Hill v. Anderson, s. 99-4317/14-3718

• Decision Date: 02 February 2018
• Docket Number: Nos. 99-4317/14-3718,s. 99-4317/14-3718
• Citation: 881 F.3d 483
• Parties: Danny HILL, Petitioner-Appellant, v. Carl ANDERSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

881 F.3d 483

Danny HILL, Petitioner-Appellant,

v.Carl ANDERSON, Warden, Respondent-Appellee.

Nos. 99-4317/14-3718

United States Court of Appeals, Sixth Circuit.

Argued: November 30, 2016

Decided and Filed: February 2, 2018

Rehearing En Banc Denied April 9, 2018^*

ARGUED: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Peter T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Vicki Ruth Adams Werneke, Lori B. Riga, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Peter T. Reed, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: MERRITT, MOORE, and CLAY, Circuit Judges.

MERRITT, Circuit Judge.

In this death penalty case out of Ohio, Danny Hill asserts in his habeas petition that he may not be executed because he is "intellectually disabled," as now defined in three Supreme Court cases decided in the past fifteen years.¹ Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), was decided and made retroactive after Hill was convicted of murder and sentenced to death, so although Hill raised his intellectual disability as a mitigating factor in the penalty phase of his trial, he was not afforded the constitutional protections set forth in Atkins during his original trial. Our court issued a remand order in 2002 directing the State of Ohio to assess Hill’s intellectual functioning in light of Atkins . Hill v. Anderson , 300 F.3d 679 (6th Cir. 2002). The issue now before us is whether that assessment comports with Atkins and the Supreme Court’s later opinions on the subject. We conclude that the courts in Ohio have unreasonably applied the Supreme Court’s three-part standard in this case.

In its three cases on the subject of executing the intellectually disabled, the Supreme Court relies on two diagnostic manuals of the psychiatric profession to determine whether a defendant has an "intellectual disability"—Intellectual Disability: Definition, Classification, and Systems of Supports , the diagnostic manual published by the American Association on Intellectual and Developmental Disabilities, and the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.² Both manuals require three separate findings before a diagnosis of intellectual disability is appropriate: (1) the individual exhibits significant deficits in intellectual functioning—indicated by an IQ score "approximately two standard deviations or more below the mean," or roughly 70; (2) the individual exhibits significant adaptive skill deficits—such as "the inability to learn basic skills and adjust behavior to changing circumstances"—in certain specified skill sets; and (3) the deficits arose while the individual was still a minor. See Moore v. Texas , ––– U.S. ––––, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017) ; Hall v. Florida , ––– U.S. ––––, 134 S.Ct. 1986, 1994-95, 188 L.Ed.2d 1007 (2014) ; Atkins , 536 U.S. at 308 n.3, 122 S.Ct. 2242.

The Ohio courts and the parties agree that Hill’s IQ is so low (ranging from a low of 48 to a high of 71) that he easily meets the first element of the clinical definition of intellectual disability. They disagree, however, on the propriety of the state courts' holdings that Hill did not exhibit sufficient adaptive deficits under the second element and that Hill’s deficits did not manifest themselves before Hill reached the age of 18. Therefore, we must resolve the dispute between the parties as to these two elements.

On the question of "adaptive deficits," we conclude that the Ohio courts have made the same basic mistake as the Texas courts in the recent case of Moore v. Texas , in which the Supreme Court reversed the death penalty because the Texas court incorrectly ruled that the prisoner’s "adaptive strengths ... constituted evidence adequate to overcome the considerable objective evidence of Moore’s adaptive deficits." 137 S.Ct. at 1050. The Supreme Court rejected that view, noting that "the medical community focuses the adaptive-functioning inquiry on adaptive deficits ." Id. (emphasis in original) (citing AAIDD-11, at 47 (2010); DSM-5, at 33, 38 (2013) ).³

That view is consistent with the Court’s previous observation that "intellectually disabled persons may have ‘strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.’ " Brumfield v. Cain , ––– U.S. ––––, 135 S.Ct. 2269, 2281, 192 L.Ed.2d 356 (2015) (quoting AAMR-10, at 8 (2002) ). The case supporting a finding that Hill is intellectually disabled is even stronger than in Moore . Whereas Moore’s intellectual functioning based on IQ was debatable, Hill’s IQ is so low that the Warden concedes that Hill satisfies the first element of the definition.

We recognize that Moore was decided after the Ohio Court of Appeals rejected Hill’s Atkins claim in 2008. See State v. Hill, 177 Ohio App.3d 171, 894 N.E.2d 108, 127 (2008). Ordinarily, Supreme Court decisions that post-date a state court’s determination cannot be "clearly established law" for the purposes of AEDPA. Peak v. Webb , 673 F.3d 465, 472 (6th Cir. 2012) (Under AEDPA, the "law in question must have been clearly established at the time the state-court decision became final, not after."). However, as discussed in more detail below, we find that Moore’s holding regarding adaptive strengths is merely an application of what was clearly established by Atkins .

In light of the Ohio Court of Appeals' unreasonable determinations under both the adaptive-skills and age-of-onset prongs of the Atkins standard, we REVERSE the judgment of the district court and REMAND the case with instructions to grant the petition and to issue the writ of habeas corpus with respect to Hill’s death sentence.

In addition to his Atkins claim, Hill raises an ineffective assistance of counsel claim that attacks his trial counsel’s performance during his state Atkins hearing, a Miranda claim arguing that certain statements should have been suppressed during his trial, a prosecutorial misconduct claim, and a due process claim arguing that Hill was not competent to stand trial at the time of his convictions. For the reasons set forth below, we AFFIRM the district court’s judgment denying Hill’s habeas petition with regard to the latter three claims, and pretermit the ineffective assistance of counsel claim regarding Atkins because we are granting relief on the merits of the Atkins claim.

I. Background

The facts and legal proceedings surrounding Hill’s conviction and death sentence in 1986 are set out in our earlier opinion. See Hill , 300 F.3d at 681. Because this case centers on the issue of intellectual disability, what follows is an account of the facts and proceedings relevant to that question in this case.

Several evaluations conducted around the time of Hill’s trial in 1986 reveal that Hill "has a diminished mental capacity," a fact acknowledged by the state court after Hill’s Atkins hearing. See Hill, 894 N.E.2d at 112 (summarizing the testimonies of the three experts who testified during the mitigation phase of the initial trial that Hill was "mentally retarded"). Hill’s IQ at the time of trial ranged from 55 to 68, and his moral development was "primitive"—essentially that of a two-year old. Id .

Hill has also demonstrated an "inability to learn basic skills and adjust [his] behavior to changing circumstances" since a very young age. Hall , 134 S.Ct. at 1994. Since his earliest days in school, Hill has struggled with academics. At the age of six, a school psychologist noted that Hill was "a slow learning child" and recommended that his teachers "make his work as concrete as possible" without "talking about abstract ideas." Warren Cty. School Psychologist’s Report, dated Mar. 20, 1973. After kindergarten, Hill was placed into special education classes for the remainder of his time in the public school system. Hill struggled to keep up academically even in his special education classes and had difficulty remembering even the simplest of instructions. At the age of 15, Hill could barely read or write. Those problems persist today. Indeed, prison records and testimony of prison guards indicate that the prison staff believed Hill to be illiterate, that he could not remember the balance on his commissary account and would often spend more money than was in his account, and that he could not perform even the most basic cleaning tasks without close supervision.⁴ See Supp. Atkins App’x at 1325, 1483-86, 1510-12, 1553, 1784.⁵

Hill has also been unable to take care of his hygiene independently from a young age. Hill’s school psychologist recalled that, even as a kindergartener, Hill "had a problem with body odor and did not wear clean clothes to school." Decl. of Karen Weiselberg-Ross, Warren Cty. School Psychologist ¶¶ 4, 12. During his time in a home for children with behavioral issues, Hill could not remember to comb his hair, brush his teeth, or take a shower without daily reminders. Mitigation Hr'g Tr. at 88, No. 85-cr-317 (Ohio Ct. of Common Pleas Feb. 26, 2986).⁶ Even in the highly structured environment of death row, Hill would not shower without reminders.

The Supreme Court decided Atkins in 2002 while Hill’s appeal from the district court’s denial of his habeas petition was pending before this court. We remanded the case to the district court with instructions to remand Hill’s unexhausted Atkins claim to the state court and to stay the remaining claims pending resolution of the Atkins claim. Hill , 300 F.3d at 683. After the case was returned to the state court, three experts—Drs. David Hammer, J. Gregory Olley, and Nancy Huntsman—examined Hill and testified over the course of several evidentiary hearings on Hill’s Atkins claim.⁷ Dr. Hammer was retained by Hill, Dr. Olley acted as the state’s expert, and Dr. Huntsman was...