Kilgore v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 16 November 2015
• Docket Number: No. 13–11825.,13–11825.
• Parties: Dean KILGORE, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

805 F.3d 1301

Dean KILGORE, Petitioner–Appellant
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 13–11825.

United States Court of Appeals, Eleventh Circuit.

Nov. 16, 2015.

805 F.3d 1302

William Mckinley Hennis, III, Paul Edward Kalil, Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Petitioner–Appellant.

Candance M. Sabella, Attorney General's Office, Tampa, FL, for Respondents–Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

Opinion

MARCUS, Circuit Judge:

Petitioner Dean Kilgore was serving a life sentence for first-degree murder, a consecutive life sentence for kidnapping, and an additional consecutive five-year sentence for armed trespass when he was convicted of capital murder and sentenced to death for killing a fellow inmate, Emerson

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Robert Jackson. Kilgore now appeals from the district court's denial of habeas relief, arguing that he is intellectually disabled, and, therefore, ineligible for the death penalty under the Eighth Amendment and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).¹ After thorough review, we affirm.

I.

A.

These are the essential facts. Petitioner Dean Kilgore has been incarcerated most of his adult life. Kilgore v. State, 55 So.3d 487, 493 (Fla.2010). His entry into the Florida prison system began in 1970 when he was found guilty of, among other charges, three counts of aggravated assault with intent to kill. Id. He was released from custody on September 30, 1977. Id. On July 31, 1978, Kilgore broke into a woman's home late at night while she, her boyfriend, and their children were there. Armed with a firearm, Kilgore shot the boyfriend to death in the presence of one of the children. Kilgore then kidnapped the woman and took her to an orange grove where he kept her for the rest of the night. After standing trial for these crimes in Florida's Circuit Court in Polk County, Kilgore was convicted in December 1978 of first-degree murder, kidnapping, and armed trespass. He was sentenced to a life term of imprisonment on the first-degree murder count, a life term of imprisonment on the kidnapping count, and five years' imprisonment on the armed trespass count, each sentence to run consecutively to the others.

Kilgore had served approximately eleven years of this sentence at the Polk Correctional Institution when he killed Emerson Robert Jackson. Kilgore and Jackson were lovers who had fought about Jackson's relationship with other inmates and the way Jackson would play his partners against each other. On February 13, 1989, Kilgore waited outside Jackson's cell and smoked a cigarette with another inmate until Jackson came out. At that point, Kilgore and Jackson got into a verbal argument, they struggled, and Kilgore pulled out of his pocket a homemade shank knife that he had borrowed from another inmate. Kilgore stabbed Jackson three times: one small stab above the rib cage; a larger stab in the back that hit his shoulder blade; and the fatal wound, a stab to the front that penetrated his chest cavity, went through his left lung, and punctured his aorta.

After the stabbing, Kilgore reached into the shower from the hallway and grabbed a can he had stashed there earlier. From this can, Kilgore poured a strong-smelling, caustic substance onto Jackson's face and neck, and tried unsuccessfully to light some matches. Jackson died as a result of the stab wounds. Kilgore went to the administration building immediately after the incident and told the guards, “I stabbed the bitch and I hope he's dead.”

Following Jackson's death, Kilgore was indicted for first-degree murder and possession of contraband by an inmate. Kilgore, 55 So.3d at 493. After a jury trial, Kilgore was found guilty on both counts and, by a vote of nine to three, the jury recommended that he be sentenced to death. Id. at 494. At sentencing, the trial court found that two aggravating circumstances were proven beyond a reasonable doubt: (1) Kilgore was under sentence of imprisonment at the time he committed the murder, Fla. Stat. § 921.141(5)(a) ; and (2) Kilgore had been previously convicted

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of a felony involving the use or threat of violence to the person (first-degree murder, kidnapping, trespass with a firearm, three counts of assault with intent to commit murder in the second degree, two counts of aggravated assault, and resisting arrest with force), Fla. Stat. § 921.141(5)(b). Kilgore v. State, 688 So.2d 895, 897 (Fla.1996) (per curiam). The trial court also found two statutory mitigating factors: (1) Kilgore acted under the influence of extreme mental or emotional disturbance, Fla. Stat. § 921.141(6)(b) ; and (2) Kilgore's capacity to conform his conduct to the requirements of law was substantially impaired, Fla. Stat. § 921.141(6)(f). Kilgore, 688 So.2d at 897. The trial court considered as nonstatutory mitigating factors Kilgore's extreme poverty as a child, his lack of education, and his poor mental and physical condition. Id.

After weighing all of the factors, the trial court determined that the death sentence was the appropriate sanction since the aggravating circumstances “far outweighed” the statutory and non-statutory mitigating circumstances. It reasoned that “the accomplishment of this murder necessitated considerable preparation, cunning, and stealth” because “[t]he day before the killing [Kilgore] borrowed the murder weapon from another inmate and prevailed upon a third inmate to refrain from emptying a garbage can which contained the solvent he intended to pour over the victim's body.” After the murder, noted the trial court, Kilgore “calmly walked to the administration building where he told the guards, ‘I stabbed the bitch.’ ” The trial court concluded that “[t]o sentence Mr. Kilgore to anything but death would be tantamount to giving him a license to kill.”

The Florida Supreme Court affirmed Kilgore's conviction and death sentence on direct appeal, Kilgore, 688 So.2d at 901, and the United States Supreme Court denied certiorari review, Kilgore v. Florida, 522 U.S. 832, 118 S.Ct. 103, 139 L.Ed.2d 58 (1997).

B.

Kilgore then moved collaterally for post-conviction relief under Florida Rule of Civil Procedure 3.850 in the Circuit Court of Polk County, Florida. The court conducted a five-day evidentiary hearing on June 13–17, 2005. Kilgore later amended his post-conviction application claiming that he was intellectually disabled and, therefore, he could not be executed. The court appointed Dr. Hyman Eisenstein, a neuropsychiatrist who had previously testified during Kilgore's 2005 evidentiary hearing as an expert for the defense, and neuropsychologist Dr. Michael Gamache as an expert for the State. A second evidentiary hearing was conducted on January 22–23, 2007, on the intellectual disability issue.

The defense presented the testimony of Dr. Eisenstein and Dr. Henry Dee, a neuropsychologist, along with the testimony of Capital Collateral Regional Counsel investigator Katrina McNish. As Dr. Eisenstein explained, the elements of an intellectual disability claim under Florida law are: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifested during the period from conception to age eighteen.² As for the first

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prong of the intellectual disability test, the Wechsler Adult Intelligence Scale (“WAIS”) had been administered to Kilgore on six separate occasions, yielding full-scale IQ scores of 76 (Dr. William Kremper—August 1989); 84 (Dr. P.V. Ciotola—March 1990); 67 (Dr. Dee—March 1994); 75 (Dr. Eisenstein—August 2000); 74 (Dr. Dee—October 2004); and 85 (Dr. Gamache—May 2006). Dr. Eisenstein opined that the full-scale IQ scores of 74, 75, and 76 were likely most representative of Kilgore's actual IQ. Based on these scores, Eisenstein also offered that Kilgore met the first prong of Florida's intellectual disability test because Kilgore's IQ scores of 74 to 76 fell within the intellectual disability range.

As for the second prong of Florida's test—impaired “adaptive functioning”—Dr. Eisenstein concluded that Kilgore met the criterion because, according to family members and acquaintances, as a child Kilgore interacted with younger children and was described as “stupid” and “slow”; his communication skills were deficient and he was unable to properly file prison grievances, even if instructions were given; he was “slow” academically, according to inmate Charlie Thompson; and he “required” others to provide for him. Eisenstein reported that Kilgore had worked picking cotton, picking oranges by hand, and dishwashing—none of which required a high level of skill. He also averred that Kilgore's 2004 Department of Corrections (“DOC”) records indicated that Kilgore was not “motivated” to practice walking with a prosthetic leg he had received and did not wear it. Eisenstein also...