IN RE: Glenn Holladay

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 26, 2003
No. 03-12676 THOMAS K. KAHN
________________________ CLERK

IN RE: GLENN HOLLADAY,
Petitioner.

________________________

Application for Leave to File a Second or Successive
Habeas Corpus Petition, 28 U.S.C. § 2244(b)
________________________
(May 26, 2003)

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Glenn Holladay is a state prisoner scheduled to be executed at 6:01

p.m. on May 29, 2003. He has filed this eleventh hour application for leave to file a

second federal habeas corpus petition based on the United States Supreme Court’s

decision in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002) and for a stay of execution. He alleges that he is mentally retarded, and that

under Atkins his execution is flatly forbidden under the Eighth Amendment to the
United States Constitution. The State of Alabama opposes Holladay’s motion,

arguing that he is not mentally retarded and that in any event this claim was

procedurally defaulted. The State also contends that by waiting nearly a year

following the Atkins decision to file this motion, petitioner’s application constitutes

an abuse of the writ.

Holladay was convicted on June 26, 1987 of the murders of Larry Thomas, Jr.,

Rebecca Ledbetter Holladay (his ex-wife) and David Robinson, his ex-wife’s then-

boyfriend. The following day, the jury unanimously recommended that he be

sentenced to death, and on July 27, 1987 the trial court formally imposed a death

sentence on petitioner. Although in arriving at this decision the court found no

statutory mitigating circumstances, it did find four non-statutory mitigating

circumstances: Holladay’s deprived childhood, his neglect and abuse as a child, his

slight mental retardation and his lack of formal education. Nonetheless, the trial court

concluded that these mitigating circumstances were outweighed by the two statutory

aggravating circumstances in the case, viz., that the capital offense was committed

while petitioner was under a sentence of imprisonment and that Holladay previously

had been convicted of felonies involving the threat or use of personal violence.

On direct appeal, petitioner’s conviction and sentence were affirmed by the

Alabama Court of Criminal appeals and the Alabama Supreme Court. See Holladay

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v. State, 549 So. 2d 122 (Ala. Crim. App. 1988), aff’d sub nom. Ex parte Holladay,

549 So. 2d 135 (Ala. 1989). Subsequently, the United States Supreme Court denied

Holladay’s petitions for a writ of certiorari, see Holladay v. Alabama, 493 U.S. 1012,

110 S. Ct. 575, 107 L. Ed. 2d 569 (1989), and for rehearing, see Holladay v. Alabama,

493 U.S. 1095, 110 S. Ct. 1173, 107 L. Ed. 2d 1075 (1990).

Holladay subsequently filed a petition for post-conviction relief under

Temporary Rule 20 of the Alabama Rules of Criminal Procedure (now Ala. R. Crim.

P. 32.2). Although the Rule 20 court found that most of his claims were procedurally

barred as having not been raised at trial or on direct appeal, it analyzed Holladay’s

claim of ineffective assistance of counsel, ultimately concluding that counsel’s

performance had been neither objectively deficient nor prejudicial to petitioner. See

Holladay v. State, Cir. Ct. of Etowah County, 1991 (No. CC-86-1057.60ST, Sept. 24,

1991) at 47-48. The Rule 20 court’s denial of post-conviction relief was affirmed by

the Alabama Court of Criminal Appeals, see Holladay v. State, 629 So. 2d 673 (Ala.

Crim. App. 1992) and the Alabama Supreme Court denied certiorari review, see id.

The United States Supreme Court also denied Holladay’s petition for a writ of

certiorari. See 510 U.S. 1171, 114 S. Ct. 1208, 127 L. Ed. 2d 555 (1994).

Holladay then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the Northern District of Alabama, with

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his primary claim sounding in ineffective assistance of counsel. On May 29, 1998,

the magistrate judge issued a Report and Recommendation that the petition be denied,

and on July 22, 1998, after considering Holladay’s objections to the report and

recommendation, the district court denied the petition. We affirmed this denial,

see Holladay v. Haley, 209 F.3d 1243 (11th Cir. 2000), denied rehearing and rehearing

en banc, see Holladay v. Haley, 232 F.3d 217 (11th Cir. 2000), and the United States

Supreme Court again denied certiorari, see Holladay v. Haley, 531 U.S. 1017, 121 S.

Ct. 578, 148 L. Ed. 2d 495 (2000). Subsequently, in response to a request from the

State, on March 24, 2003 the Alabama Supreme Court scheduled Holladay’s

execution for May 29, 2003.

Petitioner now moves for leave to file a second petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2244 based on the Supreme Court’s recent decision

in Atkins.

Our consideration of a request to file second or successive habeas petitions is

governed by the statutory requirements found in: 1) 28 U.S.C. § 2244(b), which

provides in pertinent part that “[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 . . . the applicant shows that the claim relies on a new rule

of constitutional law, made retroactive to cases on collateral review by the Supreme

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Court, that was previously unavailable . . .,” 28 U.S.C. § 2244(b)(2)(A); and 2) §

2244(b)(3)(C), which says that “[t]he court of appeals may authorize the filing of a

second or successive application only if it determines that the application makes a

prima facie showing that the application satisfies the requirements of this subsection.”

In this case, there is no question that the rule recently announced by the

Supreme Court in Atkins -- that the execution of mentally retarded persons constitutes

“cruel and unusual punishment” in violation of the Eighth Amendment, see 536 U.S.

at 321, 122 S. Ct. 2252 -- is a new rule of constitutional law made retroactive to cases

on collateral review by the Supreme Court that was previously unavailable. In

particular, whereas prior to Atkins there was no prohibition against executing the

mentally retarded, the Supreme Court plainly announced in that case that “pursuant

to our narrowing jurisprudence, which seeks to ensure that only the most deserving

of execution are put to death, an exclusion for the mentally retarded is appropriate.”

536 U.S. at 319, 122 S. Ct. at 2251.

In Tyler v. Cain, Justice O’Connor explained in a concurring opinion that a

new rule of constitutional law is made retroactive not only through an express

pronouncement of retroactivity, but also “through multiple holdings that logically

dictate the retroactivity of the new rule.” 533 U.S. 656, 668, 121 S. Ct. 2478, 2485,

150 L. Ed. 2d 632 (2001). Specifically, she said, “if we hold in Case One that a

5
particular type of rule applies retroactively to cases on collateral review and hold in

Case Two that a given rule is of that particular type, then it necessarily follows that

the given rule applies retroactively to cases on collateral review. In such

circumstances, we can be said to have ‘made’ the given rule retroactive to cases on

collateral review.” Id. at 668-69, 121 S. Ct. at 2485-86.

The Supreme Court’s cases concerning the constitutionality of executing the

mentally retarded provide a paradigmatic example of the “retroactivity by logical

necessity” described by Justice O’Connor. Framed in the simplest terms, in Penry v.

Lynaugh the Court unambiguously observed that “if we held, as a substantive matter,

that the Eighth Amendment prohibits the execution of mentally retarded persons . .

. regardless of the procedures followed, such a rule would fall under the first

exception to the general rule of nonretroactivity and would be applicable to

defendants on collateral review.” 492 U.S. 302, 330, 109 S. Ct. 2934, 2953, 106 L.

Ed. 2d 256 (1989). Although the Court ultimately rejected such a rule in Penry, see

id. at 340, 109 S. Ct. at 2958, in Atkins the Court reversed course and announced that

“the Constitution ‘places a substantive restriction on the State’s power to take the life’

of a mentally retarded offender.” 536 U.S. at 321, 122 S. Ct. at 2252 (quoting Ford

v. Wainwright, 477 U.S. 399, 405, 106 S. Ct. 2595, 2599, 91 L. Ed. 2d 335 (1986)).

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 At this point, there is no question that the new constitutional rule abstractly

described in Penry and formally articulated in Atkins is retroactively applicable to

cases on collateral review. See Walker v. True, 4th Cir., 2003 (No. 02-22, May 6,

2003) (“[T]he Court in Atkins announced a new rule of constitutional law that applies

retroactively to cases on collateral review.”); In re Morris, __ F.3d __ (5th Cir. 2003)

(noting that under Penry and Atkins the Atkins rule is retroactively applicable); Bell

v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002) (agreeing “that Atkins constitutes an

exception to the non-retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060, 103 L. Ed. 2d 334 (1989), and therefore applies retroactively”); Hill v.

Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at

the end of its term that executing a mentally retarded individual violates the Eighth

Amendment's ban on cruel and unusual punishments. This holding applies

retroactively . . . .”) (citation omitted).

Importantly, however, our finding that the requirements expressly set forth in

28 U.S.C. § 2244(b)(2)(A) are satisfied in this case does not terminate our analysis.

Indeed, these requirements merely represent the minimum showing that Holladay

must make if we are to permit him to file a second or successive petition for a writ of

habeas corpus. See § 2244(b)(3)(C) (“The court of appeals may authorize the filing

of a second or successive application only if it determines that the application makes

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a prima facie showing that the application satisfies the requirements of this

subsection.”). In this case, we find it manifestly obvious that in order to make a

prima facie showing that he is entitled to file a second or successive petition based

on Supreme Court’s decision in Atkins, Holladay also must demonstrate that there is

a reasonable likelihood that he is in fact mentally retarded.1 Cf. In re Morris, __ F.3d

__ (5th Cir. 2003) (granting a motion to file a “second or successive” habeas

application only upon a showing that “applicant should be categorized as ‘mentally

retarded’”).

The requisite showing was articulated by the Seventh Circuit as being “a

sufficient showing of possible merit to warrant a fuller exploration by the district

court.” Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997). The Bennett

court elaborated on the substance of this standard, saying that “[i]f in light of the

documents submitted with the application it appears reasonably likely that the

application satisfies the stringent requirements for the filing of a second or successive

petition, we shall grant the application.” Id. at 470. The Fifth Circuit, among others

has expressly adopted the Bennett standard. See Reyes-Requena v. United States,

243 F.3d 893, 899 (5th Cir. 2001) (“‘By “prima facie showing” we understand . . .

1
Were it otherwise, then literally any prisoner under a death sentence could bring an
Atkins claim in a second or successive petition regardless of his or her intelligence. No rational
argument can possibly be made that this result is appropriate under § 2244(b).

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simply a sufficient showing of possible merit to warrant a fuller exploration by the

district court.’ Therefore, if from the application and its supporting documents, ‘it

appears reasonably likely that the application satisfies the stringent requirements for

the filing of a second or successive petition,’ the application shall be granted.”

(quoting Bennett, 119 F.3d 469-70)); see also Bell v. United States, 296 F.3d 127,

128 (2d Cir. 2002) (“A prima facie showing is not a particularly high standard. An

application need only show sufficient likelihood of satisfying the strict standards of

§ 22552 to ‘warrant a fuller exploration by the district court.’” (quoting Bennett, 119

F.3d at 469); Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir. 1998) (same);

Rodriguez v. Superintendent, 139 F.3d 270, 273 (1st Cir. 1998) (same), overruled on

other grounds by Bousley v. United States, 523 U.S. 614, 622-23, 118 S. Ct. 1604,

1611, 140 L. Ed. 2d 828 (1998). We adopt this standard as well and, given the

Supreme Court’s recent flat prohibition against executing the mentally retarded, hold

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.

2
“The same standard applies to both state and federal successive habeas applications.”
Bell, 269 F.3d at 128 (citing Bennett, 119 F.3d at 469).

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 In this case, the record contains substantial conflicting evidence regarding

Holladay’s intellectual capacity. Indeed, both petitioner’s motion and the State’s

response to that motion devote much attention to the question of whether petitioner

is or is not mentally retarded. On the one hand, as Holladay notes, he has taken ten

IQ tests since 1958, and, in chronological order, he has scored as follows: 49 (1958);

56 (1958); 54 (1963); 66 (1968); 73 (1969); 69 (1978); 68 (1979); 72 (1979); 71

(1987); 65 (1991).3 The mean of these ten scores is 64. During his school years

3
“‘Mild’ mental retardation is typically used to describe people with an IQ level of 50-55
to approximately 70.” Atkins, 536 U.S. at 308 n.3 (quoting American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 42-43 (4th ed. 2000)); see also Brown v.
Crosby, 249 F. Supp. 2d 1285, 1295 (S.D. Fla. 2003) (“An IQ between 70 and 75 or lower ‘is
typically considered the cutoff IQ score for the intellectual function prong of the mental
retardation definition.’” (quoting Atkins, 536 U.S. at 309 n.5, 122 S. Ct. at 2245 n. 5)).

Notably, however, a diagnosis of mental retardation requires more than a low IQ score, as
an inability to function adaptively in society also is necessary. As the Supreme Court explained:

The American Association of Mental Retardation (AAMR) defines mental retardation
as follows: “Mental retardation refers to substantial limitations in present functioning.
It is characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following applicable adaptive
skill areas: communication, self-care, home living, social skills, community use, self-
direction, health and safety, functional academics, leisure, and work. Mental retardation
manifests before age 18.” Mental Retardation: Definition, Classification, and Systems
of Supports 5 (9th ed. 1992).

The American Psychiatric Association’s definition is similar: “The essential feature of
Mental Retardation is significantly subaverage general intellectual functioning (Criterion
A) that is accompanied by significant limitations in adaptive functioning in at least two
of the following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B). The onset must occur before age 18 years

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(which lasted until the sixth grade), Holladay frequently was referred to as slightly

mentally retarded or a “slow learner.” In 1963, a report prepared by the Alabama

Department of Human Resources denoted him as “barely educable with a Wechsler

IQ of 54.”

Moreover and quite significantly, at the sentencing phase of Holladay’s trial

the court instructed the jury that it could consider petitioner’s mental retardation as

a mitigating circumstance, and his counsel submitted a significant amount of evidence

of his mental retardation for the jury’s consideration. Subsequently, the trial court

squarely said in its judgment of conviction: “The Court further finds that the

(Criterion C). Mental Retardation has many different etiologies and may be seen as a
final common pathway of various pathological processes that affect the functioning of
the central nervous system.” American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 41 (4th ed.2000).

Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3.

The Supreme Court in Atkins left it to the several state legislatures to formulate precise
standards for determining whether an individual is retarded. See 536 U.S. at 317, 122 S. Ct.
at 2250 (“To the extent there is serious disagreement about the execution of mentally
retarded offenders, it is in determining which offenders are in fact retarded. In this case, for
instance, the Commonwealth of Virginia disputes that Atkins suffers from mental
retardation. Not all people who claim to be mentally retarded will be so impaired as to fall
within the range of mentally retarded offenders about whom there is a national consensus.
As was our approach in Ford v. Wainwright, with regard to insanity, ‘we leave to the State[s]
the task of developing appropriate ways to enforce the constitutional restriction upon its
execution of sentences.’” (quoting 477 U.S. at 405, 416-17, 106 S. Ct. at 2605)). However,
to date the Alabama legislature has not enacted such a standard.

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Defendant is slightly mentally retarded . . . .” In this context, we note that Atkins

himself was described as “mildly mentally retarded.” Atkins, 536 U.S. at 308, 122

S. Ct. at 2245 (citation and internal punctuation omitted). Furthermore, as we

observed in evaluating Holladay’s first habeas petition, “[e]ven the prosecutor, in his

closing, acknowledged that Holladay was slightly mentally retarded.” Holladay v.

Haley, 209 F.3d 1243, 1249 (11th Cir. 2000).

On the other hand, the State correctly notes that mental retardation is not a

product of IQ scores alone and that an individual’s ability to adaptively function in

society is a vital element of a retardation diagnosis. As the State further observes,

despite his low IQ scores petitioner has been found by numerous experts to be highly

adaptive and therefore not retarded. Notably, this issue played an important role in

the Alabama courts’ analysis of his claim of ineffective assistance of counsel, which

he advanced in his post-conviction proceeding under Ala. R. Crim. P. 20. Holladay

claimed that his trial counsel was ineffective for failing to present evidence of his

mental retardation at the sentencing phase of his trial, and the Rule 20 court rejected

this assertion on two distinct grounds.

First, the court accurately noted that trial counsel did present such evidence.

Second, and more significantly from our perspective, it engaged in a searching

analysis of the testimony of one prosecution expert on mental retardation (Dr. Joe

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Dixon), who opined that petitioner was not mentally retarded but rather fell into “the

borderline range of intelligence,” and two defense experts on this subject (Drs. Brad

Fisher and Michael Norko) who testified contrarily that Holladay was in fact mentally

retarded. The Rule 20 court ultimately “credit[ed] the testimony of Dr. Dixon and .

. . not . . . the testimony of Dr. Fisher and Dr. Norko.” In explaining this

determination, the court noted what it perceived to be several flaws in the

methodologies employed and conclusions reached by Fisher and Norko. It also

observed that Dixon’s testimony was consistent with the opinions offered by “at least

seven competent psychologists and psychiatrists,” all of whom had examined

Holladay.

The Alabama Court of Criminal Appeals upheld the Rule 20 court’s credibility

determinations and legal conclusions, saying that “[a]n examination of the record

substantiates the trial court’s findings and establishes that appellant’s trial counsel

conducted a thorough investigation, discovered certain mitigating circumstances, and

presented this evidence to the court and to the jury.” Holladay, 629 So. 2d at 683

(emphasis added).

In determining whether petitioner has demonstrated that he should be granted

leave to file a second habeas petition to address for the first time whether his

execution would violate the Eighth Amendment, we are required to consider the

13
evidence of his intellectual capacity in its totality. When we do so in this case, we are

compelled to say that there is a “reasonable likelihood” -- as that phrase is defined in

Bennett, 119 F.3d at 469-70 -- that Holladay is mentally retarded. We are faced with

two contrary findings by the trial court as to whether Holladay is mentally retarded.

Again, at sentencing the state trial court unambiguously found petitioner to be

“slightly mentally retarded.” At the Rule 20 hearing, by contrast, the court credited

Dr. Dixon’s opinion that he is not mentally retarded. At the end of the day, these

findings are seemingly irreconcilable. Notably, neither of these findings were made

in the context of an Eighth Amendment cruel and unusual punishment claim, as that

claim never was presented to the state courts. Instead, they both were the product of

substantively different inquiries that featured dissimilar analytical modalities.4

When we couple these contrary findings with the facts that 1) petitioner scored

a 65 on his most recent IQ test (taken in 1991); 2) the trial court instructed the jury

to consider his mental retardation as mitigating evidence at the penalty phase of his

trial; and 3) the prosecution noted petitioner’s mental retardation during its closing

argument, we simply cannot say, for purposes of granting leave to file a second

4
Indeed, whereas the question under the Sixth Amendment was whether Strickland’s
“objective unreasonableness” and prejudice requirements were met, the Eighth Amendment
inquiry is far narrower: Is petitioner mentally retarded? If so, his execution is constitutionally
barred.

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habeas petition, that there is no reasonable likelihood that Holladay is mentally

retarded, and that his execution consequently would not run afoul of the Eighth

Amendment. Overarching this square factual conflict, we cannot avoid the

observation that petitioner’s Eighth Amendment claim never has been adjudicated by

any court. Importantly, we do not say that Holladay is mentally retarded. Rather, we

simply hold today that based on the facts presented and the procedural posture of this

case petitioner should be permitted to file a second petition for a writ of habeas

corpus on the basis of his Atkins claim. 5 See generally Bennett, 119 F.3d at 469.

For much the same reason, we grant petitioner’s motion for a stay of execution.

We consider four factors in determining whether a stay of execution is appropriate

under 28 U.S.C. § 2251: “[W]hether the movant has made a showing of likelihood

of success on the merits and of irreparable injury if the stay is not granted, whether

the stay would substantially harm other parties, and whether granting the stay would

serve the public interest.” Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir.

1987). In this case, we already have held that there is a reasonable likelihood that

Holladay is mentally retarded and that his Atkins claim consequently may succeed.

5
It is not at all clear from the documents presented to us whether petitioner’s claim is
procedurally barred, or whether he abused the writ by waiting until now to file this petition. We
expect these matters to be more fully developed and addressed in the district court, as well as any
contention that petitioner has failed to exhaust his claim by first presenting it in state court.

15
We consider the irreparability of the injury that petitioner will suffer in the absence

of a stay to be self-evident. Moreover, contrary to the State’s contention that its

interest in executing Holladay outweighs his interest in further proceedings, we

perceive no substantial harm that will flow to the State of Alabama or its citizens

from postponing petitioner’s execution to determine whether that execution would

violate the Eighth Amendment.

For the foregoing reasons, Holladay’s application for leave to file a second or

successive habeas petition is GRANTED, and his motion for a stay of execution is

likewise GRANTED. The mandate shall issue forthwith.

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