Richardson v. Thomas, 18-3

• Decision Date: 12 July 2019
• Docket Number: No. 18-3,18-3
• Parties: Timothy RICHARDSON, Petitioner - Appellee, v. Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

930 F.3d 587

Timothy RICHARDSON, Petitioner - Appellee,
v.
Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellant.

No. 18-3

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2019
Decided: July 12, 2019

ARGUED: Jonathan Porter Babb, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellant. Kenneth Justin Rose, KEN ROSE, Durham, North Carolina, for Appellee. ON BRIEF: Josh Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellant. Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER, LLP, High Point, North Carolina, for Appellee.

Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Senior Judge Traxler wrote the opinion, in which Judge Motz and Judge Keenan concurred.

TRAXLER, Senior Circuit Judge:

Timothy Richardson filed a motion under Federal Rule of Civil Procedure 60(b)(6), seeking to reopen the district court’s final judgment dismissing his Eighth Amendment, intellectual disability claim on the merits under 28 U.S.C. § 2254(d). The motion was based upon the United States Supreme Court’s subsequent decision in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The district court granted the motion, but certified this interlocutory appeal by the State under 28 U.S.C. § 1292(b). Because Richardson’s motion is the functional equivalent of a § 2254 petition, we vacate the district court’s order and remand with instructions to dismiss the motion.

I.

In 1995, a North Carolina jury convicted Richardson of kidnapping and murder. He was sentenced to death. His convictions and sentences were affirmed on direct appeal, State v. Richardson, 346 N.C. 520, 488 S.E.2d 148 (1997), and the Supreme Court denied certiorari, Richardson v. North Carolina, 522 U.S. 1056, 118 S.Ct. 710, 139 L.Ed.2d 652 (1998).¹

In 2002, Richardson filed a post-conviction motion for appropriate relief ("MAR") in North Carolina state court. He alleged

930 F.3d 590

that he suffered from an intellectual disability that rendered his capital sentence violative of the Eighth Amendment. See Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). To succeed on his claim, Richardson was required to demonstrate that he had (1) "significantly subaverage general intellectual functioning," defined as an IQ "of 70 or below," and (2) "significant 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). "An intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning," under the statute, but "it is not sufficient, without evidence of significant limitations in adaptive functioning and without evidence of manifestation before the age of 18, to establish that the defendant is mentally retarded." N.C. Gen. Stat. § 15A-2005(a)(2).

In 2005, the state MAR court held a full evidentiary hearing on Richardson’s intellectual disability claim. The MAR court considered four IQ scores, but only two were admissible as qualifying scores—an IQ score of 73 in 1995, and an IQ score of 74 in 2004. The court also considered expert testimony regarding the effect the standard error of measurement ("SEM"), Flynn effect and practice effect may have had upon Richardson’s IQ scores, as well as lay and expert testimony about his limitations in adaptive functioning. The state MAR court found that Richardson had failed to establish either of the requisite prongs and denied his claim on the merits.

In his petition for a writ of certiorari to the North Carolina Supreme Court, Richardson argued that the MAR court, in deciding the first prong of the statutory test, "employ[ed] 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 ." J.A. 420. Specifically, Richardson argued that the MAR court "fail[ed] to take into consideration the Flynn effect, the practice effect or the standard error of measurement," J.A. 432, and erred in "consider[ing] only the numerical value obtained on [the] two [qualifying] IQ tests," J.A. 434. With regard to the second prong of the statutory test, Richardson argued that the MAR court improperly assessed his adaptive functioning and rendered factual findings that were contrary to the evidence. The Supreme Court of North Carolina denied review. See State v. Richardson , 667 S.E.2d 272 (N.C. 2008).

Richardson then filed an application for federal habeas relief under 28 U.S.C. § 2254(d), challenging the reasonableness of the state court’s adjudication of his intellectual disability claim. With regard to the first prong—the state court’s assessment of Richardson’s general intellectual functioning—Richardson again argued that the state court had "employ[ed] an overly restrictive construction of § 15A-2005, one that is contrary to the Eighth Amendment as interpreted by the United States Supreme Court in Atkins v. Virginia ." J.A. 777. Richardson argued that the "state court appear[ed] to have given weight only to the numbers obtained on the [IQ] tests, rather than interpreting all of the data to arrive at [Richardson’s] true IQ," J.A. 754, and failed to adjust the scores based upon "the Flynn effect, the practice effect, and the standard error of measurement," J.A. at 743. With regard to the second prong—the state court’s determination that he had failed to prove significant limitations in two or more of the ten adaptive skill areas—Richardson argued that the state

930 F.3d 591

court’s findings were based on an unreasonable determination of the facts in light of the evidence presented.

The district court reviewed the evidence that Richardson presented to the state court, including the expert testimony on the effect of the SEM, Flynn effect and practice effect on IQ scores, and the lay and expert testimony regarding Richardson’s adaptive skills. Of particular relevance to this appeal, the district court observed that Dr. Hazelrigg, the mental health expert for the State, had "found petitioner was impaired in some of the adaptive skills areas, but ultimately concluded [he] was not mentally retarded." Richardson v. Branker, 769 F. Supp. 2d 896, 926 (E.D.N.C. 2011).

Based upon this evidence, the district court held that the state court’s determination that Richardson had failed to prove significant subaverage intellectual functioning was not an unreasonable application of the law in Atkins or an unreasonable determination of the facts in light of the evidence presented. In doing so, the district court considered all of the evidence—including the testimony regarding the SEM, the practice effect, and the Flynn effect on Richardson’s IQ scores, and testimony regarding Richardson’s adaptive skills and intellectual disability—and held that Richardson:

has not shown the state court clearly erred or acted unreasonably under the circumstances so as to warrant this court substituting its judgment. While this court does not discount factors such as the standard error of measurement, Flynn effect, or practice effect in assessing I.Q. scores, there is no requirement under N.C. Gen. Stat. § 15A-2005 for a court to adjust a defendant’s IQ scores downward for such factors. The state court heard all of the evidence, including testimony on each of these factors, and was entitled to consider and weigh these factors in assessing whether petitioner carried his burden of showing an I.Q. of 70 or below . Notably, in assessing petitioner’s I.Q. score of 73, Dr. John Gorman ... concluded petitioner was not mentally retarded, but was functioning at the borderline level of intellect. Similarly, Dr. Hazelrigg ... concluded petitioner was not mentally retarded and is not now mentally retarded.

Id. at 927 (emphasis added). "Ultimately, in light of all of the evidence presented, including [the IQ test scores] and the expert opinions of Drs. Gorman and Hazelrigg that petitioner was not mentally retarded," the district court held that Richardson "cannot show the MAR court acted unreasonably in determining [Richardson] failed to show he had significantly subaverage general intellectual functioning." Id. And because Richardson was required to show both significantly subaverage general intellectual functioning and significant limitations in two or more of the ten adaptive skill areas, it was unnecessary for the court to address Richardson’s separate challenges to the reasonableness of the state MAR court’s factual findings that Richardson had failed to establish significant limitations in two or more adaptive skill areas. See id. at 927 & n.14.

We affirmed. See Richardson v. Branker , 668 F.3d 128 (4th Cir. 2012). Applying the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we held that "the MAR court’s denial of Richardson’s motion on the basis that he is not mentally retarded was neither based on an unreasonable determination of the facts nor an unreasonable...