “did not de- of the constitutional Atkins intellectually procedural guides [against executing finitive or substantive dis- person claims 572 U.S. at determining abled].” when who so 1998. “If the have com- impaired mental retardation will be as States were to autonomy to define compass.” Bobby plete to fall within Atkins’ intellectual dis- Bies, wished, ability they as Court’s decision (alteration nullity, and the Atkins could become omitted). Indeed, quotation Eighth protection human marks Amendment’s dignity reality.” Id. rejecting challenge when Mr. Hill’s would not become a Georgia’s unique beyond-a-reasonable- S.Ct. at 1999. The Court emphasized significance holding both proof, doubt standard of of its maintaining Court and this Court Hall “our Nation’s com- relied language gave dignity duty that to teach from Atkins states mitment to its decency to human as the mark of a civilized develop “appropriate ways” discretion at 2001. protect right. to constitutional See world.” Id. at S.Ct. Henry Majority my explained: disagrees 4. The with reference to F.3d at 1158. further Kennedy's opinion explained "paradigm Hall a Hall as shift” "revolution- "Justice However, holding beyond ary.” Op. that its Majority See at 1226. it the basis for stretched Henry precedents re Atkins of this Court '[T]he was this decision in In that alone: Court's instruction,' recognized 'give the in- a new rule it essential ... but Hall was because us ” quiry "imposed obligation go further.' 757 F.3d at 1159 a on states not must new " (citations adopted). by dictated the first omitted alterations Atkins time. repudiated disability executed, Because a basic as Hall with intellectual will be that sumption about this Court re at-, Atkins and thus is unconstitutional.” Id. in in rulings on its earlier Mr. Hill’s lied so, 134 S.Ct. at doing 1990. In the Su- case, I believe the doctrine law-of-the-case preme Court that stressed one of the rea- apply appli does not to Mr. Hill’s current categorical sons a rule making intellec- exceptions cation based on two to the law- tually ineligible disabled offenders for the First, of-the-case rule. Hall is “control penalty “persons death is that such face ‘a ” ling authority since made a con [that] has special risk of wrongful execution.’ Id. trary applicable decision of to law th[e] at-, Atkins, at (quoting S.Ct. Culpepper Mortg. issue.” Irwin Corp., 2252). 320-21, at 536 U.S. 122 S.Ct. at (11th Cir.2007). 491 F.3d Sec The clear implication Hall is of that states ond, Hall that the approach establishes may not employ intellectual disability defi- opinion taken our en banc procedures nitions or that an “create[ ] erroneous,” “clearly that continuing such unacceptable persons risk that with intel- apply injus it “would work manifest lectual will be executed.” at Id. tice.” Id. assumption 662 -, 134 S.Ct. at 1990. F.3d at have states unfettered Notably, Hall’s conclusion that Florida’s against ban discretion enforce the exe rigid based, rule was unconstitutional was cuting the disabled is a intellectually legal part, medical experts.” “views beyond light error that is debate at-, Id. 2000. Of S.Ct. course injustice Hall. The of applying manifest “[t]hese views not dictate the [did] Court’s the law-of-the to Mr. case doctrine is decision, yet disregard the Court d[id] Doing sanction obvious. so would the exe these informed assessments.” Id. (citing person cution of a mental health who ex Crane, 407, 413, Kansas v. 534 U.S. unanimously is perts agree intellectually S.Ct. Hall, at -, disabled. See (“[T]he ... psychiatry science of informs (“[T]o impose the harshest of but does not legal control ultimate deter- punishments intellectually on an disabled ”)). .... recognize, minations must “Courts person violates dignity his or her inherent community, as does the medical that the a human being.”). IQ test is imprecise.” 572 U.S. at aspects And there are other Hall that 2001. Hall reasoned paradigm demonstrate it worked shift as ignores “[a] State that the inherent oux understanding of the states’ role imprecision of risks executing these tests intellectually protecting the disabled from person who suffers from intellectual dis- wrongful acknowledged execution. Hall Likewise, ability.” Id. Mr. Hill’s case that “[t]he States are laboratories for ex- shows how standard also unrea- perimentation, experiments but may those sonably discounts medical determinations deny dignity basic Constitution are highest degree made to the protects.” at-, Id. S.Ct. at 2001. certainty, yet may beyond medical not be vein, In this emphasized Hall the risk reasonable doubt. of error in how a state decides whether an reasoning The logic and of Hall lead me inmate intellectually disabled is critical Georgia’s singular to the conclusion that analysis to the about whether that decision beyond-a-reasonable-doubt standard is constitutional. Hall struck down Flori- IQ score, like proof, rigid Florida’s cut-off da’s definition disability, of intellectual unacceptable must not “require[d] which test score an risk “create[] of 70 or less,” “rigid persons disability because it with was a rule” that intellectual will “creates an risk that unacceptable persons pass be executed” in order to constitution- at-, ability” subaverage significantly at 1990. means 134 S.Ct.

al muster. Id. existing functioning intellectual general stan- beyond-a-reasonable-doubt Georgia’s cut-off, adaptive deficits in be- properly concurrently with dard, is like Florida’s during period havior and manifested the aspect of a substantive understood as age The term from conception of intellectual disabili- Georgia’s definition intel- Medtronic, subaverage general “significantly Inc. v. Fam- Mirowski ty. See —LLC, for of Ventures, functioning,” purpose lectual the ily section, that is performance this means L.Ed.2d 134 S.Ct. from two or more standard deviations proof burden of is a (noting “that the mean on a standardized intelli- (quotation of a claim” the score aspect substantive omitted)). case, it of being gence specified That test marks the.rules Agency be- for with Disabilities. to allocate the risk of error “serves .Persons behavior,” Texas, “adaptive term Addington v. litigants.” tween the definition, 1804, 1807, purpose of this means an degree And with which problem is effectiveness L.Ed.2d 323 per- Georgia’s “allocates almost individual meets standards standard responsi- and independence of error to the offender sonal social the entire risk cultural virtually bility expected age, it of his or her leaving none of with the while (Barkett, J., community. group, F.3d at and State.” way, this it dissenting). creates Fla. To the that the Stat. 921.137. extent unacceptable wrongful risk of execution require and Florida statutes offenders, like Mr. a “fair and denies functioning, only subaverage intellectual they eligible are not opportunity to show” significant adaptive also limitations in but on their intel- penalty for the death based self-care, communication, such skills as disability. lectual manifest and that became self-direction age eighteen, before the both are con- reveals, my reading of As this discussion in- with the “clinical definitions” of sistent very conclu- Hall leads- me to different disability tellectual referred to the Su- Majority than how sion that of the about it preme Court in Atkins. 536 U.S. adjudication impacts Georgia’s of intellec- 2251; also at 309 n. see id. statutory disability Georgia’s tual claims. (citing at 2245 n. 3 definitions of disability definition of intellectual is almost disability from the American intellectual Georgia’s identical to Florida’s. statute “ Retardation Association of Mental provides: ‘Mentally means hav- retarded’ (AAMR), Definition, Mental Retardation: ing significantly subaverage general intel- Classification, Systems Supports in or associat- functioning resulting lectual ed.1992) (9th Psychiatric American in adaptive ed with behavior impairments Association, Diagnostic and Statistical during developmen- which manifested (4th Manual Mental Disorders 17-7-131(a)(3). period.” tal O.C.G.A. ed.2000)).5 provides, part: Florida’s statute in relevant section, important As used in “intel- There is difference be- the term one lectually system or “intellectual dis- tween and Florida’s disabled” AAIDD, 921.137(1), 5. The now known -with Intellectual Dis- AAMRis American Definition, Systems Developmen- ability: Association on Intellectual and Classification (AAIDD). (11th ed.2011) (“Intellectual Supports tal Florida's Disabilities current of disability very by significant limi- definition of intellectual tracks characterized closely functioning and in the AAIDD’smost definition tations both in intellectual recent conceptual, disability. adaptive expressed in Compare Fla. Stat. behavior as intellectual evidence.”). eligible for determining who is execu- But for uniquely high burden proving for intellectual dis- disability. tion based on intellectual Un- ability, I question have no that Mr. Hill der Florida’s definition of intellectual dis- would have intellectually been found dis- ability, likely Mr. would have been abled in corpus state habeas proceedings disabled, intellectually considered even be- and he would facing not be his execution Supreme fore the decided Court Hall. Mr. disputes tomorrow. No every one that corpus judge Hill’s state habeas found be- mental expert health who ever evaluat- yond a reasonable doubt Mr. Hill had ed Mr. including now the state’s three qualifying IQ showing significantly scores experts, has he is intellectually concluded subaverage general intellectual function- disabled. The fact that there is now una- ing. judge Of course that same also found nimity among experts these makes it all prove that Mr. Hill adaptive failed to his striking more to recall even before doubt, skills beyond deficits reasonable existed, unanimity this the state habeas but he did adaptive find Mr. Hill showed court made a finding Mr. Hill had intellectually deficits and disabled a proved, beyond doubt, a reasonable preponderance of the evidence. Unlike IQhis showed significantly he had subav- Georgia, requires only Florida offenders to erage functioning. intellectual So it was prove disability by intellectual clear and on aspect slender the intellec- tual evidence, convincing beyond determination that Mr. Hill reason- failed to beyond-a-reason- meet Georgia’s able doubt. v. Herring, See State 76 So.3d able-doubt standard. (“[A] (Fla.2011) defendant must prove each of the three elements intel- [of I respectfully dissent to the denial of the lectual disability] by clear convincing questions. certification of A

APPENDIX Petitioner Date of Offense Date that Conviction Date that Court of Date that U.S. Became Final Affirmed Appeals Supreme Denial of Intervened Federal Habeas Petition Aug. Jan. Warren Hill 17,1990 10,1994 Nov. N/A Freddie Hall 21,197810 Feb. Jan. . Nov. 13,198211 16,198612 27, 201413 May

social, State, practical adaptive (Fla. 10. skills. This dis- Hall v. 403 So.2d 1981). 18.”). ability originates age before 11. On October the Florida 6. A appeal case on direct becomes final when petition rehearing Court denied Mr. Hall’s Court denies a for writ affirming its decision conviction and death or, filed, of certiorari if none is when the time Hall, sentence. 403 So.2d at 1319. Mr. expires petition. to file such a See McCloud v. filing petition Hall's time for certiorari Hooks, (11th Cir.2009). 560 F.3d in the expired United States January Sup.Ct. 1982. See U.S. R. 7. 587 S.E.2d at 618. 13(1). Georgia, 8. Hill v. (11th 12. Wainwright, Hall v. 805 F.2d 945 1986). Cir. at -, 9. 13. 662 F.3d at 1335. 134 S.Ct. at Hill. Aug. Oct. Aug. Jun. 9,198114 Haliburton Jerry America, UNITED STATES

Plaintiff-Appellee, Barnes, HOLT, Jr., W. Scott

Nathaniel Lewis, Barbary, Monica I. D.

Andre Defendants-Appel Hartfield,

Willie J.

lants.

No. 13-10453. Appeals, States Court

United

Eleventh Circuit. 30, 2015.

Jan. Corr., State, Sec’y Dep't So.2d 16. Haliburton v. 14. Haliburton v. (Fla.1985), at 1233. granted, judgment vacated sub F.3d rt. ce nom., Haliburton, Florida (1986). 89 L.Ed.2d 711 U.S. at -, 135 S.Ct. at Haliburton, - 17. vacating judgment, (granting petition, Florida, Haliburton v. Hall). remanding light

Case Details

Case Name: In re: Warren Lee Hill, Jr.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 26, 2015

Citation: 777 F.3d 1214

Docket Number: 15-10192

Court Abbreviation: 11th Cir.