Leon Jermaine Winston v. Kelly

• Decision Date: 16 May 2011
• Docket Number: Civil Action No. 7:07CV00364.
• Citation: 784 F.Supp.2d 623
• Parties: Leon Jermaine WINSTON, Petitioner,v.Loretta K. KELLY, Warden, Sussex I State Prison, Respondent.
• Court: U.S. District Court — Western District of Virginia

784 F.Supp.2d 623

Leon Jermaine WINSTON, Petitioner,

v.Loretta K. KELLY, Warden, Sussex I State Prison, Respondent.

Civil Action No. 7:07CV00364.

United States District Court, W.D. Virginia,Roanoke Division.

May 16, 2011.

James Moreno, Jennifer L. Givens, Federal Community Defenders Office, Philadelphia, PA, for Petitioner.Matthew P. Dullaghan, Steven Andrew Witmer, Office of the Attorney General, Richmond, VA, for Respondent.

MEMORANDUM OPINION

SAMUEL G. WILSON, District Judge.

A jury in the Circuit Court for the City of Lynchburg, Virginia found petitioner, Leon Jermaine Winston, guilty in June 2003 of three counts of capital murder and imposed three death sentences. Having exhausted his state court remedies, see Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004) and Winston v. Warden of Sussex I State Prison, 2007 WL 678266 (Va. Mar. 7, 2007) (unpublished), Winston filed a habeas petition in this court pursuant to 28 U.S.C. § 2254 raising more than 30 claims. The court rejected all of his claims except two interrelated claims: the claim that because he is mentally retarded, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), bars his execution, a claim he procedurally defaulted because he failed to raise it at trial, and the claim that his counsel was ineffective in relation to that claim, thereby excusing his procedural default. Winston v. Kelly, 624 F.Supp.2d 478 (W.D.Va.2008). Although the Supreme Court of Virginia earlier rejected Winston's ineffective assistance claim on the merits because he had failed to satisfy the deficient performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Winston v. Warden of Sussex I State Prison, 2007 WL 678266, this court concluded that it was not wholly implausible that Winston could establish the claim even in light of the AEDPA's deferential standards. Winston v. Kelly, 624 F.Supp.2d at 512–16. Accordingly, this court held an evidentiary hearing to resolve the claim.

At that hearing, Winston presented new evidence, evidence that he had not presented to the Supreme Court of Virginia, including an intelligence quotient (“IQ”) score of 66 that he received as part of a psychological exam in 1997. The court found that this new IQ score fundamentally altered Winston's ineffective assistance claim and that Winston had failed to account for his failure to present it to the Supreme Court of Virginia, thus rendering that claim, as newly positioned, unexhausted and procedurally defaulted. Winston v. Kelly, 600 F.Supp.2d 717, 734–36 (W.D.Va.2009). The court then reviewed the new evidence to determine whether Winston was “actually innocent of the death penalty” so as to excuse his procedural default, and concluded that Winston could not make the stringent showing actual innocence required. Id. at 735–36. This court then noted that it considered its handling of the ineffective assistance claim to be procedurally problematic, because the procedure the court followed effectively skirted the temporal nature of review 28 U.S.C. § 2254(d)(2) requires by holding an evidentiary hearing on Winston's ineffective assistance claim without first expressly deciding whether the Supreme Court of Virginia's adjudication of that claim, as it was fairly positioned before that court, was based on an unreasonable determination of facts or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Id. at 737–38. The court then examined Winston's claim in light of the record it found to have been fairly presented to the Supreme Court of Virginia, and found that the Supreme Court of Virginia's adjudication of the merits of Winston's ineffective assistance claim, at least as to Strickland's prejudice prong, was not unreasonable. Id. at 738–40.

The Court of Appeals affirmed this court's dismissal of all of Winston's claims except his Atkins-related ineffective assistance claim. Winston v. Kelly, 592 F.3d 535 (4th Cir.2010) cert. denied, ––– U.S. ––––, 131 S.Ct. 136, 178 L.Ed.2d 83 (2010). It vacated this court's decision as to that claim, and remanded that claim for further consideration. It gave explicit instructions to this court to consider all the evidence, including Winston's additional IQ score, affording deference under § 2254(e)(1) “to any relevant factual findings” made by the Supreme Court of Virginia, but affording no deference under § 2254(d) to the Supreme Court of Virginia's adjudication of the claim. Id. at 557–58. Following the directives of the Court of Appeals, this court now concludes from all the evidence it heard, including the new evidence, that there is a reasonable probability that but for counsel's unprofessional errors, the outcome of Winston's proceeding would have been different. Accordingly, the court grants Winston's petition for a writ of habeas corpus. As a consequence, Virginia must conduct a trial on the question of whether Winston is mentally retarded, and sentence him accordingly, or otherwise resentence him without the possibility of death.

I.

The procedural history, legal setting, and summary of the evidence pertinent to the issue that is before this court on remand are explained in the three published opinions referenced above, two by this court and one by the Court of Appeals. Though the court will not repeat all of those matters here, it repeats enough background information to provide context for this court's findings of fact and its decision.

The United States Supreme Court held in Atkins that the Eighth Amendment prohibits the execution of the mentally retarded, but tasked the states with developing “appropriate ways” to enforce that restriction. 536 U.S. at 317, 122 S.Ct. 2242. Virginia law defines mental retardation as

a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean, and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills.

Va.Code Ann. § 19.2–264.3:1.1(A) (2006). Defendants bear the burden of proving mental retardation by a preponderance of the evidence. § 19.2–264.3:1.1(C).

The intellectual functioning prong is “demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean.” § 19.2–264.3:1.1(A). The Supreme Court of Virginia, consistent with the standards of the American Psychiatric Association, has determined a full-scale IQ score of 70 or less is the “standardized measure of intellectual functioning” that indicates mental retardation. Johnson v. Commonwealth, 267 Va. 53, 591 S.E.2d 47, 59 (2004), vacated on other grounds, 544 U.S. 901, 125 S.Ct. 1589, 161 L.Ed.2d 270 (2005). However, “a habeas petitioner is not required to submit an IQ score of 70 or less from a test taken before he turned the age of eighteen,” but rather must prove only “that his intellectual functioning would have fallen below this standard before he turned the age of eighteen.” Hedrick v. True, 443 F.3d 342, 367 n. 2 (4th Cir.2006). Virginia law requires adaptive behavior assessments to be “based on multiple sources ... including clinical interview, psychological testing and educational, correctional and vocational records,” and at least one standardized, generally accepted measure of adaptive functioning. § 19.2–264.3: 1.1(B)(2).

In Winston's capital murder trial, B. Leigh Drewry, Jr., one of two court-appointed lawyers, “accepted responsibility for gathering the mitigation evidence.” (App. to Pet. Writ of Habeas Corpus 337.) In carrying out that responsibility Drewry obtained Winston's “school records, social service records, and hospital records.” (App. 338.) Those records included three psychological evaluations, each accompanied by an intelligence test. (App. 1–2, 3–6, 11–15.) Winston took the first of these intelligence tests, the Wechsler Intelligence Scale for Children–Revised (WISC–R), in 1987 at age seven and received a verbal IQ score of 91, a performance IQ score of 67, and a full-scale IQ score of 77. (App. 1.) At that time he was judged to have “mentally deficient to average intelligence.” (App. 2.) Winston took the WISC–R again in 1990 at age ten and received a verbal IQ score of 74, a performance IQ score of 75, and a full-scale IQ score of 73. (App. 4.) The evaluating psychologist noted that Winston was functioning in the “[b]orderline range of general intellectual ability,” but believed that the test was an “underestimate” of Winston's abilities. (App. 4.) The psychologist also wrote, “[Winston's] ability to recall specific verbal facts which are typically acquired through education and experience is extremely deficient and falls within the Mentally Retarded range (1st percentile).” (App. 5.) Winston took the third intelligence test, the Wechsler Intelligence Scale for Children–III (WISC–III), in 1995 at age fifteen and received a verbal IQ score of 60, a performance IQ score of 89, and a full-scale IQ score of 76. (App. 13.) The evaluating clinical psychologist attributed the precipitous decline in Winston's verbal IQ score to a “neurological insult” and found that he had “borderline intellect and severe verbal processing problems.” (App. 14.) She noted that Winston's immaturity and passiveness “place him at a risk to be easily manipulated by others. He is likely to always follow the easiest path, the strongest leader. He is not likely to initiate activity, either good or bad, on his own.” (App. 14–15.)

According to other records Drewry received, on October 30, 1996, the local screening committee of...