In re John Ruthell Henry: Divided Panel Rejects Condemned Murderer's Last-Minute Request to File a Habeas Petition Based on Hall v. Florida, Which Panel Concludes is Not Retroactively Applicable in Issue of Nationwide First Impression

In re John Ruthell Henry, No. 14-12623, from MDFla

 

Majority opinion by Circuit Judge Marcus, joined by Circuit Judge Pryor: In the third published execution appeal opinion issued the night of June 17, 2014, Judge Marcus denied the petitioner's request for relief (Judge Marcus was a member of the panels for all three opinions). 

 

This petitioner sought to stay his execution under the recently decided Supreme Court decision in Hall v. Florida, 134 S. Ct. 1986 (2014), claiming that he was mentally disabled and could not be executed.  The petitioner killed his estranged wife, kidnapped his wife’s son and then killed the five-year old child. 

The majority described Hall as standing for the proposition that a State cannot execute a person whose IQ test score falls within the test’s margin of error unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.  Essentially, according to the panel, Hall allows an inmate who scores within the range of error on an IQ test (i.e. 70-75) to present additional evidence regarding difficulties in adaptive functioning.   The petitioner had scored a 78 on a test in 1986.

Based on this test score and Hall, he sought leave to file a second/successive petition for a writ of habeas corpus in the district court to further address his intellectual disability.  The majority concluded that he did not meet the second/successive petition standard because he did not argue actual innocence, and his claim was not based on a new rule of constitutional law made retroactive to cases on collateral review. (At this point the majority dropped a footnote to quibble with the dissent: the dissent argued there was no need to address retroactivity, but the panel stated that “we do not see how we can fairly avoid addressing the stringent statutory requirements erected by Congress” and  noted that they could find no circuit case where an appellate court avoided addressing the retroactivity requirement and simply decided whether the applicant put forward a sufficient showing of possible merit. The majority also made reference to the fact that the petition was not filed until June 14, even though the execution was taking place nearly 29 years after the murder).

 

With respect to the retroactivity analysis, a case announces a new rule if the result was not dictated by precedent existing when the defendant’s conviction became final.  The majority concluded that Hall did announce a new rule of constitutional law.  However, the majority also concluded that this new rule was not retroactive to cases on collateral review: the Supreme Court must have held that the new rule is retroactively applicable to cases on collateral review. In a footnote, the majority went on to explain that it would find a rule retroactive only if the Supreme Court has clearly dictated that it is. Thus, since the rule was not retroactive, the filing of a successive petition was not authorized.

Moreover, even if it was retroactive, an applicant must show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in his successive petition, and the petitioner had not made such a showing.  Since the only IQ score in this case showed the petitioner had an IQ of 78, he did not fall within the 70-75 IQ range or lower which is a prerequisite for invoking Hall.  The majority chastised the dissent for suggesting that a defendant should still be allowed to present evidence about deficiencies in adaptive functioning regardless of his IQ score.

The panel denied his application for leave to file a second petition, and denied his motion for a stay of execution.

Dissent: Circuit Judge Martin.

 

First, the dissent argued that it was imprudent to decide a complicated retroactivity issue when it was unnecessary to do so, primarily because the majority’s decision that the petitioner could not show a reasonable likelihood of succeeding on his petition foreclosed his claim.  The dissent also argued that Hall: (1) may not have even announced a new rule at all (which is a slightly ridiculous conclusion); (2) is retroactive on collateral review because the post-conviction context of the review tells us that the Supreme Court intended its holding to apply to all cases on collateral review; and (3) is retroactive because it is a substantive rule that expands the class of persons who are categorically ineligible for the death penalty.  

 

The dissent also argued that the majority should not have relied on findings of the psychologists who evaluated the petitioner for competency to be executed (although the majority insisted it did not do so).

Note: As an indication of how far to the left Judge Martin is, the Supreme Court denied the petitioner’s request for a stay of execution without any noted dissent.