In re Holladay
| Decision Date | 26 May 2003 |
| Docket Number | No. 03-12676.,03-12676. |
| Citation | 331 F.3d 1169 |
| Parties | In Re: Glenn HOLLADAY, Petitioner. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Page 1170
Bryan A. Stevenson, Equal Justice Initiative of Alabama, Montgomery, AL, for Holladay.
Beth Jackson Hughes, Montgomery, AL, for Appellee.
Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b).
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
Page 1171
MARCUS, Circuit Judge:
Petitioner Glenn Holladay is a state prisoner scheduled to be executed at 6:01 p.m. on May 29, 2003. He has filed this eleventh hour application for leave to file a second federal habeas corpus petition based on the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and for a stay of execution. He alleges that he is mentally retarded, and that under Atkins his execution is flatly forbidden under the Eighth Amendment to the United States Constitution. The State of Alabama opposes Holladay's motion, arguing that he is not mentally retarded and that in any event this claim was procedurally defaulted. The State also contends that by waiting nearly a year following the Atkins decision to file this motion, petitioner's application constitutes an abuse of the writ.
Holladay was convicted on June 26, 1987 of the murders of Larry Thomas Jr., Rebecca Ledbetter Holladay (his ex-wife) and David Robinson, his ex-wife's then-boyfriend. The following day, the jury unanimously recommended that he be sentenced to death, and on July 27, 1987 the trial court formally imposed a death sentence on petitioner. Although in arriving at this decision the court found no statutory mitigating circumstances, it did find four non-statutory mitigating circumstances: Holladay's deprived childhood, his neglect and abuse as a child, his slight mental retardation and his lack of formal education. Nonetheless, the trial court concluded that these mitigating circumstances were outweighed by the two statutory aggravating circumstances in the case, viz., that the capital offense was committed while petitioner was under a sentence of imprisonment and that Holladay previously had been convicted of felonies involving the threat or use of personal violence.
On direct appeal, petitioner's conviction and sentence were affirmed by the Alabama Court of Criminal appeals and the Alabama Supreme Court. See Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988), aff'd sub nom. Ex parte Holladay, 549 So.2d 135 (Ala.1989). Subsequently, the United States Supreme Court denied Holladay's petitions for a writ of certiorari, see Holladay v. Alabama, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989), and for rehearing, see Holladay v. Alabama, 493 U.S. 1095, 110 S.Ct. 1173, 107 L.Ed.2d 1075 (1990).
Holladay subsequently filed a petition for post-conviction relief under Temporary Rule 20 of the Alabama Rules of Criminal Procedure (now Ala. R.Crim. P. 32.2). Although the Rule 20 court found that most of his claims were procedurally barred as having not been raised at trial or on direct appeal, it analyzed Holladay's claim of ineffective assistance of counsel, ultimately concluding that counsel's performance had been neither objectively deficient nor prejudicial to petitioner. See Holladay v. State, Cir. Ct. of Etowah County, 1991 (No. CC-86-1057.60ST, Sept. 24, 1991) at 47-48. The Rule 20 court's denial of post-conviction relief was affirmed by the Alabama Court of Criminal Appeals, see Holladay v. State, 629 So.2d 673 (Ala.Crim. App.1992) and the Alabama Supreme Court denied certiorari review, see id. The United States Supreme Court also denied Holladay's petition for a writ of certiorari. See 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).
Holladay then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Alabama, with his primary claim sounding in ineffective assistance of counsel. On May 29, 1998, the magistrate judge issued a Report and Recommendation that the petition be denied,
Page 1172
and on July 22, 1998, after considering Holladay's objections to the report and recommendation, the district court denied the petition. We affirmed this denial, see Holladay v. Haley, 209 F.3d 1243 (11th Cir.2000), denied rehearing and rehearing en banc, see Holladay v. Haley, 232 F.3d 217 (11th Cir.2000), and the United States Supreme Court again denied certiorari, see Holladay v. Haley, 531 U.S. 1017, 121 S.Ct. 578, 148 L.Ed.2d 495 (2000). Subsequently, in response to a request from the State, on March 24, 2003 the Alabama Supreme Court scheduled Holladay's execution for May 29, 2003.
Petitioner now moves for leave to file a second petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2244 based on the Supreme Court's recent decision in Atkins.
Our consideration of a request to file second or successive habeas petitions is governed by the statutory requirements found in: 1) 28 U.S.C. § 2244(b), which provides in pertinent part that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless ... the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable...," 28 U.S.C. § 2244(b)(2)(A); and 2) § 2244(b)(3)(C), which says that "[t]he court of appeals may authorize the filing of a second or successive application only if it...
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... ... I read Atkins to set forth a substantive federal constitutional right not to be executed if it is established that a person is mentally retarded. In this regard I adhere to the Eleventh Circuit's statement in In re Holladay, 331 F.3d 1169, 1173 (11th Cir.2003) : ... Although the Court ultimately rejected such a rule in [ Penry v. Lynaugh, 492 U.S. 302, 340, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ], in Atkins the Court reversed course and announced that "the Constitution ` places a substantive restriction on the ... ...
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... ... 5. 851 S.W.2d 275 (Tex.Crim.App.1993) ... 6. Id. at 279-280 ... 7. Penry v. Lynaugh, 492 U.S. 302, 329-330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). See also Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir.2002); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir.2002); In re: Holladay, 331 F.3d 1169, 1172-73 (11th Cir.2003) ... 8. Penry, supra, at 329, 109 S.Ct. 2934, quoting Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ... 9. Marin, supra, at 279 ... 10. Id. at 278; see also Rushing v. State, 85 S.W.3d 283, 285-86 ... ...
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