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Mere months after denying habeas relief to a mentally retarded inmate facing death, and weeks after that inmate's execution was put on hold for other reasons, the Eleventh Circuit faced another Atkins claim, this time from a man who was denied access to mental health experts.
Alonzo Burgess was tried and sentenced to death before the Supreme Court barred execution of the mentally retarded. His state court post-conviction proceedings happened while Atkins was pending, and whenever he requested either funding for mental health examinations or access to experts paid for by others, he was repeatedly denied.
Nonetheless, knowing that the Supreme Court was considering the issue of execution of the mentally retarded in Atkins, he argued, on the basis of the incomplete record, that imposing the death penalty would amount to cruel and unusual punishment (even though the evidence of intellectual disability on the record was sparse).
That strategy almost cost him his life.
The evidence of Burgess' retardation includes one I.Q. test, which measured 66, and the government expert's estimate of somewhere between 70 and 80, as well as the mixed evidence of adaptive behavior (he progressed through 9th grade, though he failed most of his special education courses, he worked as a welder in prison, but had little other vocational success, etc.).
The state courts initially refused to hear his arguments on the merits, finding that he had procedurally defaulted the mental retardation argument. The Alabama Court of Criminal Appeals disagreed with the procedural holding, but denied relief on the merits, finding that the government's estimate of a 70 to 80 IQ and the adaptive behavior evidence put him outside of the state's definition of retardation, which requires that the defendant:
"must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reach age 18)."
The district court, after ignoring a new expert's affidavit (finding, "to a reasonable degree of psychological certainty," that Burgess is mentally retarded) continued the state courts' behavior of refusing to allow an evidentiary hearing on the Atkins claim.
Their reason? Burgess had already raised the mental retardation claim throughout the state court appeals, and the Antiterrorism and Effective Death Penalty Act requires deference to state court's decision unless it "was contrary to, or involved an, unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
The Eleventh Circuit reversed, finding that the state (and Federal district) courts had done exactly that -- made an unreasonable decision that ran against the principles of clearly-established law as expressed in Atkins.
The Alabama Court of Criminal Appeals ignored one expert's measure of an IQ of 66. Instead, they based their holding on the estimate of another expert that said 70 to 80, and possibly lower. They considered evidence that he adapted well in prison, but ignored poor school performance from a young age (failed 1st grade, scored in the lowest 3 to 4 percent nationally on standardized tests, etc.).
Most importantly, however, is the fact that he never got a chance to prove his disability. At the time of trial, Atkins was years away. Presenting evidence of mental retardation was typically seen as a bad idea, as it showed future dangerousness -- an aggravating factor. On appeal, the courts repeatedly denied access to experts, funding, or an evidentiary hearing.
With no means of proving his claim, he had no choice but to argue on the basis of that cold record. It would be manifestly unjust, or in AEDPA terms, "unreasonable," to hold that he had defaulted his claim, or to decide his mental capabilities on the basis of that record.
The Eleventh Circuit remanded the case for an evidentiary hearing on the matter.