Bush v. Thomas et al (DEATH PENALTY)
Filing
59
MEMORANDUM OPINION AND ORDER directing that: (1) To the extent the Petitioner seeks reconsideration of the 45 motion for an evidentiary hearing on the Atkins claim, the motion is GRANTED; (2) On or before Wednesday, 8/26/2020, the attorneys are ORDERED to confer and submit three proposed dates for a status and scheduling conference. Signed by Honorable Judge R. Austin Huffaker, Jr on 8/5/2020. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIAM BUSH,
Petitioner,
v.
JEFFERSON S. DUNN,
Commissioner, Alabama Department
of Corrections,
Respondent.
)
)
)
)
) CASE NO. 2:12-CV-345-RAH
)
[WO]
)
)
)
)
)
MEMORANDUM OPINION AND ORDER
On April 16, 2012, Petitioner William Bush (“Petitioner” or “Bush”) filed this
federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his February
1991 conviction for capital murder and sentence of death in the Montgomery County
Circuit Court. On December 19, 2013, Petitioner filed a motion for an evidentiary
hearing on his Atkins claim. (Doc. 45.) On February 20, 2014, the motion for an
Atkins hearing was denied without prejudice because it was premature. (Doc. 47 at
16.) The motion was “subject to reconsideration in the event that [the court]
concludes that the Alabama Court of Criminal Appeals’ decision denying his mental
retardation claim cannot survive application of [28 U.S.C.] § 2254(d).” (Id.)
Because the parties have now filed their briefs regarding the merits of the petition
for writ of habeas corpus, the issue of whether the state court’s decision denying the
Atkins claim on the merits withstands scrutiny under § 2254(d) and will be
considered.1
I. BACKGROUND2
A. The Offense
A summary of the facts as set forth by the Alabama Court of Criminal Appeals
on direct appeal, Bush v. State, 695 So. 2d 70, 81-82 (Ala. Crim. App. 1995),
indicates that, on July 26, 1981, Petitioner entered a convenience store in
Montgomery, Alabama, with the intent to rob the cashier. Petitioner shot both Larry
Dominguez (“Dominguez”), the store clerk, and Dominguez’s friend, Tony Holmes
(“Holmes”). Dominguez died at the scene, but Holmes survived a gunshot wound
to the throat. Shortly thereafter, Petitioner and his co-defendant went to another
On March 20, 2013, this Court granted Bush’s motion for appropriation of funds. (Doc. 42.) On
April 9, 2013, Dr. Karen Salekin, Ph.D., was appointed as an expert in preparation for an
evidentiary hearing. (Doc. 43.) In his memorandum in support of the petition, Bush proffers the
anticipated testimony of Dr. Salekin, a clinical psychologist and professor at the University of
Alabama. (Doc. 50 at 40.) According to Bush, “Dr. Salekin has concluded to a reasonable degree
of scientific certainty that Bush is mentally retarded and has been mentally retarded since before
the age of 18, including at the time of the offense and adjudication.” (Id.)
1
The procedural history of Petitioner’s case is more complex and detailed than recounted here and
includes multiple trials in the state court, as well as a previous, successful, petition for habeas
corpus relief in this Court. See Bush, 695 So. 2d at 80–81. Because this order concerns only one
of Petitioner’s claims and does not dispose of the petition, a more thorough recitation of the facts
and procedural history of this case will be left to this Court’s anticipated decision on the petition
for habeas corpus relief.
2
2
nearby convenience store. There, Petitioner shot the clerk, Thomas Adams, killing
him instantly.3
Petitioner gave two statements to the police in which he confessed to the
crimes. In the second statement, Petitioner admitted that he fired the shots that killed
both Dominguez and Adams and that injured Holmes. Id.
B. Post-Conviction Proceedings in State Court
On October 8, 1998, Petitioner filed a state post-conviction petition pursuant
to Rule 32 of the Alabama Rules of Criminal Procedure in the Montgomery County
Circuit Court. State Court Collateral Appeal Transcript, Vol. 22, R-42, C. 10
On March 19, 2004, Petitioner filed a motion for leave to amend the Rule 32
petition to include a claim that his sentence of death violates the Constitution because
he suffers from intellectual disability, asserting that the Alabama Court of Criminal
Appeals recently “ordered remands in cases in which Atkins claims had not been
adjudicated at the circuit court level. See Borden v. State, [60] So. 2d [935, 936]
(Ala. Crim. App. [] 2004) (Atkins hearing required even after petition dismissed);
Tarver v. State, [940] So. 2d [213], (Ala. Crim. App. [] 2004) (mental retardation
issue raised on appeal of Rule 32 denial).” (Vol. 25, R-65, C. 648-49.) He also
3
Although the Alabama Court of Criminal Appeals stated that Bush shot Adams, Bush was
neither charged with, nor convicted of, the murder of Adams. See Bush v. State, 695 So. 2d 70,
81 n.2 (Ala. Crim. App. 1995). Edward Pringle was convicted of the murder of Adams and the
attempted murder of Holmes.
3
requested that the state court grant his request for funding to prove his Atkins claim
and for a hearing to determine whether his cognitive deficiencies and history of
adaptive deficits preclude the death penalty in his case. (Id.)
Petitioner also simultaneously filed an amendment to the petition, asserting a
claim that “pursuant to Atkins v. Virginia and the Fifth, Sixth, Eighth, and Fourteenth
Amendments, the State of Alabama is precluded from executing William Bush
because he suffers from mild mental retardation.” (Id. at C. 652.) Along with the
amendment, he submitted the results of intelligence testing, including the results of
the September 1979 Revised Beta Examination Second Edition (BETA-II)
indicating a Beta intelligence quotient of 69 and an undated Weschler Adult
Intelligence Scale indicating a full-scale IQ score of 74. (Id. at C. 654-57.) The
State filed a response.
On March 25, 2004, the Montgomery County Circuit Court conducted a Rule
32 hearing. Before the start of the hearing, the court heard oral argument on
Petitioner’s motion to amend the petition to add the Atkins claim and the request for
additional funds. The State argued that Petitioner’s motion to amend and request for
funding were untimely because the Atkins decision was released in June 2002 and
the state court’s decisions in Borden and Tarver were decided one month prior to the
date of the Rule 32 hearing. Petitioner’s counsel, however, explained that as soon
as she learned that, based on the Borden and Tarver decisions, the State itself “had
4
switched [its] own position in cases [with an Atkins issue] … saying the issues should
be heard instead of defaulted” in state post-conviction proceedings, she filed the
motion for leave to amend.4 (Volume 32, R-77, R. 115.)
The court granted the motion for leave to amend the petition to add the Atkins
claim and conditionally denied Petitioner’s request for additional funding because
the Petitioner filed the motion “on the eve of trial asking for such funds”5 and he had
previously received funding for another expert “[a]nd [the court did not] know what
areas he [was] going to be offered to testify in” during the state post-conviction
proceeding. (Volume 32, R-77, R. 112.) No expert or any other witnesses, however,
testified regarding the Atkins issue during the Rule 32 hearing.6
At the close of the Rule 32 hearing, the court admitted several exhibits into
the record, including certified records from the Alabama Department of Corrections
4
During the state post-conviction proceedings, Petitioner was represented by Ruth Friedman, a
licensed Alabama attorney with a law office in Washington, D.C. She indicated that her
representation of the petitioner was pro bono.
Despite the state court’s characterization of the timing of the filing, the record indicates that the
motion for funds related to the Atkins claim was filed one week prior to the Rule 32 hearing. (R65, Vol. 25, C. 648-49.)
5
6
During the Rule 32 hearing, Petitioner presented the expert testimony of Dr. Richard Leo, a
sociologist with a J.D. and Ph.D in Jurisprudence and Social Policy from the University of
California, Berkeley, as support for his claim that trial counsel was ineffective for failing to
challenge the admissibility of his confession. (R-77, R. 118, 123.) Dr. Leo was offered as an
expert in police interrogations. (R-77, R. 118.) In addition, Stephen R. Glassroth, a criminal
defense attorney, testified regarding the claims of ineffective assistance of counsel related to his
representation of Petitioner during the 1991 capital murder trial. (Volume 33, R. 316.)
5
(“ADOC”). (State Collateral Appeal Transcript – First Supplement, Volume 30,
Pet’s Exhs. 19 and 23, R. 716-732.) The ADOC records included a Revised Beta
Examination Second Edition (“BETA-II”) conducted on September 12, 1979, which
indicated a Beta intelligence quotient (IQ) score of 69, and an undated Weschler
Adult Intelligence Scale (WAIS) Record Form which indicated a full-scale IQ score
of 74.7 Pet’s Exh. 19, R. 718, 721.
The ADOC records also included a 1979 Confidential Psychological
Summary conducted by Dr. Leslie H. Thompson, Ed.D. Dr. Thompson evaluated
Petitioner for the purpose of placing him in the correct prison classification after
receiving a prior conviction and sentence for grand larceny. The summary indicates
that, after administering the BETA, Wide Range Achievement Test (“WRAT”),
WAIS, Bender-Gestlast, and the Draw-a-Person Tree Test, Dr. Thompson found as
follows:
ANALYSIS & IMPRESSION:
Results of the BETA indicated that Mr. Bush achieved a BETA
IQ of 69 which placed him in the Mentally Deficient range of
intellectual functioning. He was administered a WAIS and the
following results were achieved: Verbal IQ 77, Performance IQ 74,
and Full-Scale IQ 74 (all scores pro-rated). These results placed him in
the Borderline range of intellectual functioning and appear to be an
accurate assessment of his intellectual potentials at that time.
7
The identical WAIS form also appears to be an attachment to the report prepared by Dr. Leslie
H. Thompson in 1979. (State Collateral Appeal Transcript – First Supplement, Volume 30, Pet’s
Exh. 19, R. 724-727.) Given that the WAIS scores referenced in Dr. Thompson’s 1979 report are
identical to the scores set forth in the undated WAIS form, the Court will assume for purposes of
this opinion that the test was conducted in 1979.
6
According to his performance on the WAIS digit symbol, he appears to
have adequate visual motor coordination. Other areas of the WAIS
[were] inadequate. WRAT results revealed a reading achievement level
of 3.9 and an arithmetic level of 2.7. These levels are greatly below his
reported level of 6th grade education. As his reading level was very
low, his personality was assessed with the Draw-A-Person Tree Test.
These projectives suggested that the lack of independence, loss of
autonomy and helplessness as well as evasiveness are prominent
features of his personality at this time. Screening for organicity tended
to rule out overt indications of central nervous system disorders. His
performance does suggest some externalization of hostilities as he
replaced dots with dashes. Impression: Borderline Mental Retardation
(310.8) associated with environmental-cultural deprivation.
(State Collateral Appeal Transcript – First Supplement, Volume 30, R-67, Pet’s Exh.
19, C. 722-23.)
The trial court also admitted two tests conducted on April 8, 1984: (1) a
Weschler Adult Intelligence Scale – Revised (“WAIS-R”) form, indicating that
Petitioner received a full-scale IQ score of 75 and noting that he had a sixth-grade
education; and (2) a WRAT, indicating Petitioner had a “grade rating level” of 3.7
in reading, 2.7 in spelling, and 3.3 in arithmetic.8 (Pet’s Ex. 23, R. 742-51.)
At the end of the Rule 32 hearing, the following exchange occurred:
THE COURT: Now, I have looked over your Exhibits 19 and 23. And
is there anything else you want to say? I have conditionally denied your
motion for funds. And looking at these, is there anything else you might
want to say?
MS. FRIEDMAN (Petitioner’s Counsel): Yes, Your Honor. Those
exhibits basically present what would be a prima facie case of mental
The WRAT also indicate that Petitioner’s scores were in the fourth percentile for reading,
second percentile for spelling, and third percentile in arithmetic. (R. 748.)
8
7
retardation. We would need an opportunity to prove. We are not at this
point able to prove without funds that Mr. Bush fits within the definition
of mental retardation. We would need funds for psychologists to be
able to interpret and testify to these tests. And we would need funds
for investigation to be able to meet the adaptive deficits and onsets
according to the prongs of The American Association of Mental
Retardation test under Atkins v. Virginia.
MR. HAYDEN (Respondents’ Counsel): In response, Your Honor, the
State cited for the Court in its written response the case of Ex parte
Jerry Smith. In that particular case the issue was raised as to whether
Smith was mentally retarded. And . . . the Alabama Supreme Court
stated that Smith’s IQ score of 72 seriously undermined any conclusion
that Smith suffered significant subaverage intellectual functioning as
contemplated deemed under the broadest definitions, and that would be
of mental retardation.
Before your Honor I think are three scores. One is BETA score
of 69. One is a WAIS score. I could not determine when that test was
given. I did not see a date. That was a 74 score. And then Dr. Karl
Kirkland who is licensed in clinical and, I believe, forensic psychology
administered a test in April of 1984, a full-scale IQ of 75.
On direct appeal of the last trial, the Court of Criminal Appeals
specifically found that the fact the petitioner had dropped out of school
at 7th grade was no indication of low IQ. The Court noted that Mr.
Bush had received training – technical training while he was in prison
in Texas.
It’s the State’s position that based on the record of the trial, the
facts, the fact that petitioner was 31 years old at the time of this offense
creates no presumption or no indication that the petitioner is mentally
retarded.
If Your Honor is inclined to take testimony on this, the State
would suggest that Your Honor appoint your own expert. I would
suggest Dr. Kirkland who has already done one IQ score on Mr. Bush.
The Court appoint an expert and have that expert go out and do
whatever he or she, if it’s someone other than Dr. Kirkland, feels is
necessary to determine the issue and report back to the Court. If there
8
are any questions, we can all come back at another time, I guess, and
ask Dr. Kirkland questions or whomever else Your Honor might
appoint.
(Volume 33, State Court Collateral Appeal Transcript (1st Supplement), R. 316-18.)
In response, Petitioner’s counsel objected to the use of the State’s witness, Dr.
Kirkland, as the sole expert to conduct further assessments regarding the Petitioner’s
intellectual functioning and adaptive deficits. She argued:
MS. FRIEDMAN: . . . [Petitioner] has to have the ability to prove his
claim. He doesn’t – indigent petitioner. He needs help from the Court
in order to be able to prove his claims. He can’t be asked to rely on the
same witnesses and documents, et cetera, that the entity that’s trying to
execute him and saying he does not fall within this category relies on.
He is . . . entitled to an opportunity to establish his claim if this Court
is going to hear the claim. He would need, as noted before, assistance
in being able to prove that claim both through investigation and through
the use of mental health testimony. I don’t know of any instance before
this allowed in Atkins hearing and not giving the petitioner his own
chance to prove his case for himself.
I would also just add in terms of the numbers that the definitions
of mental retardation in both DSM IV and the American Association
on Mental Retardation’s definitions include up to 75. There is a fivepoint spread of possible error, which could mean up or down. So
certainly the scores that are in this record indicate that Mr. Bush might
fall into that category.
...
THE COURT: Atkins, even though Alabama courts may have recently
made some rulings related to Atkins, Atkins was decided in 2002?
MR. HAYDEN: November of that year, I believe, Your Honor.
THE COURT: Anyway, and looking over these exhibits, I am going to
deny your motion. . . .
9
(Id., at R. 318-321.) Neither the State’s suggestion for the court to appoint its own
expert nor Petitioner’s suggestion to be allowed to present his own expert during an
Atkins hearing was accepted .
At the close of the state post-conviction proceeding, the Montgomery County
Circuit Court acknowledged that, although it had granted the motion to amend the
petition to add the Atkins claim, it denied the request to provide funds. (R. 326.)
The parties were, however, permitted to file post-hearing briefs regarding the Atkins
claim and any other claims. (Volume 25, C. 711; Volume 33, R.321, 326.) In May
2004, both parties filed post-hearing briefs which included their arguments regarding
whether the Petitioner met the criteria for intellectual disability as set forth in Atkins.9
(Volume 25, R-66, C. 762-64; R. 67, C. 790-91.)
B. State Court Disposition
In its July 1, 2004, final order, the Montgomery County Circuit Court
addressed the Atkins claim on the merits, finding and concluding as follows:
At the evidentiary hearing, the Court, over the State’s objection,
granted Bush’s motion to amend his Rule 32 petition to include the
allegation that he is mentally retarded and, thus, his execution would
9
Specifically, Petitioner argued that the evidence, including his IQ scores between 69 and 75 and
his notably poor communication and academic skills, demonstrated that he should be considered
as belonging within the class that Atkins held should not be subject to execution. (Volume 25, R66, C. 762-64.) The State argued that the evidence and the findings of the Alabama Court of
Criminal Appeals on direct appeal, including that Petitioner completed a six-month mechanics
course and had a relationship with his common-law wife and his child, establishes that Petitioner
does not meet the criteria for intellectual disability.
10
violate the Supreme Court’s holding in Atkins v. Virginia, 122 S. Ct.
2242 (2002). Prior to the hearing, the State was put on notice about this
issue as Bush had filed a motion to amend his petition to add this claim
and the State filed a response.
In this case, . . . Bush received technical training while
incarcerated in Texas. There was also evidence that he had worked as
a mechanic and in construction. Although he had poor academic skills,
the Court has reviewed his statements and responses to the police that
show that he was able to effectively communicate. Tests showed that
Bush had an IQ between 69 and 74. In Ex parte Smith, Ms. 101267,
2003 WL 1145475, at *10 (Ala. March 14, 2003), the Alabama
Supreme Court held that Smith’s overall IQ of 72 “seriously
undermines any conclusion that Smith suffers from significantly
subaverage intellectual functioning as contemplated under even . . . the
broadest definitions [of mental retardation].”
The Court is of the opinion that Bush failed to prove that he had
“‘significant or ‘substantial deficits in adaptive behavior before or after
age 18.” Ex parte Perkins, 851 So. 2d at 456. Therefore, Bush’s
allegation that his mental retardation would prohibit execution is due to
be denied by the Court. Rule 32.7(d), Ala.R.Crim.P.
(Volume 38, R-91, C. 818 (bracketing in original).)
Petitioner appealed the circuit court’s denial of his amended Rule 32 petition,
including its rejection of his Atkins claim.10 (Volume 35, R-78, App’s Br.) The
Alabama Court of Criminal Appeals affirmed, determining, in part, as follows:
10
In his appellate brief, Petitioner argued that, based on his test scores and adaptive deficits,
he had shown at the very least a prima facie demonstration that he met the definition of mental
retardation as set forth in Atkins v. Virginia, 536 U.S. at 308 n. 8. (Volume 35, R-78, App’s Br.,
p. 61.) In addition, he argued, in part, as follows:
But more importantly, petitioner was not given the tools with which to
establish his case. To establish the second and third prongs of the mental
retardation criteria, two methodologies are usually employed: the use of
standardized adaptive behavior measures normed on the general population, such
11
The United States Supreme Court in Atkins held that it was a
violation of the Eighth Amendment to execute a mentally retarded
individual. The Supreme Court left it to the individual states to define
mental retardation. Though Alabama has yet to enact any legislation
on this issue, the Alabama Supreme Court in Ex parte Perkins, 851 So.
2d 453 (Ala. 2002), adopted the most liberal view of mental retardation
held by any of the states that currently bar the execution of the mentally
retarded. Under Perkins, to be mentally retarded, the defendant must
have: (1) significant subaverage intellectual functioning, i.e., an IQ of
70 or below; (2) significant or substantial deficits in adaptive behavior;
and (3) these problems must have manifested themselves during the
developmental years, i.e., before the defendant reached the age of 18.
When addressing this claim, the circuit court stated:
“At the evidentiary hearing, the Court, over the
State’s objection, granted Bush’s motion to amend his
Rule 32 petition to include the allegation that he is
mentally retarded and, thus, his execution would violate
the Supreme Court’s holding in Atkins v. Virginia, 122 S.
Ct. 2242 (2002). Prior to the hearing, the State was put on
notice about this issue as Bush had filed a motion to amend
his petition to add this claim and the State filed a response.
as the Vineland Adaptive Behavior Scales, and clinical judgment in analyzing
information that is not captured in existing standardized instruments, which
typically entails conducting a comprehensive life history investigation to identify
developmental deficits. Mr. Bush’s request for funding with which to develop such
evidence was denied. . . . This was error. See, e.g., Tarver v. State, 940 So. 2d
312, 318-20 (Ala. Crim App. 2004) (remanding for evidentiary hearing on mental
retardation claim where there was conflicting evidence on the matter, including a
full scale IQ of 76 and a lack of detail regarding whether the petitioner had adaptive
deficits in his adaptive behavior before he reached the age of eighteen); Smith v.
State, [213] So. 2d [239, 251] (Ala. 2007) (remanding for evidentiary hearing, even
though there was evidence that the defendant’s “intellectual functioning and
adaptive behavior as an adult places him above the mentally retarded range”). This
case must be remanded so that Mr. Bush can similarly establish his claim.
35 SCR (Tab R-78), at pp. 63-64.
12
“In this case, . . . Bush received technical training
while incarcerated in Texas. There was also evidence that
he had worked as a mechanic and in construction.
Although he had poor academic skills, the Court has
reviewed his statements and responses to the police that
show that he was able to effectively communicate. Tests
showed that Bush had an IQ between 69 and 74.
“In Ex parte Smith, [[Ms. 1060427, May 25, 2007]
___ So. 3d ___ (Ala. 2007)], the Alabama Supreme Court
held that Smith’s overall IQ or 72 ‘seriously undermines
any conclusion that Smith suffers from significantly
subaverage intellectual functioning as contemplated under
even . . . the broadest definitions [of mental retardation].’
“The Court is of the opinion that Bush failed to
prove that he had ‘significant’ or ‘substantial’ deficits in
adaptive behavior before or after age 18.’ Ex parte
Perkins, 851 So. 2d at 456. Therefore, Bush’s allegation
that his mental retardation would prohibit execution is due
to be denied by the Court. Rule 32.7(d), Ala.R.Crim.P.”
(C.R. 818-19.) The circuit court’s ruling is supported by the record.
The record of the postconviction proceedings contains a copy of
a psychological assessment conducted on Bush in 1979. Bush was born
in 1950. The examiner states that he performed the Weschsler Adult
Intelligence Scale (“WAIS”) test on Bush and that Bush scored a verbal
IQ of 77, a performance IQ of 74, and a full-scale IQ of 74.
(Supplemental record, p. 723.) Also, the results of a second WAIS are
also contained in the record. This WAIS was conducted in 1984. On
that WAIS test Bush scored a verbal IQ of 74, a performance IQ of 84,
and a full-scale IQ of 75. The record also shows that Bush was
administered the BETA IQ test in 1979 and that he scored a 69 on that
test.
Also, we have examined the record of the direct appeal. Bush
testified at the suppression hearing and appeared articulate. Bush also
acquired technical skills while he was in the federal penitentiary,
completed a six-month mechanics course, and had worked as a
13
mechanic and on various construction-type jobs. Bush also had several
long-term relationships and one child.
The record affirmatively shows that Bush does not meet the most
liberal definition of mental retardation adopted by the Alabama
Supreme Court in Perkins. Thus, the United States Supreme Court’s
decision in Atkins does not bar Bush’s death sentence.
Bush v. State, 92 So. 3d 121, 150-51 (Ala. Crim. App. 2009).
Petitioner sought certiorari review from the Alabama Supreme Court, arguing
that the Alabama Court of Criminal Appeals failed to recognize the coexistence of
weaknesses along with his strengths, that he was improperly denied expert assistance
to establish his intellectual disability, and that he was denied the opportunity for a
hearing to allow him to prove his case. Specifically, he asserted that the ruling of
the Alabama Court of Criminal Appeals conflicted with Atkins and Ake v. Oklahoma,
470 U.S. 68, 82 (1985). On March 23, 2012, the Alabama Supreme Court denied
Petitioner’s certiorari petition.11
II. AEDPA STANDARD OF REVIEW
Petitioner alleges that the trial court and the Alabama Court of Criminal
Appeals “made determinations that were contrary to Atkins v. Virginia, 536 U.S. 304
11
(Volume 38, R-93.)
14
(2002), were an unreasonable application of Atkins, and were unreasonable in light
of the factual record before the courts. See 28 U.S.C. §2254(d).” (Doc. 50 at 27.)
Because Petitioner filed his federal habeas corpus action after the effective
date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
this Court’s review of Petitioner’s claims for federal habeas corpus relief, which
were disposed of on the merits by the state courts, including the Atkins claim, is
governed by the AEDPA. Penry v. Johnson, 532 U. S. 782, 792 (2001). Under the
AEDPA standard of review, this Court cannot grant Petitioner federal habeas corpus
relief in this cause in connection with any claim that was adjudicated on the merits
in state court proceedings, unless the adjudication of that claim either: (1) resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,
or (2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. Brown v.
Payton, 544 U. S. 133, 141 (2005); Williams v. Taylor, 529 U. S. 362, 404-05 (2000);
28 U.S.C. § 2254(d).
The Supreme Court has concluded the “contrary to” and “unreasonable
application” clauses of 28 U.S.C. § 2254(d) (1) have independent meanings. Bell v.
Cone, 535 U. S. 685, 694 (2002). Under the “contrary to” clause, a federal habeas
court may grant relief if (1) the state court arrives at a conclusion opposite to that
15
reached by the Supreme Court on a question of law or (2) the state court decides a
case differently than the Supreme Court on a set of materially indistinguishable facts.
Brown v. Payton, 544 U. S. at 141; Mitchell v. Esparza, 540 U. S. 12, 15-16 (2003)
(“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a
rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of
facts that are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent.’”). A state court’s
failure to cite governing Supreme Court authority does not, per se, establish the state
court’s decision is “contrary to” clearly established federal law: “the state court need
not even be aware of our precedents, ‘so long as neither the reasoning nor the result
of the state-court decisions contradicts them.’” Mitchell v. Esparza, 540 U. S. at 16.
Under the “unreasonable application” clause, a federal habeas court may grant
relief if the state court identifies the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applies that principle to the facts of the
petitioner’s case. Brown v. Payton, 544 U. S. at 141; Wiggins v. Smith, 539 U.S.
510, 520 (2003). A federal court making the “unreasonable application” inquiry
should ask whether the state court’s application of clearly established federal law
was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 (2010)
(“A federal habeas court can only set aside a state-court decision as ‘an unreasonable
application of . . . clearly established Federal law,’ § 2254(d) (1), if the state court’s
16
application of that law is ‘objectively unreasonable.’”); Wiggins v. Smith, 539 U.S.
at 520-21. The focus of this inquiry is on whether the state court’s application of
clearly established federal law was objectively unreasonable; an “unreasonable”
application is different from a merely “incorrect” one. Schriro v. Landrigan, 550
U.S. 465, 473 (2007) (“The question under the AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that determination
was unreasonable - a substantially higher threshold.”); Wiggins v. Smith, 539 U. S.
at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) (“it is the habeas applicant’s
burden to show that the state court applied that case to the facts of his case in an
objectively unreasonable manner”).
As the Supreme Court has explained:
Under the Antiterrorism and Effective Death Penalty Act, 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.”
Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U. S.
86, 103 (2011)).
Legal principles are “clearly established” for purposes of AEDPA review
when the holdings, as opposed to the dicta, of Supreme Court decisions as of the
time of the relevant state-court decision establish those principles. Yarborough v.
Alvarado, 541 U.S. 652, 660-61 (2004) (“We look for ‘the governing legal principle
17
or principles set forth by the Supreme Court at the time the state court renders its
decision.’”); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA,
what constitutes “clearly established federal law” is determined through review of
the decisions of the United States Supreme Court, not the precedent of the federal
Circuit Courts. See Lopez v. Smith, 574 U.S. 1, 2 (2014) (holding the AEDPA
prohibits the federal courts of appeals from relying on their own precedent to
conclude a particular constitutional principle is “clearly established”).
The AEDPA also significantly restricts the scope of federal habeas review of
state court fact-findings. Title 28 U.S.C. § 2254(d)(2) provides federal habeas relief
may not be granted on any claim that was adjudicated on the merits in the state courts
unless the state court’s adjudication of the claim resulted in a decision based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) (“[A] state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.”); Williams v. Taylor, 529
U.S. at 410 (“[A]n unreasonable application of federal law is different from an
incorrect application of federal law.”). Even if reasonable minds reviewing the
record might disagree about the factual finding in question (or the implicit credibility
determination underlying the factual finding), on habeas review, this does not
18
suffice to supersede the trial court’s factual determination. Wood v. Allen, 558 U.S.
at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
In addition, § 2254(e)(1) provides a petitioner challenging state court factual
findings must establish by clear and convincing evidence that the state court’s
findings were erroneous. Schriro v. Landrigan, 550 U. S. at 473-74 (“AEDPA also
requires federal habeas courts to presume the correctness of state courts’ factual
findings unless applicants rebut this presumption with ‘clear and convincing
evidence.’”); Rice v. Collins, 546 U.S. at 338-39 (“State-court factual findings,
moreover, are presumed correct; the petitioner has the burden of rebutting the
presumption by ‘clear and convincing evidence.’”); Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (“[W]e presume the Texas court’s factual findings to be sound
unless Miller-El rebuts the ‘presumption of correctness by clear and convincing
evidence.’”); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether §
2254(e)(1) applies in every case presenting a challenge to a state court’s factual
findings under § 2254(d)(2). See Wood v. Allen, 558 U.S. at 300 (choosing not to
resolve the issue of § 2254(e)(1)’s possible application to all challenges to a state
court’s factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to
resolve the Circuit split regarding the application of § 2254(e)(1)).
However, the deference to which state-court factual findings are entitled under
the AEDPA does not imply an abandonment or abdication of federal judicial review.
19
See Miller-El v. Dretke, 545 U.S. at 240 (the standard is “demanding but not
insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Even in the context
of federal habeas, deference does not imply abandonment or abdication of judicial
review. Deference does not by definition preclude relief.”).
III. THE ATKINS CLAIM
A. The Claim
In his fifth claim for federal habeas relief, Petitioner argues he is ineligible
for the death penalty under the Supreme Court’s holding in Atkins v. Virginia, 536
U.S. 304 (2002), because he is intellectually disabled. (Doc. 1, pp. 42-45 of 66;
Petition for Writ of Habeas Corpus, pp. 39-42.)
B. Clearly Established Federal Law
In Atkins v. Virginia, 536 U. S. 304 (2002), the United States Supreme Court
concluded that the execution of intellectually disabled persons failed to fulfill either
of the two justifications for capital punishment, i.e., retribution and deterrence, and
therefore the Eighth Amendment forbids the execution of intellectually disabled
persons.12 Atkins v. Virginia, 536 U.S. at 318-21. The Supreme Court cited two
The Court in Atkins used the descriptive term “mentally retarded” rather than the term
“intellectually disabled.” The Petitioner’s pleadings in both the state habeas court and this Court
also employ the terms “mental retardation” and “mentally retarded.” The terminology in the courts
and the medical community, however, has begun to change “because ‘the term “mental
retardation” has negative connotations,’ and ‘has become offensive to many people.’” Jones v.
Social Security Administration, 695 F. App’x. 507 (11th Cir. 2017) (quoting Change in
Terminology: “Mental Retardation” to “Intellectually Disability,” 78 Fed. Reg. 46499 (Aug. 1,
2013)). “But this change ‘d[id] not affect the actual medical definition of the disorder or available
12
20
clinical definitions of “mental retardation” (now referred to as “intellectual
disability”) with approval but, ultimately, left to the States “the task of developing
appropriate ways to enforce the constitutional restriction upon their execution of
sentences.”13 Id., 536 U.S. at 317.
Nonetheless, the Supreme Court recognizes that “an IQ between 70 and 75 or
lower” is “typically considered the cutoff IQ score for the intellectual function prong
of the mental retardation definition.” Atkins, 536 U.S. at 309 n.5 (citing 2 Kaplan &
Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds.
7th ed. 2000)); see also Brumfield v. Cain, 576 U.S. 305, 315 (2015) (quoting Atkins,
supra). Thus, an IQ score of 75 is “squarely in the range of potential intellectual
disability.” Brumfield, 576 U.S. at 315.
programs or services.’” Id. (quoting Change in Terminology: “Mental Retardation” to
“Intellectually Disability,” 78 Fed. Reg. at 49500).
Following the lead of the Supreme Court and Eleventh Circuit in recent opinions, this
memorandum opinion uses the terms “intellectual disability” and “intellectually disabled” to
describe the identical phenomenon. See Hall v. Florida, 572 U.S. at 704-05 (“This change in
terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of
Mental Disorders, one of the basic texts used by psychiatrists and other experts, the manual is often
referred to by its initials ‘DSM,’ followed by its edition numbers, e.g., ‘DSM-5.’”); Burgess v.
Commn’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1310 n.1 (11th Cir. 2013) (“[W]e recognize that
increasingly professionals in this field, such as the American Association on Intellectual and
Developmental Disabilities (formerly the American Association on Mental Retardation), are
replacing the term ‘mental retardation’ with ‘intellectual disability’ or ‘intellectual developmental
disability.’”). Therefore, except when directly quoting an opinion, the new nomenclature will be
followed by this court.
13
In Bobby v. Bies, 556 U.S. 825 (2009), the Supreme Court pointed out that Atkins did not provide
definitive procedural or substantive guides for determining when a person who claims intellectual
disability will be so impaired as to fall within Atkins’ compass. Bobby v. Bies, 556 U.S. at 831.
21
With regard to the first prong of the Atkins analysis, i.e., establishing
significantly subaverage intellectual functioning, the Supreme Court has held that,
because of the imprecision inherent in IQ testing, a court must consider the standard
error of measurement (“SEM”) when assessing intellectual disability. See Hall v.
Florida, 572 U.S. 701, 721-22 (2014):
The legal determination of intellectual disability is distinct from
a medical diagnosis, but it is informed by the medical community’s
diagnostic framework. Atkins itself points to the diagnostic criteria
employed by psychiatric professionals.
And the professional
community’s teachings are of particular help in this case, where no
alternative definition of intellectual disability is presented and where
this Court and the States have placed substantial reliance on the
expertise of the medical profession.
By failing to take into account the SEM and setting a strict cutoff
at 70, Florida “goes against the unanimous professional consensus.”
APA Brief 15. Neither Florida nor its amici point to a single medical
professional who supports this cutoff. The DSM–5 repudiates it: “IQ
test scores are approximations of conceptual functioning but may be
insufficient to assess reasoning in real-life situations and mastery of
practical tasks.” DSM–5, at 37. This statement well captures the
Court's independent assessment that an individual with an IQ test score
“between 70 and 75 or lower,” Atkins, supra, at 309, n. 5, 122 S.Ct.
2242, may show intellectual disability by presenting additional
evidence regarding difficulties in adaptive functioning.
In Moore v. Texas, 137 S.Ct. 1039, 1048-53 (2017), the Supreme Court further
restricted states’ ability to circumscribe the legal definition of “intellectual
disability,” holding (1) a state’s determination under Atkins must be guided by
current medical standards, and (2) states are not free to adopt criteria unsupported
by medical science to evaluate a defendant’s alleged subaverage intellectual
22
functioning or deficits in adaptive skills. See Moore v. Texas, 137 S.Ct. at 1050-53
(holding a Texas appellate court erred in applying a set of non-clinical criteria known
as the Briseno factors in evaluating a defendant’s claim of intellectual disability
because (1) some of the Briseno factors had implicitly been rejected by the medical
community (in part because they were based on outdated stereotypes) and (2) all the
Briseno factors were little more than lay perceptions of intellectual disability
untethered to any clinical medical standard).
D. AEDPA Review
Whether Petitioner is intellectually disabled is a question of fact. Ledford v.
Warden, GDCP, 818 F.3d 600, 632 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432
(2017); Conner v. GDCP Warden, 784 F.3d 752, 766 (11th Cir. 2015), cert. denied,
136 S.Ct. 1246 (2016). Thus, the state habeas court’s determination on the merits
that Petitioner is not intellectually disabled is a finding of fact entitled to deference
under the AEDPA. Ledford v. Warden, GDCP, 818 F.3d at 632; Fults v. GDCP
Warden, 764 F.3d 1311, 1319 (11th Cir. 2014), cert. denied, 136 S.Ct. 56 (2015).
The purpose of the AEDPA is to ensure that federal habeas relief functions to
guard against extreme malfunctions in the state criminal justice systems, and not as
a means of error correction. Greene v. Fisher, 565 U.S. 34, 43 (2011) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)); Hill v. Humphrey, 662 F.3d
1336, 1347 (11th Cir. 2011) (en banc), cert. denied, 566 U.S. 1041 (2012).
23
It is significant for the purpose of this Court’s AEDPA analysis of the state
habeas court’s denial of Petitioner’s Atkins claim that both the state habeas court’s
July 1, 2004, “Final Order” denying Petitioner’s Rule 32 petition and the Alabama
Court of Criminal Appeals’ Opinion issued May 29, 2009, affirming the trial court’s
denial of Petitioner’s Rule 32 petition, were issued prior to the dates the Supreme
Court issued its opinions in Hall v. Florida, Brumfield v. Cain and Moore v. Texas,
discussed above. Except insofar as they merely reiterated or applied the holding in
Atkins, those subsequent opinions were not “clearly established” as of the date the
state courts rejected Petitioner’s Atkins claim on the merits.
E.
ALABAMA’S APPLICATION OF ATKINS
In Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002), the Alabama Supreme
Court held that the legal standard for evaluating intellectual disability within the
context of Atkins requires a criminal defendant to show (1) significant subaverage
intellectual functioning (defined as an IQ of 70 or below), (2) significant or
substantial deficits in adaptive behavior, and (3) that these problems manifested
themselves during the developmental period (i.e., before the age of 18). The
Eleventh Circuit Court has consistently recognized that Alabama courts apply the
three-component standard set forth in Perkins when considering an Atkins issue.
See, e.g., Burgess v. Commn’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1321 (11th Cir.
2013); Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010); Powell v. Allen, 602
24
F.3d 1263, 1272 (11th Cir. 2010), cert. denied, 562 U. S. 1183 (2011); Holladay v.
Allen, 555 F.3d 1346, 1353 (11th Cir. 2009); Wood v. Allen, 542 F.3d 1281, 1286
(11th Cir. 2008), aff’d, 558 U. S. 290 (2010). In addition, the Eleventh Circuit has
recognized Alabama’s requirement that the criminal defendant must show that the
problems existed at the time of the capital offense and currently. See Burgess v.
Commn’r, Ala. Dep’t of Corr., 723 F.3d at 1321, n.13 (holding the Alabama
Supreme Court requires that a defendant asserting an Atkins claim exhibit
significantly subaverage intellectual functioning abilities and significant deficits in
adaptive behavior during three periods: before the age of eighteen, on the date of the
capital offense, and currently); Thomas v. Allen, 607 F.3d at 752-53 (holding the
same); Powell v. Allen, 602 F.3d at 1272 (“it is implicit in that definition that the IQ
and deficits in adaptive functioning exist not only prior to the age of eighteen but
also at the time of the crime and currently”); Holladay v. Allen, 555 F.3d at 1353 (“it
is ‘implicit’ that the problems also existed at the time of the crime” (quoting Smith
v. State, 213 So. 3d 239, 248 (Ala. 2007) (“Implicit in the definition is that the
subaverage intellectual functioning and the deficits in adaptive behavior must be
present at the time the crime was committed as well as having manifested themselves
before age 18.”).
Furthermore, intellectual disability must be proven by a
“preponderance of the evidence.” Ex parte Carroll, 295 So. 3d 1, 3 (Ala. April 5,
2019) (citing Ex parte Smith, 213 So. 3d 313, 319 (2010)) (some citations omitted).
25
In Smith v. Campbell, 620 F. App’x. 734 (11th Cir. 2015) (unpublished), the
Eleventh Circuit Court further summarized Alabama’s application of the Atkins
decision as follows:
Neither the Alabama legislature nor the Alabama Supreme Court
has defined what constitutes “significant or substantial deficits in
adaptive behavior.” See [Perkins, 851 So. 2d at 456.] But the Alabama
Supreme Court has applied generally the “most common” or “broadest”
definition of mental retardation, which reflects “the clinical definitions
considered in Atkins.” In re Jerry Jerome Smith v. State, No. 1060427,
[213] So. 3d [239], [247-48 (Ala. 2007)]. And “significant or
substantial deficits in adaptive behavior” means under the clinical
definitions considered in Atkins, a petitioner must show “limitations in
two or more of the following applicable adaptive-skill areas:
communication, self-care, home living, social/interpersonal skills, use
of community resources, self-direction, health and safety, functional
academics, leisure, and work.” Atkins, 536 U.S. at 308 n.3, 122 S.Ct.
at 2245 n. 3 (citing the American Association on Mental Retardation
and American Psychiatric Association’s definitions of mental
retardation).[] Thus, we use that common clinical definition in
considering this case.
620 F. App’x. at 747-48 (footnotes omitted).
F.
Analysis of the Petitioner’s Atkins Claim
The Alabama Court of Criminal Appeals considered Petitioner’s Atkins claim
on the merits when it affirmed the dismissal of the state post-conviction petition.
The state appellate court specifically found that the trial judge’s determination that
Petitioner possessed an IQ between 69 and 74 and that he failed to prove that he had
significant or substantial deficits in adaptive behavior before or after the age of 18,
as well as its conclusion that Bush did not meet the definition of intellectual
26
disability adopted by the Alabama Supreme Court in Perkins, was supported by the
record. This Court, therefore, will review the state court’s ruling on Petitioner’s
intellectual functioning and adaptive behavior.
Although the Montgomery County Circuit Court and the Alabama Court of
Criminal Appeals acknowledged that Petitioner received IQ scores between 69 and
74, neither court clearly specified whether he met the first component of the Perkins
analysis, specifically whether he does in fact have “significant subaverage
intellectual functioning, i.e., an IQ of 70 or below.” Nonetheless, both these courts
quoted Ex parte Smith for the proposition that “an overall IQ of 72 . . . ‘seriously
undermines any conclusion that that [a defendant] suffers from significantly
subaverage intellectual functioning as contemplated under even the broadest
definitions ‘[of intellectual disability].’” (Vol. 38, R-91, C. 818, quoting Ex parte
Smith, 213 So. 3d 214, 225 (Ala. 2003); Vol. 38, R-92, quoting Ex parte Smith, 213
So. 3d 239, 249 (Ala. 2007)). Assuming the validity of all Petitioner’s test scores,
the average of the full-scale IQ scores in the record would be 72. Thus, the state
courts seem to infer that the average score “undermines” a conclusion that Petitioner
has “significant subaverage intellectual functioning.”14
14
During the post-conviction proceeding, no expert testified concerning the validity of any of the
scores.
27
It is important to note, however, that Alabama caselaw does not rigidly apply
a strict cutoff for IQ scores. “There is no Alabama case law stating that a single IQ
raw score, or even multiple raw scores, above 70 automatically defeats an Atkins
claim when the totality of the evidence . . . indicates that a capital offender suffers
subaverage intellectual functioning.” Thomas v. Allen, 607 F.3d 749, 757 (11th Cir.
2010). See also Smith v. Campbell, 620 F. App’x. at 749 (citing Thomas, supra, for
the proposition that “Alabama law generally does not contain a strict IQ cut-off of
70 to establish intellectual disability”). Moreover, in Atkins, the Court noted that
“between 1 and 3 percent of the population has an IQ between 70 and 75 or lower,
which is typically considered the cutoff IQ score the for the intellectual function
prong of the mental retardation definition.” 536 U.S. at 309 n. 5 (citing 2 Kaplan &
Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds.
7th ed. 2000)). The record indicates that, without considering the standard error of
measurement or the validity of a particular test, Petitioner’s full-scale IQ score may
be as low as 69 or as high as 75.15 In addition, nothing in the record indicates that
15
Although the record included the results of an additional WAIS test indicating Petitioner
received a full-scale IQ score of 75, the lower court did not discuss this score; however, on appeal,
the Alabama Court of Criminal Appeals found that Petitioner did receive a full-scale IQ score of
75 on the 1984 WAIS test, which is supported by the record.
An additional note is that the state courts did not account for the standard error of measurement
applicable to IQ scores as considered in the subsequent decision of Hall v. Florida, 572 U.S. 701
(2014). Petitioner’s counsel did, however, argue during the Rule 32 proceeding that Petitioner’s
scores indicate significant subaverage intelligence because “in terms of the numbers that the
definitions of mental retardation in both DSM IV and the American Association on Mental
28
the state trial court provided the Petitioner (or the state) with an opportunity to
challenge the validity of any of the test scores via expert testimony in a full Atkins
hearing.
Furthermore, although the Alabama Court of Criminal Appeals refers to the
1979 psychological assessment conducted by a state psychologist, the appellate
court failed to address inconsistencies within the psychologist’s analysis and ignored
parts of the report that did not support its final conclusion. For example, the
appellate court does not discuss Dr. Thompson’s opinion that the BETA score of 69
“placed [Petitioner] in the Mentally Deficient range of intellectual functioning.” (C.
723). In addition, the court did not consider the psychologist’s specific findings that
Petitioner’s reading achievement level of 3.9 and arithmetic level of 2.7 were
“greatly below his reported level of 6th grade education” or that, due to Petitioner’s
low reading level, it was necessary to assess his personality with a drawing test. 16
(Id.) Nonetheless, the psychologist assessed that Petitioner’s full-scale IQ score of
74 on the WAIS placed Petitioner in the borderline range of intellectual functioning.
(Id.) Dr. Thompson concluded that Petitioner “appeared to be functioning at the
Borderline range of intellectual functioning at the time of testing.” (Id.) Given that
Retardation’s definitions include up to 75 [and] [t]here is a five-point spread of possible error,
which could mean up or down.” (Volume 33, R. 319.)
16
An additional Wide-Range Academic Achievement Test in the record indicates that, in April
1984, Petitioner achieved a reading level of 3.7 and an arithmetic level of 3.3. (Volume 30, R.
67, C. 748.)
29
Dr. Thompson’s assessment was prepared for the limited purpose of determining
whether Petitioner should be institutionalized in community custody, rather than for
Atkins purposes, and in light of the inconsistencies within the psychologist’s
assessment and the varying test scores and the standard deviation that could indicate
a score as low as 64, an evidentiary hearing is necessary to further develop the record
regarding the intelligence and adaptive functioning issues concerning the Petitioner.
In addition, both the state trial court and the Alabama Court of Criminal
Appeals focused on Petitioner’s adaptive functional abilities without considering his
functional deficits. With the exception of one general reference to Petitioner having
“poor academic skills,” the state courts did not consider evidence suggestive of
significant deficits in adaptive functioning. In Atkins, the Court noted there are two
clinical definitions of intellectual disability which include limitations in adaptive
skill areas as follows:
The American Association on Mental retardation (AAMR)
defines mental retardation as follows: “Mental retardation refers to
substantial limitations in present functioning. It is characterized by
significantly subaverage intellectual functioning, existing concurrently
with related limitations in two or more of the following applicable
adaptive skill areas: communication, self-care, home living, social
skills, community use, self-direction, health and safety, functional
academics, leisure and work. Mental retardation manifests before age
18.” Mental Retardation, definition, Classification, and Systems of
Supports 5 (9th ed. 1992).
The American Psychiatric Association’s definition is similar.
“The essential feature of Mental Retardation is significantly subaverage
general intellectual functioning (Criterion A) that is accompanied by
30
significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health and safety (Criterion
B). The onset must occur before age 18 years (Criterion C). Mental
Retardation has many different etiologies and may be seen as a final
common pathway of various pathological processes that affect the
functioning of the central nervous system.” Diagnostic and Statistical
Manual of Mental Disorders 41 (4th ed. 2000). “Mild mental
retardation is typically used to describe people with an IQ of 50-55 to
approximately 70. Id., at 42-43.
536 U.S. at 309 n.3 (emphasis added).
Alabama courts have applied the Atkins
definitions of intellectual disablity when considering a capital defendant’s
intellectual and adaptive functioning.
See Perkins, 851 So. 2d at 455-56
(recognizing that the Legislature has not established a procedure for determining
whether a capital defendant is intellectually disabled and concluding that Perkins did
not “suffer from mental retardation under the definitions considered by the United
States Supreme Court in reaching its holding in Atkins….”).
The record includes evidence suggestive of at least two limitations in the
adaptive-skill areas. See Atkins, 536 U.S. at 308 n.3, 122 S.Ct. at 2245 n. 3. First,
the evidence suggests that Petitioner had limitations in “functional academics.”
There are references to Petitioner completing sixth grade and dropping out of school
in seventh grade. (Vol. 30, R-67, C. 722 (9/20/1979 Psychological Summary);
Alabama Board of Pardons and Paroles Report of Investigation, Vol. 5, Tab R-23,
p. 900 (Presentence Report)).
31
In addition, as an adult, Petitioner received consistently lower scores on the
WRAT. Specifically, the 1979 WRAT results indicate Petitioner achieved a reading
achievement grade level of 3.9 and an arithmetic grade level of 2.7. (Vol. 30, R-67,
C. 723.) The 1984 WRAT results indicate Petitioner achieved reading, spelling, and
arithmetic grade levels at 3.7, 2.7, and 3.3, respectively. (Vol. 30, R-67, C. 748.)
The record also includes Petitioner’s motion to amend the Rule 32 petition to
add the Atkins claim, in which counsel proffered that Petitioner “failed his subjects
in school” and was held back twice. (Vol. 25, R-66, C. 649.) Cf. Morrow v. State,
928 So.2d 315 (Ala. Crim App. 2004) (finding that evidence that criminal defendant
repeated the first grade three times and had poor grades in school were indicators of
intellectual disability). Despite evidence of adaptive deficits and defense counsel’s
proffer, Petitioner was not allowed to seek expert testimony or otherwise develop
the record regarding any limitations in the adaptive skill area of functional academics
in a full evidentiary hearing.
Next, there is also evidence suggesting that Petitioner had limitations in the
adaptive-skill area of “self-direction.” For example, the 1979 psychologist’s report
provided that “projectives suggested that [] lack of independence, loss of autonomy
and helplessness as well as evasiveness are prominent features of his personality at
this time.” (Vol. 30, R-67, C. 723.) Lack of independence is a characteristic of
individuals with an intellectual disability. See Atkins, 536 U.S. at 318 (“[T]here is
32
abundant evidence that in group settings [individuals with intellectual disability] are
followers rather than leaders.”); Morrow v. State, 928 So. 2d 315 (Ala. Crim. App.
2004) (citing Ex parte Perkins, 851 So. 2d at 317, which cites the list of significant
or substantial deficits in adaptive behavior, including the adaptive skill areas of self
care and self direction, set forth in Atkins, 536 U.S. at 308 n.3).
Despite evidence suggesting significant deficits in Petitioner’s intellectual
functioning and adaptive behavior, and even though the state trial court did not
conduct a full evidentiary hearing or allow an expert to evaluate Petitioner’s
intellectual abilities and adaptive deficits, the Alabama Court of Criminal Appeals
affirmed the state trial court’s determination that Petitioner failed to prove that he
had significant or substantial deficits in adaptive behavior before or after age 18.
Instead, the appellate court turned its focus to Petitioner’s alleged adaptive strengths.
First, the appellate court found that Petitioner “appeared articulate” at the
suppression hearing. The trial court, however, did not enter any findings regarding
Petitioner’s appearance or demeanor during the suppression hearing. Nonetheless,
to the extent the appellate court found that Petitioner responded to questions at the
suppression hearing, the finding is supported by the record.
Next, the appellate court found that Petitioner acquired technical skills while
in the federal penitentiary, completed a six-month mechanics course, and had
worked as a mechanic and on construction jobs. The trial record includes a 1991
33
Alabama Board of Pardons and Paroles Investigation Report indicating that
Petitioner reported to an investigator that he “acquired technical skills while in the
federal penitentiary in Texas, where he completed a six-month mechanics course”
and that he worked for a construction company from 1978 to 1980 and as a mechanic
for an automotive shop from 1980 to 1981. (Doc. 25-5, p. 106 of 174, C. 901.) The
specific nature of these jobs and courses, however, are not included and are based
entirely on the Petitioner’s own reporting. These matters, however, may be further
explored during a full evidentiary hearing on the Atkins issue.
The state courts also relied on Petitioner’s adaptive strengths without allowing
Petitioner to present evidence in support of his Atkins claim in a full evidentiary
hearing when determining that Petitioner “failed to prove that he had ‘significant’ or
‘substantial’ deficits in adaptive behavior before or after age 18,” Bush, 92 So. 2d
121, 150 (Ala. Crim. App. 2009) (quoting the trial court’s order which quotes Ex
parte Perkins, 851 So. 2d at 456). The state courts failed to consider the specific
evidence suggesting significant or substantial deficits in adaptive behavior, did not
allow Petitioner to obtain an expert on the matter, and did not provide a full Atkins
hearing. The record, therefore, was “simply not sufficient” to determine Petitioner’s
intellectual functioning. Cf. Morrow v. State, 928 So. 2d 315, 321 (Ala. Crim. App.
2004) (concluding that a determination of whether the petitioner was or was not
intellectually disabled could not be made based on the insufficient record and that
34
conflicts in the evidence should be resolved by a trial court). Thus, the Alabama
Court of Criminal Appeals’ determination that Petitioner does not meet the
definition of intellectual disability as set forth in the Perkins-Atkins framework is
based on a record insufficient to support its conclusions.
Recently, the Eleventh Circuit reaffirmed the standard to be applied when
reviewing a habeas petition in regard to an evidentiary hearing on a claim of
intellectual disability.
“The district court abuses its discretion where ‘such a hearing could
enable an applicant to prove the petition’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief.’ ” Id. (quoting
Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d
836 (2007)). If [the petitioner] did not diligently attempt to develop the
factual basis for this claim in the state court, absent certain
circumstances, he is not entitled to a hearing and we will affirm the
district court’s denial. 28 U.S.C. § 2254(e)(2).
Jenkins v. Comm'r, Alabama Dep't of Corr., 936 F.3d 1252, 1279–80 (11th Cir.
2019); see also Smith v. Campbell, 620 F. App’x. 734 (11th Cir. 2015)(reversed and
remanded for consideration of Smith’s request for discovery and an evidentiary
hearing because Smith’s trial preceded Atkins). Although the state trial court
allowed Petitioner to amend his Rule 32 petition on the morning of the state postconviction proceeding, the lower court did not provide Petitioner with sufficient time
to prepare for the Atkins hearing, obtain an expert, or otherwise develop the evidence
that could prove his factual allegations. Under the circumstances, the state court’s
refusal to allow discovery or provide Petitioner with an opportunity to prepare for
35
the hearing on the Atkins claim did not allow him to “diligently attempt to develop
the factual basis for this claim in the state court.” Id.
Because the trial court prevented Petitioner from presenting sufficient facts in
support of his Atkins claim in a full hearing, the Alabama Court of Criminal Appeals’
conclusion that “Bush failed to prove that he had ‘significant’ or ‘substantial deficits
in adaptive behavior before or after age 18’” was an objectively unreasonable
determination of the facts, see Smith, 620 F. App’x. at 750. Thus, Petitioner has
satisfied the requirement of §2254(d)(2) and is entitled to an evidentiary hearing in
which he may present evidence in support of his assertion that the Eighth
Amendment forbids his execution based on intellectual disability.17
IV. ORDER
Accordingly, it is hereby ORDERED that:
(1) To the extent the Petitioner seeks reconsideration of the motion for an
evidentiary hearing on the Atkins claim, the motion is GRANTED.
(2) On or before Wednesday, August 26, 2020, the attorneys are ORDERED to
confer and submit three proposed dates for a status and scheduling conference.
Because Petitioner has demonstrated that the state trial court’s decision denying his claim on the
merits cannot withstand scrutiny under §2254(d)(2), it is unnecessary to determine whether the
denial of discovery and a hearing on the intellectual disability issue likewise meets §2254(d)(1).
17
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DONE, this 5th day of August, 2020.
/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE
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