[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT July 7, 2011 No. 10-10928 JOHN LEY CLERK ________________________
D.C. Docket No. 3:01-cv-00073-DHB
JOHN WAYNE CONNER,
lllllllllllllllll llPetitioner-Appellant,
versus
HILTON HALL, Warden, Georgia Diagnostic and Classification Prison,
llllllllllllllllll lllRespondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(July 7, 2011)
Before CARNES, MARCUS and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
John Wayne Conner, a prisoner under sentence of death in the State of Georgia, appeals the District Court’s denial of his petition for writ of habeas
corpus brought under 28 U.S.C. § 2254. Conner was granted a certificate of
appealability (“COA”) as to three claims denied by the District Court without an
evidentiary hearing: (1) whether he procedurally defaulted his mental retardation
claim; (2) whether he was denied effective assistance of counsel at the sentencing
phase of his trial; and (3) whether he was prejudiced by prosecutorial misconduct
during closing arguments. For all the reasons below, we VACATE the District
Court’s judgment denying Conner’s habeas petition and REMAND the entire case
to the District Court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Conner was convicted and sentenced to death for the January 9, 1982
beating death of J.T. White in Telfair County, Georgia.1 At the time of the murder,
Conner lived with his girlfriend, Beverly Bates, in Milan, Georgia. On the
evening of January 9, 1982, Conner, Bates, and White went with friends to a party
in Eastman, Georgia, where they spent the evening drinking and smoking
marijuana. They returned to Conner’s house in Milan around midnight. Soon
after, Conner and White left the house on foot, taking with them a nearly empty
1 A fuller discussion of the facts may be found in the opinion of the Georgia Supreme Court written in Conner’s direct appeal. Conner v. State, 303 S.E.2d 266 (Ga. 1983).
2 bottle of bourbon. They walked to a friend’s house and asked him to take them to
get more whiskey, but the friend refused.
Then, according to Conner’s confession:
[M]e and J.T. left and went down the road. J.T. made the statement about he would like to go to bed with my girlfriend and so I got mad and we got into a fight and fought all the way over to the oak tree and I hit him with a quart bottle. He run over there to the fence trying to get through or across, I reckon, so I run over there and grabbed him and pulled him back and hit him again and he fell in the water and he grabbed my leg. I was down there at him right there in the ditch where he was at and he was swinging trying to get up or swinging at me to try to hit me one, and there was a stick right there at me, and I grabbed it and went to beating him with it.
Conner, 303 S.E.2d at 270 (internal quotation makes omitted). The next day,
White’s body was found in a drainage ditch in Milan with severe injuries to his
head. Conner was indicted for murder, armed robbery and motor vehicle theft.
A. TRIAL PROCEEDINGS
On January 26, 1982, while in the Telfair County Jail, Conner pounded a
bullet into his chest until it exploded. As a result, he was admitted to Central State
Hospital (“CSH”) in Milledgeville, Georgia. According to the records from that
visit, Conner was “mute, uncooperative and appeared to be semicatatonic” upon
admission. He showed “complete psychomotor retardation and [was] unable to
answer any questions.” Conner was medicated and placed on “suicide
3 precautions.” He later became cooperative and responsive.
By court order, Conner remained hospitalized at CSH until February 19,
1982, while the staff evaluated him for competency and insanity. During his stay,
the staff produced a “Psychiatric Examination,” a “Psychological Evaluation,” and
a “Final Summary.” Those documents revealed that Conner had a history of drug
and alcohol abuse and engaged in anti-social behaviors. They also showed that
Conner used the alcohol and drugs to alleviate his constant feelings of
nervousness and depression, but his substance abuse only exacerbated those
feelings. The documents further indicate that although the personality testing
suggested schizophrenia, the results were not inconsistent with a substance abuse
disorder. An IQ test administered while Conner was at CSH revealed a full-scale
Weschler Adult Intelligence Score IQ score of 87, which placed Conner within the
normal or average range of intelligence. On February 19, 1982, CSH issued a
letter to the trial judge stating that Conner was competent to stand trial and could
be held criminally responsible for his actions.
Conner’s father initially retained David Morgan to represent Conner in the
underlying criminal case. About the same time, Dennis Mullis, a public defender,
was appointed to represent Conner in an unrelated case. When it became clear that
Conner’s father would not be able to pay Morgan’s fees through the pendency of
4 the criminal case, Mullis was appointed to assist Morgan in representing Conner.
On April 30, 1982, Morgan filed a motion for funds to hire a defense expert
to perform a mental examination because he was considering raising an insanity
defense. This motion was heard on May 11, 1982. At that time, the court had the
benefit of the February 19, 1982 CSH letter stating that Conner was competent to
stand trial. Mullis stated that he could not determine if CSH had done anything
wrong in its examination without an independent expert to assist him.
Nevertheless, the state trial court deferred ruling on the motion because the
defense had not yet filed a motion to raise the insanity defense. At a later pre-trial
hearing on June 21, 1982, Morgan withdrew from the case and Mullis became
Conner’s sole counsel. At a hearing on June 30, 1982, Mullis announced that he
would not be seeking to assert the insanity defense based upon his review of
additional information private counsel had obtained from CSH. After that, Mullis
did not file any other motion pertaining to Conner’s mental health nor did he
request the appointment of an independent mental health examiner.
At his jury trial on July 12–14, 1982, Conner neither testified nor presented
any evidence on his own behalf. During his guilt phase closing argument, the
prosecutor said the following:
Ladies and gentleman, as prosecutor, as defense attorney, I have been
5 involved in criminal law for seven years. As District Attorney of this circuit, I have prosecuted nine murder cases. I have never before sought the death penalty. I have seen several killings. I have been responsible for prosecuting several terrible killings. I have never before sought the death penalty.
Conner’s counsel objected. The trial court sustained the objection and gave the
jury a curative instruction not to consider the penalty before deciding guilt or
innocence.
After deliberating for fifty minutes, the jury found Conner guilty on all
counts. Before the sentencing phase, the trial court granted defense counsel a brief
recess for Mullis to confer with Conner. When the proceedings reconvened, the
court asked Mullis if he planned to present any evidence in mitigation. Mullis
responded:
Your Honor, I had planned on calling four witnesses—of course, the defendant, and his brother, and father, and his mother. After the verdict came in I talked to Mr. Conner in a room adjacent to the courtroom and he has informed me that he does not desire me to enter any evidence in mitigation. He does not desire to do that himself, he has told me. I have counsel[ed] him that my advice would be to do otherwise. My advice would be to put in some evidence to mitigate this. He has told me he does not desire to do that.
The following colloquy then took place between the court and
Conner:
THE COURT: Mr. Conner, do you understand your rights to present evidence?
6 MR. CONNER: Yeah.
THE COURT: And you have instructed your counsel and you are telling the Court now that you do not want to put anything in in evidence of mitigation?
MR. CONNER: That’s right.
THE COURT: All right, sir. That’s your privilege.
The prosecution and the defense then made their closing arguments without
presenting any additional evidence. During his sentencing phase closing, the
prosecutor once again expressed his personal belief, based upon his experience,
that the death penalty was appropriate in Conner’s case:
As I told you, I have never previously sought the death penalty in any murder case, but I tell you, I am seeking it now, and I am asking this jury to go back to that jury room and return a verdict, or a decision to send John Wayne Conner to the electric chair.
Conner’s counsel did not object to the prosecutor’s sentencing phase closing
argument, and no curative instruction was given.
The jury returned a death sentence upon a finding that the offense was
“outrageously and wantonly vile, horrible and inhuman in that it did involve
depravity of mind and aggravated battery to the victim.” See O.C.G.A. § 17-10-
30(b)(7).
B. DIRECT APPEAL
7 Conner appealed his conviction and sentence to the Georgia Supreme Court.
Conner, 303 S.E.2d 266. After reviewing the sufficiency of the evidence, the
court affirmed Conner’s convictions for motor vehicle theft and murder but
vacated his armed robbery conviction. Id. at 270–71. The court sua sponte
reviewed the prosecutor’s closing argument to ensure that Conner’s death sentence
was not imposed “under the influence of passion, prejudice, or any other arbitrary
factor.” Id. at 272–73 (quoting O.C.G.A. § 17-10-35(c) (1)). The court found the
argument to be improper because “[t]he portion of the prosecutor’s argument
referring to his prior criminal experience and the frequency with which he had
sought the death penalty was not supported by any evidence and, moreover, was
not relevant to any issue in the case.” Id. at 276. However, the court held that the
remarks were “not so prejudicial or offensive and do not involve such egregious
misconduct on the part of the prosecutor as to require reversal of [Conner’s] death
sentence on the basis that it was impermissibly influenced by passion, prejudice,
or any other arbitrary factor.” Id.
C. FIRST STATE HABEAS PROCEEDING
Conner filed his first writ of habeas corpus in state trial court on March 23,
1984. Evidentiary hearings were held on September 24, 1984, and February 11,
1985.
8 In the first evidentiary hearing, Mullis testified about his representation of
Conner at trial. He explained that although raising an insanity defense crossed his
mind, he found nothing to substantiate such a claim. When asked about the CSH
records, Mullis admitted that he knew that Conner had some psychiatric problems
and suffered from drug and alcohol abuse. He further admitted that in seeking the
appointment of an independent mental health examiner, he did not reveal to the
trial judge any of the information contained in the CSH records.
Mullis testified that while he was considering potential mitigation, he spoke
with Conner’s parents and brother. They discussed Conner’s “upbringing” and
“socioeconomic information.” Mullis stated that he learned that Conner had a
deprived economic background and had not been raised “in the best of
circumstances.” After Conner was convicted, Mullis spoke with Conner’s brother
about testifying in mitigation. Also during this time, Mullis approached Conner’s
girlfriend, Beverly Bates, who had testified against him at trial, about testifying in
mitigation, but she refused. Mullis described Conner’s parents and brother as
“waiting in the wings.”
Mullis stated that his plan to present the testimony of Conner’s family
members changed when Conner informed him after the entry of the guilty verdict
that he did not want to present any mitigation evidence. Mullis explained that
9 Conner said “something to the effect of letting [the jurors] do what they will.”
Mullis testified that he explained the purpose of the evidence to Conner but that
Conner did not seem to care about himself.
Between the first and second evidentiary hearings, Conner filed several
affidavits in support of his habeas petition. At the second hearing, the state habeas
court admitted into evidence the affidavits of Conner’s mother and father; his
sister, Linda Jones, and her husband, Phillip Jones; and his sister-in-law, Sally
Conner.2
According to the affidavit of Conner’s mother, Mullis asked her and her
husband if they would be willing to testify on Conner’s behalf during the
sentencing phase. Conner’s mother stated that, had she testified, she would have
informed the court that Conner was a good and loving son who worked hard and
supported his family. As for Conner’s relationship with his father, she explained
that they were close but that Conner’s father beat him as a child and into his teens.
Conner’s mother admitted that he had problems, describing him as a “very
troubled young man” who drank alcohol and used drugs. She explained that
Conner was always depressed and that he felt unloved. She also stated that
Conner tried to commit suicide in 1981.
2 None of these affidavits included the address or telephone number of the affiant.
10 According to the affidavit of Conner’s father, Mullis never asked if there
were other family members and friends who would be willing to testify on
Conner’s behalf. Mullis never asked about Conner’s school or work background
or his relationship with other family members and friends. Conner’s father
explained that Conner suffered from constant depression as a teenager and started
drinking heavily, which only deepened his depression. Conner’s father also stated
that he felt that Conner needed psychiatric help but the family could not afford it.
Conner’s father also described a second suicide attempt, in which Conner
tried to kill himself by cutting ropes holding him in a tree while he was working
with his father in a tree surgery business. Conner told his father that he was trying
to have an accident so that he would fall and kill himself. Conner’s father stated
that if he had the chance, he would have told the jury that Conner always tried to
be a decent, honest person and that he wished he had the money to get Conner
help for his depression when he was younger.
The other family affidavits attested to the same facts about Conner, and each
family member stated that Mullis never asked them to testify on Conner’s behalf
in mitigation.
The state trial court entered a final order denying relief on January 6, 1997.
In that order, the court identified and addressed twenty-six specific allegations of
11 ineffective assistance of trial and appellate counsel. In particular, the court
considered Conner’s claims that his trial counsel, Mullis, was ineffective for
“‘intolerably acquiescing’ in [Conner’s] decision not to present mitigating
evidence” and for “failing to prepare evidence in mitigation.” The court found
that Mullis unsuccessfully tried to convince Conner to present mitigating
evidence, and that Conner knowingly and intelligently waived his right to do so.
The court also found that Mullis prepared to present evidence in mitigation, but
that Conner’s “own actions prevented [Mullis] from presenting evidence.” As for
the affidavits of Conner’s family members, the court concluded that they did not
overcome Conner’s waiver of his right to present mitigation evidence or otherwise
establish ineffectiveness of counsel. Finding Mullis’s performance to be
objectively reasonable, the court concluded that Conner could not prevail on his
ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S.
668, 687–88, 104 S. Ct. 2052, 2064 (1984).
D. SECOND STATE HABEAS PROCEEDING
On October 3, 2001, Conner filed his second state habeas petition, asserting
only one claim: that he is mentally retarded and therefore ineligible for the death
penalty. To develop his claim, Conner requested access to an independent mental
health examination. Conner supported his habeas petition with copies of his
12 school records and affidavits from three of his elementary school teachers.
Without an evidentiary hearing, the state habeas court denied Conner’s
request for a mental evaluation on October 26, 2001, concluding that the evidence
was insufficient to support his claim of mental retardation. The court found that
Conner’s school records were inadmissible hearsay and his elementary school
teachers’ affidavits did not comport with O.C.G.A. § 9-14-48(c) because they did
not include the affiants’ phone numbers and addresses.3 In the same order, the
court dismissed the second petition as successive under O.C.G.A. § 9-14-51,4
finding the claim could have been raised in an amendment to his original habeas
petition because Fleming v. Zant5 was decided while Conner’s first state habeas
3 As noted above, in Conner’s first state habeas proceeding, the state habeas court admitted and considered Conner’s family affidavits which did not contain addresses and telephone numbers. 4 O.C.G.A . § 9-14-51 provides as follows:
All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. 5 In Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), the Georgia Supreme Court held that Georgia’s 1988 statutory ban on executing mentally retarded persons applied retroactively, as a matter of Georgia constitutional law, to all capital cases in Georgia. Further, Fleming established a procedure for habeas courts to follow in evaluating mental retardation claims for defendants, like Conner, who were tried and sentenced before Georgia law prohibited the execution of mentally retarded persons. Id. at 342–43.
13 petition was pending in state court.
On January 25, 2002, Conner filed an application for a certificate of
probable cause (“CPC”) to the Supreme Court of Georgia to appeal the dismissal
of his second state habeas corpus petition. His CPC application was denied on
March 25, 2002. On April 4, 2002, Conner filed a motion for reconsideration,
specifically noting that the United States Supreme Court had granted certiorari in
Atkins v. Virginia, 534 U.S. 809, 122 S. Ct. 29 (2001). Conner argued in his
motion for reconsideration that if the Supreme Court ruled in Atkins that the
execution of mentally retarded persons violates the Eighth Amendment, then there
could be no “default” of such a claim. The Georgia Supreme Court denied
Conner’s motion for reconsideration on April 12, 2002.
On June 20, 2002, the United States Supreme Court held the Eighth
Amendment categorically prohibits the execution of a mentally retarded
defendant.6 Atkins, 536 U.S. at 321, 122 S. Ct. at 2254. Twenty-one days later,
6 Atkins abrogated the Court’s 1989 ruling in Penry v. Lynaugh, 492 U.S. 302, 340, 109 S. Ct. 2934, 2958 (1989), which had held that the Eighth Amendment did not preclude the execution of mentally retarded persons. Although recognizing that mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes, the Supreme Court reasoned that mentally retarded persons cannot be constitutionally executed for two reasons. First, “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses,” mentally retarded defendants “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Atkins, 536 U.S. at 306, 122 S. Ct. at 2244; see also id. at 318–20, 122 S. Ct. at 2251. Second, “their impairments can jeopardize the reliability and fairness of capital proceedings against
14 on July 11, 2002, Conner filed a timely petition for certiorari in the United States
Supreme Court in which he relied on Atkins.7 The Supreme Court denied
Conner’s certiorari petition on October 7, 2002. Conner v. Head, 537 U.S. 908,
123 S. Ct. 249 (2002), reh’g denied, 537 U.S. 1069, 123 S. Ct. 657 (2002).
E. FEDERAL HABEAS PROCEEDINGS
Conner filed his § 2254 petition in the District Court on November 13,
2001. The federal petition contained thirty-three separate claims for relief,
including an Eighth Amendment challenge to the death penalty based on mental
retardation under Atkins, 536 U.S. at 321, 122 S. Ct. at 2252.
On March 31, 2004, Conner filed a motion for leave to conduct limited
discovery on his Atkins mental retardation claim. In his memorandum in support
of that motion, Conner alleged that he was mentally retarded; that his elementary
school records attested to his retardation; that his elementary school teachers who
were still living were willing to attest to his retardation; that the state expert who
examined him in 1982 found he suffered from “complete psychomotor
retardation”; and that he had never been granted access to an independent defense
mentally retarded defendants.” Id. at 306–07, 122 S. Ct. at 2244. 7 As noted above, Conner’s state postconviction proceedings were concluded at the time Atkins was decided. By promptly raising Atkins in a petition for certiorari, he raised it at his first available opportunity. Although Conner was not required to file a certiorari petition, we recognize that his efforts show he was diligent in pursuing his Atkins claim.
15 evaluation of his mental retardation claim. In support, Conner attached his school
records and the affidavits of three of his elementary school teachers. Conner also
argued that no court had ever heard the merits of his mental retardation claim.
Despite the state court’s ruling that he procedurally defaulted his mental
retardation claim, Conner argued, as he does now, that he followed Georgia’s
procedures as provided in Fleming, 386 S.E.2d 339, and Turpin v. Hill, 498 S.E.2d
52, 53–54 (Ga. 1998).8 Conner also argued that the state’s procedural bar was not
adequate to bar federal review because it was not consistently applied.
On September 8, 2004, the District Court denied Conner’s discovery
request, determining that he had defaulted his mental retardation claim in state
court. The District Court acknowledged that its “review of the case law lends
credibility to Conner’s position that [the state procedural bar] is inconsistently
applied to claims of mental retardation.” Nevertheless, the District Court held that
the Georgia Supreme Court’s denial of a CPC application in Conner’s case, as
well as a CPC denial by the Georgia Supreme Court in Hicks v. Schofield, 599
S.E.2d 156 (Ga. 2004), “could signal a reversal of the Turpin v. Hill rule” that
state habeas petitions by capital petitioners asserting mental retardation would not
8 In Turpin, the Georgia Supreme Court held that state habeas relief was available to capital petitioners asserting mental retardation claims in state habeas petitions, regardless of whether the claim had been procedurally defaulted. 498 S.E.2d at 53.
16 be barred by procedural default rules.9
After briefing by the parties, the District Court denied Conner’s habeas
petition in its entirety on November 6, 2009. The District Court granted Conner’s
request for a COA on two claims: (a) whether it erred in finding that Conner’s
claim of mental retardation was procedurally defaulted; and (b) whether it erred in
concluding that Conner’s trial counsel had not rendered ineffective assistance
during the mitigation phase of his trial.
We expanded the COA to include a third claim: “Whether the district court
erred in determining that the state court’s decision—that the prosecutor’s closing
arguments were not so egregious as to require reversal—was not contrary to, or an
unreasonable application of, Supreme Court precedent.”
II. STANDARDS OF REVIEW
We review de novo the district court’s denial of a 28 U.S.C. § 2254 petition,
but we are “highly deferential” to the state court’s decision on the merits of a
9 Specifically, the District Court stated:
In my view, the Georgia Supreme Court has implicitly, if not expressly, spoken to this issue with regard to this very petitioner by allowing the second state habeas court’s ruling of procedural default to stand and rejecting Chief Justice Fletcher’s position in dissent to grant the CPC application. Given this recent expression, I cannot conclude that the second state habeas court’s application of the state procedural bar is an inadequate state ground to default the claim.
17 claim. Cullen v. Pinholster, --- U.S. ---, ---, 131 S. Ct. 1388, 1398 (2011) (the
AEDPA deference “is a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given
the benefit of the doubt”) (quotation marks and citations omitted); Harrington v.
Richter, --- U.S. ---, ---, 131 S. Ct. 770, 786 (2011) (“A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s decision.”) (quotation
marks omitted); id. (“It bears repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable. . . . If this standard
is difficult to meet, that is because it was meant to be.”). If a state court has
adjudicated the merits of a claim, we may not grant habeas relief unless the state
court’s decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” or “resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); Davis v. Jones, 506 F.3d 1325, 1331 (11th Cir. 2007).
“A state court decision is contrary to clearly established federal law if it
applies a rule that contradicts the governing law set forth in [Supreme Court] cases
or confronts facts that are materially indistinguishable from a relevant Supreme
18 Court precedent and arrives at a result opposite to [the Court’s].” Windom v.
Sec’y, Dep’t of Corr., 578 F.3d 1227, 1247 (11th Cir. 2009) (internal quotation
marks omitted) (alterations in original). A state court unreasonably applies federal
law when it “identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case,” or when it
“unreasonably extends, or unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.” Suggs v. McNeil, 609 F.3d 1218,
1227 (11th Cir. 2010) (quotation marks omitted). In determining
unreasonableness, we do not ask whether the state court decided an issue
correctly, but only whether the court’s decision was objectively unreasonable.
Renico v. Lett, --- U.S. ---, 130 S. Ct. 1855, 1862 (2010).
III. DISCUSSION
A. PROCEDURAL DEFAULT OF MENTAL RETARDATION CLAIM
Under the doctrine of procedural default, a federal habeas court will not
review a claim rejected by a state court “if the decision of [the state] court rests on
a state law ground that is independent of the federal question and adequate to
support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct.
2546, 2253 (1991), unless a petitioner can show cause for the failure to properly
present the claim and actual prejudice, or that the failure to consider the claim
19 would result in a fundamental miscarriage of justice. Wainwright v. Sykes, 433
U.S. 72, 81–88, 97 S. Ct. 2497, 2503–07 (1977); Marek v. Singletary, 62 F.3d
1295, 1301–02 (11th Cir. 1995). The adequacy of a state procedural bar to the
assertion of a federal question is itself a federal question. Lee v. Kemna, 534 U.S.
362, 375, 122 S. Ct. 877, 885 (2002).
“To qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly
established and regularly followed.’” Walker v. Martin, --- U.S. ---, 131 S. Ct.
1120, 1127–28 (2011) (citation omitted). Conner argues that Georgia’s rules are
inadequate because Georgia has inconsistently applied its procedural default rule
to mental retardation claims brought by capital defendants similarly situated to
him. We agree. Under the unique facts of Conner’s case, we hold that the
Georgia’s procedural default rule, O.C.G.A. § 9-14-51, is inadequate to bar federal
review of Conner’s mental retardation claim because it has not been consistently
and regularly followed.10
Under Georgia law, as we have previously recognized, “a prisoner seeking a
10 When applied to ordinary habeas petitioners who simply failed to include available claims in their initial petitions, the Georgia successor statute, O.C.G.A. § 9-14-51, is a valid procedural bar. See Chambers v. Thompson, 150 F.3d 1324, 1325–26 (11th Cir. 1998). Unlike Chambers, which turned on the general nature of procedural bar at issue without regard to the claims held to be procedurally barred, this case involves only the adequacy of Georgia’s successor statute as applied to a mental retardation claim raised in a second or successive state habeas petition.
20 writ of habeas corpus vacating his conviction must present all of his grounds for
relief in his original petition.” Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir.
2000). Georgia’s procedural default statute provides that:
[a]ll grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.
O.C.G.A. § 9-14-51. Ordinarily, failure to comply with this rule precludes federal
habeas review. Mincey, 206 F.3d at 1136. But the State of Georgia has special
rules of practice and procedure to handle mental retardation claims for capital
defendants like Conner, whose trials occurred prior to Georgia’s 1988 ban on
executing mentally retarded persons. Our review in this case is limited, therefore,
to the adequacy of Georgia’s procedural default rules to bar federal review of
mental retardation claims of defendants, like Conner, whose trials commenced
before July 1, 1988.
By statute, Georgia law has prohibited execution of the mentally retarded
since 1988.11 See O.C.G.A. § 17-7-131(j). On its face, Georgia’s statutory ban
11 In 1988 the Georgia legislature passed an amendment to O.C.G.A. § 17-7-131. Under the amended statute, the jury in a capital trial must decide at the time of trial on guilt or innocence of the defendant whether the defendant is “guilty but mentally retarded.” Id. § 17-7-
21 against executing mentally retarded defendants does not apply to defendants who
were tried before July 1, 1988. Id. But in Fleming v. Zant, 386 S.E.2d 339, the
Georgia Supreme Court held that the Georgia Constitution’s cruel and unusual
punishment clause precluded the execution of mentally retarded persons,
regardless of when a trial occurred. Id. at 342–43. Thus, Fleming applied the ban
on executing mentally retarded persons retroactively and established procedures to
be followed to examine mental retardation claims in state habeas proceedings.12
131(c)(3). If the defendant is found to be guilty but mentally retarded, the death penalty shall not be imposed. O.C.G.A. § 17-7-131(j) provides:
In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life. 12 In doing so, Fleming established a two-step process for Georgia courts to follow in resolving mental retardation claims raised by petitioners in Fleming’s position:
When a defendant who was tried before the effective date of the OCGA § 17-7-131(j) alleges in a petition for habeas corpus that he or she is mentally retarded, the habeas corpus court must first determine whether the petitioner has presented sufficient credible evidence, which must include at least one expert diagnosis of mental retardation, to create a genuine issue regarding petitioner’s retardation. The court, in its discretion, may hold a hearing on the issue, or may make the determination based on affidavits, depositions, documents, etc. If, after examining the evidence, the habeas corpus court finds that there is a genuine issue, a writ shall be granted for the limited purpose of conducting a trial on the issue of retardation only. This trial shall be held in the court in which the original trial was conducted. Petitioner shall be entitled to a full evidentiary hearing on the issue of retardation. The determination shall be made by a jury using the definition of retardation enunciated in the statute. See O.C.G.A. § 17-7-131(a)(3). The petitioner will bear the burden of proving retardation by a preponderance of the evidence.
22 Id.
Nine years after Fleming, the Georgia Supreme Court held in Turpin v. Hill,
498 S.E.2d 52, that a mental retardation claim raised by a capital habeas petitioner
in a state habeas petition cannot be procedurally defaulted as a matter of state law.
Id. at 53. Although Hill was convicted and sentenced to death in 1991, three years
after the effective date of O.C.G.A. § 17-7-131(j)’s ban on executing mentally
retarded defendants, he did not raise a mental retardation issue at trial or on direct
appeal. Id. at 52. Hill then filed a state habeas corpus petition raising a mental
retardation claim.13 The state raised the defense of procedural default. The state
habeas trial court ruled that the mental retardation claim was not subject to
procedural default, and upon finding that Hill had presented sufficient credible
evidence of mental retardation, granted a limited writ for jury trial on the issue of
mental retardation based upon Fleming. Id. at 52–53. On appeal, the Georgia
Supreme Court agreed with the state trial court, stating:
In light of this Court’s holding that the execution of the mentally retarded constitutes cruel and unusual punishment under the Georgia
Fleming, 386 S.E.2d at 342–43 (footnote omitted) (emphasis added). 13 Hill supported his petition with an affidavit from a psychologist who testified at the penalty phase of his capital trial who averred that his penalty phase testimony was based on inadequate information and his prior IQ test results were inaccurate and misleading. Turpin, 498 S.E.2d at 52 n.1.
23 Constitution [in Fleming], we find no error in the habeas court’s consideration of appellee’s claim of mental retardation. “In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice.”
Turpin, 498 S.E.2d at 53 (quoting O.C.G.A. § 9-14-48(d)) (citation and footnote
omitted).
In this case, the District Court held that Conner’s mental retardation claim
was procedurally barred because the Georgia habeas court dismissed Conner’s
second habeas petition as successive under O.C.G.A. § 9-14-51, finding the claim
could have been raised in an amendment to his original habeas petition because
Fleming was decided while Conner’s first state habeas petition was pending in
state court. After careful review of Georgia’s actual practice and procedure for
addressing mental retardation claims for state habeas petitioners similarly situated
to Conner,14 we are compelled to conclude that the procedural bar is inadequate to
bar federal review because it has not been consistently and regularly applied.
The inadequacy of Georgia’s procedural default rule, O.C.G.A. § 9-14-51,
as a bar to federal review of Conner’s mental retardation claim is illustrated by the
numerous Georgia habeas petitioners, similarly situated to Conner, who have
14 Conner has cited a plethora of judicial orders, opinions, and written dispositions from the state courts of Georgia which are not available in a publicly accessible database. He has filed and served copies of these materials with his briefs in this Court, a copy of which will be maintained by the Clerk of this Court and made available for public inspection.
24 been granted access to independent mental health evaluations and Fleming
remands since Fleming and Turpin, regardless of whether they brought their
mental retardation claims in a second or third state habeas petition. Indeed, since
Fleming issued, numerous Georgia death-sentenced prisoners whose trials, like
Conner’s, commenced before July 1, 1988, the effective date of O.C.G.A. § 17-7-
131(j), have obtained independent expert access and remands for mental
retardation trials from claims filed in second or successive state habeas petitions.
See Fleming v. Zant, 89-V-2252 (Super. Ct. Butts Cty., Ga. Mar. 18, 1991)
(remanding case in 1991 for jury trial on issue of mental retardation following
petitioner’s raising mental retardation claim for the first time in a third (second
successive) state habeas corpus petition filed in 1989); Allen v. Zant, No. 90-V-
3326 (Super. Ct. Butts Cty., Ga. Sept. 20, 1991) (granting in 1991, after Allen
filed successive state habeas petition in 1991 that alleged mental retardation and
attached school records and affidavits from family members and school principal,
access for two mental health evaluations and subsequently remanding case for a
trial on mental retardation); Collins v. Zant, No. 90-V-3211 (Sup. Ct. Butts Cty.,
Ga. Mar. 18, 1991) (granting in 1991, after Collins alleged mental retardation for
the first time in a second successive state habeas petition filed in 1990,
independent expert access and testing and remanding case to the trial court under
25 Fleming for a jury trial on mental retardation); Gates v. Zant, No. 89-V-2468
(Super. Ct. Butts Cty., Ga. Apr. 13, 1992) (granting independent expert access in
1990 and then remanding claim for jury trial in 1991 to petitioner who alleged
mental retardation in a successor state habeas petition filed in 1989); Mathis v.
Thomas, No. 95-V-658 (Super. Ct. Butts Cty., Ga. Sept. 13, 2001) (granting
independent expert access in 1995 to petitioner who raised mental retardation
claim in his third (second successive) state habeas petition in 1995, then
remanding case in 2001 for jury trial to determine mental retardation); Peek v.
Zant, No. 86-V-830 (Super. Ct. Butts Cty., G. June 11, 1990) (remanding in 1990
for jury trial on mental retardation claim filed in successor state habeas corpus
petition); Rogers v. Thomas, No. 94-V-661 (Super. Ct. Butts Cty., Ga. 1995 May
22, 1995) (granting independent expert access in 1994 to petitioner who raised
mental retardation claim in successor state habeas petition filed in 1994 and
remanding for jury trial on mental retardation in 1995), aff’d, Rogers v. State, 575
S.E.2d 879 (Ga. 2003); Walker v. Zant, No. 90-V-2984 (Super. Ct. Butts Cty., Ga.
May 17, 1991) (granting independent expert access in 1991 to petitioner who filed
successive habeas petition in 1990, remanding for Fleming jury trial on mental
retardation in 1991), denial of first state petition aff’d without opinion, Kemp v.
Walker, 389 S.E.2d 761 (Ga. 1990) (table); Waters v. Thomas, No. 95-V-441
26 (Super. Ct. Butts Cty. Ga. Dec. 6, 1995) (same); Wilson v. Zant, No. 90-V-2935
(Super. Ct. Butts Cty., Ga. Mar. 15, 1991) (same).15
Considering the fact that in the vast majority of cases where it has come up
the Georgia courts have not applied that state’s second and successive petition
procedural bar rule to other petitioners’ mental retardation claims, we disagree
with the District Court’s conclusion that the Georgia Supreme Court’s denial of a
certificate of probable cause (CPC) to appeal Conner’s second habeas corpus
petition signaled a “reversal” of the Georgia Supreme Court’s Turpin rule that
state habeas relief was available to capital petitioners asserting mental retardation
claims in state habeas petitions to avoid a miscarriage of justice, regardless of
whether the claim had been procedurally defaulted. See Turpin, 498 S.E.2d at 53.
Georgia’s miscarriage of justice exception was applied to allow consideration of
otherwise procedurally defaulted mental retardation claims before and after
Conner’s second State Petition for Writ of Habeas Corpus was denied in late 2001
and his application for CPC was denied in early 2002.16 Considering Georgia’s
15 Under O.C.G.A. § 9-14-43, a Georgia prisoner must file his habeas petition in the superior court of the county in which the petitioner is detained. Since Georgia prisoners under a death sentence are housed at the Georgia Diagnostic and Classification Prison in Jackson, Georgia, their state habeas petitions are filed in Butts County. 16 See Turpin, 498 S.E.2d 52; Head v. Ferrell, 554 S.E.2d 155, 166–67 (Ga. 2001) (finding no error in state habeas court’s consideration of mental retardation claim under miscarriage of justice exception to procedural default under Turpin); Schofield v. Holsey, 642
27 application of its procedural bar rules to other mental retardation claims, “one
cannot seriously contend that the [Georgia] Court has applied its procedural bar
rules evenhandedly to all similar claims.” Dugger v. Adams, 489 U.S. 401, 420,
109 S. Ct. 1211, 1222 (1989) (quotation marks omitted). We therefore conclude
that Georgia’s inconsistent application of the miscarriage of justice exception to
procedural default in cases of mental retardation renders the procedural bar in
Conner’s case inadequate to preclude federal review. See Spencer v. Kemp, 781
F.2d 1458, 1470 (11th Cir. 1986) (“It is a dominant theme of the Supreme Court
case law . . . that a federal habeas petitioner shall not be denied federal review of a
federal constitutional claim on the basis of an asserted state procedural ground that
is manifestly unfair in its treatment of that claim.”).
Since there is no adequate procedural bar precluding federal review, we now
turn to the District Court’s treatment of Conner’s mental retardation claim.
S.E.2d 56, 63 (Ga. 2007) (finding that petitioner had not established mental retardation, but noting that “the habeas court was correct in considering this new claim, because this Court, under the ‘miscarriage of justice’ exception to the rule of procedural default, has authorized habeas courts to consider alleged mental retardation when the issue was not raised at trial”); Hall v. Lewis, 692 S.E.2d 580, 593 (Ga. 2010) (holding unappealed finding by habeas court that petitioner was mentally retarded under “miscarriage of justice” exception to procedural default rendered moot new sentencing trial based upon ineffective assistance of counsel); see also Rogers v. State, 575 S.E.2d 879, 881 (Ga. 2003) (“A defendant tried prior to July 1, 1988, for whom no judicial determination on mental retardation will have been made, may choose to raise the issue of his or her mental retardation by filing a petition for habeas corpus and presenting sufficient credible evidence, including at least one expert diagnosis of mental retardation, to create a genuine issue regarding retardation.”).
28 Conner requested discovery and an evidentiary hearing in the District Court on his
mental retardation claim, as he had done in his second state habeas petition.
Indeed, Conner had requested access to an independent mental health examination
in both state and federal court, but his requests were denied. The District Court
denied Conner’s request for discovery and an evidentiary hearing because it
determined Conner had procedurally defaulted his mental retardation claim.
Since we hold Conner did not procedurally default his claim, the District Court’s
order denying discovery and an evidentiary hearing on this basis was error.
Although we could determine whether Conner is entitled to discovery and
an evidentiary hearing, we decline to do so. Ordinarily, the district court should
have the first opportunity to decide whether discovery and an evidentiary hearing
are appropriate under the relevant rules governing these procedural issues. We
recognize that habeas law vests district courts with some discretion in such
matters. See, e.g., Rule 6(a) of the Rules Governing § 2254 Cases (“A party shall
be entitled to invoke processes of discovery available under Federal Rules of Civil
Procedure if, and to the extent that, the judge in the exercise of his discretion and
for good cause shown grants leave to do so, but not otherwise.”); Bracy v.
Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997) (“Rule 6(a) makes it
clear that the scope and extent of such discovery is a matter confided to the
29 discretion of the District Court.”); Williams v. Allen, 542 F.3d 1326, 1346–48
(11th Cir. 2008) (stating “district court’s decision to grant or deny an evidentiary
hearing [is reviewed] for abuse of discretion” and discussing considerations
applicable to deciding whether evidentiary hearing is precluded, mandatory, or
discretionary). Accordingly, we remand Conner’s case to the District Court for it
to determine whether discovery and an evidentiary hearing are appropriate.
To guide the District Court in the exercise of its discretion, we add the
following general observations, without expressing an opinion as to the merits of
Conner’s mental retardation claim. First, with respect to whether Conner is
entitled to an evidentiary hearing, “a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940 (2007). Ordinarily, federal
courts must take into account the deferential standards prescribed by 28 U.S.C. §
2254(d) in deciding whether an evidentiary hearing is appropriate. Id. But in this
case, we find that Conner’s mental retardation claim was never adjudicated on the
merits in state court because of the state court’s determination that Conner’s claim
was procedurally barred. Thus, the District Court is not bound by AEDPA’s
deferential standards in 28 U.S.C. § 2254(d) and federal court review is de novo.
30 See Porter v. McCollum, --- U.S. ---, 130 S. Ct. 447, 452 (2009) (“Because the
state court did not decide whether Porter’s counsel was deficient, we review this
element of Porter’s Strickland claim de novo.”).
Second, in considering whether Conner’s factual allegations regarding his
mental retardation, if true, would entitle him to habeas relief, we are guided by the
Supreme Court’s decision in Atkins. In Atkins, the Supreme Court recognized
“that a national consensus has developed against” executing the mentally retarded.
Atkins, 536 U.S. at 316, 122 S. Ct. at 2249. But to the extent there is
disagreement about executing mentally retarded offenders, Atkins recognized “it is
in determining which offenders are in fact retarded.” Id. at 317, 122 S. Ct. at
2250. The Court left “to the State[s] the task of developing appropriate ways to
enforce the constitutional restriction upon [their] execution of sentences.” Id.
(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17, 106 S. Ct. 2595, 2605
(1986)); see also Bobby v. Bies, --- U.S. ---, 129 S. Ct. 2145, 2150 (2009)
(reaffirming that Atkins had “left to the States the task of developing appropriate
ways to enforce the constitutional restriction” on executing the mentally retarded);
Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010). Thus, when considering
Conner’s mental retardation claim, the District Court must apply Georgia’s
31 substantive mental retardation criteria.17 See, e.g., Thomas, 607 F.3d at 752.
Finally, we observe that § 2254(e)(2)’s prohibition against evidentiary
hearings does not apply in this case because Conner has not “failed to develop the
factual basis of” his mental retardation claim within the meaning of 28 U.S.C.
§ 2254(e)(2). See Williams v. Taylor, 529 U.S. 420, 437, 120 S. Ct. 1479, 1491
(2000) (“If there has been no lack of diligence at the relevant stages in the state
proceedings, the prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s
opening clause, and he will be excused from showing compliance with the balance
of the subsection’s requirements.”). “[A] failure to develop the factual basis of a
claim is not established unless there is lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.” Id. at 432, 120 S. Ct. 1488.
As noted above, Conner filed a second state habeas petition, which was supported
by school records and teacher affidavits, shortly after his first state habeas corpus
was denied CPC by the Georgia Supreme Court. At that time, he requested and
was denied independent access for a mental health evaluation and an evidentiary
17 By statute, Georgia defines “[m]entally retarded” as “significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.” O.C.G.A. § 17-7-131(a)(3). In Georgia, significantly subaverage intellectual functioning generally requires an IQ score of 70 or below. Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991). Because Conner was tried before July 1, 1988, Georgia law requires that he prove his mental retardation by a preponderance of the evidence. Fleming, 386 S.E.2d at 342–43.
32 hearing to support his mental retardation claim. Further, at the time Fleming was
announced in 1989, Conner was several years post-hearing and had no viable
avenue for getting a mental health evaluation given Georgia’s long-standing
policy not to permit mental health experts into the prison without a court order.
Under the unique facts of Conner’s case, we conclude that Conner was diligent in
his efforts to develop the factual record in support of his claim. Thus, § 2254(e)
does not preclude a federal evidentiary hearing.
For all of these reasons, we vacate the District Court’s order finding
procedural default and its judgment denying Conner discovery and an evidentiary
hearing. We remand this claim to the District Court to determine whether Conner
is entitled to discovery and an evidentiary hearing on his mental retardation claim
consistent with this opinion and with Georgia’s substantive mental retardation
standards.
B. REMAINING CLAIMS
Having determined that we must vacate the District Court’s judgment
denying Conner’s petition and remand for further proceedings on the mental
retardation claim, it is unnecessary for us to decide anything regarding the other
two claims—the ineffective assistance of counsel at sentencing claim and the
33 prosecutorial misconduct claim. Our remand is not limited but is, instead, a
remand of the entire case.
Accordingly, we VACATE the District Court’s judgment denying Conner’s
habeas petition and REMAND the entire case to the District Court for further
proceedings consistent with this opinion.
VACATED and REMANDED.