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11th Circuit Grants Stay of Execution to Mentally Retarded Inmate

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By William Peacock, Esq. on February 21, 2013 12:01 PM

Thirty minutes from death, convicted murderer Warren Lee Hill's life was spared. It's the latest development in the case that has made multiple trips to state and federal appeals courts since its inception in 1990, when he murdered a fellow prisoner.

He lives to fight another day thanks to a last minute intervention by both the Eleventh Circuit and a state appeals court, reports the Atlantic. The state court wanted to take another look at Georgia's lethal injection procedures. The Eleventh Circuit may be revisiting their decision last year, and an issue of debate since 2002's United States Supreme Court decision in Atkins v. Virginia: execution of the mentally retarded.

In 2000, the state's medical experts refused to diagnose him as mentally retarded. Georgia requires the inmate to show that he is mentally retarded beyond a reasonable doubt - the toughest standard in the country.

Last year, the Eleventh Circuit showed AEDPA deference to the State of Georgia and the state's Supreme Court, holding that the state's adherence to its own "beyond a reasonable doubt" standard did not run contrary to Atkins v. Virginia.

At 6:30pm yesterday, the Eleventh Circuit stepped back in after the 3 medical experts that refused to diagnose Hill as mentally retarded 13 years ago reversed course and changed their views. All three now believe that Hill, who has an I.Q. of 70, qualifies as mentally retarded. Hill's four experts already testified to such a diagnosis, but at the time, state courts concluded that he had met the burden by a preponderance of the evidence, not beyond a reasonable doubt.

Even with the change in medical opinion, and the now-unanimous diagnosis, both the state clemency board and the Supreme Court of Georgia both denied a stay for Hill on Tuesday.

The stay by the Eleventh Circuit won't guarantee that his life is spared. Hill's counsel has 15 days to file a brief on whether he can satisfy the requirements found in 28 U.S.C. § 2244(b)(2) for leave to file a second or successive petition. More specifically, the brief will have to address:

  1. Whether Hill could have previously discovered the factual predicate for the claim through the exercise of due diligence;
  2. Whether he can show that the facts underlying his 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 him guilty of the underlying offense;
  3. Whether Hill's claim of mental retardation is cognizable as a claim of actual innocence under 28 U.S.C. § 2244(b)(2)(B)(ii); and
  4. Whether Hill's claim in this application for a successive petition was presented in a prior application.

The state will then have 10 days to file a response, followed by 5 days for Hill to reply with a second brief.

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