Lead Opinion
In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully alleged that he is mentally retarded and ineligible
Although Georgia already prohibited executing mentally retarded defendants at the time of Hill’s trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia’s reasonable doubt standard of proof in O.C.G.A. § 17-7-131 violated the Eighth Amendment.
The national consensus against executing the mentally retarded that gave birth to the Atkins prohibition was a consensus that Georgia started by enacting the very same statute — § 17-7-131(e)(3), (j) — that petitioner Hill now claims violates Atkins by using a reasonable doubt standard. In Hill’s state habeas appeal in 2003, and after Atkins, the Georgia Supreme Court held that the reasonable doubt standard in § 17-7-131 comports with the Eighth and Fourteenth Amendments. Head v. Hill,
In this appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in 28 U.S.C. § 2254, the sole legal issue before this en banc court is:
Pursuant to AEDPA’s § 2254(d)(1), is the Georgia Supreme Court’s decision in Head v. Hill,277 Ga. 255 ,587 S.E.2d 613 , 620-22 (2003) — that Georgia’s statutory reasonable doubt standard for capital defendants’ mental retardation claims does not violate the Eighth Amendment — contrary to clearly established federal law, as announced in Atkins v. Virginia,536 U.S. 304 ,122 S.Ct. 2242 ,153 L.Ed.2d 335 (2002)?[2 ]
In § 2254 cases, federal courts do not review state courts’ decisions de novo. Rather, Congress restricted federal review to whether the state court’s decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” as of the date of the state court decision. 28 U.S.C. § 2254(d)(1) (emphasis added). Discussing § 2254(d)(1) specifically, and reversing federal circuit courts for granting habeas relief, the Supreme Court has admonished: “A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of this [Supreme] Court.” Thaler v. Haynes, 559 U.S. -,
As the Georgia Supreme Court correctly noted, there is no holding in Atkins, or any Supreme Court decision, invalidating a reasonable doubt standard for mental retardation claims. Just the opposite is true. Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded. Bobby v. Bies,
I. BACKGROUND
It is important to the burden of proof issue that the whole story of this case be told. So we start at the beginning.
A. Mental Retardation and the Death Penalty
In 1988, the Georgia General Assembly passed the nation’s first statute prohibiting the execution of mentally retarded persons. Specifically, O.C.G.A. § 17-7-131(c)(3) and (j) state:
[A criminal] defendant may be found “guilty but mentally retarded” if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is mentally retarded. If the court or jury should make such finding, it shall so specify in its verdict.
In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.
O.C.G.A. § 17-7-131(c)(3), (j) (emphasis added).
One year later, in Penny v. Lynaugh,
Then in 2002, the United States Supreme Court overruled Penry in Atkins v. Virginia,
Although the Supreme Court in Atkins recognized a national consensus against executing mentally retarded persons, it said that there was a notable lack of consensus on how to determine which offenders are mentally retarded:
To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded .... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.
Atkins,
In Atkins, the Supreme Court was careful not to fix the burden of proof or to impose rigid definitions of mental retardation. Instead, the Court left it to the states to develop “appropriate” procedures for mental retardation determinations:
As was our approach in Ford v. Wain-might,477 U.S. 399 ,106 S.Ct. 2595 ,91 L.Ed.2d 335 (1986), with regard to insanity, we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.
Id. (quotation marks and brackets omitted). As the Georgia Supreme Court noted in Hill III, the Supreme Court in Atkins “made clear that it was entrusting the states with the power to develop the procedures necessary to enforce the newly recognized federal constitutional ban.” Hill III,
Later, in Bobby v. Bies,
We turn to how the Georgia reasonable doubt statute and Atkins intersect with Hill’s ease.
B. Facts and Procedural History
In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, “Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop.” Hill III,
A jury unanimously convicted Hill of malice murder and unanimously imposed a death sentence. See Hill v. State,
On direct appeal in 1993, the Georgia Supreme Court affirmed Hill’s malice murder conviction and death sentence. Hill I,
In 1994, Hill filed a state habeas petition. Again he made no mental retardation claim. But five years after trial, Hill amended his petition to allege, inter alia, that he is mentally retarded. In 1997, the state habeas court granted Hill a writ of habeas corpus for the limited purpose of conducting a jury trial on Hill’s mental retardation claim, using a preponderance of the evidence standard.
The State appealed, and the Georgia Supreme Court reversed. Turpin v. Hill,
On remand, the state habeas court ordered mental evaluations, conducted an evidentiary hearing, and then denied all of Hill’s claims. In a May 2002 order, the state habeas court concluded that Hill had not proven he was mentally retarded un
As to the first prong, the state habeas court found that Hill established beyond a reasonable doubt his “significantly subaverage general intellectual functioning.”
As to the second prong, however, the state habeas court found Hill failed to show beyond a reasonable doubt that he had “impairments in adaptive behavior” such as “communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.” The state habeas court noted Hill’s (1) extensive work history and “apparent ability to function well in such employment,” (2) disciplined savings plans to purchase cars and motorcycles, (3) military service, (Jf) social life, (5) weak but sufficient writing skills, (6) ability to care for himself in home living except in periods of stress, and (7) health problems with seizures. The state habeas court did not discuss the third prong of the mental retardation test, which is onset before age 18.
After the Supreme Court issued Atkins in June 2002, Hill moved the state habeas court to reconsider its denial in light of Atkins. Granting Hill’s motion, the state habeas court in November 2002 concluded that a preponderance of the evidence standard should be applied to Hill’s mental retardation claim. Although the state habeas court did not retreat from its earlier finding that Hill failed to show he was mentally retarded under the reasonable doubt standard, the court stated it would
The State appealed. In 2003 the Georgia Supreme Court again reversed the state habeas court. See Hill III,
The Georgia Supreme Court concluded that Georgia’s reasonable doubt standard was constitutionally acceptable for mental retardation claims. Id. The Georgia Supreme Court explained that O.C.G.A. § 17-7-131’s reasonable doubt standard reflected an acceptable state legislative choice to define as mentally retarded those defendants who are able to prove their mental retardation beyond a reasonable doubt:
[A] higher standard of proof serves to enforce the General Assembly’s chosen definition of what degree of impairment qualifies as mentally retarded under Georgia law for the purpose of fixing the appropriate criminal penalty that persons of varying mental impairment should bear for their capital crimes .... [T]he Court in Atkins recognized that, despite a “national consensus” against executing mentally retarded persons, there might be “serious disagreement ... in determining which offenders are in fact retarded.” In view of the lack of national consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, we conclude that the Georgia General Assembly ... was originally and remains within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.
Id. at 622 (citations omitted). The Georgia Supreme Court vacated the state habeas court’s November 2002 order (granting Hill’s motion for reconsideration and finding that Hill had established he was mentally retarded by a preponderance of the evidence). Id. at 623. The Georgia Supreme Court remanded Hill’s case to the state habeas court for entry of an order denying Hill’s state habeas petition. See id. at 618, 622-23. On remand, the state habeas court reinstated its May 2002 order, finding Hill failed to prove mental retardation beyond a reasonable doubt. The state habeas court’s final order does not contain a preponderance of the evidence finding either way.
In 2004, Hill filed a § 2254 petition, alleging that Georgia’s reasonable doubt standard for mental retardation violates the Eighth and Fourteenth Amendments. The district court denied relief. Hill ap
II. STANDARD OF REVIEW
Hill’s § 2254 petition and appeal are governed by AEDPA. Owen v. Sec’y, Dep’t of Corn.,
In 2010-11 alone, the Supreme Court has reversed circuit appellate courts in ten decisions for not adhering to AEDPA’s requirements. See Bobby v. Dixon, 565 U.S. -,
Starting with Haynes, the Supreme Court instructed: “A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of this Court.” Haynes,
In Haynes, the Supreme Court unanimously reversed the Fifth Circuit’s decision, which had concluded that a state court judge in ruling on a Batson challenge must reject a demeanor-based explanation for a challenge unless that judge personally observed and recalls the aspect of the prospective juror’s demeanor on
A month later, in Berghuis v. Smith, the Supreme Court unanimously reversed the Sixth Circuit’s decision, which had concluded that in determining whether a jury venire was drawn from a fair cross-section of the community, “courts should use the comparative disparity test to measure underrepresentation” where the allegedly excluded group is small, and the defendant’s comparative disparity statistics demonstrate that African-Americans’ representation in the County Circuit Court venires is “unfair and unreasonable.” Berghuis,
Reversing the Sixth Circuit, the United States Supreme Court stated, “[0]ur Duren decision hardly establishes — no less ‘clearly’ so — that Smith was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community.” Berghuis,
In Lett, the Supreme Court again reversed a Sixth Circuit decision concluding that the Michigan Supreme Court had unreasonably applied Supreme Court precedent regarding the Double Jeopardy Clause.
We have explained that an unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable. This distinction creates a substantially higher threshold for obtaining relief than de novo review. AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.
Id. at 1862 (citations and quotation marks omitted). The Supreme Court emphasized that “AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Id. at 1866.
Richter concerned a Ninth Circuit decision holding that the California Supreme Court had unreasonably applied the Supreme Court’s Strickland v. Washington ineffective-counsel test by not concluding that the petitioner’s trial counsel was ineffective for failing to consult with blood-evidence experts. Richter,
A state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision. Yarborough v. Alvarado,541 U.S. 652 , 664,124 S.Ct. 2140 ,158 L.Ed.2d 938 (2004).... “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U.S. Ill,129 S.Ct. 1411 , 1413-14,173 L.Ed.2d 251 (2009) (internal quotation marks omitted).
... It bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable. See Lockyer, supra, at 75,538 U.S. 63 ,123 S.Ct. 1166 ,155 L.Ed.2d 144 .
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin,518 U.S. 651 , 664,116 S.Ct. 2333 ,135 L.Ed.2d 827 (1996) (discussing AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
The reasons for this approach are familiar. “Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Calderon v. Thompson,523 U.S. 538 , 555-556,118 S.Ct. 1489 ,140 L.Ed.2d 728 (1998) (internal quotation marks omitted). It “disturbs the State’s significant interest in reposefor concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” [Harris v.] Reed, 489 U.S. [255], at 282, 109 S.Ct. 1038 [103 L.Ed.2d 308 ] (KENNEDY, J., dissenting).
Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.
Richter,
And in Moore, as in Richter, the Supreme Court reversed a Ninth Circuit decision finding that a state court had unreasonably applied Strickland. Moore,
In another recent case reversing the en banc Ninth Circuit’s grant of § 2254 habeas relief, the Supreme Court admonished again that AEDPA’s § 2254(d)(1) standard “is a difficult to meet” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” and that “the petitioner carries the burden of proof.” Pinholster,
Then in Dixon, the Supreme Court reversed a Sixth Circuit decision concluding that the Ohio Supreme Court had, among other things, unreasonably applied Miranda v. Arizona,
These seven § 2254(d)(1) habeas decisions emphasize that (1) petitioner Hill must show a “clearly established” federal law in the form of a United States Supreme Court holding before this Court can find a Georgia Supreme Court decision unreasonable, and (2) this Court cannot find that highest state court’s habeas decision unreasonable unless “no fairminded jurist could agree with that [state] court’s decision.” Dixon, slip op. at 1. This AEDPA “standard of ‘contrary to, or involving an unreasonable application of, clearly established Federal law1 is ‘difficult to meet,’ because the purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction.” Greene v. Fisher, 565 U.S. -,
III. DISCUSSION
Hill does not challenge the state habeas court’s finding that Hill has not shown he is mentally retarded beyond a reasonable doubt. The AEDPA “deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear.” Loggins,
A Atkins Left Procedural Rules to States
First, the Supreme Court in Atkins made no reference to, much less reached a holding on, the burden of proof. See Haynes,
Atkins’s decision to leave the task to the states not only renders the federal law not “clearly established,” but also makes it “wholly inappropriate for this court, by judicial fiat, to tell the States how to conduct an inquiry into a defendant’s mental retardation.” In re Johnson,
In Bies, the Supreme Court in 2009 reaffirmed that “[its] opinion [in Atkins] did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation ‘will be so impaired as to fall [within Atkins’ compass.]’ ” Bies,
Atkins simply did not consider or reach the burden of proof issue, and neither has any subsequent Supreme Court opinion. We do not gainsay the possibility that the Supreme Court may later announce that a reasonable doubt standard for establishing the mental retardation exception to execution is constitutionally impermissible. But under AEDPA, we are not concerned with
B. Beyond a Reasonable Doubt Standard Upheld for Insanity Defense
Second, in the absence of any Supreme Court burden of proof holding in mental retardation execution cases, the Georgia Supreme Court reasonably looked to the Supreme Court’s insanity decisions in Leland v. Oregon,
At the time of Leland, Oregon was the only state that required a defendant to establish a plea of insanity beyond a reasonable doubt. Nonetheless, in Leland the Supreme Court determined that that fact was not dispositive and that Oregon’s reasonable doubt standard for insanity pleas was constitutional, stating:
Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt. Somе twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion. While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here. Oregon merely requires a heavier burden of proof .... The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Leland,
C. Hill’s Cooper Argument
Hill relies on Cooper v. Oklahoma,
First, Cooper emphasized that (1) the Supreme Court had historically and consistently recognized that “the criminal trial of an incompetent defendant violates due process”; and (2) the historical common law standard of proof for incompetency in both English and American cases was preponderance of the evidence. Cooper,
D. Hill’s Argument that Georgia’s Standard Undermines Atkins
Hill argues that (1) Atkins prohibits the execution of mentally retarded persons, (2) a person who meets the preponderance of the evidence standard is more likely than not mentally retarded, and (3) thus Georgia’s reasonable doubt procedural rule impermissibly burdens and effectively undermines the Eighth Amendment substantive right of the mentally retarded not to be executed.
As noted earlier, in the 219-year history of our nation’s Bill of Rights, no Supreme Court decision has ever held, or even implied, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right. Because there is no “clearly established” federal law supporting Hill’s position, AEDPA mandates that we not overturn the Georgia Supreme Court’s denial of Hill’s constitutional challenge to Georgia’s statutory reasonable doubt standard.
Atkins itself does not support Hill’s argument. Atkins did not bestow a substantive Eighth Amendment right to a fixed and rigid definition of “mentally retarded persons.” Indeed, various states use different definitions of intellectual functioning (some draw the line at an IQ of 75 or below, some at 70 or below, others at 65 or below)
It is undisputed that Georgia’s statutory definition of mental retardation is consistent with the clinical definitions cited in Atkins. Compare O.C.G.A. § 17-7-131(a)(3), with Atkins,
In any event, because Atkins never said, or even hinted at (much less held), what procedures are or are not “appropriate” for implementing the prohibition Atkins recognized, Atkins cannot possibly provide “clearly established” federal law for Hill’s claims. To accept Hill’s argument would require us not only to abandon the deference AEDPA demands, but also to ignore the clear language of Atkins itself about who is to decide what procedures are to be used to determine mental retardation.
Additionally, Hill focuses on Georgia’s burden of proof procedure and ignores the many other procedural protections afforded under Georgia’s statute and processes. Looking solely to one aspect of Georgia’s procedures, without placing them in context, is inconsistent with Ford, where the Supreme Court evaluated Florida’s process as a whole.
Georgia law also guarantees Hill the right: (1) not to be sentenced to death except by unanimous verdict, with no judicial override possible; (2) to a full and fair plenary trial on his mental retardation claim, as part of the guilt phase of his capital trial; (3) to present his own experts and all other relevant evidence; (4) to cross-examine and impeach the State’s experts and other witnesses; (5) to have a neutral factfinder (the jury, if Hill had elected to have mental retardation decided during the guilt phase, and a judge if otherwise) decide the issue; (6) to question prospective jurors about their biases related to mental retardation; (7) to have jurors decide mental retardation without being informed that a finding of mental retardation precludes the death penalty and without being informed of the defendant’s criminal record; (8) to orally argue before the factfinder; and (9) to appeal any adverse mental retardation determination. Within the bounds of evidentiary admissibility, there is virtually no limit to the evidence a Georgia defendant can present in support of his mental retardation claim. Thus, the reasonable doubt standard is but one aspect of a multifaceted fact-finding process under Georgia law. This is not to say what the ultimate outcome of the constitutional issue may or should be in future non-AEDPA cases, but only illustrates further how Hill’s challenge to the burden of proof standard should not be viewed in isolation.
As did the Atkins Court, Justice Powell’s concurring opinion in Ford made clear the refusal to clearly establish any precise limit on a state’s fact-finding procedures for determining the insanity bar to execution, aside from a few core due process rights. See Ford,
The Supreme Court in Atkins, as in Ford, announced an Eighth Amendment prohibition on executions in specified circumstances but never purported to decide or prescribe how states should procedurally implement that prohibition. Atkins left the states substantial leeway in enacting procedures to determine whether a capital defendant is exempt from execution because he is mentally retarded. And Georgia has exercised that leeway by setting the IQ level at 70, by affording a capital defendant the multiple and significant rights outlined above, and by determining that the risk of error due to malingering or other factors is substantial and that there is a nеed for a robust burden of proof. This potential for malingering is evidenced in this case (1) where Hill’s initial expert (clinical psychologist William Dickinson) initially testified Hill had an IQ of 77 and was not mentally retarded, and (2) even though Georgia provided a mental retardation bar to execution since 1988, Hill never claimed mental retardation at trial, on direct appeal, or in his first state habeas petition. In fact, the state habeas record documents Hill’s (1) extensive work history and ability to function well; (2) disciplined savings plans to purchase cars and motorcycles; (3) military service; and (4) active social life. This is not to diminish the critical importance of the Atkins right not to be executed if mentally retarded. It is only to say that the Georgia Supreme Court’s decision was not contrary to “clearly established” federal law and for that reason AEDPA bars our reversing it.
E. Hill’s Risk of Error Argument
Hill argues that Georgia’s burden of proof statute will inevitably result in the execution of some mentally retarded defendants because they might be able to prove they are mentally retarded by a preponderance of the evidence but not beyond a reasonable doubt. From this Hill extrapolates that the beyond a reasonable doubt standard is contrary to Atkins because it will result in the execution of some offenders who are mentally retarded but cannot prove it beyond a reasonable doubt. There are fundamental flaws in Hill’s argument.
First, Hill’s risk of error argument, like his other claims, ignores the fact that Atkins disavowed any intent to establish a nationwide procedural or substantive standard for determining mental retardation. See Atkins, 536 U.S. at 317,
Second, Hill’s risk of error inquiry asks and answers the wrong question. Instead of asking whether the decision of the Georgia Supreme Court was contrary to clearly established federal law as determined by the Supreme Court, it asks whether, under de novo review, the Georgia procedural requirement goes as far as it could to enforce the substantive constitutional prohibition the Supreme Court announced in Atkins. Because the Supreme Court has never considered that question, or even a similar one, it is necessarily a
A third critical flaw in Hill’s argument is that a risk of error exists with any burden of proof. Every standard of proof allocates some risk of an erroneous factual determination to the defendant and therefore presents some risk that mentally retarded offenders will be executed in violation of Atkins. The adjudication of all facts always involves a “margin of error ... which both parties must take into account.” In re Winship,
Two kinds of fact determination risks are possible when an offender alleges that he is mentally retarded. See id. at 370-71,
Although the preponderance of the evidence standard may present a smaller risk of the latter kind of error, even under that standard there is a risk that the trier of fact will erroneously conclude that an offender is not mentally retarded when, in fact, he is. Consequently, under Hill’s reasoning, even a preponderance of the evidence standard will result in the execution of those offenders that Atkins was designed to protect because it does not eliminate the risk that the trier of fact will conclude that the offender is not' mentally retarded when, in fact, he is. It only decreases the risk of that kind of erroneous conclusion. That necessarily would mean that those 28 states that require the defendant to prove mental retardation either by clear and convincing evidence (Arizona, Colorado, Delaware, Florida, and North Carolina) or by a preponderance of the evidence standard (23 states) have violated the Eighth Amendment because there will always be some risk of error in those two standards. The necessary result of Hill’s reasoning is that the burden of proof must be placed on the state and that the state must prove beyond any doubt that an offender is not mentally retarded. No state uses that standard. The effective result of Hill’s argument, then, is that every state’s death penalty statute or case law procedure is unconstitutional because none of them requires the state to prove the absence of mental retardation beyond a reasonable doubt. Or, to take Hill’s argument to its logical conclusion, beyond all doubt.
Indeed, under the reasoning Hill employs, virtually any state rule that allocates to the defendant at least some risk that the trier of fact will erroneously conclude that he is not mentally retarded would be insufficient to enforce the constitutional prohibition of Atkins. All kinds of rules serve to allocate the risk of an erroneous decision — procedural rules that determine who can participate in the presentation of evidence and argument, evidentiary rules that determine what evidence the trier of fact can consider, and decisional rules like the standard of proof at issue here. See Alex Stein, Constitutional Evidence Law, 61 Vand. L.Rev. 65, 67-68 (2008). Taken
And there is no reason to limit the insistence that all risk of error be borne by the state just to mental retardation cases. If Hill’s no-risk reasoning is accepted, it would give rise to similar claims about determining insanity and competency to be executed. After all, unless the state is requirеd to rule out those two mental conditions beyond all doubt, there will be, as Hill’s argument goes, some who are convicted and punished, even executed, although they were insane at the time of the crime, see Leland,
Fourth, there is no evidence in this record to support the proposition that the reasonable doubt standard triggers an unacceptably high error rate for mental retardation claims. Whether a burden of proof scheme will result in an unacceptably high error rate is, in part, an empirical question that we are ill-equipped to measure in the first instance. There is no data on this question in this record.
F. Dissent’s Reported Cases
In an effort to circumvent this lack of any evidence on the error rate, one dissent cites 22 reported capital cases in Georgia where mental retardation claims were raised. Infra, at 89-91 (Dissenting opinion of Barkett, J.). The dissent argues that out of those cases, “only one defendant has ever successfully established his mental retardation beyond a reasonable doubt.” Id. at 90. The dissent argues that this “confirms just how extraordinarily difficult it is for an offender to meet the beyond a reasonable doubt standard.” Id. at 89. Those purported statistics and that reasoning are faulty for multiple reasons.
First, the 22 case statistics. We note that: (1) in 5 of the 22 cases cited by the dissent, the defendant received a life sentence, not a death sentence, see Foster v. State,
Second, the dissent’s focus on only reported appellate decisions skews its analysis. The dissent overlooks the fact that in Georgia mental retardation is tried in the guilt phase of capital cases, not the penalty phase. When a Georgia capital defendant is found guilty but mentally retarded, he automatically obtains a life sentence and (1) may not appeal at all, or (2) may appeal as to issues that do not require discussion of the mental retardation issue, which was decided in his favor. Also unreflected in the dissent’s data are cases where a defendant offers evidence of mental retardation, but also proves he is innocent of the crime, thereby obtaining a verdict of not guilty (instead of guilty but mentally retarded), precluding any appeal. And, of course, defendants who have substantial evidence of mental retardation may plead guilty but mentally retarded, with the State’s acquiescence, and not appear in the reported appellate decisions for that reason. The dissent’s listing of 18 reported cases where a death sentence was imposed far from captures the universe of mental retardation issue cases. That Georgia has had the mental retardation bar for 23 years and the dissent can cite only 13 reported cases of a defendant not prevailing, if anything, suggests just the opposite of the dissent’s proposition.
Third, the dissent proffers no evidence that the defendants in those 13 reported cases actually are mentally retarded, or would be found to be mentally retarded under a preponderance of the evidence standard. There is no evidence at all of that.
Fourth, even if one were to consider the dissent’s skewed data, the fact remains that reported cases in Georgia actually show that judges and juries do find defendants guilty but mentally retarded under Georgia’s proof beyond a reasonable doubt standard. See, e.g., Hall v. Lewis,
Because the United States Supreme Court has never stated, in Atkins or elsewhere, that a reasonable doubt standard for mental retardation violates the Eighth Amendment, the dissents attempt to avoid this pivotal fact by making what are, in effect, procedural due process arguments. The primary dissent argues that Georgia’s burden of proof procedure, in practical operation, eviscerates the substantive Eighth Amendment right under Atkins. Infra, at 76 (Dissenting opinion of Barkett, J.). The dissent states that “the question before the Supreme Court of Georgia was whether Georgia’s burden of proof eviscerates the substantive constitutional right of the mentally retarded not to be executed” under Atkins. Id. In this regard, the dissent argues that: (1) “Georgia ... cannot indirectly authorize the execution of mentally retarded offenders through a procedure that in practical operation accomplishes that result”; and thus (2) the Georgia Supreme Court’s approval of the beyond a reasonable doubt standard for mental retardation claims is contrary to clearly established federal law, as announced by the Supreme Court in Bailey v. Alabama,
Although this en banc case and the Georgia Supreme Court decision under scrutiny are about the Eighth Amendment, the separate procedural due process provenance of this dissent’s argument is evident from the Bailey and Speiser cases upon which it relies. Neither Bailey nor Speiser are Eighth Amendment cases (or capital cases, or mental retardation cases). Bailey concerned a Thirteenth Amendment challenge to a state statute criminalizing the breach of a personal service contract. Bailey,
But the wholly separate issue of procedural due process under the Due Process Clause, however formulated, is not in the case before us. Rather, this case is about Hill’s substantive constitutional right under the Eighth Amendment. It is telling that the parties never mentioned either Bailey or Speiser in their briefs to the Georgia Supreme Court.
By attempting to transpose the holdings of Bailey (a Thirteenth Amendment case) and Speiser (a First Amendment case) into the Eighth Amendment context, the dissent makes the same error the Supreme Court identified in Moore. In Moore, as
H. Panetti and Procedural Due Process
The two other dissents in this case, (Dissenting opinions of Wilson, J., and Martin, J.), rely primarily on Panetti v. Quarter-man,
Panetti (1) does not involve Atkins or mental retardation, (2) does not discuss burdens of proof, and (3) was issued four years after the Georgia Supreme Court’s decision in Hill III. Each factor alone, and certainly collectively, is sufficient to demonstrate Panetti’s inadequacy for showing that the Georgia Supreme Court’s decision in Hill III is contrary to, or an unreasonable application of, clearly established federal law.
But there is something more. Panetti, if anything, shows why Hill’s claim fails here. Panetti relied on the prior decision of Ford, which had announced both a substantive Eighth Amendment right and a specific procedural due process requirement under the Due Process Clause for incompetency claims: the petitioner must have an opportunity to present evidence and argument. See Ford,
As to the minimum procedures for incompetence-to-be-executed claims, Ford announced that the “basic [procedural] requirements” include an opportunity to submit “evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination.” Ford,
Panetti is a straightforward application of AEDPA. The Court in Panetti concluded that: (1) Supreme Court precedent in Ford clearly established not only the substantive Eighth Amendment right not to be executed if incompetent but also certain minimum procedural due process guidelines under the Due Process Clause for bringing the substantive claim, and (2) the state court procedures afforded Panetti did not satisfy Ford’s procedural requirement of an opportunity to present expert evidence. Here, by contrast, Atkins established only a substantive Eighth Amendment right for the mentally retarded, not any minimum procedural due process requirements for bringing that Eighth Amendment claim. Importantly too, Panetti does not mention the burden of proof at all and thus did not establish federal law as to the burden of proof. Thus, the Georgia Supreme Court’s decision about the burden of proof cannot be contrary to, or an unreasonable application of, the controlling Supreme Court precedent in Atkins, or Panetti for that matter. AEDPA does not permit us, as the dissents’ approach would have us do, to import a procedural burden of proof requirement into Atkins (that expressly declined to adopt one) from Panetti (that did not mention the burden of proof), and then find that a state’s preexisting procedural standards are an unreasonable application of that imported standard.
IV. CONCLUSION
Even if the State of Georgia has somehow inappropriately struck the balance between two competing interests in § 17-7-131(c)(3), and even if the Georgia Supreme Court’s decision upholding that statute is considered incorrect or unwise by a federal court, AEDPA precludes a federal court from imposing its will, invalidating that state statute as unconstitutional, and granting federal habeas relief in the absence of “clearly established” federal law, which the United States Supreme Court admonishes is a holding of that Court. There is no United States Supreme Court case holding that a reasonable doubt burden of proof for claims of mental retardation violates the Eighth Amendment. Atkins did not ask or answer that question.
Whether we agree with the Georgia Supreme Court or not, AEDPA requires us to affirm the denial of Hill’s § 2254 petition. We do not decide whether Georgia’s burden of proof is constitutionally permissible, but only that no decision of the United States Supreme Court clearly establishes that it is unconstitutional. Simply put, Hill has failed to show “that no fair-minded jurist could agree” with the Georgia Supreme Court’s decision about the burden of proof, and thus this Court is “without authority to overturn the reasoned judgment of the State’s highest court.” Dixon,
AFFIRMED.
Notes
. Atkins v. Virginia,
. The Eighth Amendment issue is the sole question the parties were directed to brief, and we precisely quote the issue from the briefing instructions.
. Atkins is not based on the Fourteenth Amendment’s Due Process Clause and a defendant’s procedural right to a fair criminal trial, but only on the Eighth Amendment's cruel and unusual punishment prohibition. The narrow question before the en banc court thus concerns only the Eighth Amendment and AEDPA's highly deferential review of state court decisions.
. Shortly after the passage of O.C.G.A. § 17-7-131(c)(3) and (j), the Georgia Supreme Court upheld a state constitutional challenge to the death penalty as applied to mentally retarded defendants who were tried before the effective date of the statute. Fleming v. Zant,
. The Georgia Supreme Court noted that (1) Hill was tried three years after the 1988 effective date of § 17-7-131(c)(3) and (j), and (2) Hill never alleged (either at trial in 1991 or on direct appeal in 1993) that he was mentally retarded. Hill II,
. In Stripling v. State,
. Before trial in 1991, clinical psychologist Dickinson evaluated Hill using the Wechsler Adult Intelligence Scale, Revised ("WAIS-R”) test. Hill's full-scale IQ score on the WAIS-R was 77. Dickinson also administered to Hill in 1991 the Peabody Picture Vocabulary Test ("PPVT”), on which Hill earned an estimated IQ score of 74. Records show Hill took the PPVT when he was in second grade and scored a 75.
In 1997, in Hill's state habeas proceedings, Dr. Daniel Grant evaluated Hill using the Stanford-Binet Intelligence Test, and Hill received an IQ score of 72. In 2000, Dr. Jethro Toomer administered the Wechsler Adult Intelligence Scale III ("WAIS-III”) to Hill. Hill’s full-scale IQ score on the WAIS-III was 69.
Hill produced an affidavit from Dickinson in 2000 stating that his earlier finding of no mental retardation was erroneous because it was based on inadequate information, and his original IQ testing of Hill led to an inaccurate and misleading result. See Hill II,
. Hill does not complain about having the state habeas judge, as opposed to a jury, decide his mental retardation claim, given that he had a statutory right to raise the issue in his initial jury trial but he did not raise it until five years later, in state habeas proceedings.
. We review de novo the legal conclusions reached by the district court in denying Hill's § 2254 petition. Owen,
. The Supreme Court in Duren set forth the following showing required for a prima facie claim that a petit jury was not drawn from a fair cross-section of the community:
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren,
. One dissent criticizes our reference to these recent Supreme Court decisions and argues these cases are not in point because they involve "dual layers of deference,” Lett,
In this case we are obviously not taking a deferential view of, say, trial counsel’s performance in addition to deferring, as AEDPA requires, to any reasonable decision of the Georgia Supreme Court. That fact, however, does not change the AEDPA deference standard, which does apply here. Regardless of the standard of proof for the underlying claim, the Supreme Court has repeatedly instructed, as shown above, that our AEDPA review is highly deferential and we may not grant habeas relief unless the state court decision is contrary to or an unreasonable application of a prior Supreme Court holding.
. Moreover, as part of its national consensus analysis, the Atkins Court cited the Georgia statute at issue here — O.C.G.A. § 17-7-131, which then, as now, required mental retardation to be proven beyond a reasonable doubt. Atkins,
. The state supreme courts are split on the burden of proof issue in mental retardation cases. Compare State v. Grell,
. In three of Georgia’s post-Atkins death penalty cases, Schofield v. Holsey,
. The Supreme Court in Leland also stated, "We are ... reluctant to interfere with Oregon's determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice." Id. at 799,
. The plurality opinion in Ford discussed the procedures by which a state will determine insanity-based exclusion from execution under the Eighth Amendment:
[W]e must conclude that the State's procedures for determining sanity are inadequate to preclude federal redetermination of the constitutional issue. We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences. It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity. Other legitimate pragmatic considerations may also supply the boundaries of the procedural safeguards that feasibly can be provided.
Id. at 416-17,
. Two district court judges in our circuit have examined the Georgia statute in other cases and, like us, have similarly failed to see a "clearly established” right to a more lenient burden of proof in tire mental retardation context. See Ledford v. Head, No. 1:02-CV-1515-JEC,
. See, e.g., Ariz.Rev.Stat. Ann. § 13-753 (establishing procedure by which defendants in capital cases are pre-screened by psychological expert who administers IQ test; those with scores below 76 are tested further by mental retardation experts, and if the defendant then scores 70 or below on any IQ test, the court conducts a hearing at which the defendant must prove mental retardation by clear and convincing evidence; a "determination by the trial court that the defendant’s intelligence quotient is sixty-five or lower establishes a rebuttable presumption that the defendant has mental retardation,” but "a defendant with an intelligence quotient of seventy or below” can still prove mental retardation by the clear and convincing evidence standard), amended by 2011 Ariz. Legis. Serv. 89 (West) (replacing term "mental retardation” with "an intellectual disability”); Ark. Code Ann. § 5-4-618(a)(2) ("There is a rebut-table presumption of mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below.”); 725 Ill. Comp. Stat. § 5/114 — 15(d) (2010) ("An intelligence quotient (IQ) of 75 or below is presumptive evidence of mental retardation.”), amended by 2011 Ill. Legis. Serv. 97-227 (replacing terms "mentally retarded” and “mental retardation” with "intellectually disabled” and "an intellectual disability”); Ky.Rev.Stat. Ann. § 532.130 (" 'Significantly subaverage general intellectual functioning' is defined as an intelligence quotient (I.Q.) of seventy (70) or below.”); Neb.Rev.Stat. § 28-105.01(3) ("An
. We do not hold, as one dissent charges, "that states have complete discretion to choose any procedures to govern the determination of mental retardation.” Infra, at 72 (Dissenting opinion of Barkett, J.). We decide only the issue before us, which concerns only the standard of proof, and we hold only that the Georgia Supreme Court’s decision in Hill III was not contrary to, and did not involve an unreasonable application of, Afkins.
. Florida law directed the Governor to appoint a commission of three psychiatrists to simultaneously examine the defendant and then to provide an ex parte report to the Governor. The Supreme Court found that Florida’s process suffered from a number of grievous flaws: (1) defendants were not included at all in the "truth-seeking process”; (2) defendants were prohibited from submitting material to the factfinder; (3) there was no opportunity for the defendant to challenge or impeach state-appointed experts; (4) the psychiatric examination of defendant Ford was only 30 minutes long; and (5) the insanity evaluation process was housed exclusively within the province of the executive branch, which gave the Governor the final say over fact findings needed to trigger the constitutional protection. See Ford,
. If anything, Georgia’s procedural protections go above and beyond the protections required by Ford. For starters, the plurality opinion in Ford made clear that it did not "suggest that only a full trial on the issue of sanity will suffice to protect the federal interests.” Id. Here, Georgia provides for a full trial on the issue of mental retardation. Furthermore, Justice Powell’s decision to join the four-vote plurality in Ford was based not on plucking out one piece of Florida's procedure, but rather on his assessment that, considered collectively, "the procedures followed by Florida in this case do not comport with basic fairness." Id. at 399,
. Hill asks this Court to review the burden of proof standard in isolation. However, we should not ignore the full range of rights available to a capital defendant claiming mental retardation under O.C.G.A. § 17-7-131 merely because Hill — by raising his mental retardation claim not as part of his criminal trial as the statute contemplates, but only later in his state habeas case — did not take advantage of all the rights available to him.
. Although Bailey did not expressly rely on due process grounds in finding a constitutional violation, its focus on state procedural rules and its subsequent use by the Supreme Court suggest a due process analysis. See Speiser,
. When the Supreme Court in Panetti noted (1) that the state court's decision rested on the implicit finding that the procedures provided were adequate, (2) that "this determination cannot be reconciled with any reasonable application of the controlling standard in Ford,” and (3) "[t]hat the standard is stated in general terms does not mean the application was reasonable,”
Concurrence Opinion
concurring:
I concur only in the court’s judgment. I cannot quibble with the court’s finding that Supreme Court precedent does not prevent the State of Georgia from applying a beyond-a-reasonable-doubt standard to Hill’s claim that he is mentally retarded. However, I do not believe we ought to reach this conclusion for two reasons. First, burdens of proof are procedural rules and are governed by laws pertaining to procedural due process. Second, Hill raised his mental retardation claim — and the associated claim regarding the beyond-a-reasonable-doubt stаndard — in a state post-conviction proceeding, as opposed to during his criminal trial. These two points combine to form Hill’s true claim: that he deserves habeas relief because the State violated his procedural due process rights during a post-conviction proceeding. Such claims do not form the basis of habeas relief, and I would affirm the district court’s judgment on that ground.
Georgia law provides that defendants accused of murder may avoid the death penalty if they prove that they are mentally retarded beyond a reasonable doubt. O.C.G.A. § 17 — 7—131(c)(3). Hill could have raised this defense during the guilt phase of his 1991 criminal trial; for some reason, he did not. Turpin v. Hill,
The court and I part ways at the starting point of its analysis. The court accepts and responds to Hill’s argument as he presents it — that Georgia’s beyond-a-reasonable-doubt standard somehow violates
Burdens of proof are procedural rules governed by norms of procedural due process. See Medina v. California, 505 U.S. 437, 446-48,
With Hill’s argument framed in this way, the forum in which Hill made his argument is of paramount importance. We would of course address his due process claim if the allegedly foul process occurred during his criminal trial. E.g., Wright v. Sec’y for Dep’t of Corr.,
Due process violations during state post-conviction proceedings do not, however, form the basis of habeas relief. Carroll v. Sec’y, Dep’t of Corr.,
The alleged due process violation in Hill’s case occurred during a state post-conviction proceeding, and not during his criminal trial.
Hill should instead have used this alleged due process violation as a means for obtaining an evidentiary hearing in federal court. A hypothetical application of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 28 U.S.C. § 2254, to Hill’s case will demonstrate why this is so.
As my previous discussion implies, Hill’s only claim cognizable for habeas relief is that he is mentally retarded and cannot constitutionally be executed pursuant to the Eighth Amendment. Because the Georgia courts determined that he was not mentally retarded, Hill must first overcome 28 U.S.C. § 2254(d)’s deferential hurdle. Cullen v. Pinholster, 536 U.S. -,
If the federal court found the Georgia courts’ determination unreasonable, the federal court would then decide, in its independent judgment, whether Hill actually
At this point, Hill could have argued that the district court was required to hold an evidentiary hearing because the beyond-a-reasonable-doubt standard deprived him of a “full and fair hearing.” See Kelley v. Sec’y for Dep’t of Corr.,
BARKETT, Circuit Judge, dissenting, in which MARCUS and MARTIN, Circuit Judges, join:
Although Georgia was the first state to declare that the mentally retarded should not be executed, it is the only one to guarantee precisely the opposite result by requiring offenders to prove beyond a reasonable doubt that they are mentally retarded.
The fallacy underlying the majority’s opinion is its belief that because Atkins “made no reference to, much less reached a holding on, the burden of proof,” there is no “clearly established” Supreme Court precedent that explicitly tells us that the beyond a reasonable doubt standard is unconstitutional. Thus, the majority holds that it must defer to the state court’s decision upholding this standard. Taken to its logical conclusion in this case, such deference permits states to adopt procedures that effectively exclude nearly every mentally retarded offender from the protection of Atkins. This deference requires so detailed and demanding a level of specificity in Supreme Court holdings that it eliminates any federal review whatsoever. Indeed, the State’s position, endorsed by the majority, is that Atkins does not preclude the State from setting the bar of proof as high as it wishes or defining mental retardation to include only those persons whose IQ falls below 30, a level which includes only 4% of the mentally retarded, thereby leaving 96% of all recognized mentally retarded persons subject to execution. This cannot be squared with the command of Atkins, which protects all of the mentally retarded from execution— whether their mental retardation is mild or severe. And when a state court decision eviscerates the substantive constitutional right the Supreme Court has explicitly recognized, it is contrary to that Supreme Court precedent.
For the reasons amplified below, I believe that Supreme Court precedent has clearly established that no State is constitutionally permitted to execute mentally retarded offenders. Nor does the State have unfettered discretion to establish pro
I. Atkins Clearly Established that the Eighth Amendment Protects All Mentally Retarded Offenders from Execution
The majority first errs in suggesting that Atkins did not clearly establish that all of the mentally retarded are protected from execution. Contrary to both the majority’s assertion that “Atkins did not bestow a substantive Eighth Amendment right to a fixed and rigid definition of mentally retarded persons” and the State’s contention that it could, if it chose to do so, limit the protection of Atkins to those with an IQ of 30 or below, the Supreme Court extended the Eighth Amendment right to the entire class of mentally retarded, which it recognized in Atkins ranges from those with mild to profound mental retardation.
Relying on the medical consensus embodied in the clinical manuals of the American Psychiatric Association (APA) and the American Association on Mental Retardation (AAMR),
Moreover, within the universe of all mentally retarded individuals, 89% fall in the mildly mentally retarded range, a fact the Supreme Court recognized many years before Atkins was decided. See Cleburne Living Ctr.,
The state court’s decision, however, endorses the use of a standard of proof so high that it effectively limits the constitutional right protected in Atkins to only those who are severely or profoundly mentally retarded. In holding that Atkins applies only to “those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt,” Head v. Hill,
II. States May Not Procedurally Eviscerate Substantive Constitutional Rights
The majority also errs in holding that Atkins does not place any constitutional restraint on state procedures pertaining to the execution of the mentally retarded. In Atkins, the Supreme Court not only prohibited the execution of any mentally re
Notwithstanding the command to enforce the constitutional restriction, the majority holds that states have complete discretion to choose any procedures to govern the determination of mental retardation. Not only is this position based on a flawed reading of Atkins, it is also contrary to Bailey v. Alabama, which clearly establishes that if a State’s procedures transgress a substantive constitutional right, “in their natural operation,” those procedures are unconstitutional.
In Bailey, a defendant successfully challenged, as a violation of the Thirteenth Amendment, a state procedural rule. Id. at 244,
[WJhere the conduct or fact ..., itself falls within the scope of a provision of the Federal Constitution, a further question arises. It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. And the state may not in this way interfere with matters withdrawn from its authority by the Federal Constitution, or subject an accused to conviction for conduct which it is powerless to proscribe.
Id. at 239,
In Speiser v. Randall, the Court again imposed express constitutional limits on state procedural rules implicating federal constitutional rights in the specific context of confronting a state law placing the burden of proof on an individual.
More recently, in Ford v. Wainwright, the Court reiterated the constitutional limitation on a State’s power to prescribe procedures affecting the determination of a substantive constitutional right.
In sum, by holding that “Atkins does not require any specific burden of proof and explicitly leaves such procedural matters to the states” without limitation, the majority improperly defers to a state court ruling that is in direct conflict with Bailey v. Alabama and its progeny. Under these cases, a State cannot create procedures that effectively eviscerate a substantive constitutional right, but rather “must provide procedures which are adequate to safeguard against infringement of [the] constitutionally protected right[ ].” Speiser,
Thus, the question before the Supreme Court of Georgia was whether Georgia’s burden of proof eviscerates the substantive constitutional right of the mentally retardеd not to be executed. Rather than answering the question, as Bailey requires, of whether Georgia’s standard of proof necessarily results in that which Atkins has held is constitutionally prohibited, the state court wholly sidestepped the requisite analysis.
The state court’s erroneous decision, to which the majority defers, instead was based on inapplicable Supreme Court precedent, further depriving the state court decision of AEDPA deference. See 28 U.S.C. § 2254(d). Rather than relying on the clearly established law of Bailey, Speiser, and Ford, the state court looked to the Supreme Court’s decision in Leland v. Oregon,
The Supreme Court of Georgia’s decision fails to recognize that when a constitutional right is at issue, a State cannot chose a process that will effectively gut that right. And the majority condones this disregard of Supreme Court law by simply asserting that because Atkins did not expressly establish a particular standard of proof, the State can choose any procedural scheme it wishes. Clearly established Supreme Court law forbids this result.
III. Requiring Proof Beyond A Reasonable Doubt When Applied to the Highly Subjective Determination of Mental Retardation Eviscerates the Eighth Amendment Right of Mentally Retarded Offenders Not To Be Executed
Requiring the mentally retarded to prove their mental retardation beyond any
For any factual question, “[t]he more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” Cruzan v. Dir., Mo. Dept, of Health,
Moreover, not only is the risk of error allocated overwhelmingly to the offender, but it is also enlarged exponentially by the highly subjective nature of the inquiry into mental retardation, making it even clearer that the reasonable doubt standard unquestionably will result in the execution of those offenders that Atkins protects. Mental retardation is a medical condition that is diagnosed only through, among other things, a subjective standard that requires experts to assess intellectual functioning and to interpret the meaning of behavior long into the offender’s past. Given the imprecise nature of the mental retardation determination, “the possibility of mistaken factfinding inherent in all litigation,” Speiser,
Prior to its decision in Atkins, the Supreme Court had already expressed its doubt that psychiatric conditions could ever be proved beyond a reasonable doubt. In discussing the determination of an individual’s mental condition in the context of civil commitment, the Court recognized that “[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether [a litigant] could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous .... The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations.” Adding-
The determination of mental retardation — generally characterized as significantly subaverage intellectual functioning accompanied by significant deficits in adaptive skills that manifested before the age of eighteen
An individual’s intellectual functioning is measured through various standardized tests, the results of which are subject to variable interpretation.
This assessment also necessarily “looks backwards — past even the time of the crime and back into the developmental period,” United States v. Hardy,
Where the proof must be beyond a reasonable doubt, common sense tells us that requiring reliance on these unavoidably incomplete and subjective sources of information renders the Atkins claimant’s job a near-impossible task. Compounding the difficulty of this inherently subjective diagnosis is that all of the relevant proof will be presented to a judge or jury via the dueling views of mental health experts who have evaluated subtle and often contradictory aspects of the offender’s behavioral history, often times through second- or third-hand accounts of a long distant past not subject to direct observation. Because of the subjectivity of both the diagnosis and the documentation of the offender’s childhood, experts are bound to disagree about whether an offender is mentally retarded. Obviously, the less severe an individual’s mental retardation, the more susceptible his condition is to differing interpretations by the experts. For these offenders, the result of the experts’ dispute about whether the offender falls just within or just outside the ambit of mental retardation is some quantum of irreducible doubt — which in Georgia amounts to a death sentence.
Indeed, the Supreme Court discussed at length how Atkins himself was unable to convince a jury and the Virginia state courts that he was mildly mentally retarded because of the disagreement between his expert and the state’s expert on the meaning of his intellectual functioning and behavioral history. See Atkins,
Likewise, the proceedings in Hill’s case illustrate the inherent challenge of proving the fact of mental retardation beyond a reasonable doubt, again particularly for the mildly mentally retarded. After a lengthy hearing, the state habeas trial court found that Hill had proven beyond a reasonable doubt that he had an IQ indicating mild mental retardation. Yet, it also found that Hill had not demonstrated sufficient “deficits in adaptive skills functioning” béyond a reasonable doubt, only because there was no unanimity of opinion by the experts. Virtually all of the testifying experts personally met with Hill and reviewed essentially the same documentation, yet they disagreed about the meaning of Hill’s behavior during his developmental period. Thus, although the state habeas court ultimately found that
Moreover, as the trial proceedings in both Atkins’s and Hill’s cases demonstrate, it is apparent that mildly mentally retarded offenders — 89% of the universe of all mentally retarded
These adaptive abilities are frequently mischaracterized by judicial factfinders as evidence that the individual is not retarded. Indeed, this Court and the Fifth Circuit have recognized that mildly mentally retarded individuals are capable of holding jobs, driving cars, paying bills, taking care of their families, and so forth. See Thomas v. Allen,
Indeed, a review of published Georgia state court cases adjudicating mental retardation in the capital context confirms just how extraordinarily difficult it is for an offender to meet the beyond a reasonable doubt standard.
IV. Conclusion
No State has the power to deny citizens any of their federal constitutional rights. Atkins has recognized the federal constitutional right of mentally retarded offenders
. Note that, at the time of Hill's 1991 criminal trial, the Eighth Amendment did not prohibit the execution of the mentally retarded. Compare Penry v. Lynaugh,
. This statement assumes that Hill's criminal trial occurred after the Supreme Court decided Atkins. If Hill had raised his mental-retardation defense in during his 1991 trial, he would not have been able to argue that the beyond-a-reasonable-doubt standard conflicted with Atkins, for Atkins did not yet exist.
. Remember that the Georgia Supreme Court explicitly rejected the state post-conviction trial court’s attempt to re-open Hill's conviction via a limited writ of habeas corpus. Turpin v. Hill,
. The pre-AEDPA version of 28 U.S.C. § 2254(d) explicitly tied the “full and fair hearing” concept to due process. That provision provided that state court fact findings would be presumed correct unless, "the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing; ... [or] thе applicant was otherwise denied due process of law in the State court proceeding....” 28 U.S.C. § 2254(d)(2), (7) (1995).
. This appears to have happened in Hill’s case. Both the defense and the State presented the testimony of highly qualified, reputable expert witnesses. Hill's expert opined that Hill had significant adaptive-functioning limitations and therefore was mentally retarded; the State’s expert opined that he did not and therefore was not. To prevail under the beyond-a-reasonable-doubt standard, the post-conviction court had to not only agree with Hill’s expert; it had to find no basis for agreeing with the State’s expert's opinion, which served as the main source of reasonable doubt against Hill's mental-retardation defense.
.And, assuming he was granted a hearing, he would have to rebut the state court's finding that he was not mentally retarded with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S.
. Georgia is the only state to require proof of mental retardation beyond a reasonable doubt. Of those other states that impose the death penalty, twenty-three states and the federal government require the offender to prove his mental retardation by a preponderance of the evidence (Alabama, Arkansas, California, Idaho, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington). New Mexico and Illinois both recently repealed their death penalty but previously had required a preponderance standard. Another five states — Arizona, Colorado, Delaware, Florida, and North Carolina — have adopted a clear and convincing standard. Six states, Connecticut, Kansas, Montana, New Hampshire, Oregon and Wyoming, have not set a standard of proof.
. Under AEDPA, a federal court may grant habeas relief for a claim denied on the merits by a state court when the state court decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). No AEDPA deference is due where preexisting Supreme Court precedent "dictate[s]” a rule or result contrary to the state court’s decision. Williams v. Taylor,
The majority details a litany of unrelated cases recently handed down by the Supreme Court to remind us that AEDPA constrains our review. However, in all but one of the cases, the particular issue before the Court carried its own highly deferential standard of review, resulting in "dual layers” of deference, Renico v. Lett, -U.S.-,
. The AAMR is now known as the American Association on Intellectual and Developmental Disabilities (AAIDD).
. In Bailey, Alabama made it a crime to enter into a contract for employment with the intent to injure or defraud an employer by refusing to perform the contracted services after being paid. Id. at 227-28,
. In Speiser, the Court was asked to consider the constitutionality of a state statute requiring taxpayers to bear the burden of proving that “they are not persons who advocate the overthrow of the government,” which implicated First Amendment free speech rights.
. The majority disregards Bailey and Speiser concluding that they are not Eighth Amendment cases. Indeed they are not. Instead the Court’s pronouncement that “the state may not ... interfere with matters withdrawn from its authority by the Federal Constitution,” Bailey,
. The State itself at oral argument recognized that Georgia’s standard of proof beyond a reasonable doubt will result in the execution of some mentally retarded offenders.
. The Supreme Court has explained that the beyond a reasonable doubt standard shifts "almost the entire risk of error” to the party bearing the burden of proof. Addington v. Texas,
. See also Cooper v. Oklahoma,
. As Justice Harlan explained in his concurring opinion, “[b]ecause the standard of proof affects the comparative frequency of ... erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.” In re Winship,
. This reflects society’s belief that "it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship,
. See Gregg v. Georgia,
. The majority's argument on this point is internally inconsistent. On the one hand, the majority refuses to accept the possibility of error, arguing that because the states have unchecked authority to choose the procedures by which an offender must establish the fact of mental retardation, one who partakes of those procedures but fails to be labeled by the State as mentally retarded is therefore conclusively not mentally retarded. Under this reasoning, there can be no such thing as an erroneous determination of mental retardation — an offender is mentally retarded if and only if the output of the State's procedures declares him to be. By contrast, the majority later admits that "[ejvery standard of proof allocates some risk of an erroneous factual determination to the defendant and therefore presents some risk that mentally retarded offenders will be executed in violation of Atkins," and, under any standard of proof, there is a risk "that the trier of fact will conclude that the offender is not mentally retarded when, in fact, he is.” The majority cannot have it both ways.
Moreover, the majority's assertion that the beyond a reasonable doubt standard is not contrary to Atkins because it is merely "one aspect of a multifaceted fact-finding process under Georgia law” is beside the point. No matter how many procedures, hearings, and evidentiary opportunities Georgia provides, the law remains that every one of those procedural opportunities will be governed by one, and only one, standard of proof — beyond a reasonable doubt. Thus, the majority's concern that it is erroneous to consider the constitutionality of the standard of proof in isolation from the panoply of Georgia’s procedures is of no moment. In resolving whether Georgia’s standard of proof of beyond a reasonable doubt is contrary to Atkins' s command, it is understood that the entirety of the procedural scheme for the factual determination of mental retardation, including each of the specific procedural "rights” that the majority cites, is subjected to the most exacting standard of proof that our legal system tolerates. Thus, just as the majority urges that "we should not ignore the full range of rights available to a capital defendant claiming mental retardation,” we cannot ignore that each and every one of those "full range of rights” is constrained by the beyond a reasonable doubt standard of proof.
. Georgia’s definition of mеntal retardation essentially tracks the authoritative medical definitions quoted by the Supreme Court in Atkins. See
. For example, this circuit has recognized that the statistical phenomenon known as the Flynn Effect and the Standard Error of Measurement of plus or minus 5% can be applied by a test administrator to an individual’s raw IQ test score when arriving at a final IQ score. See Thomas v. Allen,
.The majority suggests that there is no finding in this case that Hill is mentally retarded by a preponderance of the evidence. There is no question that the state habeas court found this to be a fact. See Head v. Hill, No. 94-V-216, Order on Petitioner's Motion for Reconsideration of Denial of Habeas Relief (Ga.Super.Ct. Nov. 19, 2002) ("Under [the preponderance] standard, this Court would find Petitioner to be mentally retarded.''). That the state habeas court, on remand, complied with the mandate of the state supreme court to apply the higher standard of proof does not alter the fact that the state habeas court would have found Hill to be mentally retarded under a less stringent standard of proof.
The majority’s efforts on several occasions to engage in its own speculation about Hill's mental retardation is not only an impermissible attempt to re-adjudicate the fact of Hill's mental retardation but also goes astray of the sole legal question before this en banc court.
. The mildly mentally retarded comprise the largest percentage of the universe of mentally retarded individuals who would be in the position to mount an Atkins claim. See Penry,
. See Hall v. Lewis,
To support its conclusion that "there is no evidence ... that the reasonable doubt standard triggers an unacceptably high error rate for mental retardation cases,” the majority suggests that it is relevant that in five of these cases the defendants received a life sentence instead of a death sentence. In each of the cases, however, the defendant received a life sentence for reasons unrelated to his asserted mental retardation, even though he had raised a claim of mental retardation.
The majority also cites to four non-capital cases — Marshall v. State,
The majority also notes that in Walker v. State,
. And in that case, the State did not even mount a credible challenge to the offender's claim. Three experts testified that the offender was mentally retarded, and the state habeas court found their testimony scientifically sound and credible. Response Brief of Appellee/Petitioner, Lewis,
. The Supreme Court has recognized that these two types of error are inversely related, and that the beyond a reasonable doubt standard of proof reduces the risk of one type of error by maximally increasing the risk of the opposite error. Addington,
. Several Supreme Court cases establish that states may not require the individual putative holder of a substantive constitutional right to bear a significant majority of the risk of an erroneous determination of a fact that implicates the right. See e.g., Cooper,
.“In capital proceedings generally, [the Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability ... [because] execution is the most irremediable and unfathomable of penalties.” Ford,
Dissenting Opinion
dissenting, in which MARTIN, Circuit Judge, joins:
The majority today not only reaches the wrong answer, it asks the wrong question. Suppose that, instead of a beyond-a-reasonable-doubt standard, the State of Georgia required mentally retarded death-row inmates to prove their Atkins
We are not asking whether the Supreme Court has determined that the Constitution requires a particular burden of proof for Atkins claims; it plainly has not. We are not asking whether the Supreme Court has left it to states to draw the exact boundaries and define the precise contours of the right announced in Atkins; it plainly has. Our job, instead, is simply to ask whether it is beyond fair-minded disagreement that the boundaries applied by the State of Georgia in this case run afoul of Supreme Court holdings, including that of Atkins itself.
I believe that it is, and I endorse the substance of Judge Barkett’s dissent. However, I part company with Judge Barkett in that I tend to see this as an “unreasonable application” — instead of a “contrary to” — case under AEDPA and, therefore, conceptualize our inquiry as follows.
Atkins declared a federal constitutional right, but left it to the individual states to define that right’s exact boundaries— thereby creating a zone of discretion for state action.
Atkins relied, in large part, on a recently developed national consensus against executing every class of mentally retarded persons.
Upon turning to the cited portions of Ford, we discover that the Supreme Court’s delegation to the states has limits. After determining that it is unconstitutional to execute an insane person, the Court addressed what was required of states in the setting their own procedures. See Ford,
Yet the lodestar of any effort to devise a procedure must be the overriding dual imperative of providing redress for those with substantial claims and of encouraging the accuracy in the factfinding determination.
Id. (emphases added). I believe Judge Barkett’s opinion demonstrates beyond any reasonable dissent how Georgia’s procedures cannot be squared with this explicit admonition. And if there was any doubt about how those dual imperatives interact with our current deferential standard of review under AEDPA, it was resolved by the Supreme Court’s example in Panetti v. Quarterman,
In Panetti, the Supreme Court — in a materially indistinguishable posture from that which we occupy today — addressed whethеr Texas’s procedures for applying Ford’s general constitutional prohibition
The Supreme Court in Atkins unequivocally held that the Constitution prohibits the execution of mentally retarded persons.
As the Supreme Court did in Panetti, we must consider all relevant clearly established legal rules and standards to make a substantive determination, through the lens of the reasonable jurist, as to
The beyond-a-reasonable doubt standard is patently inaрpropriate in the Atkins context. Since the majority invokes the useful, but imperfect parallel of cases dealing with burdens of proof and mental illness, I rely upon the words of Chief Justice Burger, speaking for a unanimous Supreme Court, to illustrate the point:
The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for “factfinding” is a “reasonable medical certainty.” If a trained psychiatrist has difficulty with the categorical “beyond a reasonable doubt” standard, the untrained lay juror — or indeed even a trained judge— who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care.
Addington,
Just like a psychiatric diagnosis of mental illness, the psychological diagnosis of mental retardation deals not with “specific, knowable facts,” but, “in contrast, is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician.” What is more, unlike a diagnosis of mental illness, which deals solely with the defendant’s mental state today, a diagnosis of mental retardation relies on the defendant’s mental capacity years, if not decades, in the past. See, e.g., O.C.G.A. § 17-7-131(a)(3) (defining mental retardation as requiring intellectual deficiency during a person’s “developmental period”). Moreover, since in reality a mildly retarded defendant can only prove an Atkins claim using expert medical testimony, I am struck by the gross disparity between the certainty communicated to the factfinder by that type of expert opinion— a reasonable degree of medical certainty— and that required by Georgia’s Atkins burden of proof — proof beyond any reasonable doubt. What alchemy might allow a mildly retarded Atkins petitioner to transform these imprecise, subjective, and retrospective elements into a successful constitutional claim in Georgia is beyond my imagination.
Whatever standard the Supreme Court may one day set, even with the shield of AEDPA deference, Georgia’s current burden of proof does not honor the command of Atkins. As a consequence, I respectfully dissent.
. Atkins v. Virginia,
. Contrary to the majority's contention, the Supreme Court's denial of certiorari in three cases where Georgia inmates challenged the burden of proof for establishing mental retardation in no way reflects the Court's approval of Georgia's standard. See, e.g., Missouri v. Jenkins,
. Panetti provides the clearest and most instructive Supreme Court guidance on how we must conduct the inquiry before us. Although not a case specifically involving mental retardation (and, in the majority’s view, therefore completely inapposite), Panetti elucidates the standard of AEDPA deference due when federal courts consider the constitutionality of procedures that burden a petitioner's substantive constitutional rights.
Dissenting Opinion
dissenting:
Nearly forty-five years ago, the Supreme Court warned: “[w]ith faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and
As the Supreme Court did in Ford v. Wainwright,
Panetti in turn instructs us how to measure this “appropriateness” under AEDPA review. Indeed, Panetti is instructive for Mr. Hill’s case in many ways.
Atkins is an Eighth Amendment decision about whether, not when, a person may be executed. Thus, the detеrmination of whether a capital defendant is mentally retarded as a predicate to imposing a death sentence “calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” Ford,
Second, like Hill, Panetti involves a substantive Eighth Amendment prohibition against carrying out a sentence of death against a certain class of prisoners — the mentally retarded in Hill and the insane in Panetti. Third, in both cases AEDPA bars federal habeas corpus relief unless the state court decision is contrary to, or involves an unreasonable application of,
In light of the similarity of Mr. Hill’s case to Panetti, I cannot agree with the majority’s conclusion that AEDPA’s deference standard precludes us from finding that Georgia’s beyond a reasonable doubt standard is not contrary to or an unreasonable application of clearly established Supreme Court precedent. Just because Atkins, like Ford, announced a general standard does not mean that Georgia’s application of Atkins to Mr. Hill cannot be contrary to, or involve an unreasonable application of, Atkins’s constitutional restriction against executing mentally retarded defendants. On this issue, Panetti is clear:
That the [Ford] standard is stated in general terms does not mean the application was reasonable. AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced. The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner.
Panetti
This is so because the beyond a reasonable doubt standard for proving mental retardаtion is fundamentally at odds with the basis for the holding in Atkins. As detailed in Judge Barkett’s opinion, the state habeas trial court, after an extensive evidentiary hearing concerning mental retardation, has already determined that Mr. Hill is more likely than not mentally retarded, yet he cannot prove beyond a reasonable doubt that he is mentally retarded. Executing an inmate fitting this description does not serve the penological purposes of the death penalty identified in Atkins itself: deterrence and retribution. Atkins,
To conclude, Georgia’s beyond a reasonable doubt standard of proof is contrary to the Supreme Court’s longstanding recognition that death is different, and for that reason requires heightened reliability in the determinations underlying capital punishment. Specifically, the Supreme Court has clearly established that “the Eighth Amendment requires a greater degree of accuracy ... than would be true in a non-capital case.” Gilmore v. Taylor,
While federal habeas courts must accord state court decision substantial deference under AEDPA, we must be vigilant to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, — U.S. -,
. The majority is quite right that Georgia was the first state to ban execution of the mentally retarded. However, this fact sheds little light on the Eighth Amendment issue we undertake to decide here. In Ford itself, the State of Florida had a pre-existing ban on executing the insane. See Ford, All U.S. at 403,
. By saying Panetti is instructive to Mr. Hill's case, I do not mean to suggest that Panetti itself provides the source of "clearly established” federal law by which Georgia’s standard of proof must be measured. Panetti is relevant for a different reason. It illustrates how even a general constitutional standard may be applied in an unreasonable manner under AEDPA's deference standard. See Panetti,
. Judge Posner recognized in a different context,
A state, although limited in its right under the Constitution to put to death or even on trial a person who is mentally incompetent, Ford,477 U.S. 399 ,106 S.Ct. 2595 ,91 L.Ed.2d 335 (1986); Medina v. California,505 U.S. 437 , 451-53,112 S.Ct. 2572 , 2581,120 L.Ed.2d 353 (1992), is not constitutionally obligated to recognize a defense of insanity-several states have abolished the defense ...
Despears v. Milwaukee County,
. See also Gardner v. Florida,
. Furman v. Georgia,