HULL, Circuit Judge:
In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully alleged that he is mentally retarded and ineligible
Although Georgia already prohibited executing mentally retarded defendants at the time of Hill's trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia's reasonable doubt standard of proof in O.C.G.A. § 17-7-131 violated the Eighth Amendment.
The national consensus against executing the mentally retarded that gave birth to the Atkins prohibition was a consensus that Georgia started by enacting the very same statute—§ 17-7-131(c)(3), (j)—that petitioner Hill now claims violates Atkins by using a reasonable doubt standard. In Hill's state habeas appeal in 2003, and after Atkins, the Georgia Supreme Court held that the reasonable doubt standard in § 17-7-131 comports with the Eighth and Fourteenth Amendments. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 621-22 (2003) ("Hill III"). The Georgia Supreme Court recently reaffirmed its holding in Hill III that Georgia's beyond a reasonable doubt standard for proving mental retardation is constitutional. See Stripling v. State, 289 Ga. 370, 711 S.E.2d 665, 668 (2011) ("We have previously addressed this very issue, and we now reiterate our prior holding that Georgia's beyond a reasonable doubt standard is not unconstitutional.") (citing Hill III, 587 S.E.2d at 620-22).
In this appeal under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified in 28 U.S.C. § 2254, the sole legal issue before this en banc court is:
In § 2254 cases, federal courts do not review state courts' decisions de novo. Rather, Congress restricted federal review to whether the state court's decision is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" as of the date of the state court decision. 28 U.S.C. § 2254(d)(1) (emphasis added). Discussing § 2254(d)(1) specifically, and reversing federal circuit courts for granting habeas relief, the Supreme Court has admonished: "A legal principle is `clearly established' within the meaning of this provision only when it is embodied in a holding of this [Supreme] Court." Thaler v. Haynes, 559 U.S. ___, 130 S.Ct. 1171, 1173, 175 L.Ed.2d 1003 (2010); see Berghuis v.
As the Georgia Supreme Court correctly noted, there is no holding in Atkins, or any Supreme Court decision, invalidating a reasonable doubt standard for mental retardation claims. Just the opposite is true. Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded. Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009). And in the 219-year history of our nation's Bill of Rights, no United States Supreme Court decision has ever suggested, much less held, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right.
It is important to the burden of proof issue that the whole story of this case be told. So we start at the beginning.
In 1988, the Georgia General Assembly passed the nation's first statute prohibiting the execution of mentally retarded persons. Specifically, O.C.G.A. § 17-7-131(c)(3) and (j) state:
O.C.G.A. § 17-7-131(c)(3), (j) (emphasis added).
One year later, in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the United States Supreme Court concluded that the Eighth Amendment
Then in 2002, the United States Supreme Court overruled Penry in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and declared that the Eighth Amendment's "cruel and unusual punishment" provision prohibited the execution of mentally retarded offenders. Id. at 315-21, 122 S.Ct. at 2249-52.
Although the Supreme Court in Atkins recognized a national consensus against executing mentally retarded persons, it said that there was a notable lack of consensus on how to determine which offenders are mentally retarded:
Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. The Supreme Court added that although the states' "statutory definitions of mental retardation are not identical, [they] generally conform to the clinical definitions" established by the American Association on Mental Retardation ("AAMR," now known as the American Association on Intellectual and Developmental Disabilities) and the American Psychiatric Association ("APA"). Atkins, 536 U.S. at 317 n. 22, 122 S.Ct. at 2250 n. 22. The AAMR's and APA's definitions of mental retardation contain three basic requirements: (1) significantly subaverage general intellectual functioning, as reflected by an IQ generally about 70 or below; (2) limitations in adaptive functioning; and (3) onset before age 18. Id. at 308 n. 3, 122 S.Ct. at 2245 n. 3.
In Atkins, the Supreme Court was careful not to fix the burden of proof or to impose rigid definitions of mental retardation. Instead, the Court left it to the states to develop "appropriate" procedures for mental retardation determinations:
Id. (quotation marks and brackets omitted). As the Georgia Supreme Court noted in Hill III, the Supreme Court in Atkins "made clear that it was entrusting the states with the power to develop the procedures necessary to enforce the newly recognized federal constitutional ban." Hill III, 587 S.E.2d at 620 (citing Atkins, 536 U.S. at 317, 122 S.Ct. at 2250).
Later, in Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009), the Supreme Court pointed out that Atkins "did not provide definitive procedural or substantive guides for determining
We turn to how the Georgia reasonable doubt statute and Atkins intersect with Hill's case.
In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, "Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop." Hill III, 587 S.E.2d at 618. Hill "mocked the victim as he beat him." Id. Even locked up in jail for one murder, Hill continued to kill.
A jury unanimously convicted Hill of malice murder and unanimously imposed a death sentence. See Hill v. State, 263 Ga. 37, 427 S.E.2d 770, 774 (1993) ("Hill I"). Despite the fact that O.C.G.A. § 17-7-131(c)(3) and (j) already exempted mentally retarded persons from execution at the time of Hill's trial, Hill did not assert at trial that he was mentally retarded. To the contrary, Hill called clinical psychologist William Dickinson, who testified that Hill's IQ was 77 and he was not mentally retarded.
On direct appeal in 1993, the Georgia Supreme Court affirmed Hill's malice murder conviction and death sentence. Hill I, 427 S.E.2d at 772. On direct appeal, Hill made no claim of mental retardation.
In 1994, Hill filed a state habeas petition. Again he made no mental retardation claim. But five years after trial, Hill amended his petition to allege, inter alia, that he is mentally retarded. In 1997, the state habeas court granted Hill a writ of habeas corpus for the limited purpose of conducting a jury trial on Hill's mental retardation claim, using a preponderance of the evidence standard.
The State appealed, and the Georgia Supreme Court reversed. Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52 (1998) ("Hill II").
On remand, the state habeas court ordered mental evaluations, conducted an evidentiary hearing, and then denied all of Hill's claims. In a May 2002 order, the state habeas court concluded that Hill had not proven he was mentally retarded under
As to the first prong, the state habeas court found that Hill established beyond a reasonable doubt his "significantly subaverage general intellectual functioning."
As to the second prong, however, the state habeas court found Hill failed to show beyond a reasonable doubt that he had "impairments in adaptive behavior" such as "communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety." The state habeas court noted Hill's (1) extensive work history and "apparent ability to function well in such employment," (2) disciplined savings plans to purchase cars and motorcycles, (3) military service, (4) social life, (5) weak but sufficient writing skills, (6) ability to care for himself in home living except in periods of stress, and (7) health problems with seizures. The state habeas court did not discuss the third prong of the mental retardation test, which is onset before age 18.
After the Supreme Court issued Atkins in June 2002, Hill moved the state habeas court to reconsider its denial in light of Atkins. Granting Hill's motion, the state habeas court in November 2002 concluded that a preponderance of the evidence standard should be applied to Hill's mental retardation claim. Although the state habeas court did not retreat from its earlier finding that Hill failed to show he was mentally retarded under the reasonable doubt standard, the court stated it would
The State appealed. In 2003 the Georgia Supreme Court again reversed the state habeas court. See Hill III, 587 S.E.2d at 618. The Georgia Supreme Court concluded: (1) Hill could have had a jury trial on mental retardation under O.C.G.A. § 17-7-131(c)(3) at the time of his original guilt trial in 1991 if he had asked for one, but he waived that right; (2) Hill was only entitled to have the state habeas court—not a jury—assess his mental retardation claim;
The Georgia Supreme Court concluded that Georgia's reasonable doubt standard was constitutionally acceptable for mental retardation claims. Id. The Georgia Supreme Court explained that O.C.G.A. § 17-7-131's reasonable doubt standard reflected an acceptable state legislative choice to define as mentally retarded those defendants who are able to prove their mental retardation beyond a reasonable doubt:
Id. at 622 (citations omitted). The Georgia Supreme Court vacated the state habeas court's November 2002 order (granting Hill's motion for reconsideration and finding that Hill had established he was mentally retarded by a preponderance of the evidence). Id. at 623. The Georgia Supreme Court remanded Hill's case to the state habeas court for entry of an order denying Hill's state habeas petition. See id. at 618, 622-23. On remand, the state habeas court reinstated its May 2002 order, finding Hill failed to prove mental retardation beyond a reasonable doubt. The state habeas court's final order does not contain a preponderance of the evidence finding either way.
In 2004, Hill filed a § 2254 petition, alleging that Georgia's reasonable doubt standard for mental retardation violates the Eighth and Fourteenth Amendments. The district court denied relief. Hill appealed.
Hill's § 2254 petition and appeal are governed by AEDPA. Owen v. Sec'y, Dep't of Corr., 568 F.3d 894, 907 (11th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1141, 175 L.Ed.2d 978 (2010). "Under AEDPA, our review of a final state habeas decision is `greatly circumscribed and is highly deferential to the state courts.'" Payne v. Allen, 539 F.3d 1297, 1312 (11th Cir.2008) (quoting Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.2002)). Under 28 U.S.C. § 2254(d)(1), as amended by AEDPA, a state prisoner cannot obtain federal habeas relief unless he can show the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law. . . ." 28 U.S.C. § 2254(d)(1) (emphasis added). In this case, the only question is whether the Georgia Supreme Court's decision—that the reasonable doubt standard for mental retardation claims is constitutional—is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id.
In 2010-11 alone, the Supreme Court has reversed circuit appellate courts in ten decisions for not adhering to AEDPA's requirements. See Bobby v. Dixon, 565 U.S. ___, 132 S.Ct. 26, ___ L.Ed.2d ___ (2011); Bobby v. Mitts, 563 U.S. ___, 131 S.Ct. 1762, 179 L.Ed.2d 819 (2011); Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011); Felkner v. Jackson, 562 U.S. ___, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011); Premo v. Moore, 562 U.S. ___, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011); Richter, ___ U.S. ___, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Lett, ___ U.S. ___, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010); Berghuis, ___ U.S. ___, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010); Haynes, ___ U.S. ___, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Smith v. Spisak, 558 U.S. ___, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010). We briefly review a few of those decisions.
Starting with Haynes, the Supreme Court instructed: "A legal principle is `clearly established' within the meaning of this provision only when it is embodied in a holding of this Court." Haynes, 130 S.Ct. at 1173 (citing Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)) (emphasis added); see also Owen, 568 F.3d at 907 ("`Clearly established Federal law' means the holdings, not the dicta, of the United States Supreme Court.").
In Haynes, the Supreme Court unanimously reversed the Fifth Circuit's decision, which had concluded that a state court judge in ruling on a Batson challenge must reject a demeanor-based explanation for a challenge unless that judge personally observed and recalls the aspect of the prospective juror's demeanor on
A month later, in Berghuis v. Smith, the Supreme Court unanimously reversed the Sixth Circuit's decision, which had concluded that in determining whether a jury venire was drawn from a fair cross-section of the community, "courts should use the comparative disparity test to measure underrepresentation" where the allegedly excluded group is small, and the defendant's comparative disparity statistics demonstrate that African-Americans' representation in the County Circuit Court venires is "unfair and unreasonable." Berghuis, 130 S.Ct. at 1391 (citing Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir.2008)). In granting federal habeas relief after the Michigan Supreme Court had denied relief, the Sixth Circuit relied on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
Reversing the Sixth Circuit, the United States Supreme Court stated, "[O]ur Duren decision hardly establishes—no less `clearly' so—that Smith was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community." Berghuis, 130 S.Ct. at 1392. The Supreme Court added: "[N]either Duren nor any other decision of this Court specifies a method or test courts must use to measure the representation of distinctive groups in jury pools." Id. at 1393.
In Lett, the Supreme Court again reversed a Sixth Circuit decision concluding that the Michigan Supreme Court had unreasonably applied Supreme Court precedent regarding the Double Jeopardy Clause. 130 S.Ct. at 1860. The Supreme Court stated:
Id. at 1862 (citations and quotation marks omitted). The Supreme Court emphasized that "AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Id. at 1866.
Richter concerned a Ninth Circuit decision holding that the California Supreme Court had unreasonably applied the Supreme Court's Strickland v. Washington ineffective-counsel test by not concluding that the petitioner's trial counsel was ineffective for failing to consult with blood-evidence experts. Richter, 131 S.Ct. at 783. In reversing, the Richter Court lectured the court of appeals on the deference owed to state court decisions pursuant to § 2254(d)(1):
Richter, 131 S.Ct. at 786-87 (emphasis added). Phrased "more simply and maybe a little more clearly: if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir.2011).
And in Moore, as in Richter, the Supreme Court reversed a Ninth Circuit decision finding that a state court had unreasonably applied Strickland. Moore, 131 S.Ct. at 737-39. The Supreme Court took issue particularly with the court of appeals' conclusion that the state court's decision— that Moore's counsel was not ineffective for failing to file a motion to suppress before advising Moore to plead guilty— was contrary to Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Fulminante was not an ineffective assistance of counsel case, and because it did not speak to Strickland's prejudice standard or contemplate prejudice in the plea bargain context, the state court's "finding of constitutionally adequate performance under Strickland cannot be contrary to Fulminante." Moore, 131 S.Ct. at 743. The Supreme Court emphasized that the court of appeals' decision "transposed [Fulminante] into a novel context; and novelty alone—at least insofar as it renders the relevant rule less than `clearly established'—provides a reason to reject it under AEDPA." Id.
In another recent case reversing the en banc Ninth Circuit's grant of § 2254 habeas relief, the Supreme Court admonished again that AEDPA's § 2254(d)(1) standard "is a difficult to meet" and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt" and that "the petitioner carries the burden of proof." Pinholster, 131 S.Ct. at 1398. The California Supreme Court had summarily denied petitioner Pinholster's penalty-phase ineffective assistance claim in state habeas proceedings "`on the substantive ground that it is without merit.'" Id. at 1396-97, 1402. The Supreme Court reversed the en banc determination that the California Supreme Court had unreasonably applied Strickland, concluding that the federal court of appeals had not applied the requisite AEDPA deference to the California Supreme Court's decision. Id. at 1401-11.
Then in Dixon, the Supreme Court reversed a Sixth Circuit decision concluding that the Ohio Supreme Court had, among other things, unreasonably applied Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), when it found that the petitioner's murder confession was voluntary. Dixon, 2011 WL 5299458, No. 10-1540, slip op. at 4-6. The Supreme Court noted that, under AEDPA, "a state prisoner seeking a writ of habeas corpus from a federal court `must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id., slip op. at 1 (quoting Richter, 131 S.Ct. at 786-87) (emphasis
These seven § 2254(d)(1) habeas decisions emphasize that (1) petitioner Hill must show a "clearly established" federal law in the form of a United States Supreme Court holding before this Court can find a Georgia Supreme Court decision unreasonable, and (2) this Court cannot find that highest state court's habeas decision unreasonable unless "no fairminded jurist could agree with that [state] court's decision." Dixon, slip op. at 1. This AEDPA "standard of `contrary to, or involving an unreasonable application of, clearly established Federal law' is `difficult to meet,' because the purpose of AEDPA is to ensure that federal habeas relief functions as a `guard against extreme malfunctions in the state criminal justice systems,' and not as a means of error correction." Greene v. Fisher, 565 U.S. ___, 132 S.Ct. ___, 38, ___ L.Ed.2d ___ (2011) (quoting Richter, 131 S.Ct. at 786 (internal quotation marks, citation, and brackets omitted)).
Hill does not challenge the state habeas court's finding that Hill has not shown he is mentally retarded beyond a reasonable doubt. The AEDPA "deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear." Loggins, 654 F.3d at 1220. Rather, he contends that the Georgia Supreme Court's Hill III decision upholding Georgia's statutory reasonable doubt standard is contrary to the holding in Atkins. Hill's position is that Georgia's statute (which was at the vanguard of the "national consensus" leading the Supreme Court to abolish the execution of the mentally retarded in Atkins) is now unconstitutional under the authority of Atkins—even though Atkins does not require any specific burden of proof and explicitly leaves such procedural matters to the states. For several reasons, Hill "read[s] far too much into" Atkins, and other cases he cites for that matter. Haynes, 130 S.Ct. at 1172.
First, the Supreme Court in Atkins made no reference to, much less reached a holding on, the burden of proof. See Haynes, 130 S.Ct. at 1173; Owen, 568 F.3d
Atkins's decision to leave the task to the states not only renders the federal law not "clearly established," but also makes it "wholly inappropriate for this court, by judicial fiat, to tell the States how to conduct an inquiry into a defendant's mental retardation." In re Johnson, 334 F.3d 403, 405 (5th Cir.2003) (noting that Atkins explicitly left the procedures governing its implementation to the states).
In Bies, the Supreme Court in 2009 reaffirmed that "[its] opinion [in Atkins] did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation `will be so impaired as to fall [within Atkins' compass.]'" Bies, 129 S.Ct. at 2150. Bies thus makes it clear that Atkins did not prescribe the burden of proof. Bies even reiterated that Atkins "left to the States the task of developing appropriate ways to enforce the constitutional restriction." Id.
Atkins simply did not consider or reach the burden of proof issue, and neither has any subsequent Supreme Court opinion. We do not gainsay the possibility that the Supreme Court may later announce that a reasonable doubt standard for establishing the mental retardation exception to execution is constitutionally impermissible. But under AEDPA, we are not concerned with
Second, in the absence of any Supreme Court burden of proof holding in mental retardation execution cases, the Georgia Supreme Court reasonably looked to the Supreme Court's insanity decisions in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (rejecting due process challenge to reasonable doubt standard for establishing insanity plea), and Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (recognizing Eighth Amendment prohibits execution of insane persons and allowing states to decide ways to enforce that constitutional restriction). The Georgia Supreme Court determined, inter alia, that "a mental retardation claim is comparable to a claim of insanity" in that "both relieve a guilty person of at least some of the statutory penalty to which he would otherwise be subject." Hill III, 587 S.E.2d at 621. Both Leland and Ford lend enough support to the Georgia Supreme Court's decision that we cannot say "no fairminded jurist could agree with that court's decision." Dixon, 132 S.Ct. 26.
At the time of Leland, Oregon was the only state that required a defendant to establish a plea of insanity beyond a reasonable doubt. Nonetheless, in Leland the Supreme Court determined that that fact was not dispositive and that Oregon's reasonable doubt standard for insanity pleas was constitutional, stating:
Leland, 343 U.S. at 798, 72 S.Ct. at 1007 (footnote, quotation marks, and citation omitted) (emphasis added).
Hill relies on Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), which held that an Oklahoma law that required a defendant to prove incompetence to stand trial by clear and convincing evidence violated the Due Process Clause. Id. at 366-69, 116 S.Ct. at 1383-84. In Hill III, the Georgia Supreme Court reasonably concluded that the insanity cases of Leland and Ford are more closely analogous to the burden of proof standard in Georgia's mental retardation statute than is the mental incompetency case of Cooper. See Hill III, 587 S.E.2d at 621-22.
First, Cooper emphasized that (1) the Supreme Court had historically and consistently recognized that "the criminal trial of an incompetent defendant violates due process"; and (2) the historical common law standard of proof for incompetency in both English and American cases was preponderance of the evidence. Cooper, 517 U.S. at 354-56, 116 S.Ct. at 1376-77 (emphasis added). In contrast, there is no historical right (in the Eighth Amendment or elsewhere) of a mentally retarded person not to be executed. And since the constitutional right itself is new, there is no historical tradition regarding the burden of proof as to that right. As recently as 1989, Penry refused to bar the execution of the mentally retarded. Atkins was based not on historical tradition or the Due Process Clause, but on the contemporary national consensus that reflected "the evolving standards of decency" that informed the meaning of the Eighth Amendment. Atkins, 536 U.S. at 311-12, 122 S.Ct. at 2247. Indeed, Georgia's reasonable doubt standard for establishing a mental retardation exception to the death penalty, which was enacted twenty-three
Hill argues that (1) Atkins prohibits the execution of mentally retarded persons, (2) a person who meets the preponderance of the evidence standard is more likely than not mentally retarded, and (3) thus Georgia's reasonable doubt procedural rule impermissibly burdens and effectively undermines the Eighth Amendment substantive right of the mentally retarded not to be executed.
As noted earlier, in the 219-year history of our nation's Bill of Rights, no Supreme Court decision has ever held, or even implied, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right. Because there is no "clearly established" federal law supporting Hill's position, AEDPA mandates that we not overturn the Georgia Supreme Court's denial of Hill's constitutional challenge to Georgia's statutory reasonable doubt standard.
Atkins itself does not support Hill's argument. Atkins did not bestow a substantive Eighth Amendment right to a fixed and rigid definition of "mentally retarded persons." Indeed, various states use different definitions of intellectual functioning (some draw the line at an IQ of 75 or below, some at 70 or below, others at 65 or below)
It is undisputed that Georgia's statutory definition of mental retardation is consistent with the clinical definitions cited in Atkins. Compare O.C.G.A. § 17-7-131(a)(3), with Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. at 2245 n. 3. Thus, contrary to the dissents' contentions, this is not a case about the categorical exclusion of the mildly mentally retarded or any other group from the Atkins prohibition. Instead, it is about Georgia's procedure for determining who is mentally retarded, which is a matter distinct from the Eighth Amendment issue decided in Atkins. See Atkins, 536 U.S. at 317, 122 S.Ct. at 2250; cf. Walker v. True, 399 F.3d 315, 319 (4th Cir.2005) ("While Walker's claim ultimately derives from his rights under the Eighth Amendment, whether he is mentally retarded is governed by Virginia law."). To argue otherwise is to argue that federal courts, not the states, have the responsibility under Atkins for promulgating the procedures that will be used to determine mental retardation.
In any event, because Atkins never said, or even hinted at (much less held), what procedures are or are not "appropriate" for implementing the prohibition Atkins recognized, Atkins cannot possibly provide "clearly established" federal law for Hill's claims. To accept Hill's argument would require us not only to abandon the deference AEDPA demands, but also to ignore the clear language of Atkins itself about who is to decide what procedures are to be used to determine mental retardation.
Additionally, Hill focuses on Georgia's burden of proof procedure and ignores the many other procedural protections afforded under Georgia's statute and processes. Looking solely to one aspect of Georgia's procedures, without placing them in context, is inconsistent with Ford, where the Supreme Court evaluated Florida's process as a whole.
Georgia law also guarantees Hill the right: (1) not to be sentenced to death except by unanimous verdict, with no judicial override possible; (2) to a full and fair plenary trial on his mental retardation claim, as part of the guilt phase of his capital trial; (3) to present his own experts and all other relevant evidence; (4) to cross-examine and impeach the State's experts and other witnesses; (5) to have a neutral factfinder (the jury, if Hill had elected to have mental retardation decided during the guilt phase, and a judge if otherwise) decide the issue; (6) to question prospective jurors about their biases related to mental retardation; (7) to have jurors decide mental retardation without being informed that a finding of mental retardation precludes the death penalty and without being informed of the defendant's criminal record; (8) to orally argue before the factfinder; and (9) to appeal any adverse mental retardation determination. Within the bounds of evidentiary admissibility, there is virtually no limit to the evidence a Georgia defendant can present in support of his mental retardation claim. Thus, the reasonable doubt standard is but one aspect of a multifaceted fact-finding process under Georgia law. This is not to say what the ultimate outcome of the constitutional issue may or should be in future non-AEDPA cases, but only illustrates further how Hill's challenge to the burden of proof standard should not be viewed in isolation.
As did the Atkins Court, Justice Powell's concurring opinion in Ford made clear the refusal to clearly establish any precise limit on a state's fact-finding procedures for determining the insanity bar to execution, aside from a few core due process rights. See Ford, 477 U.S. at 427, 106
The Supreme Court in Atkins, as in Ford, announced an Eighth Amendment prohibition on executions in specified circumstances but never purported to decide or prescribe how states should procedurally implement that prohibition. Atkins left the states substantial leeway in enacting procedures to determine whether a capital defendant is exempt from execution because he is mentally retarded. And Georgia has exercised that leeway by setting the IQ level at 70, by affording a capital defendant the multiple and significant rights outlined above, and by determining that the risk of error due to malingering or other factors is substantial and that there is a need for a robust burden of proof. This potential for malingering is evidenced in this case (1) where Hill's initial expert (clinical psychologist William Dickinson) initially testified Hill had an IQ of 77 and was not mentally retarded, and (2) even though Georgia provided a mental retardation bar to execution since 1988, Hill never claimed mental retardation at trial, on direct appeal, or in his first state habeas petition. In fact, the state habeas record documents Hill's (1) extensive work history and ability to function well; (2) disciplined savings plans to purchase cars and motorcycles; (3) military service; and (4) active social life. This is not to diminish the critical importance of the Atkins right not to be executed if mentally retarded. It is only to say that the Georgia Supreme Court's decision was not contrary to "clearly established" federal law and for that reason AEDPA bars our reversing it.
Hill argues that Georgia's burden of proof statute will inevitably result in the execution of some mentally retarded defendants because they might be able to prove they are mentally retarded by a preponderance of the evidence but not beyond a reasonable doubt. From this Hill extrapolates that the beyond a reasonable doubt standard is contrary to Atkins because it will result in the execution of some offenders who are mentally retarded but cannot prove it beyond a reasonable doubt. There are fundamental flaws in Hill's argument.
First, Hill's risk of error argument, like his other claims, ignores the fact that Atkins disavowed any intent to establish a nationwide procedural or substantive standard for determining mental retardation. See Atkins, 536 U.S. at 317, 122 S.Ct. at 2250; Bies, 129 S.Ct. at 2150. Notably too, Hill isolates Georgia's burden of proof standard and ignores all of the many other procedures in Georgia law favorable to a defendant, as outlined above, that assist a jury in accurately determining whether a defendant is mentally retarded.
Second, Hill's risk of error inquiry asks and answers the wrong question. Instead of asking whether the decision of the Georgia Supreme Court was contrary to clearly established federal law as determined by the Supreme Court, it asks whether, under de novo review, the Georgia procedural requirement goes as far as it could to enforce the substantive constitutional prohibition the Supreme Court announced in Atkins. Because the Supreme Court has never considered that question, or even a similar one, it is necessarily a
A third critical flaw in Hill's argument is that a risk of error exists with any burden of proof. Every standard of proof allocates some risk of an erroneous factual determination to the defendant and therefore presents some risk that mentally retarded offenders will be executed in violation of Atkins. The adjudication of all facts always involves a "margin of error. . . which both parties must take into account." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (quotation marks omitted). In any proceeding to determine whether a defendant is mentally retarded, and no matter what the burden of proof, "the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions." Id. at 370, 90 S.Ct. at 1076 (Harlan, J., concurring).
Two kinds of fact determination risks are possible when an offender alleges that he is mentally retarded. See id. at 370-71, 90 S.Ct. at 1076. The first is that the trier of fact will conclude that the offender is mentally retarded when, in fact, he is not. The second is that the trier of fact will conclude that the offender is not mentally retarded when, in fact, he is.
Although the preponderance of the evidence standard may present a smaller risk of the latter kind of error, even under that standard there is a risk that the trier of fact will erroneously conclude that an offender is not mentally retarded when, in fact, he is. Consequently, under Hill's reasoning, even a preponderance of the evidence standard will result in the execution of those offenders that Atkins was designed to protect because it does not eliminate the risk that the trier of fact will conclude that the offender is not mentally retarded when, in fact, he is. It only decreases the risk of that kind of erroneous conclusion. That necessarily would mean that those 28 states that require the defendant to prove mental retardation either by clear and convincing evidence (Arizona, Colorado, Delaware, Florida, and North Carolina) or by a preponderance of the evidence standard (23 states) have violated the Eighth Amendment because there will always be some risk of error in those two standards. The necessary result of Hill's reasoning is that the burden of proof must be placed on the state and that the state must prove beyond any doubt that an offender is not mentally retarded. No state uses that standard. The effective result of Hill's argument, then, is that every state's death penalty statute or case law procedure is unconstitutional because none of them requires the state to prove the absence of mental retardation beyond a reasonable doubt. Or, to take Hill's argument to its logical conclusion, beyond all doubt.
Indeed, under the reasoning Hill employs, virtually any state rule that allocates to the defendant at least some risk that the trier of fact will erroneously conclude that he is not mentally retarded would be insufficient to enforce the constitutional prohibition of Atkins. All kinds of rules serve to allocate the risk of an erroneous decision—procedural rules that determine who can participate in the presentation of evidence and argument, evidentiary rules that determine what evidence the trier of fact can consider, and decisional rules like the standard of proof at issue here. See Alex Stein, Constitutional Evidence Law, 61 Vand. L.Rev. 65, 67-68 (2008). Taken
And there is no reason to limit the insistence that all risk of error be borne by the state just to mental retardation cases. If Hill's no-risk reasoning is accepted, it would give rise to similar claims about determining insanity and competency to be executed. After all, unless the state is required to rule out those two mental conditions beyond all doubt, there will be, as Hill's argument goes, some who are convicted and punished, even executed, although they were insane at the time of the crime, see Leland, 343 U.S. at 790, 72 S.Ct. at 1002, or were mentally incompetent at the time of the execution, see Ford, 477 U.S. at 399, 106 S.Ct. at 2595. There is no end to the position that Hill espouses.
Fourth, there is no evidence in this record to support the proposition that the reasonable doubt standard triggers an unacceptably high error rate for mental retardation claims. Whether a burden of proof scheme will result in an unacceptably high error rate is, in part, an empirical question that we are ill-equipped to measure in the first instance. There is no data on this question in this record.
In an effort to circumvent this lack of any evidence on the error rate, one dissent cites 22 reported capital cases in Georgia where mental retardation claims were raised. Infra, at 89-91 (Dissenting opinion of Barkett, J.). The dissent argues that out of those cases, "only one defendant has ever successfully established his mental retardation beyond a reasonable doubt." Id. at 90. The dissent argues that this "confirms just how extraordinarily difficult it is for an offender to meet the beyond a reasonable doubt standard." Id. at 89. Those purported statistics and that reasoning are faulty for multiple reasons.
First, the 22 case statistics. We note that: (1) in 5 of the 22 cases cited by the dissent, the defendant received a life sentence, not a death sentence, see Foster v. State, 283 Ga. 47, 656 S.E.2d 838 (2008); Torres v. State, 272 Ga. 389, 529 S.E.2d 883 (2000); Lyons v. State, 271 Ga. 639, 522 S.E.2d 225 (1999); Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997); Williams v. State, 262 Ga. 732, 426 S.E.2d 348 (1993); (2) in one of the cases, Heidler v. State, the defendant admitted at trial that he introduced no evidence he was mentally retarded and told the jury it had nothing to consider as to mental retardation, 273 Ga. 54, 63, 537 S.E.2d 44, 55 (2000); (3) in another of the cases, Foster v. State, the defendant's conviction was reversed because the trial court failed to charge the jury on the statutory definition of mental retardation, 283 Ga. 47, 49-50, 656 S.E.2d 838, 841 (2008); (4) in another of the cases, Head v. Stripling, the Georgia Supreme Court affirmed the state habeas court's order granting habeas relief and ordering a retrial on mental retardation because the State suppressed evidence favorable to the defendant's mental retardation claim, 277 Ga. 403, 407-10, 590 S.E.2d 122, 126-28 (2003); and (5) in two of the cases, Morrison v. State, 276 Ga. 829, 830, 583 S.E.2d 873, 875 (2003), and Rogers v. State, 282 Ga. 659, 659, 653 S.E.2d 31, 34 (2007), the defendants were granted a trial on mental retardation under a preponderance standard, which they failed to meet. That leaves only 13 reported
Second, the dissent's focus on only reported appellate decisions skews its analysis. The dissent overlooks the fact that in Georgia mental retardation is tried in the guilt phase of capital cases, not the penalty phase. When a Georgia capital defendant is found guilty but mentally retarded, he automatically obtains a life sentence and (1) may not appeal at all, or (2) may appeal as to issues that do not require discussion of the mental retardation issue, which was decided in his favor. Also unreflected in the dissent's data are cases where a defendant offers evidence of mental retardation, but also proves he is innocent of the crime, thereby obtaining a verdict of not guilty (instead of guilty but mentally retarded), precluding any appeal. And, of course, defendants who have substantial evidence of mental retardation may plead guilty but mentally retarded, with the State's acquiescence, and not appear in the reported appellate decisions for that reason. The dissent's listing of 13 reported cases where a death sentence was imposed far from captures the universe of mental retardation issue cases. That Georgia has had the mental retardation bar for 23 years and the dissent can cite only 13 reported cases of a defendant not prevailing, if anything, suggests just the opposite of the dissent's proposition.
Third, the dissent proffers no evidence that the defendants in those 13 reported cases actually are mentally retarded, or would be found to be mentally retarded under a preponderance of the evidence standard. There is no evidence at all of that.
Fourth, even if one were to consider the dissent's skewed data, the fact remains that reported cases in Georgia actually show that judges and juries do find defendants guilty but mentally retarded under Georgia's proof beyond a reasonable doubt standard. See, e.g., Hall v. Lewis, 286 Ga. 767, 692 S.E.2d 580 (2010) (defendant convicted of murder and sentenced to death; trial court in state habeas held defendant had proven his mental retardation beyond a reasonable doubt and found trial counsel ineffective for not investigating and presenting evidence of defendant's mental retardation at guilt/innocence phase); Walker v. State, 282 Ga. 774, 782, 653 S.E.2d 439, 447 (2007), abrogated on other grounds by Ledford v. State, 289 Ga. 70, 85, 709 S.E.2d 239, 254, cert. denied, ___ U.S. ___, 132 S.Ct. 556, 2011 WL 4344614 (Nov. 7, 2011) (defendant convicted and sentenced to death, but in doing proportionality review, the Georgia Supreme Court's opinion stated that defendant's co-defendant Griffin was sentenced to life and "has been adjudicated mentally retarded, making him ineligible for a death sentence"); Marshall v. State, 276 Ga. 854, 583 S.E.2d 884 (2003) (defendant charged with malice murder but convicted of felony murder and involuntary manslaughter; jury found defendant guilty but mentally retarded as to felony murder and involuntary manslaughter); Chauncey v. State, 283 Ga.App. 217, 641 S.E.2d 229 (2007) (after bench trial, judge found defendant guilty but mentally retarded on eight charges of aggravated child molestation and aggravated sodomy); Laster v. State, 234 Ga.App. 16, 505 S.E.2d 560 (1998) (jury found defendant guilty but mentally retarded on charge of first-degree arson); Moody v. State, 205 Ga.App. 376, 422 S.E.2d 70 (1992) (jury found defendant guilty but mentally retarded on charges of child molestation and aggravated child molestation). All of those cases are examples of defendants being found mentally retarded under the proof beyond a reasonable doubt standard the dissent implies precludes such a finding.
Because the United States Supreme Court has never stated, in Atkins or elsewhere, that a reasonable doubt standard for mental retardation violates the Eighth Amendment, the dissents attempt to avoid this pivotal fact by making what are, in effect, procedural due process arguments. The primary dissent argues that Georgia's burden of proof procedure, in practical operation, eviscerates the substantive Eighth Amendment right under Atkins. Infra, at 76 (Dissenting opinion of Barkett, J.). The dissent states that "the question before the Supreme Court of Georgia was whether Georgia's burden of proof eviscerates the substantive constitutional right of the mentally retarded not to be executed" under Atkins. Id. In this regard, the dissent argues that: (1) "Georgia . . . cannot indirectly authorize the execution of mentally retarded offenders through a procedure that in practical operation accomplishes that result"; and thus (2) the Georgia Supreme Court's approval of the beyond a reasonable doubt standard for mental retardation claims is contrary to clearly established federal law, as announced by the Supreme Court in Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191 (1911), and Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). Infra, at 76, 92 (Dissenting opinion of Barkett, J.).
Although this en banc case and the Georgia Supreme Court decision under scrutiny are about the Eighth Amendment, the separate procedural due process provenance of this dissent's argument is evident from the Bailey and Speiser cases upon which it relies. Neither Bailey nor Speiser are Eighth Amendment cases (or capital cases, or mental retardation cases). Bailey concerned a Thirteenth Amendment challenge to a state statute criminalizing the breach of a personal service contract. Bailey, 219 U.S. at 227, 245, 31 S.Ct. at 146, 153. Speiser resolved a First Amendment and Fourteenth Amendment challenge to a state tax exemption scheme that required applicants to prove they did not advocate the overthrow of the government. Speiser, 357 U.S. at 514-17, 78 S.Ct. at 1336-37. The Speiser Court stated specifically that "[t]he question for decision. . . is whether [the state's] allocation of the burden of proof, on an issue concerning freedom of speech, falls short of the requirements of due process." Id. at 523, 78 S.Ct. at 1341.
But the wholly separate issue of procedural due process under the Due Process Clause, however formulated, is not in the case before us. Rather, this case is about Hill's substantive constitutional right under the Eighth Amendment. It is telling that the parties never mentioned either Bailey or Speiser in their briefs to the Georgia Supreme Court.
By attempting to transpose the holdings of Bailey (a Thirteenth Amendment case) and Speiser (a First Amendment case) into the Eighth Amendment context, the dissent makes the same error the Supreme Court identified in Moore. In Moore, as
The two other dissents in this case, (Dissenting opinions of Wilson, J., and Martin, J.), rely primarily on Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), which addressed the petitioner's (1) incompetence-to-be-executed claim and (2) his argument that the state court failed to provide the minimum procedural due process requirements of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Panetti, 551 U.S. at 948, 127 S.Ct. at 2855.
Panetti (1) does not involve Atkins or mental retardation, (2) does not discuss burdens of proof, and (3) was issued four years after the Georgia Supreme Court's decision in Hill III. Each factor alone, and certainly collectively, is sufficient to demonstrate Panetti's inadequacy for showing that the Georgia Supreme Court's decision in Hill III is contrary to, or an unreasonable application of, clearly established federal law.
But there is something more. Panetti, if anything, shows why Hill's claim fails here. Panetti relied on the prior decision of Ford, which had announced both a substantive Eighth Amendment right and a specific procedural due process requirement under the Due Process Clause for incompetency claims: the petitioner must have an opportunity to present evidence and argument. See Ford, 477 U.S. at 424-25, 106 S.Ct. at 2609 (concurring opinion of Powell, J.) (stating that "the question in this case is whether Florida's procedures for determining petitioner's sanity comport with the requirements of due process," finding Florida's procedures do not require the factfinder to consider the petitioner's materials, and concluding they thus deprive the prisoner of an "opportunity to be heard"); see also Panetti, 551 U.S. at 948-49, 127 S.Ct. at 2855-56 (noting Ford "identifies the measures a State must provide when a prisoner alleges incompetency to be executed," "sets the minimum procedures a State must provide to a prisoner raising a Ford-based competency claim," and "constitutes `clearly established' law for purposes of § 2254").
As to the minimum procedures for incompetence-to-be-executed claims, Ford announced that the "basic [procedural] requirements" include an opportunity to submit "evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the State's own psychiatric examination." Ford, 477 U.S. at 427, 106 S.Ct. at 2610 (concurring opinion of Powell, J.). In Panetti, the state court appointed its own experts but did not give petitioner Panetti an "opportunity to submit expert evidence in response
Panetti is a straightforward application of AEDPA. The Court in Panetti concluded that: (1) Supreme Court precedent in Ford clearly established not only the substantive Eighth Amendment right not to be executed if incompetent but also certain minimum procedural due process guidelines under the Due Process Clause for bringing the substantive claim, and (2) the state court procedures afforded Panetti did not satisfy Ford's procedural requirement of an opportunity to present expert evidence. Here, by contrast, Atkins established only a substantive Eighth Amendment right for the mentally retarded, not any minimum procedural due process requirements for bringing that Eighth Amendment claim. Importantly too, Panetti does not mention the burden of proof at all and thus did not establish federal law as to the burden of proof. Thus, the Georgia Supreme Court's decision about the burden of proof cannot be contrary to, or an unreasonable application of, the controlling Supreme Court precedent in Atkins, or Panetti for that matter. AEDPA does not permit us, as the dissents' approach would have us do, to import a procedural burden of proof requirement into Atkins (that expressly declined to adopt one) from Panetti (that did not mention the burden of proof), and then find that a state's preexisting procedural standards are an unreasonable application of that imported standard.
Even if the State of Georgia has somehow inappropriately struck the balance between two competing interests in § 17-7-131(c)(3), and even if the Georgia Supreme Court's decision upholding that statute is considered incorrect or unwise by a federal court, AEDPA precludes a federal court from imposing its will, invalidating that state statute as unconstitutional, and granting federal habeas relief in the absence of "clearly established" federal law, which the United States Supreme Court admonishes is a holding of that Court. There is no United States Supreme Court case holding that a reasonable doubt burden of proof for claims of mental retardation violates the Eighth Amendment. Atkins did not ask or answer that question.
Whether we agree with the Georgia Supreme Court or not, AEDPA requires us to affirm the denial of Hill's § 2254 petition. We do not decide whether Georgia's burden of proof is constitutionally permissible, but only that no decision of the United States Supreme Court clearly establishes that it is unconstitutional. Simply put, Hill has failed to show "that no fairminded jurist could agree" with the Georgia Supreme Court's decision about the burden of proof, and thus this Court is "without authority to overturn the reasoned judgment of the State's highest court." Dixon, 132 S.Ct. 26.
TJOFLAT, Circuit Judge, specially concurring:
Georgia law provides that defendants accused of murder may avoid the death penalty if they prove that they are mentally retarded beyond a reasonable doubt. O.C.G.A. § 17-7-131(c)(3). Hill could have raised this defense during the guilt phase of his 1991 criminal trial; for some reason, he did not. Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52, 52 (1998). The Georgia courts forgave this obvious procedural default and permitted Hill to argue his mental-retardation defense in a post-conviction proceeding. Id. at 53. The Georgia courts did not vacate Hill's sentence and, in effect, re-open his criminal trial. The Georgia Supreme Court rejected the post-conviction trial court's initial decision to issue a limited writ of habeas corpus and hold a jury trial on the mental-retardation defense, which would have presumably reopened his conviction for this limited proceeding. Id. at 53-54. Rather, the court permitted Hill to raise the issue without a jury during the post-conviction proceeding. Id. It was during that proceeding that Hill argued that Georgia's beyond-a-reasonable-doubt standard conflicted with the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
The court and I part ways at the starting point of its analysis. The court accepts and responds to Hill's argument as he presents it—that Georgia's beyond-a-reasonable-doubt standard somehow violates
Burdens of proof are procedural rules governed by norms of procedural due process. See Medina v. California, 505 U.S. 437, 446-48, 112 S.Ct. 2572, 2577-78, 120 L.Ed.2d 353 (1992) (deciding whether shifting the burden of proof to the defendant to demonstrate that he is incompetent to stand trial violates a defendant's due process rights); Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979) ("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt . . . ." (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970))). The Eighth Amendment inquiry in Atkins, in contrast, had nothing to do with due process. The Court's holding was based solely on the "evolving standards of decency" inquiry into whether executing the mentally retarded was excessive punishment. Atkins, 536 U.S. at 311-12, 122 S.Ct. at 2247. So, by challenging the beyond-a-reasonable-doubt standard, Hill's claim is not properly an Eighth Amendment claim, but one cognizable under due process. As such, Hill's real complaint is not that he is mentally retarded, and that the state post-conviction court's contrary conclusion was erroneous. Hill instead argues that the state post-conviction proceeding utilized an unfair procedure for determining whether he is mentally retarded.
With Hill's argument framed in this way, the forum in which Hill made his argument is of paramount importance. We would of course address his due process claim if the allegedly foul process occurred during his criminal trial. E.g., Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1256 (11th Cir.2002) (addressing, under 28 U.S.C. § 2254, the petitioner's claim that the state trial court violated his procedural due process rights because he was incompetent to stand trial). If Hill had raised his mental-retardation defense at trial, and raised this challenge to the beyond-a-reasonable-doubt standard there, he could claim that his conviction and sentence were tainted by a violation of his due process rights.
Due process violations during state post-conviction proceedings do not, however, form the basis of habeas relief. Carroll v. Sec'y, Dep't of Corr., 574 F.3d 1354, 1365 (11th Cir.2009); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir.2004). The habeas statute permits federal courts to grant habeas relief to state prisoners on the ground that they are "in custody pursuant to the judgment of a State court" in violation of federal law. 28 U.S.C. § 2254(a). State post-conviction proceedings are not the "judgment" that resulted in the prisoner's detention. See Carroll, 574 F.3d at 1365 ("[A] challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment—i.e., the conviction itself . . . ."). Post-conviction proceedings are instead "civil in nature and are not part of the criminal proceeding itself." Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987).
The alleged due process violation in Hill's case occurred during a state post-conviction proceeding, and not during his criminal trial.
Hill should instead have used this alleged due process violation as a means for obtaining an evidentiary hearing in federal court. A hypothetical application of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 28 U.S.C. § 2254, to Hill's case will demonstrate why this is so.
As my previous discussion implies, Hill's only claim cognizable for habeas relief is that he is mentally retarded and cannot constitutionally be executed pursuant to the Eighth Amendment. Because the Georgia courts determined that he was not mentally retarded, Hill must first overcome 28 U.S.C. § 2254(d)'s deferential hurdle. Cullen v. Pinholster, 536 U.S. ___, 131 S.Ct. 1388, 1398-1400, 179 L.Ed.2d 557 (2011) (holding that federal courts must first determine whether a petitioner satisfies § 2254(d) before they may consider new evidence acquired during a federal hearing). This determination was of a factual nature, and therefore falls under § 2254(d)(2)'s instruction that federal courts may not grant habeas relief unless the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The district court, or this court on appeal, would review the evidence introduced at Hill's post-conviction hearing and determine if the state court's ultimate finding of fact—that Hill was not mentally retarded—was "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (explaining that § 2254(d)(1)'s "unreasonable application" clause bars federal habeas relief unless the state court's decision was "objectively unreasonable," which is not synonymous with "clear error" or other "independent review" by the federal court) (citing Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 1521, 146 L.Ed.2d 389 (2000)).
If the federal court found the Georgia courts' determination unreasonable, the federal court would then decide, in its independent judgment, whether Hill actually
At this point, Hill could have argued that the district court was required to hold an evidentiary hearing because the beyond-a-reasonable-doubt standard deprived him of a "full and fair hearing." See Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1334 (11th Cir.2004) (quoting Townsend, 372 U.S. at 313, 83 S.Ct. at 757); see also Quince, 360 F.3d at 1262-63 (stating that the state post-conviction judge's conflict of interest could have been a basis for arguing that the state post-conviction proceeding was not "full and fair").
BARKETT, Circuit Judge, dissenting, in which MARCUS and MARTIN, Circuit Judges, join:
Although Georgia was the first state to declare that the mentally retarded should not be executed, it is the only one to guarantee precisely the opposite result by requiring offenders to prove beyond a reasonable doubt that they are mentally retarded.
The fallacy underlying the majority's opinion is its belief that because Atkins "made no reference to, much less reached a holding on, the burden of proof," there is no "clearly established" Supreme Court precedent that explicitly tells us that the beyond a reasonable doubt standard is unconstitutional. Thus, the majority holds that it must defer to the state court's decision upholding this standard. Taken to its logical conclusion in this case, such deference permits states to adopt procedures that effectively exclude nearly every mentally retarded offender from the protection of Atkins. This deference requires so detailed and demanding a level of specificity in Supreme Court holdings that it eliminates any federal review whatsoever. Indeed, the State's position, endorsed by the majority, is that Atkins does not preclude the State from setting the bar of proof as high as it wishes or defining mental retardation to include only those persons whose IQ falls below 30, a level which includes only 4% of the mentally retarded, thereby leaving 96% of all recognized mentally retarded persons subject to execution. This cannot be squared with the command of Atkins, which protects all of the mentally retarded from execution— whether their mental retardation is mild or severe. And when a state court decision eviscerates the substantive constitutional right the Supreme Court has explicitly recognized, it is contrary to that Supreme Court precedent.
For the reasons amplified below, I believe that Supreme Court precedent has clearly established that no State is constitutionally permitted to execute mentally retarded offenders. Nor does the State have unfettered discretion to establish procedures
The majority first errs in suggesting that Atkins did not clearly establish that all of the mentally retarded are protected from execution. Contrary to both the majority's assertion that "Atkins did not bestow a substantive Eighth Amendment right to a fixed and rigid definition of mentally retarded persons" and the State's contention that it could, if it chose to do so, limit the protection of Atkins to those with an IQ of 30 or below, the Supreme Court extended the Eighth Amendment right to the entire class of mentally retarded, which it recognized in Atkins ranges from those with mild to profound mental retardation.
Relying on the medical consensus embodied in the clinical manuals of the American Psychiatric Association (APA) and the American Association on Mental Retardation (AAMR),
Moreover, within the universe of all mentally retarded individuals, 89% fall in the mildly mentally retarded range, a fact the Supreme Court recognized many years before Atkins was decided. See Cleburne Living Ctr., 473 U.S. at 442 n. 9, 105 S.Ct. 3249. See also DSM-IV at 41-43 (classifying 89% of the universe of mentally retarded as mild, 7% as moderate, and the remaining 4% as severe or profound). Indeed, Atkins specifically recognized that "[m]ild mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70." 536 U.S. at 309 n. 3, 122 S.Ct. 2242. More importantly, the Court had previously recognized that the mildly mentally retarded were the only members of the class of all mentally retarded who would be likely to reach the point of sentencing in criminal cases. See Penry v. Lynaugh, 492 U.S. 302, 333, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (citing ABA Standards for Criminal Justice 7-9.1, commentary, p. 460 (2d ed. 1980)). Thus, of those who are mentally retarded, it is the mildly mentally retarded who not only are entitled to Atkins protection, but are most likely to need it.
The state court's decision, however, endorses the use of a standard of proof so high that it effectively limits the constitutional right protected in Atkins to only those who are severely or profoundly mentally retarded. In holding that Atkins applies only to "those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt," Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 622 (2003), Georgia's determination is directly contrary to Atkins's command to protect from execution all of the mentally retarded. That a mildly mentally retarded individual's "mental deficiencies" are less "significant" than the deficits of one who is severely or profoundly mentally retarded does not alter the indisputable fact that both are mentally retarded and entitled to the protection of the Eighth Amendment. Indeed, the offender in Atkins himself was only mildly mentally retarded. Atkins, 536 U.S. at 308, 122 S.Ct. 2242. Thus, when the Supreme Court announced that "the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender," id. at 321, 122 S.Ct. 2242, there can be no doubt that it was extending this protection to all of the mentally retarded, whether classified as mild or "significant enough to be provable beyond a reasonable doubt." Head v. Hill, 587 S.E.2d at 622.
The majority also errs in holding that Atkins does not place any constitutional restraint on state procedures pertaining to the execution of the mentally retarded. In Atkins, the Supreme Court not only prohibited the execution of any mentally retarded
Notwithstanding the command to enforce the constitutional restriction, the majority holds that states have complete discretion to choose any procedures to govern the determination of mental retardation. Not only is this position based on a flawed reading of Atkins, it is also contrary to Bailey v. Alabama, which clearly establishes that if a State's procedures transgress a substantive constitutional right, "in their natural operation," those procedures are unconstitutional. 219 U.S. 219, 239, 245, 31 S.Ct. 145, 55 L.Ed. 191 (1911).
In Bailey, a defendant successfully challenged, as a violation of the Thirteenth Amendment, a state procedural rule. Id. at 244, 31 S.Ct. 145. Although the Court in Bailey recognized that states generally possess the power to prescribe procedures affecting their own laws, the Court went on to hold that this state power is limited when federal constitutional rights are at stake:
Id. at 239, 31 S.Ct. 145 (emphasis added). Succinctly put, "[w]hat the state may not do directly it may not do indirectly." Id. at 244, 31 S.Ct. 145. "If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment." Id. Likewise here, because the State cannot directly authorize the execution of the mentally retarded, it cannot do so indirectly by creating a statutory burden of proof which assures the same result. And whether a state procedural or evidentiary rule transgresses a constitutional command is judged by whether "the natural operation of the statute" produces the proscribed result, not whether the statute or its enactors betray such an intention. Id. Although the Georgia state court in this case was constrained by these binding Supreme Court holdings, it utterly failed to "correctly identif[y]" this precedent, Williams, 529 U.S. at 406, 120 S.Ct. 1495, and instead "applied a rule that contradicts" it. Putman, 268 F.3d at 1241,
In Speiser v. Randall, the Court again imposed express constitutional limits on state procedural rules implicating federal constitutional rights in the specific context of confronting a state law placing the burden of proof on an individual. 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
More recently, in Ford v. Wainwright, the Court reiterated the constitutional limitation on a State's power to prescribe procedures affecting the determination of a substantive constitutional right. 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). In Ford, the Court was asked to resolve two questions: "whether the Eighth Amendment prohibits the execution of the insane" and, if so, whether one is entitled to a hearing on a claim of insanity. Id. at 405, 106 S.Ct. 2595. In addressing the adequacy of the State's procedures to determine sanity, a majority of the Court first noted that if the right was merely a state-created one, the only question would be whether the State's procedures effected the State's own policy of protecting the insane from execution. Id. However, a majority of the Court explained the adequacy of a State's procedures must be viewed in a completely different light if "the Constitution places a substantive restriction on the State's power to take the life of an insane prisoner."
In sum, by holding that "Atkins does not require any specific burden of proof and explicitly leaves such procedural matters to the states" without limitation, the majority improperly defers to a state court ruling that is in direct conflict with Bailey v. Alabama and its progeny. Under these cases, a State cannot create procedures that effectively eviscerate a substantive constitutional right, but rather "must provide procedures which are adequate to safeguard against infringement of [the] constitutionally protected right[]." Speiser, 357 U.S. at 521, 78 S.Ct. 1332.
Thus, the question before the Supreme Court of Georgia was whether Georgia's burden of proof eviscerates the substantive constitutional right of the mentally retarded not to be executed. Rather than answering the question, as Bailey requires, of whether Georgia's standard of proof necessarily results in that which Atkins has held is constitutionally prohibited, the state court wholly sidestepped the requisite analysis.
The state court's erroneous decision, to which the majority defers, instead was based on inapplicable Supreme Court precedent, further depriving the state court decision of AEDPA deference. See 28 U.S.C. § 2254(d). Rather than relying on the clearly established law of Bailey, Speiser, and Ford, the state court looked to the Supreme Court's decision in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In that case, the Supreme Court held that the statutory requirement of proof beyond a reasonable doubt for the state-created affirmative defense of insanity did not violate the federal constitution. Leland, 343 U.S. at 799, 72 S.Ct. 1002. The Supreme Court upheld Oregon's standard of proof expressly because the affirmative defense was exclusively a state-created right and did not involve any federal constitutional protection. Id. at 798, 72 S.Ct. 1002. Simply put, there was no constitutional right at stake in Leland. Thus, Leland is inapposite on its own terms where the right at issue is one secured by the federal constitution. Where, as in this case, a constitutionally protected right—the Eighth Amendment—is at stake, Bailey, Speiser, and Ford, and not Leland, direct the analysis and require a different result.
The Supreme Court of Georgia's decision fails to recognize that when a constitutional right is at issue, a State cannot chose a process that will effectively gut that right. And the majority condones this disregard of Supreme Court law by simply asserting that because Atkins did not expressly establish a particular standard of proof, the State can choose any procedural scheme it wishes. Clearly established Supreme Court law forbids this result.
Requiring the mentally retarded to prove their mental retardation beyond any
For any factual question, "[t]he more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision." Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 283, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).
Moreover, not only is the risk of error allocated overwhelmingly to the offender, but it is also enlarged exponentially by the highly subjective nature of the inquiry into mental retardation, making it even clearer that the reasonable doubt standard unquestionably will result in the execution of those offenders that Atkins protects. Mental retardation is a medical condition that is diagnosed only through, among other things, a subjective standard that requires experts to assess intellectual functioning and to interpret the meaning of behavior long into the offender's past. Given the imprecise nature of the mental retardation determination, "the possibility of mistaken factfinding inherent in all litigation," Speiser, 357 U.S. at 526, 78 S.Ct. 1332 (emphasis added), becomes a near-certainty in this context.
Prior to its decision in Atkins, the Supreme Court had already expressed its doubt that psychiatric conditions could ever be proved beyond a reasonable doubt. In discussing the determination of an individual's mental condition in the context of civil commitment, the Court recognized that "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether [a litigant] could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous . . . . The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations." Addington,
The determination of mental retardation—generally characterized as significantly subaverage intellectual functioning accompanied by significant deficits in adaptive skills that manifested before the age of eighteen
An individual's intellectual functioning is measured through various standardized tests, the results of which are subject to variable interpretation.
This assessment also necessarily "looks backwards—past even the time of the crime and back into the developmental period," United States v. Hardy, 762 F.Supp.2d 849, 881 (E.D.La.2010), which may be as many as thirty years, as for Hill. According to professional standards, a proper retrospective analysis entails a "longitudinal approach of adaptive behavior that involves multiple raters, very specific observations across community environments. . ., school records, and ratings by peers in the development process." Thomas v. Allen, 614 F.Supp.2d 1257, 1290 (N.D.Ala.2009) (quoting AAIDD, User's Guide: Mental Retardation: Definition, Classification and Systems of Support 17-20 (2007) ("AAIDD User's Guide")), aff'd, 607 F.3d 749 (11th Cir.2010). A clinician conducting this retrospective diagnosis must assess a "thorough social history" of the individual, including "investigat[ing]
Where the proof must be beyond a reasonable doubt, common sense tells us that requiring reliance on these unavoidably incomplete and subjective sources of information renders the Atkins claimant's job a near-impossible task. Compounding the difficulty of this inherently subjective diagnosis is that all of the relevant proof will be presented to a judge or jury via the dueling views of mental health experts who have evaluated subtle and often contradictory aspects of the offender's behavioral history, often times through second-or third-hand accounts of a long distant past not subject to direct observation. Because of the subjectivity of both the diagnosis and the documentation of the offender's childhood, experts are bound to disagree about whether an offender is mentally retarded. Obviously, the less severe an individual's mental retardation, the more susceptible his condition is to differing interpretations by the experts. For these offenders, the result of the experts' dispute about whether the offender falls just within or just outside the ambit of mental retardation is some quantum of irreducible doubt—which in Georgia amounts to a death sentence.
Indeed, the Supreme Court discussed at length how Atkins himself was unable to convince a jury and the Virginia state courts that he was mildly mentally retarded because of the disagreement between his expert and the state's expert on the meaning of his intellectual functioning and behavioral history. See Atkins, 536 U.S. at 308-09 n. 4, n. 5, n. 6, 122 S.Ct. 2242. Despite the defense expert's testimony that Atkins had a full-scale IQ of 59 and was only the second capital defendant, out of forty, that the expert had ever found to meet the criteria for mental retardation, the state's expert opined that Atkins was not mentally retarded but of "average intelligence, at least," id. at 309, 122 S.Ct. 2242, and explained Atkins's abominable academic performance by saying he "did poorly because he did not want to do what he was required to do," id. at 309 n. 6, 122 S.Ct. 2242. And although the dissenting justices on the Virginia Supreme Court rejected the state's expert's opinion that "Atkins possesses average intelligence as `incredulous as a matter of law,'" id. at 310, 122 S.Ct. 2242 (quoting Atkins v. Commonwealth, 260 Va. 375, 534 S.E.2d 312, 323 (2000)), the majority of the state supreme court refused to excuse Atkins from execution "merely because of his IQ score," id. (quoting Atkins v. Commonwealth, 534 S.E.2d at 321).
Likewise, the proceedings in Hill's case illustrate the inherent challenge of proving the fact of mental retardation beyond a reasonable doubt, again particularly for the mildly mentally retarded. After a lengthy hearing, the state habeas trial court found that Hill had proven beyond a reasonable doubt that he had an IQ indicating mild mental retardation. Yet, it also found that Hill had not demonstrated sufficient "deficits in adaptive skills functioning" beyond a reasonable doubt, only because there was no unanimity of opinion by the experts. Virtually all of the testifying experts personally met with Hill and reviewed essentially the same documentation, yet they disagreed about the meaning of Hill's behavior during his developmental period. Thus, although the state habeas court ultimately found that
Moreover, as the trial proceedings in both Atkins's and Hill's cases demonstrate, it is apparent that mildly mentally retarded offenders—89% of the universe of all mentally retarded
These adaptive abilities are frequently mischaracterized by judicial factfinders as evidence that the individual is not retarded. Indeed, this Court and the Fifth Circuit have recognized that mildly mentally retarded individuals are capable of holding jobs, driving cars, paying bills, taking care of their families, and so forth. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010); Wiley v. Epps, 625 F.3d 199, 217 (5th Cir.2010); see also Holladay v. Allen, 555 F.3d 1346, 1363 (11th Cir.2009) (defendant's expert "cogently explained" that "some of what Alabama points to as strengths are activities that an individual with mild mental retardation is capable of performing"). Therefore, the existence of the fact of mental retardation, especially in the case of mild mental retardation, will almost always be open to some doubt.
Indeed, a review of published Georgia state court cases adjudicating mental retardation in the capital context confirms just how extraordinarily difficult it is for an offender to meet the beyond a reasonable doubt standard.
No State has the power to deny citizens any of their federal constitutional rights. Atkins has recognized the federal constitutional right of mentally retarded offenders
WILSON, Circuit Judge, dissenting, in which MARTIN, Circuit Judge, joins:
The majority today not only reaches the wrong answer, it asks the wrong question. Suppose that, instead of a beyond-a-reasonable-doubt standard, the State of Georgia required mentally retarded death-row inmates to prove their Atkins
We are not asking whether the Supreme Court has determined that the Constitution requires a particular burden of proof for Atkins claims; it plainly has not. We are not asking whether the Supreme Court has left it to states to draw the exact boundaries and define the precise contours of the right announced in Atkins; it plainly has. Our job, instead, is simply to ask whether it is beyond fair-minded disagreement that the boundaries applied by the State of Georgia in this case run afoul of Supreme Court holdings, including that of Atkins itself.
I believe that it is, and I endorse the substance of Judge Barkett's dissent. However, I part company with Judge Barkett in that I tend to see this as an "unreasonable application"—instead of a "contrary to"—case under AEDPA and, therefore, conceptualize our inquiry as follows.
Atkins declared a federal constitutional right, but left it to the individual states to define that right's exact boundaries— thereby creating a zone of discretion for state action.
Atkins relied, in large part, on a recently developed national consensus against executing every class of mentally retarded persons. 536 U.S. at 313-16, 122 S.Ct. at 2248-50. But recognizing that there may be "serious disagreement[s]" about determining exactly "which offenders are in fact retarded," and that "[n]ot 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," the Court declared: "As was our approach in Ford v. Wainwright, with regard to insanity, `we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'" Id. at 317, 122 S.Ct. at 2250 (alterations in original) (citing 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 2599, 2605, 91 L.Ed.2d 335 (1986) (holding that the Constitution forbids execution of the insane)) (internal citation omitted). Consequently, Ford is our guide for understanding of what is, and what is not, an "appropriate way[] to enforce" the Atkins constitutional restriction.
Upon turning to the cited portions of Ford, we discover that the Supreme Court's delegation to the states has limits. After determining that it is unconstitutional to execute an insane person, the Court addressed what was required of states in the setting their own procedures. See Ford, 477 U.S. at 416-17, 106 S.Ct. at 2605 (plurality opinion). It began by confirming that states should have substantial discretion in choosing their methods, stating that "a full trial on the issue of sanity" was not required to "protect the federal interests" at stake. See id. And it specifically recognized that "some high threshold showing on behalf of the prisoner" may be "a necessary means to control the number of nonmeritorious or repetitive claims of insanity." Id. at 417, 106 S.Ct. at 2605. But after acknowledging that states must have flexibility in determining who is, and who is not, legally insane, the Court's instructions culminated with this clear and forceful mandate:
Id. (emphases added). I believe Judge Barkett's opinion demonstrates beyond any reasonable dissent how Georgia's procedures cannot be squared with this explicit admonition. And if there was any doubt about how those dual imperatives interact with our current deferential standard of review under AEDPA, it was resolved by the Supreme Court's example in Panetti v. Quarterman, 551 U.S. at 954, 127 S.Ct. at 2859.
In Panetti, the Supreme Court—in a materially indistinguishable posture from that which we occupy today—addressed whether Texas's procedures for applying Ford's general constitutional prohibition
The Supreme Court in Atkins unequivocally held that the Constitution prohibits the execution of mentally retarded persons. 536 U.S. at 321, 122 S.Ct. at 2252. And it unequivocally invoked its approach in Ford. Id. at 317, 122 S.Ct. at 2250. Moreover, as Judge Barkett's opinion demonstrates, there are several other unimpeachable—albeit general—principles of constitutional law that must be brought to bear in our determination of where Atkins's constitutional floor was set and what exactly it proscribes. In particular, I find the majority's attempt to ignore the guidance of cases such as Cooper v. Oklahoma, 517 U.S. 348, 366-69, 116 S.Ct. 1373, 1382-84, 134 L.Ed.2d 498 (1996) (holding that state law requiring defendant to prove incompetence to stand trial by clear-and-convincing evidence violated the Due Process Clause), and Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323 (1979) (holding that the burden of proof for involuntary civil commitment must exceed a preponderance of the evidence) entirely unavailing; in Ford, the Supreme Court explicitly referenced the procedures governing these parallel proceedings as "instructive analogies" that inform states' choices of how to appropriately enforce Ford's constitutional mandate. 477 U.S. at 416-17 & n. 4, 106 S.Ct. at 2605 (plurality opinion).
As the Supreme Court did in Panetti we must consider all relevant clearly established legal rules and standards to make a substantive determination, through the lens of the reasonable jurist, as to
The beyond-a-reasonable doubt standard is patently inappropriate in the Atkins context. Since the majority invokes the useful, but imperfect parallel of cases dealing with burdens of proof and mental illness, I rely upon the words of Chief Justice Burger, speaking for a unanimous Supreme Court, to illustrate the point:
Addington, 441 U.S. at 430, 99 S.Ct. at 1811.
Just like a psychiatric diagnosis of mental illness, the psychological diagnosis of mental retardation deals not with "specific, knowable facts," but, "in contrast, is to a large extent based on medical `impressions' drawn from subjective analysis and filtered through the experience of the diagnostician." What is more, unlike a diagnosis of mental illness, which deals solely with the defendant's mental state today, a diagnosis of mental retardation relies on the defendant's mental capacity years, if not decades, in the past. See, e.g., O.C.G.A. § 17-7-131(a)(3) (defining mental retardation as requiring intellectual deficiency during a person's "developmental period"). Moreover, since in reality a mildly retarded defendant can only prove an Atkins claim using expert medical testimony, I am struck by the gross disparity between the certainty communicated to the factfinder by that type of expert opinion—a reasonable degree of medical certainty— and that required by Georgia's Atkins burden of proof—proof beyond any reasonable doubt. What alchemy might allow a mildly retarded Atkins petitioner to transform these imprecise, subjective, and retrospective elements into a successful constitutional claim in Georgia is beyond my imagination.
Whatever standard the Supreme Court may one day set, even with the shield of AEDPA deference, Georgia's current burden of proof does not honor the command of Atkins. As a consequence, I respectfully dissent.
MARTIN, Circuit Judge, dissenting:
Nearly forty-five years ago, the Supreme Court warned: "[w]ith faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and
As the Supreme Court did in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to the constitutional ban against executing the insane, in Atkins it left "to the State[s] the task of developing appropriate ways to enforce the constitutional restrictions upon" executing the mentally retarded.
Panetti in turn instructs us how to measure this "appropriateness" under AEDPA review. Indeed, Panetti is instructive for Mr. Hill's case in many ways.
Atkins is an Eighth Amendment decision about whether, not when, a person may be executed. Thus, the determination of whether a capital defendant is mentally retarded as a predicate to imposing a death sentence "calls for no less stringent standards than those demanded in any other aspect of a capital proceeding." Ford, 477 U.S. at 411-12, 106 S.Ct. at 2603 (plurality opinion). This means Georgia's mental retardation procedures must meet not only Due Process requirements, but also the Supreme Court's clearly established Eighth Amendment principles demanding more reliability and accuracy in capital proceedings.
Second, like Hill, Panetti involves a substantive Eighth Amendment prohibition against carrying out a sentence of death against a certain class of prisoners—the mentally retarded in Hill and the insane in Panetti. Third, in both cases AEDPA bars federal habeas corpus relief unless the state court decision is contrary to, or involves an unreasonable application of,
In light of the similarity of Mr. Hill's case to Panetti, I cannot agree with the majority's conclusion that AEDPA's deference standard precludes us from finding that Georgia's beyond a reasonable doubt standard is not contrary to or an unreasonable application of clearly established Supreme Court precedent. Just because Atkins, like Ford, announced a general standard does not mean that Georgia's application of Atkins to Mr. Hill cannot be contrary to, or involve an unreasonable application of, Atkins's constitutional restriction against executing mentally retarded defendants. On this issue, Panetti is clear:
Panetti, 551 U.S. at 953, 127 S.Ct. at 2858 (citations and quotation marks omitted). As the Supreme Court did in Panetti, I would hold here that "the factfinding procedures upon which the [state] court relied were not adequate for reaching reasonably correct results, or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth" of whether a defendant is eligible to be executed. Id. at 954, 127 S.Ct. at 2859 (citation and quotation marks omitted). For all the reasons set forth by Judge Barkett, and because the Eighth Amendment demands heightened reliability and accuracy, I conclude that this standard has plainly been violated in Mr. Hill's case.
This is so because the beyond a reasonable doubt standard for proving mental retardation is fundamentally at odds with the basis for the holding in Atkins. As detailed in Judge Barkett's opinion, the state habeas trial court, after an extensive evidentiary hearing concerning mental retardation, has already determined that Mr. Hill is more likely than not mentally retarded, yet he cannot prove beyond a reasonable doubt that he is mentally retarded. Executing an inmate fitting this description does not serve the penological purposes of the death penalty identified in Atkins itself: deterrence and retribution. Atkins, 536 U.S. at 318-20, 122 S.Ct. at 2251. Atkins instructs that because the mentally retarded are less morally culpable, and because our Eighth Amendment jurisprudence "seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate." Id. at 319, 122 S.Ct. at 2251. Atkins also plainly tells us that "executing the mentally retarded will not measurably further the goal of deterrence." Id. at 320, 122 S.Ct. at 2251.
To conclude, Georgia's beyond a reasonable doubt standard of proof is contrary to the Supreme Court's longstanding recognition that death is different, and for that reason requires heightened reliability in the determinations underlying capital punishment. Specifically, the Supreme Court has clearly established that "the Eighth Amendment requires a greater degree of accuracy . . . than would be true in a noncapital case." Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117, 124 L.Ed.2d 306 (1993) (citation omitted).
While federal habeas courts must accord state court decision substantial deference under AEDPA, we must be vigilant to "guard against extreme malfunctions in the state criminal justice systems." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quotation omitted). In my judgement, execution of a person who has already proven he is more likely than not mentally retarded, but who is unable to prove his mental retardation beyond a reasonable doubt, is an "extreme malfunction" that warrants the protection of the Great Writ.
In 1997, in Hill's state habeas proceedings, Dr. Daniel Grant evaluated Hill using the Stanford-Binet Intelligence Test, and Hill received an IQ score of 72. In 2000, Dr. Jethro Toomer administered the Wechsler Adult Intelligence Scale III ("WAIS-III") to Hill. Hill's full-scale IQ score on the WAIS-III was 69.
Hill produced an affidavit from Dickinson in 2000 stating that his earlier finding of no mental retardation was erroneous because it was based on inadequate information, and his original IQ testing of Hill led to an inaccurate and misleading result. See Hill II, 498 S.E.2d at 52 n. 1. In this affidavit, Dickinson opined that the 1991 WAIS-R overestimated Hill's IQ by 3-7 points; given Dickinson's original score of 77, this still results in a range of 70-74.
Duren, 439 U.S. at 364, 99 S.Ct. at 668.
In this case we are obviously not taking a deferential view of, say, trial counsel's performance in addition to deferring, as AEDPA requires, to any reasonable decision of the Georgia Supreme Court. That fact, however, does not change the AEDPA deference standard, which does apply here. Regardless of the standard of proof for the underlying claim, the Supreme Court has repeatedly instructed, as shown above, that our AEDPA review is highly deferential and we may not grant habeas relief unless the state court decision is contrary to or an unreasonable application of a prior Supreme Court holding.
Id. at 416-17, 106 S.Ct. at 2605 (footnote and citation omitted). The plurality opinion noted that Florida's procedure was deficient for not furnishing the procedural safeguards of: an opportunity for the prisoner to submit evidence, an opportunity for the prisoner to impeach or challenge the opinions of the state-appointed mental health experts, and placement of factfinding authority in the hands of a neutral party. Id. at 413-16, 106 S.Ct. at 2603-05.
The majority details a litany of unrelated cases recently handed down by the Supreme Court to remind us that AEDPA constrains our review. However, in all but one of the cases, the particular issue before the Court carried its own highly deferential standard of review, resulting in "dual layers" of deference, Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1865, 176 L.Ed.2d 678 (2010). See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) ("Our review of the California Supreme Court's decision is thus doubly deferential. We take a highly deferential look at counsel's performance [under] Strickland, through the deferential lens of § 2254(d)." (internal quotation marks and citations omitted)); Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) ("The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. . . ." (internal quotation marks and citations omitted)); Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011) (same); Lett, 130 S.Ct. at 1865 (holding that "AEDPA and our double jeopardy precedents" require "dual layers of deference"); Thaler v. Haynes, ___ U.S. ___, 130 S.Ct. 1171, 1172-73, 175 L.Ed.2d 1003 (2010) (reviewing objection to a peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which is reviewed on appeal under the "clearly erroneous" standard). By contrast, Hill's claim is subject to only a single layer of AEDPA deference, unencumbered by a secondary layer of deference to the discretionary decisions of trial judges.
Moreover, the majority's assertion that the beyond a reasonable doubt standard is not contrary to Atkins because it is merely "one aspect of a multifaceted fact-finding process under Georgia law" is beside the point. No matter how many procedures, hearings, and evidentiary opportunities Georgia provides, the law remains that every one of those procedural opportunities will be governed by one, and only one, standard of proof—beyond a reasonable doubt. Thus, the majority's concern that it is erroneous to consider the constitutionality of the standard of proof in isolation from the panoply of Georgia's procedures is of no moment. In resolving whether Georgia's standard of proof of beyond a reasonable doubt is contrary to Atkins's command, it is understood that the entirety of the procedural scheme for the factual determination of mental retardation, including each of the specific procedural "rights" that the majority cites, is subjected to the most exacting standard of proof that our legal system tolerates. Thus, just as the majority urges that "we should not ignore the full range of rights available to a capital defendant claiming mental retardation," we cannot ignore that each and every one of those "full range of rights" is constrained by the beyond a reasonable doubt standard of proof.
The majority's efforts on several occasions to engage in its own speculation about Hill's mental retardation is not only an impermissible attempt to re-adjudicate the fact of Hill's mental retardation but also goes astray of the sole legal question before this en banc court.
To support its conclusion that "there is no evidence . . . that the reasonable doubt standard triggers an unacceptably high error rate for mental retardation cases," the majority suggests that it is relevant that in five of these cases the defendants received a life sentence instead of a death sentence. In each of the cases, however, the defendant received a life sentence for reasons unrelated to his asserted mental retardation, even though he had raised a claim of mental retardation.
The majority also cites to four non-capital cases—Marshall v. State, 276 Ga. 854, 583 S.E.2d 884, 886 (2003); Chauncey v. State, 283 Ga.App. 217, 641 S.E.2d 229, 230 (2007); Laster v. State, 234 Ga.App. 16, 505 S.E.2d 560, 561 (1998); and Moody v. State, 205 Ga.App. 376, 422 S.E.2d 70, 70 (1992)—as proof that juries and judges in Georgia do find defendants to be mentally retarded. The majority fails to acknowledge, however, that although the verdict of "guilty but mentally retarded" is available in both capital and non-capital felony cases, see Ga.Code Ann. § 17-7-131(b)(1), the determination of mental retardation is of consequence only in capital cases. Non-capital offenders who are found "guilty but mentally retarded" are sentenced no different than any other defendant under Georgia's law. Id. § 17-7-131(g)(1) ("Whenever a defendant is found . . . guilty but mentally retarded, . . . the court shall sentence him or her in the same manner as a defendant found guilty of the offense."). Thus, because the stakes for mental retardation claims are exponentially higher in capital cases, the State is much more likely to vigorously oppose the assertion of mental retardation in a capital case. See Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2153, 173 L.Ed.2d 1173 (2009) ("[P]rosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation. [Atkins's prohibition on execution of the mentally retarded] substantially altered the State's incentive to contest [offenders'] mental capacity. . . ."). This bears out in the four cases the majority relies on and one additional as well. See Sims v. State, 279 Ga. 389, 614 S.E.2d 73, 75 (2005). Indeed, of the nine reported non-capital cases in Georgia in which mental retardation was at issue, the defendant was able to successfully establish his mental retardation in five of them.
The majority also notes that in Walker v. State, 282 Ga. 774, 653 S.E.2d 439, 447 (2007), the co-defendant Griffin had been "adjudicated mentally retarded." However, Griffin entered a plea of "guilty but mentally retarded," rather than receiving that verdict at trial. See Brief On Behalf of the Appellee By the Attorney General, Walker, 282 Ga. 774, 653 S.E.2d 439 n. 5 (2007). Under Georgia law, to accept a plea of "guilty but mentally retarded," a judge need not find the defendant mentally retarded beyond a reasonable doubt but need only find that there is a factual basis that the defendant is mentally retarded. Ga.Code Ann. § 17-7-131(b)(2).
Despears v. Milwaukee County, 63 F.3d 635, 637 (7th Cir.1995) (parallel citations omitted). There is a critical distinction between the Due Process required to protect substantive rights derived from the United States Constitution on the one hand, see Cooper v. Oklahoma, 517 U.S. 348, 355-56, 116 S.Ct. 1373, 1377, 134 L.Ed.2d 498 (1996) (holding that state law presuming criminal defendant is competent to stand trial unless he proves incompetence by clear and convincing evidence violates Due Process), and state created rights on the other, see Leland v. Oregon, 343 U.S. 790, 799, 72 S.Ct. 1002, 1007-08, 96 L.Ed. 1302 (1952) (holding state law requiring defendant to prove state created insanity defense beyond a reasonable doubt does not violate Due Process). Given this important distinction, which was well established at the time Hill III was decided, and the reasoning and authorities discussed in Judge Barkett's dissent, I cannot agree with the majority's conclusion that either Leland or Ford "lend enough support" to the Georgia Supreme Court's decision to make it consistent with, or a reasonable application of, clearly established Supreme Court precedent.
