Williams v. Mitchell, s. 03–3626

• Decision Date: 07 July 2015
• Docket Number: Nos. 03–3626,12–4269.,s. 03–3626
• Citation: 792 F.3d 606
• Parties: Andre WILLIAMS, Petitioner–Appellant, v. Betty MITCHELL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

792 F.3d 606

Andre WILLIAMS, Petitioner–Appellant

v.Betty MITCHELL, Warden, Respondent–Appellee.

Nos. 03–3626

12–4269.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 21, 2015.

Decided and Filed: July 7, 2015.

ARGUED:Alan C. Rossman, Office of the Federal Public Defender/Capital Habeas Unit, Cleveland, Ohio, for Appellant. Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Alan C. Rossman, VICKI Ruth Adams Werneke, Jillian S. Davis, Office of the Federal Public Defender/Capital Habeas Unit, Cleveland, Ohio, for Appellant. Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MOORE, GIBBONS, and ROGERS, Circuit Judges.

MOORE, J., delivered the opinion of the court in which ROGERS, J., joined, and GIBBONS, J., joined in part. GIBBONS, J. (pp. 624–27), delivered a separate opinion concurring in part and in the judgment.

OPINION

KAREN NELSON MOORE, Circuit Judge.

An Ohio jury convicted Petitioner–Appellant Andre Williams of aggravated murder and sentenced him to death. After filing direct appeals and seeking post-conviction relief in state and federal courts, Williams filed a post-conviction petition in Ohio state court pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), arguing that he is ineligible for the death penalty because he is intellectually disabled. The Ohio courts rejected Williams's Atkins petition, and the district court denied Williams's federal habeas petition. On appeal, Williams argues that his trial counsel provided ineffective assistance at the penalty phase for failing to obtain a mitigation specialist to explain his intellectual limitations to the jury, and he argues that his Atkins petition was improperly denied because he is intellectually disabled. For the following reasons, the state court's application of law with regard to whether Williams is intellectually disabled under Atkins was contrary to clearly established Federal law. Accordingly, we VACATE and REMAND so that the district court may grant a CONDITIONAL WRIT OF HABEAS CORPUS prohibiting Williams's execution unless the State reassesses Williams's Atkins petition consistent with this opinion.

I. BACKGROUND

In 1989, Williams was convicted and sentenced to death for murder. Williams filed direct appeals to the Ohio Eleventh District Court of Appeals and the Ohio Supreme Court, both of which affirmed imposition of the death penalty. Williams filed his first petition for post-conviction relief, raising seven claims, but the trial court denied the petition without conducting an evidentiary hearing. On post-conviction appeal, the appellate court affirmed dismissal of Williams's post-conviction petition, and the Ohio Supreme Court declined to exercise jurisdiction.

In his first federal habeas petition, Williams raised thirty-one claims for relief. On March 28, 2003, the district court denied Williams's petition. No. 1:99–cv–2399, R. 45 (D. Ct. Mem. and Order) (Page ID # 68). Relevant here, the court found that Williams's claim that his trial counsel was ineffective for failing to obtain a mitigation specialist or other mental health professional who could have explained his IQ scores and intellectual functioning to the jury was procedurally defaulted. Id. at 82 (Page ID # 149). But the court noted that Williams may be entitled to relief pursuant to Atkins, which was decided after Williams filed his federal habeas petition and which held that execution of mentally retarded individuals violates the Eighth Amendment's ban on cruel and unusual punishments.¹ Id. at 84–85 (Page ID # 151–52). The district court declined to issue a certificate of appealability as to any of Williams's claims. Id. at 117 (Page ID # 184). Williams filed a notice of appeal, and we granted Williams's motion to stay and hold the case in abeyance to allow him to pursue his Atkins claim in state court. See No. 03–3626, R. 16 (6/27/03 Letter); No. 09–3898, R. 8 (9/28/09 Order).

Williams then filed a post-conviction petition in Trumbull County, Ohio, Court of Common Pleas on June 9, 2003 asserting that his death sentence should be nullified because he is intellectually disabled pursuant to Atkins and the Ohio Supreme Court's decision State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011 (2002), which set forth Ohio's standards for determining intellectual disability pursuant to Atkins. Appendix to Appellant Br. (“Appx.”) at A–1 (Atkins Petition at 1). In his five-page petition, Williams asserted that the state trial court should find him intellectually disabled based on collateral estoppel on the grounds that the Ohio Supreme Court and this court have already determined him intellectually disabled, or by taking judicial notice of the trial proceedings. Id. at A–1–4 (Atkins Petition at 1–4). In the alternative, Williams requested an evidentiary hearing and sought leave to conduct discovery and funds for an expert. Id. at A–4 (Atkins Petition at 4). Williams attached to his petition an affidavit from his cousin, Stacey Vail, who noted Williams's deficiencies in mental capacity and adaptive skills up until his incarceration in 1989 when Williams was twenty-one years old. Appx. at A–6 (Ex. A to Atkins Petition).

In response to Williams's petition, the State of Ohio filed a motion to dismiss the petition and/or motion for summary judgment. Appx. at A–14 (State's Mot. to Dismiss and/or SJ). The state attached over 170 pages of exhibits to its motion. Id. at A–50–221 (Exs. to State's Mot. to Dismiss and/or SJ). In response to the state's motion, Williams filed a “Motion Opposing Judgment” in which he again argued that a hearing was necessary to adjudicate fairly his petition. Appx. at A–241 (Williams Mot. Opp. Judgment). Along with his motion, Williams filed school records and psychological reports, which indicated, among other things, that at the age of fifteen Williams had a full-scale IQ score of 67 and the “social age” of a “nine year old with deficiencies in communication, locomotion, occupation and self-direction,” Appx. at A–271–72 (8/31/83 Psychologist Rep. at 2–3), along with his full prison record. Williams also attached a three-page “Preliminary Psychological Evaluation” dated December 9, 2003 from Dr. James Eisenberg, in which Dr. Eisenberg gave his “preliminary opinion” that Williams “d[id] not currently meet the criteria for a diagnosis of mental retardation based on the Lott definition” given his full-scale IQ of 75 per the Wechsler Adult Scale of Intelligence. Appx. at A–253–55 (Eisenberg Prelim. Rep. at 1–3).

Based on this record, the state trial court granted the state's motion for summary judgment without a holding an evidentiary hearing, finding Williams failed to present sufficient evidence to meet the three-factor “Atkins/Lott test.” Appx. at A–284–291 (10/19/04 Tr. Ct. Op. at 6–13). The Ohio Court of Appeals reversed this decision, holding that the trial court impermissibly weighed conflicting evidence, made findings of fact, and relied on “unauthenticated documents submitted by the state that were allegedly handwritten or typed by Williams,” and remanded to the trial court. State v. Williams, 165 Ohio App.3d 594, 847 N.E.2d 495, 499–500 (2006). On remand, the trial court again granted summary judgment without holding an evidentiary hearing, again finding Williams failed to present sufficient evidence to meet any of the three factors under the Atkins/Lott test. Appx. at A–309 (9/11/07 Tr. Ct. Op.). In doing so, the trial court relied largely on the same grounds as in its prior opinion—it gave little weight to or disregarded evidence favoring Williams, while crediting evidence presented by the state. See id. at A–322–33 (9/11/07 Tr. Ct. Op. at 14–25).

This time, the Ohio Court of Appeals affirmed the dismissal of Williams's petition, though it did not accept the trial court's reasoning.

State v. Williams, No. 2007–T–0105, 2008 WL 2582849 (Ohio Ct.App. June 27, 2008). Relying on evidence that the trial court gave little weight or disregarded (e.g., IQ score of 67 and Vail Affidavit, see Appx. at A–322–25 (9/11/07 Tr. Ct. Op. at 14–17)), the court held that Williams met his burden under the third Lott factor—onset of intellectual disability before the age of eighteen. Williams, 2008 WL 2582849, at *5–6. But the appellate court determined that Williams failed to meet the first two Lott factors—“(1) significantly subaverage intellectual functioning[ ][and] (2) significant limitations in two or more adaptive skills.” Id. at *5 (quoting Lott, 779 N.E.2d at 1014 ). The court rested on the fact that these two criteria apply only to Williams's “present functioning,” and evidence of Williams's intellectual functioning and adaptive skills earlier in his life “do not constitute competent evidence from which inferences may be made regarding his present mental capacity.” Id. at *6. After rejecting this evidence, the court held that the sole remaining evidence put forth by Williams—the IQ of 75 in Eisenberg's preliminary report—failed to show that Williams is mentally retarded, and so summary judgment for the state was proper. Id. The court also held that evidence of the underlying crimes and prison records indicated that Williams did not have current limitations in adaptive skills. Id.²

The Ohio Supreme Court declined jurisdiction. Appx. at A–352 (Ohio Sup.Ct.Entry). Williams then filed a second federal habeas petition, arguing that he is ineligible for the death penalty because he is mentally retarded under Atkins. No. 1:09–cv–2246, R. 6 (Pet. for Writ of Habeas Corpus) (Page ID # 177). The federal district court denied Williams's petition under 28 U.S.C. § 2254. No. 1:09–cv–2246, R. 36 (D.Ct.Opinion) (Page ID # 741). In doing so, the district court held that “it was not unreasonable” for the state appellate court to exclude the pre–1989 evidence from its analysis of the first two Lott factors. Id. at 58 (Page ID # 798). The district court also denied Williams's...