[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
2
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
3
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
4
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)).
6
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
7
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).
8
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).
9
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
10
(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.
11
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
12
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.
14
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.
16