Smith v. Comm'r, Alabama Department of Corrections

924 F.3d 1330

Willie B. SMITH, III, Petitioner - Appellant,

v.COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent - Appellee.

No. 17-15043

United States Court of Appeals, Eleventh Circuit.

May 22, 2019

Hugh A. Abrams, Shook Hardy & Bacon, LLC, CHICAGO, IL, Dylan Cook Black, Stanley Blackmon, Bradley Arant Boult Cummings, LLP, BIRMINGHAM, AL, Tung T. Nguyen, Sidley Austin, LLP, DALLAS, TX, for Petitioner - Appellant.

Henry M. Johnson, James Clayton Crenshaw, Steven Marshall, Alabama Attorney General's Office, MONTGOMERY, AL, for Respondent - Appellee.

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

WILSON, Circuit Judge:

Willie B. Smith III, a death row inmate, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The district court granted Smith a certificate of appealability (COA) on whether he is intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We granted Smith’s request to expand the COA to include whether the prosecutor at Smith’s state trial struck jurors on the basis of gender, race, and national origin in violation of the Sixth and Fourteenth Amendments under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama , 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). After careful review of the record and with the benefit of oral argument, we affirm the district court’s denial of habeas relief.

I. Factual and Procedural Background

In 1992, an Alabama jury found Smith guilty of capital murder. By a 10-2 vote, the jury recommended that Smith be sentenced to death, which the court imposed.

A. Jury Selection and Batson Hearing

During jury selection in Smith’s trial, the state prosecutor used 14 of his 15 peremptory strikes on women. The prosecutor also struck several black venire members and the sole Hispanic venire member. Smith’s counsel objected, arguing that the prosecutor was discriminating on the basis of gender, race, and national origin. The state trial court held that Smith failed to make a prima facie showing of discrimination, and the trial proceeded. The ultimate jury was comprised of five women and seven men.

On direct appeal, the Alabama Court of Criminal Appeals (Alabama CCA) found that Smith had provided sufficient evidence for a prima facie showing of gender-based discrimination under J.E.B. v. Alabama , 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). See Smith v. State , 698 So. 2d 1166, 1169 (Ala. Crim. App. 1997).

The Alabama CCA remanded the case for a hearing so that the prosecutor could present his reasons for the strikes.

On remand, the prosecutor offered explanations for each strike; those explanations included employment, marital status, age, knowledge of criminal law, and work with various churches and religious groups. At the hearing, the prosecutor explained:

I struck a lot of these [venire members] because they worked in the church; Sunday School teachers and Sunday School leaders, and things of that nature, and ... I knew the defense counsel, if it came to the second phase of the sentencing hearing, would be asking the jurors to show mercy. And, it was my opinion that this argument would be receptive to someone who worked in the church and was well versed in the Bible more than someone who was not; be a female or male juror that was a strong worker in the church. No male jurors that was [sic] left seated on the jury worked in the church.

In response, Smith’s counsel argued that the prosecution did not strike everyone who had religious affiliations¹ and questioned why the prosecution had not asked any follow-up questions about the venire members’ religious beliefs. Next, the prosecutor explained that he eliminated the sole Hispanic venire member because she was young and did not respond to questions during voir dire; Smith’s counsel argued this explanation was insufficient.

The state trial court ultimately found that the prosecutor’s reasons for striking the female venire members were gender neutral, that those reasons were credible, and that Smith had failed to prove that the prosecutor had acted in a discriminatory manner. On appeal after remand, the Alabama CCA affirmed. Smith v. State , 838 So. 2d 413 (Ala. Crim. App. 2002) (hereinafter Smith II ). The Supreme Court denied Smith’s petition for writ of certiorari. Smith v. Alabama , 537 U.S. 1090, 123 S.Ct. 695, 154 L.Ed.2d 635 (2002).

B. Smith’s Post-Conviction Hearings

Smith then filed a petition for state post-conviction relief under Alabama Rule of Criminal Procedure 32. The petition included a claim of intellectual disability, and the Rule 32 court conducted an evidentiary hearing on this claim.

At the hearing, Dr. Salekin, Smith’s expert, testified that Smith scored a 64 on a full IQ test and exhibited adaptive deficits in several areas. Dr. Salekin also testified, however, that Smith scored relatively well on a separate test that assessed Smith’s language, reading, and mathematics skills, and that these particular results were inconsistent with a diagnosis of intellectual disability. Dr. Salekin’s final opinion was that Smith was not intellectually disabled. Dr. Salekin also testified that there was no national medical consensus on using the "Flynn Effect" to adjust IQ scores.²

The state called Dr. King, who testified that Smith scored a 72 on a full IQ test, including verbal score of 75 and nonverbal score of 74.³ Smith’s score on the verbal portion of Dr. King’s IQ test matched a previous score he achieved on the verbal portion of a partial IQ test administered by Dr. Blotcky, a court-appointed psychologist.⁴ Like Dr. Salekin, Dr. King’s final opinion was that Smith was not intellectually disabled, and he agreed that there was no national medical consensus on using the Flynn Effect to adjust IQ scores.

The Rule 32 court denied Smith’s Rule 32 petition, and the Alabama CCA affirmed. Smith v. State , 112 So. 3d 1108 (Ala. Crim. App. 2012) ( Smith III ), cert. denied , Ex parte Smith , 112 So. 3d 1152 (Ala. 2012).

C. Further Procedural History

Smith filed his original federal habeas petition in the Northern District of Alabama, which the district court denied. One day after denying Smith’s petition, the district court reopened the action for the sole purpose of considering the effect, if any, of Moore v. Texas , ––– U.S. ––––, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), on Smith’s Atkins claim. After supplemental briefing, the district court concluded that Moore did not apply retroactively and reaffirmed the denial of Smith’s petition. The district court granted Smith a COA on his Atkins claim, and we granted him a COA on his Batson claim.

II. Standard of Review

We review de novo the district court’s denial of a 28 U.S.C. § 2254 petition. Ward v. Hall , 592 F.3d 1144, 1155 (11th Cir. 2010). Because Smith filed his petition after April 24, 1996, this appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA "establishes a highly deferential standard for reviewing state court judgments." Parker v. Sec’y, Dep’t. of Corr. , 331 F.3d 764, 768 (11th Cir. 2003). Under AEDPA, a federal court may only grant a writ of habeas corpus if the state court’s determination of a federal claim was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

The phrase "clearly established Federal law" encompasses only the holdings of the Supreme Court of the United States "as of the time of the relevant state-court decision." Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Section 2254(d) provides two separate bases for reviewing state court decisions—"the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal court must consider." Maharaj v. Sec’y, Dep’t of Corr. , 432 F.3d 1292, 1308 (11th Cir. 2005).

A state court’s determination is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams , 529 U.S. at 413, 120 S.Ct. 1495. A state court’s determination is "an unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case." Id . Reasonableness is objective, and a federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court was incorrect. Id . at 410, 120 S.Ct. 1495.

Finally, under § 2254(d)(2), we presume that the state court’s findings of fact are correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). "This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court’s findings lacked even fair support in the record." Rose v. McNeil , 634 F.3d 1224, 1241 (11th Cir. 2011) (citations omitted).

III. Atkins Claim

Smith first argues that the district court erred in holding that the Supreme Court’s recent holding in Moore v. Texas did not apply retroactively to his intellectual disability claim. We agree with the district court that Moore is not retroactive. Smith also argues that the Alabama state courts unreasonably applied Atkins v. Virginia in evaluating his intellectual disability claim. After careful review of the state court record and its order, we hold that the state court’s denial of his intellectual disability claim was not an unreasonable...