In re Hill

Decision Date22 April 2013
Docket NumberNo. 13–10702.,13–10702.
Citation715 F.3d 284
PartiesIn re Warren Lee HILL, Jr., Petitioner.
CourtU.S. Court of Appeals — Eleventh Circuit


Brian Kammer, Georgia Resource Ctr., Atlanta, GA, for Petitioner.

Beth Attaway Burton, Atty. Gen.'s Office, Atlanta, GA, for Successive Habeas Respondent.

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

Before BARKETT, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

This case comes before this Court on Petitioner Warren Lee Hill, Jr.'s Application, under 28 U.S.C. § 2244(b)(3)(A), 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. After review, we must deny the Application because Hill's claim of mental retardation, proposed in his successive petition, was already presented in his first petition and is barred by the statutory prohibition in § 2244(b)(1). Additionally, Hill's mental retardation claim challenges only his eligibility for a death sentence, and not whether he is “guilty of the underlying offense,” and thus does not fall within the narrow statutory exception in § 2244(b)(2)(B)(ii) anyway.

A. Malice Murder Conviction and Unanimous Death Sentence

In 1990, while serving a life sentence for murdering his girlfriend, Hill 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 sinkleg 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. Although in jail for life for one murder, Hill continued to kill.

A jury unanimously convicted Hill of malice murder and unanimously imposed a death sentence. SeeHill v. State, 263 Ga. 37, 427 S.E.2d 770, 774 (1993).

B. No Mental Retardation Claim at Trial or on Direct Appeal

In 1988, the State of Georgia abolished the death penalty for mentally retarded defendants. SeeO.C.G.A. § 17–7–131 (1988 statute prohibiting the death penalty where defendant proves mental retardation). Therefore, at the time of Hill's 1991 trial, Georgia prohibited executing mentally retarded defendants. Yet at his trial and on direct appeal, Hill never claimed to be mentally retarded. Rather, it was five years after his 1991 trial that Hill claimed for the first time he was mentally retarded and thus could not be executed.

Importantly, at all times herein, Hill has never asserted mental retardation as a defense to his malice murder conviction. Instead, Hill's mental retardation claim now and always has related to only his sentence.

C. 1996 Amendment to First State Habeas—First Claim of Mental Retardation

In 1994, Hill filed in state court a petition for habeas corpus that did not make any mental retardation claim.

Two years later, in 1996, Hill amended his state habeas petition to allege, for the first time, that he was mentally retarded and his mental retardation barred his death sentence. The court ordered mental evaluations, conducted a lengthy evidentiary hearing, and heard extensive testimony from mental health experts who had conducted tests and reviewed Hill's school and medical records, his military and employment history, and voluminous other documents. The court also received affidavits as to his abilities from 59 friends and family members of Hill and heard testimony from Hill's trial counsel.

The state habeas court determined that Hill's evidence failed to prove he was mentally retarded. In doing so, it 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 to the first prong, the state habeas court found Hill established beyond a reasonable doubt his “significantly subaverage general intellectual functioning.”1 While the court did not find an exact IQ score, psychologists had administered multiple tests, resulting in IQ scores ranging between 69 and 77.

As to the second prong of the mental retardation standard, however, the state habeas court found Hill had failed to show beyond a reasonable doubt that he had “impairments” in “adaptive behavior” such as “communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.” The 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.2

The state court based its conclusion, in part, on a 35–page report prepared by three mental health experts. One expert, Dr. Thomas H. Sachy, a psychiatrist, evaluated Hill on November 22, 2000. The other two experts, Dr. Donald W. Harris, a psychologist, and Dr. J. Gary Carter, a psychiatrist,3 evaluated Hill together on December 6, 2000. Based on their in-person evaluations and the voluminous evidence of Hill's adequate “adaptive behavior,” the experts determined that Hill was not mentally retarded and was malingering.

Among the evidence relied on by the experts and presented to the state habeas court, Hill's military record was particularly meaningful. He entered the military at the rank E–1 and, advancing each year, attained the rank of E–5 in five years.4Hill 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.

Based on all of the evidence, the state habeas court concluded that Hill had not shown impairments in adaptive behavior and thus had not established his mental retardation beyond a reasonable doubt.

The Georgia Supreme Court affirmed. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003). In doing so, it upheld the state habeas court's findings and reasons for denying Hill's mental retardation claims. Seeid. at 256–56, 587 S.E.2d at 617–18.

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

On October 5, 2004, Hill filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. The petition raised multiple mental retardation claims involving Hill's death sentence, including a claim that because he had proved his mental retardation, the Eighth Amendment barred his execution.5 After extensive briefing on this and other issues, the district court denied relief on November 7, 2007.6

This Court granted a certificate of appealability on limited issues. Subsequently, this Court en banc affirmed the district court's denial of Hill's § 2254 petition. Hill v. Humphrey, 662 F.3d 1335 (11th Cir.2011) (en banc). The United States Supreme Court denied certiorari. Hill v. Humphrey, ––– U.S. ––––, 132 S.Ct. 2727, 183 L.Ed.2d 80 (2012).

The State initially set Hill's execution for July 18, 2012 at 7:00 p.m., but rescheduled it for July 23, 2012 at 7:00 p.m.7

E. Second State Habeas—Filed July 18, 2012

On July 18, 2012, shortly before his scheduled execution, Hill filed a successive state habeas petition reasserting the same mental retardation claim. On July 19, 2012, the state habeas court denied the claim. Hill appealed. On July 23, 2012, the Georgia Supreme Court found Hill's claim was barred from review by Georgia res judicata principles, holding:

To the extent that Hill's petition for a writ of habeas [corpus] raised claims previously addressed by this Court in Hill's first state habeas proceedings,...

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