Winston v. Kelly

• Citation: 600 F.Supp.2d 717
• Decision Date: 06 March 2009
• Docket Number: Civil Action No. 7:07cv00364.
• Parties: Leon Jermain WINSTON, Petitioner, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent.
• Court: U.S. District Court — Western District of Virginia

600 F.Supp.2d 717

Leon Jermain 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.

March 6, 2009.

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James Moreno, Jennifer L. Givens, Federal Community Defenders Office, Philadelphia, PA, Matthew L. Engle, Charlottesville, VA, 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 Jermain Winston guilty of three counts of capital murder and sentenced him to three death sentences. After exhausting his state court remedies, Winston filed a habeas petition in this court pursuant to 28 U.S.C. § 2254 claiming actual innocence and raising more than thirty other claims. This court rejected all but two of these 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, and the claim that he received ineffective assistance of counsel because his lawyers failed to prepare and present that claim to the jury. Winston v. Kelly, No. 7:07cv-00364, 2008 WL 2234587, at *29 (W.D.Va. May 30, 2008). The Supreme Court of Virginia rejected Winston's mental retardation claim because he procedurally defaulted it, and rejected his related ineffective assistance claim because Winston failed to show that counsel's performance was deficient and failed to show that he suffered any resulting prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Winston v. Warden, ___ Va. ___, ___-___, ___ S.E.2d ___, 2007 WL 678266, at *15-16 (Va. Mar. 7, 2007). This court exercised its perceived discretion to hold an evidentiary hearing to resolve those interrelated claims.

At that hearing, Winston presented new evidence, including an IQ score of 66 that he received as part of a psychological exam in 1997. Since this new IQ score fundamentally alters Winston's ineffective assistance claim and he cannot account for his failure to present it to the Supreme Court of Virginia, this evidence renders that claim unexhausted and procedurally defaulted. The court therefore reviews the new evidence to determine whether Winston is "actually innocent of the death penalty" so as to excuse his procedural default, and concludes that he cannot make the stringent showing actual innocence requires. Accordingly, the court is constrained to consider Winston's ineffective assistance claim as it was fairly positioned before the Supreme Court of Virginia, not as he attempts to reposition it here. Examining Winston's claim in light of the record presented to the Supreme Court of Virginia, the court finds that the Supreme Court of Virginia's adjudication on the merits of Winston's ineffective assistance claim, at least as to Strickland's prejudice prong, was not unreasonable and finds nothing to excuse the procedural default, of his Atkins claim. Accordingly, the court dismisses both claims and denies his petition for habeas corpus.

I.

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. Id. § 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." Id. § 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 intelligence quotient ("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. Va. Code. Ann. § 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. 337.) In carrying out that responsibility Drewry obtained Winston's "high 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. 3-4.) 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. 11-13.) 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 10, 1996, the local screening committee of the Fairfax County Department of Student Services and Special Education ("Special Education Department") issued a report that recommended an additional psychological evaluation for Winston. (Pet'r's Ex. D at 843.) Three months later, on February 5, 1997, a Special Education Department committee determined Winston was eligible for special education due to "mild retardation" and that Winston "demonstrate[d] a reduced rate of intellectual development and a level of academic achievement below that of age peers" and "concurrently demonstrate[d] deficits in adaptive behavior." (App. 69.)

At sentencing, Drewry did not attempt to prove that Winston was mentally retarded and therefore not subject to execution under Atkins. Instead, he attempted to shift the burden of proof to the Commonwealth, arguing that the Commonwealth was required to prove Winston was eligible for the death penalty by showing that he was not mentally retarded. Transcript of Jury Trial Proceedings before The Honorable Mosby G. Perrow, III on June 13, 2003 at 30-31, App. VII at 2937-38, Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004) (Nos. 040686, 040687). The jury found Winston guilty of three counts of capital murder and imposed three death sentences. Winston's direct appeals were unsuccessful. Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004), cert. denied, 546 U.S. 850, 126 S.Ct. 107, 163 L.Ed.2d 120 (2005), reh'g denied, 546 U.S. 1056, 126 S.Ct. 720, 163 L.Ed.2d 617 (2005). Winston then challenged his conviction and death sentence in a state habeas corpus petition raising more than thirty claims, including the claim that, because he is mentally retarded, Atkins bars his execution, and that his counsel were ineffective because they failed to investigate and make this argument at sentencing.

According to Drewry's own account in an affidavit filed in the state habeas proceedings and later in this court, Drewry did not notice or read the records relating to Winston's 1997 classification as mildly retarded. Instead, he forwarded all the records to Dr. Evan Nelson, the clinical psychologist appointed to assist Winston in capital sentencing. Drewry claimed to have been unable to review all the records on his own and "relied...