Lynch v. Hudson
SUPPLEMENT TO SUBSTITUTED REPORT AND RECOMMENDATIONS - This Court should DENY Petitioner's Motion to Amend (ECF No. 104) and advise the Sixth Circuit that the remand is completed so that it may resume consideration of the case on the merits. Objections to R&R due by 2/17/2017. Signed by Magistrate Judge Michael R. Merz on 2/3/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
- vs -
Case No. 2:07-cv-948
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
STUART HUDSON, Warden,
SUPPLEMENT TO SUBSTITUTED REPORT AND
This capital habeas corpus case is before the Court on remand from the Sixth Circuit
Court of Appeals (ECF No. 87).
Procedural History of the Remand
At the time of remand, the case was assigned to District Judge Gregory Frost, who has
since then retired. Before his retirement, however, Judge Frost decided what he considered to be
the only issue on remand, to wit, whether this Court could consider the Affidavit and Report of
Dr. Michael Gelbort in determining whether Petitioner was intellectually disabled. Judge Frost
decided Cullen v. Pinholster, 563 U.S. 170 (2011), still precluded consideration of those
materials, despite Petitioner’s attempt to present them to the Ohio courts in a successive postconviction petition. Lynch v. Hudson, 182 F. Supp. 3d 787, 792 (S.D. Ohio 2016).
After Judge Frost retired, the case was reassigned to Judge Michael Barrett (ECF No.
102) and referred to the undersigned (ECF No. 103). Petitioner then moved, within the time
allowed by Fed. R. Civ. P. 59(e), to alter or amend Judge Frost’s decision (ECF No. 104).
Petitioner argued Judge Frost committed clear error when he declined to consider the application
to this case of Hall v. Florida, 134 S. Ct. 1986 (2014), and Brumfield v. Cain, 135 S. Ct. 2269
Judge Frost had refused to consider the applicability of those cases because he
considered that question outside the scope of the remand. The undersigned concluded, however,
that the remand was general, not limited, a conclusion to which neither party has objected
(Substituted Report and Recommendations (“Substituted R&R”), ECF No. 118, PageID 2022).
In arguing clear error in Judge Frost’s decision, Petitioner relied on Van Tran v. Colson,
764 F.3d 594 (6th Cir. 2014), and Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015), to prove that
Hall and Brumfield are to be applied retroactively to cases pending on collateral attack (ECF No.
104, PageID 1969). In the Substituted R&R to which this is a Supplement, the undersigned
analyzed Van Tran and Williams and found they were equivocal on the retroactivity question
(ECF No. 118, PageID 2022-25). The Court then concluded that, because this case is already on
appeal, it should treat Hall and Brumfield as hypothetically applicable.
If there is a firm holding by the Sixth Circuit or the Supreme Court
that Hall and Brumfield are to be applied retroactively before this
case reaches final judgment on appeal, the Sixth Circuit will
already have the benefit of this Court’s analysis of the impact of
those two cases and can accept or reject that analysis without
further remand. Conversely, if it is firmly decided that Hall and
Brumfield are not to be applied retroactively, the only harm done
will have been this Court’s having spent time needlessly deciding
The Magistrate Judge therefore recommends that Judge Frost’s
April 21, 2016, Opinion and Order be amended to permit this
Court to consider the impact of Hall and Brumfield as if they apply
Id. at PageID 2025.
To position the case for this Supplement, Petitioner was to file “a
memorandum arguing how Hall and Brumfield impact Lynch’s case.” Id. at PageID 2026.
Petitioner has done so (the “Impact Memorandum,” ECF No. 122); the Warden has responded
(ECF No. 126), and Petitioner has filed a Reply (ECF No. 129).
The Holdings in Hall and Brumfield
Lynch’s counsel believe that “[t]he Magistrate Judge has already ruled that Hall and
Brumfield apply retroactively to this case.” (Reply, ECF No. 129, PageID 9374.) That is
completely wrong. The Magistrate Judge believes that Hall and Brumfield should not be
applied retroactively in this case because both of them were decided after the Ohio courts
decided in this case that Lynch was not intellectually disabled.
When a state court decides on the merits a federal constitutional claim (e.g. an inmate’s
intellectual disability claim) later presented to a federal habeas court, the federal court must defer
to the state court decision unless that decision is contrary to or an objectively unreasonable
application of clearly established precedent of the United States Supreme Court. 28 U.S.C. '
2254(d)(1); Harrington v. Richter, 562 U.S. 86, (2011); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
In determining whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may look only to the
holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant
state court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529 U.S. at 412.
Nevertheless, because Van Tran and Williams, supra, are equivocal on the issue of
retroactivity, the Substituted R&R recommends treating Hall and Brumfield as if (i.e.
hypothetically) they applied retroactively and determining what the effect of that would be, in
order to save a possible additional remand in this case. That is what the Court intended the
current filings to present.
To determine what the impact of Hall and Brumfield would be if they applied
retroactively, it is necessary to separate the holdings of those cases from the dicta. In Hall the
Supreme Court held that Florida’s threshold requirement of a tested IQ score of 70 was
unconstitutional. Justice Kennedy in the majority opinion described the holding this way:
Florida law defines intellectual disability to require an IQ test score
of 70 or less. If, from test scores, a prisoner is deemed to have an
IQ above 70, all further exploration of intellectual disability is
foreclosed. This rigid rule, the Court now holds, creates an
unacceptable risk that persons with intellectual disability will be
executed, and thus is unconstitutional.
134 S. Ct. at 1990. The Court conducted an extensive analysis of what the States had done about
defining intellectual disability in the wake of Atkins v. Virginia, 536 U.S. 304 (2002), and found
that only two States – Florida and Virginia – had adopted a rigid threshold of 70. Id. at 1998.
Ohio is not mentioned in the Hall decision. Thus even if Hall were to be applied retroactively to
this case, the Ohio courts’ decision would not be contrary to the holding in Hall because Ohio
does not have, by statute or judicial interpretation, a rigid 70-point IQ test for intellectual
Rather, Ohio’s standard for intellectual disability in an Atkins’ claim is “an individual is
mentally retarded1 for Atkins’ purposes if he or she demonstrates all three of the following: (1)
“Rosa’s Law,” S.2781, Public Law No. 111-256, was signed by President Obama on October 5, 2010, and replaced
the term “mentally retarded” which has come to be considered disrespectful, with “intellectual disability.” See
https://www.congress.gov/bill/111th-congress/senate-bill/2781, last visited February 2, 2017.
significantly subaverage intellectual functioning; (2) significant limitations in two or more
adaptive skills, such as communication, self-care, and self-direction; and (3) onset before the age
of 18.” State v. Lott, 97 Ohio St. 3d 303, 305 (2002), quoted by Judge Frost in deciding the
Atkins claim at issue in this case. Lynch v. Hudson, 2011 U.S. Dist. LEXIS 110652 (S.D. Ohio
Sept. 28, 2011).
In place of a rigid cut-off, the Lott Court held there was a rebuttable
presumption that a defendant is not mentally retarded if his or her IQ is above 70. Lott, 97 Ohio
St. 3d at 305.
In Brumfield, a Louisiana death-row inmate sought a post-Atkins opportunity to prove he
was intellectually disabled.
Without affording him an evidentiary hearing or granting him time
or funding to secure expert evidence, the state court rejected
petitioner's claim. That decision, we hold, was "based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U. S. C. §2254(d)(2).
Petitioner was therefore entitled to have his Atkins claim
considered on the merits in federal court.
135 S. Ct. at 2273. Because Brumfield had been denied a hearing in the Louisiana courts, the
habeas court granted him an evidentiary hearing2 and found the Louisiana state courts’ decision
violated both § 2254(d)(1) and (d)(2). The Fifth Circuit reversed on both prongs, but the
Supreme Court only decided the 2254(d)(2) prong.3 The Supreme Court found the state trial
court’s rejection of Brumfield’s request for a hearing was unreasonable because the IQ scores he
presented were “entirely consistent with intellectual disability” and because the record in fact
The Supreme Court found this was proper despite Pinholster, supra, because federal habeas courts may take new
evidence when 28 U.S.C. § 2254(d) “does not bar relief.” 135 S. Ct. at 2276.
“Before this Court, Brumfield advances both of the rationales on which the District Court relied in holding
§2254(d) to be satisfied. Because we agree that the state court's rejection of Brumfield's request for an Atkins
hearing was premised on an "unreasonable determination of the facts" within the meaning of §2254(d)(2), we need
not address whether its refusal to grant him expert funding, or at least the opportunity to seek pro bono expert
assistance to further his threshold showing, reflected an "unreasonable application of . . . clearly established Federal
law," §2254(d)(1).” 135 S. Ct. at 2276.
raised questions about his “impairment . . . in adaptive skills.” Id. at 2277, 2279.
The holding in Brumfield is that, on the record before it, the Louisiana trial court violated
28 U.S.C. § 2254(d)(2) by not giving the inmate a hearing on his intellectual disability claim. If
Brumfield were applied retroactively to this case, it would not have any impact because the Ohio
courts gave Lynch a hearing on his post-Atkins claim, consistent with the procedural guidelines
and substantive guidance the Ohio Supreme Court gave in Lott, supra.
Petitioner’s Claims in the Impact Memorandum
Significantly Subaverage Intellectual Functioning
In his Impact Memorandum Petitioner Lynch claims or appears to claim that those cases
hold all sorts of things that are far beyond anything this Court can identify as holdings of those
cases. What follows is a catalogue of those claims.
Petitioner claims Hall and Brumfield hold that “the presumption of significantly sub-
average intelligence is to be applied in favor of the defendant, when his IQ score is 75 or lower.”
(Memo, ECF No. 122, PageID 9322.) No pinpoint citation for these supposed holdings in those
two cases is given.
Since Atkins and Lott, both the American Association on Intellectual and Developmental
Disabilities (“AAIDD”) and the American Psychological Association (“APA) have revised their
definitions of intellectual disability. (Memo, ECF No. 122, PageID 9322, citing Intellectual
Disability (11th ed. 2011) and Diagnostic and Statistical Manual of Mental Disorders (5th ed.
2013)(“DSM-5”). Petitioner argues that he “satisfies all three prongs that are required for a
finding of intellectual disability, under both definitions.” Id. Lynch does not even make an
argument as to how Hall and Brumfield require this Court to reevaluate the Ohio courts’ decision
under associational definitions arrived at years after the Ohio courts completed their evaluation
of his intellectual disability claim.
“In 2010, Lynch scored a 70 on the IQ test administered in habeas proceedings.” Id.,
citing ECF No. 37, Ex. A. The referenced Exhibit A is the Gelbort Affidavit that Judge Frost
excluded under Pinholster.
No holding in Hall or Brumfield undermines Judge Frost’s
conclusion, even if they are eventually held to be retroactively applicable..
“The interpretation of an individual’s IQ test [score] must take into account the SEM
[standard error of measurement].” (ECF No. 122, PageID 9323, citing Hall, 134 S. Ct. at 1995.)
This is the rationale for the Hall Court’s having rejected Florida’s irrebuttable presumption for
“refusing to recognize that the score is, on its own terms, imprecise.” Lynch then argues that
because Judge Frost “relied on the State’s expert, Dr. Nelson, who concluded that a person with
an IQ score above 70 does not have significantly sub-average intellectual functioning to deny
Lynch’s claim on the first prong of the test for intellectual disability,” Judge Frost’s conclusion is
unreasonable in light of Hall. (Memo, ECF No. 122, PageID 9324, citing Decision and Order of
September 28, 2011, ECF No. 68, PageID 1053-54).
Petitioner misstates Judge Frost’s summary of Dr. Nelson’s testimony.
Dr. Nelson confirmed that he had reviewed the test results and raw
data from Dr. Tureen’s administration of the WAIS test to
Petitioner in 1999 and testified that according to that test,
Petitioner achieved a 79 on the verbal component, a 68 on the
performance component, and full scale score of 72. (Id. at 107.)
Those scores, according to Dr. Nelson, placed Petitioner in the
borderline range of intellectual functioning. (Id.) Dr. Nelson
explained the presumption that typically, an IQ score below 70
falls in the mental retardation range while an IQ score above 70
(ECF No. 68, PageID 1053-54.)
Evaluating all the testimony on sub-average intellectual
functioning, Judge Frost concluded:
The Court considers first the state courts’ determination that
Petitioner failed to satisfy the first component of the mental
retardation definition, sub-average intellectual functioning. All
three experts who based their opinions on the WAIS–III test that
Petitioner took in 1999. Drs. Tureen, Rheinscheld, and Nelson
agreed that Petitioner achieved a 72, a full-scale score in excess of
70. Dr. Tureen, who administered the WAIS-III to Petitioner in
1999, testified that Petitioner achieved a full-scale score of 72. (Tr.
Vol. 9, at 1634.) Dr. Rheinscheld, who reviewed Dr. Tureen’s test
results and raw data, also testified that Petitioner achieved a fullscale score of 72. (Tr. Vol. 11, at 67.) The state’s expert, Dr.
Nelson, who also found valid Dr. Tureen’s test results and raw
data, testified that Petitioner’s full-scale score was 72. (Tr. Vol. 11,
at 107.) Because all three experts agreed that Petitioner’s full-scale
IQ score was in excess of 70, it is difficult to characterize as
unreasonable the state trial court’s determination that according to
the Lott presumption, Petitioner was not mentally retarded. (App.
Vol. 12, at 293-95.)
Petitioner relies heavily on the standard error of measurement in
arguing that because his score was falsely elevated, the trial court
erroneously applied the Lott presumption. According to Dr.
Rheinscheld’s testimony, the standard error of measurement “is the
error in any kind of psychological test that involves human
behavior, basically.” (Tr. Vol. 11, at 18.) Dr. Nelson described the
standard error of measurement in terms of a “confidence band” by
which an expert could be 95 percent confident that a person’s IQ
score was within a range of plus or minus five points from the
person’s actual score, i.e., between 67 and 77 for a full-scale score
of 72. (Id. at 104-05.) Petitioner argues that applying the standard
error of measurement downward results in an IQ score as low as
67. But equally plausible according to the evidence in the record is
that an application of the standard error of measurement could
result in an IQ score as high as 77. During Petitioner’s Atkins
hearing, both experts agreed that the standard error of
measurement applicable to Petitioner’s score of 72 was plus or
minus five points. (Tr. Vol. 11, at 18-19, 104-105.) Both experts
testified that Petitioner’s IQ score was anywhere within a range of
67 to 77. (Id.) Neither expert suggested that one end of that range
was more likely than the other. Thus, Petitioner’s argument that his
IQ was closer to 67 than 72 finds no support in the record or the
Id. at PageID 1071-72. Thus Judge Frost considered the evidence from both sides’ experts and
found that they agreed on the standard error of measurement and that the single IQ test Lynch
took yielded a valid score of 72 which meant that the result could have been as high as 77 and as
low as 67. Given that the SEM is + or – five points, it is more probable that Lynch’s score was
under 70 than that it was over 70. Nothing in Hall or Brumfield or in the applicable science
requires the state courts to conclude the score is at the low end of the SEM range.
“The interpretation of an individual’s IQ score must also account for the Flynn effect.”
(ECF No. 122, PageID 9325, citing Intellectual Disability and DSM-5.) Nothing in Hall or
Brumfield commands accounting for the Flynn effect, even though it is discussed.
“A person with an IQ up to 75 points has significantly sub-average intellectual
functioning.” (ECF No. 122, PageID 9326, citing Hall, 132 S. Ct. at 1998-99, and Brumfield,
135 S.Ct. at 2278, as well as Intellectual Disability, DSM-5, State v. Gumm, 864 N.E. 2d 133,
139 (1st App. Dist. 2006) and State v. Greer, Case No. CR 1985 02 0176 (Summit Cty. C.P.,
May 21, 2008)(unreported, copy at ECF No. 122-1, PageID 9336, et seq.) The last four of these
authorities are obviously not Supreme Court decisions clearly establishing the law as of the time
the Ohio courts decided Lynch’s post-conviction petition. The quoted language does appear in
Hall, but is itself a quotation from Atkins. In Atkins it was not a holding, but an observation: “an
IQ between 70 and 75 or lower … is typically considered the IQ cut-off score for the intellectual
function prong of the mental retardation definition.” 536 U.S. at 309, n.5.
So far as this judge is able to discern, Lynch’s counsel have no theory about what
propositions in Hall and Brumfield are holdings and what are dicta. Admittedly, it is difficult to
tell the difference in some judicial opinions. See The Law of Judicial Precedent, Garner, et al., §
4, Dicta v. Holdings (2016). But the difficulty does not excuse the failure to make an attempt
and the Supreme Court has told us that, under § 2254(d)(1), only holdings count.
Significant Limitations in Adaptive Skills
Petitioner devotes argument in his Impact Memorandum to the second prong of the Lott
test for intellectual disability, to wit, significant limitations in two or more adaptive skills (ECF
No. 122, PageID 9328-30). Judge Frost determined that the Ohio courts’ conclusion on this
prong of the test was an unreasonable determination of the facts in light of the evidence
presented (Opinion and Order, ECF No. 68, PageID 1084-85). Petitioner agrees that the Court
correctly determined this question and on that point does not seek any change in Judge Frost’s
Order (ECF No. 122, PageID 9329).
Onset Before Age Eighteen
The third Lott criterion for intellectual disability is onset before age eighteen. State v.
Lott, 97 Ohio St. 3d 303, 305 (2002). As to this component of the test, Judge Frost wrote “the
Court is satisfied that the trial court’s finding that Petitioner failed to meet this component was
reasonable in light of the record. . . . The record supports the trial court’s findings both that the
evidence was sparse and that the issue was irrelevant.” (Order, ECF No. 68, PageID 1085). In
particular, the judge noted that the burden of proof was on the Petitioner and very little evidence
had been presented. Id. at PageID 1087. He also noted it would have been illogical for the trial
court to attempt to decide the onset date of a condition which it found did not exist. Id.
In arguing this third prong in his Impact Memorandum, Lynch relies on the discussion of
this prong in Intellectual Disability; Gumm, supra; Brumfield on remand in the Fifth Circuit, 808
F.3d 1041, 1065 (5th Cir. 2015); and State v. White, 118 Ohio St. 3d 12 (2008) (ECF No. 122,
PageID 9330-34). To point out the obvious, none of these authorities is a United States Supreme
Court decision in place when the Ohio courts decided Lynch’s post-conviction petition. Even if
Hall and Brumfield are to be applied retroactively, the holdings in those two cases do not compel
use of any of these authorities.
Lynch’s Conclusion to His Impact Memorandum
In the Conclusion to the Impact Memorandum, Lynch’s counsel write:
Testimony and evidence Lynch submitted post-trial supports a
diagnosis of intellectual disability. The information was derived
from a variety of sources. See, Intellectual Disability, p. 100. The
information from the variety of sources was consistent with Lynch
having intellectual disability. Medical professionals term this
consistency "convergent validity." White at 910. The test results,
documentation, and anecdotal evidence support but a single
conclusion: Lynch has now, and had before the age of eighteen, an
Lynch’s death sentence violates the Eighth Amendment of the
United States Constitution. Atkins, 536 U.S. at 318. Therefore,
based on the arguments presented in this Brief and in the Merit
Brief (ECF No. 56, PAGEID# 634-55), Lynch requests this Court
grant him a conditional writ ordering that his death sentence be
(ECF No. 122, PageID 9334.)
This Conclusion makes evident what the careful reader of the Impact Memorandum
would have found implicit all along: Lynch believes that somehow Hall and Brumfield entitle
him to a de novo reconsideration in this habeas court of his intellectual disability claim, based on
(1) evidence not before the state courts, i.e., Dr. Gelbort’s Affidavit and Report, and (2)
evaluation of the evidence based on authorities other than United States Supreme Court holdings
that were not in place when the state courts decided the claim.
The Warden’s Opposition
In opposition, the Warden first claims that the retroactivity of Hall and Brumfield is
immaterial under 28 U.S.C. § 2254 as amended by the AEDPA (ECF No. 126, PageID 9364,
citing Greene v. Fisher, 565 U.S. 34 (2011). The citation is apt: the Sixth Circuit has held the
reasonableness of the state court decisions must be measured against Supreme Court precedent
as of the time the state court enters its decision. Gover v. Perry, 698 F.3d 295 (6th Cir. 2012),
Bunch v. Smith, 685 F.3d 546, 549 (6th Cir. 2012), both citing Greene v. Fisher, 565 U.S. 34
(2011). See also Cullen v. Pinholster, 563 U.S. 170, 183 (2011)(noting that “[s]tate-court
decisions are measured against this Court’s precedents as of ‘the time the state court renders its
decision,’” quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)). If Hall or Brumfield had
adopted a new substantive rule or a “watershed” procedural rule as those terms are used in
Teague v. Lane, 489 U.S. 288 (1989), that would be a different story. See Greene, 465 U.S. at
38-39. But they plainly did not.
The Warden also argues that Van Tran and Williams, supra, do not hold that Hall and
Brumfield are to be applied retroactively (ECF No. 126, PageID 9365-67). As indicated above in
numerous place, the Magistrate Judge agrees and has, in this Supplement, only accepted their
hypothetical retroactivity to avoid another appeal.
Finally, the Warden argues that even if Hall and Brumfield were retroactively applicable,
they would not change the result because they held that a State may not apply an irrebuttable
presumption against intellectual disability based on an IQ score of 70 and Ohio has never had
such a presumption (ECF No. 126, PageID 9367-68). The Magistrate Judge agrees, as set forth
above, that this is a correct reading of the holding in Hall and Brumfield did not expand that
holding in a way that would invalidate Judge Frost’s conclusion.
Lynch replies that “Hall and Brumfield did not change, modify or add to the holing [sic]
in Atkins. The Supreme Court in those cases simply re-emphasized that the procedures the states
established to assess intellectual disability claims must be consistent with professional standards
and practices.” (ECF No. 129, PageID 9373.) Lynch apparently reads this to mean that if a past
state adjudication of an intellectual disability claim did not follow present updated professional
standards, the past adjudication must be set aside. This is not retroactive application of Supreme
Court precedent, but retroactive application of professional publications. Is every death row
inmate adjudicated as not intellectually disabled before the DSM-5 was published entitled to a
For the reasons set forth above and in the Substituted Report and Recommendations, this
Court should DENY Petitioner’s Motion to Amend (ECF No. 104) and advise the Sixth Circuit
that the remand is completed so that it may resume consideration of the case on the merits.
February 3, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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