Davis v. Kelley

• Decision Date: 17 April 2017
• Docket Number: No: 04-2192,: 04-2192
• Citation: 854 F.3d 967
• Parties: Don William DAVIS, Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

854 F.3d 967

Don William DAVIS, Appellant

v.Wendy KELLEY, Director, Arkansas Department of Correction, Appellee

No: 04-2192

United States Court of Appeals, Eighth Circuit.

April 17, 2017

ORDER

PER CURIAM.

Don Williams Davis was convicted of capital murder in Arkansas and sentenced to death. His conviction and sentence were affirmed on direct appeal, and his petition for postconviction relief in state court was denied. On April 1, 2002, he then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. While that petition was pending, the Supreme Court of the United States decided Atkins v. Virginia , 536 U.S. 304 , 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that executing the intellectually disabled¹ is "cruel and unusual punishment" prohibited by the Eighth Amendment to the United States Constitution. Despite the existence of Atkins during the pendency of his petition in the district court, Davis failed to raise an Atkins claim before the district court. On January 28, 2004, the district court denied his petition.

On appeal, Davis moved this court to remand to the district court for further proceedings, arguing that there was significant evidence of his intellectual disability to render his death sentence unconstitutional in light of Atkins . Davis v. Norris , 423 F.3d 868, 878 (8th Cir. 2005). Viewing Davis's motion to remand as "the functional equivalent of a second or successive petition for habeas corpus because he s[ought] to amend his original petition and obtain an evidentiary hearing on the Atkins issue," we explained that Davis must satisfy the requirements of 28 U.S.C. § 2244(b)(2)(A) . Id . at 878–79. That is, Davis had to "show[ ] 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." Id . at 879 (quoting 28 U.S.C. § 2244(b)(2)(A) ) . While we acknowledged that Atkins 's prohibition on executing the intellectually disabled is retroactive to cases on collateral review, we concluded that Davis failed to satisfy § 2244(b)(2)(A) because "the Atkins rule was not previously unavailable to Davis." Id . The Atkins rule was available because Davis "could have raised this issue while he was litigating his habeas petition in the district court." Id . Not only was Atkins orally argued prior to Davis filing his petition, but the Supreme Court issued its opinion in Atkins "[w]hile Davis was litigating [his] petition and well before his scheduled evidentiary hearing." Id . We held that "[a]lthough the issue was available to Davis, he did not attempt to present an Atkins claim to the district court and instead waited until after filing this appeal to seek permission to raise it." Id . We issued our opinion on September 14, 2005, and the mandate issued on November 21, 2005.

On February 27, 2017, Governor of Arkansas Asa Hutchinson scheduled Davis's execution for April 17, 2017. Then, on April 12, 2017, Davis filed the instant motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. The motions argue that the available evidence supports the conclusion that Davis is likely intellectually disabled, yet no court has ever considered the merits of his claim. According to Davis, if his Atkins claim had been properly raised, he would have been entitled to an evidentiary hearing in federal district court. Davis contends that he is entitled to an evidentiary hearing pursuant to Atkins . Davis would use such a hearing to demonstrate that his upcoming execution would violate the Eighth Amendment's bar against executing the intellectually disabled. Davis further argues that because he has presented a prima facie case of intellectual disability, he is entitled to a stay of execution so that the district court can consider the merits of his Atkins claim. For the reasons discussed infra , we deny Davis's motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. We grant Davis's motion to file an overlength brief.

I. Discussion

"The standard for recalling a mandate in habeas corpus litigation is a strict one." Thompson v. Nixon , 272 F.3d 1098, 1099 –1100 (8th Cir. 2001). We exercise our "power to recall a mandate ... only in ‘extraordinary circumstances.’ " Id . at 1100 (quoting Calderon v. Thompson , 523 U.S. 538, 550 , 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) ). "The Court stated in Calderon that ‘[t]he sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’ " Id . (alteration in original) (quoting Calderon , 523 U.S. at 550 , 118 S.Ct. 1489 ).

A. Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

We also measure a motion to recall a mandate in habeas corpus litigation against statutory limitations. Id . at 1100. "A motion to recall a mandate is analyzed as a successive petition under the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA)." Id . This means that "for our mandate to be recalled, the standard for successive petitions must be met." Id .

Section 2244(b) of 28 U.S.C. provides, in relevant part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) 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—

(A) 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 ....

(Emphases added.)

In summary, "AEDPA imposes three requirements on second or successive habeas petitions." Ward v. Norris , 577 F.3d 925, 932 (8th Cir. 2009).

First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence . § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions. § 2244(b)(3).

Id . (emphasis added) (quoting Gonzalez v. Crosby , 545 U.S. 524, 529 –30, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ).

Our prior panel unanimously held that Davis's Atkins claim was not "previously unavailable" to him when he litigated his habeas petition in district court; thus, Davis's Atkins claim was dismissed under § 2244(b)(2). Davis has offered no legal argument as to why the prior panel's holding was incorrect; therefore, it controls.

Nor do we find that the more recent Supreme Court cases cited by Davis have any bearing on his Atkins claim because they discuss purely procedural issues unrelated to Davis. See Goodwin v. Steele , 814 F.3d 901, 904 (8th Cir. 2014) (per curiam). Hall concerned the state's use of a strict IQ test score cutoff of 70 before allowing further evidence of intellectual disability to be considered. 134 S.Ct. at 1990 . Davis does not allege that Arkansas applied an IQ test score cutoff to him. The recently decided Moore v. Texas concerned the state court's use of out-of-date medical guides, rather than contemporary guides reflecting the medical community's consensus, to determine whether the defendant was intellectually disabled. ––– U.S. ––––, 137 S.Ct. 1039, 1044 , 197 L.Ed.2d 416 (2017). But Davis does not allege that Arkansas uses out-of-date medical guides or otherwise fails to follow contemporary medical standards. Davis, in fact, fails to cite any case supporting his view that the procedural default rules of AEDPA must cede to his Atkins claim.

Accordingly, Davis has failed to satisfy the requirements for a successive habeas petition under § 2244(b)(2).

B. Miscarriage of Justice

Davis also argues that a successive petition is necessary to avoid a miscarriage of justice because "issues of whether an individual with a substantial but unadjudicated Atkins claim can be executed and whether a potentially meritorious Atkins claim may be forever procedurally defaulted certainly warrant fuller exploration."

"In a series of cases ..., [the Supreme Court] ha[s] held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence ." Herrera v. Collins , 506 U.S. 390, 404 , 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (emphasis added). This rule is called the "fundamental miscarriage of justice exception." Id . Here, Davis has not asserted an actual-innocence claim; that is, he is not arguing "that it is more likely than not that no reasonable juror would have convicted him in the light of ... new evidence." Schlup v. Delo , 513 U.S. 298, 327 , 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Therefore, the miscarriage-of-justice exception is inapplicable.

C. Ripeness

Finally, Davis argues that while he "raised a claim challenging his sentence of death under Atkins in previous proceedings, see Davis , 423 F.3d at 878 –79, he now, for the first time, raises a claim that Atkins prohibits his actual execution." According to Davis, his "claim that the Eighth Amendment forbids the execution of an intellectually disabled person was not ripe until his warrant was issued."

We reject this argument. The two cases that Davis relies on—Ford v. Wainwright , 477 U.S. 399 , 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Stewart v. Martinez–Villareal , 523 U.S. 637 , 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) —involved the issue of competency , not intellectual disability. In Ford , the Supreme Court held that "the Eighth...