In re Bowling

• Decision Date: 07 September 2005
• Docket Number: No. 04-6378.,No. 04-6194.,04-6194.,04-6378.
• Citation: 422 F.3d 434
• Parties: In re: Thomas Clyde BOWLING, Jr., Movant (04-6194). Thomas Clyde Bowling, Jr., Petitioner-Appellant (04-6378), v. Glenn Haeberline, Warden, Kentucky State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 434

422 F.3d 434

In re: Thomas Clyde BOWLING, Jr., Movant (04-6194).

Thomas Clyde Bowling, Jr., Petitioner-Appellant (04-6378), v. Glenn Haeberline, Warden, Kentucky State Penitentiary, Respondent-Appellee.

No. 04-6194.

No. 04-6378.

United States Court of Appeals, Sixth Circuit.

Filed September 7, 2005.

Susan J. Balliet, David M. Barron, Kentucky Department of Public Advocacy, Division of Protection and Advocacy, Frankfort, KY, for Movant.

Before: MOORE, GILMAN, and GIBBONS, Circuit Judges.

GIBBONS, Circuit Judge.

Thomas Clyde Bowling, Jr., a Kentucky death row inmate represented by counsel, applied for leave to file a second or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2244. He asserts that he is mentally retarded and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Bowling also appeals from a federal district court order denying his motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). He seeks a certificate of appealability, arguing that his ineffective-assistance-of-counsel claim and his Brady claim should be reopened. We construe his request for a certificate of appealability as an application for leave to file a second or successive petition for a writ of habeas corpus. For the following reasons, we deny both of Bowling's applications to file a second or successive habeas petition.

I.

In December 1990, a Kentucky state jury tried and convicted Bowling of two counts of murder in the deaths of James and Tina Early. The trial court sentenced him to death. The Supreme Court of Kentucky affirmed the convictions and sentence on direct appeal. Bowling v. Commonwealth, 873 S.W.2d 175 (Ky.1993). In October 1996, the trial court denied Bowling's petition for post-conviction relief under Ky. R.Crim. P. 11.42. The Supreme Court of Kentucky affirmed the trial court's decision on appeal. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998).

In August 1999, Bowling filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. Without ordering an evidentiary hearing, the district court denied the petition, and this court affirmed the district court's opinion. Bowling v. Parker, 138 F.Supp.2d 821 (E.D.Ky.2001), aff'd, 344 F.3d 487 (6th Cir.2003), cert. denied, ___ U.S. ___, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004).

Bowling subsequently filed an action in Fayette Circuit Court against Warden Glenn Haeberline, claiming that he is exempt from the death penalty because he is mentally retarded. Bowling v. Commonwealth, 163 S.W.3d 361, 364 (Ky.2005). The circuit court summarily dismissed his petition, concluding that Bowling could not collaterally attack his death sentence through a civil action and that he had not timely asserted his mental retardation claim. Id. at 365. Bowling appealed to the Kentucky Supreme Court. The Kentucky Supreme Court held that Bowling procedurally defaulted his claim that he is mentally retarded because he could have asserted such a claim at trial given that Kentucky had in place at that time a statute prohibiting the execution of the mentally retarded. Id. at 371-72. It further determined that Bowling could not make a prima facie showing that he is mentally retarded because his I.Q. scores were higher than what Kentucky law considers to be "significantly subaverage intellectual functioning." Id. at 384.

While the Kentucky state court action was ongoing, Bowling filed an application for leave to file a second or successive petition for a writ of habeas corpus with this court. In his application, he asserts that he is actually innocent of the death penalty because he is mentally retarded. He also filed a Rule 60(b) motion to reopen his first habeas corpus proceeding in the United States District Court for the Eastern District of Kentucky. The district court denied the motion, and Bowling filed a request for a certificate of appealability with this court.

II.

An application for permission from this court to file a second or successive habeas petition must not involve a claim that has been raised in a previous habeas petition. 28 U.S.C. § 2244(b)(1). A new claim will not be allowed to proceed 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; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(B)(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Id. § 2244(b)(2). In order for this court to grant permission to file a second or successive habeas petition, the applicant must make a prima facie showing that his application satisfies the statutory requirements. Id. § 2244(b)(3)(C). A prima facie showing requires the presentation of "sufficient allegations of fact together with some documentation that would `warrant a fuller exploration by the district court.'" In re Lott, 366 F.3d 431, 433 (6th Cir.2004) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)).

Bowling's claim that he cannot receive the death penalty because he is mentally retarded rests upon the new rule established in Atkins, in which the Supreme Court held that the execution of a mentally retarded offender violates the Eighth Amendment. 536 U.S. at 321, 122 S.Ct. 2242. This rule has been made retroactive to cases on collateral review. See Hill v. Anderson, 300 F.3d 679, 681 (6th Cir.2002).

In order for this court to grant Bowling a second or successive habeas petition, Bowling must present "sufficient allegations of fact together with some documentation" of his claim that he is mentally retarded. See Lott, 366 F.3d at 433; In re Holladay, 331 F.3d 1169, 1174 (11th Cir.2003) (establishing that the motion should be granted allowing petitioner to file a successive habeas petition, "if petitioner's proofs, when measured against the entire record in this case, establish a reasonable likelihood that he is in fact mentally retarded"). Thus, the key substantive question before this court is whether Bowling was mentally retarded at the time he committed the murders of James and Tina Early.

Atkins did not set forth a definitive rule or procedure for the courts to follow in determining when an offender is mentally retarded such that his or her execution would violate the Eighth Amendment. Instead, Atkins reserved for the states "the task of developing appropriate ways to enforce the constitutional restriction" upon the execution of sentences. 536 U.S. at 317, 122 S.Ct. 2242.

Atkins specifically observes that "[n]ot 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" against execution. Id. Those who are mentally retarded will have "significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work." Id. at 308 n. 3, 122 S.Ct. 2242 (quoting American Association on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed.1992)). Further, mental retardation will manifest before the person reaches eighteen years of age. Id.

Kentucky law began prohibiting the execution of "seriously mentally retarded" defendants twelve years prior to Atkins. Ky.Rev.Stat. § 532.140. It defines "seriously mentally retarded" as one who has "significant subaverage intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested during the developmental period." Id. § 532.130(2). "Significant subaverage intellectual functioning" is defined as "an intelligence quotient (I.Q.) of seventy (70) or below." Id.

The evidence before this court strongly suggests that Bowling is not mentally retarded. Thus, Bowling does not make a prima facie showing on his claim of mental retardation such that he can receive permission to file a second or successive habeas petition.

Bowling has had four I.Q. tests — two were taken while he was in grade school and the other two were taken in preparation for his trial. While Bowling was in seventh grade (1966-67 academic year), he received scores of 74 and 79 on these tests. He was tested again twice in 1990, with both tests administered within a month of his December 1990 trial. He received a score of 86 using the WAIS-R test and a score of 87 on the Shipley Hartford Intelligence Scale. None of these scores are at or below the cutoff of 70 established by Kentucky law as proof of significant subaverage intellectual functioning. Further, in a separate case, the Kentucky Supreme Court determined that I.Q. scores of 74 and 78, similar to two of Bowling's scores, "are 4 to 8 points respectively higher than the definition of a seriously mentally retarded offender" who would be ineligible for the death penalty. Woodall v. Commonwealth, 63 S.W.3d 104, 116 (Ky.2002).

Bowling argues that this court should not consider the absolute scores on these I.Q. tests, but instead apply a five-point margin of error. The five-point margin of error does place one of Bowling's seventh-grade scores below the statutory cutoff. However, Bowling does not justify the five-point margin of error with any explanation nor does the margin of error appear to derive from any particular source. In addition, there is no indication that the psychologists who administered the I.Q. tests to Bowling would not have already...