Holladay v. Allen

• Decision Date: 30 January 2009
• Docket Number: No. 06-16026.,06-16026.
• Citation: 555 F.3d 1346
• Parties: Glenn William HOLLADAY, Petitioner-Appellee, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

555 F.3d 1346

Glenn William HOLLADAY, Petitioner-Appellee, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellant.

No. 06-16026.

United States Court of Appeals, Eleventh Circuit.

January 30, 2009.

Beth Jackson Hughes, Montgomery, AL, for Allen.

Bryan A. Stevenson (Court-Appointed), Equal Justice Initiative of AL, Montgomery, AL, for Holladay.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

ANDERSON, Circuit Judge:

Glenn Holladay appears before this Court for the third time. This time, however, he appears as the Appellee. In 2000, we affirmed the district court's denial of his petition for writ of habeas corpus, see Holladay v. Haley, 209 F.3d 1243 (11th Cir.2000), rejecting claims of ineffective assistance of counsel. Next, Holladay appealed to this court for permission to file a second habeas petition and stay of execution, in light of the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held it unconstitutional to execute the mentally retarded. We granted Holladay's request, stating that we were not holding that Holladay was mentally retarded: "[r]ather we simply hold today that based on the facts presented and the procedural posture of this case petitioner should be permitted to file a second petition for a writ of habeas corpus on the basis of his Atkins claim." In re: Holladay, 331 F.3d 1169, 1176 (11th Cir.2003). Holladay prevailed in that second habeas petition when the district court found that he proved by a preponderance of the evidence that he was mentally retarded. Holladay v. Campbell, 463 F.Supp.2d 1324 (N.D.Ala.2006). Now the State of Alabama appeals this decision of the district court.¹

I. BACKGROUND

Holladay was convicted of capital murder and sentenced to death on July 27 1987.² The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed both his conviction and death sentence on direct appeal. Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988), aff'd, Ex parte Holladay, 549 So.2d 135 (Ala. 1989). The United States Supreme Court denied Holladay's petition for writ of certiorari, Holladay v. Alabama, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989), and his petition for rehearing, Holladay v. Alabama, 493 U.S. 1095, 110 S.Ct. 1173, 107 L.Ed.2d 1075 (1990).

Next, Holladay filed for post-conviction relief under Temporary Rule 20³ of the Alabama Rules of Criminal Procedure on September 10, 1990, and amended his petition on April 24, 1991. An evidentiary hearing was held on April 25-27, 1991, and on December 5, 1991, the Rule 20 court denied the petition, finding some of the claims procedurally barred and determining that the others were meritless. The Alabama Court of Criminal Appeals affirmed the denial and the Alabama Supreme Court denied his petition for writ of certiorari. Holladay v. State, 629 So.2d 673 (Ala.Crim.App.1992), cert. denied, 629 So.2d 673 (Ala.1993). The United States Supreme Court denied his petition for writ of certiorari. Holladay v. Alabama, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).

Holladay filed his initial petition for writ of habeas corpus with the district court in 1995 and it was denied in 1998. We affirmed. However, after the Supreme Court, in its 2002 Atkins decision, announced the new rule that it would be unconstitutional to execute someone who was mentally retarded, we held that the rule had been made retroactive to cases on collateral review by the Supreme Court. Holladay, 331 F.3d at 1172. Thus we granted Holladay permission to file a second habeas corpus petition. On remand, the magistrate judge held an evidentiary hearing; he heard evidence from Holladay's brother, David Holladay; his childhood acquaintance, Helen Bryan; a former death row guard, Raymond Fuqua; and Holladay's ex-wife, Jackie Morgan; the court-appointed mental health expert, Dr. Kimberly Ackerson; and Holladay's mental health expert, Dr. Karen Salekin.

David Holladay was the first to testify and he recounted a childhood of watching his older brother struggle with basic tasks. Glenn Holladay, David testified, could not read, could not work as a painter, could only cook eggs, and mostly kept to himself as a child. Glenn could drive a car but used landmarks to navigate. The few jobs that Glenn held were manual labor positions, and even in those, he could not always perform to the satisfaction of his employers or co-workers.

Next to testify was Helen Bryan, Holladay's former neighbor and childhood acquaintance (who was ten years younger than Holladay). She stated that Holladay was slow and would often play with the younger children rather than his peers. She also testified that she witnessed Holladay running from the police with a big smile on his face, as if it were a game. Later, she testified, he stated to her mother and her that he felt more comfortable in jail than out.

After Helen Bryan, Holladay called Raymond Fuqua, who had guarded Holladay on death row for about ten years. Fuqua testified that Holladay is a friendly but "slow or special needs" inmate, who has a few friends. Holladay had been eager to work as a runner on death row but complaints from other inmates about Holladay's hygiene ended his assignment. Fuqua testified that Holladay once administered an enema to himself and made a large mess when he failed to reach the toilet in time. Fuqua was struck by the fact that Holladay did not seem embarrassed by the situation and that Holladay was unable to clean up the mess, although he was otherwise able to keep his cell clean. Finally, Fuqua testified that Holladay was a diabetic and was able to administer blood sugar tests to himself.

The final non-expert witness called was Holladay's former wife, Jackie Morgan. Morgan testified that Holladay coerced her into marriage through threats to kill her and her family; that he married her merely for a place to stay and her car; that he regularly threatened and beat her; that he could print, cook whatever he wanted, and use the phone; and that Holladay merely stole and did not work during their marriage. She also testified that she believed he had killed another person.

Most of the testimony at the hearing came from the two expert witnesses, Drs. Karen Salekin and Kimberly Ackerson. Dr. Salekin had been hired by Holladay to evaluate him while Dr. Ackerson had been appointed by the magistrate judge.

Dr. Salekin testified extensively about her lengthy interview with Holladay, her discussions with others who knew Holladay, and her review of the record. Dr. Salekin administered several tests to Holladay, including the Stanford-Binet-5 IQ test, which she chose over Wechsler Adult Intelligence Scale ("WAIS") because the Stanford-Binet had been normed (updated) more recently.⁴ She also preferred the Stanford-Binet because of the theoretical basis upon which it is based and her experience as a site coordinator for the Stanford-Binet-5 normalization. The other tests she administered to Holladay were the Mini-Mental Status Exam, which is a general orientation instrument, and the Woodcock-Johnson test, which is a test of academic subject matter. Additionally, she administered the Scales of Independent Behavior Revised to Holladay's two brothers. This test measures the adaptive functioning of the subject — in this case Holladay — by asking those who observe him regularly about his ability to function in the home, school, employment, and community. Dr. Salekin conceded that it was unorthodox to administer the test to the brothers based upon their memory of Glenn before the age of eighteen. In other words, although the test is designed to be administered to persons who know the subject (and not the subject himself), the test is designed to be administered contemporaneously, and not based on memories of the subject's abilities. However, Dr. Salekin explained her decision to use the test this way was because the criteria for mental retardation requires the defendant to be mentally retarded before the age of eighteen. It would be inaccurate to use current observers of Holladay because his environment is so restricted that one could not get a proper breadth of understanding of his abilities.

In her preparation, Dr. Salekin spoke to two of Holladay's brothers, two of his sisters, four correctional officers, a prison psychologist, a prison nurse, Holladay's former attorney, one of Holladay's friends, and a fellow death row inmate. Although she attempted to talk to Holladay's ex-wives, she could not locate one and the other, Jackie Morgan, refused to speak to her. Her interviews with Holladay spanned two full days and several hours on the third.

Based on her evaluation of DHR records, school and other records,⁵ Holladay's test scores, her interviews with those who know Holladay and her interview with Holladay himself, Dr. Salekin determined that Holladay was mentally retarded. She noted that on the IQ test that she administered, Holladay had scored a 58. While allowing that his score would have naturally declined because of his age and incarceration, she testified that it was consistent with his past scores, which averaged below the threshold for mental retardation in Alabama of 70. She also pointed to his lack of adaptive functioning in several areas: employment, health and safety, self-direction, social and interpersonal skills, and education. Her information on these subjects was gleaned from her interviews, the DHR records, and trial and deposition testimony.

By contrast, Dr. Ackerson testified that she did not think that Holladay was mentally retarded. In preparing her report, Dr. Ackerson interviewed three law enforcement officers; Holladay's former wife, Jackie Morgan; and Jackie Morgan's son, Jerry. Dr. Ackerson's impression of Holladay was quite different than Dr. Salekin's: Dr. Ackerson found him to be socially...