Smith v. Thomas

Filing 57

MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/21/2017. (KAM, )

FILED
2017 Jul-21 PM 04:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE B. SMITH, III,
Petitioner,
v.
JEFFERSON S. DUNN, Commissioner,
Alabama Department of Corrections,
Respondent.

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Case No.: 2:13-CV-00557-RDP

MEMORANDUM OPINION
This matter is before the court on the court’s March 29, 2017 order (Doc. # 47), which
reopened this action for the sole purpose of considering the effect of Moore v. Texas, 137 S. Ct.
1039 (2017) on the Atkins issue presented in this case. (See Doc. # 46 at 1-2). The issues raised
in the court’s order are fully briefed. (Docs. # 55, 56).
I.

Background
Petitioner filed this § 2254 action alleging that his conviction and sentence were secured

in violation of his rights under the Constitution. (See Doc. # 1). Among other grounds for relief,
Petitioner claimed that he is intellectually disabled, and as such, ineligible for the death penalty
under the Eighth Amendment. (Doc. # 1-1 at ¶¶ 108-134). The court entered a Memorandum
Opinion and Final Judgment on March 28, 2017, which denied his petition for writ of habeas
corpus and dismissed the petition with prejudice. (See Docs. # 45, 46). The court granted
Petitioner a certificate of appealability on the issue of whether the Alabama Court of Criminal
Appeals unreasonably applied Atkins v. Virginia, 536 U.S. 304 (2002), in holding that Petitioner
failed to prove that he was intellectually disabled, and, thus, ineligible for the death penalty.
(Doc. # 46 at 1-2).

On March 29, 2017, the court reopened this action for the purpose of considering the
effect of Moore v. Texas, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017). (Doc. # 47). The court
directed the parties to answer five questions in their briefing of the issue:
1.

Whether Moore’s holding(s) constitute “clearly established Federal law” that
must be applied by this court when reviewing whether the Alabama Court of
Criminal Appeals issued a decision contrary to clearly established law or
unreasonably applying clearly established law under 28 U.S.C. § 2254(d)(1). Cf.
Kilgore v. Sec’y, Florida Dep’t of Corr., 805 F.3d 1301, 1310-12 (11th Cir. 2015)
(concluding that Hall v. Florida, 134 S. Ct. 1986 (2014), established a new
obligation on state courts in making intellectual disability determinations that was
not clearly established by Atkins v. Virginia, 536 U.S. 304 (2002));

2.

Whether Moore announced a new rule of constitutional law that must be applied
retroactively to this case, pursuant to Teague v. Lane, 489 U.S. 288 (1989). Cf.
Kilgore, 805 F.3d at 1312-15 (concluding that Hall’s holding did not fall under a
Teague exception to non-retroactivity);

3.

Whether the Alabama courts unreasonably applied clearly established federal law
or issued a decision contrary to clearly established federal law by failing to apply
an adjustment to Smith’s credible IQ score to account for the test’s standard error;

4.

Whether the Alabama courts unreasonably applied clearly established federal law
or issued a decision contrary to clearly established federal law by considering
Smith’s adaptive strengths when examining whether he had sufficient adaptive
deficits to be deemed intellectually disabled; and

5.

Whether the Alabama courts unreasonably applied clearly established federal law
or issued a decision contrary to clearly established federal law by failing to
identify a clinical medical standard that they used to determine intellectual
disability, such as those located in the Diagnostic and Statistical Manual of
Mental Disorders or the clinical manual issued by the American Association on
Intellectual and Developmental Disabilities.

(Id. at 1-2).
II.

The Moore Opinion
In Moore, the Supreme Court vacated the Texas Court of Criminal Appeals’ judgment.

Moore, 137 S. Ct. at 1044. Moore had challenged his death sentence on the ground that he was
intellectually disabled and therefore exempt from execution. Id. While the state habeas court

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determined that Moore qualified as intellectually disabled, the Texas appellate court declined to
adopt the judgment recommended by the state habeas court.1 Id. The appellate court reasoned
that the evidentiary factors announced in Ex parte Briseno, 135 S.W.3d 1 (2004) “weigh[ed]
heavily” against upsetting Moore’s death sentence. Id. (citing Ex parte Moore, 470 S.W.3d 481,
526 (2015)). While the state habeas court consulted current medical diagnostic standards in
making its recommendation, the appellate court reaffirmed Briseno as binding precedent on
intellectual disability issues in Texas capital cases. Id. at 1046 (citing Ex parte Briseno, 135
S.W.3d at 7).
Employing Briseno, the Texas appellate court discounted the lower end of the standarderror range associated with Moore’s IQ scores, and determined that he had failed to prove
significantly subaverage intellectual functioning. Id., at 1047 (citing Ex parte Briseno, 135
S.W.3d at 514-19). The appellate court then reasoned that even if Moore had proven that he
suffers from significantly sub-average general intellectual functioning, he failed to prove
“significant and related limitations in adaptive functioning.” Id. (citing Ex parte Briseno, 135
S.W.3d at 520). The appellate court credited Moore’s adaptive strengths as more illustrative of
his intellectual functioning than his adaptive weaknesses, and noted that the Briseno factors
“weigh[ed] heavily” against finding that Moore’s adaptive deficits were related to his intellectual
functioning deficits. Id. (citing Ex parte Briseno, 135 S.W.3d at 488-89, 522-27).
However, the Supreme Court granted certiorari and found that the state appellate court’s
adherence to superseded medical standards and its reliance on Briseno did not comply with either
the Eighth Amendment or the Court’s precedents. Id. at 1053. The Court held that the state
appellate court’s conclusion that Moore’s IQ scores established that he was not intellectually

1

Under Texas law, the CCA, not the court of first instance, is the “ultimate factfinder” in habeas
proceedings. Moore, 137 S.Ct. at 1044 n.2.

3

disabled was irreconcilable with its decision in Hall. Id. at 1049 (citing Hall v. Florida, 134 S.
Ct. 1986, 2000 (2014)). Hall instructs that courts must account for an IQ test’s “standard error of
measurement,” which the appellate court did not do.2 Id.
The Court then held that the “[appellate court’s] consideration of Moore’s adaptive
functioning also deviated from prevailing clinical standards and from the older clinical standards
the court claimed to apply.” Id. at 1050. Specifically, the Court faulted the Texas appellate
court for overemphasizing Moore’s perceived adaptive strengths, when the medical community
focuses the adaptive-functioning inquiry on adaptive deficits. Id. Moreover, the Court faulted
the appellate court for departing from clinical practice by improperly weighing Moore’s past
traumatic experiences and requiring Moore to show that his adaptive deficits were not related to
“a personality disorder.” Id. at 1051 (citing Ex parte Moore, 470 S.W.3d at 488, 526).
In its analysis, the Supreme Court condemned the use of the Briseno factors. Id. The
Briseno court defined its objective as identifying the “consensus of Texas citizens” on who
“should be exempted from the death penalty,” reasoning that individuals with “mild” intellectual
disability might be treated differently under clinical standards than under Texas’ capital system.
Id. (citing Ex parte Briseno, 135 S.W.3d at 6). However, the Court noted that those with “[m]ild
levels of intellectual disability, although they may fall outside Texas citizens’ consensus,
nevertheless remain intellectual disabilities.”3 Id. Moreover, the Supreme Court recognized that

2

The court stated that “Moore’s score of 74, adjusted for the standard error of measurement, yields a range
of 69 to 70, as the State’s retained expert acknowledged. Because the lower end of Moore’s score range falls at or
below 70, the appellate court was required to consider Moore’s adaptive functioning. Moore, 137 S.Ct. at 1049
(internal citations omitted).
3

The Court noted that Briseno questions such as, “Did those who knew the person best during the
developmental stage… think he was mentally retarded at that time, and, if so, act in accordance with that
determination?” demonstrate the [appellate court’s] improper emphasis on lay perceptions of intellectual disability,
as opposed to medical and clinical standards. Moore, 137 S.Ct. at 1051-52.

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no other state legislature approved the use of the Briseno factors, and Texas itself does not
follow Briseno in contexts other than the death penalty. Id. at 1052.
Accordingly, the Supreme Court held that:
By rejecting the habeas court's application of medical guidance and clinging to
the standard it laid out in Briseno, including the wholly nonclinical Briseno
factors, the CCA failed adequately to inform itself of the “medical community's
diagnostic framework,” Hall, 572 U.S., at –––– – ––––, 134 S.Ct., at 2000.
Because Briseno pervasively infected the CCA's analysis, the decision of that
court cannot stand.
Id. at 1053.
III.

Analysis
After careful review, the court concludes that Petitioner is not entitled to relief.
A.

Moore Does Not Constitute Clearly Established Federal Law Which
Governed at the Time the State Court Rendered its Decision.

Under § 2254(d)(1), federal courts must uphold a state court decision unless it is
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “‘[C]learly
established Federal law’ under § 2254(d)(1) is the governing legal principle 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) (emphasis added). Moreover, “[t]he Supreme Court has repeatedly
held that only the actual holdings of its decisions can ‘clearly establish []’ federal law for §
2254(d)(1) purposes,” and an opinion that merely “interprets” or “refines” a prior opinion does
not constitute clearly established law under § 2254(d)(1). Kilgore, 805 F.3d at 1310-11 (citing
Loggins v. Thomas, 654 F.3d 1204, 122 (11th Cir. 2011)).

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Petitioner concedes that Moore cannot be considered “clearly established Federal law” at
the time the Alabama courts heard Smith’s case.4 (Doc. # 56 at 15). Indeed, Moore’s holding
was not set forth on the date which the Alabama Court of Criminal Appeals issued its decision.
Smith v. State, 112 So. 3d 1108, 1116 (Ala. Crim. App. 2012).
Atkins held that the execution of intellectually disabled offenders is categorically
prohibited by the Eighth Amendment. Notably, Atkins did not define intellectual
disability, nor did it direct the states on how to define intellectual disability, nor,
finally, did it provide the range of IQ scores that could be indicative of intellectual
disability. Rather, Atkins expressly left it to the states to develop “appropriate
ways to enforce the constitutional restriction” on executing the intellectually
disabled.
Kilgore, 805 F.3d at 1311 (citing Atkins, 536 U.S. at 317). By contrast, the Court’s holding in
Moore addressed Texas’ standards for how to define intellectual disability. At most, Moore’s
holding can be construed as an application of Hall v. Florida, 134 S.Ct. 1986 (2014). See
Moore, 137 S.Ct. at 1044 (“As we instructed in Hall, adjudications of intellectual disability
should be ‘informed by the views of medical experts.’”); Id. at 1049 (“The [appellate court’s]
conclusion that Moore’s IQ scores established that he is not intellectually disabled is
irreconcilable with Hall.”). However, this Circuit has held that Hall was not clearly established
by Atkins. Kilgore, 805 F.3d at 1311. And Hall was not decided until after the Alabama Court
of Criminal Appeals entered the relevant decision in this case. Accordingly, Moore does not
constitute clearly established federal law which governed at the time the state court rendered its
decision.

4

To be clear, Petitioner’s concession comes with two caveats. First, Petitioner “respectfully disagrees with
the decision in Kilgore, but recognizes Kilgore is the controlling legal authority in the Eleventh Circuit.” (Doc. # 56
at 14). Second, the Supreme Court recently granted certiorari, vacated judgment and remanded two cases back to
the Fifth Circuit “for consideration in light of Moore.” Martinez v. Davis, 581 U.S. ___ (2017) (No. 15-7974);
Henderson v. Davis, 581 U.S. ___ (2017) (No. 16-6445). Petitioner contends that the court should consider Moore
as clearly established law to the extent that the two remands (referenced above) might be construed as a finding that
Moore constituted clearly established federal law as of May 25, 2012. (Doc. # 56 at15 n. 2).

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B.

Moore Did Not Announce a New Rule of Constitutional Law that Must Be
Applied Retroactively

A petitioner is not entitled to federal habeas relief when he relies on a “new rule” of
federal law, unless certain exceptions are met. Kilgore, 805 F.3d at 1312 (citing Lambrix v.
Singletary, 520 U.S. 518, 527 (1997)). “[A] case announces a new rule if the result was not
dictated by precedent existing at the time the defendant's conviction became final.” Teague v.
Lane, 489 U.S. 288, 301 (1989). New substantive rules generally apply retroactively. Schriro v.
Summerlin, 542 U.S. 348, 352 (2004). And “‘watershed rules of criminal procedure’ implicating
the fundamental fairness and accuracy of the criminal proceeding” apply retroactively.

Id.

(citing Saffle v. Parks, 494 U.S. 484, 495 (1990)).
Here, Petitioner argues that Moore announced a new substantive rule which should apply
retroactively.

“Substantive rules include ‘rules forbidding criminal punishment of certain

primary conduct,’ as well as ‘rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense.’” Montgomery v. Louisiana, 136 S. Ct. 718, 728,
193 L. Ed. 2d 599 (2016) (citing Penry v. Lynaugh, 492 U.S. 302, 330 (1989); Teague, 489 U.S.
at 307). Petitioner contends that Moore should apply retroactively because “the same person
engaging in the same conduct is no longer subject to” the punishment at issue. Welch v. United
States, 136 S.Ct. 1257, 1265 (2016). The court disagrees.
First, Kilgore’s analysis regarding the retroactivity of Hall is instructive here:
Since Hall's holding undeniably is “new,” we turn to Kilgore's claim that it meets
the first Teague exception—that it prohibits the imposition of a certain type of
punishment for a class of defendants because of their status or offense. Applying
this exception, the Supreme Court has said that a rule prohibiting “the execution
of [intellectually disabled] persons ... would be applicable to defendants on
collateral review” because “a new rule placing a certain class of individuals
beyond the State's power to punish by death is analogous to a new rule placing
certain conduct beyond the State's power to punish at all.” Penry v. Lynaugh, 492
U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Thus, when Atkins later
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held that “an exclusion for the [intellectually disabled] is appropriate,” 536 U.S. at
319, 122 S.Ct. 2242, we recognized that Atkins established a new rule of
constitutional law. We concluded that “the new constitutional rule abstractly
described in Penry and formally articulated in Atkins is retroactively applicable to
cases on collateral review.” In re Holladay, 331 F.3d at 1173.
But the same result does not hold true for Hall, which merely provides new
procedures for ensuring that states follow the rule enunciated in Atkins. As we
held in In re Henry, Hall did not expand the class of individuals protected by
Atkins's prohibition. In re Henry, 757 F.3d at 1161. Rather, Hall created a
procedural requirement that those with IQ test scores within the test's standard of
error would have the opportunity to otherwise show intellectual disability. Hall
guaranteed only a chance to present evidence, not ultimate relief. Therefore, as we
recognized in In re Henry, Penry in no way dictated that the rule announced in
Hall is retroactive to cases on collateral review. See id.
Kilgore, 805 F.3d at 1314. Kilgore’s analysis of Hall applies equally here. In Moore, the
Supreme Court dealt with the “procedural requirement[s]” associated with the Texas appellate
court’s determination of a petitioner’s disability – it did not expand the class of individuals
protected by Atkins. As with Hall, Moore did not guarantee relief for a new class of individuals
not previously protected by Atkins. To the contrary, Moore condemned the particular procedure
and analysis used by the Texas appellate court, and held that courts must account for a test’s
“standard error of measurement” and make intellectual disability determinations which are
informed by the medical community’s diagnostic framework. Moore, 137 S.Ct. at 1048-53.
Second, to the extent that Moore is viewed as an application of Hall, it cannot apply
retroactively. As addressed above, the Court, in Moore, cited Hall in support of its holdings.5
See id. at 1044 (“As we instructed in Hall, adjudications of intellectual disability should be
‘informed by the views of medical experts.’”); Id. at 1049 (“The [appellate court’s] conclusion
that Moore’s IQ scores established that he is not intellectually disabled is irreconcilable with

5

The findings that (1) Moore’s holding was not clearly established law at the time of the Alabama Court
of Criminal Appeals’ ruling, and (2) Moore can be viewed as an application of Hall are not contradictory. As
addressed above, Hall was decided after the Alabama Court of Criminal Appeals rendered its operative decision.

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Hall.”). And, this Circuit has already held that Hall does not apply retroactively. Kilgore, 805
F.3d at 1316.
Finally, Moore did not announce a “watershed” rule which would fall under Teague’s
second exception to non-retroactivity.6 “To fall within this exception, a new rule must meet two
requirements: Infringement of the rule must seriously diminish the likelihood of obtaining an
accurate conviction, and the rule must alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding.” Tyler v. Cain, 533 U.S. 656,665 (2001)
(quotation and emphasis omitted). This exception “is so tight that very few new rules will ever
squeeze through it.” Howard v. United States, 374 F.3d 1068, 1080 (11th Cir. 2004). As our
Circuit has recognized, “[t]he presentation of evidence by a defendant seeking to establish
intellectual disability does not meet this standard.” Kilgore, 805 F.3d at 1314. Accordingly,
Moore does not meet any of the Teague exceptions to non-retroactivity, and does not apply
retroactively in this case.
C.

The Alabama Courts Did Not Unreasonably Apply Clearly Established
Federal Law or Issued a Decision Contrary to Clearly Established Federal
Law

Because Moore was not clearly established federal law at the time the Alabama Court of
Criminal Appeals entered its decision, and because Moore does not apply retroactively, the state
courts did not unreasonably apply clearly established federal law in failing to consider “margin
of error” when examining Petitioner’s IQ score. As addressed in the court’s March 28, 2017
opinion, Atkins does not prohibit such a determination, and only when Hall was decided did
federal law “change[] course” by requiring states to recognize a margin of error when assessing
IQ scores. (Doc. # 45 at 56 (citing Kilgore, 805 F.3d at 1311)). While Moore cited Hall for the
6

Petitioner does not argue that Moore announced a “watershed” procedural rule. (See generally Doc. #
56). However, having found that any new rule announced by Moore is procedural rather than substantive, the court
addresses the second Teague exception.

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premise that the Texas appellate court erred by failing to account for the IQ test’s standard error
of measurement, Moore, 137 S.Ct. at 1049, federal law imposed no such obligation on the
Alabama Court of Criminal Appeals at the time it rendered its decision. Accordingly, Moore
provides no relief to Petitioner with respect to the state court’s determination not to account for
standard error of measurement.
Similarly, the state court did not unreasonably apply clearly established federal law by
considering Petitioner’s adaptive strengths when examining whether he had sufficient adaptive
deficits. In Moore, the Court faulted the lower court for “overemphasiz[ing] Moore’s perceived
adaptive strengths.” Moore, 137 S.Ct. at 1050. The Court noted that “the medical community
focuses the adaptive-functioning inquiry on adaptive deficits,” and referenced Hall for the
proposition that the intellectual-disability determination must be “informed by the medical
community’s diagnostic framework. Id. at 1048, 1050. However, as addressed above, the
Alabama courts were not bound by this holding at the time they heard Petitioner’s case, and the
holding is not retroactive.
Moreover, the Alabama Court of Criminal Appeals’ holding is distinguishable from the
situation presented in Moore. Moore did not condemn any reference to adaptive strengths
included in the intellectual-disability analysis, and instead only noted the medical community’s
emphasis on deficits in adaptive functioning and cautioned against overemphasis of perceived
adaptive strengths. Here, the parties presented the state courts with conflicting test scores
regarding Petitioner’s adaptive functioning. (State Court Record, Vol. 34, Tab-74 at 7-9). In
light of this conflicting evidence, it was reasonable for the Alabama Court of Criminal Appeals
to look to Petitioner’s demonstrated adaptive abilities (or lack thereof) to reconcile the test scores
and determine which ones were credible. Such a determination does not run afoul of Moore.

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Finally, the state court did not unreasonably apply clearly established federal law by
failing to identify the clinical medical standard used to determine intellectual disability. As
addressed above, Moore was not clearly established federal law at the time of the Alabama
courts’ decisions, and does not apply retroactively in this case. Moreover, Moore imposes no
specific requirement that courts identify the clinical medical standard that they apply – it simply
requires that a court’s determination must be “informed by the medical community’s diagnostic
framework.” Moore, 137 S.Ct. at 1048 (quoting Hall, 134 S.Ct. at 2000). Indeed, the Briseno
factors addressed in Moore were in many ways unique. The factors sought to identify the
“consensus of Texas citizens” on who “should be exempted from the death penalty.” Id. at 1051
(citing Briseno, 135 S.W.3d at 6). The Alabama courts did not operate under such a standard,
and even if Moore applied to analysis of this case (and, to be sure, it does not) the court cannot
say that state courts unreasonably applied clearly established federal law.
IV.

Conclusion
Smith’s petition, which the court reopened for limited consideration, is due to be denied.

A separate order will be entered.
DONE and ORDERED this July 21, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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