Davis v. Kelley

854 F.3d 967, 2017 U.S. App. LEXIS 6835, 2017 WL 1500324

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 17, 2017
• Docket: No: 04-2192
• Status: Published

Opinions

ORDER

PER CURIAM.

Don Williams Davis was convicted of capital murder in Arkansas and sentenced to death. His conviction and sentence were affirmed on direct appeal, and his petition for postconviction relief in state court was denied. On April 1, 2002, he then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. While that petition was pending, the Supreme Court of the United States decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that executing the intellectually disabled¹ is “cruel and unusual punishment” prohibited by the Eighth Amendment to the United States Constitution. Despite the existence of Atkins during the pendency of his petition in the district court, Davis failed to raise an Atkins claim before the district court. On January 28, 2004, the district court denied his petition.

On appeal, Davis moved this court to remand to the district court for further proceedings, arguing that there was significant evidence of his intellectual disability to render his death sentence unconstitutional in light of Atkins. Davis v. Norris, 423 F.3d 868, 878 (8th Cir. 2005). Viewing Davis’s motion to remand as “the functional equivalent of a second or successive petition for habeas corpus because he s[ought] to amend his original petition and obtain an evidentiary hearing on the Atkins issue,” we explained that Davis must satisfy the requirements of 28 U.S.C. § 2244(b)(2)(A). Id. at 878-79. That is, Davis had to “show[ ] that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. at 879 (quoting 28 U.S.C. § 2244(b)(2)(A)). While we acknowledged that Atkins’s prohibition on executing the intellectually disabled is retroactive to cases on collateral review, we concluded that Davis failed to satisfy § 2244(b)(2)(A) because “the Atkins rule was not previously unavailable to Davis.” Id. The Atkins rule was available because Davis “could have raised this issue while he was litigating his habeas petition in the district court.” Id. Not only was Atkins orally argued prior to Davis filing his petition, but the Supreme Court issued its opinion in Atkins “[w]hile Davis was litigating [his] petition and well before his scheduled evi-dentiary hearing.” Id. We held that “[a]l-though the issue was available to Davis, he did not attempt to present an Atkins claim to the district court and instead waited until after filing this appeal to seek permission to raise it.” Id. We issued our opinion on September 14, 2005, and the mandate issued on November 21, 2005.

On February 27, 2017, Governor of Arkansas Asa Hutchinson scheduled Davis’s execution for April 17, 2017. Then, on April 12, 2017, Davis filed the instant motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. The motions argue that the available evidence supports the conclusion that Davis is likely intellectually disabled, yet no court has ever considered the merits of his claim. According to Davis, if his Atkins claim had been properly raised, he would have been entitled to an evidentiary hearing in federal district court. Davis contends that he is entitled to an evidentiary hearing pursuant to Atkins. Davis would use such a hearing to demonstrate that his upcoming execution would violate the Eighth Amendment’s bar against executing the intellectually disabled. Davis further argues that because he has presented a prima facie case of intellectual disability, he is entitled to a stay of execution so that the district court can consider the merits of his Atkins claim. For the reasons discussed infra, we deny Davis’s motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. We grant Davis’s motion to file an overlength brief.

I. Discussion

“The standard for recalling a mandate in habeas corpus litigation is a strict one.” Thompson v. Nixon, 272 F.3d 1098, 1099-1100 (8th Cir. 2001). We exercise our “power to recall a mandate ... only in ‘extraordinary circumstances.’ ” Id. at 1100 (quoting Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)). “The Court stated in Calderon that ‘[t]he sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’ ” Id. (alteration in original) (quoting Calderon, 523 U.S. at 550, 118 S.Ct. 1489).

A. Anti-Terrorism, and Effective Death Penalty Act of1996 (AEDPA)

We also measure a motion to recall a mandate in habeas corpus litigation against statutory limitations. Id. at 1100. “A motion to recall a mandate is analyzed as a successive petition under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).”’ Id. This means that “for our mandate to be recalled, the standard for successive petitions must be met.” Id.

Section 2244(b) of 28 U.S.C. provides, in relevant part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2)A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable....

(Emphases added.)

In summary, “AEDPA imposes three requirements on second or successive ha-beas petitions.” Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009).

First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3).

Id. (emphasis added) (quoting Gonzalez v. Crosby, 545 U.S. 524, 529-30, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)).

Our prior panel unanimously held that Davis’s Atkins claim was not “previously unavailable” to him when he litigated his habeas petition in district court; thus, Davis’s Atkins claim was dismissed under § 2244(b)(2). Davis has offered no legal argument as to why the prior panel’s holding was incorrect; therefore, it controls.

Nor do we find that the more recent Supreme Court cases cited by Davis have any bearing on his Atkins claim because they discuss purely procedural issues unrelated to Davis. See Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 2014) (per curiam). Hall concerned the state’s use of a strict IQ test score cutoff of 70 before allowing further evidence of intellectual disability to be considered. 134 S.Ct. at 1990. Davis does not allege that Arkansas applied an IQ test score cutoff to him. The recently decided Moore v. Texas concerned the state court’s use of out-of-date medical guides, rather than contemporary guides reflecting the medical community’s consensus, to determine whether the defendant was intellectually disabled. — U.S. —, 137 S.Ct. 1039, 1044, 197 L.Ed.2d 416 (2017). But Davis does not allege that Arkansas uses out-of-date medical guides or otherwise fails to follow contemporary medical standards. Davis, in fact, fails to cite any case supporting his view that the procedural default rules of AEDPA must cede to his Atkins claim.

Accordingly, Davis has failed to satisfy the requirements for a successive habeas petition under § 2244(b)(2).

B. Miscarriage of Justice

Davis also argues that a successive petition is necessary to avoid a miscarriage of justice because “issues of whether an individual with a substantial but unadjudicated Atkins claim can be executed and whether a potentially meritorious Atkins claim may be forever procedurally defaulted certainly warrant fuller exploration.”

“In a series of cases ..., [the Supreme Court] ha[s] held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (emphasis added). This rule is called the “fundamental miscarriage of justice exception.” Id. Here, Davis has not asserted an actual-innocence claim; that is, he is not arguing “that it is more likely than not that no reasonable juror would have convicted him in the light of ... new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Therefore, the miscarriage-of-justice exception is inapplicable.

C. Ripeness

Finally, Davis argues that while he “raised a claim challenging his sentence of death under Atkins in previous proceedings, see Davis, 423 F.3d at 878-79, he now, for the first time, raises a claim that Atkins prohibits his actual execution.” According to Davis, his “claim that the Eighth Amendment forbids the execution of an intellectually disabled person was not ripe until his warrant was issued.”

We reject this argument. The two cases that Davis relies on—Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998)—involved the issue of competency, not intellectual disability. In Ford, the Supreme Court held that “the Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.” 477 U.S. at 410, 106 S.Ct. 2595. In Martinez-Villareal, the Supreme Court held that § 2244’s ban on successive petitions does not apply to a petitioner’s Ford claim that his scheduled execution would violate the Eighth Amendment because he is incompetent. 523 U.S. at 639, 118 S.Ct. 1618. Martinez-Villareal made clear that the issue of “competency to be executed” is not ripe until execution is imminent. 523 U.S. at 644-45, 118 S.Ct. 1618. Following Martinez-Villareal, the Supreme Court held that § 2244(b)’s ban on successive petitions did not apply to a petitioner’s Ford claim raised for the first time after the state obtained an execution warrant and after a prior habeas application had been denied. Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

In summary, Ford and its progeny focus on the inmate’s competency at the time of execution. This makes sense because competency can be lost or regained over time. As stated in Moore, and cited in Davis’s own motion, a core element of intellectual disability is “the onset of these deficits while still a minor.” 137 S.Ct. at 1045.

In contrast to Ford, Martinez-Villareal, and Panetti, Atkins concerned intellectual disability, not competency. In creating “ ‘a substantive restriction on the State’s power to take the life’ of a mentally retarded offender,” Atkins focused exclusively on the prisoner’s culpability or reliability at the time that the crime was committed. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595). The Court explained:

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

Id. at 306-07, 122 S.Ct. 2242 (emphasis added). Davis, in essence, asks this court to stretch the Atkins decision beyond its actual holding. We decline to do so.

Whether Davis is now, in 2017, intellectually disabled has no bearing on whether he had the requisite moral culpability for the murder he committed in 1990. See In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005) (“Thus, the key substantive question before this court is whether Bowling was mentally retarded at the time he committed the murders of James and Tina Early.” (emphasis added)). Additionally, Davis has failed to provide a single attachment, document, or factual allegation about his current mental abilities. Even Dr. Martell’s letter is limited to the issue of mental ability “that either was not presented or was incompletely presented during the penalty phase of Mr. Davis’s capital trial.”

We decline to treat Davis’s Atkins claim as though it were a Ford claim. Our conclusion is supported by Panetti, in which the Supreme Court took great care to expressly limit the reach of Panetti to the unique circumstances of a Ford claim. See Panetti, 551 U.S. at 945, 127 S.Ct. 2842 (“We conclude ... that Congress did not intend the provisions of AEDPA addressing ‘second or successive’ petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.”). Panetti thus has no force or applicability to Davis’s claim. Id. at 947, 127 S.Ct. 2842 (“In the usual case, a petition filed second in time and not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or successive’ bar.”). Just as Panetti speaks only to Ford claims, so too does Martinez-Villareal, which dealt with exhaustion of state remedies. 523 U.S. at 639, 118 S.Ct. 1618.

“Ford claims are unique among ineligibility arguments in that they are habeas relief issues based only on a prisoner’s status at the time of a potential execution.” Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 Cornell L. Rev. 329, 356 (2010) (citing Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618). True, a panel of this circuit has discussed the possibility of an individual proving intellectual disability “either (a) at the time of committing the crime or (b) at the presumptive time of execution.” See Sasser v. Hobbs, 735 F.3d 833, 846 (8th Cir. 2013). But this statement is dicta. The issue in Sasser was whether a district court had properly conducted an evidentiary hearing on the prisoner’s intellectual disability. No execution was imminent, so there was no reason to discuss claims that could be brought at the presumptive time of execution. And since Sasser did not involve any ripeness claim, it is not controlling on the question before us now.

We acknowledge that in Nooner v. Niles, our court expressly assumed, without deciding, that Atkins claims could be treated the same as Ford claims. 499 F.3d 831, 833 n.2 (8th Cir. 2007). The court made this assumption “[b]ecause the parties ... assumed” the claims are treated the same. Id. But no such assumption is made in the present case. The parties in this case vigorously disagree on this issue. Therefore, Nooner is without precedential value on the issue.

An Eighth Circuit case that did in fact deal with a similar issue is Goodwin. 814 F.3d 901. The Goodwin court rejected an argument that a prisoner’s intellectual disability claim was not ripe until the Supreme Court had issued its opinion in Hall. Id. at 903 n.1. Goodwin relied on Panetti and Martinez-Villareal for his argument. Id. We found those two cases inapplicable because they involved competency claims that could not become ripe until the State set an execution date. Id. “Goodwin’s Eighth Amendment claim, by contrast, ripened long ago.” Id. Admittedly, the Goodwin decision does not deal with the precise issue before us. But it nonetheless analyzes the ripeness of an Atkins claim, and we therefore find its holding persuasive.

In conclusion, whether Davis is now, in 2017, intellectually disabled has no bearing on whether he had the requisite moral culpability for the murder that he committed in 1990. See Bowling, 422 F.3d at 436. The issue of intellectual disability, therefore, does not suddenly become ripe when the execution date is imminent.

II. Conclusion

Accordingly, we deny Davis’s motion to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. We grant Davis’s motion to file an overlength brief.

1 . The Atkins decision uses the term "mentally retarded.” The Court has more recently used the updated term "intellectually disabled.” Hall v. Florida,- U.S. -, 134 S.Ct. 1986, 1992, 188 L.Ed.2d 1007 (2014).