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November 9, 2010

Eleventh Circuit to consider en banc how Georgia implements Atkins death penalty bar

A helpful reader altered me to this new order from the Eleventh Circuit, which orders en banc review in a case concerning Georgia's procedures for implementing the Supreme Court's 2002 Atkins ruling prohibiting the execution of mentally retarded persons. 

In this prior post, I reported on the panel ruling in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here).  That panel decision declared unconstitutional Georgia's approach to implementing Atkins "because Georgia’s requirement of proof beyond a reasonable doubt [placed on the defendant to prove he is mentally retarded and thereby ineligible for the death penalty] necessarily will result in the execution of the mentally retarded [and thus] the Georgia Supreme Court’s decision [approving this approach] is contrary to the clearly established rule of Atkins." 

November 9, 2010 at 04:33 PM | Permalink


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As I predicted back in June, an enbanc hearing and a close vote. I won't opine on which way it will go, but I would bet SCOTUS will take it up either way it comes down at the 11th.

Posted by: DaveP | Nov 9, 2010 4:46:24 PM

It would be a shame if this ends up in SCOTUS out of federal habeas. I wonder if there are cases in the pipe raising the same challenge at direct appeal/state postconviction that could somehow get to the Court around the same time? If SCOTUS is going to rule on this important Eighth Amendment question, they should do it on a clean slate, not in a posture where they have to defer to state views of what the federal constitution means.

Posted by: anon | Nov 11, 2010 12:51:55 PM

Apparently, Georgia's "beyond a reasonable doubt" standard is the toughest among the states. I have to find the GA Supreme Court opinion on this. I know some federal courts, I believe the 5th and 11th have upheld district court judgments who did not find the state supreme court's opinion "reasonable" and vacated the sentence. Or should I say, that the district judge didn't "clearly err." Wiley(MS)/CA5 is one of them. I think the other one was from Alabama. As for cases in the state postconviction pipe, I don't know right now. Maybe they didn't apply for cert and went directly to federal district court after losing in the state court.

Posted by: DaveP | Nov 11, 2010 2:49:10 PM

I recently certed a case directly out of state court in which the question was whether NC's use of the clear and convincing evidence standard rather than preponderance of the evidence violated the constitution. Cert was denied but there were procedural twists. I believe that it is inevitable that the court will hold that the proper standard is that the def has to prove mental retardation by a preponderance of the evidence.

bruce cunningham

Posted by: bruce cunningham | Nov 11, 2010 4:20:21 PM

bruce cunningham

what do you predict at the 11th with this case and obviously you expect SCOTUS to disapprove if they affirm the district court enbanc. I think it will be close at both courts eventually.

Posted by: DaveP | Nov 11, 2010 5:22:48 PM

I believe the full court will find that there is no clearly established federal constitutional law as determined by the us supreme court and therefore reverse. Georgia is way out of step with the rest of the country on this question, so sooner or later the beyond a reasonable doubt standard will be declared unconstitutional. I think , as Rehnquist used to be fond of saying, "it is clear beyond peradventure" that the proper standard is preponderance of the evidence. Otherwise, a risk exists that someone who is probably ineligible to receive a death sentence will be executed. The reasoning in cooper v oklahoma that preponderance is the proper standard for competency issues is persuasive.

I am encouraging folks in north carolina to get the issue certed up pretrial. My case was dicey because after we lost the MR hearing, under the improper standard , we pleaded the def guilty and tried to preserve the issue. So, appealing a guilty plea is little problematic.


Posted by: bruce cunningham | Nov 11, 2010 7:31:44 PM

who was the petitioner in your recent cert case you cite and SCOTUS Case #. Hopefully, I can find the opinion below. Also, I wasn't surprised that Barkett voted with Hill, but I was by Marcus. It took over 4 months to grant enbanc after the states petition, so just last week I was thinking that there weren't enough votes to grant, so several judges in the minority were writing a dissent to the denial of rehearing. I was incorrect.

Posted by: DaveP | Nov 11, 2010 7:47:55 PM

Dave, my client was Sylvester Leon Little. There wasn't an opinion in the Supreme court of North Carolina since I went up from the trial court on a cert petition from a guilty plea, after trying to preserve the standard issue. My argument is that the plea was involuntary because after having been found to not being mentally retarded by an improper standard he had no choice but to plead guilty to avoid a death sentence. The NC sup Ct decided not to review the issue, so no opinion. That seems imprudent because the court will have to deal with the issue sooner or later and why wait until a def has his MR claim denied, goes to trial, gets a death verdict and then appeals.

I will be happy to send you the motion asking the judge to evaluate the MR claim by a preponderance standard rather than clear and convincing standard, the cert petition to the NC supreme court and the cert petition to the US Sup Ct.

I had given up watching for the en banc decision in Hill. It sure took a long time.


Posted by: bruce cunningham | Nov 11, 2010 8:17:27 PM

It seems that the Little case would be well worth resolving.
The death cases spawn off so many issues especially after SCOTUS grants a new right. Justice Stevens commented recently that he thought no one on the Court in 1976 ever realized the complications and litigation Gregg, Jurek, and Proffit would create. That is probably why he, Powell, and Blackmun all retreated from their early conclusions. I remember back in the 80's when Stevens and Blackmun would write majority opinions favoring the state, while Brennan and Marshall would be in dissent. I think Blackmun even dissented in Lockett. Powell regretted writing the majority in McCleskey.

You can send me the items. If I can find them online, let me know.

Posted by: DaveP | Nov 11, 2010 8:46:53 PM

Dave, me your email address. mine is btcunningham@earthlink.net

Posted by: bruce cunningham | Nov 11, 2010 9:23:19 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB