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November 22, 2011

Split Elevent Circuit refuses to reject Georgia's approach to implementing Atkins

A big en banc capital habeas decision came down from the Eleventh Circuit today in Hill v. Humphrey, No. 08-15444 (11th Cir. Nov. 22, 2011) (available here), concerning Georgia's sentencing procedures. Here is part of the start of the majority opinion:

In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully alleged that he is mentally retarded and ineligible for the death penalty. Hill, a Georgia death row inmate, was able to raise this claim in 1996, well before the Atkins decision was issued in 2002, because in 1988 the State of Georgia led the nation by abolishing the death penalty for mentally retarded defendants....

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill’s trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia’s reasonable doubt standard of proof in O.C.G.A. § 17-7-131 violated the Eighth Amendment.

The national consensus against executing the mentally retarded that gave birth to the Atkins prohibition was a consensus that Georgia started by enacting the very same statute — § 17-7-131(c)(3), (j) — that petitioner Hill now claims violates Atkins by using a reasonable doubt standard.... The Georgia Supreme Court recently reaffirmed its holding in Hill III that Georgia’s beyond a reasonable doubt standard for proving mental retardation is constitutional.... 

As the Georgia Supreme Court correctly noted, there is no holding in Atkins, or any Supreme Court decision, invalidating a reasonable doubt standard for mental retardation claims. Just the opposite is true. Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded. Bobby v. Bies, 556 U.S. 825, —, 129 S. Ct. 2145, 2150 (2009).  And in the 219-year history of our nation’s Bill of Rights, no United States Supreme Court decision has ever suggested, much less held, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right.  Because there is no specific, much less “clearly established” by Supreme Court precedent, federal rule regarding the burden of proof for mental retardation claims, AEDPA mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise — and affirm in this case.

November 22, 2011 at 03:11 PM | Permalink


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This is definitely cert granted.

Posted by: DaveP | Nov 22, 2011 3:14:21 PM

DaveP, I hope not. This guy shouldn't get to relitigate this.

Posted by: federalist | Nov 22, 2011 4:56:08 PM

For the reasons in Judge Tjoflat's concurrence, it seems likely too factbound to be certworthy.

Posted by: Jay | Nov 22, 2011 10:05:19 PM


I admit Tjoflat's concurrence was good. Even though this is an issue that has been limited to Georgia, I would bet cert would be granted.

Posted by: DaveP | Nov 23, 2011 9:28:22 AM

with how fuzzy the standards are for what is/is not MR (perhaps an inevitable result of grafting a legal inquiry onto a medical/psychological/development one), proof BRD seems a pretty tough row to hoe... does anyone know how frequently (if at all) folks have succeeded with Atkins/MR claims in Georgia?

Posted by: Anon | Nov 24, 2011 4:31:38 PM

I agree with your thoughts here and I really like your blog! I’ve bookmarked it so that I can come back & read more in the future.

Posted by: circuit board | Nov 26, 2011 12:34:17 AM

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