Walker v. True

• Citation: 399 F.3d 315
• Decision Date: 17 February 2005
• Docket Number: No. 04-16.,04-16.
• Parties: Darick Demorris WALKER, Petitioner-Appellant, v. William Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee. The Arc of Virginia, Amicus Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

399 F.3d 315

Darick Demorris WALKER, Petitioner-Appellant, v. William Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.

The Arc of Virginia, Amicus Supporting Appellant.

No. 04-16.

United States Court of Appeals, Fourth Circuit.

Argued: December 1, 2004.

Decided: February 17, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: David William Ogden, Wilmer, Cutler, Pickering, Hale & Dorr L.L.P., Washington, D.C., for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: David P. Donovan, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., McLean, Virginia; Lara Ann Englund, Alison J. Nathan, Edward N. Siskel, Eric J. Hougen, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia, for Appellee. Paul M. Smith, Kathleen R. Hartnett, Jenner & Block, L.L.P., Washington, D.C., for Amicus Supporting Appellant.

Before LUTTIG and GREGORY, Circuit Judges, and W. Craig BROADWATER, United States District Judge for the Northern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge BROADWATER joined. Judge GREGORY wrote an opinion concurring in part and dissenting in part.

OPINION

LUTTIG, Circuit Judge:

Petitioner Darick Demorris Walker was convicted of capital murder by a jury in the Circuit Court for the City of Richmond for the killings of Stanley Beale and Clarence Threat within a three-year period. J.A. 253. Consistent with the jury's verdict and sentencing recommendation, the trial judge imposed a sentence of death. J.A. 253-54. Walker's conviction and sentence were affirmed on direct appeal. Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). After unsuccessfully pursuing state post-conviction relief, J.A. 254, Walker filed a federal habeas petition. The district court denied that petition, and Walker appealed. On appeal, Walker asserted, for the first time, that his execution would violate the Eighth Amendment as interpreted by the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We construed this claim as a motion for authorization to file a successive section 2254 petition and granted Walker such authorization. Walker v. True, 67 Fed.Appx. 758, 770-71 (4th Cir.2003); J.A. 61.

On June 11, 2003, Walker filed his successive petition and accompanying exhibits in the district court. J.A. 5-230. The district court dismissed Walker's petition, J.A. 253, and the instant appeal followed. For the reasons set forth below, we hold that the district court erred when it dismissed Walker's petition before holding an evidentiary hearing and, consistent with this determination, vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion.

I.

The procedural posture of Walker's claim before the district court bears on the ultimate disposition of that claim, and we therefore explore it in some detail. Because Atkins was decided after Walker's conviction and sentence became final, that claim has never been presented in state court. Indeed, when we authorized Walker to file a successive petition to raise his Atkins claim, we noted that the district court was "free to dismiss it without prejudice to afford the Commonwealth of Virginia the first opportunity to assess Walker's Atkins claim." Walker, 67 Fed.Appx. at 770-71; J.A. 62. But after our decision authorizing Walker to file his successive petition, Virginia enacted a statutory framework addressing the "presentation of a claim of mental retardation by persons sentenced to death before April 29, 2003." Va.Code § 8.01-654.2. That framework provides that petitioners, such as Walker, who have "completed both a direct appeal and a [state] habeas corpus proceeding... shall not be entitled to file any further habeas petitions in the Supreme Court and [the] sole remedy shall lie in federal court." Id. (emphasis added).

As a consequence of Virginia's statutory framework, Walker presented his Atkins claim for the first time before the district court. Accordingly, that claim is not subject to deference under 28 U.S.C. § 2254(d) because it has never been "adjudicated on the merits" in state court. The district court appeared to review Walker's claim de novo, and we do the same. See Hudson v. Hunt, 235 F.3d 892, 895 (4th Cir.2000) ("Because the claim was not adjudicated on the merits, our review is de novo.").

The district court disposed of Walker's petition by granting the state's motion to dismiss.¹ In ruling on such a motion the district court was obliged to "assume all facts pleaded by" Walker "to be true." Rouse v. Lee, 339 F.3d 238, 248 n. 8 (4th Cir.2003) (holding that such a standard is required in a section 2254 proceeding when the district court grants "the State's motion to dismiss"). Instead of assuming the facts pleaded in Walker's petition to be true, however, the district court found that Walker had "failed to meet his burden of proof in presenting his claim of mental retardation," J.A. 253 (emphasis added), and — as explained in detail below — reached this conclusion by relying on material that was not included in Walker's petition and by either ignoring or discounting the factual allegations in the petition. Indeed, even the state admits that the district court's ruling was "in the nature of a grant of summary judgment." Respondent's Br. at 14. But such a ruling cannot be upheld where, as here, the facts alleged in Walker's petition and supported by his accompanying exhibits demonstrate that several material facts remain disputed.²

A.

While Walker's claim ultimately derives from his rights under the Eighth Amendment, whether he is mentally retarded is governed by Virginia law. As the Supreme Court observed in Atkins, "[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, `we leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.'" 536 U.S. at 317, 122 S.Ct. 2242 (emphasis added).³ Accordingly, whether Walker has "stated a claim" in his petition depends on whether he has set forth facts that, if true, would demonstrate that he is mentally retarded under Virginia law.

Under Virginia law, Walker bears the burden of establishing that he is mentally retarded by a preponderance of the evidence. Va.Code § 19.2-264.3:1.1. "Mentally retarded" is defined 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.

Id. With respect to the "standardized measure of intellectual functioning" referenced in subpart (i), the Virginia Code provides that "the Commissioner of Mental Health, Mental Retardation and Substance Abuse services shall maintain an exclusive list of standardized measures of intellectual functioning generally accepted in the field of psychological testing." Va.Code § 19.2-264.3:1.1(B)(1) (emphasis added).⁴ Thus, Walker must allege that his disability originated before the age of eighteen, and that it is characterized concurrently by a score two standard deviations below the mean on an approved standardized test and that there exist significant limitations in his adaptive behavior.

Walker has set forth facts that, if true, satisfy the elements of Virginia's definition of mentally retarded. Specifically, Walker's petition refers to affidavits where, after recounting evidence of his subaverage intellectual functioning, the limitations in his adaptive behavior, and the developmental origin of his disability, experts conclude that Walker satisfies the statutory definition. See J.A. 11 (declaration of Dr. Weinstein concluding that "[b]ased on my testing of Mr. Walker and my review of [his school] records ... it is my professional opinion that Mr. Walker is mentally retarded according to the criteria set forth in ... the Commonwealth of Virginia in its new statute."); id. 19-20 (declaration of Dr. Sautter concluding that "Darick's cognitive deficits are consistent with mental retardation as that disability is defined by ... the Commonwealth.").

With respect to the intellectual functioning component of the definition, Walker has presented the results from the Wechsler Intelligence Scale for Children-Revised that he was administered in 1984 when he was eleven years old. J.A. 13. According to Walker, the full scale score he received — 76 — is two standard deviations below the mean. Id. 13-14. Walker has also submitted his full scale score of 61 on the General Ability Measure for Adults test (GAMA) that was administered in May of 2003. That score is indisputably two standard deviations below the mean. J.A. 27.

Walker has also set forth facts pertaining to the limitations in his adaptative behavior both before and after he was eighteen years old. With respect to his conceptual skills, Walker has identified "deficiencies in ... language, reading, and writing," J.A. 20-21 (referencing school records), an inability to handle money, "difficulty dealing with...