Greene v. Payne

ORDER

D.P. Marshall Jr. United States District Judge.

1. Introduction.

Greene, an Arkansas prisoner under a death sentence, has been through a complete round of habeas proceedings. Through appointed counsel, he now moves for relief from that Judgment under Federal Rule of Civil Procedure 60(b)(6). He argues that extraordinary circumstances justify reopening his habeas case so he can make an intellectual-disability claim under Atkins v. Virginia, 536 U.S. 304 (2002).

The Court has also received papers from Greene himself. The Court directed the Clerk to file a document submitted by Greene as a motion to withdraw the Rule 60 motion and to file his other documents as addenda. At the Court's invitation, both Payne and Greene's counsel responded to Greene's pro se filings. Greene sent the Court some more papers, which were docketed as another addendum to his motion. The Court has considered all these filings.

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2. Greene's competency and waiver.

Greene's 2004 habeas petition included a claim that he's intellectually disabled and therefore ineligible for the death penalty under Atkins. Greene then sought, against his lawyers' advice, to withdraw that claim. Relying on Rees v. Payton, the Court ordered Greene transferred to a federal medical facility for a competency evaluation. Doc. 101. After that evaluation, the Court (the Honorable Susan Webber Wright presiding) held a two-day evidentiary hearing. The Rees standard is whether the petitioner "has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees v. Pay ton, 384 U.S. 312, 314 (1966). This Court found Greene competent to waive his Atkins claim. The Court also determined that Greene's waiver was knowing and voluntary. And the Court granted Greene's motion to withdraw the Atkins claim. Doc. 196.

In its competency analysis, this Court considered Circuit precedent recognizing that, although the two parts of the Rees standard appear as alternatives, "there is necessarily an area of overlap between the category of cases in which at the threshold we see a possibility that a decision is substantially affected by a mental disorder, disease, or defect, and that of cases in which, after proceeding further, we conclude that decision is in fact the product of a rational thought process." Smith By and Through Missouri Public Defender Commission v. Armontrout,

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812 F.2d 1050, 1057 (8th Cir. 1987). This Court concluded that, even if Greene had a mental disease or defect and was delusional, he was "cognizant of and appreciate[d] the practical consequences of abandoning his Atkins claim." Doc. 196 at 16-17. The Court found Greene "clearly expressed his strong conviction that he is not mentally retarded and that he does not want his attorneys to assert such a claim." Doc. 196 at 17. The Court also noted Greene's understanding that he wouldn't be executed if his Atkins claim was successful. Ibid.

The Court next addressed whether Greene's waiver was a rational choice:

Despite his physical problems, whether real or delusional and his belief that his attorneys are not working in his best interest, Greene has a rational basis for believing that he is not mentally retarded. Greene communicates with others on an adult level, and he reads, writes, and speaks fluently Furthermore, at the close of the competency hearing, Greene testified that even if he were "anywhere close" to being mentally retarded, he would not pursue an Atkins claim

Doc. 196 at 17. The Court quoted Greene's hearing testimony about his reasoning for not pursuing the claim. In sum, Greene did not want to "prolong" his case "year after year after year." He believed there should be a "limit on appeals"; he referred to the cost to taxpayers and "all this ridicule" that he "endured" at the competency hearing. Ibid. The Court then summarized its findings:

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The Court need not determine whether Greene is reasoning from "premises or values that are within the pale of those which our society accepts as rational." See Smith, 812 F.2d at 1059. It is sufficient that the Court finds, as it does, that Greene's decision is in fact the product of a rational thought process

Ibid.

The Court denied relief on Greene's remaining claims in a final Order entered in March 2015. Doc. 222-1. The Court also denied Greene's request for a certificate of appealability on a number of points, including the validity of the Atkins waiver. Doc. 236 & 241. Greene then sought a certificate from the Court of Appeals on a related point, arguing that reasonable jurists could debate whether an Atkins claim can be waived, and whether this Court had applied the correct legal standard and made the correct analysis in finding him competent to waive that claim. Application for Certificate of Appealability (redacted) at 18-23, Greene v. Kelley, No. 16-1456 (8th Cir. 15 April 2016). In a summary Order, the Court of Appeals denied that motion and dismissed the appeal. Doc. 245. After Greene filed a petition for rehearing and rehearing en banc, the Court requested a response on whether the "district court applied the correct legal standard in determining whether Greene was competent to waive an Atkins claim." Judge Order, Greene v. Kelley, No. 16-1456 (8th Cir. 11 July 2016). The Court of Appeals thereafter denied the petitions. Doc. 246. In due

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course, the Supreme Court denied Greene's petition for writ of certiorari. Greene v. Kelley, 137 S.Ct. 2093 (1 May 2017) (Mem.).

3. Current Issues.

Greene, through his lawyers, now urges this Court to revisit the competency determination and consider his Atkins claim. He offers four extraordinary circumstances for taking this step.

• The diagnostic framework highlighting adaptive deficits in intellectual-disability assessment, which was published in 2013 in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5);

• New case law-Hall v. Florida, 572 U.S. 701 (2014) and Moore v. Texas (Moore I), 137 S.Ct. 1039 (2017), which altered the analysis of intellectual-disability claims;

• A new diagnosis of mild intellectual disability based on a December 2019 review of records from Greene's 2017 competency-to-be-executed assessment, Doc. 257-1; and

• The Eighth Amendment's bar on execution of the intellectually disabled.

Greene argues the Court's competency finding was based on an incomplete and now-outdated intellectual-disability assessment. And he says that, under recent precedent, this Court mistakenly considered his communication skills in finding he had a rational basis for believing he's not intellectually disabled.

The DSM-5 and the precedent-Hall and Moore I-were not available when this Court found Greene competent in 2012, though

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Hall, and its reliance on the DSM-5, was decided prior to this Court's final habeas Order. Both that edition of the Manual and these decisions, moreover, predate the United States Supreme Court's denial of Greene's petition for writ of certiorari. In Greene's petition, he noted that Moore I was pending and asked the Supreme Court to hold his petition until that decision was made. Petition for a Writ of Certiorari, Greene v. Kelley, No. 16-7425 (29 December 2016). The Supreme Court denied Greene's petition about a month after deciding Moore. Compare Greene, 137 S.Ct. 2093 (1 May 2017) with Moore, 137 S.Ct. 1039 (28 March 2017). A follow-up decision applying Moore was decided after Greene's habeas case was closed. Moore v. Texas (Moore II), 139 S.Ct. 666 (2019).

4. Second or successive petition. If it advances a claim for relief, Greene's motion must be treated as a second or successive habeas petition. Gonzales v. Crosby, 545 U.S. 524, 530-32 (2005). Greene says Rule 60(b) review is appropriate because he's not advancing an Atkins claim, but instead is attacking the competency finding that allowed waiver of that claim.

A challenge to the competency decision is not a claim under Gonzalez. The Supreme Court recognized that a claim, as used in § 2244(b), is "an asserted federal basis for relief from a state court's judgment of conviction." 545 U.S. at 530. A motion brings a claim if it "attacks the federal court's previous resolution of a claim on the merits." 545 U.S. at 532 (emphasis original). "On the merits" in this context

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means "a determination that there exist or do not exist grounds entitling a petitioner" to habeas relief. 545 U.S. at 532 n.4. If Greene's pending motion is considered as a challenge to the competency determination, he is not asserting a basis for habeas relief from a state court judgment.

The core of Greene's Rule 60 motion, however, raises an Atkins claim within the meaning of Gonzalez. The motion is largely devoted to a new diagnosis of Greene's intellectual disability and the application of new cases. Greene attempts to frame his argument as challenging his competency finding. But he is actually asking this Court to consider a new Atkins claim based on case law and an intellectual-disability diagnosis unavailable at the time of this Court's competency decision. In concluding his Rule 60 motion, Greene urges this Court to "reopen the judgment and hold a hearing on the merits of [his] Atkins claim." Doc. 257 at 21. Greene's arguments go beyond a "defect in the integrity of the federal habeas proceedings"; the deeper layer is the merits of an Atkins claim. Gonzalez, 545 U.S. at 532. Greene's Rule 60 motion therefore is actually a second or successive habeas petition, which requires preauthorization from the...