In re Hill

• Decision Date: 26 January 2015
• Docket Number: No. 15–10192.,15–10192.
• Citation: 777 F.3d 1214
• Parties: In re Warren Lee HILL, Jr., Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

777 F.3d 1214

In re Warren Lee HILL, Jr., Petitioner.

No. 15–10192.

United States Court of Appeals, Eleventh Circuit.

Jan. 26, 2015.

Brian Kammer, Atlanta, GA, for Petitioner.

Beth Attaway Burton, Georgia Department of Law, Atlanta, GA, for Successive Habeas Respondent.

Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. Section 2244(b), by a Prisoner in State Custody. D.C. Docket Number. 04–00151–cv–WLS.

Before HULL, MARCUS and MARTIN, Circuit Judges.

Opinion

PER CURIAM.

The State has scheduled Warren Lee Hill, Jr.'s execution for Tuesday, January 27, 2015 at 7:00 p.m. On January 15, 2015, and pursuant to 28 U.S.C. § 2244(b), petitioner Hill filed this second, counseled application for permission to file a second or successive federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court. On January 16, 2015, the State filed a response opposing petitioner Hill's successive application on numerous grounds. Because over the past 20 years petitioner Hill has filed four counseled state habeas cases and three counseled federal habeas cases, we first review just some of the lengthy factual and procedural background before discussing his current application.

I. PROCEDURAL HISTORY

A. Malice Murder Conviction and Unanimous Death Sentence

In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, “Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop.” Head v. Hill, 277 Ga. 255, 256, 587 S.E.2d 613, 618 (Ga.2003) (“Hill III ”).¹ Hill “mocked the victim as he beat him.” Id.

A jury unanimously convicted Hill of malice murder and unanimously imposed a death sentence. The Georgia Supreme Court affirmed Hill's conviction and death sentence. Hill v. State, 263 Ga. 37, 37, 427 S.E.2d 770, 772 (Ga.1993) ( “Hill I ”). The U.S. Supreme Court denied Hill's petition for certiorari . Hill v. Georgia, 510 U.S. 950, 114 S.Ct. 396, 126 L.Ed.2d 344 (1993).

B. No Intellectual Disability Claim at Trial or on Direct Appeal

Hill's current successive application centers on his allegation that he is intellectually disabled.² At the time of Hill's 1991 trial, Georgia law prohibited executing intellectually disabled defendants.³ Yet, at his trial and on direct appeal, Hill never claimed to be intellectually disabled. Indeed, Hill's trial counsel had Hill evaluated by a clinical psychologist expert who found Hill was not intellectually disabled. Hill v. Humphrey,

662 F.3d 1335, 1340 (11th Cir.2011) (en banc), cert. denied, 566 U.S. ––––, 132 S.Ct. 2727, 183 L.Ed.2d 80 (2012).

In 1994, Hill filed his first, counseled state habeas case but did not claim he was intellectually disabled. It was only in 1996, or five years after his 1991 trial, that Hill claimed, for the first time, he was intellectually disabled. As explained in the procedural history below, over the course of nearly 20 years, Hill has fully litigated his intellectual disability claims in numerous proceedings in both state and federal court. Here are just a few examples of why his claims have been repeatedly denied.

C. 1996–2003 State Habeas Proceedings

After conducting an evidentiary hearing and after a remand by the Georgia Supreme Court, the state habeas court in 2002 determined that Hill's evidence failed to prove he was intellectually disabled beyond a reasonable doubt as required by Georgia law to bar his execution. See O.C.G.A. § 17–7–131(c)(3), (j). The state habeas court employed the definition of mental retardation in O.C.G.A. § 17–7–131(a)(3), which provides that “mentally retarded” means (1) having “significantly subaverage general intellectual functioning,” (2) “resulting in or associated with impairments in adaptive behavior,” (3) “which manifested during the developmental period.” Georgia's definition essentially tracks the clinical definitions mentioned by the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 308 n. 3, 122 S.Ct. 2242, 2245 n. 3, 153 L.Ed.2d 335 (2002). As explained later, Georgia's definition does not have Florida's strict IQ cut-off of 70 that was at issue in Hall v. Florida, 572 U.S. ––––, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and that precluded defendant Hall from presenting any adaptive-behavior or other evidence as to intellectual disability. See Hall, 572 U.S. at ––––, ––––, 134 S.Ct. at 1992, 1994. In this case, however, both Hill and the State presented evidence of his adaptive behavior and other evidence in various courts.

The state habeas court found Hill established the first prong of “significantly subaverage general intellectual functioning.” Hill III, 277 Ga. at 255, 587 S.E.2d at 617–18. The court did not find an exact IQ score, but multiple tests had placed Hill's IQ score at between 69 and 77. In re Hill, 715 F.3d 284, 286 & n. 1 (11th Cir.2013) (collecting various IQ scores from tests administered at different times).

As to the second prong, however, the state habeas court found that Hill had not shown that he had “impairments in adaptive behavior” beyond a reasonable doubt. Hill III, 277 Ga. at 255, 587 S.E.2d at 618. Hill's case has always been about his adaptive behavior, not his IQ scores. Based on the evidence presented by Hill and the State, the state habeas court found Hill did not have impairments in “communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.” Hill, 662 F.3d at 1341 ; In re Hill, 715 F.3d at 286. Specifically, “[t]he court noted Hill's (1) extensive work history and ‘apparent ability to function well in such employment,’ (2) disciplined savings plans pursued to purchase cars and motorcycles, (3) military service, (4) active social life, (5) writing skills, and (6) ability to care for himself.” In re Hill, 715 F.3d at 286. Because Hill failed to establish the second prong, the state habeas court did not discuss the third prong, which is onset before age 18.

Among the evidence before the state habeas court was Hill's military record, showing his five promotions, his successful courses in military education, instruction training and leadership management, and his excellent oral and written English language skills, as follows:

He entered the military at the rank E–1 and, advancing each year, attained the rank of E–5 in five years. Hill was decorated as a .38 caliber sharpshooter. He received military education in nuclear weapons loading, aviation fund school, and corrosion control. He completed an 80–hour instructor training course. Hill also attended and completed a 2–week military course in leadership management education and training. He was qualified as an assistant supervisor and ordnance systems maintenance man and troubleshooter, with collateral duties in shop training, as a publications petty officer, as a nuclear conventional weapons load team member, and as a corrosion control/reclamation and salvage team member. Hill was qualified as a weapons technician and was a Human Relations council member. He completed a 2–week tour with a hometown recruiting program, played on the football team, and was Petty Officer of the Watch. Hill also functioned as an assistant work center supervisor, an ordnance troubleshooter, was CPR qualified, and played on an intramural basketball team.

Evaluations of Hill during his military duty contain these descriptions of him:

Dedicated and reliable petty officer. Completes all tasks expeditiously, at times under very adverse conditions. Quiet, friendly manner, and positive attitude greatly enhances squadron morale. Uniforms and appearance always outstanding. Actively supports the Navy's equal opportunity goals. Good use of the English language orally and written. Strongly recommended for advancement and retention.

Similarly, Hill was reported to be:

[a] reliable individual and devoted second class petty officer. Works exceptionally well with others and assists in the training of weapons-loading team members. Implemented a new W/C tool control program and aided in the redesigning of the W/C technical Pubs library, both areas receiving an outstanding during the latest COMHEL WINGGRES visit. His quiet personality enhances squadron morale. Uniforms and appearance continually outstanding. Actively supports the Navy's equal opportunity goals. Demonstrates excellent command of the English language orally and written. Strongly recommended for advancement and retention in the Naval service.

In re Hill, 715 F.3d at 286–87 (footnote omitted). Hill was eligible for an E–6 promotion in the military; however, he was demoted not because of any mental inability, but because he murdered his girlfriend. Id. at 286 n. 4.

These are just some examples of the plethora of evidence before the state habeas court and the Georgia Supreme Court. Ultimately, the state habeas court and then the Georgia Supreme Court in 2003 concluded that Hill had not shown the required impairments in adaptive behavior and thus had not established his intellectual disability beyond a reasonable doubt as required by Georgia law. Hill III, 277 Ga. at 260–63, 587 S.E.2d at 620–23. The Georgia Supreme Court also concluded in 2003 that Georgia's beyond-a-reasonable-doubt standard was not unconstitutional under Atkins . Id. at 262, 587 S.E.2d at 622.

D. First Federal 28 U.S.C. § 2254 Petition—Filed October 5, 2004

Hill then filed a § 2254 petition asserting that he was “mentally retarded, and his execution would violate the Eighth and Fourteenth Amendments to the United States Constitution.” Under that heading, Hill raised subclaims, including arguments that Georgia's beyond-a-reasonable-doubt standard violated the Eighth and Fourteenth Amendments and Atkin...