Warren Lee Hill, Jr. v. Derrick Schofield

HILL, Jr., Lee Petitioner- Warren

Appellant, Respondent- SCHOFIELD,

Derrick

Appellee.

No. 08-15444. Appeals,

United States Court of

Eleventh Circuit.

June

Brian Dunn S. Kammer and Thomas H. Ctr., At- (Court-Appointed), GA Resource lanta, GA, for Hill. Burton, Attaway

Patricia Beth State Atlanta, GA, Law Dept., GA for Schofield. BARKETT, HULL and Before MARCUS, Judges. Circuit PER CURIAM: Hill, appeals Warren Lee Jr. from the district denial of his 28 U.S.C. court’s § 2254 he chal- petition habeas lenged The district his death sentence. granted appealability court a certificate of claim that the upholding Georgia’s Court’s decision statu- tory requirement that in order to be ex- empt his from execution must beyond any reasonable contrary clearly doubt established federal law announced in Atkins Vir- ginia, (2002). be-

L.Ed.2d We conclude that Georgia’s requirement cause be- necessarily yond jury, will without the intervention a reasonable doubt deter- result in the execution of the mine whether Hill had established his retarded, de- Court’s claim of mental retardation a rea- contrary clearly cision established Hill, is Turpin sonable doubt. v. 269 Ga. rule The execution of the men- of Atkins. (1998). 302, 498 S.E.2d 52 Georgia Under tally prohibited by retarded is the law, a who defendant demonstrates that he against ban cruel and unusu- Amendment’s “significantly subaverage general has intel- punishment. al We therefore reverse and functioning resulting lectual in or associat- remand. impairments ed in adaptive with behavior during developmen- which manifested the

I. Background period” tal is deemed Hill was convicted sentenced to 17-7-131(a)(3). Ga.Code Ann. The de- death in 1991 for the murder of a fellow proving fendant bears the burden of his Georgia prison state inmate. His convic- mental retardation and be “may found tion and sentence direct were affirmed on ‘guilty if jury, retarded’ appeal by facts, acting court as trier of finds be- State, v. Hill 263 Ga. 427 S.E.2d yond doubt reasonable that the defen- (1993), and the States United is guilty dant charged crime and is certiorari, Georgia, Court denied Hill v. 17-7-131(c). retarded.” Id. U.S. 126 L.Ed.2d remand, Upon the state habeas court denied, rehrg. Georgia, Hill an evidentiary held hearing regarding 1066, 114 U.S. 126 L.Ed.2d 708 (1994). merits Hill’s claim that ishe retarded. The court issued its order on Hill pro- commenced state court habeas claim, finding Georgia’s that under ceedings during the course of substantive definition of mental retarda- which he raised a claim that he was ex- Hill tion proved beyond had a reasonable empt from under Georgia execution law IQ doubt his met the criterion for a based on mental pre- Hill retardation.1 diagnosis of mental retardation.2 The sented the state habeas court with several court made an Hill finding additional affidavits, lay expert witness which the not meet exacting did reasonable doubt provided court found credible evidence of standard regarding in adaptive deficits Hill’s mental Accordingly, retardation. functioning.3 The state habeas court granted state habeas court his writ for therefore concluded that Hill could not purpose jury limited of conducting a prove his trial on the issue of his mental retardation under Geor- retardation. State, Upon gia’s standard, appeal stringent statutory thus, Court reversed and remanded was not entitled to habeas relief on case, directing court, state ground. habeas this statutorily 1. has contesting banned the execu- Georgia's statutory Hill tion of the retarded since Ga. definition of mental retardation which is in § 17-7-131(j). Code Ann. line those definitions of the American (now Association on Mental Retardation IQ, regard 2. With to Hill's the court noted American Association on Intellectual De- I.Q. results, quantitative that "[a]ll assessment Disabilities) velopmental Psy- and American one, except fall within the 'mild mental retar- chiatric Association. range especially allowing dation’ when variance.” proved beyond any was still mental retardation state habeas case While Hill’s doubt violates dictates of reasonable States United pending, denied peti- The district court that the Atkins. in which held decided granted request for a certifi- tion but mentally retarded offenders appealability on the mental retar- cate categorically prohibited claim, which is now before us. dation Constitution. U.S. Amendment 321, 122 this light 2242. In II. Standard of Review decision, his reconsideration on sought claim, peti- review of Hill’s federal habeas as Our specifically governed by the standards set forth tion requiring serting Georgia’s § the by in 28 U.S.C. as amended for such beyond a reasonable doubt proof Penalty Death Antiterrorism and Effective ha The state claims was unconstitutional. (“AEDPA”). any For Act of 1996 claim rea beyond that the agreed court beas court, adjudicated on the merits state placed an undue doubt standard sonable 2254(d) allows habeas federal relief creating extremely by on Hill “an burden adjudication the state where court executing erroneously of high likelihood (1) resulted in a decision that con- by placing was mentally retarded defendants to, trary the or involved an unreasonable upon risk of almost the entire error of, clearly application established Feder- also commented The court defendant.” law, by the Supreme al determined high of “unsuited” that this burden States; the of or re- retardation, Court United especial- to the issue of mental in a that was on an Hill, sulted decision based someone, men- like who is ly because of unreasonable determination the facts of range in the lower tally retarded but presented of the in the light evidence classification,4 particularly sus- that will proceeding. court State deter- to risk of erroneous ceptible the that he is not 2254(d). mination Here, Georgia 28 U.S.C. motion, Thus, find- granted the court it Supreme Court’s determination —that by a that Hill retarded ing was constitutionally permissible that preponderance of evidence mental retar- require offender doubt standard Georgia’s reasonable beyond a reasonable doubt—in- dation light Supreme of Court law, unconstitutional thus question we must volves appealed and precedent. The State “contrary decide whether this decision reversed, Supreme holding Court application” or an to” “unreasonable Atkins, that, Georgia’s even under law as determined federal proof for a reasonable doubt standard of Court. consti- claim of mental retardation remains “contrary A decision to” law federal Hill, 277

tutionally permissible. Head v. contradicts United States (2003) (4-3 255, 587 620-22 Ga. S.E.2d question on a settled law or holds decision) (Sears, P.J., dissenting). differently than on a did set materially indistinguishable facts—in Hill then instant federal commenced short, raising ques- “substantially it is a differ proceeding, again the decision habeas relevant requirement [Supreme ent from Georgia’s Court’s] tion of whether (4th degrees Manual Mental Disorders includes tistical 4. Mental retardation four moderate, severe, ed.2000); pro- severity mild, see 536 U.S. at 308 n. also — of intel- found —based on an individual’s level S.Ct. 2242. Diagnostic impairment. See and Sta- lectual ’’ Taylor, 529 the U.S. precedent .... Williams Constitution. U.S. at 362, 405, unequivocally 2242. The Court an 146 L.Ed.2d S.Ct. question affirmative, (2000). swered this explaining that the execution of the men unreasonably ap A decision that tally did not either of the retarded advance gov plies federal law identifies the correct penalty, penological purposes of death erning legal principle as articulated i.e., deterrence, retribution or given Court, unrea United States cognitive diminished capac behavioral sonably applies principle facts ities retarded that render case, petitioner’s “unreasonably ex culpable average them than less of principle tends ... to a new [the] context 318-20, 122 fender. Id. at Ac unreasonably it apply, where should not cordingly, it concluded that refuses to extend new context [it] “is retarded offenders exces apply.” Tay where should Williams v. ‘places sive Constitution lor, 362, 407, pow substantive restriction on the State’s (2000). Moreover, L.Ed.2d 389 AEDPA life’ er take the of a “require not does state and federal courts 321, offender.” 122 Id. 2242 S.Ct. nearly to wait some identical factual (quoting Wainwright, v. Ford 477 U.S. pattern a legal ap before rule must be 399, 2595, 405, S.Ct. 91 106 L.Ed.2d 335 Quarterman, plied.” v. Panetti (1986)). mentally If an offender is retard 953, 2842, 127 168 S.Ct. L.Ed.2d 662 ed, may he be not executed.5 Musladin, (quoting Carey v. 549 not define did mental retarda- 70, 81, U.S. S.Ct. L.Ed.2d 482 tion, it leaving to the states to develop J., (Kennedy, concurring judg ways appropriate to prohibit the execution ment)). mentally of the retarded. The Court did guidance provide some to the states re- III. Discussion garding the definition of mental retarda- Atkins, In by citing Court was tion two clinical definitions of presented question with the of whether the it mental retardation that noted were con- execution of many retarded offenders sistent with statutory state defini- punishment constitutes cruel and unusual tions. at 308 n. 317 n. U.S. prohibited by noted, Amendment to S.Ct. 2242. As Contrary opinion expressed holding in the be no doubt that the of Atkins embod dissent, clearly our conclusion that Atkins es unambiguous principle ies the that a tablishes that a retarded offender capital put defendant cannot be to put be cannot to death is with not conflict death. the United States Court's de recent Moreover, none of the three cited cases - Lett, -, cisions Renico v. U.S. the dissent addresses a situation such as the (2010), 176 L.Ed.2d 678 v. Thaler here, we utterly - - one face where state has -, Haynes, U.S. constitutionally granted right eviscerated a L.Ed.2d - (2010), Smith, - Berghuis through severely limiting legislation. We do -, 176 L.Ed.2d 249 finding read (2010). not too much into Atkins in opinions, In those contrary clearly a state decision court meaning Court did not alter the of the term established,” holding "clearly established United Su- merely States applied preme Court when that court legal principle 'clearly rule that state decision so "[a] estab meaning only lished’ the command within the circumscribes of the [AEDPA] effectively it holding nullify when is embodied in a Amendment of this as that hold- Thaler, ing. Court.” 130 S.Ct. at 1173. There can recognized may consistent with cause Atkins there mental retardation defines as subaver who is “significantly dispute definitions about and who is those functioning retarded, intellectual result age general Georgia legisla- impairments in or associated ing was “within bounds in ture constitutional during which manifested adaptive behavior establishing procedure considering Ann. period.” Ga.Code developmental limits alleged retardation that 17-7-131(a)(3). however, Notably, those exemption to whose mental defi- proof require state to Georgia is significant enough to be ciencies beyond a reasonable doubt.6 of that status beyond a provable reasonable doubt.” 17-7-131(3). §Id. added).7 (emphasis at 622 appeal, Hill’s state habeas In reasoning Su correctly ac Georgia Supreme Court preme contrary Court is to the command announced a knowledged “Atkins of Atkins because the reasonable doubt prohibition federal constitutional new standard, applied to claims of mental executing per against entire class retardation, necessarily in the will result sons,” it “must determine deaths retarded individuals. whether, authority under the of federal Atkins, the categorically prohibit law, the beyond a reason constitutional of mentally ed the execution retarded of to be able doubt continues about whom is a “national fenders there apply standard of acceptable of lesser culpability. consensus” While Hill, retardation claims.” true that Atkins left it to the states pointed It that At F.2d at 621. out develop ways to ensure that those the states task of devel kins left to retarded offenders “about whom there is a ways to the constitutional oping enforce subject consensus” to cap national are not on the of the men restriction 317, punishment, ital 536 U.S. at Id. It further noted tally retarded. 2242, the did the states give in “nothing

that instructs authority develop procedures unfettered apply any particular states to nullify pro that to mental Amendment’s proof of retardation claims.” The court then concluded that be- hibition on the execution of the Id. penal Oregon, U.S. impose states that the death 1952 decision Leland v. 343

6. Of those (1952), ly, twenty-two require states the offender to 96 L.Ed. 1302 by preponder prove his mental a approved beyond a which the Court rea- Arkansas, (Alabama, of the evidence Cal ance insanity doubt standard for claims of sonable Idaho, Indiana, Louisiana, ifornia, Maryland, at the time of the crime. The Su- Missouri, Nebraska, Nevada, Mississippi, New accordingly preme Court reasoned that this York, Carolina, Ohio, Mexico, New North constitutionally permissi- was same standard Dakota, Oklahoma, Carolina, South South But, Le- ble for mental retardation claims. Utah, Tennessee, Virginia, Washington). applicable own terms. land is not under its Arizona, Colorado, Flori Another four states — holding premised expressly Leland’s da, adopted Delaware — have a clear and acknowledgment that the case was not one its states, convincing standard. Connecti Three "sought which the defendant to enforce cut, Kentucky, the federal Kansas against a the states which we have held proof. government do not set of a standard courts to be secured to defendants in federal require an offend is state to Rights.” 72 the Bill of 343 U.S. at proof provide retardation be er to Here, precisely what Hill S.Ct. yond a reasonable doubt. seeking And seeks to do. because Hill Amendment, now, protection Leland does in Hill 7. As the dissent the court applicable. Supreme Court’s on the United States is not relied Rather, (quoting were in In re 397 U.S. at Winship, states (Harlan, J., ways “develop! appropriate concurring)). structed to to S.Ct. ] upon the constitutional restriction enforce Inherent premise that we cannot (em sentences.” Id. [their] execution of certainty absolute a achieve the truth of added) phasis (quoting Wainw Ford v. fact, particular corollary is the that “the 399, 405, right, 477 U.S. sometimes, of fact despite trier will his (1986)). 91 L.Ed.2d The discretion efforts, be in his factual wrong best conclu- then, states, is not unbound afforded the sions.” In re Winship, ed, used to discriminate and the means J., (Harlan, concurring). “appropriate.” must be criminal case an erroneous factual conclu- can result sion the conviction of Unquestionably, define retardation as person acquittal innocent or in the aof requiring IQan 30 or below would not one and guilty proof the standard of way” be an “appropriate to enforce the will apply we affect whether the risk of an token, By command of Atkins. the same erroneous will conclusion more often fall it “appropriate” would not means to convicting on the side of an innocent per- impose proof a burden of so insu- releasing guilty son or one. Id. at perably high inevitably excludes Thus, depending on the from protection Atkins’ substantial num- importance relative avoiding one false Yet, ber persons. other, conclusion as opposed we highly subjective because of the nature of how much decide risk each of those necessary the factual inquiry to establish decisions wrong willing we are to tolerate retardation, precisely that is what should and who bear that risk. For exam- Georgia’s once-pathbreaking statute effec- ple, in those cases applying preponder tively has requiring proof done standard, ance the evidence we have a reasonable doubt. willing decided that we tolerate any fair amount of wrong risk of decision powerful Standards of often have one party and that will bear a slightly availability effects on the of a constitution- amount higher of that risk than the other. right. judicial al In certainty proceedings, the explained, As Court has “not of a beyond any fact doubt cannot often be proof does the of standard reflect the Nonetheless, established. disputed factual importance particular adjudication, of a it questions must be resolved. Justice As judgment also serves as a societal about Harlan explained opinion his concurring risk of how the error should be distributed in In re Winship, “the factfinder cannot Dir., litigants.” the between Cruzan v. acquire unassailably knowledge” accurate Health, Dep’t 261, 283, Mo. U.S. 497 110 of given fact, of a rather “can ... acquire 2841, (1990) (inter 111 224 S.Ct. L.Ed.2d a belief of what probably happened.” 397 omitted). nal quotation and citations 358, 370, 1068, 25 L.Ed.2d (1970). regard, 368 In this function “[t]he Accordingly, when a scheme of a proof standard ... of is to ‘instruct requires party one bear the of to burden concerning the degree factfinder the of establishing particular a fact most the society confidence our thinks should he stringent proof standard of that our legal have in the of conclu- correctness factual system recognizes beyond a reasonable — sions for a particular type adjudica- of society’s doubt—it reflects desire that the ” Texas, 418, tion.’ Addington v. 441 U.S. with party the burden should bear the majority S.Ct. L.Ed.2d 323 of the risk for erroneous deci- Atkins, paramount In con- individual lib- Court’s example, For because sion. valued, procedures to place regard cern the states’ extraordinarily we erty is they protect the constitutional prov- burden of government upon of not to be right retarded guilt beyond a a reason- ing defendant’s at 536 U.S. at Winship, In re 397 U.S. executed. See doubt. able Ford, 2242; see also interests of “[T]he 90 S.Ct. 1068. (recognizing that fed- that his- magnitude are of such defendant eral constitutional standards dictate torically any explicit without constitu- procedures to adequacy of a state’s chosen requirement they pro- have been tional uphold right). constitutional proof designed of substantive standards tected Yet, securing rather than the constitution- nearly possible the likeli- exclude as right protecting al issue judgment.” of Ad- hood an erroneous here — from execution—Geor- retarded dington, 441 U.S. added). quite opposite. By has im- gia done (emphasis overwhelming majority posing protect This standard established appli- of on the risk error defendant its of expense gov- at the the defendant most stringent pos- cation highest stan- By choosing ernment. sible, holds it is far better beyond a reasonable proof guilt dard — erroneously execute a retarded placing the burden doubt—and erroneously impose than to a life person government, we make clear that we one not sentence on respect error with will tolerate almost no Requiring a defendant to mental re- leading reliability the evidence ap- tardation reasonable doubt is liberty. This bur- deprivation one’s propriate only interests of a state if society’s of proof and standard reflect den maximizing the number of death sentences far that “it is worse convict belief right outweigh the constitutional of men- guilty go man than to man innocent let tally not to execut- retarded offenders be free,” Winship, re 397 U.S. at interest, however, ed. This state is not (Harlan, J., A de- concurring). permissible at constitutionally the cost of liberty greater in our fendant’s interest violating the constitutional of a men- society govern- than the interest tally offender not to executed. convicting incarcerating guilty inment As the has defendants. recognition con Atkins’s national noted: against the-execution of the mental sensus always litigation margin There that the ly retarded teaches constitutional error, in factfinding, error representing to be right the not parties must take into ac- which both to far the state’s put death transcends one has an party count. at stake Where carrying a death punish interest in out transcending a interest of value—as 525-26, at 78 Speiser, ment. 357 U.S. Cf. liberty mar- criminal defendant his —this A procedural S.Ct. 1332. state’s safe by to the gin of error is reduced as him guards protect superi must the offender’s party on the other the process placing right to the extent rea by precluding, or persuading ... the fact-finder burden of sonably possible, conclusion erroneous guilt trial of his at conclusion of the is retarded. offender not beyond a reasonable doubt. 153, 187, Georgia, U.S. 96 Gregg See (1976) Randall, 525-26, 513, 2909, (plurality 49 L.Ed.2d 859 Speiser v. 357 U.S. (‘When (1958). 1332, a life is opinion) 2 L.Ed.2d 1460 defendant’s 78 S.Ct.

stake, frequency been sen of ... particularly comparative has erroneous outcomes, every safeguard sitive to insure that the choice of the standard to be observed.”); particular in applied litigation v. North Carolina kind of Woodson should, 280, 305, 2978, world, in a rational reflect an as- 428 U.S. (1976) (plurality opinion) sessment of the comparative L.Ed.2d 944 social disutili- (“Because qualitative ty of each.” In Winship, difference re th[e] U.S. 371, punish imprisonment life 90 S.Ct. 1068. Atkins teaches us that

[between death], is a corresponding significantly greater ment there is a there “social disu- in reliability tility” difference in the need for the occurrence of an erroneous that death is factual appropri determination determination an offender is (inter punishment specific ate in a case.” not Accordingly, omitted)). constitutionally nal citation This accom permissible expect to plished by reducing margin an offender who error asserts mental retarda- highest offender whose life interest tion to bear the risk our crimi- right justice system constitutional not to is at nal impose be executed can of the erro- explained, stake. As Justice Harlan “[b]e neous conclusion that he is not cause of proof the standard affects the retarded.8 points procedural The "unassailably dissent to a series of onstrates the absence of accu rights persons upon knowledge,” confers Winship, rate In re U.S. claiming right retardation —the ar- it is the area of mental cause, evidence, gue present retardation, their and to purely qualita on turns says cross-examine witnesses—and that these inherently subjective tive assessment of rights basic to be heard in an adversarial "impairments adaptive behavior ... mani proceeding Georgia’s render scheme constitu- developmental during period.” fested Ga. focusing tional. Yet, the defendant’s (a)(3). Code Ann. 17 - 7—131 the reason however, process, the dissent is blinded to able doubt standard denies Atkins relief profound and unconstitutional constric- whenever fact-finder is unable to eliminate wrought by Georgia’s tion reasonable doubt every possibility” "real that the defendant is upon right clearly the substantive qualitative not retarded under this and sub recognized degree in Atkins. No matter the Nebraska, jective standard. See Victor v. process due with which 1, 27, 127 L.Ed.2d 583 provided, retarded defendant is J., (Ginsburg, concurring part ever, rarely, hard fact is that he will if be able concurring judgment) (quoting with overcome immense hurdle of demon- Center, approval Federal Judicial Pattern strating nearly always subjective what is Instructions, (reason Jury Criminal at 17-18 diagnosis beyond medical a reasonable doubt. instruction)). able doubt nec That standard hearings oppor- evidentiary No number of essarily would result in execution of some reality tunities can overcome the undeniable individuals, case, petitioner like in this that mental retardation is not a matter that likely who "more than not” retarded. usually objectively can Indeed, determined petitioner even a re who can powerful disagreement among without ex- convincing tardation clear and evidence— perts. is "unequivocal evidence that ... and con vincing,” dissent also takes lack Cooper issue rel. ex v. Mitchell California Theater, empirical data in support this record to Bros.’ Santa Ana 93 n. fact that a (quoting reasonable doubt standard will too L.Ed.2d 262 McCormick, preclude finding often a of mental retardation C. Evidence at 679 (1954)), Concededly, where one is produce warranted. we are and sufficient to in the mind data, empirical aware no of such and we of the fact-finder "a firm conviction of truth,” exceedingly assume that such data be Montague, would United States v. 40 F.3d produce. (D.C.Cir.1994) difficult to But such data are not be executed — could required prove simple proposition Georgia’s regime. certainty to of under The one logic underlying analysis. any particularly petitioners, our If there is retarded retardation, justice system area in our criminal that dem- those with mild it mental is that that Atkins protects.

Indeed, in those offenders as noted to are unable contrib- Mental is a medical condition defendants retardation defenses, particularly fully through, to their diagnosed only among that is oth- ute under-developed conception of having an subjective re- a standard that things, er blameworthiness, knowledge a lack of of meaning to quires experts interpret facts, susceptibility and increased basic period observed over extended behavior authority figures. 536 influence of Moreover, the of men- of time. definition Thus, they 2242. at degrees tal includes of mental retardation confessions, make likely to false are more pro- from to range retardation that mild mitiga- likely prove to articulate and less found,9 wherever an offender falls and tion, attorneys, able their less to assist range, is to be within that there bound poor make witnesses in likely more experts disagreement some between the 320-21, own their defense. meaning about ascribable to the of- specifically 2242. cautioned subjectivity fender’s conduct. Given jeopardize “can impairments these that necessarily in that involved this medical is proceed- reliability capital fairness complete diagnosis, agree- which makes mentally retarded defen- against ings a among experts rarity, ment estab- 306-07, 122 Id. dants.” beyond a rea- lishing mental retardation of the reasonable Georgia’s formulation for all offenders within the sonable doubt prohibiting standard as means of doubt ren- range entire of this classification is those offenders who the execution impossibility. dered virtual enough degree evidence severe Indeed, uniformity opin- a lack of in the misapprehends fundamentally retardation exactly experts ions of the what charac- proof. high function case, particularly regard terized decreasing the risk of Georgia views it the mental retardation criterion of deficits erroneously will be error someone functioning. At the evi- adaptive skills actually retarded when deemed case, majority dentiary hearing in his state habeas only allocates to offender erroneously will presented testimony the risk that he Hill and written This con- experts deemed reports of several mental health standard, reasonable doubt ception agreed mildly who that he was all some, terms, very if not by its ensures retarded, con- experts whereas the state’s retarded offenders will be many, mentally that he was not. Most of these cluded Amend- executed violation experts personally met and evaluated ment. essentially all reviewed the same forming opinions. their documentation

Moreover, high- one when considers analyzing Yet in all of the available infor- subjective inquiry nature of the into ly func- regard adaptive mation in skills inquiry that is of- mental retardation —an experts opin- differed in their tioning, even rife with becomes clear- ten doubt—it data ions as to whether the demonstrated standard un- reasonable doubt er impairments consistent with mental retar- result in the execution of questionably will subjective typically to de- used exceedingly difficult grounded expert opin- IQ qualitative level people test with an of 50-55 scribe ion a reasonable doubt. approximately n. 70.” 536 U.S. (citation omitted). S.Ct. 2242 discussing mental retar- the definition of " dation, in Atkins 'mild' the Court noted example, expert, For Hill’s Dr. to specific, dation. addressed know- Toomer, Psychiatric testified that the affidavits from diagnosis, able facts. in con- teachers, friends, family regarding trast, and large is to a extent on medi- based history, which described personal “impressions” subjective cal drawn from loner, being and him as a isolative unable analysis and through experi- filtered well to interact with others social situa- diagnostician. process ence of the This tions, long-standing demonstrate a deficit very often it makes difficult the ex- interpersonal in social skills. The state’s pert physician to offer definite conclu- expert, Carter, however, Dr. concluded any particular patient. sions about information, background this same 429-30, Addington, 441 U.S. at being suggestive while of Schizoid Person- (internal omitted). citations ality Disorder, ultimately falls of short applies That caution special force diagnosis. disagreement such Given the determining the context mental retarda- experts meaning of the about the to attrib- legal tion. The during develop- ute to Hill’s behavior his criteria this condition period, the court are derived from the developed concluded that definitions not impairments by had demonstrated both the American Association on Men- adaptive (now behavior a reasonable tal Retardation the American Associ- However, doubt. the state habeas court ation Developmental on Intellectual and did find that this supported Disabilities) evidence Psychiatric and American likely conclusion that Hill was more than inquiry Association. The into whether not retarded.10 individual has exhibited sufficient deficien- adaptive cies in his skills—the second specifically has cau- prong three-pronged inquiry into tioned a high about the use of burden mental retardation —is so inherently sub- proof when a factual in- determination jective readily unclear that most cases volves medical psychiatric diagnoses: opinion will result differences of certainty Given the lack of and the falli- divergent psychiatric among conclusions bility psychiatric diagnosis, there is experts. circumstances, Under these only question serious as to whether a state those offenders who are so severely men- prove beyond could ever a reasonable tally they wholly retarded that unable doubt that an individual is both perform adaptive ill the most basic of likely dangerous be- to be .... The opinion haviors in the all experts subtleties will be psychiatric and nuances of di- agnosis to meet Georgia’s able virtually extraordinarily high render certainties be- such, yond reach in most burden. As Georgia’s procedural situations. The rea- re- sonable-doubt standard of gime effectively criminal law eviscerates the substance functions in its realm qualifies because there of what as mental retardation. specific portions 10. We mention these lished his preponder- mental retardation evidentiary record in Hill’s case Moreover, to illus- ance evidence. we must highly subjective inquiry trate the that must accept finding the state court’s factual place diagnosing take mental retardation. Hill has shown he is We note that the dissent makes numerous Thus, preponderance evidence. much pieces particular references to various evidentiary of the dissent's discussion of the presented evidence that the state court only legal record is not relevant ques- regarding claim Hill's of mental retardation. tion that was before the However, explicitly state of has only legal question before us challenging stated that the state here. finding court's factual that Hill has estab- enough” proven to be be- ls “significant retarded offenders mentally of “range consensus,” is national doubt—eviscerates the yond there reasonable about whom Atkins, U.S. of Amendment that command the mildly men- profoundly includes the mentally retarded shall not be execut- retarded, id. at 308-309 & n. tally ed, ... “contrary and is clear- therefore and Statis- Diagnostic see also 2242; law, Federal as determined ly established (4th Mental tical Manual Disorders of Supreme Court of the United by ed.2000). Atkins’s by limiting protec- Yet 2254(d)(1). § Atkins. in U.S.C. States” defi- offenders whose “mental tion those the district court’s Accordingly, we reverse enough significant prov- to be ciencies are of petition denial of Hill’s for writ habeas doubt,” Georgia a reasonable beyond able proceed- for corpus and remand farther announced in At- right has eviscerated this opinion. consistent with ings offenders, retarded kins mentally for all AND REMANDED. REVERSED that essentially has eliminated thereby many Georgia for constitutional HULL, Judge, dissenting: Circuit offenders.11 mentally retarded well before Atkins1 IV. Conclusion by Georgia led nation abolish- State Atkins prohibits mentally for ing penalty the death retard- only defendants, all retarded § ed defendants. See O.C.G.A. 17-7-131 retarded, profound the severe or (prohibiting penalty death where defen- appropri to create and it directs states proves beyond mental retardation dant all those procedures protect ate doubt). The national consen- reasonable Georgia’s The application individuals. against executing the retard- sus necessarily will reasonable doubt standard birth to the Atkins prohibi- gave ed mentally retarded result in the deaths of Georgia tion was consensus that started. identification. by incorrect offenders way very by And led the same Plainly, “appropri standard is not very same form— 17-7- statute way” vindicate a retarded ate 131(c)(3), (j) majority opinion —that right not to put offender’s constitutional claims violates by using a rea- now required the deference Applying to death. standard. sonable-doubt AEDPA, we that the conclusion under hold After Court— reached held that the reasonable-doubt stan- protects only Court Amendment

that the comports 17-7-131 whose retardation dard capital those offenders the execution says "require[d] have sonable doubt standard ensures that we The dissent part for preponderance evidence standard individuals who are nonetheless of the a more retardation claims because We not and do not national consensus. need 'necessarily stringent will result whether, example, the decide clear retarded individuals deaths standard, other, any convincing evidence J., Hull, Dissenting Opinion ....’” See similarly produce re would unconstitutional imposed such post, 20. We have no at note Georgia’s require We sults. hold recognize requirement. All have done is we capital must that a defendant ment prohibits execution of men that Atkins retardation a reasonable doubt persons is a tally as to whom there the command of Atkins. violates unsuitability pun "national consensus” of death, (2) that this "consensus” ishment Virginia, 1. Atkins plainly spectrum includes (2002). L.Ed.2d profound, and that the rea from mild to and Fourteenth Amendments. as right deny Amendment to eviscerate or Hill, Head v. Ga. 587 S.E.2d that right.2 “clearly Because there is no (“Hill III”). § 621-22 In 2254 established” regarding federal rule cases, federal courts do not review state of proof burden for mental retardation supreme courts’ de novo. Rath- decisions claims, AEDPA mandates that this lower er, Congress has restricted federal review federal court leave the Georgia Supreme to only supreme whether the state court’s decision Court alone—even if we believe it to, “contrary decision is or involved an or incorrect unwise—and affirm in this of, dearly application unreasonable estab- I respectfully case. dissent from the ma- law, lished Federal as determined jority opinion’sblatant refusal to follow the Supreme as of Court of the United States” express requirements of AEDPA. supreme

the date of court the state deci sion. Antiterrorism and Effective Death I. BACKGROUND (“AEDPA”), Penalty Act of 1996 codified important It is of proof burden 2254(d)(1) § (emphasis 28 U.S.C. add story issue that the whole of this case be ed). 2254(d)(1) Discussing specifically, I told. So start at the beginning. unanimously reversing two federal cir cuit relief, courts for granting habeas A. Mental Retardation Death legal Court has “A admonished: Penalty principle ‘clearly is established’ within the In long before Atkins meaning provision only this when it is Assembly General passed na- embodied in holding [Supreme] this tion’s first statute prohibiting — the execu- U.S. -, Court.” Thaler v. Haynes, tion of persons. - Specif- - 1171, 1173, 130 S.Ct. L.Ed.2d ically, 17-7-131(c)(3) (j) O.C.G.A. added); (emphasis Berghuis see v. — state: Smith, U.S. -, 1382, 1392,

1395-96, 176 (2010). [A may criminal] defendant L.Ed.2d 249 found “guilty but mentally retarded” if As the Georgia Supreme correctly jury, acting or court facts, trier of noted, Atkins, there no holding is any beyond a reasonable doubt that the finds other Court decision for that guilty is charged crime defendant matter, invalidating a reasonable doubt and If the court for standard mental retardation claims. or jury should make such finding, it opposite Just the is true. express shall specify so its verdict. ly left it for the states develop procedural and guides substantive de

termining who is retarded. Bob any the trial of case in which the —Bies, U.S. -, death penalty sought which com- (2009). 173 L.Ed.2d 1173 And in the 1, 1988, on July mences or after should 218-year history of our nation’s Bill of judge find accepting plea Rights, no United States guilty but jury retarded or the decision has suggested, ever much less or court in its verdict find held, burden guilty the crime charged defendant its can own so wholly burden an Eighth retarded, but mentally penalty the death Atkins, opinion, trial, majority are not fair on the based on the Fourteenth Amendment's Due punishment Amendment’s cruel and unusual prohibition. Process Clause and a defendant's about the court shall tarded offenders whom there is imposed and shall not be imprisonment national consensus. the defendant sentence life. S.Ct. at 2250. 7—131(c)(3),(j) (emphasis Supreme although Court added that O.C.G.A. The 17— added). “statutory definitions mental the states’ identical, [they] gener- are not later, v. Penry Lynaugh, in year One clinical ally conform to the definitions” es- 2934, 302, 106 L.Ed.2d 109 S.Ct. 492 U.S. tablished the American Association on (1989), Supreme the United States 256 (“AARM”) Retardation and the Mental Amend- that the concluded Court (“APA”). Psychiatric American Association the execution of the prohibit ment did not Atkins, 22, at 122 536 318 n. S.Ct. at U.S. Supreme mentally retarded.3 The Court 2250 n. time, “[o]nly one that, as of that noted currently re- Atkins, ... bans execution of

State Supreme In Court was care- guilty persons who have been found tarded not to fix the to ful burden of or 334, at capital offense.” Id. 109 S.Ct. rigid impose definitions of mental retarda- § 17-7- Georgia’s O.C.G.A. (citing at 2955 it Supreme tion. Court left 131(3)). to develop “appropriate” procedures states for mental-retardation determinations: 2002, persisted until

That condition in v. approach As our Ford Wain- Supreme States Court when United 399, 2595, wright, 477 U.S. Virginia, in Penry Atkins v. overruled (1986), regard L.Ed.2d 335 in- to 304, 2242, 153 L.Ed.2d U.S. sanity, to we leave the States task (2002), and declared appropriate ways to developing enforce punish “cruel unusual Amendment’s upon restriction their the constitutional prohibited the provision ment” execution execution of sentences. at Id. mentally retarded offenders. 315-21, 122 at S.Ct. 2249-52. omitted) (quotation marks Id. and brackets added). As (emphasis Su-

Although in Atkins Court case, very Court noted this preme against recognized a national consensus “made Supreme Court Atkins clear executing mentally persons, retarded entrusting power it was the states with the was a lack of con- that there notable said develop procedures necessary on how to determine offend- sensus newly recognized federal con- enforce retarded: ers III, at stitutional ban.” Hill 587 S.E.2d disagree- To the extent there is serious 317, (citing ment about 2250). offenders, determining it is retarded —Bies, -, Bobby in fact In v. which offenders are (2009), the .... all who claim to be 173 L.Ed.2d 1173 people Not impaired pointed be so as Court out mentally retarded will provide fall re- definitive range within “did Hill, statute, Turpin Shortly passage superseded, part §17- v. of O.C.G.A. after (1998). 131(c)(3) (j), Georgia Supreme Ga. 53-54 498 S.E.2d 7— Thus, challenge years upheld Atkins in a state constitutional thirteen before exe- penalty applied Court concluded that to the death as cuting mentally retarded defendant consti- who were tried before retarded defendants Fleming punishment cruel unusual tutes the effective date of the statute. defined Zant, (1989), at 342. in the Constitution. Id. 386 S.E.2d 339 259 Ga. I, when guides determining substantive a der conviction and death sentence. Hill person appeal, who claims mental retardation ‘will 427 S.E.2d 772. On direct Hill impaired as to fall made no be so Atkins’ claim mental retardation. [within ” (brackets compass].’ at 2150 In Hill filed a state peti- habeas decision, original). In its 2009 Bies Again tion. he made no mental retarda- repeated that Atkins had trial, years tion But five claim. after developing “left to the the task of States alia, petition allege, amended his inter ways appropriate to enforce the constitu- that he is executing tional restriction” on the mental- granted state habeas court Hill a writ (brackets omitted). ly retarded. corpus habeas for the purpose limited I turn to how Georgia reasonable- conducting jury trial on Hill’s mental doubt and statute Atkins intersect with claim, using a preponderance Hill’s case. of the evidence standard. The appealed, Georgia State and History B. Facts and Procedural Hill, Supreme Court reversed. Turpin Hill serving was a life sentence (1998) (“Hill 269 Ga. 498 S.E.2d 52 girlfriend. for the murder of his But he II”).4 Georgia Supreme The Court con prison. murdered person another in Us- § requirement cluded that 17-7-131’s board, ing a Hill bludgeoned nail-studded a defendant his mental retardation inmate, Joseph Handspike, fellow to death beyond a reasonable applies doubt to all in guard his bed. and a Several inmates defendants tried after the statute’s effec

witnessed the murder. tive date in 1988. Id. at 53-54. The Geor jail murder, gia Supreme Court up Even locked in remanded Hill’s to one case determine, Hill the state continued to kill. The habeas court to jury unani- with jury, mously convicted Hill of out whether Hill malice murder could establish and unanimously under the reasonable-doubt imposed death sen- standard that State, tence. See he is Hill v. Id. Ga. (“Hill (1993) I”). S.E.2d Despite remand, On the state or- habeas court 17-7-131(c)(3) §

the fact that O.C.G.A. evaluations, dered mental- conducted- (j) already exempted mentally retarded hearing, evidentiary then denied all of persons from execution at the time of Hill’s claims. The order concluded that trial, Hill’s Hill did not assert at trial that Hill proved had not he was mentally re- he was retarded. To the con- tarded under the reasonable-doubt stan- trary, Hill called clinical psychologist Wil- dard. The state employed habeas court Dickinson, liam who testified that Hill was the definition of mental retardation in (his IQ 77), slow was but not 17-7-131(a)(3), O.C.G.A. provides mentally retarded. (1) “mentally retarded” having means On appeal direct “significantly subaverage general intellec- (2) Court affirmed Hill’s mur- functioning,” malice tual “resulting in or asso- Nevertheless, (1) 4. The noted that years Hill was tried three that, after the effec- concluded extent that Hill’s men- 7—131(c)(3) tive date of challenged imposi- tal 17— retardation claim (either alleged Hill never at trial in 1991 or penalty, tion the death it fell within Geor- 1993) appeal on direct he that was mental- gia's “miscarriage justice” exception its II, ly retarded. Hill 498 S.E.2d at 52. There- default rules. Id. fore, procedurally Hill’s claim was defaulted. with state habeas adaptive problems be- seizures. impairments ciated the third prong. did not discuss during the court havior,” manifested “which developmental period.”5 Hill moved the state habeas court light its of Atkins. reconsider denial the state habeas prong, to the first As motion, Granting Hill’s state habeas beyond a Hill established found that court preponderance concluded that a court “significantly subav- doubt his reasonable applied the evidence standard should be functioning.”6 intellectual erage general Although mental retardation claim. however, did not from the state habeas court retreat prong, to the second As finding its earlier failed to show Hill failed habeas court found state retarded the rea- he he under beyond a reasonable doubt show standard, stated it sonable-doubt court adaptive behavior” “impairments had find Hill would “communication, self-care, home such to.be preponderance stan- under evidence skills, use of social/interpersonal living, dard. direction, resources, func- community self skills, leisure, work, academic

tional In the Geor- appealed. The State 2003 health, The habeas safety.” and state Supreme again gia reversed (1) histo- noted extensive work cowt Hill’s III, habeas See 587 state court. Hill ability to well “apparent ry and the majority opin- at 618. Because S.E.2d function (2) sav- employment,” disciplined in stick fully Georgia Su- ion does discuss motorcy- cars purchase decision, and ings plans Georgia I do. preme Court’s The (If) (5) (3) service, (1) cles, life, military social Court concluded: Hill could (6) skills, writing abil- had a trial on jury but have mental retardation weak sufficient 17-7-131(c)(3) living care in home under O.C.G.A. ity to himself for stress, (7) his trial in 1991 if he original guilt health time of periods and except statutory Hill Georgia's was 77. Dickinson also administered to parties agree that 5. All Peabody Vocabulary of mental retardation is consistent definition Picture Test in 1991 ("PPVT”), the AARMand APAclinical definitions on an which Hill earned estimated quoted in In Stri IQ mental retardation Atkins. show took the score of 74. Records Hill 1, State, pling 261 Ga. 401 S.E.2d grade, and PPVT when he was in second (1991), Court stated a 75. scored "significantly subaverage general in that the 1997, proceedings, In Hill's state habeas functioning” prong of the mental- tellectual using Daniel Grant evaluated Dr. Hill generally "is defined retardation definition Test, IQ IQ Intelligence and Hill re below,” Stanford-Binet "an test IQ In Jethro ceived an of 72. Dr. be score of 70 or below is not score conclusive” IQ only "an accurate within Adult In cause score Toomer administered Weschler variety range points, ("WAIS-III”) of several telligence Hill. Scale III reasons, IQ particular may be less accu score on the WAIS-III was Hill’s full-scale score Atkins, Similarly, Id. at rate.” IQ be noted score produced an affidavit from Dickinson Hill typically 70 and 75 "is considered tween stating finding of no that his earlier IQ function for the intellectual cutoff score was because mental retardation erroneous prong of the retardation definition.” mental information, inadequate based on and his was at 2245 at 309 n. U.S. IQ original testing Hill led inaccurate to an n. 5. II, misleading See result. Hill affidavit, at 52 1. In this Dickinson S.E.2d n. psychologist clinical 6. Before trial in opined that WAIS-R overestimated tire 1991 using Weschsler evaluated Hill Dickinson IQ by points. 3-7 Scale, ("WAIS-R”) Intelligence Revised Adult IQ score the WAIS-R test. Hill's full-scale on one, Assembly had asked but he waived that ... originally General was (2) right; Hill entitled to have the remains within constitutional jury state habeas court—not his in establishing bounds a procedure for —assess (3) claim; ap- mental retardation considering alleged mental retardation plied retroactively, but Atkins entrusted to exemption that limits the to those whose proce- the states the task of developing mental significant deficiencies executing dures to enforce ban enough to provable beyond a reason- retarded; “nothing in Atkins able doubt. apply any particular instructs the states to (citations omitted). at 622 It remanded retardation Hill’s case to the state habeas court for claims”; deci- Court’s entry of an denying order Hill’s state ha- Oregon, sion Leland v. petition. beas id. at See 622-23. The (1952), 96 L.Ed. 1302 state habeas court reinstated its earlier upheld as constitutional the reasonable- finding order failed to claims, insanity doubt sup- standard for a reasonable doubt. ported Georgia’s reasonable-doubt stan- III, in Hill’s dard case. Hill S.E.2d Hill filed a 2254 petition, 619-21. alleging Georgia’s reasonable-doubt standard for mental retardation violates

The Supreme Court concluded and Fourteenth Amendments. that Georgia’s reasonable-doubt standard district court denied Hill ap- relief. was constitutionally acceptable for mental pealed. retardation claims. Id. The Su-

preme explained Court that O.C.G.A. § 17-7-131’s reasonable-doubt II. STANDARD OF REVIEW acceptable reflected an legislative state § 2254 petition appeal and are choice to define as retarded those governed by AEDPA. v. See’y, Owen who defendants are able to their Corr., 894, (11th Dep’t 568 F.3d 907 retardation a reasonable — Cir.2009), denied, U.S. -, cert. 130 doubt: —1141, S.Ct. - L.Ed.2d higher [A] standard of serves to (2010). “Under AEDPA, our review of a final state Assembly’s enforce the General chosen ‘greatly habeas decision is circumscribed definition of what degree impairment is highly and deferential to the state qualifies as mentally retarded under ” Allen, courts.’ Payne 1297, v. 539 F.3d Georgia law for purpose fixing the (11th Cir.2008) 1312 (quoting v. appropriate penalty per- criminal Crawford Head, (11th 1288, Cir.2002)). 311 F.3d 1295 varying sons of impairment 2254(d)(1), Under 28 as U.S.C. amended capital

should bear for their .... crimes AEDPA, prisoner state cannot obtain that, [T]he Court in recognized federal habeas relief unless he can show despite a “national consensus” against of the state court decision “was con executing mentally retarded persons, to, trary an involved unreasonable ap might there be disagreement “serious of, plication clearly ... established Federal determining which offenders are law, as Supreme fact retarded.” determined Court In view of the lack ” national of the United .... consensus to which States 28 U.S.C. 2254(d)(1) added). persons impaired constitutionally In (emphasis en- this case, titled to exemption from the only question death sen- is whether tences, we Georgia Georgia conclude Supreme Court’s decision—that

1289 that rule and thus reversed for mental established” doubt standard the reasonable appellate constitutional —is Texas court. Id. at 1173-74. claims is to, actually “contrary Snyder, Supreme or involved unreasonable Court of, clearly explanation established Federal for a did stress that when application “invoke[s], juror’s challenge peremptory, law.” Id.7 demeanor,” judge’s hand the trial “first decisions, earlier, in recent noted two As “great[ importance”; observations” are ] unanimously reversed Court point peremptory did out that not court decisions for appellate circuit (based nervousness) not challenge was requirement to AEDPA’s adhering juror time exercised until some after legal “clearly es- principle the federal judge trial questioned state courts, federal like before lower tablished” juror’s recalled the de might have us, supreme court deci- can reverse state 479, Snyder, meanor. 552 U.S. at grant relief. federal habeas sion Despite at 1208-09. Batson and Thaler, (2010); Berghuis, 130 S.Ct. 1171 in Thaler con Snyder, Supreme Court (2010). The Supreme Court the Fifth far too much cluded Circuit “read ‘clearly “A legal principle is instructed: into those decisions” “no decision meaning pro- within the of this established’ clearly the categori this Court establishes a hold- only ivhen it is embodied in vision rule on which the [Fifth Circuit] cal Thaler, ing this Court.” have Appeals appears to relied.” Thal Musladin, (citing v. 549 U.S. Carey er, 1172, 1175. 130 S.Ct. at 70, 74, L.Ed.2d (2006); Taylor, Williams v. later, Smith, Berghuis month A L.Ed.2d unanimously reversed the Owen, (2000)) added); see (emphasis also decision, had conclud- Sixth Circuit’s (“‘Clearly at 907 established 568 F.3d determining jury whether a ed not the holdings, law’ means Federal was drawn from fair cross-section venire dicta, of the States United community, “courts should use Court.”). test un- comparative disparity to measure allegedly where ex- derrepresentation” the Thaler, Supreme unani

In Court small, group cluded and the defendant’s the Fifth Circuit’s deci mously reversed demon- comparative disparity statistics sion, concluded that a state which had represen- that African-Americans’ strated on a chal judge ruling court Batson County in the Circuit venires tation Court reject expla lenge must a demeanor-based Berghuis, unfair “was and unreasonable.” judge challenge for a unless that nation (citing at Ber- S.Ct. 1391 Smith v. 130 personally aspect observed recalls (6th Cir.2008)). 338 ghuis, F.3d juror’s on prospective of the demeanor Thaler, granting federal habeas relief effec- explanation is based. tively reversing Michigan Supreme at The Fifth con 1172. Circuit relief, habeas denial of Sixth Kentucky, Court’s cluded Batson v. 476 U.S. Missouri, (1986), relied Duren v. and Circuit on 90 L.Ed.2d 69 Louisiana, 58 L.Ed.2d 579 Snyder (1979).8 1203, 170 (2008),“clearly L.Ed.2d error, questions legal findings and mixed generally de novo con- for clear 7. We review of law and fact de novo. deny- by the district court in clusions reached Owen, § ing petition. 568 F.3d Hill's Supreme Court Duren set forth 8. The factual 907. We review the district court's required prima following showing a facie Circuit, Reversing the the United court found Hill has not shown he men- Sixth stated, doubt, tally Du Supreme States Court retarded reasonable “[O]ur hardly challenge finding. establishes —no less and Hill does not ren decision ‘clearly’ Smith was so—that denied his majority opinion The contends right impartial Sixth Amendment Georgia Supreme up- Court’s decision jury from fair drawn cross section holding Georgia’s statutory reasonable- community.” Berghuis, 130 S.Ct. contrary doubt standard is to the United Supreme The Court added: “[Neither Supreme States Court’s Atkins decision. any Duren nor other of this Court decision majority’s position Georgia’s is that specifies method test courts must use (which vanguard statute was at the representation measure the of distinc “national consensus” leading Supreme jury pools.” tive groups Id. at 1393.9 Court abolish the of men- 2254(d)(1)

These two Atkins) habeas decisions tally is now unconstitu- re-emphasize petitioner Hill must authority tional under the of Atkins —even “clearly show established” federal law in though require any Atkins does not fixed form of a States United proof, procedur- burden of and leaves that holding before this lower federal al decision to the states. For several rea- court can overturn a sons, the majority opinion “read[s] far too Court decision.10 Atkins, much into” and no decision of the

Supreme Court establishes the burden-of- III. DISCUSSION rule in mental retardation cases on Thaler, majority which the relies. Hill Although had a 17-7- under 131(j), well before to claim that he mentally retarded, Hill did not claim A. Atkins Procedural Rules Left trial, mental retardation at ap- direct States peal, or in original peti- his state habeas Rather, trial, years First, tion. five after

amended his petition to, state habeas claim no holding made reference much less a on, Thaler, retardation. The state habeas of proof. burden See petit jury claim that prisoner was not drawn from a Michigan federal habeas relief to be community: Michigan fair grant cross section of cause Sixth Circuit failed to appropriate Court's decision defer prima In order to establish a facie violation AEDPA). required by ence requirement, of the fair-cross-section (1) group defendant must show that the 10. Like the Fifth Circuit Sixth and Circuit alleged to be a excluded is "distinctive” Supreme decisions the Court reversed group community; repre- in the that the Berghuis, respectively, majori Thaler and the group sentation this in venires from ty opinion quotes governing the AEDPA stan juries which are dard, selected is not fair and prohibits grant which the of habeas reasonable in relation number of supreme relief unless the state court decision persons to, such the community; contrary application or an unreasonable of, that underrepresentation sys- this is due to "clearly established” federal law. See 535, group Quarterman, (5th tematic juiy- exclusion of the in the Haynes v. 561 F.3d 538 process. Cir.2009); 326, Berghuis, selection Smith v. 543 F.3d Duren, 364, (6th Cir.2008). majority opinion 439 U.S. at S.Ct. at 334-35 99 668. standard, ignores wholly then that AEDPA - Lett, -, 9. See also Renico v. U.S. especially "clearly 130 the fact that established” 1855, 1860, 1862-66, S.Ct. prior 176 L.Ed.2d 678 federal law must be embodied in United (2010) (reversing grant Supreme holdings. the Sixth Circuit’s States Court

1291 1173; Owen, provide procedural To not definitive F.3d at 907. did at 568 S.Ct. guides determining for when in Atkins substantive contrary, Supreme Court who claims mental retardation ‘will person to how agreement lack as

noted Atkins’ fall impaired [within so as to be determined, to be retardation is mental ” Bies, 129 S.Ct. at 2150. Bies compass.]’ doing procedures left the for expressly it clear that Atkins did not set forth made 317, 122 536 U.S. at so to the states.11 guidelines as to the burden of Allen, Holladay v. 2250; see also Bies even that Atkins repeated proof. Cir.2009) (“[T]he 1346, (11th F.3d 1353 555 developing task of “left to States the left states [Supreme] Court constitu- appropriate ways to enforce the determining for development standards tional restriction.” Id.13 retarded.”). an offender is when I By imply this not mean to for a do Atkins Therefore, no provides support Court in Atkins Supreme moment that the majority opinion’s argument. Hill’s or no that places concluded the Constitution Atkins’s decision to leave the task to upon procedures substantive restrictions law not not renders federal states may determining employ state established,” makes “clearly also retardation; it simply did not consider or court, by “wholly inappropriate this issue, burden-of-proof reach the and nei- fiat, con- judicial to tell the States how to any has subsequent Supreme ther Court inquiry a defendant’s mental duct an into Nor I opinion. gainsay possibility do Johnson, In re 334 F.3d retardation.” may later deter- Supreme Court (5th Cir.2003) (noting that 403, 405 mine that reasonable-doubt standard for governing its procedures left explicitly establishing excep- the mental retardation states).12 implementation to the constitutionally imper- tion Bies, in 2009 AEDPA, Court But missible. under arewe Atkins] opinion concerned with what United States Sú- “[its] [in reaffirmed Moreover, convincing require- Geor clear and evidence the Atkins cited the date gia any 17-7- statute issue here — O.C.G.A. was one in "the ment made absence of now, 131, then, required Court”). guidance from the State proven reasonable supreme courts are not constrained AED- U.S. at doubt—without criticism. 536 PA like federal circuit courts are. 9, n. & n. 9. 313-14 & 2248 hardly surprising It is therefore supreme split on the 12. The state courts penalty Georgia's post-Atkins death three in mental retardation burden of issue 809, cases, Holsey, v. 281 Ga. 642 Schofield See, Grell, 516, e.g., State v. 212 Ariz. cases. denied, 1070, (Ga.), 56 cert. 552 U.S. S.E.2d 696, (2006) (finding P.3d clear 728, (2007); 169 L.Ed.2d 569 Head convincing mental re- evidence standard for Stripling, 277 Ga. 590 S.E.2d constitutional); People v. tardation claims is denied, (2003), cert. (Colo.2004) (stat- Vasquez, 84 P.3d (2004); State, King v. 158 L.Ed.2d 976 ing "the oí Atkins" substantive restriction (2000), Ga. cert. 539 S.E.2d 783 not limit "discretion in allo- does Colorado's denied, cating quantifying appropriate bur- (2002), de L.Ed.2d 880 III, proof’); Hill 587 S.E.2d at 621- den of capital petitions nied defendants’ certiorari State, 90, 22; but see Pruitt v. 834 N.E.2d constitutional reasonable- that made same (Ind.2005) (invalidating convincing clear and any challenge that Hill makes here. If doubt evidence scheme for mental retardation thing, this did not demonstrates clearly Su- claims based not on established “clearly establish—let alone establish”—that “implica- preme holdings Court but on the Atkins); Williams, Georgia's is un So.2d reasonable-doubt tion” of State v. 835, (La.2002) (stating to invali- constitutional. decision dispositive in holding Oregon’s could or should be was not and that rea- preme Court future, only insanity pleas it for but what was as of sonable-doubt standard constitutional, stating: Supreme time of the deci- was Court’s in III in sion Hill Today, Oregon only is the state accused, requires on a of insani- plea Beyond-a-Reasonable-Doubt B. Stan- ty, beyond a to establish that defense Upheld Insanity dard Defense states, twenty reasonable doubt. Some Second, any Supreme however, in the absence of place the burden on the ac- burden-of-proof holding insanity by pre- Court cused to establish his a cases, ponderance execution of the evidence or sim- some Supreme Court looked persuasion. ilar of measure While there insanity decisions in v. Court’s Leland is an evident these distinction between Oregon, 343 U.S. quantum proof two rules as (1952) (rejecting process L.Ed. 1302 due required, practical we see no difference challenge to reasonable doubt standard magnitude significant such as to be insanity establishing plea), and Ford determining ques- the constitutional Wainwright, 477 U.S. Oregon tion we here. merely re- face (1986) (recognizing Eighth 91 L.Ed.2d 335 quires a proof. heavier burden ... prohibits Amendment insane a practice The fact that followed persons allowing ways states to decide large number states is not conclusive restriction). to enforce that constitutional in a as to practice decision whether that determined, Georgia Supreme The process, accords with due it plain- but alia, “a inter that mental retardation claim ly considering worth in determining comparable insanity” claim of practice prin- whether the offends some guilty person “both relieve a ciple justice so rooted in the traditions statutory penalty least some of the and conscience of our people as to subject.” which he would otherwise be ranked as fundamental. III, 587 S.E.2d at 621. Both Leland Leland, at 1007 support Ford (footnote, quotation marks, and citation Court’s decision.14 omitted) added).15 (emphasis The Leland Leland,

At the time of Oregon was the noted that a of insanity defense required state that culpability, defendant lessened one’s which is the plea of insanity beyond establish a rea- Eighth same basis used for Amendment Nonetheless, sonable 796-97, doubt. protection Leland Atkins.16 Id. at Supreme Court determined that that fact at 1006-07. opinion majority gon's 14. The improperly respect here dis- policy determination of its misses Leland sanity in footnote and never discuss- to the burden of on the issue majority opinion es say Ford. The also policy gener- fails to since we cannot violates acknowledge ally accepted concepts that Ford involved the of basic standards of justice.” Amendment of a defendant not to be Id. at 72 S.Ct. at 1007-08. if executed insane and in Ford the Court left Leland’s reasonable-doubt standard 316, 318, 16. See 536 U.S. at fully though recognized intact even in- (stating, society 2250-51 "our views sane had defendant Amendment categorically retarded offenders as right not to be executed. criminal,” culpable average less than the ex "[t]heir deficiencies do warrant an sanctions, stated, emption they

15. Court in Leland also from criminal do "We ... personal culpability”). reluctant to Ore- interfere with diminish their Atkins, III, further, Ford, Cooper. as the See Hill 587 S.E.2d at 621- And impose any par- to Supreme Court refused the the proof right of on of ticular burden First, Cooper emphasized that the to be left “to the not executed insane historically had and consis- developing appropriate the task of State[s] recognized that “the criminal trial of tently restric- enforce the constitutional ways to incompetent pro- an defendant violates due of sentences.” upon tion execution [their] cess”; and the historical common-law 416-17, (plu- S.Ct. at at 477 U.S. proof incompetency standard of for in both Ford, majority a of the rality opinion). In English prepon- and American cases was Eighth that Court first held the Cooper, the derance of evidence. 517 U.S. prohibited execution of insane Amendment 354-56, at at 1376-77. In con- S.Ct. Then, portion in a of the lead persons. trast, Eighth there is no historical Amend- garnering plurality support, opinion right person ment a may that “[i]t Court stated not to be executed. And since the consti- high showing on be- some threshold that new, tutional there is no itself neces- prisoner will be found half of regarding historical tradition the burden to the number non- sary means control As right. recently that as repetitive or claims insani- meritorious 1989, Penry to bar refused the execution (empha- at Id. at ty.” of the retarded. Even Atkins added).17 sis not was based on historical tradition or the Cooper Argument C. Hill’s Clause, contempo- Due Process rary national that “the consensus reflected Oklahoma, Cooper Hill relies on in- evolving decency” standards 348, 116 134 L.Ed.2d 498 meaning Amend- formed (1996), an law— which held that Oklahoma 311-12, at ment. incom requiring defendant Indeed, Georgia’s at reason- petence to stand trial clear and convinc establishing doubt standard able the Due Process ing evidence—violated exception death mental retardation 366-69, at at 1383- Clause. Id.. old, years penalty, twenty-two

84. The Court conclud Although oldest such law in the nation. insanity that the cases Leland ed have recently employed more re other states either comparable Ford are incompetency elear-and-convineing-evidence prepon- than issue or tardation repetitive plurality opinion in Ford number 17. The discussed of nonmeritorious or prag- procedures insanity. legitimate which a state will determine claims of Other insanity-based may from un- supply exclusion execution matic considerations also procedural safeguards der the Amendment: boundaries feasibly provided. can be proce- must conclude that State's [W]e 416-17, (footnote S.Ct. at 2605 Id. sanity inadequate determining dures omitted). plurality opinion citation noted preclude federal redetermination of procedure was deficient for not Florida's sug- We do here constitutional issue. furnishing safeguards of: gest trial on issue of full opportunity prisoner evi for the to submit protect sanity will federal suffice to dence, prisoner opportunity for the to im interests; we leave to the State the task opinions peach challenge of the state- developing ways appropriate enforce the experts, place appointed health upon constitutional restriction its authority factfinding in the hands of a high ment of may of sentences. It be that some 413-16, party. 106 S.Ct. at showing prisoner neutral threshold on behalf of the necessary be found to control 2603-05. will means standards, position, more derance-of-evidence no le- AEDPA mandates that we leave proof nient predates Georgia’s. alone the Court’s denial Cooper’s Thus, analysis process due does challenge of Hill’s constitutional to Geor- help not Hill. statutory gia’s reasonable-doubt stan- Berghuis, dard.18 See at 1391- Opinion’s D. Majority “Evisceration” Thaler, 1382; Argument 1173. majority opinion’s argu- The core of the Even Atkins itself does not support (1) Atkins prohibits ment is majority opinion’s argument. Atkins did (2) mentally persons, execution of retarded not Eighth bestow a substantive Amend- person preponderance who meets the right ment rigid fixed and definition likely the evidence standard is more than “mentally persons.” retarded The Su- mentally retarded, thus Geor- preme in stressed gia’s reasonable-doubt rule sub- disagreement” “there is serious stantially burdens and how to “effectively eviscer- ates” the Amendment substantive determine who is retarded and right retarded not to be people all claim “[n]ot who to be executed. impaired retarded will be so fall as to range within the of- earlier,

As noted 218-year history fenders about whom there is national of our Bill Rights, nation’s no consensus.” held, Court decision has ever or even im- Indeed, 2250. various states use

plied, that a burden-of-proof standard on different definitions intellectual func- wholly its own can so burden an (some Amendment tioning right draw the IQ as to or line at of 75 deny eviscerate below, that right. no below, Because is or “clearly there some at 70 or others at 65 below)19 established” supporting federal law or and different factors assess- IQ very experienced test; Two judges expert district court cal who administers those in our circuit have examined the below by scores 76 are tested further similarly statute and a “clearly failed see experts, mental retardation and if the defen established” to a more lenient burden of IQ test, any dant then scores or below on mental retardation context. See hearing court conducts a at which the Head, 1:02-CV-1515-JEC, No. Ledford prove by defendant must mental (N.D.Ga. 2008 WL at *3 n. 6 Mar. evidence; convincing clear and a "determina 2008) (Carnes, J.) ("There language is no tion the trial court that the defendant’s suggest Georgia’s Atkins to standard is intelligence quotient sixty-five or lower es fact, constitutionally impermissible. presumption tablishes a rebuttable that the Georgia’s Court cited statute with retardation,” defendant has mental “a Head, approval.”); Ferrell v. F.Supp.2d intelligence quotient defendant with an of sev (N.D.Ga.2005) (Thrash, J.) ("At- enty or below” can still mental retarda abundantly kins makes it clear that each state convincing tion the clear and evidence permitted design system its own standard); 5-4-618(a)(2) § Ark.Code Ann. retardation, determining mental insofar as ("There presumption is a rebuttable of mental system wholly such does not erode the consti- retardation when a defendant has an intelli prohibition against tutional execution of the gence quotient below.”); of sixty-five per- retarded. The Petitioner fails to 15(d) ("An Comp. § 725 Ill. Stat. intel 5/114 - suade Georgia's this Court that statute so (IQ) ligence quotient pre of 75 or below is prohibition.”). erodes this sumptive retardation.”); of mental evidence See, e.g., (es- (“ Ky.Rev.Stat. 'Significantly Ariz.Rev.Stat. Ann. Ann. 13-753 532.130 tablishing procedure by subaverage general functioning defendants in intellectual capital pre-screened cases by psychologi- (I.Q.) quotient intelligence defined as an doubt, petition does a denial of Hill’s not functioning. And use states ing adaptive mentally determining for who in the of a re- result procedures different mentally retarded. Atkins ex- actually Georgia law.20 is tarded individual under states “the task of devel- to the pressly left any event, said, never because Atkins ways to enforce the con- oping appropriate (much held), less or even hinted at what regarding stitutional restriction” “appropriate” procedures are or are not retardation. implementing prohibition for Atkins right inex- Amendment is Eighth recognized, a does not pro- fortiori ability comply in his tricably up bound “clearly federal law vide established” for and with substantive the state’s majority accept opin- Hill’s claims. To determining requirements for mental re- argument require ion’s would us to run far True, v. 399 F.3d tardation. Walker Cf. language afield from actual and to Atkins’s (“While Cir.2005) (4th Walk- 319-20 abandon the deference AEDPA demands. ultimately derives from his er’s claim And the Court just United States Amendment, Eighth rights under year re-emphasized this has twice the con- mentally gov- is whether he is retarded imposes AEDPA on federal straints circuit law.”). Virginia Atkins’s sub- erned courts. Amendment is be- stantive majority opinion The focuses Geor- comports who stowed on an individual gia’s burden-of-proof procedure ig- processes with state determine every procedural protection nores other is retarded. Given that who Georgia’s Looking afforded statute. under Georgia’s failed reasonable-doubt to meet solely Georgia’s aspect proce- to one standard, failed to demonstrate that he he dures, context, placing without them retarded, therefore, failed Ford, inconsistent with where Su- Eighth Amendment impending preme process Court evaluated Florida’s Hill has not violation. Because established a a reasonable as whole.21 mental retardation below.”); (70) purport pro- a nationwide § 28- did not to establish seventy or Neb.Rev.Stat. 105.01(3) ("An intelligence quotient of seven- cedural or for substantive standard determin- reliably ty administered intelli- ing or below on mental retardation. See presumptive gence quotient test shall be evi- (noting 122 S.Ct. at 2250 “serious retardation.”); dence S.D. Codified of mental disagreement determining ... which of- ("An quo- intelligence Laws 23A-27A-26.2 retarded,” and that ”[n]ot fenders in fact exceeding seventy tient on reliable standard- people all who claim be intelligence presumptive ized measure of range within the impaired will be so as to fall defendant have evidence that the does not about retarded offenders whom significant subaverage general intellectual consensus”). there ais national Wiley Epps, functioning.”); F.Supp.2d (“In (N.D.Miss.2009) Mississippi, ap- 21. Florida law directed the Governor to IQ assessing the 'cutoff score' [an] of 75 is psychiatrists point a of three commission functioning pur- subaverage intellectual simultaneously the defendant examine retardation.”). poses diagnosing provide parte report then to an ex Governor. Court found that opinion's majority argument facile

20. The process Florida’s from number of suffered requires pre- Amendment (1) grievous defendants were not in- flaws: ponderance evidence men- standard for "truth-seeking process”; cluded at all in the tal claims because more strin- prohibited from defendants were submit- gent proof "necessarily result standard of will fact-finder; (3) ting there material to the in the deaths of retarded individu- challenge opportunity defendant to no for the only that a risk of exists ignores als” error experts; impeach state-appointed any proof, but also that Atkins burden of Ford, Georgia’s process, rights. when evaluated as a See 477 U.S. at whole, (Powell, J., procedural pro- part S.Ct. at 2610 concurring contains substantial (“The guarantees Hill concurring judgment) tections. law in the (1) plenary provide impartial to full and fair trial State should officer or rights: claim, part argu- his mental retardation of board that can evidence on receive and (2) trial; counsel, guilt capital including ment from the phase prisoner’s his to present experts expert psychiatric may his and all other rele- evidence that differ own (3) evidence; psychiatric vant to cross-examine and from the State’s own examina- (4) Beyond to impeach experts; requirements, the state’s have tion. these basic (the jury, factfinder if Hill leeway neutral had States should have substantial process to have mental to elected retardation decided determine what best balances stake.”) during guilt phase, judge at (emphasis and a if various interests otherwise) (5) added). issue; to orally decide the (6) factfinder; argue before the and to left leeway. Atkins the states substantial appeal any mental retardation determina- leeway by And has exercised evidentiary tion. Within the bounds of (lower IQ setting the level than some admissibility, virtually there is no limit to states, 75), which set and deter- a Georgia pres- the evidence defendant can mining that risk of error due to malin- in support ent his gering other factors is substantial and Thus, claim. stan- reasonable-doubt is a there need a robust burden of is one aspect dard but of a detailed and proof. This exemplified Hill’s case comprehensive fact-finding process under (clinical expert where Hill’s psychol- initial say law.22 This is not to what the Dickinson) ogist initially William testified

ultimate outcome of the constitutional is- IQ had and was not be, only sue this case should but serves retarded, and Hill never claimed mental to illustrate further how did not trial, retardation at on appeal, direct or in question decide the burden-of-proof here. his petition. first state habeas The habeas Court, (1) As did the Atkins Justice Pow- record also documents extensive concurring opinion well; ell’s made history ability Ford clear work to function (2) clearly any precise its refusal to disciplined savings establish plans purchase to (3) limit on fact-finding service; a state’s procedures military cars and motorcycles; determining insanity bar execu- active social life. This is not to process tion aside from a few core due importance diminish critical of the At- psychiatric opinion examination of defendant Ford that it not Ford made clear did only long; 30 minutes the insani- "suggest only a full on the trial issue of ty process exclusively evaluation was housed protect sanity will suffice the federal inter- branch, province within the executive Here, Georgia provides ests.” for a full gave the say Governor final over retardation, trial issue of mental com- fact-findings trigger needed to the constitu- plete age-old, with the law common reason- Ford, protection. tional See Furthermore, able-doubt standard. Justice ("In at 2605 no other circumstance join plurali- Powell’s decision the four-vote of which we are aware the vindication of a ty plucking in Ford was based not on one out right constitutional entrusted to the unreview- piece procedure, of Florida's rather on his able discretion of an administrative tribu- procedures assessment that all of "the fol- nal.") (plurality opinion). comport Florida this do lowed case with basic Id. at 106 S.Ct. at anything, Georgia's procedural protec- If fairness.” added). (emphasis go protections tions above and starters, required by Ford. plurality For unconstitutional, effectively re- mentally- statute as if not to be executed kins the Geor- Court’s deci- say versing It sion, was not con- AEDPA. refusing Court’s decision to follow gia Supreme federal law. trary “clearly established” CONCLUSION

IV. Georgia Supreme Court’s

Even if the or unwise considered incorrect

decision is if the judge, and even State

by a federal struck the inappropriately has competing two interests balance between Plaintiff-Counter-Defendant-Appellee GUEVARA, Jose (c)(3), precludes AEDPA 17 - 7—131 pe Cross-Ap their imposing courts from federal circuit llee, statute, § will, 17-7- invalidating a state 131(c)(3), unconstitutional, and revers Percovich, Proposed Luis Alfredo decision Georgia Supreme Court’s ing the Intervenor-Appellant, “clearly established” fed in the absence of law, Su which the United States eral holding is a admonishes

preme Court PERU, Ministerio REPUBLIC OF There is no United States that Court. Inter, Defendants-Counter- Del much suggesting, Supreme Court case Cross-Appellants, Claimants reasonable-doubt bur holding, that a less of mental retarda proof for claims den of Vidal, Individually, Fer Antonio Ketin Eighth Amendment.23 tion violates Individually, Rospigliosi, De nando question. not answer did Justice, partment of Defendants. Su agree I Whether No. 08-17213. not, requires AEDPA preme Court or affirm the denial this federal court Appeals, United States Court Indeed, I need petition. Hill’s 2254 Eleventh Circuit. question as to

decide the constitutional 18, 2010. June statute, say proof Georgia’s burden only the United States I it either and thus has not decided Georgia Supreme Court’s

must sustain the I Accordingly, must dissent

decision. invalidating a state majority’s

from the beyond a reasonable doubt because sup- evidence in this record to 23. There is no Experts port proposition simply disagree. that the reasonable-doubt experts will unacceptably high triggers error years disagreed burden criminal cases have capital the burden matters, ballistics, case. Whether rate for in- such as on numerous unacceptably proof will result in an scheme serology, pathology, fin- sanity, analysis, DNA is, empirical ques- high part, an error rate analy- handwriting, and fiber gerprints, hair ill-equipped to measure tion that we are sis, eyewitness testimony, etc. reliability of on this There is no data the first instance. a burden-of- But that never invalidated has question in this record. At least in this standard. majority left to assert note record, majori- support the there is no data to any support, that a defendant will without ty's position. ever, prove he is rarely, be able to if

Case Details

Case Name: Warren Lee Hill, Jr. v. Derrick Schofield

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 18, 2010

Citation: 608 F.3d 1272

Docket Number: 08-15444

Court Abbreviation: 11th Cir.