[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 01, 2004
No. 04-13248 THOMAS K. KAHN
CLERK
IN RE:
ROBERT KARL HICKS,
Petitioner.
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Application for Leave to File a Second or Successive
Habeas Corpus Petition, 28 U.S.C. § 2244(b)
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Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
B Y T H E COURT:
Robert Karl Hicks is a Georgia death row inmate. We previously affirmed the
denial of his first petition seeking 28 U.S.C. § 2254 habeas corpus relief. See Hicks
v. Head, 333 F.3d 1280 (11th Cir. 2003), cert. denied, ___ S. Ct. ___, No. 03-9864
(U.S. June 14, 2004). The trial court scheduled Hicks’s execution for June 30, 2004,
but on the day of the scheduled execution, the Supreme Court of Georgia granted
Hicks a temporary stay until July 1, 2004, at 3:00 p.m. On July 1, Hicks filed a
Motion for Authorization to file a Successive Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2244(b), and a Stay of Execution.
A. Successive Petition for a Writ of Habeas Corpus
Section 2244(b) directs Courts of Appeal to authorize the filing of a second
habeas corpus application only if the application makes a prima facie showing that
one of two specific requirements have been satisfied. Section 2244(b) provides that:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application
shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless –
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence; and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
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establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(1) & (2).
Hicks now asserts a claim pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.
Ct. 2242, 153 L. Ed. 2d 335 (2002), alleging that he is mentally retarded, and that
under Atkins, the Eighth Amendment to the U.S. Constitution forbids his execution.
Hicks relies on our decision in In re Holladay, 331 F.3d 1169 (11th Cir. 2003), to
support his claim. The petitioner in Holladay filed an “eleventh hour application for
leave to file a second federal habeas corpus petition” based on Atkins. Id. at 1171.
In considering whether the petitioner met the requirements enunciated in 28 U.S.C.
§ 2244(b)(2), we held that there was
no question that the rule recently announced by the Supreme Court in
Atkins – that the execution of mental retarded persons constitutes “cruel
and unusual punishment” in violation of the Eighth Amendment – is a
new rule of constitutional law made retroactive to cases on collateral
review by the Supreme Court that was previously unavailable.
331 F.3d at 1172 (citation omitted).
Although the petitioner in Holladay met the requirement of 28 U.S.C. §
2244(b)(2)(A), we noted that our analysis did not end there. “[I]n order to make a
prima facie showing that he is entitled to file a second or successive petition based
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on [the] Supreme Court’s decision in Atkins, [Hicks] also must demonstrate that there
is a reasonable likelihood that he is in fact mentally retarded.” Id. at 1173. Adopting
the requisite showing articulated by the Seventh Circuit in Bennett v. United States,
119 F.3d 468, 469 (7th Cir. 1997), we held that “if petitioner’s proofs, when
measured against the entire record in this case, establish a reasonable likelihood that
he is in fact mentally retarded, then we are required to grant him leave to file a second
or successive habeas petition on the basis of Atkins.” Id. at 1174.
We then considered the evidence regarding petitioner’s capacity and found the
evidence to be “conflicting.” Id. The petitioner had taken numerous I.Q. tests, with
results ranging from 49 to 73. The petitioner presented evidence from his early
school years that indicated that he was a slow learner and a Department of Human
Resources report that denoted him as “barely educable with a Wechsler IQ of 54.”
Id. at 1175. Moreover, the trial court instructed the jury at petitioner’s sentencing that
it could consider petitioner’s mental retardation as a mitigating circumstance. Id.
The trial court even noted in its judgment that it found the petitioner “slightly
mentally retarded.” Considering the evidence of petitioner’s intellectual capacity in
its totality, we concluded that a reasonable likelihood that petitioner was mentally
retarded existed. Id. at 1176.
The present case is distinguishable from Holladay. First, in Holladay, the
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petitioner’s claim of mental retardation had not been adjudicated by any court. See
id. Here, Hicks raised a claim of mental retardation in the state and federal courts.
In his second state habeas corpus petition in 1991, Hicks raised a claim that the
imposition of the death penalty would constitute cruel and unusual punishment due
to alleged mental retardation.1 The state habeas court conducted a hearing on Hicks’s
petition. The sole I.Q. test score Hicks offered in an attempt to establish a prima facie
case of mental retardation was his pre-trial I.Q. score of 94. In dismissing Hicks’s
state habeas petition, the trial court found that Hicks failed to meet his burden of
proof on his mental retardation claim.
Further, Hicks raised a mental retardation claim in his second federal habeas
petition. The federal district court denied him relief on this claim. Hicks filed a
notice of appeal to this court, and we granted a Certificate of Appealability (“COA”)
solely on Hicks’s Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53
(1985), claim. We denied Hicks relief on his Ake claim, and the United States
Supreme Court denied certiorari on June 14, 2004.
On June 26, 2004, two days before his scheduled execution, Hicks filed his
third state habeas petition again raising a claim that he is mentally retarded. In
1
Hicks based his claim on Fleming v. Zant, 386 S.E. 2d 339 (Ga. 1989), in which the
Georgia Supreme Court held that the execution of the mentally retarded would violate Georgia’s
constitution.
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denying Hicks relief, the trial court found that Hicks was seeking to relitigate his
mental retardation claim which the trial court had rejected on the merits. The trial
court noted that although Hicks based his claim on the Supreme Court’s Atkins
decision, Georgia enacted its mental retardation statute prior to Atkins and it remained
unchanged post-Atkins. The trial court found that allowing Hicks ro raise this claim
again in this habeas corpus action would be allowing him a second chance to meet the
standard of proof for establishing mental retardation under O.C.G.A. § 17-7-131,
which the trial court previously found [Hicks] had not proven in his second habeas
proceeding. The trial court further noted that this is the type of relitigation prohibited
by Georgia’s successive petition bar. See O.C.G.A. § 9-14-51.
Second, Hicks’s application does not demonstrate “a prima facie showing that
the application satisfies the requirements of this subsection.” 28 U.S.C. §
2244(b)(3)(C). Unlike Holladay, Hicks cannot demonstrate that a reasonable
likelihood that he is in fact mentally retarded exists. Holladay, 331 F.3d at 1174. At
the state habeas hearing on his second habeas petition, Hicks presented evidence of
an I.Q. score of 94, which is well above the guideline used to describe mental
retardation. See Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3. Hicks also
presented evidence that an independent psychiatrist evaluated him prior to trial and
found him to be in the low range of average intelligence, but not mentally retarded.
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Furthermore, as part of his first state habeas corpus proceedings, a neurologist
evaluated Hicks. The neurologist did not determine that Hicks was mentally retarded
and noted that Hicks had obtained his GED and one year of college credit since his
incarceration.
As such, the present case is different from Holladay. When reviewing the
evidence of Hicks’s intellectual capacity in its totality, we are not compelled to say
that “a reasonable likelihood” exists that Hicks is mentally retarded. Accordingly, we
deny Hicks’s Motion for Leave to file a Successive Habeas Corpus Petition.
B. Motion for a Stay
We will “consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.” Gomez v. United States Dist. Court of N.
Dist. Of Cal., 503 U.S. 653, 654, 112 S. Ct. 1652, 118 L. Ed. 2d 293 (1992). We
must consider “the extent to which [Hicks] has delayed unnecessarily in bringing the
claim . . . [because] there is a strong equitable presumption against the grant of a stay
where a claim could have been brought at such a time as to allow consideration of the
merits without requiring entry of a stay.” Nelson v. Campbell, 124 S. Ct. 2117, 2126
(2004). The Court noted that a stay is an equitable remedy, and “[e]quity must take
into consideration the State’s strong interest in proceeding with its judgment and . .
. attempt[s] at manipulation.” Id. (quoting Gomez, 503 U.S. at 654, 112 S. Ct. 1652).
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Furthermore, the Court stated that “there is a strong equitable presumption against the
grant of a stay where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.” Id.
We have determined that there is not a reasonable likelihood that Hicks is
mentally retarded and, we noted that Hicks had prior knowledge of a claim of mental
retardation. Hicks could have filed a motion with this court soon after the Supreme
Court’s pronouncement in Atkins, but he did not do so. Because there is a “strong
equitable presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without requiring entry
of a stay,” we will not grant Hicks a stay.2
APPLICATION DENIED; STAY OF EXECUTION DENIED.3
2
We also deny his request for a stay pending consideration of his complaint filed in the
Inter-American Commission on Human Rights. We have no jurisdiction over this Commission, nor
is any finding made by this Commission binding on us. See Garza v. Lappin, 253 F.3d 918, 924-26
(7th Cir. 2001).
3
Judge Birch dissents and will file an opinion forthwith.
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BIRCH, Circuit Judge, dissenting:
I respectfully dissent. In my judgment the movant, Hicks, pursuant to In Re
Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003), has adequately demonstrated that
there is a reasonable likelihood that he is in fact mentally retarded under Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed. 2d 335 (2002). Clearly Hicks has
made a sufficient showing of possible merit to warrant a fuller exploration by the
district court. Holladay, 331 F.3d at 1173-74.
I would grant a stay of execution until the district court could hold an
evidentiary hearing to make a finding as to mental retardation under Atkins. I concur
with Justice Norman Fletcher of the Georgia Supreme Court in his observation that:
“[a] state law procedure that allows a habeas court to deny access to an expert
[psychologist] and then dismiss the petition for lack of an expert [opinion] fails to
provide adequate protection for the federal constitutional right.” Hicks v. Schofield,
(Ga. S. Ct.; Case no. S04W1751; 1 July 2004) (dissenting).
The following representations by Hicks’ counsel, an officer of this court,
resonate with me:
Georgia state habeas corpus judges routinely grant access for testing.
Petitioner presented below 86 cases in which access [has] been granted.
Georgia has provided no basis for distinguishing between Petitioner and
the 86 other persons who have received frequently life-saving access to
testing. The habeas corpus judge in 1992 in Petitioner’s case simply
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denied the motion for access the day it was filed without explanation,
and now Respondent contends that that unexplained denial provides
sufficient cause to deny testing post-Atkins. It is utterly arbitrary and
violative of the Eighth and Fourteenth Amendments for Georgia to treat
similarly situated persons differently.
*****
The State also argued in 1992 that evidence existed that
Petitioner was not retarded. The evidence relied upon by the State is
faulty and could not be the basis for refusing testing. First, the State
argued that Petitioner had obtained a GED and had completed the
equivalent of one year of college, based upon the 1985 report of a
trial defense expert. While it is true that the report recites this
information, see Appendix 13, the information came from Petitioner’s
self-report and is unreliable. Second, the State argued that a defense
expert named Bradford opined in 1986 that Petitioner’s “intelligence
was estimated to be in the low average range.” Hearing at 27
(emphasis added) Bradford did not perform any IQ testing.
Estimated IQs are notoriously inaccurate and in fact Bradford
recommended that a complete IQ test be administered. . . .
While not raised by the State in 1992, Petitioner is aware of an
invalid IQ score of 94 that was obtained in 1985 by Dr. Grigsby. This
IQ score is invalid because it was obtained with an incomplete and
outdated test. Dr Dale Watson explains:
[I]t is my professional opinion that the IQ standard score of 94
obtained on the ‘abbreviated WAIS’ administered by Dr.
Grigsby in 1985 is invalid as an accurate measure of Mr.
Hicks’ intelligence and is in all probability significantly
inaccurate.
*****
Dr. Grigsby gave an abbreviated or short form of the test, a
practice that has been criticized as sometimes resulting in high
levels of classification inaccuracy.
*****
[S]tudies show that some versions of short form testing yield
significantly overestimated IQ’s when compared to actual
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Full Scale IQ obtained from the administration of the complete
test. (Thompson, 1985).
*****
The results obtained from administering a WAIS in 1985,
whether administered fully or partially, are also likely to have
been artificially inflated by what has been labeled “The Flynn
Effect.”
*****
Because only a portion of the WAIS was administered (and it is
unknown which subtests or portions of subtests were utilized);
because the WAIS was, at the time administered, and outdated,
obsolete and invalid test for accurately determining IQ; and
because the Flynn Effect would cause any score obtained on
the WAIS in 1985 to be artificially inflated, itis my opinion that
the test results obtained by Dr. Grigsby are invalid and of
little use in determining Mr. Hicks IQ.
App. 17.
In Clinical Interpretation of the WAIS (Zimmerman, Grune &
Stratton, 1973), it states that “Wechsler himself presented one of the most
cogent criticisms of the brief form . . . reliabilities of some subtests are so
low so that reliance on half the items or only a few subtests to draw
conclusions is inadvisable.” (p. 178). The Handbook on Psychological
Assessment is similarly clear about the unreliability of “short form” tests.
See Gary Groth Marnat, Handbook on Psychological Assessment 191 (4th
Ed.) (“None of the [Wechsler] short forms should be confused with a full
intellectual assessment or even a valid indicator of IQ.”).
Motion for Authorization to File a Successive Petition for Writ of Habeas Corpus
and Stay of Execution at 23, n. 11; 25-27.
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