Hill v. Humphrey

• Decision Date: 22 November 2011
• Docket Number: No. 08–15444.,08–15444.
• Citation: 662 F.3d 1335,23 Fla. L. Weekly Fed. C 582
• Parties: Warren Lee HILL, Jr., Petitioner–Appellant, v. Carl HUMPHREY, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 582

662 F.3d 1335

Warren Lee HILL, Jr., Petitioner–Appellant,

v.Carl HUMPHREY, Respondent–Appellee.

No. 08–15444.

United States Court of Appeals, Eleventh Circuit.

Nov. 22, 2011.

Mark Evan Olive, Law Offices of Mark E. Olive, P.A., Tallahassee, FL, Brian S. Kammer and Thomas H. Dunn(Court–Appointed), Georgia Resource Ctr., Atlanta, GA, for Petitioner–Appellant.

Patricia Beth Attaway Burton, GA Law Dept., Atlanta, GA, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and BLACK, Circuit Judges.

HULL, Circuit Judge:

In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully alleged that he is mentally retarded and ineligible for the death penalty.Hill, a Georgia death row inmate, was able to raise this claim in 1996, well before the Atkins decision¹ was issued in 2002, because in 1988 the State of Georgia led the nation by abolishing the death penalty for mentally retarded defendants.SeeO.C.G.A. § 17–7–131(1988statute prohibiting death penalty where defendant proves mental retardation beyond reasonable doubt).

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill's trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial.In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia's reasonable doubt standard of proof in O.C.G.A. § 17–7–131 violated the Eighth Amendment.

The national consensus against executing the mentally retarded that gave birth to the Atkins prohibition was a consensus that Georgia started by enacting the very same statute—§ 17–7–131(c)(3), (j)—that petitioner Hill now claims violates Atkins by using a reasonable doubt standard.In Hill's state habeas appeal in 2003, and after Atkins, the Georgia Supreme Court held that the reasonable doubt standard in § 17–7–131 comports with the Eighth and Fourteenth Amendments.Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 621–22(2003)(“ Hill III ”).The Georgia Supreme Court recently reaffirmed its holding in Hill III that Georgia's beyond a reasonable doubt standard for proving mental retardation is constitutional.SeeStripling v. State, 289 Ga. 370, 711 S.E.2d 665, 668(2011)(“We have previously addressed this very issue, and we now reiterate our prior holding that Georgia's beyond a reasonable doubt standard is not unconstitutional.”)(citingHill III, 587 S.E.2d at 620–22).

In this appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in28 U.S.C. § 2254, the sole legal issue before this en banc court is:

Pursuant to AEDPA's § 2254(d)(1), is the Georgia Supreme Court's decision in Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 620–22(2003)—that Georgia's statutory reasonable doubt standard for capital defendants' mental retardation claims does not violate the Eighth Amendment—contrary to clearly established federal law, as announced in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335(2002)?[²]

In § 2254cases, federal courts do not review state courts' decisionsde novo.Rather, Congress restricted federal review to whether the state court's decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” as of the date of the state court decision.28 U.S.C. § 2254(d)(1)(emphasis added).Discussing § 2254(d)(1) specifically, and reversing federal circuit courts for granting habeas relief, the Supreme Court has admonished: “A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of this [Supreme] Court.”Thaler v. Haynes, 559 U.S. ––––, 130 S.Ct. 1171, 1173, 175 L.Ed.2d 1003(2010);seeBerghuis v. Smith, 559 U.S. ––––, 130 S.Ct. 1382, 1392, 1395–96, 176 L.Ed.2d 249(2010).AEDPA established a “highly deferential standard for evaluating state-court rulings.”Renico v. Lett, 559 U.S. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678(2010).

As the Georgia Supreme Court correctly noted, there is no holding in Atkins, or any Supreme Court decision, invalidating a reasonable doubt standard for mental retardation claims.Just the opposite is true.Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded.Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173(2009).And in the 219–year history of our nation's Bill of Rights, no United States Supreme Court decision has ever suggested, much less held, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right.³Because there is no specific, much less “clearly established” by Supreme Court precedent, federal rule regarding the burden of proof for mental retardation claims, AEDPA mandates that this federal court leave the Georgia Supreme Court decision alone—even if we believe it incorrect or unwise—and affirm in this case.SeeHarrington v. Richter, 562 U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624(2011)(“It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.”(brackets and quotation marks omitted));Lett, 130 S.Ct. at 1862(“We have explained that ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ”).

I.BACKGROUND

It is important to the burden of proof issue that the whole story of this case be told.So we start at the beginning.

A.Mental Retardation and the Death Penalty

In 1988, the Georgia General Assembly passed the nation's first statute prohibiting the execution of mentally retarded persons.Specifically, O.C.G.A. § 17–7–131(c)(3) and (j) state:

[A criminal]defendant may be found “guilty but mentally retarded”if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is mentally retarded.If the court or jury should make such finding, it shall so specify in its verdict.

...

In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.

O.C.G.A. § 17–7–131(c)(3), (j)(emphasis added).

One year later, in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256(1989), the United States Supreme Court concluded that the Eighth Amendment did not prohibit the execution of the mentally retarded.⁴The Supreme Court noted that, as of that time, “[o]nly one State ... currently bans execution of retarded persons who have been found guilty of a capital offense.”Id. at 334, 109 S.Ct. at 2955(citing Georgia's O.C.G.A. § 17–7–131(j)).

Then in 2002, the United States Supreme Court overruled Penry in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335(2002), and declared that the Eighth Amendment's “cruel and unusual punishment” provision prohibited the execution of mentally retarded offenders.Id. at 315–21, 122 S.Ct. at 2249–52.

Although the Supreme Court in Atkins recognized a national consensus against executing mentally retarded persons, it said that there was a notable lack of consensus on how to determine which offenders are mentally retarded:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded ....Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.

Atkins,536 U.S. at 317, 122 S.Ct. at 2250.The Supreme Court added that although the states' “statutory definitions of mental retardation are not identical, [they] generally conform to the clinical definitions” established by the American Association on Mental Retardation(“AAMR,” now known as the American Association on Intellectual and Developmental Disabilities) and the American Psychiatric Association(“APA”).Atkins,536 U.S. at 317 n. 22, 122 S.Ct. at 2250 n. 22.The AAMR's and APA's definitions of mental retardation contain three basic requirements: (1) significantly subaverage general intellectual functioning, as reflected by an IQ generally about 70 or below; (2) limitations in adaptive functioning; and (3) onset before age 18.Id. at 308 n. 3, 122 S.Ct. at 2245 n. 3.

In Atkins, the Supreme Court was careful not to fix the burden of proof or to impose rigid definitions of mental retardation.Instead, the Court left it to the states to develop “appropriate” procedures for mental retardation determinations:

As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335(1986), with regard to insanity, we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.

Id.(quotation marks and brackets omitted).As the Georgia Supreme Court noted in Hill III, the Supreme Court in Atkins“made clear that it was entrusting the states with the power to develop the procedures necessary to enforce the newly recognized federal constitutional ban.”Hill III, 587 S.E.2d at 620(citingAtkins,536 U.S. at 317, 122 S.Ct. at 2250).

Later, in Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 173 L.Ed.2d 1173(2009), the Supreme Court pointed out that Atkins“did not provide definitive...