Hill v. Shoop

• Citation: 11 F.4th 373
• Decision Date: 20 August 2021
• Docket Number: Nos. 99-4317,14-3718,s. 99-4317
• Parties: Danny HILL, Petitioner-Appellant, v. Timothy SHOOP, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

11 F.4th 373

Danny HILL, Petitioner-Appellant,

v.Timothy SHOOP, Warden, Respondent-Appellee.

Nos. 99-4317

14-3718

United States Court of Appeals, Sixth Circuit.

Argued En Banc: December 2, 2020

Decided and Filed: August 20, 2021

ARGUED EN BANC: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF: Vicki Ruth Adams Werneke, Lori B. Riga, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Benjamin M. Flowers, Stephen E. Maher, Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, Kevin J. Truitt, DISABILITY RIGHTS OHIO, Columbus, Ohio, for Amici Curiae.

Before: SUTTON, Chief Circuit Judge; MERRITT, MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, and READLER, Circuit Judges.^*

GIBBONS, J., delivered the opinion of the court in which SUTTON, C.J., and GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, and READLER, JJ., joined. MOORE, J. (pp. 399–424), delivered a separate dissenting opinion, in which MERRITT, COLE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined. An excerpt of the panel's 2018 opinion, see 881 F.3d 483 (6th Cir. 2018), is appended, (app. 424–37).

JULIA SMITH GIBBONS, Circuit Judge.

In this death penalty habeas case, appellant Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelve-year-old boy. The case has been to the Supreme Court once and before panels of this court twice. The core issue in the underlying state case was whether Hill was ineligible for the death penalty because he is intellectually disabled, a question that became pertinent after the Supreme Court's 2002 decision in Atkins v. Virginia . 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Before us, the issues are whether, under governing AEDPA review principles, the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). We conclude that the state court's resolution of the issue does not meet either of the criteria that would permit a federal court to disturb a state conviction. Thus, we affirm the district court's denial of Hill's petition for a writ of habeas corpus.

I.

In 1986, a three-judge Ohio state court panel convicted Hill of the murder of Raymond Fife, a twelve-year-old boy. State v. Hill , 177 Ohio App.3d 171, 894 N.E.2d 108, 111 (2008). Hill abused and injured Fife in multiple horrible ways. Id. Fife was found by his father and died two days later. Id. The same panel sentenced Hill to death. Id. During the mitigation stage of Hill's sentencing, the court heard testimony from three medical professionals about whether Hill was intellectually disabled.¹ One found that Hill's intelligence level "fluctuat[ed] between mild retarded and borderline intellectual functioning," another that Hill fell "in the mild range of mental retardation," and the last that Hill's "upper level cortical functioning indicated very poor efficiency." Id. at 112 (quoting State v. Hill , 64 Ohio St.3d 313, 595 N.E.2d 884, 901 (1992) ). After considering this evidence, the Ohio state court found that the record evidence suggested that Hill had a "diminished mental capacity" and that testimony suggested he would be "categorized as mildly to moderately retarded." Id. (quoting State v. Hill , Nos. 3720, 3745, 1989 WL 142761, at *32 (Ohio Ct. App. Nov. 27, 1989) ). The Ohio Court of Appeals and Ohio Supreme Court both affirmed the trial court's imposition of the death penalty because they found that the aggravating circumstances outweighed any mitigating factors, including Hill's diminished intellectual capacity. Id.

In 2002, the Supreme Court decided Atkins v. Virginia , which held that it was unconstitutional to execute the intellectually disabled. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Atkins Court provided some discussion of the clinical definitions of intellectual disability, but it left it to the states to "develop[ ] appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Id. at 317, 122 S.Ct. 2242 (second alteration in original) (quoting Ford v. Wainwright , 477 U.S. 399, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) ). In State v. Lott , the Ohio Supreme Court articulated a three-part test for establishing intellectual disability based on Atkins : "(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18." 97 Ohio St.3d 303, 779 N.E.2d 1011, 1014 (2002), overruled by State v. Ford , 158 Ohio St.3d 139, 140 N.E.3d 616 (2019).

In response to Atkins , Hill filed a petition for state post-conviction relief in 2003. State v. Hill , 894 N.E.2d at 113. The trial court held an evidentiary hearing, and Hill, the prosecution, and the court each chose a medical expert to evaluate Hill's intellectual capabilities. Id. Hill retained Dr. David Hammer, a professor and director of psychology services at the Ohio State University; the prosecution hired Dr. Gregory Olley, a professor and director of the Center for the Study of Development and Learning at the University of North Carolina at Chapel Hill; and the court appointed Dr. Nancy Huntsman, a forensic psychologist who worked at the Court Psychiatric Clinic in Cleveland, Ohio. Id. The Ohio Court of Appeals, in reviewing Hill's Atkins claim, described the trial court proceedings as follows:

In April 2004, Drs. Olley, Hammer, and Huntsman evaluated Hill at the Mansfield Correctional Institution for the purposes of preparing for the Atkins hearing. At this time, Hill was administered the Wechsler Adult Intelligence Scale ("WAIS–III") IQ test, the Test of Mental Malingering, the Street Survival Skills Questionnaire, and the Woodcock–Johnson–III. The doctors concurred that Hill was either "faking bad" and/or malingering in the performance of these tests. As a result, the full scale IQ score of 58 obtained on this occasion was deemed unreliable, and no psychometric assessment of Hill's current adaptive functioning was possible. Thus, the doctors were forced to rely on collateral sources in reaching their conclusions, such as Hill's school records containing evaluations of his intellectual functioning, evaluations performed at the time of Hill's sentencing and while Hill was on death row, institutional records from the Southern Ohio Correctional Institution and the Mansfield Correctional Institution, interviews with Hill, corrections officers, and case workers, and prior court records and testimony.

The evidentiary hearing on Hill's Atkins petition was held on October 4 through 8 and 26 through 29, 2004, and on March 23 through 24, 2005. Doctors Olley and Huntsman testified that in their opinion, Hill is not mentally retarded. Doctor Hammer concluded that Hill qualifies for a diagnosis of mild mental retardation.

Id. at 113–14.

The trial court held that Hill was not intellectually disabled and rejected his Atkins claim. Id. at 114. The Ohio Court of Appeals affirmed, finding that Hill failed to prove he suffered from two or more significant limitations in adaptive skills that manifested before age 18. Id. at 126–27. The Ohio Supreme Court, with two justices dissenting, declined to hear Hill's appeal. State v. Hill , 122 Ohio St.3d 1502, 912 N.E.2d 107 (2009) (Table).

Hill then filed a petition for a writ of habeas corpus, which the district court denied. The district court concluded that Hill had not overcome the highly deferential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").² Hill v. Anderson , No. 4:96 CV 00795, 2014 WL 2890416, at *51 (N.D. Ohio June 25, 2014). The district court explained that while reasonable minds may disagree with the state court's determination and weighing of the evidence, the state court's "conclusion regarding Hill's adaptive behavior at the time he filed his Atkins claim was supported by sufficient credible evidence and, most importantly, the opinions of two experts." Id.

Hill appealed, and a panel of judges on this court reversed the district court's decision on Hill's Atkins claim. The panel found that "the state court judgment ... amounted to an unreasonable application of the standard articulated by the Supreme Court in Atkins and as later explained by Hall and Moore ."³

Hill v. Anderson , 881 F.3d 483, 489 (6th Cir. 2018). In addition to his Atkins claim, Hill raised four other issues on appeal: an ineffective assistance of counsel claim related to his Atkins hearing, a Miranda claim, a claim of prosecutorial misconduct, and a due process claim based on the trial court's alleged failure to hold a pretrial competency hearing. Id. at 487. The panel pretermitted Hill's ineffective assistance of counsel claim and affirmed the district court's denial of the other three claims, which Hill has not challenged. Id. The Warden filed a petition for rehearing en banc , which was denied. He then filed a petition for a writ of certiorari, which the Supreme Court granted.

The Supreme Court vacated and remanded, finding that the panel's "reliance on Moore was plainly improper under § 2254(d)(1)." Shoop v. Hill , ––– U.S. ––––, 139 S. Ct. 504, 505, 202 L.Ed.2d 461 (2019) (per curiam). The Court explained that "habeas relief may be granted only if the state court's adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of,’ Supreme Court precedent that was ‘clearly established’...