Winston v. Pearson

• Decision Date: 25 June 2012
• Docket Number: Nos. 11–4,11–5.,s. 11–4
• Citation: 683 F.3d 489
• Parties: Leon J. WINSTON, Petitioner–Appellee, v. Eddie L. PEARSON, Warden, Sussex I State Prison, Respondent–Appellant. Leon J. Winston, Petitioner–Appellant, v. Eddie L. Pearson, Warden, Sussex I State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

683 F.3d 489

Leon J. WINSTON, Petitioner–Appellee,

v.Eddie L. PEARSON, Warden, Sussex I State Prison, Respondent–Appellant.

Leon J. Winston, Petitioner–Appellant,

v.Eddie L. Pearson, Warden, Sussex I State Prison, Respondent–Appellee.

Nos. 11–4, 11–5.

United States Court of Appeals, Fourth Circuit.

Argued: May 15, 2012.

Decided: June 25, 2012.

ARGUED: Katherine Baldwin Burnett, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant/Cross–Appellee. Jennifer Leigh Givens, Federal Community Defender Office, Philadelphia, Pennsylvania, for Appellee/Cross–Appellant. ON BRIEF:Kenneth T. Cuccinelli, II, Attorney General of Virginia, Richmond, Virginia, for Appellant/Cross–Appellee. Leigh M. Skipper, Chief Federal Defender, James Moreno, Aren Adjoian, Federal Community Defender Office, Philadelphia, Pennsylvania, for Appellee/Cross–Appellant.

Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge GREGORY and Judge DUNCAN joined.

OPINION

DIAZ, Circuit Judge:

A Virginia jury convicted Leon Winston of capital murder. The court, following the jury's recommendation, sentenced Winston to death. Winston's direct appeals failed and his conviction became final, at which point he sought habeas relief in state court. The Supreme Court of Virginia denied relief, rejecting Winston's requests for discovery and an evidentiary hearing.

Winston then filed a habeas petition in federal court. The district court granted him an evidentiary hearing to explore whether his trial attorneys were ineffective for failing to raise the claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that his mental retardation categorically barred imposition of a death sentence. But the court, after presiding over the hearing, reversed course and held that it was precluded from considering any evidence adduced during the federal proceeding. Looking only to facts presented in the state habeas proceeding and conducting a deferential review of the state-court decision, the court denied Winston's petition for habeas relief. Winston v. Kelly, 600 F.Supp.2d 717, 722–23 (W.D.Va.2009).

We vacated in part the district court's decision on appeal, ordering it to conduct a de novo review of Winston's ineffectiveness claim while entertaining the evidence offered during the federal hearing. Winston v. Kelly (Winston I), 592 F.3d 535, 553 (4th Cir.2010). On remand, the district court granted Winston's petition for habeas relief and vacated his death sentence. Winston v. Kelly, 784 F.Supp.2d 623, 626 (W.D.Va.2011). Virginia timely filed this appeal.

The Commonwealth contends principally that intervening Supreme Court precedent has eroded the foundation of our prior opinion in Winston I, compelling us to forgo de novo review and instead accord substantial deference to the Supreme Court of Virginia's decision denying habeas relief. Under the appropriate standard, maintains the Commonwealth, Winston's habeas petition lacks merit.

We disagree and find nothing in recent Supreme Court decisions that calls into question our reasoning in Winston I, which, as law of the case, we may not lightly disturb. Reviewing Winston's ineffectiveness claim de novo, we agree with the district court that Winston has established that his trial attorneys rendered deficient performance that prejudiced him. We therefore affirm the district court's grant of habeas relief.¹

I.

A.

On the morning of April 19, 2002, two men broke into Rhonda and Anthony Robinson's home and killed them. Police later arrested Winston, and the Commonwealth charged him with capital murder and several lesser crimes. Winston proceeded to trial, at which a jury found him guilty of capital murder and related crimes.

During the sentencing phase of the trial, Winston's attorneys presented records of his psychological evaluations and testimony about his family history. The attorneys used the records and testimony as ordinary mitigating evidence to illuminate Winston's troubled childhood and subaverage intellectual functioning, but not to establish mental retardation. At the conclusion of the sentencing proceeding, the jury recommended a sentence of death for each of the murders. Agreeing with the jury's recommendation, the court sentenced Winston to death. The Supreme Court of Virginia affirmed the convictions, and the U.S. Supreme Court denied Winston's petition for certiorari.

B.

Winston filed a habeas petition in the Supreme Court of Virginia, raising dozens of claims. Refusing—without explanation—Winston's requests for an evidentiary hearing and discovery, the Supreme Court of Virginia denied all relief.

Germane to this appeal, the court rejected Winston's Atkins and Atkins-related claims. Winston maintained that Atkins barred his execution because he met Virginia's statutory definition of mental retardation. In support of this contention, Winstonoffered a Fairfax County Public Schools special-education eligibility reclassification form (“Reclassification”), which indicated that school officials had reclassified him as mentally retarded. He was unable to proffer any IQ scores or other data on which counselors relied to make this determination. Winston also submitted the scores of three IQ tests, all of which exceeded 70, the maximum score that Virginia accepts as evidence of mental retardation.

The Supreme Court of Virginia first held that Winston's Atkins claim, raised for the first time in the habeas petition, was barred for failure to exhaust. It then considered whether the failure of Winston's trial attorneys to present evidence of his mental retardation amounted to ineffectiveness of counsel, such that it would excuse the procedural default. The court answered this query in the negative, concluding that Winston had “failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different.” J.A. 306. It found no evidence that Winston had been “diagnosed as being mentally retarded before the age of 18 in accordance with the legal definition of mental retardation established by the legislature.” Id. 305–06, 122 S.Ct. 2242. None of the three IQ scores presented to the court were 70 or below, which precluded Winston from meeting the state's criteria for mental-retardation classification. Although Winston presented the Reclassification, the court noted that students may be classified as mentally retarded for educational purposes even if they have an IQ above 70.

C.

1.

Winston next filed a habeas petition in the U.S. District Court for the Western District of Virginia, pursuant to 28 U.S.C. § 2254. Winston's petition raised in excess of thirty claims. In an initial decision, the court rejected all of the claims save for his Atkins and Atkins-related claims. As to those, the court “conclude[d] that an evidentiary hearing [was] appropriate to determine whether counsel rendered ineffective assistance at sentencing both as a free-standing claim and as cause and prejudice to excuse procedural default of Winston's Atkins claim.” J.A. 611. Winston's diligence in pursuing the claims, combined with the real possibility that he could prevail even under the deferential standards of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), confirmed the propriety of ordering an evidentiary hearing, reasoned the court.

Winston used the evidentiary hearing to sharpen his ineffective-assistance-of-counsel claim. Most crucial, the hearing enabled Winston to produce for the first time a 1997 IQ test, taken when he was sixteen years old, reflecting a score of 66. Because Virginia law mandates that an individual prove an IQ of 70 or below to support his classification as mentally retarded, presentation of the 1997 test was vital to Winston's Atkins ineffectiveness claim.

The attorneys who represented Winston at trial, Glenn Berger and B. Leigh Drewry, Jr., testified at the evidentiary hearing. Although they obtained Winston's educational records from Fairfax County Public Schools, neither Berger nor Drewry read the complete records. Instead, they sent them to Dr. Evan Nelson, Winston's court-appointed mental-health expert. The attorneys testified that they had no strategic reason for neglecting to review the records prior to forwarding them to Nelson. Included in the records that counsel failed to review was the Reclassification, which reflected school officials' determinationthat Winston was mentally retarded. As Drewry, who led preparation for the penalty phase of the trial, testified, review of the Reclassification would have prompted him to investigate Winston's mental retardation.

Not only did counsel not review Winston's school records, they failed to interview any of Winston's teachers or counselors at the school. At the evidentiary hearing, several school officials recounted their experiences with Winston, which convinced them of his severe limitations in cognitive functioning. These officials would have testified during Winston's sentencing hearing, but his attorneys never sought them out. Marilynn Lageman, one such official, would have provided evidence of Winston's 66 IQ score had she been contacted by Winston's attorneys. Although the result of that test was not included in the school records obtained by counsel, Lageman testified that the score was saved on a computer disk in her office at the time of the trial. Because she was a school psychologist who was actively involved with Winston's education, Lageman's name appeared on some of the records obtained by counsel. Drewry testified that he would have interviewed Lageman if he had seen the records listing her name.

Nelson, Winston's court-appointed mental-health expert, testified about his evaluation of Winston's case. Based on the information at his disposal, Nelson concluded at the time of trial that Winston likely did...