Middle District of Florida.
APPLICATION FOR LEAVE AND MOTION FOR STAY DENIED.
In re: JOHN RUTHELL HENRY, Petitioner: Baya Harrison, Law Offices of Baya Harrison, Monticello, FL.
For Attorney General, State of Florida, Successive Habeas Respondent: Candance M. Sabella, Attorney General's Office, Tampa, FL.
Before MARCUS, PRYOR, and MARTIN, Circuit Judges. MARTIN, J., dissenting.
MARCUS, Circuit Judge
Petitioner John Ruthell Henry, a Florida prisoner scheduled to be executed at 6:00 p.m. on June 18, 2014, has just filed with this Court an emergency application
for leave to file a second or successive federal habeas corpus petition based on 28 U.S.C. § 2244(b) and the United States Supreme Court's recent decision in Hall v. Florida, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). He also seeks a stay of execution pursuant to 28 U.S.C. § 2251. Henry alleges that he is intellectually disabled and, therefore, cannot be executed consistent with the command of the Eighth Amendment ban on cruel and unusual punishment.
After thorough review, we deny the application because Henry cannot circumnavigate the stringent requirements for leave to file a second or successive petition found in § 2244(b). His petition fails for two independent reasons: first, the rule enunciated in
Hall v. Florida has not been made retroactive by the United States Supreme Court; moreover, even if it had been, he has not shown a reasonable likelihood that he would benefit from the rule in Hall.
The essential facts and relevant procedural history are these. Shortly before Christmas 1985, Petitioner went to Pasco County to speak to his estranged wife Suzanne Henry. Before he arrived, he had smoked crack cocaine. The couple began to argue during his visit, and the dispute ended when Henry killed Suzanne by stabbing her repeatedly in the throat at least thirteen times. The petitioner told investigators that Suzanne initially grabbed the knife to stab him; but he overpowered her, secured the knife, and then killed her. He then took Eugene Christian -- Suzanne's five-year old son from another marriage -- to Hillsborough County. Hours later, Henry killed Eugene by repeatedly stabbing him in the throat.
Henry was convicted of the first-degree murder of Suzanne and received a sentence of death. The Florida Supreme Court, however, reversed his conviction and sentence. Henry v. State, 574 So.2d 73 (Fla. 1991) (per curiam). Henry was tried and convicted again and sentenced to death, and the Florida Supreme Court affirmed the conviction and sentence on direct appeal. Henry v. State, 649 So.2d 1366 (Fla. 1994) (per curiam), cert. denied, 515 U.S. 1148, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995). He then sought post-conviction relief under Florida Rule of Criminal Procedure 3.850, but the state courts denied his application. Henry v. State, 862 So.2d 679 (Fla. 2003) (per curiam). Henry then proceeded to file his first federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He argued only that counsel had been ineffective; no claim for mental retardation was made. The district court denied his petition and we affirmed. Henry v. Sec'y, Dep't of Corr., 490 F.3d 835 (11th Cir. 2007) (per curiam).
Henry is set to be executed for the murder of Suzanne Henry on Wednesday, June 18, 2014, at 6:00 p.m. under a death warrant that Governor Scott signed on May 2, 2014. On May 5, the Florida Supreme Court issued a scheduling order that set a deadline of May 19 by which time all proceedings were to be completed in state circuit court. The next day, May 6, a Florida circuit court in Pasco County issued a scheduling order that directed Henry to file any postconviction motion by Friday, May 9.
Henry's counsel opted not to file any petition for collateral relief in the state circuit court. Instead, on May 7, Henry's counsel formally asked the Governor to authorize a determination of Henry's sanity, and thus his fitness for execution, as provided in § 922.07 of the Florida Statutes. On May 12, Governor Scott granted Henry's request and appointed a panel of three psychiatrists. The panel of mental health experts submitted a report to the Governor that concluded " with reasonable medical certainty that (1) Mr. Henry does not suffer from any DSM-5 psychiatric illness or intellectual disability (formerly referred to as mental retardation in DSM-IV), and (2) understands the nature and effect of the death penalty and why it is imposed on him." Thereafter, in Executive Order 14-169, signed on May 20, Governor Scott dissolved the temporary stay of execution, which left the death warrant " in full force and effect."
On May 27, 2014, the United States Supreme Court decided Hall v. Florida, concluding that a State cannot execute a person whose IQ test score falls within the test's margin of error unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. 134 S.Ct. at 2001. Under § 921.137 of the Florida Statutes as interpreted by the Florida Supreme Court, a prisoner sentenced to death previously had been required to show an IQ test score of 70 or below before presenting any additional evidence of his intellectual disability. See Hall v. State, 109 So.3d 704, 707 (Fla. 2012) (per curiam);
Cherry v. State, 959 So.2d 702, 712-13 (Fla. 2007) (per curiam). The strict 70 IQ score cut-off did not take into account the standard error of the test. The Supreme Court in Hall struck down Florida's cut-off as violating the Eighth Amendment's prohibition on cruel and unusual punishment because the rule " misuse[d] IQ score on its own terms" in a way that risked the execution of those with intellectual disabilities. 134 S.Ct. at 2001. Because " an IQ test score represents a range rather than a fixed number," the Court observed that " when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Id. Thus, in Hall, the Supreme Court concluded that because of a 5 standard of error, " an individual with an IQ test score 'between 70 and 75 or lower' . . . may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning." Hall, 134 S.Ct. at 2000 (quoting Atkins v. Virginia, 536 U.S. 304, 309 n.5, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). Soon thereafter, based on this new Supreme Court law, on Friday, May 30, Henry's counsel filed in Florida circuit court a Defense Motion for Determination of Intellectual Disability as a Bar to Execution, pursuant to Florida Rule of Criminal Procedure 3.203(c). Henry claimed that he scored 78 on an IQ test in 1986, but he alleged that evidence showed " significant limitations in his adaptive functioning that reduce his overall functioning to that of a person with an IQ of less than 70." Henry pointed to his abusive childhood, which caused cognitive deficits; his family history of mental illness; and testimony that, despite his then-chronological age of 35, Henry had a mental/developmental age equivalent to a 13 or 14 year-old due to poor adaptive functioning. Henry asked the state circuit court: to authorize a determination of mental disability by two experts; to hold an evidentiary hearing to consider their findings and all other evidence on the issue of intellectual disability; to stay Henry's execution pending the outcome of the proceedings; and ultimately to find Henry intellectually disabled and ineligible for the death penalty.
The Florida circuit court denied Henry's motion as being untimely later that day, explaining that it came after the May 19 deadline for trial court filings established by the Florida Supreme Court. Henry appealed to the Florida Supreme Court, arguing that the May 19 deadline applied only to pending motions, not Henry's new claim based on Hall. Henry asked that the Florida Supreme Court reverse the state circuit court order and remand for a post-Hall determination of whether Henry is intellectually disabled. The Florida Supreme Court denied the appeal on the merits on June 12, concluding that Henry
was not entitled to an evidentiary hearing because he had not demonstrated a facially sufficient claim of intellectual disability. The court found that, beyond the assertion of his 78 IQ test score, Henry had not alleged any deficits in adaptive functioning or onset prior to age 18. Moreover, the Florida Supreme Court observed that throughout the lengthy litigation of this case not a single doctor had ever opined that Henry was mentally retarded or intellectually disabled. And, indeed, the psychiatrists who had recently examined Henry at the Governor's direction found no intellectual disability: " [h]is clinical presentation during the evaluation was consistent with intellectual functioning at or above what would be predicted based on his prior IQ test result of 78 (7th percentile)." The psychiatrists also noted that Henry " was able to discuss the legal process accurately in reasonable depth" and " correctly serially subtracted seven from 100 on four of five steps (100-93-79-73-56)." The Florida Supreme Court added that the record did not evince a showing that Henry had adaptive functioning deficits: " Henry was able to drive a car, develop personal relationships, participate in financial transactions, discuss adult concepts, and engage in goal-directed behavior." Indeed, that court remarked that Henry's pro se pleadings and oral advocacy demonstrated his effective oral and written communication skills and his understanding of the law.
Henry has now moved this Court for leave to file a second or successive petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida pursuant to § 2244 arguing that the Supreme Court's recent decision in Hall marks a change in the law respecting claims of intellectual disability and compels the conclusion that he should be given leave to further address his intellectual disability. " AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications." Tyler v. Cain, 533 U.S. 656, 661, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
see Gilbert v. United States, 640 F.3d 1293, 1311 (11th Cir. 2011) ( " If second and successive motions are not 'greatly restrict[ed],' there will be no end to collateral attacks on convictions and sentences, and there will be no finality of judgment." (quoting Tyler, 533 U.S. at 661)). Before an applicant may file a second or successive habeas corpus application under § 2254 in the district court, he must move in the appropriate Circuit Court of Appeals for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the Court of Appeals " may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [§ 2244(b)]." Id. § 2244(b)(3)(C). An applicant must show either (A) " 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," or (B) that " the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," and that " the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." Id. § 2244(b)(2). Henry does not argue for relief based on the second prong. And he cannot satisfy the first because his claim is not based on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court.
A case announces a new rule of constitutional law when it breaks new ground or imposes a new obligation on the States or the Federal government. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Put another way, a case announces a new rule if the result was not dictated by precedent existing when the defendant's conviction became final. Id. at 301; see Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting) (distinguishing between " whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law" ).
In Hall, the Supreme Court concluded that " when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error," the Constitution's Cruel and Unusual Punishment Clause requires that " the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Hall, 134 S.Ct. at 2001. Hall did indeed announce a new rule of constitutional law. Previously, in Atkins, the Supreme Court prohibited the execution of the intellectually disabled, but " le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 536 U.S. at 317 (second alteration in original) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). For the first time in Hall, the Supreme Court imposed a new obligation on the states not dictated by Atkins because Hall restricted the states' previously recognized power to set procedures governing the execution of the intellectually
disabled. In addition, Justice Kennedy's Hall opinion explained that the basis for its holding stretched beyond Atkins alone: " [T]he precedents of this Court 'give us essential instruction,' . . . but the inquiry must go further. . . . In this Court's independent judgment, the Florida statute, as interpreted by its courts, is unconstitutional." Hall, 134 S.Ct. at 1999-2000 (quoting Roper v. Simmons, 543 U.S. 551, 564, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). Nothing in Atkins dictated or compelled the Supreme Court in Hall to limit the states' previously recognized power to set an IQ score of 70 as a hard cut-off. This is plainly a new obligation that was never before imposed on the states, under the clear language of Atkins, and of Hall itself.
But Henry is not entitled to leave to file a second or successive petition because the Supreme Court has not made the new rule announced in Hall retroactive to cases on collateral review. Thus, he simply cannot meet the requirements set by Congress. See 28 U.S.C. § 2244(b)(2)(A). Indeed, the petitioner has made no argument that Hall was made retroactive by the Supreme Court. In Tyler v. Cain, Justice Thomas writing for a plurality of four justices concluded that " [b]ased on the plain meaning of the text read as a whole, . . . 'made' means 'held' and, thus, the requirement is satisfied only if th[e Supreme] Court has held that the new rule is retroactively applicable to cases on collateral review." Id. at 662. Under this interpretation, the petitioner cannot satisfy the requirements embodied in § 2244(b)(2)(A). It is undeniable that the rule pronounced by the Supreme Court in Hall was not made retroactive to cases on ...