Smith v. Ryan

813 F.3d 1175

Robert Douglas SMITH, Petitioner–Appellant,

v.Charles L. RYAN, Warden, Arizona, Department of Corrections, Respondent–Appellee.

Nos. 96–99025

96–99026

10–99011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 17, 2015.

Filed Feb. 4, 2016.

As Corrected Feb. 17, 2016.

S. Jonathan Young(argued), Williamson & Young, P.C., Tucson, AR; Ralph E. Ellinwood, Ellinwood, Francis & Plowman LLP, Tucson, AR, for Petitioner–Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Mark Brnovich, Attorney General, Robert E. Ellman, Solicitor General, Jeffrey A. Zick, Chief Counsel, Capital Litigation Section, Phoenix, AR, for Respondent–Appellee.

Before: MARY M. SCHROEDER, STEPHEN REINHARDT, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge SCHROEDER; Special Concurrence by Judge REINHARDT; Dissent by Judge CALLAHAN.

OPINION

REINHARDT, Circuit Judge:¹

This case, to which the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply, returns to us following remand to the Arizona state court to conduct an Atkins evidentiary hearing. After that hearing the state trial court denied Smith's Atkins claim, and the Arizona Court of Appeal denied special action relief, and the Arizona Supreme Court denied Smith's petition for review. The district court then found Smith's Atkins claim without merit and denied his petition for a writ of habeas corpus. We now hold that Smith is intellectually disabled under Atkins, and we reverse.²

I. FACTUAL AND PROCEDURAL BACKGROUND³

In 1982, Robert Smith was convicted in Arizona state court of kidnapping, sexual assault, and murder and sentenced to death. Lambright v. Stewart, 167 F.3d 477, 479 (9th Cir.1999), reh'g granted, vacated, 177 F.3d 901 (9th Cir.1999), rev'd, en banc, 191 F.3d 1181 (9th Cir.1999). On June 20, 2002, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that the execution of intellectually disabled criminals constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment.⁴ Under Atkins, if Smith was intellectually disabled at the time he committed the crime or at the time of his trial, he may not be executed. We suspended federal habeas proceedings, ordered supplemental briefing and remanded to the state court to determine whether Smith was intellectually disabled and thus ineligible for execution under Atkins.

The Pima County Superior Court reopened discovery and held a two-day evidentiary hearing on October 29 and November 1, 2007. The court heard testimony by Dr. Thomas Thompson, a neuropsychologist and prescribing psychologist selected by Smith, who opined that there is a very high probability that Smith was intellectually disabled at the time the crime was committed in 1980. The court also heard testimony from Dr. Sergio Martinez, a psychologist selected by the State, who stated that there is a high degree of probability that Smith was not intellectually disabled in 1980. The parties entered numerous exhibits into evidence, including the deposition transcripts of twelve lay witnesses who described their observations of Smith as a child or young adult.

Following the hearing, the Pima County Superior Court found on March 27, 2008, that Atkins did not preclude Smith's execution. The Arizona Court of Appeals denied special action relief later that year, Smith v. Kearney, No. 2 CA–SA 2008–0019, 2008 WL 2721155 (Ariz.Ct.App. July 11, 2008), and the Arizona Supreme Court denied Smith's petition for review. In September 2010, we remanded this case to the district court for the limited purpose of considering Smith's Atkins claim. The district court denied the claim in December 2012. Smith timely appealed.

II. ANALYSIS

A. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. §§ 1291and 2253. Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir.2011). We review de novo the federal district court decision denying Smith's 28 U.S.C. § 2254habeas petition. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001).

Because Smith filed his federal habeas petition prior to AEDPA's April 24, 1996 effective date, pre-AEDPA standards govern our review even though Smith filed amended petitions subsequent to AEDPA's effective date. See Sivak, 658 F.3d at 905(applying the pre-AEDPA standard of review where initial petition was filed prior to AEDPA's effective date and amended petitions were filed following AEDPA's enactment); Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir.2010)(same); see also Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)(holding that Congress intended AEDPA to apply "only to such cases as were filed after [AEDPA's] enactment").

Under pre-AEDPA law, state court factual findings are entitled to a presumption of correctness, subject to eight exceptions enumerated in the previous version of 28 U.S.C. § 2254(d). Sivak, 658 F.3d at 905–06. Among the exceptions to the rule regarding a presumption of correctness is the following: the state court's "factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d)(8). Because the parties agree that whether Smith is intellectually disabled is a question of fact, we assume for purposes of this opinion that such is the case.⁵ The presumption of the correctness also does not apply if the factual determination is based on the application of constitutionally impermissible legal principles. Lafferty v. Cook, 949 F.2d 1546, 1551 n. 4 (10th Cir.1991).

B. Legal Standard Governing Determination of Intellectual Disability Under Arizona Law

In 2001, one year before Atkins was decided, the Arizona legislature enacted a statute prohibiting the execution of intellectually disabled persons and creating a process by which capital defendants are evaluated for intellectual disability. Ariz.Rev.Stat. Ann. § 13–703.02(2001), 2001 Ariz. Sess. Laws, Ch. 260, § 2; State v. Grell (Grell I ), 205 Ariz. 57, 66 P.3d 1234, 1240 (2003). Under the version of the statute in effect at the time of Smith's Atkins hearing in 2007, the procedures for evaluating a defendant were automatically triggered upon the State's filing a notice of intent to seek the death penalty. Ariz.Rev.Stat. Ann. § 13–703.02(B)(2006), as amended by 2006 Ariz. Sess. Laws, Ch. 55, § 1.⁶ The statute provides that the burden of proving intellectual disability lies with the capital defendant who must prove his disability by "clear and convincing evidence."

Ariz.Rev.Stat. Ann. § 13–703.02(G).

The Arizona statute defines "mental retardation" as containing three elements: (1) "significantly subaverage general intellectual functioning" and (2) concurrent "significant impairment in adaptive behavior," (3) "where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen." Ariz.Rev.Stat. Ann. § 13–703.02(K)(3). "Significantly subaverage general intellectual functioning" is defined as "a full scale intelligence quotient [IQ] of seventy or lower." Ariz.Rev.Stat. Ann. § 13–703.02(K)(5). "Adaptive behavior" is defined as "the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant's age and cultural group." Ariz.Rev.Stat. Ann. 13–703.02(K)(1).

Under Arizona's procedures for determining intellectual disability, the court appoints a prescreening psychological expert to determine the defendant's IQ "using current community, nationally and culturally accepted intelligence testing procedures." Ariz.Rev.Stat. Ann. § 13–703.02(B). If the expert determines that the defendant's IQ is above 75, "the notice of intent to seek the death penalty shall not be dismissed on the ground that the defendant has mental retardation." Ariz.Rev.Stat. Ann. § 13–703.02(C). If the IQ score is 75 or less, however, the court will appoint additional experts in consultation with the parties to prepare reports regarding whether the defendant is intellectually disabled. Ariz.Rev.Stat. Ann. § 13–703.02(D), (E). If at this point all IQ test scores are above 70, the defendant remains eligible for the death penalty. Ariz.Rev.Stat. Ann. § 13–703.02(F).

If the testing demonstrates that the defendant's IQ score is equal to or less than 70, however, the court holds a hearing at which "the defendant has the burden of proving mental retardation by clear and convincing evidence." Ariz.Rev.Stat. Ann. § 13–703.02(G). Under Arizona law, "[c]lear and convincing evidence is that which may persuade that the truth of the contention is 'highly probable.' " In Re Neville, 147 Ariz. 106, 708 P.2d 1297, 1302 (1985)(en banc). A determination by the court that the defendant's IQ is 65 or below "establishes a rebuttable presumption that the defendant has mental retardation." Ariz.Rev.Stat. Ann. § 13–703.02(G). However, " '[t]he presumption of mental retardation based on the IQ scores vanishes ... if the State presents evidence that calls into question the validity of the IQ scores or tends to establish that [the] defendant does not otherwise meet the statutory definition of mental retardation.' " State v. Boyston, 231 Ariz. 539, 298 P.3d 887, 895 (2013)(quoting State v. Arellano, 213 Ariz. 474, 143 P.3d 1015, 1019 (2006)); see Arellano, 143 P.3d at 1018("A rebuttable presumption, however, 'vanishes when the state provides contradictory evidence.' " (citation omitted)). " 'At that point, the IQ scores serve as evidence of mental retardation, to be considered by the trial court with all other evidence presented.' " Boyston, 298 P.3d at 895(quoting Arellano, 143 P.3d at 1019).

Smith did not have the benefit of this procedural framework at the time of his trial because the trial took place nearly twenty years before the procedural framework's adoption. The Arizona Supreme Court has held that in cases presenting Atkins claims in such a post-trial posture, courts should use Atkins as a guide and apply the pre-trial...