Ledford, et al v. Head, et al
Filing
126
ORDER AND OPINION denying petitioners Motion for Reconsideration 122 . The parties are directed to prepare the case for final disposition on the other issues raised by the habeas petition. Petitioner should file his final brief, and any supplemental materials that he deems necessary for the Court to issue a final decision, by Friday, March 21, 2014. Respondent should file its response by Friday, April 11, 2014 Signed by Judge Julie E. Carnes on 2/26/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
J.W. LEDFORD, JR.,
Petitioner,
CIVIL ACTION NO.
v.
1:02-cv-1515-JEC
FREDRICK HEAD, Warden, Georgia
Diagnostic and Classification
Prison,
Respondent.
ORDER AND OPINION
Petitioner, a prisoner currently under sentence of death by the
State of Georgia, has pending before this Court a habeas corpus
action pursuant to 28 U.S.C. § 2254.
One of the issues raised in the
habeas petition is petitioner’s claim that he is mentally retarded
and is therefore not subject to execution.
After three days of
hearings and an exhaustive review of the record and extensive
briefing, the Court entered an order on March 19, 2008 concluding
that petitioner is not mentally retarded under Georgia law.1
(Order
1
After issuance of this order, the Court issued a second order
identifying those claims of Petitioner’s that were procedurally
defaulted. ([99].)
The Court directed the parties to brief the
merits of Petitioner’s remaining claims.
Following completion of the parties’ briefing of the merits of
the remaining claims, the Court issued an order noting that the
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[96] and Hearing Tr. [80], [83] and [84].)
Petitioner has now filed a motion for reconsideration based on
recent developments in the case law and in other authorities since
the Court entered its Order. (Pet’r’s Mot. to Reconsider [122].) As
a result of those developments, petitioner urges the Court to revisit
its
conclusion
Specifically,
that
he
petitioner
is
not
contends
mentally
that
the
retarded.
Court
(Id.)
should,
in
accordance with intervening decisions and authorities, adjust his IQ
scores downward to account for the “Flynn Effect” and the standard
error of measurement (“SEM”).
(Id. at 3-13.)
Petitioner further
argues that the Court should re-evaluate the evidence of petitioner’s
impairment in the areas of work and self-direction.
(Id. at 13-18.)
Eleventh Circuit had recently issued a decision that held
unconstitutional Georgia’s statutory requirement that mental
retardation be proved beyond a reasonable doubt by a capital criminal
defendant; the Court directed further briefing.
([111].)
The
parties jointly requested that the Court stay any briefing until the
Eleventh Circuit could determine whether it would rehear en banc the
above decision: Hill v. Schofield, 608 F.3d 1272 (11th Cir. 2010)
and, if it did, until a final ruling in the case. ([112].)
The Eleventh Circuit did grant an en banc rehearing and
ultimately determined that the Georgia requirement that a capital
defendant prove his mental retardation beyond a reasonable doubt was
constitutional. Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011)(en
banc). The State notified the Court on September 6, 2012 that the
United States Supreme Court had denied petitioner Hill’s petition for
certiorari and his subsequent motion for rehearing.
([117]) The
parties have filed several briefs on the merits of the remaining
claims.
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Having
carefully
considered
the
recent
authorities
cited
by
petitioner, the Court finds that reconsideration is unwarranted.
Accordingly, petitioner’s motion [122] is DENIED.
BACKGROUND
Georgia prohibited the execution of mentally retarded criminals
in 1988. See O.C.G.A. § 17-7-131(j). The Supreme Court subsequently
held that execution of the mentally retarded constitutes cruel and
unusual punishment, in violation of the Eighth Amendment.
Virginia, 536 U.S. 304 (2002).
Atkins v.
The Atkins decision has been deemed
retroactively applicable to cases on collateral review.
In re
Holladay, 331 F.3d 1169, 1172 (11th Cir. 2003).
Under Atkins, federal courts must look to state law to determine
whether a criminal is mentally retarded. Holladay v. Allen, 555 F.3d
1346, 1353 (11th Cir. 2009).
mental
retardation
are:
In Georgia, the essential features of
(1)
significantly
subaverage
general
intellectual functioning, (2) resulting in impairments in adaptive
behavior,
and
(3)
manifesting
O.C.G.A. § 17-7-131(a)(3).
during
the
developmental
period.
The Georgia Supreme Court has explained
that:
“Significantly subaverage intellectual functioning” is
generally defined as an IQ of 70 or below. However, an IQ
test score of 70 or below is not conclusive. At best, an IQ
score is only accurate within a range of several points,
and for a variety of reasons, a particular score may be
less accurate. Moreover, persons “with IQs somewhat lower
than 70” are not diagnosed as being mentally retarded if
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there “are no significant
adaptive functioning.”
deficits
or
impairment
in
Stripling v. State, 261 Ga. 1, 4 (1991)(internal citations omitted).
Georgia law requires a criminal to prove mental retardation beyond a
reasonable
doubt.
See
O.C.G.A.
§
17-7-131(c)(3)
and
Hill
v.
Humphrey, 662 F.3d 1335, 1360 (11th Cir. 2011)(holding that Georgia’s
reasonable
doubt
standard
for
proving
mental
retardation
is
constitutional).
Prior to petitioner’s capital trial, a court-appointed expert
determined that he had a “borderline” IQ in the 70 to 80 range.
(Order [96] at 2.)
Despite this information, petitioner’s trial and
appellate attorneys never explored whether petitioner was mentally
retarded and thus ineligible for the death penalty under Georgia law.
(Id.)
The
state
habeas
court
subsequently
excluded
evidence
concerning, and otherwise ignored, petitioner’s claim that he was
retarded and that his attorneys were ineffective for failing to look
into the issue.
(Order [38] at 3.)
This Court accordingly found
that an evidentiary hearing was warranted on the mental retardation
issue.
(Id. at 16.)
The purpose of the hearing was to provide
petitioner with an opportunity to demonstrate that he was retarded.
(Id.)
After a three-day hearing and extensive briefing, the Court
credited two of petitioner’s six IQ scores: (1) his score of 79 on
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the WAIS-III test administered by Dr. King in 2007 and (2) his score
of 77 on the WAIS-R test administered by Dr. Perri in 1992.2
[96] at 12-14.)
(Order
Both scores are above the generally-accepted
benchmark score of 70 for establishing “significantly subaverage
intellectual functioning” as required by Georgia law. See Stripling,
261 Ga. at 4.
However, petitioner argued that the scores should be
reduced to account for the “Flynn Effect” and to compensate for a
five-point SEM.
(Id. at 15-20.)
The Court discussed the Flynn Effect and the SEM at length in
its prior Order.
(Id.)
Briefly, the Flynn Effect is a theory
positing that because collective intelligence increases over time,
the scores on older tests should be reduced so that the test result
is an accurate comparison to current norms.
(Id. at 15-16.)
The SEM
merely refers to the statistical range that a test result normally
represents such that an IQ test result of, for example, 100 indicates
that the test taker has an IQ somewhere in the range of 95-105.3 (Id.
at 19.)
According to petitioner, the SEM mandates a benchmark of 75
rather than 70 for showing the first prong of mental retardation, a
2
Petitioner does not seek reconsideration of the Court’s
determination that the results of the other four IQ tests that he
took were unreliable.
3
An extremely detailed discussion of the SEM appears in United
States v. Wilson, 922 F. Supp. 2d 334, 345-49 (E.D.N.Y. 2013).
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range that can be achieved in this case if the Flynn Effect is
applied to reduce petitioner’s test scores by four points each.
As explained in the previous Order, the Court did not apply the
Flynn Effect because the phenomenon is not used in clinical practice
and the Court was “hesitant to apply a theory that is used solely for
the purpose of lowering IQ scores in a death penalty context.”
(Order [96] at 17.)
In addition, there was some evidence that the
Flynn Effect was not as pronounced on the WAIS-III, one of the tests
that was used in this case.
(Id.)
Further, the Court did not
undertake to adjust petitioner’s test results to account for the SEM
because such an adjustment could result either in higher or lower
scores,
and
the
Court
found
that
error
petitioner’s two corroborating scores.
was
less
likely
(Id. at 19-20.)
given
In his
motion to reconsider, petitioner points to several recent cases where
courts have applied the Flynn Effect to reduce IQ scores and/or used
a threshold of 75 to account for the SEM.
(Pet’r’s Mot. to
Reconsider [122] at 4-13.)
On the second prong of the inquiry, the Court assumed in its
Order that petitioner had demonstrated significant deficits in the
area of functional academics. (Order [96] at 23.) However, based on
the evidence presented at the hearing and in the briefing, the Court
concluded that petitioner had failed to show any other adaptive
impairments that were related to his intellectual functioning.
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(Id.
at 23-30.)
In his motion to reconsider, petitioner cites cases in
which the courts found sufficient adaptive deficits to support mental
retardation based on evidence that petitioner claims is similar to
what he presented in this case. (Pet’r’s Mot. to Reconsider [122] at
13-18.)
DISCUSSION
I.
The Flynn Effect and the SEM
Based on the citations in his brief, the Court assumes that
petitioner seeks reconsideration on account of an “intervening change
in the controlling law.”
Delaware Valley Floral Grp., Inc. v. Shaw
Rose Nets, LLC, 597 F.3d 1374, 1383 (11th Cir. 2010).
Having
reviewed the cited cases, the Court still is not convinced that it
should apply the Flynn Effect to reduce petitioner’s IQ scores.
Although it appears that a Flynn adjustment is gaining traction with
some courts, other courts have continued to reject the practice. See
Harris v. Thaler, 464 Fed. App’x 301, 307-08 (5th Cir. 2012)(noting
that the Texas courts and the Fifth Circuit have declined to apply
the Flynn Effect).
The Eleventh Circuit has held that it is not
clearly erroneous to apply a Flynn adjustment, but has not mandated
its application and has noted that “there is no uniform consensus
regarding the application of the Flynn effect in determining a
capital offender’s intellectual functioning.”
F.3d 749, 758 (11th Cir. 2010).
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Thomas v. Allen, 607
Given the prevailing uncertainty in the law, the Court remains
“hesitant to apply a theory that is used solely for the purpose of
lowering IQ scores in a death penalty context.”
(Order [96] at 17.)
Moreover, the cases cited by petitioner do not address the specific
problems with the Flynn theory that became apparent during the
testimony at the hearing.
For example, the 0.3 point per year
reduction requested by petitioner is not supported by Flynn’s data
pertaining to the WAIS-III, one of the tests on which petitioner’s
mental retardation claim is based.
(Id. at 17-18.)
Nevertheless,
based on the recent cases cited by petitioner and for the purposes of
this
discussion,
the
Court
is
willing
to
investigate
whether
application of the Flynn Effect to petitioner’s IQ scores would have
a material impact on the ultimate issue of whether petitioner is
mentally retarded.
Applying the Flynn Effect and giving the full four point
reduction requested, Petitioner has credible IQ scores of 73 and 75.
(Id. at 18.)
generally
These scores are still above the score of 70 that is
considered
to
demonstrate
“significantly
intellectual functioning under Georgia law.
at 4.
subaverage”
See Stripling, 261 Ga.
Whether the Court applies the Flynn adjustment is thus only
material
if
the
Court
also
changes
the
benchmark
score
for
“significantly subaverage” from the 70 IQ score relied upon in the
Order to the 75 IQ score urged on the Court by petitioner.
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According
to petitioner, that change is warranted to account for the SEM and is
supported by recent case law.
(Pet’r’s Mot. to Reconsider [122] at
11-13.)
The Court acknowledges that some states, and the federal courts
within those states, have set the benchmark for “significantly
subaverage” intellectual functioning at an IQ score of 75.
Brumfield
v.
Cain,
854
F.
Supp.
2d
366,
389
(M.D.
La.
See
2012)
(“consistent with Louisiana statutory and case law, an IQ score of 75
or below does not preclude a finding of mild mental retardation”) and
United States v. Davis, 611 F. Supp. 2d 472 (D. Md. 2009)(using a
score of 75 as the benchmark for mental retardation) .
However, the
Court is required by Atkins to determine whether petitioner is
mentally retarded under Georgia law.
1346, 1353 (11th Cir. 2009).
Holladay v. Allen, 555 F.3d
As discussed above, Georgia generally
uses “an IQ of 70 or below” as the cutoff for establishing mental
retardation.
Stripling, 261 Ga. at 4.
And in Georgia, even an IQ
score that is at or below 70 is “not conclusive” evidence of mental
retardation in the absence of deficits or impairment in adaptive
function.
Id.
Moreover, and as noted in the previous Order, the SEM merely
provides a range within which petitioner’s IQ might be somewhat
higher or lower than the score he achieved.
(Order [96] at 19-20.)
Applying the SEM, petitioner’s IQ is just as likely to be five points
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higher than his Flynn adjusted scores of 73 and 75 as it is to be
five points lower.
That is, petitioner’s IQ is just as likely to be
78 or 80 rather than 68 or 70.
Particularly given petitioner’s
burden under Georgia law of proving mental retardation beyond a
reasonable doubt, there is no basis for assuming on account of the
SEM that petitioner’s intellectual functioning is “significantly
subaverage.”
Finally, the Court heard and credited evidence at the hearing
that the potential for measurement error is “much reduced” when more
than one IQ test is given and the scores corroborate each other.
(Id. at 20.)
That is the case here, where Petitioner received a 77
on the WAIS-R administered by Dr. Perri in 1992 and a 79 on the WAISIII administered by Dr. King in 2007.
(Id.)
For all of these
reasons, the Court concludes that petitioner’s IQ scores exceed
Georgia’s threshold for establishing mental retardation, even after
applying the Flynn Effect.
II.
Deficits in Adaptive Functioning
To
satisfy
the
adaptive
functioning
prong
of
the
Georgia
statute, petitioner must demonstrate significant deficits in at least
two of the following areas:
social
interpersonal
communication, self-care, home living,
skills,
use
of
community
resources,
self-direction, functional academics, work, leisure, health, and
safety.
(Id. at 21.)
In his briefing and at the hearing, petitioner
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claimed deficits in functional academics, work, and self-direction.
(Id.)
The Court presumed an academic deficit based on petitioner’s
school records and other evidence concerning his problems functioning
in
school.
(Order
[96]
at
23.)
However,
the
Court
found
insufficient evidence to show a significant deficit in the areas of
work or self-direction.
(Id. at 23-30.)
In his motion to reconsider, petitioner points to several cases
that he says warrant reconsideration of the Court’s ruling on the
adaptive functioning prong. (Pet’r’s Mot. to Reconsider [122] at 1318.)
According to petitioner, the courts in these cases found
adaptive deficits in work or self-direction based on evidence similar
to that presented by petitioner.
(Id.)
The problem with this
argument is that an adaptive deficit determination is necessarily
based on an investigation of the facts specific to the particular
individual.
See Thomas, 607 F.3d at 758-60 (reviewing the district
court’s highly individualized adaptive deficit finding) and Hill v.
Schofield, 608 F.3d 1272, 1280 (11th Cir. 2010), vacated 625 F.3d
1313 and later rev’d 662 F.3d 1335 on other grounds, (noting the
“purely qualitative” nature of the inquiry).
Even where a case
involves similar facts, the weight accorded to those facts will
differ under the circumstances of the particular case.
For example
in the Thomas case cited by petitioner, the defendant Kenneth Thomas
had a work history arguably similar to that of petitioner’s. Thomas,
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607 F.3d at 758.
However, Thomas was older when he was incarcerated
for his crimes, and there was very little discussion of drug and
alcohol use by Thomas – two factors that significantly informed the
Court’s
decision
that
petitioner
had
failed
to
demonstrate
an
adaptive deficit in the area of work.
Nevertheless, the Court has reviewed the transcript from the
hearing in light of the case law cited by petitioner.
As a result of
that review, the Court remains confident in its adaptive deficit
ruling.
Without doubt, petitioner was not a highly accomplished
individual before his incarceration.
However, petitioner’s own
witnesses described him as a “good employee” who did a “good job at
whatever task he was assigned,” who was “full of energy and ready to
work,” and who was a valued employee.
(Order [96] at 23-24.)
As to
the area of self-direction, the evidence established that petitioner
enjoyed deer hunting and fishing, had lots of friends and
socially consumed drugs and alcohol with friends, taught
his sister to play pinball, pool, and skateboard, had male
friends and a girlfriend with whom he had a child, has
consistently been noted to be well-groomed, cooked and took
care of himself, did laundry and the dishes, cleaned the
house, fixed his grandmother’s roof, fixed plumbing,
attended school and could read and write, had a driver’s
license and traveled to work on his own.
(Id. at 28-29.)
The case law cited by petitioner does not alter the
Court’s perception of the evidence presented in this case, nor the
Court’s ultimate conclusion that petitioner failed to meet his burden
of proving that he has adaptive deficits in two or more of the
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relevant areas.
III. Conclusion
For the above reasons, the Court DENIES petitioner’s Motion for
Reconsideration [122]. The Court is aware that the Supreme Court has
recently granted certiorari in a case that potentially implicates the
SEM issue discussed above.
21, 2013).
See Hall v. Florida, 134 S. Ct. 471 (Oct.
The question presented in Hall is whether Florida’s
bright-line requirement of an IQ score of 70 or below to establish
mental retardation, in conjunction with its failure to account for
the SEM, violates Atkins v. Virginia.
Br. for Petitioner at 1-2,
Hall v. Florida, 134 S. Ct. 471 (No. 12-10882), 2013 WL 6917377 at *1
(Dec. 19, 2013).
The Supreme Court will hear arguments in Hall v.
Florida on March 3, 3014.
It is unclear whether the Supreme Court’s decision in Hall will
affect the outcome in this case because (1) this Court did not apply
a bright-line IQ score cut-off of 70, but rather considered all of
the
evidence
“significantly
to
determine
sub-average”
that
petitioner
intellectual
did
not
functioning,
demonstrate
(2)
as
a
factual matter, the SEM is less significant a factor in this case
because of petitioner’s corroborating results on two separate IQ
tests, and (3) petitioner failed to meet his burden of proving that
he has adaptive deficits in two or more of the relevant areas.
Nevertheless, the parties will be permitted to file motions to
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reconsider out-of-time on the basis of Hall, should those motions
appear necessary or warranted.
In the meantime, the parties should prepare the case for final
disposition on the other issues raised by the habeas petition.
Petitioner
should
file
his
final
brief,
and
any
supplemental
materials that he deems necessary for the Court to issue a final
decision, by Friday, March 21, 2014.
Respondent should file its
response by Friday, April 11, 2014.4
SO ORDERED, this 26th day of February, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
4
If Petitioner or Respondent wish to rely on their previous
briefing, they may certainly do so. It would be helpful, however, if
the parties cite any Eleventh Circuit or Supreme Court authority
issued since their last substantive briefing that could have an
impact on any issues in this case.
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