In re Richardson
| Decision Date | 11 February 2020 |
| Docket Number | No. 17-7,17-7 |
| Parties | In re: TIMOTHY RICHARDSON, Movant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Motion for authorization to file successive habeas petition denied by unpublished per curiam opinion.
ARGUED: Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER, LLP, High Point, North Carolina, for Movant. Jonathan Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent. ON BRIEF: Kenneth J. Rose, Durham, North Carolina, for Movant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
Timothy Richardson filed a motion under 28 U.S.C. § 2244(b)(3)(A), seeking authorization from this court to file a second or successive application for a writ of habeas corpus in order to challenge his capital sentence in North Carolina. He contends that he is intellectually disabled and, therefore, ineligible for a capital sentence under the Eighth Amendment to the United States Constitution. We deny the motion.
Richardson was convicted and sentenced to death in 1995 for the kidnapping and murder of Tracy Marie Rich. His convictions and sentences were affirmed on direct appeal, State v. Richardson, 488 S.E.2d 148 (N.C. 1997), and the United States Supreme Court denied certiorari, Richardson v. North Carolina, 522 U.S. 1056 (1998). The underlying facts and procedural history of his case are exhaustively set forth in the state court decisions, as well as in this court's prior decisions in Richardson v. Thomas, 930 F.3d 587 (4th Cir. 2019), Richardson v. Thomas, 718 F. App'x 192 (4th Cir. 2018), and Richardson v. Branker, 668 F.3d 128 (4th Cir. 2012).1
Richardson then sought post-conviction relief from his death sentence via a motion for appropriate relief (MAR) in North Carolina state court, alleging that he is intellectually disabled and, therefore, ineligible to be sentenced to the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the United States Supreme Court held that theexecution of an intellectually disabled individual violates the Eighth Amendment's ban on cruel and unusual punishments, id. at 321, but left "to the States the task of developing appropriate ways to enforce that constitutional restriction upon their execution of sentences," id. at 317 (internal quotation marks and alterations omitted).
Under North Carolina's intellectual disability statute, Richardson was required to demonstrate that he had (1) "[s]ignificantly subaverage general intellectual functioning," defined as "[a]n intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist," and (2) "[s]ignificant limitations in adaptive functioning," defined as "[s]ignificant limitations in two or more of [ten] adaptive skill areas." N.C. Gen. Stat. § 15A-2005(a)(1), (2) (2001).
The MAR court held an evidentiary hearing to consider the claim. The court considered Richardson's IQ scores, expert testimony regarding the standard error of measurement (SEM) generally recognized in such scores, and lay and expert testimony about Richardson's limitations in adaptive functioning. The court found that Richardson had failed to prove that he was intellectually disabled and denied the claim on the merits.
In his petition seeking certiorari review by the Supreme Court of North Carolina, Richardson argued that the lower court had "employed an overly restrictive construction of § 15A-2005, one that is contrary to the Eighth Amendment as interpreted by the United States Supreme Court's decision in Atkins v. Virginia." Richardson, 930 F.3d at 590 (internal quotation marks and alteration omitted). Among other things, Richardson argued that the court had considered only the numerical scores on his qualifying IQ tests, failed toconsider the SEM, and erred in the assessment of his adaptive limitations. See id. The Supreme Court of North Carolina denied review. See State v. Richardson, 667 S.E.2d 272 (N.C. 2008).
In November 2008, Richardson filed his first petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254(d), challenging the reasonableness of North Carolina's adjudication of his Atkins claim. Richardson again argued that the state court had employed an overly restrictive construction of § 15A-2005, in violation of Atkins; gave weight only to the raw IQ test scores; and failed to use the SEM to adjust the scores. Richardson also argued that the state court's findings regarding his adaptive limitations were unreasonable. The district court denied Richardson's intellectual disability claim on the merits. We affirmed the intellectual disability ruling, and the United States Supreme Court denied certiorari review.2
In May of 2014, the United States Supreme Court issued its decision in Hall v. Florida, 572 U.S. 701 (2014), which considered a state prisoner's appeal from the Florida Supreme Court's rejection of his Atkins claim. Hall argued that the Florida Supreme Court had interpreted Florida's intellectual disability statute too rigidly to comply with Atkins' prohibition of the execution of the intellectually disabled, because it imposed a strict, cutoff IQ score of 70 or less. Id. at 704. The Court agreed, holding that this "rigid rule," which foreclosed "all further exploration of intellectual disability, . . . . create[d] an unacceptablerisk that persons with intellectual disability [would] be executed, and thus [was] unconstitutional." Id. More specifically, the "Court agree[d] with the medical experts that when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Id. at 723.
In 2015, Richardson filed an amended MAR in North Carolina state court seeking to overturn his death sentence in light of Hall. Richardson argued that the North Carolina courts had similarly applied a rigid, cutoff score of 70 when it considered his claim and had failed to consider the SEM and clinically-appropriate assessment measures of adaptive deficits. The state MAR court denied Richardson's motion. Of relevance here, the court held that North Carolina had not "interpreted North Carolina's statute to preclude consideration of the [SEM] or to limit the introduction of evidence if the threshold showing of an IQ score of 70 has not been met." J.A. 1234. Accordingly, North Carolina's statute, unlike that in Florida, had been "interpreted consistently with Atkins." Id. Second, the court noted that Richardson had been "allowed to present evidence of his alleged deficits in adaptive functioning in a full evidentiary hearing without restriction," as well as evidence "on the standard error of measurement," id., and that the court had "considered all of Richardson's IQ test scores, without limitation, as well as evidence of his alleged limitations in adaptive functioning," id. at 1234-35. "Thus, Hall "ha[d] no effect on [the court's] prior determination that Richardson is not intellectually disabled," id. at 1234, and the court had, "[i]n effect, . . . already interpreted North Carolina's law consistently with Hall," id. at 1235. Nevertheless, the state MAR court also considered Richardson'samended claim on the merits, including supplemental affidavits from the state's expert regarding Richardson's intellectual-disability evaluation, and found that Richardson had still failed to provide evidence sufficient to support a finding that he is intellectually disabled. The North Carolina Supreme Court denied review, see State v. Richardson, 782 S.E.2d 736 (N.C. 2016), as did the United States Supreme Court, see Richardson v. North Carolina, 137 S. Ct. 337 (2016).
Richardson then returned to federal district court, seeking to reopen the final judgment on his original habeas petition under Rule 60(b)(6) of the Federal Rules of Civil Procedure in light of the Hall decision. Richardson again argued that the North Carolina state court had imposed a bright-line, cutoff IQ score of 70 or below when it adjudicated his claim and had failed to consider the SEM and his adaptive deficits. The district court granted the motion, but certified an interlocutory appeal to this court. Because Richardson's Rule 60 motion was the functional equivalent of a § 2254 petition that could not be filed absent prior authorization from this court, we vacated the order. See Richardson, 930 F.3d at 589. In the interim, Richardson filed the present motion for an order authorizing him to file a second or successive habeas application under 28 U.S.C. § 2244(b)(3), to which we now turn.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) Tyler v. Cain, 533 U.S. 656, 661 (2001); see 28 U.S.C. § 2244(b)(1). If the claim "was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions." Id. The first exception is for certain claims that rely on "a new rule of constitutional law," that has been "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" to the petitioner. 28 U.S.C. § 2244(b)(2)(A). The second exception is for claims that are based on a "factual predicate [that] could not have been discovered previously through the exercise of due diligence," and which, "if proven and viewed in the light of the...
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