IN THE SUPERIOR COURT OF BUTTS COUNTY STATE OF GEORGIA

Transcription

1 IN THE SUPERIOR COURT OF BUTTS COUNTY STATE OF GEORGIA WARREN LEE HILL, JR., ) Petitioner, ) Habeas Corpus vs. ) Case No. ) GDCP WARDEN, ) CAPITAL CASE Respondent. ) PETITION FOR A WRIT OF HABEAS CORPUS The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. [By imposing a rigid rule which creates an unacceptable risk that persons with intellectual disability will be executed, ] Florida s law contravenes our Nation s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects. -- Hall v. Florida, 134 S. Ct. 1986, 1990, 2001 (2014) Brian S. Kammer (Ga ) Marcy Widder (Ga ) Heidi Reiner (Ga ) GEORGIA RESOURCE CENTER 303 Elizabeth Street, NE Atlanta, Georgia COUNSEL FOR MR. HILL

2 TABLE OF CONTENTS INTRODUCTION... 4 PROCEEDINGS BELOW...11 CLAIMS FOR RELIEF...19 I. Warren Lee Hill Is Intellectually Disabled By Unanimous Clinical Opinion And This Court s Prior Findings, But Georgia s Unique Beyond Reasonable Doubt Standard Unconstitutionally Denies Him A Fair Opportunity To Show That The Constitution Prohibits [His] Execution. Hall, 134 S. Ct. at A. Atkins Did Not Give The States Unfettered Discretion To Define The Full Scope Of The Constitutional Protection [Against Executing The Intellectually Disabled]. Hall, 134 S. Ct. at B. States Must Not Impose Requirements That Create[] An Unacceptable Risk That Persons With Intellectual Disability Will Be Executed. Hall, 134 S. Ct. at C. Hall Makes Clear That States May Not Ignore Clinical Diagnostic Practices And Definitions In Formulating Procedures To Enforce The Eighth Amendment Under Atkins II. Because Warren Lee Hill Is Intellectually Disabled Beyond A Reasonable Doubt, His Execution Would Constitute A Miscarriage Of Justice In Violation Of The Georgia And Federal Constitutions, Fleming v. Zant, 259 Ga. 687 (1989), And Atkins v. Virginia A. Clinical Assessment Of Intellectual Disability Has Evolved Towards A Greater Understanding Of The Range Of Abilities Of Which Intellectually Disabled Persons Are Capable Evolution in the clinical assessment of mental disorders, and intellectual disability specifically, has been recognized in the courts i

3 2. The clinical community s expanded understanding of intellectual disability since Atkins has developed even as concerns have grown about under-recognition of the disability in the courts Recent developments in the law under Atkins are more consistent with clinical understandings of intellectual disability. 45 B. Consistent With Hall, This Court Must Recognize And Give Effect To Clinical Guidance As To How To Interpret Mr. Hill s Adaptive Skill Profile In Determining Whether He Is Intellectually Disabled Beyond A Reasonable Doubt PROPOSED ORDER...50 CERTIFICATE OF SERVICE...57 ii

4 IN THE SUPERIOR COURT OF BUTTS COUNTY STATE OF GEORGIA WARREN LEE HILL, JR., ) Petitioner, ) Habeas Corpus vs. ) Case No. ) GDCP WARDEN, ) CAPITAL CASE Respondent. ) PETITION FOR WRIT OF HABEAS CORPUS COMES NOW Petitioner, WARREN LEE HILL, JR., an intellectually disabled man by unanimous clinical opinion and the opinion of this Court, and, in light of the United States Supreme Court s recent decision in Hall v. Florida, 134 S.Ct (2014), files this petition for a Writ of Habeas Corpus, pursuant to O.C.G.A et seq. Petitioner is an indigent person currently under sentence of death. Respondent is the Warden of the Georgia Diagnostic Prison ( GDCP WARDEN ) in Jackson, Georgia. This petition incorporates all claims and allegations made by Mr. Hill in Butts Co. Superior Court cases 1994-V-216, V-658, and 2013-V

5 INTRODUCTION This Court has said it twice 1 : Warren Lee Hill is intellectually disabled. 2 All of Respondent s experts have acknowledged: Warren Lee Hill is intellectually disabled. 3 No expert who has evaluated Mr. Hill for intellectual disability disputes that Mr. Hill meets the criteria under Atkins v. Virginia, 536 U.S. 304 (2002), and O.C.G.A (a)(3) for a diagnosis of intellectual disability. 4 Nevertheless, because Georgia law requires him to prove intellectual disability not to a preponderance of the evidence, or even by clear and convincing evidence, but beyond a reasonable doubt, he faces imminent execution. Clemency was denied on July 16, 2012 (Appendix 6). There is thus no fail safe 5 outside the judicial process 1 See Appendix 8, Order of Nov. 19, 2002, in Butts Co. Superior Court Case No V- 216, at 9 (finding that ; Appendix 9, Order of July 19, 2012, in Butts Co. Superior Court Case No V-658, at In its recent decision in Hall v. Florida, 134 S.Ct (2014) (see Appendix 1), the Supreme Court adopted the term intellectual disability to describe the disability that was previously described as mental retardation. Hall, 134 S.Ct. at 1990 ( This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders [ DSM ], one of the basic texts used by psychiatrists and other experts.... ). Accordingly, this pleading uses the term intellectual disability and related terms in place of mental retardation. 3 See Appendices 2-4, also filed in Butts Co. Superior Court Case No V See Appendices 2-4, Herrera v. Collins, 506 U.S. 390, 414 (1993). 4

6 to prevent his execution. This Court must now give effect to the recent United States Supreme Court decision in Hall v. Florida, 134 S.Ct (2014), 6 in order to avoid a miscarriage of justice 7 in Mr. Hill s case. Hall supports Mr. Hill s longstanding argument that Georgia s strict beyond reasonable doubt standard impermissibly conflicts with the logic of Atkins and the Eighth Amendment and effectively renders the Supreme Court s decision in Atkins a nullity by making it virtually impossible to prove intellectual disability., Hall, 134 S. Ct. at As Mr. Hill s case unequivocally demonstrates, the beyond a reasonable doubt standard denies persons like Mr. Hill a fair opportunity to show that the Constitution prohibits their execution and creates an unacceptable risk that 6 In Georgia, a previously litigated claim may be revisited in a subsequent habeas proceeding where there have been new developments in the law, such that the issue could not have been raised in a previous habeas petition, and where the failure to relitigate the claim would result in a miscarriage of justice. See, e.g., Hall v. Vargas, 278 Ga. 868, 871 (2005); Johnson v. Zant, 249 Ga. 812, 818 (1982); Smith v. Zant, 250 Ga. 645, 647 (1983); Bruce v. Smith, 274 Ga. 432, 434 (2001). Prior to the Supreme Court s decision in Hall v. Florida, Mr. Hill could obviously not have relied on it in prior proceedings. 7 [T]he writ must pass over procedural bars and the requirements of cause and prejudice, when that shall be necessary to avoid a miscarriage of justice. Valenzuela v. Newsome, 253 Ga. 793, 796 (1985). 8 See also Speiser v. Randall, 357 U.S. 513, 527 (1958) ( It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. ) (quoting Bailey v. Alabama, 219 U.S. 219, 239 (1911)); Hill v. Humphrey, 662 F.3d 1335, 1370 (11th Cir. 2011) ( [W]hen a constitutional right is at issue, a State cannot chose a process that will effectively gut that right. ) (Barkett, J., dissenting). 5

7 persons with intellectual disability will be executed, and thus is unconstitutional. Id. at 1990, Moreover, that Georgia s rigid rule 9 requiring that Mr. Hill prove intellectual disability beyond a reasonable doubt is unique in the nation demonstrates an overwhelming consensus that our society does not regard this strict [rule] as proper or humane. 10 Under Hall, additionally, states are not free to ignore the diagnostic practices and definitions used by the medical and psychiatric community, particularly those articulated by national authorities on intellectual disability such as the American Association on Intellectual and Developmental Disabilities (AAIDD), which were part of the underlying fundamental premise 11 of Atkins. See, e.g., Hall, 134 S. Ct. at 1993 (relying on clinical studies and the psychiatric and psychological professions in determining whether Florida s 70 IQ cutoff for intellectual disability violates the Eighth Amendment). In this respect, Hall demonstrates that the beyond reasonable 9 Hall, 134 S. Ct. at Id. at 1998 ( The rejection of the strict 70 cutoff in the vast majority of States and the consistency in the trend, Roper [v. Simmons, 543 U.S. 551, 572 (2005)], toward recognizing the [standard error of measurement in IQ scores] provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane. ). 11 Id. at 1993, 1999 (noting that [s]ociety relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue, and that Atkins had adopted clinical definitions of intellectual disability in crafting the categorical exemption of the intellectually disabled from execution). 6

8 doubt standard is constitutionally unsupportable in part because it fails to comport with basic clinical diagnostic practices by which diagnoses are made to a reasonable medical certainty, 12 not beyond a reasonable doubt. Hall answers the Georgia Supreme Court s invitation in Head v. Hill, 277 Ga. 255 (2003), to the United States Supreme Court to clarify its decision in Atkins. In rejecting Mr. Hill s previous challenge to Georgia s beyond reasonable doubt standard for intellectual disability claims, the Georgia Supreme Court explained that it would not disturb the standard unless the United States Supreme Court spoke further on the issue of intellectual disability so as to require that this issue be revisited. See Hill, 277 Ga. at Now the Supreme Court has spoken forcefully, holding that 12 See Addington v. Texas, 441 U.S. 418, 429 (1979) (rejecting the beyond reasonable doubt standard for psychiatric diagnosis, noting that [t]he subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical impressions drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for factfinding is a reasonable medical certainty. ). 13 Further, in deciding that the federal courts could not strike down Georgia s burden of proof, the en banc Eleventh Circuit Court of Appeals stated that although Georgia s law may be incorrect or unwise, only the United States Supreme Court could authoritatively pass on the issue for federal courts to act. Hill, 662 F.3d at

9 the States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual disability should be measured and assessed. But Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection... The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects. Hall, 134 S. Ct. at 1998, 2001 (emphasis supplied). Hall demonstrates that the beyond reasonable doubt standard is flatly unconstitutional and denies persons like Mr. Hill a fair opportunity to show that the Constitution prohibits his execution. Id. at Hall permits this Court to reaffirm its previous finding that the beyond reasonable doubt standard must yield to the Eighth Amendment. Alternatively, the Hall decision also mandates that this Court revisit Mr. Hill s claim that he is intellectually disabled beyond a reasonable doubt and, in so doing, accord deference to the unanimous clinical opinions that Mr. Hill is intellectually disabled. In Hall, the Supreme Court explained: That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising. Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities. Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue... In determining who qualifies as intellectually disabled, it is proper to consult the medical community s opinions. 8

10 Hall, 134 S. Ct. at The Court added that states must recognize and may not ignore accepted clinical approaches to determining intellectual disability. Hall, 134 S.Ct. at In this case, Respondent s expert witnesses have reevaluated their prior opinions and concluded that their prior finding that Mr. Hill had borderline intellectual functioning was inaccurate, and that he is in fact intellectually disabled. All evaluating experts are now unanimous that Mr. Hill is intellectually disabled based on the criteria set forth in the DSM as well as the AAIDD Handbooks on intellectual disability. As Hall now makes clear, the revised expert opinions constitute critical new evidence this Court must evaluate to reassess Mr. Hill s intellectual functioning. According those opinions the substantial weight Hall mandates, this Court should find that Mr. Hill is intellectually disabled beyond a reasonable doubt. Indeed, as the Hall majority emphasized: In the words of Atkins, those persons who meet the clinical definitions of intellectual disability by definition... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Thus, they bear diminish[ed]... personal culpability. Hall, 134 S. Ct. at 1999 (quoting Atkins, 536 U.S. at 318). Because Mr. Hill meets the clinical definition of intellectual disability by unanimous clinical expert opinion, 9

11 he must be afforded the protection of the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. Id. at In addition, to the extent this Court, in initially rejecting Mr. Hill s claim that he is intellectually disabled beyond a reasonable doubt, relied on stereotypical notions of what intellectually disabled persons can and cannot do (e.g., intellectually disabled persons cannot purchase or drive cars, have jobs, have relationships or carry out complex tasks), 14 it disregard[ed] established medical practice 15 in diagnosing intellectual disability. Hall commands that this Court s findings as to Mr. Hill s adaptive skill deficits be reassessed in light of authoritative clinical understandings of the capabilities of intellectually disabled persons. 16 This is Mr. Hill s last chance. The decision in Hall v. Florida illuminates the only just outcome in this case: Mr. Hill, an unquestionably intellectually disabled 14 See Appendix 7 at 3-6 (noting that Mr. Hill s abilities in these areas precluded a finding of intellectually disabled beyond a reasonable doubt). 15 Hall, 134 S. Ct. at 1996 (invalidating Florida s strict 70 IQ cutoff for intellectual disability claims because such approach contradicted clinical definitions and understandings of intellectual disability). 16 See, e.g., Appendix 38 (AAIDD User Guide) at

12 man, must finally be afforded the protection of the federal and Georgia constitutions against wrongful execution and a miscarriage of justice. PROCEEDINGS BELOW Mr. Hill is a person in the custody of the State of Georgia under the terms of verdicts entered August 2, 1991, in the Superior Court of Lee County, Georgia. Pursuant to these judgments, Mr. Hill was convicted of murder and sentenced to death. The Supreme Court of Georgia affirmed Mr. Hill s convictions and sentence of death on March 15, Hill v. State, 263 Ga. 37 (1993). A timely filed motion for reconsideration was denied on March 30, In April 1994, Mr. Hill filed a habeas corpus action in Butts County, Georgia, challenging his conviction and sentence. He was declared indigent by the court and allowed to proceed in forma pauperis. In March 1997, this Court received numerous affidavits regarding Mr. Hill s intellectual disability and other issues. On May 21, 1997, this Court issued a limited writ of habeas corpus, finding that Mr. Hill had submitted sufficient credible evidence that he suffers from intellectual disability to warrant a jury trial before the Lee County Superior Court on the intellectual disability issue, pursuant to Fleming v. Zant, 259 Ga. 687 (1989). 11

13 Respondent appealed from the limited writ. The Georgia Supreme Court reversed and remanded the intellectual disability claim to this Court directing it to decide whether Mr. Hill could prove his intellectual disability beyond a reasonable doubt. See Turpin v. Hill, 269 Ga. 302 (1998). Following a hearing in December 2000, this Court issued an order finding that although Mr. Hill had proven that his IQ is approximately 70 beyond a reasonable doubt, he had not proven the existence of adaptive skill deficits beyond a reasonable doubt. See Order of May 13, 2002 (Appendix 7). This Court also found that Mr. Hill s trial counsel were not ineffective at trial or on appeal. Id. In a separate order issued on September 20, 2002, the state habeas court issued an order denying the remaining claims in Mr. Hill s habeas corpus petition. Between the issuance of the May and September 2002 orders, the United States Supreme Court issued decisions in Ring v. Arizona, 536 U.S. 584 (2002), and Atkins v. Virginia, supra. In its September 2002 order, this Court expressed concern that its prior order determining the intellectual disability claim was invalid under the Ring decision. Following this Court s September 2002 order, Mr. Hill filed a motion for reconsideration in light of Ring and Atkins. On November 19, 2002, this Court granted the requested relief. See Appendix 8. This Court s order left intact its rulings on all issues other than the intellectual 12

14 disability claim, finding that the reasonable doubt burden of proof was contrary to Atkins and therefore unconstitutional because it allowed the executions of persons who are more likely than not intellectually disabled. This Court also found that Mr. Hill met the criteria for intellectual disability by a preponderance of the evidence. Id. at 9. Respondent appealed the November 19, 2002, order, but did not contest this Court s finding that Mr. Hill has intellectual disability by a preponderance of the evidence and that he has an IQ of 70 beyond a reasonable doubt. 17 Mr. Hill filed a cross-appeal on issues decided adversely. Following briefing and oral argument in the Georgia Supreme Court, that court issued on October 6, 2003, a decision reversing this Court s November 19, 2002, order and finding that the beyond reasonable doubt standard did not offend the federal or Georgia constitutions. Head v. Hill, 277 Ga. 255 (2003). However, in dissent, Justice Sears condemned the beyond reasonable doubt standard because under it, the State may still execute people who are in all probability [intellectually disabled]. The State may execute people who are more than likely [intellectually 17 See Hill v. Schofield, 608 F.3d 1272, 1282 n.10 (11th Cir. 2010) (noting that the state of Georgia has explicitly stated that it is not challenging the state court s factual finding that Hill has established his [intellectual disability] by a preponderance of the evidence. ). 13

15 disabled]. The State may even execute people who are almost certainly [intellectually disabled]. Hill, 277 Ga. at 274 (Sears, J., dissenting). The Georgia Supreme Court s decision in Head v. Hill did not disturb this Court s finding that Mr. Hill has intellectual disability by a preponderance of the evidence or that he has a 70 IQ beyond a reasonable doubt. The Court additionally found that it would invalidate the reasonable doubt standard only upon issuance of an applicable decision by the United States Supreme Court. Hill, 277 Ga. at 261. Subsequently, on October 5, 2004, Mr. Hill filed a petition for a writ of habeas corpus in United States District Court for the Middle District of Georgia. Among the issues raised were the intellectual disability claim and the claim that the reasonable doubt standard of proof was inconsistent with Atkins mandate. After extensive briefing on this and other issues, the District Court denied relief on November 11, On August 22, 2008, the District Court denied Mr. Hill s timely filed Motion to Alter and Amend Judgment. Mr. Hill appealed the District Court s decision in the Eleventh Circuit U.S. Court of Appeals. On June 18, 2010, the Eleventh Circuit panel reversed the district court, finding that the reasonable doubt burden of proof for intellectual disability claims was unconstitutional because it eviscerates the command of the Eighth Amendment that the [intellectually disabled] shall not be executed, and is therefore 14

16 contrary to... clearly established Federal law, as determined by the Supreme Court of the United States. Hill, 608 F.3d at 1283 (citing 28 U.S.C. 2254(d)(1)). On November 22, 2012, a sharply divided en banc opinion, on rehearing, instead affirmed the district court s denial of habeas relief. Hill v. Humphrey, 662 F. 3d 1335 (11th Cir. 2011) (en banc). The en banc court noted that it was compelled under federal habeas corpus law to leave undisturbed the Georgia Supreme Court s decision in Head v. Hill, even if it considered that decision incorrect or unwise. Id. at The court noted that only an applicable decision from the United States Supreme Court could alter this disposition. Id. at Mr. Hill then petitioned the U.S. Supreme Court for a writ of certiorari on the issue of whether or not Georgia s beyond a reasonable doubt standard for adjudicating a defendant s intellectual disability violated the Eighth Amendment s ban on cruel and unusual punishment, as well as that Court s precedent under Atkins. The U.S. Supreme Court denied Mr. Hill s petition for a writ of certiorari on June 4, Hill v. Humphrey, 132 S. Ct (2012). On July 3, 2012, a warrant issued in the Superior Court of Lee County setting Mr. Hill s execution for a window from July 18 to July 25, On July 16, 2012, the Georgia Board of Pardons and Paroles denied Mr. Hill s petition for clemency. See Appendix 6. 15

17 On July 18, 2012, Mr. Hill filed another Petition for Writ of Habeas Corpus in this Court, raising a claim that he is intellectually disabled and that the reasonable doubt burden of proof violates the Federal Constitution. This Court denied the Petition on July 19, See Appendix 9 (Order in Butts Co. Superior Court Case No. 12-V-658). In its order denying the merits of Mr. Hill s claim, this Court stated: The Court finds that this Court s previous finding in Hill v. Head, Butts Co. Case No. 94-V-216, that Mr. Hill has an I.Q. of 70 beyond a reasonable doubt and meets the overall criteria for [intellectual disability] by a preponderance of the evidence is justified by the evidence in this case. Appendix 9 (Order of July 19, 2012, Butts Co. Case No. 12-V-658) at 1-2. On July 23, 2012, the Georgia Supreme Court denied Mr. Hill s Application for a Certificate of Probable Cause to Appeal (CPC) this Court s July 19, 2013, Order. On the same day, the Georgia Supreme Court granted a stay of execution and granted CPC in a separate civil action regarding the state s lethal injection protocol. See Hill v. Owen, Georgia Supreme Court Case No. S12W1812 (Order of July 23, 2012). On December 20, 2012, Mr. Hill filed in the U.S. Supreme Court a Petition for Writ of Certiorari to the Georgia Supreme Court asking for review of the Georgia Supreme Court s CPC denial in Butts Co. Case No V

18 On February 4, 2013, the Georgia Supreme Court vacated the stay of execution and denied relief in Hill v. Owens, 292 Ga. 380 (2013). On February 5, 2013, the Lee County Superior Court issued a warrant for Mr. Hill s execution, scheduling it to occur between February 19 and 26, On February 15, 2013, Mr. Hill filed a third Petition for Writ of Habeas Corpus in this Court, alleging that he met Georgia s beyond reasonable doubt standard because all three of the State s mental health experts who had previously found that Mr. Hill did not have intellectual disability but instead had borderline intellectual functioning, had revised their opinions to find that Mr. Hill is in fact intellectually disabled. See Appendices 2-4 (affidavits of Drs. Sachy, Carter, and Harris). This Court denied the petition and a stay of execution on February 18, 2013, in Butts Co. Case No V-111. Mr. Hill filed a CPC application in the Georgia Supreme Court which was denied, along with a stay request, on February 19, Justices Benham and Hunstein dissented. On the same day, February 19, 2013, the United States Supreme Court denied certiorari review in Butts Co. Case No V-658 and denied a stay of execution. Hill v. Humphrey, 133 S.Ct (2013). 18 The United States Supreme Court denied certiorari review in Butts Co. Case No V-111 on October 7, Hill v. Humphrey, 134 S. Ct. 115 (2013). 17

19 On the same day, Mr. Hill requested permission from the Eleventh Circuit to file a second federal habeas corpus action based on the affidavit testimony of the three State doctors finding Mr. Hill intellectually disabled. On that day, February 19, 2013, the Eleventh Circuit granted a stay of execution and ordered briefing. See Order of February 19, 2013, In Re Hill, Case No After briefing, the Eleventh Circuit panel denied permission to file a second federal petition on April 22, See In re Hill, 715 F.3d 284 (11th Cir. 2013). On May 22, 2013, Mr. Hill filed a Petition for an Original Writ of Habeas Corpus in the United States Supreme Court, alleging that, in light of the testimony of the three State doctors that Mr. Hill is intellectually disabled, and that there was now no dispute among the evaluating doctors that he is intellectually disabled, his execution is prohibited by the Eighth Amendment. On July 3, 2013, the Superior Court of Lee County issued a third execution warrant in Mr. Hill s case, setting his execution to take place between July 13 and July 20, On July 12, 2013, Mr. Hill filed an action in Fulton County Superior Court (Case No CV ) challenging Georgia s new law making information regarding the origin and manufacture of its lethal injection drugs a state secret. On July 18, 2013, that Court granted an injunction effectively staying Mr. Hill s execution. 18

20 On October 7, 2013, the United States Supreme Court denied Mr. Hill s request for an Original Writ of Habeas Corpus. In re Hill, 134 S. Ct. 118 (2013). On May 19, 2014, the Georgia Supreme Court reversed the Fulton County Superior Court s grant of injunctive relief and rejected the underlying merits of Mr. Hill s claims in that action. See Owens v. Hill, 295 Ga. 302 (2014). On May 27, 2014, the United States Supreme Court issued its decision in Hall v. Florida, 134 S. Ct (2014), in which the Court for the first time invalidated a state s approach to determining claims of intellectual disability under Atkins v. Virginia. This Petition follows. CLAIMS FOR RELIEF I. Warren Lee Hill Is Intellectually Disabled By Unanimous Clinical Opinion And This Court s Prior Findings, But Georgia s Unique Beyond Reasonable Doubt Standard Unconstitutionally Denies Him A Fair Opportunity To Show That The Constitution Prohibits [His] Execution. Hall, 134 S. Ct. at This Court has previously found on two occasions that Warren Lee Hill, Jr., is intellectually disabled by a preponderance of the evidence. In a prior postconviction action this Court found Mr. Hill to have an IQ of approximately 70 beyond a reasonable doubt. See Appendix 7 (Order of May 13, 2002, Butts Co. Case No V-216). In a subsequent Order on reconsideration, which invalidated the 19

21 beyond reasonable doubt standard in light of Atkins, this Court found that Mr. Hill meets the overall criteria for intellectual disability by a preponderance of the evidence. See Appendix 8 (Order of November 19, 2002, Butts Co. Case No V-216) at Respondent did not contest these findings on appeal or in subsequent federal habeas corpus proceedings. 20 On July 19, 2012, this Court reaffirmed its 2002 finding, stating that [t]he Court finds that this Court s previous finding in Hill v. Head, Butts Co. Case No V-216, that Mr. Hill has an I.Q. of 70 beyond a reasonable doubt and meets the overall criteria for intellectual disability by a preponderance of the evidence is justified by the evidence in this case. Appendix 9 (Order of July 19, 2012, Butts Co. Case No V-658) at 1-2. Moreover, that Mr. Hill is intellectually disabled is now the unanimous conclusion of all experts who have evaluated him, including the three Central State Hospital experts who evaluated Mr. Hill in December 2000 on behalf of Respondent. 21 The evidence is by now abundantly and overwhelmingly clear that 19 This conclusion is amply supported by the record before the Court on that occasion. See Appendices 10-24, See Hill, 608 F.3d at 1282 n.10 (noting that the state of Georgia has explicitly stated that it is not challenging the state court's factual finding that Hill has established his [intellectual disability] by a preponderance of the evidence. ). 21 See Appendices 2-4, and the Petition for Writ of Habeas Corpus filed in Butts Co. Case No V-111 and Appendices. 20

22 Mr. Hill is intellectually disabled. 22 Only because Mr. Hill s case happens to originate in Georgia does he still face imminent execution because Georgia is the only state in the nation to compel defendants to meet the heaviest burden of proof in American law -- beyond a reasonable doubt -- in order to invoke Atkins prohibition on the execution of the intellectually disabled. See O.C.G.A (c)(3), (j). In reversing this Court s prior decision finding the beyond reasonable doubt burden of proof unconstitutional under Atkins (see Appendix 8), the Georgia Supreme Court stated that it would only consider a challenge to Georgia s standard if the United States Supreme Court issued a subsequent decision adding clarity to the issue. Hill, 277 Ga. at 261. The United States Supreme Court s recent decision in Hall v. Florida fits the bill: it bears directly on the scope of states latitude in crafting procedures for determining whether individuals are intellectually disabled under Atkins. Because Hall answers the Georgia Supreme Court s invitation in Head v. Hill for clarification as to the proper application of Atkins, and was unavailable to Mr. Hill until now, this Court can and must revisit Mr. Hill s claim. See, e.g., 22 See O.C.G.A (a)(3). 21

23 Vargas, 278 Ga. at 871; Johnson, 249 Ga. at 818; Smith, 250 Ga. at 647; Bruce, 274 Ga. at 434. A. Atkins Did Not Give The States Unfettered Discretion To Define The Full Scope Of The Constitutional Protection [Against Executing The Intellectually Disabled]. Hall, 134 S. Ct. at Hall v. Florida directly undercuts the Georgia Supreme Court s reasoning in Head v. Hill upholding the beyond reasonable doubt standard. For example, in rejecting Mr. Hill s argument that, after Atkins, the Eighth Amendment placed constraints on Georgia s implementation of the federal constitutional prohibition against executing the intellectually disabled, the Court held in Hill that Atkins appeared to allow states unlimited latitude to impose any burden of proof whatsoever on defendants attempting to demonstrate ineligibility for execution under Atkins. See Hill, 277 Ga. at In so finding, as Mr. Hill has argued repeatedly in prior legal proceedings, the Hill majority ignored long-standing United States Supreme Court precedent mandating that state procedures for enforcing constitutional rights 23 Atkins specifically left to the States the task of developing appropriate ways to enforce the [federal] constitutional restriction on executing the [intellectual disabled]. [Cit. omitted]. Furthermore, nothing in Atkins instructs the states to apply any particular standard of proof to [intellectual disability] claims. Hill, 277 Ga. at 261 (quoting Atkins, 536 U.S. at 317). 22

24 rooted in the Bill of Rights 24 must comport with basic federal Due Process standards. 25 Now, however, in Hall v. Florida, the United States Supreme Court has clarified that, in the context of intellectual disability and Atkins, the states are emphatically not entitled to craft procedures which run afoul of the Eighth and Fourteenth Amendments. Importantly, the Hall decision utterly refutes the Georgia Supreme Court s finding in Head v. Hill that Atkins reflected a lack of consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, thus justifying Georgia s beyond reasonable doubt standard as an appropriate definition of what degree of impairment qualifies as [intellectually disabled]. Hill, 277 Ga. at 262 (emphasis supplied). In Hall, the 24 Chapman v. California, 386 U.S. 18, 21 (1967). The Georgia Supreme Court in Hill had reasoned that since the United States Supreme Court approved the beyond reasonable doubt standard for a state-created insanity defense in Leland v. Oregon, 343 U.S. 790 (1952), it was constitutionally permissible in the intellectual disability context. See Hill, 277 Ga. at 261. However, if the right is a substantive federal constitutional right, as this one is, then another line of Supreme Court precedent controls. See Cooper v. Oklahoma, 517 U.S. 348 (1996); Speiser v. Randall, supra. The Georgia Supreme Court in Hill chose the wrong line of precedent the Leland line contrary to the line of precedent that assesses procedures for guaranteeing a fundamental constitutional right. Cooper, 517 U.S. at See, e.g., Speiser, 357 U.S. at 523, 527 (constitutional due process places limits on states ability to impose evidentiary presumptions or burdens of proof in enforcing federally guaranteed rights); Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (Constitution imposes basic due process requirements on states enforcing Eighth Amendment categorical restriction on execution of the insane, including fair hearing adequate for reaching reasonably correct results in determining competency to be executed) (quoting Ford v. Wainwright, 477 U.S. 399, 424 (1986)). 23

25 United States Supreme Court made it clear that there is no lack of consensus about the clinical definition of intellectual disability, which was a fundamental premise of Atkins, 26 and that persons with all degrees of intellectual disability are protected from wrongful execution under the Eighth Amendment. Hall, 134 S. Ct. at Referring specifically to language in Atkins purporting to leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction, 27 the Hall majority explained: As discussed above, the States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual disability should be measured and assessed. But Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection. Hall, 134 S. Ct. at 1998 (emphasis supplied). In Hall, the Florida Supreme Court had interpreted state law to foreclose Atkins relief if a defendant obtained an IQ over 70 on intelligence testing. But the 26 Hall, 134 S. Ct. at 1999 (noting that Atkins... provide[s] substantial guidance on the definition of intellectual disability. ). 27 Atkins, 536 U.S. at

26 United States Supreme Court firmly rejected the State s argument that Atkins permitted Florida to define intellectual disability as it saw fit: If the States were to have complete autonomy to define intellectual disability as they wished, the Court s decision in Atkins could become a nullity, and the Eighth Amendment s protection of human dignity would not become a reality. Hall, 134 S. Ct. at The Court then held that Florida s strict approach violated the Eighth Amendment both because clinical definitions of intellectual disability recognize that all IQ scores have an inherent standard error of measurement (SEM), 28 thus allowing scores above 70 to qualify for a diagnosis of intellectual disability, and because [e]very state legislature to have considered the issue after Atkins save Virginia s and whose law has been interpreted by its courts has taken a position contrary to that of Florida... The rejection of the strict 70 cutoff in the vast majority of States and the consistency in the trend [cit. omitted] toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane. Hall, 134 S. Ct. at 1998 (quoting Roper, 543 U.S. at 572). Similarly, here, Georgia s beyond reasonable doubt standard is unique in the nation. Furthermore, [e]very state legislature to have considered the issue after 28 Hall, 134 S. Ct. at

27 Atkins... and whose law has been interpreted by its courts has taken a position contrary to that of [Georgia]. 29 Hall, 134 S. Ct. at Clearly, judging by the unanimous rejection of the beyond reasonable doubt standard and the consistency in the trend in the procedures by which states implement Atkins, there is a clear consensus that our society does not regard [the beyond reasonable doubt standard] as proper or humane. Id. Relief is warranted. 29 At the time of the 2003 Head v. Hill decision in the Georgia Supreme Court, five states utilized the clear and convincing standard for intellectual disability claims: Arizona, Colorado, Florida, Indiana, and Delaware. See Ariz. Rev. Stat. ' ; Colo. Rev. Stat. ' (2); Fla. Stat. Ann. ' ; Ind. Code Ann. ' ; 11 Del. C However, Indiana s reliance on the clear and convincing standard has since been held unconstitutional under Atkins. See Pruitt v. State, 834 N.E.2d 90 (Ind. 2005). Prior to Atkins, ten states utilized the preponderance standard in determining intellectual disability. See Ark. Code Ann. ' ; S.D. Codified Laws 23A-27A-26.1; Md. Crim. Law '2-202; Mo. Rev. Stat. ' ; Neb. Rev. Stat. Ann. ' ; N.M. Stat. Ann. ' 31-20A-2.1; N.Y. Crim. Proc. Law ' ; N.C. Gen. Stat. ' 15A- 2005; Tenn. Code Ann. ' ; Wash. Rev. Code Ann. ' States whose legislatures enacted, or whose courts adopted, the preponderance standard after Atkins was decided in 2002 and before Head v. Hill issued in 2003 were Utah, Idaho, Virginia, Louisiana, Oklahoma, Mississippi, Ohio and Nevada. See, Utah Code Ann a-104; Idaho Code A; Va. Code. Ann :1.1; Nev. Rev. Stat ; State v. Williams, 831 So.2d 835 (La. 2002); Murphy v. State, 54 P.3d 556 (Okla. 2002); State v. Lott, 97 Ohio St.3d 303 (2002); Foster v. State, 848 So.2d 172 (Miss. 2003). By the date of the denial of Mr. Hill s motion for reconsideration in the Georgia Supreme Court in 2003, the number of jurisdictions utilizing the preponderance standard had grown to twenty. See Franklin v. Maynard, 588 S.E.2d 604 (S.C. 2003); Cal. Penal Code 1376(b)(3). Thus, by the final resolution of Mr. Hill s case (Head v. Hill) in the Georgia Supreme Court, nearly eighty percent of jurisdictions that had considered the ramifications of Atkins or already had statutes in place had adopted the preponderance standard. No states have adopted any standard other than preponderance since Atkins. 26

28 B. States Must Not Impose Requirements That Create[] An Unacceptable Risk That Persons With Intellectual Disability Will Be Executed. Hall, 134 S. Ct. at Atkins bans the execution of intellectually disabled offenders because none of the penological goals of capital punishment are met by executing those with intellectual disability and individuals who suffer from intellectual disability are at a special risk of wrongful execution emerging from the characteristics of the disability itself. Atkins, 536 U.S. at Intellectual disability is associated with impairments in cognitive ability, judgment and impulse control which render offenders with the disability inherently incapable of the moral blameworthiness for which the death penalty is ostensibly reserved. However, these same characteristics tend to undermine the procedural protections of the criminal justice system, leading to under-recognition of the condition and a particular disadvantage in capital sentencing proceedings, where intellectually disabled offenders tend to have difficulty assisting counsel and a lesser ability... to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Id. The Hall decision clarifies that, precisely because of this special risk of wrongful execution, states are not free under Atkins to enact procedures that create[] an unacceptable risk that persons with intellectual disability will be executed. Hall, 27

29 134 S. Ct. at In Hall, the Court applied this principle to find that Florida s strict 70 IQ cutoff for intellectual disability claims was flatly unconstitutional. Florida s unique and non-clinically based construction of the medical definition of intellectual disability ignores the inherent imprecision of these tests [and] risks executing a person who suffers from intellectual disability. Id. at Florida s rule thus denied defendants claiming Atkins protection a fair opportunity to show that the Constitution prohibits their execution as well as the basic dignity the Constitution protects. Id. Georgia s beyond reasonable doubt standard is similarly egregious. It violates Due Process and the Eighth Amendment because it is abjectly insufficiently protective of the right of intellectually disabled offenders not to be executed. Instead of ameliorating the risk of wrongful execution, as Atkins commands, the standard virtually guarantees that claimants who can prove to a reasonable medical certainty that they are more than likely intellectually disabled will still be executed. In addition to directly contravening Hall s command that state procedures must not enhance the risk of wrongful execution of intellectually disabled defendants, the 30 The Court then quoted the American Psychiatric Association s amicus brief which states: Under the universally accepted clinical standards for diagnosing intellectual disability, the court s determination that Mr. Hall is not intellectually disabled cannot be considered valid. Id. 28

30 beyond reasonable doubt standard violates long-standing Supreme Court jurisprudence which holds that substantive constitutional rights must be adequately protected and enforced by procedures that comport with basic Due Process. That jurisprudence establishes that where a burden of proof creates the likelihood that a right enshrined in the Bill of Rights will be violated, it is constitutionally intolerable. 31 The beyond reasonable doubt standard, [f]ar from jealously guard[ing],... [an intellectually disabled] criminal defendant's fundamental right not to [be executed]... imposes a significant risk of an erroneous determination that the defendant is [not intellectually disabled]. Cooper, 517 U.S. at 363; id. at 368 ( because Oklahoma s procedural rule allows the state to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process. ). It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether [intellectually disabled] men are being condemned. Winship, 397 U.S. at 364. As Hall now emphatically affirms, and as Mr. Hill s case starkly demonstrates, the beyond reasonable doubt standard authorizes the execution of (1970). 31 See, e.g., Speiser, Addington, Cooper, Panetti, supra; In Re Winship, 397 U.S

31 persons who can prove they are more likely than not intellectually disabled. 32 As Hall unequivocally clarifies, however, Atkins commands that states protect all intellectually disabled persons 33 who are all at special risk of wrongful execution 34 because of their disabilities by appropriate 35 procedures which, perforce, must not create[] an unacceptable risk that persons with intellectual disability will be executed. 36 Georgia s rigid rule is unquestionably incompatible with the Eighth and Fourteenth Amendments because it denies Mr. Hill a fair opportunity to show that the Constitution prohibits [his] execution, thus denying him the basic dignity the Constitution protects, and unacceptably risk[ing] 32 Georgia is not challenging the state [habeas] court s factual finding that Hill has established his [intellectual disability] by a preponderance of the evidence. Hill v. Humphrey, supra, 608 F.3d at 1282 n.10. Moreover, during oral argument before the Eleventh Circuit panel in Hill v. Schofield, supra, the State conceded that if the reasonable doubt standard is upheld in Mr. Hill s case a likely intellectually disabled offender will be executed. 33 Atkins, 536 U.S. at 308 n.3; 317 n.22 (indicating national consensus against executing offenders across entire spectrum of intellectual disability severity); Hall, 134 S. Ct. at 1999 (reiterating that Atkins found a national consensus as to the definition of intellectual disability based on clinical definitions); see also Stripling v. State, 261 Ga. 1, 4 (1991) (Georgia protects from execution all intellectually disabled offenders, including those with mild intellectual disability). at Atkins, 536 U.S. at Id. at See, Hall, 134 S. Ct. at See also, e.g., Cooper, 517 U.S. at 363; Panetti, 551 U.S. 30

32 executi[on of] a person who suffers from intellectual disability. Hall, 134 S. Ct. at Because the beyond reasonable doubt standard guarantees that intellectually disabled persons, and Mr. Hill specifically, will be executed, it is contrary to Atkins and unconstitutional. Relief is warranted. C. Hall Makes Clear That States May Not Ignore Clinical Diagnostic Practices And Definitions In Formulating Procedures To Enforce The Eighth Amendment Under Atkins. Crucially, Hall holds that, in enacting mechanisms to determine who qualifies for protection under Atkins, states are not free to ignore the medical/psychiatric community s diagnostic and clinical practices and concepts with respect to intellectual disability. In Hall, which involved Florida s strict requirement that IQs above 70 decisively ruled out a finding of intellectual disability, the United States Supreme Court emphatically reiterated that clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of Atkins. Hall, 134 S. Ct. at Those clinical definitions were derived from the medical community, specifically from the authoritative organizations providing definitional and conceptual guidance as to intellectual disability, i.e., the AAIDD and the American Psychiatric Association (APA). See id. at In vitiating Florida s rule, the Court exhorted the states to 31

33 give effect to the guidance of the medical community and relied explicitly on that community s assessment of the deleterious effect of Florida s strict rule: Intellectual disability is a condition, not a number. See DSM 5, at 37. Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant s eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number. A State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability. See APA Brief 17 ( Under the universally accepted clinical standards for diagnosing intellectual disability, the court s determination that Mr. Hall is not intellectually disabled cannot be considered valid ). Id. at 2001 (emphasis supplied). This Court therefore must recognize as authoritative the guidance provided by AAIDD, which in its amicus brief in Mr. Hill s recent case before the United States Supreme Court explained that Georgia s beyond reasonable doubt standard was untenable from a diagnostic standpoint: The nature of clinical assessment of [intellectual disability], combined with the special difficulties created by the context of a capital trial, will often make the burden of proof imposed by Georgia virtually impossible to meet. All diagnoses of [intellectual disability] are potentially challenging, AAIDD, User s Guide: Mental Retardation Definitions, Classification and Systems of Support 14 (10th ed. 2007), and even in ideal settings, clinicians and other qualified experts ordinarily diagnose [intellectual disability] only to a reasonable degree of medical (or professional) certainty. Thus, the beyond a reasonable 32