Greene v. Norris
Filing
278
ORDER denying without prejudice 257 Motion for Relief from Judgment. Greene's pro se motion to withdraw, 273 , is denied without prejudice as moot. No certificate of appealability will issue. Signed by Chief Judge D. P. Marshall Jr. on 11/23/2021. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANAS
PINE BLUFF DIVISION
CAPITAL CASE
PETITIONER
JACK GORDON GREENE
v.
No. 5:04-cv-373-DPM
DEXTER PAYNE, Director,
Arkansas Division of Correction
RESPONDENT
ORDER
1. Introduction. Greene, an Arkansas prisoner under a death
sentence, has been through a complete round of habeas proceedings.
Through appointed counsel, he now moves for relief from that
Judgment under Federal Rule of Civil Procedure 60(b)(6). He argues
that extraordinary circumstances justify reopening his habeas case so he
can make an intellectual-disability claim under Atkins v. Virginia,
536 U.S. 304 (2002).
The Court has also received papers from Greene himself. The
Court directed the Clerk to file a document submitted by Greene as a
motion to withdraw the Rule 60 motion and to file his other documents
as addenda. At the Court's invitation, both Payne and Greene's counsel
responded to Greene's pro se filings. Greene sent the Court some more
papers, which were docketed as another addendum to his motion. The
Court has considered all these filings.
2. Greene's competency and waiver.
Greene's 2004 habeas
petition included a claim that he's intellectually disabled and therefore
ineligible for the death penalty under Atkins. Greene then sought,
against his lawyers' advice, to withdraw that claim. Relying on Rees v.
Payton, the Court ordered Greene transferred to a federal medical
facility for a competency evaluation. Doc. 101. After that evaluation,
the Court (the Honorable Susan Webber Wright presiding) held a twoday evidentiary hearing. The Rees standard is whether the petitioner
"has capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation or on the other
hand whether he is suffering from a mental disease, disorder, or defect
which may substantially affect his capacity in the premises." Rees v.
Payton, 384 U.S. 312,314 (1966). This Court found Greene competent to
waive his Atkins claim.
The Court also determined that Greene's
waiver was knowing and voluntary. And the Court granted Greene's
motion to withdraw the Atkins claim. Doc. 196.
In its competency analysis, this Court considered Circuit
precedent recognizing that, although the two parts of the Rees standard
appear as alternatives, "there is necessarily an area of overlap between
the category of cases in which at the threshold we see a possibility that
a decision is substantially affected by a mental disorder, disease, or
defect, and that of cases in which, after proceeding further, we conclude
that decision is in fact the product of a rational thought process." Smith
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By and Through Missouri Public Defender Commission v. Armantrout, 812
F.2d 1050, 1057 (8th Cir. 1987). This Court concluded that, even if
Greene had a mental disease or defect and was delusional, he was
"cognizant of and appreciate[ d] the practical consequences of
abandoning his Atkins claim." Doc. 196 at 16-17. The Court found
Greene II clearly expressed his strong conviction that he is not mentally
retarded and that he does not want his attorneys to assert such a claim."
Doc. 196 at 17. The Court also noted Greene's understanding that he
wouldn't be executed if his Atkins claim was successful. Ibid.
The Court next addressed whether Greene's waiver was a rational
choice:
Despite his physical problems, whether real or delusional,
and his belief that his attorneys are not working in his best
interest, Greene has a rational basis for believing that he is
not mentally retarded. Greene communicates with others
on an adult level, and he reads, writes, and speaks fluently.
Furthermore, at the close of the competency hearing, Greene
testified that even if he were "anywhere close" to being
mentally retarded, he would not pursue an Atkins claim.
Doc. 196 at 17. The Court quoted Greene's hearing testimony about his
reasoning for not pursuing the claim. In sum, Greene did not want to
"prolong" his case "year after year after year."
He believed there
should be a "limit on appeals"; he referred to the cost to taxpayers and
"all this ridicule" that he "endured" at the competency hearing. Ibid.
The Court then summarized its findings:
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The Court need not determine whether Greene is reasoning
from "premises or values that are within the pale of those
which our society accepts as rational." See Smith, 812 F.2d at
1059. It is sufficient that the Court finds, as it does, that
Greene's decision is in fact the product of a rational thought
process.
Ibid.
The Court denied relief on Greene's remaining claims in a final
Order entered in March 2015.
Doc. 222-1.
The Court also denied
Greene's request for a certificate of appealability on a number of points,
including the validity of the Atkins waiver. Doc. 236 & 241. Greene then
sought a certificate from the Court of Appeals on a related point,
arguing that reasonable jurists could debate whether an Atkins claim
can be waived, and whether this Court had applied the correct legal
standard and made the correct analysis in finding him competent to
waive that claim. Application for Certificate of Appealability (redacted)
at 18-23, Greene v. Kelley, No. 16-1456 (8th Cir. 15 April 2016). In a
summary Order, the Court of Appeals denied that motion and
dismissed the appeal.
Doc. 245.
After Greene filed a petition for
rehearing and rehearing en bane, the Court requested a response on
whether the "district court applied the correct legal standard in
determining whether Greene was competent to waive an Atkins claim."
Judge Order, Greene v. Kelley, No. 16-1456 (8th Cir. 11 July 2016). The
Court of Appeals thereafter denied the petitions. Doc. 246. In due
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course, the Supreme Court denied Greene's petition for writ of
certiorari. Greene v. Kelley, 137 S. Ct. 2093 (1 May 2017) (Mem.).
3. Current Issues. Greene, through his lawyers, now urges this
Court to revisit the competency determination and consider his Atkins
claim. He offers four extraordinary circumstances for taking this step.
• The diagnostic framework highlighting adaptive deficits in
intellectual-disability assessment, which was published in
2013 in the Diagnostic and Statistical Manual of Mental
Disorders (DSM-5);
• New case law-Hall v. Florida, 572 U.S. 701 (2014) and Moore
v. Texas (Moore I), 137 S. Ct. 1039 (2017), which altered the
analysis of intellectual-disability claims;
• A new diagnosis of mild intellectual disability based on a
December 2019 review of records from Greene's 2017
competency-to-be-executed assessment, Doc. 257-1; and
• The Eighth Amendment's bar on execution of the
intellectually disabled.
Greene argues the Court's competency finding was based on an
incomplete and now-outdated intellectual-disability assessment. And
he says that, under recent precedent, this Court mistakenly considered
his communication skills in finding he had a rational basis for believing
he's not intellectually disabled.
The DSM-5 and the precedent- Hall and Moore I -were not
available when this Court found Greene competent in 2012, though
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Hall, and its reliance on the DSM-5, was decided prior to this Court's
final habeas Order. Both that edition of the Manual and these decisions,
moreover, predate the United States Supreme Court's denial of
Greene's petition for writ of certiorari. In Greene's petition, he noted
that Moore I was pending and asked the Supreme Court to hold his
petition until that decision was made. Petition for a Writ of Certiorari,
Greene v. Kelley, No. 16-7425 (29 December 2016). The Supreme Court
denied Greene's petition about a month after deciding Moore. Compare
Greene, 137S. Ct. 2093 (1 May 2017) with Moore, 137S. Ct. 1039 (28 March
2017). A follow-up decision applying Moore was decided after Greene's
habeas case was closed. Moore v. Texas (Moore II), 139 S. Ct. 666 (2019).
4. Second or successive petition. If it advances a claim for relief,
Greene's motion must be treated as a second or successive habeas
petition. Gonzales v. Crosby, 545 U.S. 524, 530-32 (2005). Greene says
Rule 60(b) review is appropriate because he's not advancing an Atkins
claim, but instead is attacking the competency finding that allowed
waiver of that claim.
A challenge to the competency decision is not a claim under
Gonzalez. The Supreme Court recognized that a claim, as used in
§
2244(b), is "an asserted federal basis for relief from a state court's
judgment of conviction." 545 U.S. at 530. A motion brings a claim if it
"attacks the federal court's previous resolution of a claim on the merits."
545 U.S. at 532 (emphasis original). "On the merits" in this context
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means "a determination that there exist or do not exist grounds
entitling a petitioner" to habeas relief. 545 U.S. at 532 n.4. If Greene's
pending motion is considered as a challenge to the competency
determination, he is not asserting a basis for habeas relief from a state
court judgment.
The core of Greene's Rule 60 motion, however, raises an Atkins
claim within the meaning of Gonzalez. The motion is largely devoted to
a new diagnosis of Greene's intellectual disability and the application
of new cases. Greene attempts to frame his argument as challenging
his competency finding. But he is actually asking this Court to consider
a new Atkins claim based on case law and an intellectual-disability
diagnosis unavailable at the time of this Court's competency decision.
In concluding his Rule 60 motion, Greene urges this Court to "reopen
the judgment and hold a hearing on the merits of [his] Atkins claim."
Doc. 257 at 21. Greene's arguments go beyond a" defect in the integrity
of the federal habeas proceedings"; the deeper layer is the merits of an
Atkins claim.
Gonzalez, 545 U.S. at 532.
Greene's Rule 60 motion
therefore is actually a second or successive habeas petition, which
requires preauthorization from the Court of Appeals. 28 U.S.C.
§
2244(b)(3)(A).
Greene's reliance on Ybarra v. Filson is misplaced. 869 F.3d 1016
(9th Cir. 2017). The Court of Appeals for the Ninth Circuit held that the
petitioner correctly labeled his Atkins-based motion as one under
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Rule 60(b ). That determination, however, was based on that Circuit's
reasoning that Ybarra' s Atkins claim, like a prematurely raised Ford
claim, was dismissed for "technical procedural reasons."
892 F.3d
at 1022-23. The Ninth Circuit's analysis isn't persuasive on this record.
Greene waived the Atkins claim; it was not dismissed for technical
procedural reasons. ~
5. Extraordinary circumstances.
Even if Greene's motion is
considered under Rule 60(b)(6), he hasn't presented the extraordinary
circumstances the law requires for relief. Those circumstances "rarely
occur in the habeas context."
Gonzalez, 545 U.S. at 535. Greene's
arguments about the developing law on intellectual disabilities,
diagnostic framework revisions, and a new diagnosis do not
undermine this Court's competency analysis under Rees. The Court
found that Greene "has a rational basis for believing that he is not
mentally retarded" because he" communicates with others on an adult
level, and he reads, writes, and speaks fluently." Doc. 196 at 17. Greene
argues the Court would reach a different conclusion on the rationality
of the waiver if later developments in intellectual-disability law are
considered. But changes in the law alone aren't usually considered
extraordinary circumstances. Kansas Public Employees Retirement System
v. Reimer & Kroger Assoc., Inc., 194 F.3d 922, 925 (8th Cir. 1999). The
Court, moreover, did not analyze or offer any opinion on whether
Greene is actually intellectually disabled under Atkins. Because the
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Court did not consider Greene's intellectual disability, his related
arguments do not reach the Court's competency determination.
Greene points to other references to intellectual disability and IQ
testing in the competency-to-waive proceedings:
• The Court ordered IQ testing and an intellectual-disability
opinion as part of Greene's evaluation, Doc. 101 at 2;
• The Court stated at the evidentiary hearing that Greene's
"IQ and his ability to think rationally are factors" that can be
considered in determining competency, Doc. 188-1 at 9; and
• The Court's evidence summary in the competency Order,
Doc. 196 at 12-13, included Greene's IQ test results.
Greene says the Court "relies heavily" on an assessment of
intellectual disability. Doc. 267 at 2. The Court, however, explained at
the evidentiary hearing that it "never intended" to make any findings
about intellectual disability.
Doc. 188-1 at 9.
Moreover, the Court
accepted the parties' stipulation that intellectual-disability evidence
would not be introduced. Doc. 188-1 at 8-9. Greene also points to the
Court's denial of an Atkins-related ineffectiveness claim in the final
habeas Order.
That denial, however, was based on the state-court
evidence available to Greene's trial lawyers, not the merits of an
intellectual-disability defense.
Doc. 222-1 at 87.
None of these
references demonstrates that this Court made an intellectual-disability
determination as part of the 2012 competency analysis.
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Greene also fails to establish that a new intellectual-disability
diagnosis is an extraordinary circumstance. In October 2017, Dr. Garret
Andrews, a neuropsychologist, examined Greene for competency to be
executed. Doc. 257-1 at 1. According to Greene, his execution was set
for the following month. Two years later, a few days before Greene
filed his current Rule 60 motion in December 2019, Dr. Andrews
reported that he had reviewed those competency-to-be-executed
records and diagnosed Greene with a mild intellectual disability. Ibid.
Dr. Andrews considered Greene's IQ score of 75 and records of
adaptive functioning. Ibid. It's true Greene wasn't formally assessed
for intellectual disability before Dr. Andrews's 2019 review of his
records. But no other expert who examined Greene during his multiple
legal proceedings found him to be intellectually disabled. Two state
forensic reports - at trial and resentencing- stated that Greene
"possessed at least average intelligence." Doc. 221-1 at 87. Dr. Christina
Pietz is the psychologist who assessed Greene's competency to waive
the Atkins claim. Her testing showed Greene had an IQ score of 76. Dr.
Pietz believed that score likely underestimated Greene's IQ because he
was unwilling to complete a subtest involving visual puzzles.
Greene contends the new diagnosis is an extraordinary
circumstance because the Court wasn't aware of the diagnosis when it
accepted his waiver. He says the Court should reopen his case to hear
that intellectual-disability evidence.
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Greene, however, was found
competent to waive his Atkins claim, and he did so.
Because the
intellectual-disability claim was waived, the Court did not consider it.
On this record, the new diagnosis, moreover, is not the compelling
evidence required to constitute extraordinary circumstances.
Greene's Eighth Amendment argument isn't an extraordinary
circumstance warranting relief either.
Citing Hall and Moore, he
contends his habeas case must be reopened to prevent the
unconstitutional execution of an intellectually disabled person. Greene
also submits other supporting authority, White v. Commonwealth, 600
S.W.3d 176 (Ky. 2020). During the White proceedings on direct appeal,
after the case had been remanded by the United States Supreme Court,
the Kentucky Supreme Court rejected the defendant's pro se efforts to
dismiss his Atkins claim. The Kentucky state court held the intellectualdisability issue could not be waived for two reasons:
the Eighth
Amendment bars the death penalty for an "entire category of
individuals" -the intellectually disabled; and there was reasonable
doubt about whether White was a member of that group. White, 600
S. W.3d at 180. The procedural posture of Greene's case, however,
requires a different analysis. This Court dismissed Greene's Atkins
claim in the initial habeas proceeding, and a final Order was entered.
That decision made its way through the appellate courts. Atkins claims
are subject to the generally applicable habeas procedural rules. Williams
v. Kelley, 858 F.3d 464, 472-73 (8th Cir. 2017); Davis v. Kelley, 854 F.3d
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967 (8th Cir. 2017); Davis v. Norris, 423 F.3d 868, 879, 970 (8th Cir. 2005).
In these cases, the Court of Appeals rejected Atkins claims because
petitioners raised them for the first time in barred successive habeas
petitions. Those decisions guide analysis of the Rule 60(b)(6) issue
raised here. A waived Atkins claim doesn't constitute an extraordinary
circumstance requiring this Court to reopen Greene's closed case.
6. Conclusion. What Greene has labeled a Rule 60(b) motion is,
"if not in substance a 'habeas corpus application,' at least similar
enough that failing to subject it to the same requirements would be
'inconsistent with' the statute."
Gonzalez, 545 U.S. at 531 (quoting
28 U.S.C. § 2254 and Rule 12 of the Rules Governing Section 2254 Cases
in the United States District Courts).
This Court therefore lacks
jurisdiction. Alternatively, Greene has not presented extraordinary
circumstances justifying relief under Rule 60(b)(6).
*
*
*
Greene's motion, Doc. 257, is denied without prejudice. Greene's
prose motion to withdraw, No. 2 73, is denied without prejudice as moot.
No certificate of appealability will issue.
So Ordered.
D .P. Marshall Jr.
United States District Judge
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