Warren Lee Hill, Jr. v. Carl Humphrey

conditions of terms All other until or Expense,” or “Claims ments (emphasis added unchanged, Policy remain said to discontinue permission written parties). by by us. granted defense this endorse- of purposes For 13. will Expense”

ment, the term “Claims costs, fees, charges all

include attorneys des- by generated

expenses insured, and represent

ignated expenses costs, charges all other HILL, Jr., Petitioner- Lee Warren adjust- investigation, incurred Appellant, arbitration, settlement, defense ment, this claim which any of appeal or “Claims applies. otherwise

insurance HUMPHREY, Respondent- Carl cost include the Expense” will not Appellee. a claim adjusting or investigating No. 08-15444. insured, the employees salaried com- service self-insurance insured’s Appeals, States United any em- salaries wages or pany, Eleventh Circuit. operating any insured ployee and/or 22, 2011. Nov. any insured. expense bankruptcy, insolvency, The 14. insured, any re- or ceivership insured inability by or

fusal to this pursuant obligations its satisfy “Re- not reduce will

endorsement the en- set Limit” as

tained forth us to

dorsement, require nor will “Re- within any amounts

pay payment The Limit.”

tained ais by the insured limits”

“Retained obligation our precedent

condition for or any sums either pay defense any pay not shall

indemnity and we the in- and unless until sums

such lim- its “Retained has

sured satisfied

its.” not limits” shall “Retained The by any pay- or satisfied

be exhausted damages expenses claims

ments been covered would have “Re- policy. terms of not be utilized limits” shall

tained “claims” that

response by the terms covered

otherwise policy. of this

conditions Olive,

Mark Evan Law Offices Mark Olive, P.A., FL, Tallahassee, E. Brian S. (Court- Kammer and Thomas H. Dunn Appointed), Ctr., Georgia Resource Atlan- GA, ta, for Petitioner-Appellant. Burton, Attaway Patricia Beth GA Law Atlanta, GA, Dept., for Respondent-Appel- lee. DUBINA,

Before Chief Judge, and TJOFLAT, EDMONDSON, CARNES, HULL, BARKETT, MARCUS, WILSON, PRYOR, BLACK, MARTIN Circuit Judges.

HULL, Judge: Circuit proceedings, 1996 state habeas War- Hill, unsuccessfully Lee alleged ren Jr. he mentally ineligible retarded and Hill, prior holding and we now reiterate our penalty. the death inmate, to raise this row able a reasonable doubt death unconstitutional.”) in before the Atkins deci- well (citing claim not standard is 2002, in in because 1988 620-22). was issued sion1 III, Hill 587 S.E.2d nation Georgia by led the the State In appeal this under the Antiterrorism abolishing penalty death for the Penalty Death Act 1996 and Effective § 17- defendants. See O.C.G.A. retarded 2254, (“AEDPA”), § in 28 U.S.C. codified (1988 death prohibiting pen- statute 7-131 legal the sole issue before en banc proves mental retar- alty where defendant court is: doubt). beyond reasonable dation 2254(d)(1),

Although Georgia already prohibited § ex- Pursuant to AEDPA’s ecuting mentally retarded defendants at Supreme the Georgia Court’s decision trial, appeal, the time of Hill’s direct and Hill, 255, 277 v. Ga. 587 S.E.2d Head petition, Hill did not initial state habeas 613, 620-22 statu —that until five claim he was retarded tory capi reasonable doubt standard for 1996, after his 1991 trial. In Hill years tal defendants’ mental petition allege state habeas amended his Eighth claims does violate the time, for first and mental retardation the contrary to clearly estab Amendment — that Georgia’s he later claimed reasonable law, federal in At lished as announced § standard of O.C.G.A. 17- doubt 304, Virginia, kins v. 536 122 U.S. Eighth 7-131 violated the Amendment. (2002)?[2] 2242, 153 L.Ed.2d 335 against The national consensus execut- cases, §In 2254 federal courts do ing gave the retarded that birth review state courts’ decisions novo. de the was a consensus prohibition Atkins Rather, Congress federal review restricted Georgia by enacting very started court’s whether state decision 17-7-131(e)(3), (j) § same statute — —that to, or “contrary involved unreasonable petitioner Hill now claims violates Atkins of, application clearly established Federal using a reasonable doubt standard. law, determined Court 2003, appeal state and Hill’s habeas United States” as of date of Atkins, Georgia Suprеme after Court 28 court decision. U.S.C. standard in held doubt added). 2254(d)(1) (emphasis § Discuss Eighth § comports 17-7-131 2254(d)(1) ing specifically, reversing Hill, Fourteenth Head v. Amendments. granting federal circuit courts for habeas 277 Ga. 587 S.E.2d 621-22 relief, (“Hill has Court admonished: ”). III legal ‘clearly “A principle is established’ recently holding reaffirmed its Hill III meaning provision within the of this Georgia’s beyond a reasonable doubt holding when it is embodied in a of this proving standard for mental retardation is State, [Supreme] 559 Haynes, Court.” Thaler Stripling constitutional. See 289 (2011) (“We -, 1173, 175 U.S. 130 Ga. S.E.2d issue, (2010); very see previously Berghuis have addressed this Virginia, Eighth 1. Atkins v. 2. The Amendment issue is the sole brief, (recognizing question parties L.Ed.2d were directed to against national execution of men- consensus precisely quote issue we concluding tally persons, such briefing instructions. executions Amendment’s ban violated punishments). on cruel and unusual U.S. -, Smith, I. BACKGROUND (2010). AEDPA 176 L.Ed.2d important It is to the burden of “highly deferential standard established story issue the whole this case be evaluating rulings.” state-court Reni So beginning. told. we start at the Lett, U.S. -, co v. 1862, 176 L.Ed.2d A. Mental and the Retardation Death Georgia Supreme correctly As the Penalty

noted, holding is no there decision, Supreme invalidating a Court Georgia In General Assembly reasonable doubt standard for mental re- passed the prohibiting nation’s first statute opposite tardation claims. Just the is true. mentally of per- the execution it expressly Atkins left for the states to Specifically, § sons. O.C.G.A. 17-7- develop and substantive 131(c)(3) (j) state: guides determining who is [A criminal] defendant be found Bies, Bobby retarded. 129 556 U.S. “guilty but mentally retarded” 2145, 2150, S.Ct. if jury, or acting facts, court as trier 219-year And in history of our nation’s beyond a reasonable doubt that the Bill Rights, Supreme no United States finds guilty is the crime charged suggested, Court decision has ever much defendant held, and is If less retarded. the court burden of jury on wholly Eighth its own can so or should make such finding, burden an deny specify Amendment as to eviscerate or shall so in its verdict. that right.3 specific, Because there is no “clearly by

much less established” Su- In the trial of in any case which the preme Court precedent, federal rule re- penalty sought death which com- garding the burden of proof for mental July mences or after should claims, AEDPA mandates that judge accepting find in a plea of this federal court leave the Su- but guilty mentally retarded or jury preme Court decision alone—even if we or court verdict its believe it incorrect unwise—and affirm find guilty the crime charged Richter, Harrington case. See defendant retarded, but the death penalty -, 131 S.Ct. 178 (2011) (“It not be imposed shall and the court L.Ed.2d shall is not an unreason- imprisonment sentence the application clearly able defendant established Fed- eral for life. law for a state court to decline to apply specific legal rule that has not a. 17-7-131(c)(3), § (j) O.C.G.A. (emphasis squarely been established this Court.” added). (brackets quotation omitted)); marks Lett, (“We later, year Penny One v. Lynaugh, have ex- plained that ‘an unreasonable application L.Ed.2d (1989), of federal law different from an incor- United States ”). application rect of federal law.’ Eighth Court concluded that the Amend- 3. question Atkins is based on the Fourteenth The narrow before en banc court Amendment’s Due Process Clause and a de- only Eighth thus concerns Amendment procedural right fendant’s to a criminal fair highly and AEDPA's deferential review of trial, Eighth on the Amendment's court decisions. punishment prohibition. cruel and unusual Disabilities) Developmental al and prohibit the execution of the did ment (“APA”). Psychiatric American Association mentally retarded.4 time, that, Atkins, “[o]nly one as of that n. noted 536 U.S. at 317 S.Ct. execution currently ... bans n. AAMR’s defi- State 22. The and APA’s found guilty have been persons who tarded nitions of mental retardation contain three 334, 109 Id. at capital offense.” significantly requirements: basic sub- (citing O.C.G.A. 17-7- average general functioning, intellectual 131(j)). IQ generally reflected 70 or about below; limitations in function- adaptive Su

Then the United States ing; and before 18. Id. at age onset Penry Court overruled Atkins preme 3,122 n. at 2245 n. 304, 122 Virginia, (2002), and declared that the was care- “cruel and unusual Amendment’s ful not to fix the burden of or to provision prohibited the exe punishment” impose rigid definitions mental retarda- mentally retarded offenders. Id. cution of Instead, tion. the Court left it to the 315-21, 122 2249-52. S.Ct. at at develop “appropriate” procedures states to in Although the Court Supreme Atkins for mental determinations: retardation consensus recognized against national was in approach As our Ford v. Wain- persons, executing mentally retarded 399, 2595, might, lack that there a notable of con- said was (1986), with to in- regard how to which offend- on determine sensus sanity, we leave to the States the task of mentally are retarded: ers appropriate ways to enforce developing disagree- serious To the extent there is upon their constitutional restriction mentally ment about the execution execution of sentences. offenders, determining in it is retarded and (quotation Id. marks brackets omit- in fact are retarded which offenders ted). Georgia Supreme not- As the Court claim .... Not all who to be people III, in At- ed Hill Court impaired mentally will be so as retarded entrusting that it was kins “made clear range mentally fall within proce- power develop states with the whom there is a tarded offenders about newly rec- necessary dures to enforce the national consensus. Hill ognized constitutional ban.” federal Atkins, 317, 122 536 U.S. at S.Ct. at 2250. III, at (citing S.E.2d although Supreme Court added The 2250). 317,122 “statutory the states’ definitions mental Bies, 825, Later, Bobby identical, [they] gener- retardation (2009), conform to clinical definitions” es- ally pointed out that At- Court by the Association on tablished American (“AAMR,” provide kins “did not definitive now known Mental Retardation guides determining for or substantive as the American Association Intellectu- Ga. 498 S.E.2d 53-54 Shortly passage of O.C.G.A. 17- after the 7-131(c)(3) Thus, Georgia Supreme (j), years before thirteen Atkins challenge upheld state constitutional exe- Georgia Supreme Court concluded that applied penalty death to the cuting mentally consti- retarded defendant tried defendants who were before punishment as tutes cruel and unusual defined Fleming date statute. the effective Georgia Constitution. Id. Zant, (1989), 259 Ga. 386 S.E.2d S.Ct. 2242. statute, Hill, Turpin part by superseded in Dickinson, person gist when a who claims mental retarda- who William testified that impaired fall within IQ tion ‘will be so as to was 77 he was Hill’s ” 129 at 2150 compass.’ Atkins’ retarded. (brackets omitted). In its 2009 Bies deci- direct appeal On the Georgia sion, repeated Supreme Court Hill’s affirmed malice mur- to the task Atkins had “left States the I, der conviction and death sentence. Hill ways to developing appropriate enforce 427 S.E.2d at appeal, 772. On direct Hill executing cоnstitutional restriction” on no made claim mental retardation. (brackets omitted). Id. retarded. In Hill peti- filed a state habeas turn We to how the Again tion. he no made mental retarda- doubt statute Atkins intersect with trial, tion claim. But years five after Hill Hill’s ease. alia, petition amended his allege, inter he is mentally retarded. In B. History Facts Procedural state habeas court Hill granted a writ of serving while Hill life corpus habeas purpose the limited sentence for the murder of girlfriend, his conducting a jury trial on Hill’s mental person he prison. murdered another claim, using a preponderance Using board, a nail-studded Hill blud- of the evidence standard. geoned a fellow inmate to in his death bed. State appealed, and the Georgia slept, As his victim “Hill a two- removed Hill, Supreme Court Turpin reversed. by-six leg board that served as a in sink (1998) (“Hill 269 Ga. 498 S.E.2d 52 prison the forcefully bathroom and beat II”).5 The Georgia Court con- the victim numerous times with the board § requirement cluded that 17-7-131’s that about and the head chest onlooking prove a defendant his mental retardation prisoners pleaded with him stop.” Hill beyond a applies reasonable doubt to all III, 618. Hill S.E.2d “mocked the defendants tried the after statute’s effec- victim as he beat him.” Id. Even locked in tive date 1988. 53-54. Id. at The Geor- murder, up jail in for one Hill continued to gia Court remanded Hill’s case to kill. determine, the state habeas court to with- jury unanimously A Hill convicted jury, out a whether Hill could establish malice and unanimously imposed murder under the reasonable doubt standard that State, death sentence. See Hill v. 263 Ga. mentally he is Id. retarded. (1993) (“Hill J”). S.E.2d remand, Despite § the fact 17-7- On the state habeas O.C.G.A. court or- 131(c)(3) evaluations, (j) already and dered mental exempted mental- conducted an ev- ly persons identiary hearing, then execution and denied all of trial, time of order, Hill’s Hill May did not assert at Hill’s claims. In a trial that he was retarded. To state habeas court concluded that Hill had contrary, Hill called clinical psycholo- proven he retarded un- (1) that, Georgia Supreme 5. The Court noted that concluded to the extent that Hill’s men- years Hill was tried three after challenged the 1988 effec- tal imposi- retardation claim 17-7-131(c)(3) (2) § tive date of (j), and it penalty, tion death fell within Geor- (either Hill alleged never gia's "miscarriage at trial in 1991 or justice” exception to its 1993) Thus, appeal on direct in that he was mental- default rules. Id. at 53. II, ly retarded. Hill 498 S.E.2d at 52. There- has allowed death-sentenced inmates fore, procedurally Hill's claim was defaulted. raise the mental retardation bar in collater- Nevertheless, Id. Georgia Supreme proceedings procedurally al even if defaulted. (1) noted Hill’s extensive work histo- standard. court reasonable doubt der the employed the definition ability habeas court well ry “apparent function in O.C.G.A. 17-7- (2) of mental employment,” disciplined sav- such “mentally 131(a)(3), provides purchase motorcy- cars and ings plans to (1) having “significantly means retarded” (Jf) (5) (3) service, cles, life, military social general intellectual function- subaverage (6) skills, writing abil- weak sufficient in or associated with ing,” “resulting living in home ity to care for himself behavior,” adaptive impairments stress, periods health except in during developmen- “which manifested problems The state habeas with seizures. period.” Georgia’s definition essential- tal prong did not discuss the third court AAMR and APA definitions ly tracks the test, which is onset mental retardation be- mentioned Atkins.6 age fore prong, the state habeas As to the first After issued Atkins beyond that Hill court found established 2002, Hill in June moved state habeas “significantly doubt his subav- reasonable light its denial court reconsider functioning.”7 erage general intellectual motion, Granting Hill’s the state Atkins. however, prong, As to the second court in November 2002 concluded habeas Hill found failed state habeas court stan- preponderance evidence doubt that he reasonable show applied to Hill’s mental dard should be behavior” “impairments adaptive had Although retardation claim. the state ha- “communication, self-care, home such as court did retreat from its earlier beas skills, living, social/interpersonal use finding Hill to show he was failed resources, direction, self func- community skills, work, leisure, retarded under tional academic standard, health, court stated would safety.” The state habeas doubt State, Peabody Vocabulary Test Stripling In 261 Ga. 401 S.E.2d in 1991 the Picture 6. (1991), Georgia Supreme ("PPVT”), Court stated which Hill earned an estimated general IQ “significantly subaverage in- that the score of 74. Records show Hill took the functioning” prong mental tellectual grade he in second and PPVT when was generally "is defined as retardation definition scored 75. IQ IQ below,” that “an test an of 70 or proceedings, In in Hill's state habeas be- score 70 or below is not conclusive” using evaluated Hill Dr. Daniel Grant IQ only accurate within cause “an score Test, Intelligence and Hill re- Stanford-Binet range points, variety of several and for IQ an 72. In Dr. Jethro reasons, ceived score of particular score be less accu- Atkins, Adult In- Toomer administered the Wechsler Similarly, rate.” Id. 504. IQ ("WAIS-III”) telligence be- Court noted that an score Scale III Hill. IQ typically tween 70 and 75 “is considered on the WAIS-III was Hill’s full-scale score IQ cutoff score for the intellectual function 69. prong of the mental retardation definition." produced an Dickinson Hill affidavit from n. 122 S.Ct. at 2245 at 309 finding stating in 2000 that his earlier no " stated, '[m]ild’ n. 5. The Atkins Court also because it mental retardation was erroneous typically used to de- mental retardation information, inadequate was based on his IQ people scribe level 50-55 IQ testing original led to an inaccurate of Hill approximately Id. at n. 70.” II, misleading result. See Hill at 2245 n. 3. affidavit, at 52 n. 1. In this Dickinson S.E.2d opined that the 1991 WAIS-R overestimated psychologist 7. trial in clinical Before IQ points; given by 3-7 Dickinson's Hill’s using the evaluated Hill Wechsler Dickinson in a original this still results score Scale, ("WAIS-R”) Intelligence Revised Adult range of 70-74. IQ on the WAIS-R test. Hill's full-scale score to Hill was 77. Dickinson also administered appropriate find Hill to be retarded under the penalty criminal that per- preponderance of evidence standard. varying impairment sons of mental their capital should bear for crimes .... In Geor- appealed. The State 2003 the that, Court in recognized [T]he Atkins again gia Supreme Court reversed the despite against a “national consensus” III, state habeas court. See Hill executing mentally persons, retarded Georgia Supreme The S.E.2d might there disagreement be “serious (1) Hill Court concluded: could have had a in determining ... which offenders are jury trial on mental retardation under in fact retarded.” view of the lack of 7—131(c)(3) O.C.G.A. at the time of 17— national consensus as to which mentally original guilt his trial 1991 if he had impaired persons constitutionally are en- one, right; asked for but he waived that exemption titled to an from death sen- (2) Hill was entitled to have the state tences, we conclude that the Georgia jury court—not a habeas his men- —assess Assembly General ... originally was claim;8 tal applied Atkins within remains constitutional retroactively, but Atkins entrusted establishing bounds in procedure developing procedures states the task of considering alleged mental retardation executing enforce the ban on exemption that limits the to those whose retarded; “nothing in Atkins instructs mental significant deficiencies any particular to apply states enough to provable beyond a reason- claims”; to mental retardation able doubt. Court’s decision in Leland, (citations omitted). v. Oregon, 343 U.S. Id. at 622 The Georgia (1952), upheld 96 L.Ed. 1302 Supreme Court vacated the state habeas as constitutional the reasonable doubt court’s November 2002 (granting order claims, insanity standard for supported Hill’s motion for reconsideration and find- Georgia’s doubt standard in ing Hill had established he was men- III, Hill’s case. Hill 587 S.E.2d at 619-21. tally a preponderance of the evidence). Georgia Id. at 623. The Su- Georgia The Supreme Court concluded preme Court remanded case Hill’s to the reasonable doubt standard entry habeas court for anof order constitutionally acceptable for mental denying petition. Hill’s state habeas See retardation claims. Id. Su- remand, id. at 622-23. On the state preme explained that O.C.G.A. May habeas court reinstated its 2002 or- § 17-7-131’s reasonable doubt standard der, finding prove Hill failed to mental an acceptable reflected legislative state beyond retardation a reasonable doubt. define choice to as retarded those The state habeas court’s final order does defendants who are able to prove their not contain a preponderance of the evi- mental retardation a reasonable finding way. dence either doubt: higher 2004, § of In Hill petition, [A] standard serves to filed a 2254 enforce the Assembly’s alleging Georgia’s General chosen reasonable doubt degree definition of what impairment standard for mental retardation violates qualifies as Eighth retarded under and Fourteenth Amendments. Georgia purpose law for fixing the The district court denied relief. Hill ap- complain 8. Hill having does not statutory right about he had a the issue raise judge, opposed state jury, habeas jury as to a de- his initial trial but he did raise it until claim, later, cide mental given years his five proceedings. habeas

1343 adhering reversed, for not to AEDPA’s decisions Court A this panel pealed. Dixon, Bobby See v. 565 requirements. rehearing and en banc granted we 26, -, L.Ed.2d v. Scho- U.S. 181 328 Hill 132 S.Ct. panel opinion. vacated Mitts, U.S. -, Bobby v. (2011); vacating (11th Cir.), 563 131 1313 field, 625 F.3d (2011); Cullen (11th 1762, 179 819 Cir. S.Ct. L.Ed.2d Schofield, v. F.3d 1272 Hill 608 Pinholster, -, v. 131 2010). earlier, S.Ct. question the sole As stated Felkner v. (2011); 1388, L.Ed.2d 557 179 banc Court whether the en before 1305, Jackson, U.S. -, in Hill 131 179 562 S.Ct. Supreme Court’s decision Georgia Moore, (2011); Premo v. 562 L.Ed.2d 374 holding III — 733, U.S. -, L.Ed.2d 649 131 S.Ct. 178 does not violate the doubt — (2011); Richter, -, 131 S.Ct. clearly estab- U.S. Amendment —“is — (2011); Lett, law, At- L.Ed.2d 624 U.S. as announced 178 federal lished -, 176 L.Ed.2d S.Ct. 678 130 kins.” — (2010); U.S. -, Berghuis, 130 II. OF REVIEW STANDARD (2010); Haynes,— appeal -, § petition and 175 Hill’s 2254 U.S. 130 L.Ed.2d Sec’y, Spisak, AEDPA. Owen v. (2010); Smith v. 558 governed 1003 U.S. (11th Corn., -, Dep’t 568 F.3d 907 175 L.Ed.2d 130 S.Ct. 595 — denied, U.S. -, (2010). Cir.2009), 130 cert. briefly review a few those We “Un L.Ed.2d decisions. AEDPA, our a final state der review Haynes, Starting circumscribed ‘greatly habeas decision legal “A principle instructed: to the state highly and is deferential ‘clearly meaning within the established’ ” Allen, Payne 539 F.3d courts.’ provision when is embodied in (11th Cir.2008) (quoting Crawford Haynes, holding this Court.” (11th Cir.2002)). Head, 1288, 1295 311 F.3d Musladin, (citing Carey S.Ct. at 2254(d)(1), § amended Under U.S.C. 649, 653, AEDPA, cannot obtain prisoner a state Taylor, Williams v. (2006); unless can show federal habeas relief he 1495, 1523, “was con the decision of state court (2000)) added); see (emphasis L.Ed.2d to, trary ap an unreasonable or involved (“ Owen, also ‘Clearly 568 F.3d at es- of, clearly established Federal plication holdings, tablished Federal law’ means 2254(d)(1) (empha law....” 28 U.S.C. dicta, of the United States Su- added). case, question the only In this sis Court.”). preme Supreme Court’s is whether stan the reasonable doubt decision —that Haynes, unani con claims is dard mental retardation Fifth deci mously reversed the Circuit’s to, “contrary or involved an stitutional —is sion, that a which had concluded of, clearly estab application unreasonable on Batson chal in judge ruling court a law, as determined the lished Federal reject expla a lenge must demeanor-based Id.9 of the Supreme Court United States.” challenge judge unless that nation for alone, aspect and recalls the Supreme personally Court observed In 2010-11 juror’s demeanor on prospective in appellate circuit courts ten has reversed findings legal district court's factual for conclusions review the We review de novo the error, questions of law denying and mixed Hill's clear reached the district court Owen, Id. 907. We fact de novo. petition. § 2254 568 F.3d at Haynes, comparative explanation disparity is based. statistics demon- which the appel representa- After strate that African-Americans’ at 1172. the Texas 130 S.Ct. relief, County tion in the Circuit Court venires is denied state habeas late court “unfair and Berghuis, unreasonable.” Fifth Circuit concluded that Batson (citing Berghuis, S.Ct. at 1391 Smith Kentucky, 476 U.S. 106 S.Ct. (6th Cir.2008)). 543 F.3d In (1986), and Snyder L.Ed.2d v. Louisi granting federal habeas relief after the ana, 552 U.S. Michigan Supreme Court had denied re- (2008), “clearly L.Ed.2d 175 established” lief, the Sixth on Circuit relied Duren v. granted that rule and on that basis federal Missouri, Snyder, habeas at 1173-74. In relief. Id. (1979).10 actually Supreme Court had explanation that when the for a

stressed Circuit, Reversing the Sixth the United challenge peremptory juror’s “invoke[s] a stated, Supreme States Court Du- “[0]ur demeanor,” judge’s the trial “first hand hardly ren decision establishes —no less “great[ importance,” ] observations” are of ‘clearly’ so—that Smith was denied his peremptory pointed out impartial Sixth Amendment nervousness) (based challenge was jury from fair drawn cross section of the juror exercised until some time after the community.” Berghuis, 130 S.Ct. at 1392. questioned judge and the state trial The Supreme Court added: “[N]either might juror’s not have recalled that de Duren nor other decision of Court 477, 479, 128 Snyder, meanor. specifies a method test courts must use Despite S.Ct. at 1208-09. Batson and representation to measure the of distinc- Snyder, Supreme Haynes Court groups jury pools.” tive Id. at 1393. concluded Fifth Circuit “read far too Lett, Supreme again Court much those into decisions” “no deci- versed a Sixth concluding Circuit decision clearly sion of this Court establishes the Michigan Supreme that the Court un- had categorical rule on which the Cir- [Fifth reasonably applied Supreme prece- Court оf Appeals appears cuit] Court to have regarding dent Jeopardy Double Haynes, relied.” 1175. Clause. 130 1860. The later, Smith, Berghuis A month stated: unanimously reversed We explained have that an unreasonable decision, Sixth Circuit’s which had conclud- application of federal law is different determining jury ed whether a application from an incorrect of federal venire was drawn from a fair cross-section Indeed, law. a federal habeas court the community, “courts should use the simply not issue the writ because comparative disparity test to measure un- that court concludes in its independent derrepresentation” allegedly where the ex- judgment the relevant state-court small, group cluded applied clearly and the defendant’s decision established fed- 10. The group Court in Duren set forth sentation of this in venires following showing required prima facie juries selected not fair and petit jury claim that was not drawn from a in relation number of community: fair cross-section persons community; such prima In order to facie establish violation underrepresentation sys- that this due requirement, of the fair-cross-section group jury- tematic exclusion in the (1) group defendant that must show process. selection alleged to be excluded ais "distinctive” Duren, 439 U.S. 668. group community; repre- that the was un- incorrectly. state court’s conclusion erroneously or law eral Lockyer, supra, at objec- See Rather, must be reasonable. application that 1166, 155 L.Ed.2d This distinction 538 U.S. 123 S.Ct. unreasonable. tively substantially higher threshold 144. a creates relief than de novo review. obtaining

for meet, is to this standard If difficult imposes highly a deferen- AEDPA thus to As was meant be. because it evaluating for state-court tial standard 2254(d) AEDPA, stops § amended that state-court de- rulings and demands imposing complete a bar on short of of the doubt. given the benefit cisions relitigation of al- federal court claims (citations quotation marks Id. at 1862 ready rejected proceedings. in state Cf. omitted). emphasized Supreme Court 651, 664, 116 Turpin, 518 Felker v. U.S. prevents defendants —and that “AEDPA (1996) (dis- 2333, 135 L.Ed.2d 827 using federal habeas federal courts—from judicata AEDPA’s “modified res cussing second-guess as a review vehicle corpus 2244). § preserves au- rule” under It of state courts.” the reasonable decisions thority where to issue the writ in cases Id. at 1866. possibility ju- there is no fairminded disagree rists that the state court’s could a Ninth Circuit deci-

Richter concerned prec- Court’s decision this California holding sion conflicts goes It no Section edents. unreasonably the Su- applied Court had farther. 2254(d) that habeas reflects view Washington preme Court’s Strickland v. mal- corpus “guard against a extreme concluding by not ineffective-counsel ‍​‌​‌​​​‌​‌​​‌​‌​​‌​​​​​‌​‌‌​‌‌‌‌​​​‌​​‌‌​​‌‌​‌‌‌‍test justice state criminal functions counsel was inef- petitioner’s trial ordinary for systems,” not a substitute failing for to consult with blood- fective Richter, through appeal. Jack- error correction 131 S.Ct. experts. evidence 332, n. v. Virginia, son lec- reversing, the Richter Court 2781, 61 L.Ed.2d 560 99 S.Ct. on the appeals tured court deference J., (Stevens, judgment). concurring pursuant court owed to state decisions cor- obtaining for habeas 2254(d)(1): As condition court, a state prison- from a federal pus A state court’s determination rul- court’s er must show that state ha- precludes merit federal claim lacks being presented in ing on the claim jurists “fairminded long so beas relief lacking justifica- so court was disagree” on the correctness of could federal under- there was error well tion that Yarborough court’s decision. existing law comprehended in stood and Alvarado, any possibility (2004).... fairminded “[I]t for 158 L.Ed.2d disagreement. application not an unreasonable Federal law clearly established fa- this approach The reasons for specific apply state court decline habeas review of state miliar. “Federal squarely legal rule that has been frustrates both the States’ convictions Court.” Knowles established power punish offenders sovereign Ill, 129 Mirzayance, 556 U.S. con- to honor attempts their good-faith 1413-14, Thomp- rights.” Calderon stitutional omitted). (internal marks quotation son, (1998) (internal 140 L.Ed.2d omitted). It “disturbs marks quotation It that even repeating ... bears repose significant interest the State’s not mean strong case for relief does 1346 litigation, society provides a reject

for concluded denies reason to it established’— admitted of- under AEDPA.” Id. punish some fenders, sovereign- on state intrudes reversing another recent case the en ty degree to a matched few exercises § banc Ninth grant Circuit’s of 2254 habe- judicial authority.” [Harris of federal relief, Supreme Court admonished Reed, [255], 282, at 489 109 v.] U.S. S.Ct. 2254(d)(1) again that AEDPA’s (KENNEDY, J., 308] 1038 L.Ed.2d [103 “is a difficult to meet” and “highly deferen- dissenting). evaluating tial standard for rul- state-court 2254(d) Section of the basic part ings, which demands that state-court deci- jurisdiction, structure of federal habeas be given sions the benefit of the doubt” designed to confirm that state courts are petitioner and that “the carries the burden principal asserting forum for consti- Pinholster, of proof.” 131 at S.Ct. 1398. challenges tutional to state convictions. Supreme The California Court had sum- marily petitioner Richter, pen- denied Pinholster’s (emphasis at S.Ct. 786-87 added). alty-phase ineffective assistance claim simply maybe Phrased “more “ proceedings state habeas ‘on the substan- clearly: a little more if some fairminded ” ground tive that is without merit.’ Id. jurists agree could with the state court’s decision, Supreme Court re- although might disagree, others versed the en banc determination that federal habeas relief must be denied.” Supreme California Thomas, Court had unreason- Loggins v. 654 F.3d Strickland, (11th Cir.2011). ably applied concluding appeals the federal court of had ap- Moore, Richter, And in as in the Su- plied requisite AEDPA deference to preme Court a Ninth reversed Circuit de- Supreme the California Court’s decision. finding cision state court had unrea- Id. at 1401-11. Moore, sonably applied Strickland. Dixon, The Supreme 737-39. took Court Then Court re- particularly appeals’ issue court concluding versed Sixth Circuit decision had, conclusion the state court’s decision— that the Ohio among that Moore’s counsel things, unreasonably applied was ineffective other Mi- failing suppress Arizona, file motion to randa advising before plead guilty— 1602, (1966), Moore to Oregon Fulminante, Elstad, Arizona v. U.S. (1985), 113 L.Ed.2d L.Ed.2d when it found that the petitioner’s Fulminante was not inef- murder confession was volun- case, fective Dixon, assistance counsel and be- tary. 2011 WL No. 10- cause it not speak prej- did slip op. Strickland’s at 4-6. The Supreme Court that, AEDPA, udice standard or contemplate prejudice in noted under prison- “a state plea bargain context, seeking state cоurt’s er corpus writ habeas “finding constitutionally per- adequate federal court ‘must show that the state formance under being Strickland cannot con- court’s ruling presented the claim trary Moore, to Fulminante.” justifica- federal court was lacking so at 743. The emphasized tion that there was an error well under- appeals’ the court of comprehended decision “trans- stood and existing law posed context; beyond any [Fulminante] into a novel possibility dis- for fairminded ” novelty Id., alone—at agreement’ least insofar as it slip op. (quoting Richter, 786-87) renders the relevant ‘clearly rule less than (emphasis 131 S.Ct. at III. added). Supreme DISCUSSION States The United not “[b]ecause that Court concluded challenge state Hill does not Supreme Court erred that the Ohio clear finding that Hill has not habeas court’s transparently so all, less erred at much he is retarded a shown jurist agree with could that no fairminded doubt. The AEDPA “defer reasonable decision, Circuit’s the Sixth court’s that heavy purposely presents ence due is (empha- Id. must be reversed.” judgment petitioner daunting hurdle for habeas added). sis Loggins, F.3d clear.” at 1220. to Rather, Georgia that Su he contends 2254(d)(1) seven habeas These upholding Court’s Hill III decision preme (1) Hill petitioner that emphasize decisions Georgia’s statutory reasonable doubt stan “clearly established” federal must show a contrary holding to the in Atkins. dard of a United States Su law form position Hill’s is that statute (which vanguard this Court can the “nation holding before was at the preme Court Supreme leading al consensus” Court decision Supreme Court find a the execution of to abolish unreasonable, and this Court cannot Atkins) unconstitutional now court’s habeas deci highest that find authority of Atkins —even under “no fairminded unless sion unreasonable any specif not though require Atkins does court’s jurist agree could [state] proof explicitly ic burden of leaves Dixon, op. 1. This slip at decision.” to such matters the states. to, in ‘contrary AEDPA “standard reasons, For Hill far too “read[s] several of, application an volving unreasonable Atkins, and other much into” cases he ‘difficult Federal law1is clearly established Haynes, cites for that matter. meet,’ of AEDPA purpose to because the 1172. habeas relief func is to ensure that federal against extreme malfunc ‘guard tions as Rules A Atkins Procedural Left justice systems,’ in the state criminal tions States not as a means of error correction.” Fisher, U.S. -, Greene First, in Atkins Supreme Court (quoting Richt 181 L.Ed.2d to, no much less reached a made reference (internal er, quotation on, proof. See holding burden omitted)).11 Owen, 1173; marks, citation, 568 F.3d Haynes, 130 S.Ct. and brackets obviously taking case we are not criticizes our reference One dissent of, Court decisions and say, per- these recent view trial counsel’s deferential point argues cases are not in because these deferring, AEDPA formance in addition Lett, deference,” layers of they involve "dual requires, decision of the is, (1) S.Ct. at the deference fact, however, Georgia Supreme Court. That AEDPA, required by an additional change AEDPA deference stan- does not underlying for deferential standard dard, Regardless apply here. which does (such as ineffective assis- the relevant claim underlying the standard of for (Dissent- counsel). Infra, at 68 n. tance claim, repeatedly Court has in- Barkett, J.). Contrary opinion ing structed, above, AEDPA as shown our contentions, parts quote we dissent’s highly and we review is deferential AEDPA defer- cases are about the these grant unless the state court deci- habeas relief ence, underlying layer not the second appli- sion is to or unreasonable Moreover, of these claim. four holding. prior Supreme cation of did involve as- decisions ineffective underlying claim. of counsel as sistance Bies, contrary, Supreme at 907. To the the Supreme Court in 2009 Atkins agree- noted the lack Court reaffirmed that [in Atkins] opinion “[its] as how mental retardation is to be ment to provide did not definitive or expressly proce- left the determined guides substantive determining for when a doing dures for so to the states.12 536 person who claims mental retardation ‘will 317, see also 2250; 122 S.Ct. at U.S. Atkins’ impaired be so as to fall [within ” Allen, v. 1346, Holladay 555 F.3d 1353 Bies, 2150. Bies compass.]’ 129 Cir.2009) (11th (“[T]he [Supreme] Court clear that Atkins thus makes did development to left the states the stan- prescribe Bies even proof. the burden of determining dards for an offender when Atkins “left reiterated that the States retarded.”). Therefore, Atkins developing ways the task of appropriate provides support no for Hill’s or the dis- enforce constitutional restriction.” argument. sents’ Id.14 Atkins’s decision to leave the task Atkins simply did not consider reach law only states not renders federal issue, the burden of and neither has established,” “clearly but also makes it any subsequent Supreme opinion. Court “wholly court, inappropriate for this by gainsay possibility We do not that the fiat, judicial to tell the States how con- later Supreme Court announce inquiry duct into a defendant’s mental reasonable doubt standard Johnson, establishing for In re retardation.” 334 F.3d (5th Cir.2003) 403, the mental retardation exception to execu- that Atkins (noting 405 tion explicitly constitutionally impermissible. left the procedures governing its But states).13 implementation AEDPA, to the under we are not concerned with Moreover, part Court”), guidance as Supreme its national consensus from the su- analysis, statute, Georgia perseded part by Atkins Court cited the La.Code Crim. 17-7-131, (2003), statute at issue here —O.C.G.A. recognized Proc. Ann. art. 905.5.1 as then, now, Turner, required (La.2006). as mental retarda- in State v. So.2d 89 936 proven courts, tion to be supreme reasonable doubt. Unlike federal state courts 9, U.S. n. 536 at 313-14 & 122 S.Ct. at by are not constrained AEDPA. Notably, 2248 & n. 9. there no criticism Georgia’s post-Atkins 14. In three of death statute. cases, penalty Holsey, 281 Ga. Schofield 809, supreme 56(Ga.) 13. The split on (appeal courts 642 S.E.2d from denial denied, burden of petition), issue mental retardation of state habeas cert. Grell, 516, 1070, Compare 728, cases. (2007); State v. 212 Ariz. 169 L.Ed.2d 569 (finding 135 P.3d 705 Stripling, clear and Head v. 277 Ga. 590 S.E.2d convincing (2003) (appeal evidence standard for mental re- 122 from denial state habe constitutional), denied, People tardation claims petition), cert. as 124 (Colo.2004) (stat- Vasguez, (2004); 84 P.3d King State, ing that "the substantive restriction oí Atkins” Ga. S.E.2d 783 (direct denied, does not limit appeal), Colorado's "discretion in allo- cert. cating quantifying (2002), appropriate bur- 153 L.Ed.2d the United III, proof”), den and Hill Supreme capital 587 S.E.2d at States Court denied defen State, with Pruitt v. petitions N.E.2d dants’ certiorari that made the same (Ind.2005) (invalidating clear and challenge con- constitutional reasonable doubt vincing illustrates, evidence scheme King for mental retarda- Hill makes here. As v. State (certiorari clearly tion claims based not on petition established another avenue on direct holdings "implica- Court appeal) present but on the exists to the constitutional Atkins) Williams, tion” of way and State v. issue here in a that is not constrained (La.2002) (stating So.2d requirement decision to AEDPA deference convincing clearly invalidate clear and evidence re- established federal law shown quirement was one made "the holding. absence of United States insanity pleas sonable doubt standard Supreme Court hold- States what United constitutional, future, stating: but was or should be ing could holdings of the only what Today, Oregon is the state that at the time the law be established accused, requires plea of insani- III in Supreme Hill Georgia Court decided ty, defense a to establish that 2003. states, twenty doubt. Some however, place the on the ac- burden Doubt Standard Beyond B. a Reasonable insanity pre- aby cused to establish his Insanity Upheld for Defense sim- ponderance of the evidence some persuasion. ilar measure of While there Second, any Supreme of in the absence is an evident distinction between these proof holding of mental Court burden quantum proof rules as to the of two cases, Georgia retardation execution we no required, practical see difference reasonably to the Supreme Court looked magnitude to significant such as be of in Le insanity Court’s decisions Supreme determining ques- the constitutional 790, 72 S.Ct. Oregon, land v. Oregon merely tion we here. (1952) (rejecting due face 96 L.Ed. 1302 quires proof a heavier burden .... challenge to reasonable doubt process that practice The fact a is followed a insanity establishing plea), for large number of states is not conclusive 399, 106 Wainwright, ATI and Ford in a to whether that practice decision as (recog- process, plain- accords with due but prohibits nizing Eighth Amendment execu- ly considering worth in determining allowing states persons tion of insane and prin- the practice whether offends some to ways to decide enforce constitution- ciple justice so rooted in the traditions restriction). The Supreme al people and conscience of our as be determined, alia, “a men- inter ranked as fundamental. comparable a claim is tal retardation insanity” in relieve claim of that “both Leland, 798, 72 343 U.S. at S.Ct. at 1007 of the statu- guilty person of at least some (footnote, marks, quotation and citation tory penalty to which he would otherwise omitted) added).15 (emphasis The Leland III, subject.” be Hill 587 S.E.2d at insanity Court noted that defense enough sup- Both Leland Ford lend culpability, lessened one’s which is the Georgia Supreme deci- port to Court’s Eighth Amendment same basis used say cannot “no fairminded sion that we 796-97, protection Atkins. Id. at jurist agree could with that court’s deci- Atkins, 1006-07; S.Ct. at see 536 U.S. at Dixon, 132 sion.” S.Ct. 26. (stat- 122 S.Ct. at 2250-51 ing, society “our views Leland, At was the Oregon the time categorically culpable less offenders required defendant “[tjheir criminal,” average than the insanity beyond a rea- plea establish Nonetheless, exemption do not warrant an deficiencies doubt. in Leland sonable sanctions, they fact from criminal do dimin- Supreme Court determined that that culpability”). Oregon’s personal and thаt rea- ish their dispositive stated, 15. say gener Supreme policy also since we cannot violates Leland concepts with Ore ally accepted "We are ... reluctant to interfere of basic standards of respect gon's policy with determination of its justice." Id. at 1007-08. sanity proof on the to the burden issue further, Ford, as in And standard in mental retardation impose any par- Court refused statute than is the mental incompetency fight ticular burden of III, of Cooper. case See Hill 587 S.E.2d at executed and left “to insane not 621-22. developing appropriate the task of State[s] First, Cooper emphasized that

ways to the constitutional enforce restric- historically Court had con- upon execution of [their] tion sentences.” sistently recognized that “the criminal tri- (plu- 477 U.S. at 106 S.Ct. at 2605 incompetent al of an defendant violates Ford, rality opinion). majority process”; due com- historical Court first held that the mon law standard of for incompeten- prohibited Amendment execution of insane cy English in both and American cases was Then, persons. portion in a of the lead preponderance of the Cooper, evidence. plurality opinion garnering support, the 354-56, 517 U.S. at 116 S.Ct. at 1376-77 Supreme may Court that “[i]t stated be added). contrast, (emphasis In there is no high showing that some threshold on be- (in right historical Eighth the Amendment prisoner the will neces- half of found elsewhere) or of a per- sary means to control the number ofnon- son not to be And executed. since the meritorious or repetitive claims insani- of right new, constitutional itself is there is ty.” Id. at at (empha- no historical regarding tradition bur- the added).16 sis proof den as right. of to that recently As Cooper Argument C. Hill’s 1989, Penry refused to bar the execu- tion retarded. Atkins was Cooper Oklahoma, Hill relies on not based on historical tradition or the U.S. S.Ct. Clause, Due Process but on the (1996), contempo- which that an held Oklahoma law rary national consensus that reflected “the required that to prove defendant incom- evolving of decency” standards petence that in- to stand trial clear and convinc- formed the of ing meaning Eighth the evidence violated the Due Amend- Process 366-69, 311-12, Clause. Id. at ment. 116 S.Ct. at 1383- III, Indeed, Georgia 84. Hill the 2247. Georgia’s reason- reasonably concluded that the insan- able doubt establishing standard for ity of cases Leland and Ford are more mental exception death closely analogous to the of proof penalty, burden which twenty-three was enacted plurality The opinion 16. in Ford discussed the the number of repetitive nonmeritorious or procedures by state will determine insanity. legitimate claims prag- of Other insanity-based exclusion from execution un- may supply matic considerations also Eighth der the Amendment: boundaries of the safeguards feasibly provided. that can be proce- [W]e must conclude that the State's 416-17, (footnote Id. at 106 S.Ct. at 2605 determining sanity dures inadequate omitted). plurality opinion citation noted preclude federal redetermination of the procedure that Florida’s was deficient for not constitutional do sug- issue. We not here furnishing procedural safeguards gest of: an that a full trial on issue of opportunity for prisoner sanity submit evi- will protect suffice to the federal dence, interests; opportunity prisoner an for to im- we leave to the State the task of peach challenge opinions or developing appropriate ways of the state- to enforce the appointed upon experts, constitutional mental place- restriction health its execution factfinding of authority sentences. ment of high It be that some of a hands showing prisoner threshold party. on behalf neutral Id. at 106 S.Ct. at will necessary be found a means to control 2603-05. history 219-year earlier, in the noted As law in such oldest is the ago, years no Rights, Bill nation’s our recently states other Although nation. im- held, even or has ever decision convincing clear either employed have standard a burden that plied, evidence preponderance or evidence Eighth wholly burden so can its own standard standards, lenient no more deny right as to eviscerate Amendment Thus, Cooper’s Georgia’s. predates “clearly is no there Because right. help Hill’s does analysis process due Hill’s supporting law federal established” Atkins. under claims Amendment we not mandates AEDPA position, de- Court’s overturn challenge Stan- constitutional Georgia’s of Hill’s nial Argument Hill’s D. doubt stan- statutory reasonable Atkins dard Undermines at 1391- Berghuis, See dard.17 prohibits Atkins argues Hill 92; Haynes, persons, mentally retarded execution ar- Hill’s support does Atkins itself preponderance meets who person a substan- not bestow Atkins did gument. than likely is more evidence a fixed Amendment Eighth tive (3) thus Geor- retarded, and not “mentally retarded rigid definition and im- rule procedural doubt dif- gia’s Indeed, states use various persons.” under- effectively functioning and burdens intellectual permissibly definitions ferent or of 75 substantive IQan line Amendment (some the at Eighth the draw mines 65 or below, at others below, at 70 or not to some retarded of the factors below)18 different consider and executed. IQ test, any below on 70 or scores then dant circuit in our judges court district Two 17. the hearing at conducts court other Georgia statute examined have by retardation prove mental us, to see must and, similarly failed defendant have like cases evidence; "determina- convincing lenient a more right to and "clearly clear established” defendant’s retardation that the court by mental trial proof in tire tion burden Head, 1:02-CV- lower es- sixty-five No. or quotient is intelligence See context. Ledford n. 6 1515-JEC, at *3 presumption WL 2008 a rebuttable tablishes J.) ("There 19, 2008) (Carnes, retardation,” "a but (N.D.Ga. Mar. has mental defendant Geor- suggest that to sev- language quotient in Atkins intelligence nois with an defendant impermissi- constitutionally is retarda- gia’s prove mental still enty can or below” Geor- fact, cited Supreme Court In convincing evidence ble. by clear tion Head, approval.”); Ferrell with statute gia's Legis. Serv. standard), by Ariz. amended (N.D.Ga.2005) 1273, 1295 F.Supp.2d retarda- "mental (replacing (West) term abundantly J.) ("Atkins makes (Thrash, disability”); Ark. "an intellectual with tion” design its permitted is each clear ("There 5-4-618(a)(2) a rebut- is §Ann. Code determining retarda- mental for system own when retardation of mental presumption table wholly tion, system does as such insofar quotient intelligence has a defendant against prohibition constitutional erode below.”); Comp. 725 Ill. sixty-five or Peti- mentally retarded. execution ("An intelligence 15(d) § Stat. 5/114— Geor- this persuade fails tioner presumptive (IQ) or of 75 below quotient prohibition.”), erodes so statute gia's by retardаtion.”), amended mental evidence of by Ferrell grounds other part on rev’d terms (replacing 97-227 Legis. Serv. Ill. Cir.2011). (11th Hall, F.3d 1199 retarda- “mental "mentally retarded” "an "intellectually disabled” with tion” (es- § 13-753 See, Ann. e.g., Ariz.Rev.Stat. 18. Ann. Ky.Rev.Stat. disability”); intellectual defendants by which tablishing procedure subaverage gener- (" 'Significantly § 532.130 by psychologi- pre-screened capital are cases as an functioning' is defined IQ test; al intellectual those administers expert who cal seventy or (I.Q.) of quotient intelligence further 76 are tested below with scores ("An 28-105.01(3) § below.”); Neb.Rev.Stat. defen- if the experts, and mental functioning. courts, it- assessing adaptive argue Atkins otherwise that federal acknowledged states, self that the states’ “statuto- not the have un- responsibility ry of mental retardation are not definitions promulgating proce- der Atkins for identical,” they “generally though conform dures that will be used determine men- definitions” to the clinical set forth tal retardation. Atkins, 536 APA and AAMR. event, said, any because never Atkins 22,122 n. n. 22. (much held), or even hinted at less what Georgia’s statutory undisputed It procedures are or not “appropriate” mental retardation is definition of consis- implementing prohibition Atkins clinical definitions cited in tent with the recognized, possibly cannot provide Atkins Compare 17-7-

Atkins. O.C.G.A. “clearly established” federal law for Hill’s Atkins, 131(a)(3), 536 U.S. at 308 n. To accept argument claims. Hill’s would Thus, at 2245 n. require us not to abandon the defer- contentions, this is the dissents’ case demands, AEDPA ence to ignore also categorical about the exclusion of the mild- language clear Atkins itself about ly mentally group other procedures who is to what decide are to be Instead, prohibition. from the Atkins it is used to determine mental retardation.19 procedure for Georgia’s determining about Additionally, Georgia’s Hill focuses on retarded, who is which is mat- proof procedure ignores burden of ter distinct from the Amendment many other protections afford- issue decided Atkins. See processes. ed under statute and 2250; U.S. at Walker cf. (4th Cir.2005) Looking solely True, aspect Georgia’s to one 399 F.3d (“While procedures, without placing them in con- ultimately Walker’s claim derives text, Ford, rights from his is inconsistent with under the Amend- where the ment, mentally whether he is pro- retarded is evaluated Florida’s law.”). governed by Virginia argue To cess as a whole.20 of, intelligence seventy quotient application or below a involve an unreasonable Af- reliably intelligence quotient administered kins. presumptive test shall be evidence mental retardation.”); § S.D. Codified Laws 23A- ap- law Florida directed the Governor to ("An intelligence quotient exceeding 27A-26.2 point a psychiatrists commission of three to seventy on a reliable standardized measure of simultaneously examine the defendant and intelligence presumptive evidence that the parte report provide then to an ex to the significant defendant not have does subaver- Governor. The Court found age general functioning.”); Wiley intellectual process a Florida’s suffered from number of (N.D.Miss. Epps, F.Supp.2d (1) grievous flaws: defendants were in- not ("In 2009) Mississippi, IQ of 75 is [an] "truth-seeking process”; all cluded at in the assessing subaverage ‘cutoff score’ for intel- (2) prohibited defendants were from submit- functioning purposes diagnosing lectual factfinder; ting (3) material to the there was retardation.”). mental opportunity challenge no for the defendant to (4) impeach state-appointed experts; hold, charges, 19. We do not as one dissent psychiatric examination of defendant Ford complete "that states have discretion to (5) only long; was 30 minutes the insani- any procedures govern choose to the determi- ty process exclusively evaluation was housed Infra, nation mental retardation.” at 72 branch, Barkett, province J.). within the (Dissenting the executive opinion of We de- us, only gave say cide Governor final over the issue before which concerns findings only trigger proof, fact needed to only the standard of and we hold constitu- Ford, Georgia Supreme protection. that the See Court’s decision tional 477 U.S. at to, ("In Hill III not and did not S.Ct. at no other circumstance (the Hill jury, factfinder if had as a neutral process, when evaluated to mental retardation decided whole, pro- elected have substantial contains judge a if during guilt phase, a Georgia statute allows The tections.21 otherwise) (6) issue; to ques- of mental re- decide to raise the issue defendant jurors about their biases prospective criminal tion guilt phase of his tardation (7) retardation; to have related to mental jury to find defendant permits trial and mental retardation without jurors decide guilty retarded. O.C.G.A. but 7—131(c)(8). finding of mental re- being informed that significant This has two 17— penalty and precludes not tardation the death jury does hear advantages. pen- being informed of the defendant’s without history criminal allowed (8) record; orally argue before not informed that a criminal alty phase, and (9) factfinder; appeal ad- will retarded verdict guilty but determination. v. verse mental preclude penalty. King the death See evidentiary admissi- State, the bounds of Ga. 539 S.E.2d Within virtually (“[A] bility, there is no limit jury not be informed should present a Georgia defendant can of mental retardation bars evidence finding support of his mental retardation claim. penalty.”); of the death imposition Thus, State, but the reasonable doubt standard is Ga. S.E.2d Heidler (2000) (“[I]n phase, fact-finding of a multifaceted guilt-innocence aspect one This is jury process Georgia not inform the under law. the trial court should say what the ultimate outcome of the con- will not receive death that the defendant fu- issue or should be in guilty if is found but stitutional sentence he retarded.”). cases, ture non-AEDPA illus- challenge trates how Hill’s to the further Hill the guarantees law also standard should not be burden sentenced to death right: in isolation.22 viewed verdict, judi- no except by unanimous Court, and fair As Atkins Justice Pow- possible; to a full did the cial override opinion in Ford made clear concurring mental ell’s trial on his plenary claim, clearly any precise part guilt phase of of his the refusal to establish as (3) trial; fact-finding procedures limit a state’s present to his own ex- on capital evidence; determining insanity bar to execu- all relevant for perts and other tion, process a few core due impeach and the State’s aside from to cross-examine witnesses; Ford, 477 rights. and to have a See experts other that, considered we vindication of a but rather on his assessment of which are aware collectively, procedures "the followed Flor- right entrusted to the unreview- constitutional comport with ida in this case do not basic of an administrative tribu- able discretion (em- nal.’’) 106 S.Ct. at 2609 (plurality opinion). Id. fairness." added). phasis Georgia’s protec- anything, procedural If 21. beyond protections asks to the burden of go tions and 22. Hill this Court review above However, starters, we required by plurality proof in isolation. Ford. For ignore range rights of opinion the full in Ford made clear that it did not should claiming only capital men- "suggest full on the issue of available defendant trial § 17-7-131 sanity protect tal retardation under O.C.G.A. will suffice to the federal inter- Here, by raising merely his mental provides for a full because ests.” Id. Hill — part not as his criminal retardation. Fur- retardation claim trial on the issue mental thermore, contemplates, join but trial as the statute Powell’s decision to Justice take plurality state habeas case—did not in Ford was later in his four-vote based not advantage rights piece all the available him. plucking procedure, out one Florida's (Powell, J., concurring at 2610 in part Court’s decision not contrary (“The in concurring judgment) and “clearly established” federal law provide impartial officer or State should that reason AEDPA bars our reversing it. argu- that can receive evidence and board counsel, prisoner’s including ment from the E. Risk Argument Hill’s Error expert psychiatric evidence that differ argues Hill Georgia’s burden from psychiatric the State’s own examina- inevitably statute will in result Beyond requirements, tion. these basic mentally execution some retarded de- leeway the States should have substantial they might fendants because able process to determine what best balances they mentally prove are retarded (emphasis various interests at stake.” preponderance of the evidence but not be- added)). yond a reasonable doubt. From this Hill Atkins, extrapolates beyond that the a reasonable

Ford, announced an Amendment doubt standard is to Atkins be- prohibition on specified executions in cir- cause it result in will the execution of some cumstances but never purported to decide who offenders prescribe or how states should procedural- prove cannot a reasonable doubt. ly implement prohibition. left Atkins There are fundamental flaws in ar- Hill’s leeway enacting states substantial gument. procedures to capital determine whether a First, Hill’s risk of exempt argument, defendant error like execution be- claims, cause his ignores he other retarded. And Geor- the fact that At- gia leeway by setting has exercised that kins disavowed intent to establish a IQ level at by affording a capital nationwide or substantive stan- defendant the multiple significant determining dard for mental retardation. rights above, outlined by determining See S.Ct. at that the risk of error due malingering 2250; Bies, 129 S.Ct. at Notably other factors is substantial there too, Hill isolates burden of is a need for a robust proof. burden of ignores standard and all of many other potential This for malingering is evidenced procedures Georgia law favorable to a in this case where initial expert Hill’s defendant, above, as outlined that assist a (clinical Dickinson) psychologist William jury accurately determining whether a initially Hill testified had an IQ 77 and defendant is retarded. (2) mentally retarded, was not and even Second, Hill’s risk of error inquiry though Georgia a provided mental retarda- wrоng asks and question. answers In tion bar to execution since Hill never of asking stead whether the decision of the trial, claimed mental retardation at on di- Georgia Supreme Court was to rect in appeal, or his first state habeas clearly fact, established petition. In federal law as deter the state habeas record (1) Court, mined documents Hill’s history extensive work asks well; (2) whether, ability review, and to under function de novo disciplined Geor savings purchase gia procedural requirement plans goes to cars and as far as motor- cycles; service; military it could active to enforce the substantive constitu social life. This is to prohibition not diminish the tional Court an importance critical of the Atkins not in nounced Atkins. Because the mentally to be executed if question, retarded. It is Court never has considered that only say to that Georgia Supreme one, or even a necessarily similar it is in will result the execu- impression. Such de novo evidence standard matter of first of offenders that Atkins was a federal habeas tion those precisely is what inquiry cannot, not, protect A it does not designed should do. feder- to because court relief on that the trier of fact will grant not habeas eliminate the risk al court rejected mentally has not' state court conclude that the offender is claim a when, held fact, state court simply because the retarded he is. It merits its own. See Mitch- a view different from of that kind of errone- decreases the risk 12, 17, Esparza, necessarily ell ous conclusion. That would 11,157 L.Ed.2d 263 require mean that those 28 states that prove mental retardation ei- defendant is argument A flaw Hill’s third critical (Ari- convincing ther clear and evidence any of exists with burden that risk error Delaware, Florida, zona, Colorado, Every allo- proof. Carolina) by a preponderance North risk of an erroneous factual cates some states) (23 the evidence standard have vio- and there- the defendant determination Eighth Amendment lated the because mentally re- presents risk that fore some always will be risk of error in there some be viola- offenders will executed tarded necessary The those two standards. all adjudication The tion of Atkins. reasoning sult of Hill’s is that the burden always “margin involves error facts placed must be on the state and into ac- parties ... which both must take prove that the state must Winship, In count.” re an is mentally doubt offender not retarded. No state uses that standard. omitted). any pro- marks (quotation Hill’s argument, The effective result of ceeding to determine whether defendant then, every penalty is that state’s death retarded, mentally no matter what is procedure statute or case law is unconsti- trier will proof, the burden of “the of fact requires tutional because none of them sometimes, efforts, despite his best prove of mental retar- absence wrong in his factual conclusions.” Id. Or, beyond a reasonable doubt. dation J., (Harlan, S.Ct. at 1076 concur- argument logical to its conclu- take Hill’s ring). sion, beyond all doubt. of fact risks Two kinds determination possible alleges when an offender Indeed, reasoning Hill under em- is retarded. See id. at he virtually any ploys, state rule allocates is that the trier first to the at least some risk that defendant of fact will conclude that offender erroneously the trier fact will conclude when, fact, he is not. mentally retarded he retarded would be is that the trier of fact will The second constitutional insufficient enforce the conclude that offender All kinds of rules prohibition Atkins. when, fact, he is. serve to allocate risk of erroneous Although preponderance of the evi- rules that determine decision— presentation a may present participate risk who can dence standard smaller error, evidentiary argument, kind even evidence and rules latter under what the trier of is a risk that the trier of that determine evidence standard there consider, decisional rules like erroneously that an of- fact can and fact will conclude when, at issue here. See mentally retarded in the standard fender is not Law, Stein, fact, Evidence Consequently, is. under Alex Constitutional he Hill’s 65, Taken reasoning, of the 61 Vand. L.Rev. 67-68 preponderance even a 1356 logic cases, which Hill out

literally, relies of those “only one defen- any successfully would invalidate rule that allocates to dant has ever established his risk an beyond the defendant some erroneous mental retardation a reasonable Id. at argues conclusion about defendant’s mental re- doubt.” 90. The dissent York, just v. New tardation. Patterson 432 that this “confirms how extraordinari- Cf 197, 208, 2319, 2326, ly U.S. it is an 53 difficult for offender to meet the (1977) (“Punishment 281 beyond L.Ed.2d of those a reasonable doubt standard.” Id. ... guilty by jury found is not at Those purported forbidden statistics and is a merely possibili- reasoning faulty because there remote multiple reasons. ty in per- some that an instances innocent First, 22 case statistics. noteWe jail.”). might go to son (1) in 5 22 that: of the cases cited And there no limit reason to the insis- dissent, the defendant received life sen- all tence that risk of error be borne tence, sentence, death see Foster v. just state to mental retardation cases. If State, 47, (2008); Ga. 283 656 S.E.2d 838 reasoning Hill’s accepted, no-risk it State, Torres v. 272 Ga. 529 S.E.2d give would rise to similar about claims State, (2000); Lyons v. 271 Ga. determining insanity competency to be (1999); State, 522 S.E.2d 225 Mosher v. all, executed. After unless the state is (1997); Ga. 491 S.E.2d 348 required to rule out those two mental con- State, Williams v. 262 Ga. 426 S.E.2d doubt, be, ditions all there will (2) (1993); cases, in one of the Heidler argument goes, Hill’s some who are con- State, the defendant admitted at trial executed, punished, victed and even al- he introduced no evidence he was though they were insane at the time the mentally jury retarded and told had crime, Leland, see 343 U.S. at nothing to consider as to mental retarda- 1002, or were incompetent at tion, 54, 63, Ga. 537 S.E.2d execution, Ford, the time of the see (2000); cases, in another of the Foster 399,106 2595. There is no State, the defendant’s conviction was position espouses. end that Hill reversed because the trial court failed to

Fourth, there no evidence in this rec- charge jury statutory on the definition support ord to the proposition that retardation, 47, 49-50, of mental 283 Ga. reasonable doubt triggers an (2008); 656 S.E.2d another unacceptably high error rate for mental cases, of v. Stripling, Head the Geor- retardation claims. Whether burden of gia Supreme Court affirmed the ha- proof scheme will result in unacceptably an granting beas court’s order habeas relief is, high part, empirical error rate ordering a retrial on mental retarda- question that we are ill-equipped to meas- tion because the suppressed State evidence ure in the first instance. There is no data favorable to the defendant’s mental retar- question on this in this record. claim, 403, 407-10, dation 277 Ga. (2003); S.E.2d 126-28 in two F. Reported Dissent’s Cases cases, State, Morrison v. 276 Ga. 829, 830, an effort to (2003), circumvent this lack of 583 S.E.2d rate, State, evidence on the error Rogers one dissent 282 Ga. reported cites 22 capital (2007), cases in Georgia S.E.2d the defendants were where mental granted retardation claims were a trial on mental retardation un- Infra, at standard, raised. 89-91 (Dissenting opin- preponderance der they which J.). Barkett, ion of The argues dissent to That only report- failed meet. leaves 13

1357 doubt a reasonable beyond (includ- Georgia’s cases capital retardation ed mental Lewis, 286 Ga. See, Hall v. e.g., standard. Hill’s) 1988to from ing (defendant (2010) con 767, 580 692 S.E.2d on focus Second, dissent’s the death; sentenced and murder of victed analy- its skews decisions appellate ported held defendant habeas in state court trial fact that the overlooks dissent The sis. beyond mental retardation his proven had tried in retardation mental Georgia counsel trial found and doubt a reasonable cases, penalty not capital of guilt phase pre and investigating for not ineffective defendant capital Georgia aWhen phase. re mental of defendant’s senting evidence retarded, he mentally but guilty is found phase); Walk guilt/innocence tardation and a life sentence automatically obtains 653 S.E.2d State, (2) 282 Ga. v. may er all, appeal or (1) appeal not other on (2007), abrogated 439, 447 require discussion do not to issues State, Ga. v. 289 issue, was grounds retardation mental of the Ledford — denied, cert. unreflected Also 709 S.E.2d favor. in his decided 4344614 WL U.S. -, a defen- where are cases data the dissent’s retardation, 2011) (defendant and convicted (Nov. 7, mental of evidence offers dant crime, propor death, doing but is innocent ‍​‌​‌​​​‌​‌​​‌​‌​​‌​​​​​‌​‌‌​‌‌‌‌​​​‌​​‌‌​​‌‌​‌‌‌‍he proves also sentenced but guilty not review, Georgia of obtaining verdict thereby tionality retarded), co- mentally (instead but that defendant’s guilty of opinion stated Court’s course, And, of life appeal. and was sentenced Griffin precluding defendant retarded, evidence have substantial mentally who adjudicated defendants “has been but guilty may plead sen retardation a death of ineligible mental him making acqui- retarded, with State’s State, mentally 276 Ga. tence”); Marshall reported escence, appear (defendant and charged S.E.2d that reason. decisions for appellate felony but convicted murder malice cases where reported listing of manslaughter; dissent’s involuntary and murder far imposed sentence death mentally but guilty defendant jury found retarda- mental universe captures involun murder and felony as to retarded has had Georgia That cases. State, tion issue Chauncey v. manslaughter); tary years for 23 bar mental S.E.2d Ga.App. reported cases only 13 cite can the dissent trial, found defendant judge (after bench anything, if prevailing, of a defendant eight on retarded but guilty dissent’s opposite just suggests molestation child aggravated charges proposition. State, Laster sodomy); aggravated (1998) (jury no evidence proffers 505 S.E.2d

Third, Ga.App. dissent reported mentally re in those 13 but guilty the defendants found defendant retarded, arson); first-degree are actually charge on cases tarded 376, 422 mentally retarded Ga.App. State, be found Moody would the evidence (jury found defendant preponderance under S.E.2d all charges of is no evidence There standard. but guilty child mo aggravated that. molestation child examples lestation). those cases All of consider Fourth, if were one even mentally retard being found defendants data, fact remains skewed dissent’s a reasonable under actually ed cases reported pre implies the dissent doubt find defen juries do judges show finding. such cludes under mentally retarded guilty dants Due separate procedural G. The Dissents Procedural the due process provenance argument Process this dissent’s Bailey Speiser evident from the cases the States Because United upon Bailey relies. Neither nor stated, in Court has never Atkins or else- (or Speiser Eighth Amendment cases where, that a reasonable doubt standard cases, cases). capital or mental retardation Eighth mental retardation violates the Bailey a concerned Thirteenth Amend- Amendment, attempt the dissents to avoid ment challenge to state statute criminal- are, pivotal by making fact what izing personal breach service con- effect, procedural process arguments. due 227, 245, Bailey, tract. 219 U.S. at primary argues Georgia’s dissent that Speiser at S.Ct. 153. resolved a First procedure, practical burden of Amendment and Fourteenth Amendment operation, eviscerates substantive challenge exemption a state tax scheme Eighth right Amendment under Atkins. required applicants prove they did Infra, Barkett, (Dissenting opinion at 76 not advocate the overthrow of govern- J.). The dissent question states that “the ment. at Speiser, 357 U.S. before the Court of Speiser S.Ct. 1336-37. The Court stat- whether burden of eviscer- specifically ed question “[t]he for deci- ates the substantive constitutional right ... sion whether [the allocation state’s] retarded not to be executed” of the burden of proof, on issue con- under regard, Atkins. Id. In this cerning speech, freedom of falls short of argues dissent “Georgia that: ... can- requirements of due Id. process.” indirectly authorize the execution of 523, 78 1341.23 mentally retarded through offenders procedure operation in practical ac- But wholly separate proce- issue of result”; complishes that process and thus dural due under the Due Process Georgia Supreme Clause, approval formulated, Court’s however is not beyond a Rather, reasonable doubt standard for case before us. this case about mental retardation claims is to Hill’s substantive constitutional un- clearly law, established Eighth federal as an- der the Amendment. It is telling nounced the Supreme Bailey Court in parties never mentioned either Alabama, 219 U.S. Bailey Speiser their briefs to the (1911), Randall, L.Ed. 191 Speiser Georgia Supreme Court. L.Ed.2d By attempting to transpose holdings Infra, at (Dissenting (a case) Bailey Thirteenth Amendment J.). Barkett, opinion of (a case) Speiser First Amendment into

Although this en banc case and the Eighth context, Amendment the dis- Georgia Supreme Court decision under sent makes the same error the Supreme scrutiny Amendment, are about the Eighth Moore, Court identified in Moore. as 312, 329, Although Bailey rely expressly did not on 76 L.Ed. 772 process grounds due finding (quoting Bailey pronouncement constitution- s violation, al its on focus rules prohibition “that a constitutional cannot be subsequent and its use transgressed indirectly by the creation of a suggest process analysis. a due Speiser, See statutory presumption’’ pro- in context of due discussion). (relying 357 U.S. at at 1342 on Bailey cess But even if is read as Bailey part analysis finding process of its due- relying due the Thir- process-based Amendment, infringe- First Amendment it undisputedly teenth is not an ment); Dorman, see also Heiner v. case. Amendment

1359 inadequacy for Panetti’s above, demonstrate Supreme Court discussed Georgia Supreme that the Court’s showing decision—that appeals’ a court versed to, an III is decision in Hill applied the unreasonably court state of, clearly estab- application unreasonable of counsel assistance ineffective Strickland federal law. case, lished aon Arizona relied standard —that Fulminante, 111 499 S.Ct. U.S. Panetti, something more. But there is (1991), in- did not which fails why Hill’s claim anything, if shows See of counsel. ineffective assistance volve decision prior here. Panetti relied on Moore, 737-39, 743. S.Ct. at Premo v. 131 Ford, had both a sub announced court stated that the Supreme Court The right and Amendment stantive reach its conclusion that appeals, process require due specific was an unreasonable court decision state for the Due Process Clause ment under Strickland, “transposed application petitioner must incompetency claims: context; and into a novel [.Fulminante] present evidence opportunity have an as it ren- insofar novelty alone—at least Ford, argument. and See ‘clearly than rule less the relevant ders (concurring opinion of at 2609 S.Ct. reject a reason provides J.) established’— Powell, (stating question that “the The AEDPA.” Id. under procedures Florida’s this case whether III, like in Hill Supreme Court’s decision sanity determining petitioner’s comport for discussed the state court decision process,” of due requirements with the to,” not Moore, “contrary and did was not procedures require do not finding Florida’s of, application an unreasonable “involve[] petitioner’s the factfinder to consider law, as deter- clearly Federal established materials, concluding they thus de- Supreme Court of the United mined to be prisoner “opportunity of an prive 2254(d)(1) (emphasis § States.” 28 U.S.C. Panetti, heard”); at 948- see also U.S. added). (noting Ford at 2855-56 pro- a State must “identifies the measures Due Process and Procedural H. Panetti incompetency alleges a prisoner vide when (Dis- case, executed,” proce- minimum in this “sets the two other dissents to be J., Martin, prisoner Wilson, must provide a State senting opinions dures claim,” J.), Quarter- competency rely primarily raising on Panetti Ford-based ‘clearly law man, 168 and established’ S.Ct. “constitutes 2254”). (2007), purposes which addressed for (1) incompetence-to-be-execut- petitioner’s in procedures the minimum toAs (2) argument ed claim and his claims, Ford competence-to-be-executed the minimum provide court failed to re [procedural] announced that “basic process requirements procedural due sub opportunity include an quirements” Wainwright, U.S. Ford pris from the argument mit “evidence and Panet- 91 L.Ed.2d counsel, expert including psychiatric oner’s ti, at 2855. State’s evidence that differ Ford, examination.” own psychiatric Atkins or does involve Panetti (concurring at 2610 retardation, U.S. at does discuss mental J.). Panetti, Powell, opinion of issued four proof, burdens experts but its own appointed state court Georgia Supreme Court’s years after “oppor alone, give Panetti petitioner did not in Hill III. Each factor decision in re evidence tunity expert to submit collectively, is sufficient to certainly report sponse by preexisting procedural to the filed the court- standards are an appointed an “that experts,” error Ford application imported unreasonable of that impermissible makes clear under the is standard. Panetti, 551 U.S. at 950-

Constitution.” The state 127 S.Ct. at 2857. court’s IV. CONCLUSION adjudication in Panetti thus violated the specific required legal procedure by if Even the State Georgia of has some- Ford.24 inappropriately how struck the balance be- competing § tween two in straightforward application interests 17-7-

Panetti 131(c)(3), Georgia AEDPA. The and even if the Supreme of Court Panetti conclud- (1) Supreme ed that: Court precedent upholding Court’s decision that statute is clearly only Ford not established the sub- by considered incorrect or unwise federal Eighth right court, stantive Amendment not to precludes AEDPA a federal court incompetent be executed if also will, but certain imposing from its invalidating that procedural process guide- minimum due unconstitutional, statute lines under the Due for Process Clause granting federal habeas relief the ab- (2) claim, bringing the substantive “clearly law, sence of established” federal procedures state court afforded Panetti did which the United Supreme States Court satisfy not procedural requirement Ford’s holding admonishes is a that Court. of an opportunity of to present expert evi- There is no United States Court Here, contrast, dence. Atkins estab- case holding that a reasonable doubt bur- only lished Eighth a substantive Amend- den proof for claims of mental retarda- mentally retarded, ment for the not Eighth tion violates the Amendment. At- any minimum procedural process due kins not or question. did ask answer that quirements bringing Eighth agree Whether we Georgia Su- Importantly too, Amendment claim. Pan- not, preme Court or AEDPA requires us etti does mention the burden of proof to affirm peti- the denial of Hill’s all and thus did not establish federal law tion. do We not decide whether Thus, proof. as to the burden the Geor- proof constitutionally burden permis- gia Supreme Court’s decision about the sible, no decision the Unit- to, burden of cannot be or ed clearly States estab- of, an application unreasonable the control- lishes that it is Simply unconstitutional. ling Supreme precedent put, Hill has failed to show “that fair- no or Panetti for that matter. AEDPA does jurist us, minded could permit agree” with the Geor- as the approach dissents’ do, gia Supreme would have Court’s decision import procedural us about the proof requirement proof, burden burden and thus into Atkins this Court is (that one) expressly authority declined to “without adopt to overturn rea- (that Panetti judgment did not mention the burden soned of the highest State’s proof), and then find that a Dixon, state’s court.” 132 S.Ct. 26. When application Court in Panetti noted al terms does not mean the was rеasonable,” that the state court's decision rested on 551 U.S. at implicit finding procedures provided that the 2858, the “standard” to which the Court was adequate, were that "this determination referring Ford's process due be ap- cannot reconciled with standard, not its substantive Amend- Ford,” plication controlling standard in ment standard. "[t]hat the gener- standard is stated in relief, Georgia I would affirm district has If the standard ground. on that judgment court’s claims of mental adopted for unconstitutional, must declared to be provides that defendants law in a direct Supreme Court done the death accused of murder avoid appeal from the decision of in an appeal, they prove they are mental- if penalty court, original habeas state habeas beyond a doubt. ly retarded see Court, filed in the proceeding 7—131(c)(3).Hill could have § O.C.G.A. 17— 662-63, 116 Turpin, 651, Felker v. U.S. during guilt phase raised defense the this 2339, 2333, 135 L.Ed.2d trial; reason, his 1991 criminal for some the whether AED- (leaving open question Hill, 302, Turpin v. 269 Ga. he did not. to federal habeas apply PA’s restrictions (1998). 52, Georgia The 498 S.E.2d in the originate that proceedings de- forgave procedural courts this obvious Court). this Court from prohibits AEDPA Hill to his permitted argue fault and men- it doing here. in a post-conviction tal-retardation defense AFFIRMED. Id. at 53. The Georgia proceeding. and, Hill’s courts did not vacate sentence TJOFLAT, Judge, specially Circuit effect, trial. re-open his criminal The concurring: rejected Georgia Supreme post- I judgment. I concur court’s trial court’s initial decision to conviction finding with the court’s that quibble cannot corpus a limited writ of habeas issue pre- does not precedent jury hold a trial on the mental-retardation applying vent the State defense, have presumably which would beyond-a-reasonable-doubt standard pro- conviction for this limited opened his mentally that retarded. Hill’s claim he Rather, Id. ceeding. the court 53-54. However, ought I we do not believe Hill to raise the without a permitted issue conclusion for two reasons. reach this jury during post-conviction proceeding. First, procedural burdens of are Id. proceeding It that during was pertaining governed rules and are laws argued Georgia’s beyond-a-rea- Hill Second, Hill procedural process. due conflicted sonable-doubt raised mental retardation claim —and his v. decision Atkins Vir- Supreme Court’s regarding beyond- claim the associated 304, 2242, ginia, 536 U.S. a-reasonable-doubt standard —in a state Hill, (2002).1 Head v. 277 Ga. L.Ed.2d proceeding, opposed to post-conviction as 587 S.E.2d 620-22 during points trial. These two his criminal ways I part at the start- form Hill’s claim: that he The court combine to true accepts court ing point analysis. of its deserves habeas relief because the State he responds argument to Hill’s procedural process rights due violated his Georgia’s beyond-a-rea- proceeding. it —that during post-conviction presents Such standard somehow violates claims not form basis habeas sonable-doubt do that, Note time of 1991 crimi- Hill's trial, Eighth pro- prohibits (finding Eight Amendment did not nal Amendment standard, executions). retarded. hibit the execution of enact- such Compare Penry Lynaugh, way ed in was written not as law, expres- as an enforce but rather federal Eighth did not (finding that Amendment independent judgment of the State’s sion mentally-retarded de- prohibit executions of ought retarded. it not execute fendants), Virginia, with Atkins laid Atkins that the Eighth argument the rule out With Hill’s framed prohibits Amendment the execution of the way, the forum which Hill made his argu- But real retarded. Hill’s argument paramount importance. is of ment, properly, framed is not We would course address due pro his argument; Amendment is that the be- cess claim if allegedly process foul yond-a-reasonable-doubt standard denies during E.g., occurred his criminal trial. him process of law. due Wright Sec’y of Corr., Dep’t 278 F.3d (11th Cir.2002) 1245, 1256 (addressing, un-

Burdens of rules petitioner’s der 28 U.S.C. claim governed by of procedural pro norms due that the state trial court proce- violated his California, cess. Medina v. See process rights dural due because he 2572, 2577-78, trial). incompetent to stand If Hill had (deciding L.Ed.2d 353 whether raised his shifting burden to the mental-retardation defen defense trial, dant to that he incompetent demonstrate challenge and raised this to the be- to stand trial a violates defendant’s due yond-a-reasonable-doubt there, process Montana, rights); Sandstrom v. he could claim that his conviction and sen- 510, 520, 2450, 2457, 442 U.S. 99 S.Ct. 61 tence were tainted a violation his due (1979) (“[W]e 39 explicitly L.Ed.2d hold rights.2 process that the Due Process protects Clause process Due violations during post- state against accused conviction except upon ” not, however, conviction proceedings do proof beyond a reasonable doubt .... form the basis of habeas relief. Carroll (quoting 358, 364, In re 397 Winship, U.S. Corr., Sec’y, Dep’t 574 F.3d 1365 1068, 1073, 90 S.Ct. (11th Cir.2009); Quince Crosby, 360 (1970))). Eighth The inquiry Amendment (11th Cir.2004). F.3d The ha Atkins, contrast, nothing had do permits beas statute federal courts to process. due holding Court’s grant habeas relief to prisoners state solely was based on the “evolving stan the ground they “in custody are pur decency” dards inquiry into whether suant the judgment of State court” executing the mentally retarded ex was violation of federal law. 28 U.S.C. punishment. Atkins, cessive 2254(a). § post-conviction proceed State 311-12, 122 So, by at 2247. challeng- ings are not “judgment” that resulted ing beyond-a-reasonable-doubt stan- prisoner’s Carroll, detention. See dard, Hill’s claim is not an properly Eighth (“[A] challenge F.3d to a state claim, Amendment but one cognizable un- proceeding collateral undermine does not process. such, der due As Hill’s real com- the legality of the imprison detention or plaint retarded, is not that he mentally i.e., ”). the conviction and that itself .... post-conviction the state court’s ment — proceedings Post-conviction are conclusion was erroneous. instead Hill “civil in argues instead nature and not post-convic- part the state tion proceeding criminal proce- proceeding Pennsylvania utilized unfair itself.” dure determining for he Finley, whether is men- v.

tally retarded. 95 2. This statement assumes that Hill's he criminal not argue would have been able to that the trial occurred after the Court decid- beyond-a-reasonable-doubt standard conflict- ed Atkins. If Hill had raised his mental- yet ed with for did Atkins exist. trial, during retardation defense in his my previous Therefore, during implies, As discussion Hill’s procedural violations claim for relief cognizable “is- habeas proceedings are post-conviction state that he is retarded and petition- cannot the cause of sues unrelated to constitutionally pursuant be executed Dugger, Spradley v. er’s detention.” Cir.1987). (11th such, Amendment. Because thе As F.2d Georgia courts determined that he was not they form the basis habeas cannot retarded, Hill must first over- Carroll, See, e.g., 574 F.3d at 1365 lief. 2254(d)’s § come 28 U.S.C. deferential to hold an evidentia- (holding that failure Pinholster, hurdle. Cullen post-conviction pro- in a ry hearing state -, 1388, 1398-1400, relief); habeas ceeding was a basis for (2011) (holding L.Ed.2d that federal Rutherford, In re 437 F.3d pe- courts must first determine whether (11th Cir.2006) (finding for ha- insufficient 2254(d) § they may titioner satisfies before claim that the petitioner’s beas relief acquired during consider new evidence court denied him due post-conviction hearing). This determination federal provide mental health process failing nature, of a factual and therefore falls person petitioner alleged records of 2254(d)(2)’s under instruction that feder- (citing crime actually had committed the grant al courts relief un- habeas 1261-62)); Quince, Quince, 360 F.3d the state court decision “was based less on (rejecting peti- at 1262 habeas 360 F.3d an unreasonable determination of facts tion, judge that the state alleged which in light presented the evidence petitioner’s post-convic- presiding over the proceeding.” court 28 State U.S.C. petitioner pro- due hearing tion denied 2254(d)(2). court, The § district or this himself, recusing because the cess appeal, court on would review the evidence to the con- petitioner’s claim not relate did post-conviction hearing introduced at Hill’s viction). determine if the state court’s ultimate alleged process violation due finding of fact—that Hill was not during post- Hill’s occurred a state case “objectively retarded —was unreasonable.” his proceeding, during and not conviction Andrade, Lockyer v. See U.S. Hill process trial.3 The afforded criminal 1166, 1175, no proceeding that therefore had during 2254(d)(l)’s § “un- (explaining that lead to his bearing judgment clause application” reasonable bars federal A writ of habeas conviction sentence. unless state deci- habeas relief court’s remedy corpus proper is not for this unreasonable,” “objectively was sion alleged wrong. synonymous is not with “clear error” or “independent other review” the federal al- Hill instead have used this should court) Taylor, (citing Williams v. for leged process violation as means due 1495, 1521, 146 L.Ed.2d evidentiary obtaining hearing an federal (2000)). hypothetical application court. A Penalty Death If the court found the Antiterrorism and Effective federal unreasonable, (“AEDPA”), Act Pub.L. No. courts’ determination decide, § in its case federal court would then in Stat. 28 U.S.C. Hill’s judgment, actually whether Hill why dependent will this is so. demonstrate corpus. Turpin Georgia Supreme via a limited writ habeas that the Remember (Ga.1998). Hill, rejected post-conviction tri- explicitly state 498 S.E.2d 53-54 re-open attempt al Hill's conviction court’s point, McGahee this Hill argued retarded. See At could have was required that the district court was hold Corr., Dep’t 560 F.3d Ala. an evidentiary hearing because the be Cir.2009) (11th (reviewing a petitioner’s yond-a-reasonable-doubt de determining that claim de novo after prived him of a “full and fair hearing.” 2254(d)). § At petitioner this satisfied Corr., Kelley Sec’y Dep’t See for an point, likely Hill ask for eviden would (11th Cir.2004) F.3d (quoting tiary questions of mental hearing; retarda Toumsend, 372 U.S. at 83 S.Ct. at are, his state proceedings suggest, tion 757); Quince, see also 360 F.3d at 1262-63 incredibly eligible fact To intensive. (stating post-сonviction the state evidentiary hearing, Hill for would then judge’s conflict of interest could have been diligent that he need demonstrate arguing post- a basis for attempting develop the factual under proceeding conviction was not “full and pinnings his claim. U.S.C. fair”).4 argument His here mirror would 2254(e)(2) (restricting a district court’s grounds he asserts habeas relief. evidentiary discretion to hold hearings Claims mental retardation are incredi bly fact-intensive and could devolve into a petitioner where the “failed to develop the swearing conflicting, match between of a factual basis claim court State equally qualified, experts. swearing This proceedings”); Taylor, Williams v. easily match could always not—if —create 1479, 1487, doubt the defendant is not (2000) (“ to develop’ ‘[F]ailed By erecting retarded.5 high ”). implies diligence some lack .... burden, er effectively the State put its Nothing in suggests the record that Hill thumb on the against scale a defendant’s 2254(e)(2)’s by § would be barred restric- mental-retardation defense. The state Therefore, tion. district the court would post-conviction trial court demonstrated have had to the discretion hold an eviden- it point; mentally this found Hill retarded tiary hearing according pre-AEDPA to evidence, by preponderance of the Allen, rules. Williams 542 F.3d not a reasonable doubt. There (11th Cir.2008) 1346-47 (analyzing the pe- fore, the State’s unfair thumb —the be request evidentiary titioner’s for an hear- yond-a-reasonable-doubt standard —de ing under by the standards set out Town- prived Hill post-conviction of full and fair Sain, send v. 9 hearing, and he would be to entitled (1963)). evidentiary hearing in federal court.6 pre-AEDPA 4. The significant adaptive-functioning version of U.S.C. Hill had limi- 2254(d) § explicitly retarded; tied the “full and fair and mentally tations therefore was hearing” process. concept provi- opined to due That expert the State’s that he did not provided findings sion that state court prevail fact therefore was not. To the under be- unless, presumed standard, would be yond-a-reasonable-doubt correct "the post- fact finding procedure employed by the state only agree court conviction court had to not with adequate was not expert; to afford a full and agree- fair Hill’s it had to find no basis for hearing; applicant ing [or] ... expert's opinion, otherwise with the State’s which process denied due of law in State court served as the main source of doubt 2254(d)(2), proceeding....” § against U.S.C. Hill's mental-retardation defense. 6.And, assuming granted hearing, he was he appears happened 5. This to have finding Hill’s would have to rebut the state court's present- case. Both the and the mentally defense State that he was not retarded with clear testimony highly qualified, reputable ed convincing evidence. 28 U.S.C. expert opined 2254(e)(1); Dretke, expert witnesses. Hill's that Miller-El v. U.S. standard is un- beyond a reasonable doubt how paragraphs illustrate previous Thus, majority holds constitutional. beyond-a- have attacked Hill should court’s it must defer to state applied during reasonable-doubt Taken upholding this standard. decision Instead, hearing. post-conviction his state case, in this such logical to its conclusion a writ of habeas court for this he asks adopt proce- permits deference states hearing— evidentiary not an corpus—and nearly effectively every exclude dures that process viola- due remedy alleged pro- from the mentally retarded offender denial affirm the I therefore tion. would requires This deference tection of Atkins. viola- process due because petition of Hill’s demanding speci- level of so detailed proceed- during post-conviction tions holdings that ficity grounds for habeas relief. ings are whatsoever. eliminates federal review Indeed, position, endorsed the State’s BARKETT, dissenting, Judge, Circuit pre- majority, is that Atkins does MARTIN, Circuit which MARCUS setting the bar of clude the State from join: Judges, high defining as it wishes or the first state to Georgia was Although only to include those mental retardation mentally should retarded declare IQ falls below persons whose level executed, only one to it is not be mentally includes 4% the which opposite result precisely the guarantee retarded, thereby leaving recog- of all 96% beyond a rea- prove requiring offenders subject mentally persons nized retarded they are sonable doubt be squared This cannot execution. beyond a rea- Requiring proof tarded.1 protects all the command doubt, highly applied to sonable when from execution— of mental retar- subjective determination is mild whether their mental retardation dation, Eighth Amendment eviscerates a state court severe. And when decision right all retard- constitutional constitutional eviscerates the substantive executed, contrary not to be ed offenders has explicitly rec- Virginia, 536 to Atkins ognized, it is (2002). 153 L.Ed.2d 335 precedent. Court fallacy underlying majority’s below, The I amplified For reasons be- that because Atkins opinion is its belief Supreme precedent Court has lieve that to, much clearly “made reference less reached that no is consti- no established State on, mentally there proof,” to execute holding tutionally permitted a burden Nor does State Supreme Court retarded offenders. “clearly no established” pro- to have discretion establish us that the unfettered explicitly tells precedent Carolina, Dakota, Tennessee, 231, 266, 2317, 2340, South South 162 L.Ed.2d 125 S.Ct. Utah, (2005). Texas, Virginia, Washington). New repealed recently both Mexico and Illinois require to Georgia is the state previously penalty but had re- their death a reasonable mental quired preponderance a standard. Another impose the those other states that doubt. Of Delaware, Arizona, Colorado, five states — and the penalty, twenty-three states fed- death Florida, adopted and North Carolina —have prove government require to eral offender states, convincing standard. Six clear and by preponderance his mental retardation Connecticut, Kansas, Montana, Hamp- New Arkansas, California, (Alabama, the evidence shire, Oregon Wyoming, have not set Louisiana, Indiana, Idaho, Mary- Kentucky, proof. Missouri, Nebraska, land, Mississippi, Neva- York, Oklahoma, da, Ohio, Pennsylvania, New “Atkins did not bes- their through opera- jority’s natural assertion cedures that tow a substantive majority Eighth the vast of men- Amendment deprive tion will to a right rigid fixed and definition of Eighth tally offenders their retarded persons” retarded and the State’s to be right not executed. Be- Amendment could, so, contention that it if it chose do to contrary decision is the state court’s cause of Atkins protection limit the with those law, сlearly Supreme Court established below, IQ Supreme 30 or Court deference. See AEDPA it is owed no extended Amendment 2254(d).2 § U.S.C. retarded, the entire class of Clearly Atkins Established that the I. Atkins recognized ranges from Eighth Amendment Protects All with to profound those mild mental retar- Mentally Retarded dation. Offenders from

Execution on the Relying medical consensus em- majority errs in suggesting first bodied the clinical manuals of Amer- that Atkins did not clearly (APA) Psychiatric establish that ican Association and the all protected American Association on Mental Retarda- Contrary (AAMR),3 execution. to both the ma- tion recog- AEDPA, review, may grant resulting layers” 2. Under a federal court in "dual of defer- Lett, ence, -U.S.-, habeas relief for a claim denied on merits Renico v. 130 S.Ct. 1855, 1865, by a state court when the state court decision 176 L.Ed.2d 678 See to, Pinholster, -, contrary "resulted in decision Cullen v. -U.S. 131 S.Ct. of, 1388, 1403, application ("Our or involved an unreasonable law, clearly established Federal as determined review of the California de- Court's Court of the United States.” doubly cision thus take deferential. We 2254(d). § 28 U.S.C. No AEDPAdeference is highly perform- deferential look at counsel's preexisting Supreme prece- due where Strickland, through ance [under] the deferen- contrary "dictate[s]” dent a rule or result 2254(d).” (internal § tial quotation lens Taylor, the state court’s decision. Williams omitted)); Hanington marks and citations Richter,-U.S.-, 131 S.Ct. (2000); DOC, Sec’y, L.Ed.2d 389 Carroll v. (2011) ("The L.Ed.2d 624 standards created (11th Cir.2009). 574 F.3d A deci- 2254(d) highly Strickland and are both clearly sion is established federal deferential, apply and when two tan- applied law if "the court a rule that dem, (internal doubly quo- review is so...." governing contradicts law set forth omitted)); tation marks and citations Premo by Supreme Court case law.” Putman v. Moore,-U.S.-, Head, (11th Cir.2001). 268 F.3d Lett, (same); 130 S.Ct. at "correctly When the state court fails to iden- (holding that "AEDPA and our double Williams, tif[y],” 529 U.S. at jeopardy precedents” require layers "dual 1495, applies "substantially or a rule different deference”); Haynes,-U.S.-, Thaler v. from,” 405, 1495, appro- id. at 120 S.Ct. the 1171, 1172-73, 130 S.Ct. 175 L.Ed.2d 1003 rule, priate legal the state court's decision is (2010) (reviewing objection peremptory to a “contrary to” Court law. Id. at challenge Kentucky, under Batson v. 476 U.S. Deciding 120 S.Ct. 1495. a constitu- 79, 1712, (1986), S.Ct. 106 using tional a entitlement standard of appeal which is reviewed on under the "clear- by Supreme precedent foreclosed con- standard). contrast, ly By erroneous” Hill’s “contrary stitutes a decision that is to” feder- subject single only layer claim is to a of AED- al law. id. See deference, by secondary PA a unencumbered majority litany a details of unrelated layer of discretionary deference to the deci- recently cases down handed the judges. of trial sions Court to remind us that AEDPA constrains However, our review. cases, in all but one 3. of the The AAMRis now known as the American particular Developmen- the issue the before Association on Intellectual and (AAIDD). highly carried its own deferential standard of tal Disabilities

1367 mildly mentally only a the retarded who spans spec- that mental nized impairment, ranging protection, to Atkins but are are entitled of intellectual trum pro- to to likely severe need to moderate most to it. from mild Atkins, 536 retardation. See found mental decision, however, The state court’s en- 22, 3, 2242 n. 122 S.Ct. n. 317 309 U.S. the of use a standard so dorses APA, and Statistical (citing Diagnostic limits effectively that it the constitu- high (4th 41-43 ed. Mеntal Disorders Manual of right to protected tional Atkins 2000) AAMR, (“DSM-IV”); Retar- Mental severely profoundly or those who are men- Classification, Definition, Sys- dation: holding tally ap- that Atkins retarded. 1992) (“AAMR (9th ed. Supports 5 tems plies only to “those whose mental deficien- Manual”)); City see also Cleburne 1992 enough provable are to be significant cies Ctr., 432, 442 Living v. Cleburne doubt,” Hill, Head v. n. S.Ct. (2003), 277 Ga. S.E.2d “[m]entally retarded (acknowledging directly con- determination catego- fall four into distinct individuals to trary protect to command Atkins’s mild, moderate, pro- severe ries”— mentally retarded. execution all found). to enforce the s command Atkins’ mildly mentally retarded individu- That applies to constitutional substantive “signifi- deficiencies” less al’s “mental mentally “range of retarded this entire than the deficits of one who se- cant” there is national about whom offenders verely mentally or retarded profoundly Atkins, consensus.” indisputable fact that does alter 2242. mentally both are retarded and entitled Moreover, all within the universe of protection Amendment. individuals, mentally 89% fall retarded Indeed, the offender Atkins himself was range, fact mentally retarded mildly mentally retarded. only mildly recognized many years Supreme Court Thus, U.S. at decided. See Cleburne before Atkins was Court announced that when Ctr., at 442 n. Living places a Constitution substantive re- “the (classi- at 41-43 3249. See also DSM-IV take power on the State’s striction mentally fying universe of 89% offender,” id. at life of retarded mild, moderate, tarded as 7% can no there be doubt In- profound). 4% as remaining severe protection all extending that it was deed, specifically recognized that Atkins retarded, whether classi- typically used mental retardation “[m]ild enough to “significant as mild or fied IQan 50- people with level of to describe provable beyond a reasonable doubt.” 70.” U.S. at 309 approximately Hill, 587 S.E.2d at 622. Head v. importantly, 2242. More n. previously recognized that the Court had May Procedurally Evis- II. States Not were the mildly mentally retarded cerate Substantive Constitutional class all only members Rights likely who would be reach in holding that majority The also errs of in criminal cases. See point sentencing place any constitutional 302, Atkins does not 333, Penry Lynaugh, to procedures pertaining restraint on state 2934, (citing S.Ct. mentally 7-9.1, the retarded. In the execution of for Criminal Justice ABA Standards Atkins, (2d 1980)). only Thus, pro- Court not p. ed. commentary, any re- retarded, of it is hibited the execution those are who offender, statutory commanded of a presumption tarded also more ways than it “develop[] appropriate by to can be violated enact- states to direct power ment. The presump- to create upon the constitutional restriction enforce escape tions is not a means of sentences.” 536 U.S. at their execution from Thus, constitutional restrictions. And the 317, 122 2242. an states have may way state not in this interfere with duty “developf affirmative to appropriate ] authority matters by withdrawn its ways to enforce” the constitutional Constitution, subject the Federal or retarded. accused to conviction for which conduct Notwithstanding the to command en- it is powerless proscribe. to restriction, force the constitutional the ma- added). at (emphasis Id. jority complete holds that states have dis- Succinctly put, may “[w]hat state any procedures cretion to сhoose govern to directly indirectly.” do it not do Id. the determination of mental retardation. at “If it punish S.Ct. 145. cannot position Not is this based a flawed as a servant criminal for the mere reading also to failure or refusal to paying serve without Alabama, Bailey v. clearly estab- debt, his permitted accomplish it is not procedures lishes that if a State’s trans- by creating statutory same result a gress a right, substantive constitutional “in which, presumption upon of no other operation,” their natural those procedures fact, him exposes punish- to conviction and unconstitutional. here, ment.” Id. Likewise because the (1911).4 55 L.Ed. 191 directly State cannot authorize the execu- Bailey, In successfully a defendant chal- mentally retarded, tion it cannot do as a lenged, violation of the Thirteenth by indirectly creating statutory so bur- Amendment, procedural a state rule. Id. of proof den which assures the same re- 145. Although the Court sult. And whether a state in Bailey recognized that generally states evidentiary rule transgresses a constitu- possess power to prescribe procedures judged by tional command is whether “the affecting laws, own their went Court operation natural produces the statute” power on to hold this is limited proscribed result, not whether rights when federal constitutional are at betray statute or its enactors such an in- stake: Although tention. Id. the Georgia state ..., [WJhere the conduct or court in case this was constrained these fact itself scope provision within the binding Supreme holdings, it utterly falls Constitution, the Federal a further “correctly failed to identify]” prece- question apparent It dent, Williams, arises. that a prohibition constitutional cannot be and instead “applied rule that con- transgressed indirectly it, Putman, creation tradicts” 268 F.3d at Bailey, it a Alabama made crime enter the Thirteenth prohibition Amendment's employment for into contract in- against involuntary servitude. Id. at injure employer by tent or defraud an agreed, S.Ct. 145. The find- fusing perform the contracted services after ing presumption that the State’s was uncon- being paid. Id. at 31 S.Ct. 145. The "compel stitutional as State could one provided perform statute also that failure to payment man labor another in of a refunding money the service without debt, by punishing as a him criminal if he prima facie evidence of the fraudulent crimi- perform pay does not the service or the debt" intent. challenged nal Id. defendant his violating without the Thirteenth Amendment. alia, arguing, conviction inter that the statuto- Id. 31 S.Ct. 145. ry presumption of fraudulent intent violated identify apply governing Supreme decision of the state court’s depriving thus precedent, by failing even to con- deference. AEDPA requiring front the fact that an offender to Randall, again the Court Speiser In a prove mental retardation reason- on constitutional limits imposed express “necessarily produce[s] a result able doubt implicating rules federal procedural state direct- which the State could not command specific context rights constitutional id., namely, making mildly the ly,” placing a law the bur- confronting moderately mentally eligible even on an individual. den for execution.6 (1958).5 1332, 513, 2 L.Ed.2d 1460 78 S.Ct. con- that when federal Wainwright, The Court declared recently, More Ford issue, are at the State rights stitutional lim- reiterated the constitutional the Court ade- prоcedures which are provide prescribe “must power itation on a State’s against infringement of quate safeguard affecting the determination of procedures at constitutionally protected rights.” Id. right. a substantive constitutional explicitly, More be- 78 S.Ct. 1332. legal right Ford, of a often cause the vindication In was asked to pro- “the fact-finding process on the turns questions: resolve two “whether the facts of the case are cedures which Eighth prohibits Amendment the execu- importance fully and, so, determined assume of the if whether one tion insane” validity of the substantive rule great as the hearing on a claim of is entitled to at applied.” Id. 78 S.Ct. of law to In insanity. Id. at 106 S.Ct. 2595. important rights more 1332. addressing adequacy “[T]he of the State’s important the more must be stake sanity, majority ‍​‌​‌​​​‌​‌​​‌​‌​​‌​​​​​‌​‌‌​‌‌‌‌​​​‌​​‌‌​​‌‌​‌‌‌‍to determine procedures surrounding those safeguards right that if the of the Court first noted Re- one, Id. at 78 S.Ct. 1332. rights.” only merely a state-created Speiser con- lying Bailey, the Court pro- question would be whether the State’s placement of the cluded that the State’s policy own cedures effected the State’s proof on the individual could not burden of protecting the insane from execution. Id. “necessarily produce[d] However, it majority stand because of the Court ex- proce- could not command plained adequacy result which State of a State’s directly,” completely in that it a deter- in a dif- “resulted] dures must be viewed speech light places which the Constitution ferent if “the Constitution rence pow- 1332. restriction on the State’s makes free.” Id. substantive prisoner.” here, utterly failed to er to take the life of an insane Again the state court directly,” "may do id. at Speiser, Court was asked to consider not added), constitutionality requir- (emphasis of a state statute is a command proving ing taxpayers to bear the burden Amendment not limited to the First “they persons who advocate the are not (Bai- (Speiser) or the Amendment Thirteenth government,” impli- which overthrow ), ley applies one that to all federal rights. speech cated First Amendment free rights, including constitutional substantive U.S. at 78 S.Ct. 1332. Eighth in At- Amendment at issue Moreover, challenged even if the laws kins. majority disregards Bailey Speiser 6. The proce- also violated individual in those cases they concluding are not Amend- rights majority process due dural —as they are not. Instead the ment cases. Indeed principle that State reads these cases—the pronouncement that “the state Court’s transgress indirectly substan- action cannot withdrawn ... interfere with matters rights the author- is no less tive constitutional authority by Federal Constitu- from its Bailey Speiser. holding itative tion,” Bailey, ” indirectly “may do and hence 2254(d). Having Id. then held that the execution of U.S.C. relying Rather than by prohibited Eighth clearly insane was established Bailey, law of Ford, Amendment, majority Speiser, of the in and Court the state court looked to procedures Supreme Ford determined that the state Court’s decision Leland Oregon, inadequate protect at issue were case, L.Ed. 1302 In that right substantive federal constitutional the Su- preme statutory Court held that the insane not to be executed. at Id. quirement proof beyond a 106 S.Ct. 2595 (plurality opinion); id. at doubt for the state-created affirmative (Powell, J., de- 106 S.Ct. 2595 concur- insanity fense of did not violate the federal ring part concurring judgment). Leland, constitution. at Ford, As in proof State’s burden of Supreme S.Ct. 1002. The upheld here is inadequate protect the substan- Oregon’s of proof expressly be- tive right federal constitutional of the men- cause the affirmative defense was exclu- tally retarded not to be executed. The sively a right state-created and did not disregarded state court precedent this any involve federal protec- constitutional concluding Georgia’s standard of tion. Id. Simply S.Ct. 1002. proof was constitutional. put, there was no constitutional right at sum, by holding that “Atkins does not Thus, stake Leland. Leland is inappo- require any specific proof burden of site on its own terms right where the explicitly procedural leaves such matters issue is one secured the federal consti- limitation, to the states” without the ma- Where, case, tution. inas a constitu- jority improperly defers to a state court tionally protected right —the ruling that inis direct Bailey conflict with stake, Bailey, Amendment —is Speiser, v. Alabama progeny. and its Under these Ford, Leland, and not direct the anal- cases, a State procedures cannot create ysis require a different result. that effectively eviscerate a substantive Supreme Georgia’s Court of deci- constitutional right, but rather pro- “must recognize sion fails to that when a consti- procedures vide which are adequate to right issue, tutional is at a State cannot safeguard against infringement of [the] chose a process that effectively gut will constitutionally protected right[ Speis- ].” that right. And majority condones er, 357 U.S. at 78 S.Ct. 1332. this disregard Court law Thus, question before the simply asserting that because Atkins did Court of Georgia was whether expressly particular establish a stan- burden of eviscerates the substantive proof, dard of the State can choose constitutional retard- scheme wishes. Clearly es- ed not to be executed. Rather than an- tablished Court law forbids this swering question, Bailey requires, result. of whether Georgia’s standard of necessarily results in that which Atkins III. Requiring Beyond A Rea- Proof has held constitutionally prohibited, the sonable Applied Doubt When wholly court sidestepped the requi- Highly Subjective Determina- analysis. site tion Mental Retardation Evis- cerates the Eighth Amendment decision, The state court’s erroneous Right Mentally Retarded defers, majority Of- instead was Not To Be Executed fenders based on inapplicable Supreme prec- edent, further depriving the state court Requiring decision of AEDPA deference. prove See 28 their mental beyond any

1371 lead, For inevitably question, “[t]he factual more doubt will reasonable stringent proof party of a burden must operation, to the through rule’s natural bear, party the more that bears risk of of frequent execution Dir., v. an erroneous decision.” Cruzan individuals, depriving thus 261, 283, Health, Dept, Mo. 497 U.S. 110 of pro- “to tarded their constitutional of (1990).9 2841, 111 L.Ed.2d 224 Ac- S.Ct. safeguard adequate cedures which cordingly, when a scheme re- Speiser, against” execution.7 See 357 their quires party one to bear the burden of 521, 1332. is so This U.S. at establishing particular fact most highest standards placing because legal that our stringent proof standard of places upon such offenders upon system beyond a recognizes proof rea- — all of the risk of an erro- practically them society’s sonable doubt—it reflects desire The risk com- neous determination.8 party that the the burden should bear the fact pounded here because of mental overwhelming risk of erroneous deci- on a psychiat- has to be based Thus, sionmaking.10 example, because ric “the subtleties nuances” diagnosis, [facing “the interests of the defendant recog- of which the has charge] magnitude, criminal are of such beyond nized “render certainties reach ... historically they protected have been Addington, most 441 U.S. situations.” proof designed standards of to exclude 430, Thus, mental 99 1804. retarda- S.Ct. nearly as likelihood of possible provable beyond a tion is almost never is, by requir- judgment” erroneous —that (at least where contest- reasonable doubt ing proof guilt beyond his a reasonable ed), of an deter- and the “risk” erroneous 423, doubt. 441 U.S. at Addington, 99 wrongful added).11 resulting Here, execution mination (emphasis S.Ct. 1804 de- approaches certainty. spite longstanding a near principles,12 burden argument disutility recognized comparative 7. at oral ment of the social The State itself 358, 371, proof beyond standard of Winship, In re each.” 397 U.S. 1068, doubt will result the execution (1970). S.Ct. L.Ed.2d 368 of some retarded offenders. society’s 11. This that "it is reflects belief far explained 8. Court has worse to convict an innocent man than to let doubt a reasonable standard shifts guilty Winship, go man In re free.” party the entire risk of error” to the "almost 372, J., (Harlan, atU.S. 90 S.Ct. 1068 concur- proof. Addington bearing the burden of v. ring). 424, Texas, 441 U.S. Gregg Georgia, 12. See Oklahoma, Cooper 9. See also (1976) (plurality 49 L.Ed.2d 859 L.Ed.2d (“When stake, opinion) a defendant’s life is at ("A proof) heightened [of standard does not particularly the Court has been sensitive to error, simply reallo- decrease the risk observed.”); every safeguard insure parties.”); Adding- cates ton, that risk between Carolina, Woodson North ("The 441 U.S. at 99 S.Ct. 1804 proof) serves to allocate the risk standard [of ("Because qualita- (plurality opinion) th[e] litigants.”). error between imprisonment tive difference life [between death], punishment by there is a corre- explained Harlan his concur- As Justice sponding reliability in the need for difference ring opinion, the standard of “[b]ecause appro- frequency in the determination that death is comparative ... erro- affects the outcomes, (inter- priate punishment specific the choice of case.” neous in a particular litigation applied omitted)). in a kind of citation nal world, should, in a rational reflect an assess- long past. into capital on a offender behavior the offender’s Georgia places imprecise nature of the mental ultimate fact on his Given the prove the determination, right depends possibility allo- “the Amendment all liti- factfinding risk of error to the of mistaken inherent in almost the entire cates virtually gation,” Speiser, none of it 357 U.S. at leaving while offender words, added), Georgia (emphasis In a near- the State. other becomes with in this certainty that it is far better errone- context. has decided person ously mentally execute a retarded in Prior to its decision the Su- erroneously imprison for life one than preme already had its expressed mentally is not retarded.13 who psychiatric doubt that conditions could Moreover, beyond risk only proved is the of error ever be a doubt. reasonable offender, overwhelmingly discussing the In the determination an indi- allocated of by it in enlarged exponentially is also the vidual’s mental condition the context of commitment, subjective inquiry recognized nature of the into civil the highly retardation, making it even clearer that the lack of and the “[g]iven certainty mental psychiatric the reasonable standard un- of fallibility diagnosis, that doubt there is in questionably question will result the execution of a serious as to liti- [a whether protects. gant] prove beyond those offenders that Atkins could ever a reason- retardation is a condition that an Mental medical able doubt individual is men- both diagnosed only among is through, tally likely dangerous that oth- ill to be .... things, subjective a psychiatric er standard re- The subtleties and nuances of quires experts diagnosis virtually to assess func- render intellectual certainties be- tioning and to interpret meaning yond Adding- the of reach most situations.” majority's point argument aspect fact-finding process The of a on is multifaceted hand, internally Georgia inconsistent. one point. On the the under law” is beside No the majority accept possibility refuses to of many procedures, hearings, matter how error, arguing that because the states have evidentiary opportunities provides, authority procedures unchecked to choose every pro- the law remains that one of those by which an offender must the fact establish opportunities governed by cedural one, will be retardation, partakes mental one, of one who of only proof beyond standard of — procedures those but fails to labeled Thus, majority's doubt. mentally State as retarded is therefore conclu- that it is concern erroneous to consider sively mentally Under retarded. this rea- constitutionality proof standard of soning, thing there can be no as an such Georgia’s panoply pro- from the isolation erroneous determination of mental retarda- resolving is cedures of no moment. offender tion—an is retarded if and whether standard of of be- output procedures if the of the State's yond contrary a reasonable doubt is to At- contrast, By majority declares him to be. command, kins's is understood that "[ejvery later admits that standard entirety of the the fac- scheme for allocates some risk of an erroneous factual retardation, tual determination of mental in- determination to the defendant and therefore cluding specific procedural each of the presents some risk that retarded of- cites, subjected "rights” majority that the fenders will be executed violation of At- exacting proof that to the most standard of kins," and, proof, under there Thus, legal system just our as the tolerates. a risk "that the trier of fact will conclude urges majority ignore that "we should not offender is not range rights capital full available de- to a when, fact, majority he is.” cannot The retardation,” claiming we fendant mental ways. have it both ignore every one of cannot each and Moreover, range majority's rights” that the those "full is constrained assertion beyond reasonable doubt standard is not reasonable doubt standard of merely proof. to Atkins because it is "one ton, 429-30, 1804; impairment an “elusive” concept, see de- U.S. Fоrd, interviews, pending 106 S.Ct. 2595 on also observation and (Powell, J., concurring) (explaining that professional judgment diagnosis. See sanity, AAMR, Definition, unlike issues of question Retardation: Mental fact, basically subjec- Classification, Systems “calls for Supports historical 2002). substantially (10th judgment” “depends tive ed. expert 89-90 analysis discipline expert fraught subjective must make a assessment (internal nuances”) subtleties and individual’s actions across various contexts omitted). marks quotation including numerous relevant skill areas “communication, self-care, living, home so- of mental The determination retarda- skills, cial/interpersonal use community of as generally signifi- characterized tion— resources, self-direction, functional aca- subaverage cantly functioning intellectual leisure, skills, work, health, demic and accompanied significant deficits Atkins, 3, at safety,” n. 122 308 manifested adaptive skills that before the 2242, none of which singularly age eighteen14 presents exactly — subject determinative nor quantifiable Addington concerns noted in and same precision. inescapably The determination rests Ford. expert opinions, in turn which are This necessarily assessment also “looks ‘impressions’ on medical drawn “based past even the time of the backwards — subjective Addington, 441 analysis,”

from crime and developmental pe- back into the 430, 1804, at 99 of scattered U.S. riod,” v. Hardy, United States 762 information, pieces of themselves distilled F.Supp.2d 849, (E.D.La.2010), 881 subjective others. from the views of thirty many years, be as as for standards, According professional Hill. functioning An individual’s intellectual analysis proper retrospective entails a through measured various standardized “longitudinal approach adaptive behav- tests, subject results of which raters, multiple very ior that involves spe- And, interpretation.15 variable the re- cific community observations across envi- possess quirement an individual ..., records, ronments ratings school and adaptive they skills and that impairments by peers development process.” age eighteen have manifested fur- before Allen, 1257, F.Supp.2d Thomas v. complicates ther assessment. (N.D.Ala.2009) AAIDD, (quoting User’s collection Adaptive behavior is “the of con- Definition, social, Guide: Mental Retardation: ceptual, practical and skills that Systems Support Classification and 17- performed by been and are have learned (2007) (“AAIDD Guide”)), affd, User’s everyday in their lives.” people See (11th Cir.2010). AAIDD, 607 F.3d Disability: Intellectual A clinician Definition. Classification, Systems Support conducting retrospective diagnosis and (“AAIDD (11th 2010) Manual”). “thorough history” ed. The must assess a social individual, adaptive including AAIDD itself admits that “investigat[ing] skills example, recognized of mental 15. For definition this circuit has phenomenon that the essentially statistical known as the tracks authoritative medical Flynn Effect and the Standard Error of Meas- quoted by definitions Court in plus applied urement or minus 5% can be at n. Atkins. See by a test to an raw administrator individual’s DSM-IV; (quoting AAMR 1992 Manu- arriving IQ IQ test when at a final score 17-7-131(a)(3). al); Ga.Code see Ann. Allen, score. See Thomas 607 F.3d (11th Cir.2010). 757-58 ... all history. relevant informa- behavioral organizing] See life,” person’s tion and “ex- at 308-09 n. n. n. about S.Ct. 2242. Despite ... reasons for ploring] possible expert’s testimony absence the defense data”; IQ of data or differences she must that Atkins had a full-scale of 59 and thorough defendant, review of school capital also was second out “[c]onduct records,” forty, contact teachers and that the peers expert had ever found to adolescence, subject’s looking retardation, meet the criteria for mental cognitive, adaptive, expert opined evidence of deficits the state’s that Atkins was (quoting Id. AAIDD “average social skills. retarded but of in- 17-20). Guide, least,” telligence, User’s id. explained Atkins’s abominable must be a rea- Where performance by academic saying he “did doubt, common sense sonable tells us that poorly because he did want to do what requiring unavoidably reliance on these in- do,” he required id. at n. complete subjective sources infor- S.Ct. 2242. And although dissenting mation job renders the Atkins claimant’s justices Virginia on the Supreme Court near-impossible task. Compounding the rejected expert’s the state’s opinion that difficulty inherently subjective of this diag- possesses average intelligence “Atkins as nosis is that all of the relevant proof will ” law,’ ‘incredulous as a matter of id. at presented judge jury to a or via the 310, 122 2242 (quoting Atkins v. dueling experts views of mental health Commonwealth, 260 Va. 534 S.E.2d

who have evaluated subtle and often con- (2000)), the majority of the state tradictory aspects of the offender’s behav- supreme court refused to excuse Atkins history, ioral through often times second- from “merely execution IQ because of his long third-hand accounts of a distant score,” (quoting id. Atkins v. Common- past subject to direct observation. wealth, 321). 534 S.E.2d at subjectivity Because of the of both the di- agnosis and the documentation of of- Likewise, the proceedings in Hill’s case childhood, experts fender’s are bound to illustrate the challenge proving inherent disagree about whether an offender is the fact of mental mentally Obviously, retarded. the less se- doubt, reasonable again particularly for retardation, vere individual’s mental mildly mentally retarded. After a susceptible more his condition is to dif- lengthy hearing, the state habeas trial fering interpretations by experts. For court found that Hill proven beyond had offenders, these experts’ result reasonable doubt that IQ he had an indi- dispute about whether the offender falls cating Yet, mild mental retardation. it just just within or outside the ambit of also found that Hill had not demonstrated mental quantum retardation is some sufficient “deficits in adaptive skills func- irreducible doubt—which in Georgia tioning” béyond doubt, only reasonable to a amounts death sentence. because there was no unanimity opin- Indeed, experts. discussed ion Virtually all of the length how Atkins himself was testifying experts personally unable to met with Hill jury convince a Virginia and the essentially and reviewed the same docu- mildly courts that he mentation, was yet they retard- disagreed about the ed because of the disagreement between meaning during of Hill’s behavior his de- his expert Thus, and the state’s expert velopmental period. on the although the meaning of functioning his intellectual ultimately state habeas court found that retarded,16 understanding judg- ing, and social probably Hill was relief Id. granting Atkins ment.” precluded limited this constitutional- because adaptive frequently abilities are These those individu- ly guaranteed by judicial factfinders as mischaracterized mental retardation could establish als who that the individual is not retard- evidence doubt, a standard beyond any Indeed, and the Fifth Cir- ed. this Court are able experts when cannot be met recognized mildly cuit have slightest basis for even the to formulate capable holding retarded individuals disagreement. cars, bills, taking care jobs, driving paying Moreover, proceedings as the trial families, forth. Thom- of their and so See demonstrate, cases Atkins’s and Hill’s both (11th Allen, 607 F.3d Cir. mildly mentally retard- apparent it is 2010); Wiley Epps, 625 F.3d universe of all ed offenders —89% (5th Allen, Cir.2010); Holladay see also dif- greatest mentally retarded17—face (11th Cir.2009) (defen- 555 F.3d standard, and are satisfying ficulty expert “cogently explained” dant’s of an erroneous deter- greatest at the risk points of what Alabama to as “some mentally re- they are not mination that are activities that an individual strengths IQ their score place, In the first tarded. capable with mild mental retardation is of a range within an error frequently Therefore, the existence of performing”). Moreover, non-mentally person. retardation, especially fact of mental skills, most men- respect adaptive retardation, the case of mild mental will individuals, especially those tally retarded always open be to some doubt. almost mild, “present mental retardation whose Indeed, published Georgia a review of AAIDD profile.” competence a mixed adjudicating court cases mental re- state Guide, mild at 16. Individuals with User’s capital context confirms tardation may “manifest subtle mental retardation just extraordinarily difficult it is for how frequently difficult to limitations that are skills, beyond a reason- detect, an offender to meet the plan- in academic especially Although Georgia mak- standard.18 solving, and decision able doubt ning, problem astray goes of the majority suggests retardation but also there is no mental 16.The mentally legal question court. finding case that Hill is sole before this en banc in this preponderance of the evidence. tarded comprise mildly mentally 17. The retarded question habeas There is no the state mentally largest percentage of the universe of Head v. court found this to be a fact. See would be in the retarded individuals who Hill, 94-V-216, Order on Petitioner's No. Penry, position to mount an Atkins claim. See of Denial of Ha- Motion for Reconsideration 333, (noting 19, 109 S.Ct. 2934 2002) (Ga.Super.Ct. Nov. beas Relief point standard, people "most retarded who reach ("Under preponderance] [the retarded"); sentencing mildly J. Marc mentally would Petitioner to be find court, Tasse, retarded.''). Adaptive Diagnosis Behavior and the habeas That the state Cases, remand, Ap- Capital 16 complied with the mandate of the Mental Retardation 114, (2009) (not- apply higher plied Neuropsychology stan- 117 supreme court to up ing mildly mentally alter fact that the retarded make dard does not that the claims, majority have found Hill to if not state habeas court would the "vast of Atkins stringent all”). a less retarded under proof. 767, Lewis, Hall v. 286 Ga. 692 S.E.2d 18. See majority’s occasions efforts on several State, 47, (2010); Foster v. 283 Ga. 656 speculation 580 engage in about Hill's its own Head, (2008); v. 2008 WL only impermissi- S.E.2d 838 an retardation is not mental Ledford State, (N.D.Ga.2008); Rogers v. 282 re-adjudicate 754486 attempt to the fact of Hill's ble 1376 claims, ostensibly imposition ing outlawed the mental

has retardation one successfully defendant has ever estab- penalty the dеath lished mental his a rea- twenty years, of offenders for over Lewis, sonable doubt. See 692 S.E.2d capital cases involv- twenty-two reported 593.19 31, 659, (2007); ("When- Georgia's 7—131(g)(1) 653 S.E.2d 35 law. Id. Ga. Schofield 17— 809, (2007); Holsey, 642 S.E.2d v. 281 Ga. guilty ever a defendant found ... but men- State, 232, retarded, Perldnson v. 279 Ga. 610 S.E.2d tally ... the court shall sentence State, 829, (2005); v. 276 Ga. Morrison him or her in the same manner as a defen- (2003); Stripling, Head v. 583 S.E.2d 873 Thus, offense.”). guilty dant found of the 403, Hill, (2003); Ga. 590 S.E.2d 122 Headv. because the stakes for mental retardation 255, (2003); 111 Ga. 587 S.E.2d 613 Headv. exponentially higher capital claims are Ferrell, 399, (2001); 274 Ga. 554 S.E.2d 155 cases, likely vigor- the State much more State, 69, 78, v. 272 Ga. 525 S.E.2d Foster ously oppose the assertion of mental retarda- State, 258, (2000); Kingv. 213 Ga. 539 S.E.2d Bies, capital Bobby tion in a case. See v. (2000); State, 54, Heidler v. 273 Ga. 173 L.Ed.2d State, (2000); S.E.2d 44 389, Torres v. 212 Ga. (2009) (“[Pjrosecutors, pre-Atkins, had (2000); State, Lyons 529 S.E.2d 883 v. vigorously little incentive to contest evidence (1999); 271 Ga. 522 S.E.2d 225 Palmer prohibition [Atkins’s retardation. on exe- State, (1999); 271 Ga. 517 S.E.2d 502 cution substantially retarded] State, Stephens v. 270 Ga. 509 S.E.2d 605 altered the State’s incentive to contest [of- State, (1998); Jenkins v. 269 Ga. capacity....”). mental fenders’] This bears (1998); State, S.E.2d 502 Mosher v. 268 Ga. majority out in the four cases relies on (1997); 491 S.E.2d 348 Raulerson v. State, and one additional as well. See Sims State, (1997); 268 Ga. 491 S.E.2d 791 (2005). 279 Ga. 614 S.E.2d In- State, Ill, Burgess v. 264 Ga. 450 S.E.2d 680 deed, reported non-capital of the nine cases in (1994); State, Williams 262 Ga. Georgia in which mental retardation was at S.E.2d 348 issue, the successfully defendant was able to support To its conclusion that "there is no establish his mental retardation in five of evidence ... that the reasonable doubt stan- them. triggers unacceptably high dard error rate majority The also notes that in Walker v. cases,” for mental majority retardation State, 774, 439, 282 Ga. 653 S.E.2d 447 suggests that it is relevant that in five of these (2007), the co-defendant Griffin had been cases the defendants received a life sentence However, "adjudicated mentally retarded.” instead of a death sentence. In each of the plea “guilty Griffin entered mentally a but cases, however, the defendant received a life retarded,” receiving rather than that verdict sentence for reasons unrelated to his asserted at trial. Appellee See Brief On Behalf of the retardation, though mental even he had General, Walker, 774, By Attorney 282 Ga. a raised claim of mental retardation. (2007). Georgia 653 S.E.2d n. 439 5 Under majority non-capital The also cites to four law, accept plea "guilty mentally but State, 854, cases—Marshall v. 276 Ga. 583 retarded,” judge need not find the 884, defen- (2003); State, Chauncey S.E.2d 886 mentally beyond dant reasonable (2007); Ga.App. 283 641 S.E.2d only doubt but State, need find that there ais factu- Ga.App. Laster 505 S.E.2d mentally al basis that the (1998); State, defendant is retard- Moody 17-7-131(b)(2). § ed. Ga.Code Ann. Ga.App. 422 S.E.2d —as juries judges Georgia do case, 19. And in that the State did not even mentally find defendants to be retarded. The challenge mount a credible to the however, offender's majority acknowledge, fails to experts claim. Three testified that the offend- although "guilty mentally the verdict of but retarded, mentally er was and the state habe- capital retarded” is available in both and non- cases, testimony scientifically as court found their capital felony see Ga.Code Ann. 17- 131(b)(1), Response Appel- sound and credible. Brief of determination of mental re- 7— lee/Petitioner, Lewis, consequence only capital tardation is of 286 Gа. 692 S.E.2d contrast, Non-capital By cases. offenders who are found the state habeas "guilty psychologist retarded” are sentenced court found the State’s to be a any no different gun” expertise than other defendant under "hired who lacked in the field securing the constitutional fact-finding be reduced on the side of Rather than issue, majority and the constitutionally protected right individual’s right. If an effectively revoked that have utterly This one-sided risk of rights.21 erroneously found not is offender all the more intolerable when the error is executed; if an offend- retarded, he will be question at stake is a individual retarded, erroneously found er is life death.22 that of only detriment government’s who is not men- incarcerating for life one IV. Conclusion To eliminate risk tally retarded. power deny No State has the citizens increasing the by exponentially

the latter rights. of their federal constitutional risk of the former20 Atkins has recognized the federal constitu- to the Court’s but also right mentally tional retarded offenders ‍​‌​‌​​​‌​‌​​‌​‌​​‌​​​​​‌​‌‌​‌‌‌‌​​​‌​​‌‌​​‌‌​‌‌‌‍margin of error requirement opinion implicates right. e.g., Cooper, retardation and whose See of mental repeated willingness premised on a (holding a "sham” U.S. at 116 S.Ct. 1373 un- disregard standards of the the established requirement constitutional the that a defen- psychological profession. Id. On the basis of prove competence dant to to stand trial findings, factual the court found the these convincing clear and evidence because the petitioner had established mental consequences "of an erroneous determination beyond a doubt. Id. The State competence are dire” for defendant while Lewis, challenged this determination. never injury opposite "the to the State of the error— Notably, capital no 692 S.E.2d at 593. other incompe- that the defendant conclusion any reported case has ever been offender in malingering tent when he is in fact mod- —is to establish his mental retardation be- able est”); Addington, 441 U.S. at yond to avail a reasonable doubt so as himself (requiring height- the State to ameet Georgia's prohibition on execution of the clear-and-convincing ened standard for civil mentally retarded. involuntary commitment because a defendant liberty with at stake "should not be asked to recognized that 20. Court has error”); equally society share the risk of related, types inversely these two of error are Kramer, Santoslcy v. and that the a reasonable doubt stan- (1982) (requiring type dard of reduces the risk of one heightened the State to bear a burden of at by maximally increasing the error risk Addington, convincing paren- opposite error. 441 U.S. at 423- least clear and evidence in (beyond 99 S.Ct. 1804 a reasonable doubt proceedings, tal termination which the Court nearly possible” as recognized parent’s "exclude[s] fundamental involved type shifting "al- care, the risk of one of error custody, liberty and man- interest most the entire risk of error” to the other child). agement of their types party). The ratio between the two yielded by beyond a errors generally, capital proceedings [the 22.“In Su- doubt standard has been estimated at ten to factfinding preme] Court has demanded that Blackstone, one. See 4 W. Commentaries 358 procedures heightened aspire to a standard of ("[T]he law that it better that ten holds[] reliability ... [because] execution is the most guilty persons escape, than that one innocent penalties.” irremediable and unfathomable of is, context, suffer.”). pro- That in this it will Ford, (plurali- 106 S.Ct. 2595 roughly duce ten executions of ty opinion). "When the choice is between life non-mentally every one tarded individuals for death, penalty risk the death th[e] [that erroneously spared individual may imposed spite will be factors which execution. unacceptable penalty] call for less severe incompatible with the commands of the 21. Several Court cases establish Eighth and Fourteenth Amendments.” Lock- may require that states not the individual Ohio, ett v. putative of a substantive constitutional holder C.J.) (1978) (Burger, (plurali- right significant majority to bear a of the risk ty opinion). of a of an erroneous determination fact therefore, Georgia, not to executed. Atkins; announced in it plain- indirectly cannot authorize the execution of ly job, instead, has. Our simply to ask through retarded offenders a pro- whether it is beyond disagree- fair-minded in practical operation cedure that accom- ment that the boundaries applied plishes that result. Because Georgia’s State this run case afoul of inevitably standard of will result in Supreme holdings, including that of the execution of retarded offend- Atkins itself. ers and thus is to the dictates of is, I believe that it and I endorse the Atkins, I dissent.

substance of Judge Barkett’s dissent. WILSON, Judge, Circuit dissenting, in However, I part company with Judge MARTIN, Judge, joins: Circuit Barkett in that I tend to an see as “unreasonable application” of a majority today not reaches the —instead answer, “contrary wrong and, it to”—case under AEDPA wrong question. asks the that, therefore, Suppose beyond-a-rea- conceptualize instead of our inquiry as fol- standard, sonable-doubt the State of Geor- lows. gia required mentally retarded death-row Atkins declared a federal constitutional prove inmates to their Atkins1 claims be- right, but left it to the individual states to yond any shadow of a doubt—-a standard define that right’s exact boundaries— requiring, law, under Georgia that prison- thereby creating a zone of discretion for ers obtain the unanimous consent of a 100- review, action.2 On habeas AEDPA panel

member of state-appointed psycholo- essentially broadens that zone of discre- gists, ten IQ consecutive showing tests tion, so that federal respect courts must intelligence quotient of not more than thir- (i.e., states’ definitions, boundaries proce- ty, and supporting affidavits from the vic- dures, etc.) burdens, even if those courts tims’ families and the Governor. Could believe erroneous, them to be jurists long so fair-minded disagree that the fore- they are going Nevertheless, unreasonable. is unconstitutional? Of course not. But in at some point, order to extreme endorse not the clear mandate result, only the but the logic today’s of Atkins and the Due Process Clause majority opinion, one must yes. answer must limit a ability state’s overly set restrictive boundaries. cases, And rare

We are asking whether the a state’s Atkins boundaries be so Court has determined that the Constitu- they restrictive that fall outside of even requires particular tion burden of the AEDPA claims; buffer to the Atkins Atkins zone of plainly has not. We are not discretion. asking For the whether the reasons described has left it to Judge dissent, states to draw the exact Barkett’s I believe this is boundaries and define precise contours one of those rare cases. 304, Virginia, 1. See, Atkins v. 536 U.S. Georgia's e.g., standard. Missouri v. 2242, 2252, S.Ct Jenkins, 153 L.Ed.2d 70, 85, 515 U.S. 115 S.Ct. (holding that execution of retarded (1995) ("Of course, ‘the unconstitutional). criminals is imports denial of a writ of certiorari no ex- pression opinion upon the merits of the contention, Contrary

2. majority's to the " case, as the many bar has been told times.' Supreme Court's denial of certiorari in three Carver, (quoting United States v. 260 U.S. cases where challenged inmates 181, 182, (1923))). 43 S.Ct. 67 L.Ed. 361 burden establishing for mental retar- way dation in no approval reflects the Court's say Upon turning portions that the cited simply It is no answer Ford, Supreme we discover that explicitly passed Court has delegation to the states has limits. Court’s proof question, burden of on the Atkins determining After that it is unconstitution- their it to the states to set that Atkins left person, al an insane the Court to execute “recognizes ... AEDPA procedures. own in required addressed what was states may ap- standard be general that even a setting procedures. their own See manner.” Panet- in an unreasonable plied Ford, at 106 S.Ct. at 2605 930, 953, Quarterman, 551 U.S. ti v. opinion). began by It confirm- (plurality 2842, 2858, 168 L.Ed.2d that states should have substantial dis- ing general respect particular And to the with methods, choosing stating in their cretion in it is at issue this case—that sanity” that “a full trial on the issue every to execute class of unconstitutional required “protect the federal inter- (i.e., mild, persons mod- mentally retarded specifically at stake. And it ests” See id. severe, erate, have a profound) —we recognized high “some threshold for on what it means unique perspective showing prisoner” may on behalf of the applied unreasonably. to be that standard necessary “a means to control the number already us Supreme Court has shown repetitive of nonmeritorious or claims of by analogy. at at insanity.” Id. 2605. relied, large part, on a recent- acknowledging Atkins But after that states must is, flexibility determining who developed against national consensus have ly not, insane, legally who is in- Court’s executing every class of structions culminated with this clear and 313-16, 122 persons. 536 U.S. at forceful mandate: recognizing But that there 2248-50. deter- disagreement^]”

be “serious about any Yet the lodestar of effort to devise mining exactly procedure overriding “which offenders are fact must be the dual retarded,” imperative providing redress those people all who and that “[n]ot with substantial claims and of encour- mentally retarded will be so claim to be accuracy factfinding aging the range fall impaired as to within determination. about whom mentally retarded offenders consensus,” is a national the Court there added). (emphases Judge I believe Id. in Ford v. approach declared: “As was our opinion Barkett’s demonstrates regard insanity, ‘we Wainwright, any Georgia’s pro- reasonable dissent how developing the task of squared explic- leave to cedures cannot be with this State[s] if ways to the constitu- it admonition. And there was doubt appropriate enforce imperatives how dual interact about those upon execution of [their] tional restriction ” with our current deferential standard of Id. at 122 S.Ct. at 2250 sentences.’ AEDPA, it was resolved review under (alterations original) (citing example Court’s Panetti v. 405, 416-17, Quarterman, (holding the Constitution forbids exeсution omitted).

insane)) (internal Panetti, citation Con- Court—in guide for under- sequently, Ford is our materially indistinguishable posture not, is, what an standing occupy today and what we that which —addressed applying way[ procedures to enforce” the Atkins Texas’s for “appropriate ] whether general prohibition constitutional restriction. Ford’s constitutional Ford, appli- (quoting were to or unreasonable Id. at 127 S.Ct. at 2859 clearly 423-24, 106 established federal law. cation of at (opin- S.Ct. at 2609 952-54, J.)).3 at Powell, at 127 S.Ct. 2858-59. Not- Id. ion of delegation withstanding explicit Ford’s to Supreme unequivo- Court in Atkins deference, AEDPA the states and Su- cally that prohibits held the Constitution preme Court concluded Panetti was the execution of per- plenary entitled to federal review of his at sons. 536 U.S. S.Ct. at 2252. constitutional claim. Id. at 127 S.Ct. unequivocally And it invoked its approach Recognizing at 2859. that Justice Powell’s Ford. Id. at at controlling concurrence in Ford mandated Moreover, as Judge opinion Barkett’s leeway that a state’s “substantial de- [in] demonstrates, there are several other un- termining] what process best balances the impeachable general principles of —albeit — various interests at stake” be limited brought constitutional law that must be to requirements’ required by “the ‘basic due bear our determination of where At- process,” myriad the Court found defects kins’s constitutional floor was set and what approach enforcing the State’s Ford’s exactly proscribes. particular, In I find constitutional warranting restriction de majority’s attempt ignore guid- novo review. See id. at 127 S.Ct. Oklahoma, ance of cases such as Cooper at (cataloging 2856-57 errors demonstrat- 348, 366-69, 116 S.Ct. 1382- ing provide that “the state court failed 134 L.Ed.2d (holding petitioner process with the minimum requiring prove state law defendant to in- Ford”). quired by It did so notwithstand- competence to stand trial clear-and- ing a lack specific case law on Panetti’s convincing evidence violated the Due Pro- particular complaints today’s majority as Clause), Texas, cess Addington require, by relying would instead on 1804, 1812, U.S. general Justice Powell’s regard- discussion (holding that the bur- ing requirements the basic process, of due involuntary den of for civil commit- well as as the Court’s own assessment that preponderance ment must exceed a state court provide petition- “[t]he failed to evidence) Ford, entirely unavailing; in a constitutionally adequate er with oppor- Supreme explicitly Court referenced the tunity to be heard.” at Id. procedures governing parallel pro- these words, at 2858. other ceedings as “instructive in- analogies” recognized that Ford set a constitu- form appropriate- states’ choices of how to floor, target. tional not a And because ly enforce Ford’s constitutional mandate. factfinding procedures “the upon which the 416-17 & n. adequate [state] court relied were ‘not (plurality opinion). reaching reasonably or, correct results’ minimum, Panetti, As the process ap- resulted Court did peared to ‘seriously inadequate clearly we must consider all relevant for the es- ” truth,’ they ascertainment of the repre- legal tablished rules and standards determination, sented an application” “unreasonable of make a substantive through general Ford’s standard under AEDPA. jurist, lens of thе reasonable provides 3. Panetti completely inapposite), the clearest and most in- Panetti elucidates the guidance structive on how we standard of AEDPA deference due when fed- inquiry Although must conduct the constitutionality before us. eral courts consider the specifically involving not a case procedures petitioner's mental retar- that burden a substan- (and, view, majority’s dation rights. therefore tive constitutional Addington, 441 U.S. at 99 S.Ct. at procedure falls on where appropriateness, constitutional spectrum of by to the floor set Atkins.

relative diagnosis a psychiatric Just like of men- case, words, in we are this Atkins other illness, diagnosis tal psychological constitutionally proper asking not what the “specific, mental retardation deals with is. are not even ask- proof burden of We facts,” but, contrast, “in a knowable is to constitutionally proper bur- ing what the large ‘impres- extent based on medical simply should be. We are proof den of subjective analysis sions’ drawn from constitutionally proper asking what through experience diag- filtered of the more, cannot be. And it cannot proof burden of unlike a diagno- nostician.” What is illness, solely be this. sis of mental which deals today, defendant’s mental state a beyond-a-reasonable doubt stan- The diagnosis of mental retardation relies on in inappropriate the At- patently dard is capacity years, the defendant’s mental if majority context. Since the invokes kins See, decades, past. e.g., useful, imperfect parallel of cases 17-7-131(a)(3) (defining O.C.G.A. mental proof burdens of and mental dealing with requiring retardation as intellectual defi- illness, rely upon I the words of Chief Jus- ciency person’s a during “developmental speaking for a unanimous Su- Burger, tice Moreover, period”). reality since a Court, point: to illustrate the preme mildly can only prove retarded defendant using expert claim Atkins medical testi- psychi- and nuances of The subtleties mony, by gross I am disparity struck virtual- diagnosis render certainties atric certainty communicated to between the ly beyond reach most situations. type expert opinion— factfinder standard of criminal reasonable-doubt certainty— of medical degree reasonable there law functions its realm because by Georgia’s that required Atkins bur- specific, the standard is addressed beyond any proof proof den of — Psychiatric diagnosis, facts. knowable alchemy might doubt. What allow mild- contrast, large is to a extent based on ly petitioner to transform retarded Atkins “impressions” medical drawn sub- subjective, retrospec- imprecise, these through the jective analysis and filtered tive elements into successful constitu- experience diagnostician. This Georgia beyond my imag- tional claim in very often makes it difficult for process ination. expert physician to offer definite Whatever standard any particular patient. conclusions about set, day one even with the shield of discipline, the medical the tradi- Within deference, Georgia’s AEDPA current bur- “factfinding” tional standard for den of does not honor the command certainty.” If a “reasonable medical consequence, respectful- I Atkins. As difficulty with psychiatrist trained has ly dissent. “beyond categorical a reasonable standard, ju- lay untrained doubt” MARTIN, Judge, dissenting: Circuit judge— ror —or indeed even a trained rely upon expert required Nearly forty-five years ago, who is the Su- could be forced the criminal faithfulness opinion preme “[w]ith Court warned: States, reject commit- to the constitutional union of law standard to the States the formula- many patients desperately ment for we cannot leave laws, rules, and care. tion of the authoritative psychiatric need of institutionalized 1382 952-54, at protect people rights. from constitutional See id. designed

remedies federally guar- Rather, by infractions the States 127 at as S.Ct. 2858-59. Panetti California, Chapman v. rights.” illustrates, anteed right once substantive federal 824, 18, 21, 826, 17 386 U.S. established, provide must ade- State fully join Judge I in 705 L.Ed.2d procedures protecting right. quate dissent, and I well-reasoned Barkett’s 952, at 127 at 2858. like Id. S.Ct. only emphasize separately write Ford, develop only commands States to majority I ways in which believe has “appropriate” procedures to “enforce” the venerable Chapman’s run afoul of admoni- Eighth Amendment issue. At- tion. kins, 317, 122 2250. Court did Ford v. As in turn Panetti instructs us how to 477 Wainwright, U.S. “appropriateness” measure this under (1986), regard 91 L.Ed.2d 335 to the Indeed, AEDPA in- review. Panetti against executing constitutional ban many ways.2 structive for Mr. Hill’s case insane, in Atkins it left “to the State[s] First, rights guaranteed confirms that developing appropriate ways task of Eighth under the Amendment must be enforce constitutional restrictions protected procedures comport upon” executing the retarded.1 requirements” with “basic of Due Process. 304, 317, Virginia, 122 Atkins Panetti, 949-50, 551 U.S. at 127 S.Ct. at Ford, (quoting All U.S. at Ford, 416-417, (quoting 477 U.S. at 2610) (Powell, J., S.Ct. at concurring opinion)). But (plurality S.Ct. at 2605 part concurring judgment). in the Of Quarterman, Panetti v. course, Due Process under the Fourteenth (2007), 168 L.Ed.2d makes clearly Amendment is one established deference, plain, AEPDA even under adequacy Georgia’s measure of the men- leeway fact that States have to enforce tal procedures. The substan- Ford’s substantive restrictions does not they adopt any right recognized mean that are free to tive in Atkins is different kind, procedures they to enforce arguably important choose federal more in a majority quite right By saying 1. The Panetti is instructive Mr. Hill's case, the first state to ban execution of the suggest I do not mean to that Panetti However, light fact retarded. sheds little provides "clearly itself the source of estab- Eighth on the Amendment issue we undertake lished” federal law which stan- itself, to decide here. In Ford the State of dard of must be measured. Panetti is pre-existing executing Florida had a ban on relevant for a different reason. It illustrates Ford, All U.S. at insane. See general how even a constitutional standard (referring § S.Ct. at 2598 to Fla. Stat. 922.07 applied be in an unreasonable manner (1985) (proceedings person when under sen- under deference AEDPA's standard. See Pan- insane)); appears tence of death see also etti, 551 U.S. at 127 S.Ct. at 2858. This Wainwright, Goode v. 448 So.2d 1001-02 principle statutory ais construction con- (Fla.1984) (holding person that an "insane cerning interpretation application executed,” cannot be but that Florida's statu- Thus, AEDPA itself. the fact Panetti did tory procedure embodied in Fla. Stat. retardation, not involve mental a standard of Yet, process). 922.07 does not violate due Hill, proof, or was decided after Head v. procedures Court found those III), Ga. 587 S.E.2d {Hill inаdequate to enforce the Amendment provides does detract from the lesson it Ford, right at issue. All U.S. at here. (plurality opinion); S.Ct. at 2605 id. at 425- J., (Powell, 106 S.Ct. at 2609-10 concur- ring part concurring judgment). significantly procedural to affect both the sense, than the substantive Due Process aspects of the death in Justice Powell and the substantive recognized Ford.3 right 405, question in Id. at 106 S.Ct. at 2599 penalty.” out Ford pointed already has been (majority opinion). an inmate who whether is to be executed competent is convicted Eighth Amendment deci- Atkins is he is from that of whether different quite whether, when, a person not sion about in the sentenced to death eligible to be Thus, the determination may be executed. only way: it this “the place. first He said capital of whether a defendant is to be [by incompetency question raised predicate imposing retarded as a when, whether, [an] not but executed] stringent sentence “calls for no less death question is may place. take This execution in than those demanded standards comparable to the important, but it is not aspect capital proceeding.” of a other petitioner whether question antecedent Ford, 477 U.S. at 106 S.Ct. at 2603 Ford, at all.” 477 U.S. executed should be opinion). This means (plurality (Powell, J., at 2610 con procedures mental retardation must meet concurring judg curring part requirements, Due Process ment). distinction, Justice Based on this clearly estab- Supreme also the Court’s Powell concluded Eighth principles Amendment de- lished imposing heightened “decisions Court’s manding reliability accuracy more requirements capital on trials capital proceedings. Lockett sentencing proceedings e.g., — Second, Hill, like Panetti involves sub- Ohio, 586, 98 S.Ct. 57 v. 438 U.S. Eighth prohibition stantive Amendment (1978) (plurality opinion); L.Ed.2d 973 out a sentence of death against carrying 28, 106 S.Ct. Murray, Turner v. 476 U.S. against prisoners a certain class of apply L.Ed.2d 27 —the —do mentally retarded in Hill and the insane insanity at time of determination [the Third, in both cases AEDPA Panetti. But even with context.” Id. execution] corpus federal habeas relief unless bars view, joined por Justice Powell to, or the state court decision recognized that “the tion of Ford which of, application an unreasonable recognized Amendment has been involves Eighth presuming defendant Judge recognized con- state law criminal Posner in different text, competent proves he in- to stand trial unless state, convincing competence by evidence although clear and A limited in its under Process), put rights death even on the Constitution to created violates Due and state mentally incompetent, person other, trial a who is Oregon, 343 U.S. see Leland Ford, 477 U.S. 1002, 1007-08, 790, 799, 72 S.Ct. 96 L.Ed. (1986); California, L.Ed.2d 335 Medina (1952) (holding requiring de- state law 437, 451-53, prove insanity defense fendant to state created (1992), is not constitution- violate beyond a reasonable doubt does not recognize ally obligated to a defense of in- Process). important distinc- Due Given this sanity-several de- states have abolished the tion, time which was well established at the fense ... decided, reasoning and III was and the Hill County, 63 F.3d Despears v. Milwaukee Judge Barkett's dis- authorities discussed in omitted). (7th 1995) (parallel Cir. citations sent, majority's agree con- I cannot between the There is critical distinction or Ford "lend clusion that either Leland required protect Due substantive Process Georgia Supreme enоugh support” to the rights derived from the United States Consti- with, or Court's decision to it consistent make hand, Cooper Okla- on the one see tution homa, of, clearly application estab- a reasonable 348, 355-56, precedent. lished (1996) (holding law. See applied federal dard in an unreasonable clearly established 2254(d)(1). Fourth, both Hill U.S.C. manner. and Panetti involve Amendment 551 U.S. at Panetti prohibitions for which the States were ex- (citations omitted). quotation marks developing ap- task of pressly given “the As the Court did I Panetti ways to enforce the constitution- propriate would hold here that “the factfinding pro- 536 U.S. at al restrictions.” upon cedures which the court relied [state] Ford, (quoting at 2250 S.Ct. adequate reaching reasonably were not 416-17,106 (plurality opin- at at 2605 results, or, minimum, at correct resulted ion)). Finally, question decided in process appeared seriously to be Panetti is strikingly question similar to the inadequate for the ascertainment of the Hill: whether presented by proce- truth” of eligible whether defendant is provided by dures the state court were be executed. Id. at 127 S.Ct. at 2859 adequate protect the constitutional (citation omitted). quotation marks not to right specifically, right be exe- — all For the reasons set forth Judge cuted if insane at the time of execution in Barkett, Eighth and because the Amend-

Ford and the mentally retard- heightened reliability ment demands to be executed Hill. not ed accuracy, I conclude that this standard has similarity light of of Mr. Hill’s plainly been violated in Mr. Hill’s case. Panetti, I agree case to cannot with the beyond This is so because the a reason- majority’s conclusion that AEDPA’s defer- proving able doubt standard for mental precludes ence finding standard us from fundamentally retardation is at odds with that Georgia’s a reasonable doubt holding Atkins. As the basis for the contrary standard is not to or an unrea- in Judge detailed Barkett’s opinion, the application clearly sonable established court, state habeas trial after an extensive precedent. Just because evidentiary hearing concerning mental re- Atkins, Ford, like general announced a tardation, already has determined that Mr. Georgia’s ap- does not mean that Hill likely mentally is more than not re- Atkins Mr. plication of Hill cannot be tarded, yet prove beyond he cannot a rea- to, ap- involve an unreasonable mentally sonable doubt that he is retarded. of, plication Atkins’s constitutional restric- an Executing fitting descrip- inmate against tion executing mentally retarded tion not penological pur- does serve the issue, Panetti defendants. On this is poses of penalty the death identified clear: Atkins itself: deterrence and retribution. That the [Ford] standard is stated in at S.Ct. at general terms does not mean appli- 2251. Atkins instructs that because the cation was reasonable. AEDPA does mentally morally culpa- retarded are less require state and federal courts ble, and because our Amendment nearly wait for some identical factual jurisprudence “seeks to ensure that pattern legal before a rule must ap- deserving the most put execution are plied. prohibit Nor does AEDPA a fed- death, mentally an exclusion for the finding application eral court from Id. at appropriate.” tarded is a principlе unreasonable when it in- 2251. Atkins also at plainly us volves a set of facts different tells from those that “executing mentally of the case in which retarded will principle was measurably announced. recognizes, goal The statute to not further the of deter- contrary, a general Id. even stan- rence.” S.Ct. at 2251. inevitably the risk of unwar already to enhance Hill, has who executing Mr. Thus of the death sentence imposition retarded ranted” that he demonstrated culpable be- retarded. morally those who are upon less and therefore Cf. im- Alabama, 625, 637, and behavioral “cognitive his cause of Beck v. id. pairments,” it will not Atkins insofar

contrary to after a (reversing imposed death sentence of deter- goal[s] “measurably further guilt capital of a offense jury verdict Id. retribution. rence” or to consid jury permitted when a lesser included guilt a verdict of er conclude, beyond a reason- To offense). ‍​‌​‌​​​‌​‌​​‌​‌​​‌​​​​​‌​‌‌​‌‌‌‌​​​‌​​‌‌​​‌‌​‌‌‌‍already satis Mr. Hill has Since contrary to able doubt standard trial court that he is recogni- fied the state longstanding Court’s different, for that of the evi preponderance death is tion that reliability in heightened dence, that “some char requires we should assume reason pun- underlying capital retarda the determinations mental [Mr. Hill’s] acteristics Specifically, ishment. procedural protections tion undermine Eighth “the clearly has established steadfastly capital jurisprudence that our greater degree a requires Amendment 317, guards.” See 536 U.S. in a non- be true ... than would accuracy a risk cannot be S.Ct. at 2250. “Such Taylor, 508 U.S. capital case.” Gilmore the defendant’s tolerated a case which 2117, 342, 2112, 124 L.Ed.2d 333, 113 S.Ct. 637, 100 Beck, 447 life is at stake.” omitted).4 (1993) (citation Because S.Ct. at 2389. “fundamental ranks principle must accord federal habeas courts While post-Fw- to the Court’s enough” court decision substantial deference penalty Amendment death man5 AEDPA, vigilant we must be under these necessity apply jurisprudence, malfunctions in against extreme “guard a reason- Georgia’s beyond principles Har justice systems.” criminal the state clear. See Yarbor- standard is able doubt — U.S. -, Richter, 131 S.Ct. rington v. 666, Alvarado, 652, 541 U.S. ough v. (2011) (quotation L.Ed.2d 624 2140, 2151, 158 L.Ed.2d 938 omitted). a my judgement, execution of (“Certain fundamental principles already he is more proven who has person permuta- factual new enough when retarded, but who likely than not arise, the earli- necessity apply tions mental retardation prove unable to his doubt.”). But, by beyond er rule will be doubt, is an “extreme beyond a reasonable cap- contrast, requirement that protection malfunction” that warrants mental retardation prove his ital defendant “would seem of Great Writ. doubt Florida, (plurality opinion) 49 L.Ed.2d 944 430 U.S. also Gardner v. 4. See ("Death, finality, from life 51 L.Ed.2d differs more 97 S.Ct. in its ("[Djeath opinion) is a differ- (plurality 100-year prison imprisonment term than which punishment other ent kind of year Be- or two. differs from one of country.”); Lockett imposed in this difference, qualitative there is of that cause 586, 605, Ohio, 438 U.S. relia- corresponding in the need for difference (1978) (explaining rationale death is the bility determination that cap- procedures in requiring more reliable case.”). specific punishment in a appropriate minimize sentencing determinations ital im- penalty will be the death "risk Georgia, 5. Furman may call for a spite posed in of factors penalty”); v. North Car- Woodson less severe 2978, 2991, olina, reasons, For all of these as well as those Barkett, by Judge I

expressed respectfully majority opinion.

dissent from the

Case Details

Case Name: Warren Lee Hill, Jr. v. Carl Humphrey

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 22, 2011

Citation: 662 F.3d 1335

Docket Number: 08-15444

Court Abbreviation: 11th Cir.