                                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                           NOVEMBER 22, 2011
                                No. 08-15444                  JOHN LEY
                          ________________________             CLERK


                       D. C. Docket No. 04-00151-CV-WLS

WARREN LEE HILL, JR.,



                                                           Petitioner-Appellant,

                                    versus

CARL HUMPHREY,

                                                          Respondent-Appellee.


                          ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________
                            (November 22, 2011)


Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and BLACK,
Circuit Judges.

HULL, Circuit Judge:
       In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully

alleged that he is mentally retarded and ineligible for the death penalty. Hill, a

Georgia death row inmate, was able to raise this claim in 1996, well before the

Atkins decision1 was issued in 2002, because in 1988 the State of Georgia led the

nation by abolishing the death penalty for mentally retarded defendants. See

O.C.G.A. § 17-7-131 (1988 statute prohibiting death penalty where defendant

proves mental retardation beyond reasonable doubt).

       Although Georgia already prohibited executing mentally retarded defendants

at the time of Hill’s trial, direct appeal, and initial state habeas petition, Hill did not

claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill

amended his state habeas petition to allege mental retardation for the first time, and

he later claimed that Georgia’s reasonable doubt standard of proof in O.C.G.A. §

17-7-131 violated the Eighth Amendment.

       The national consensus against executing the mentally retarded that gave

birth to the Atkins prohibition was a consensus that Georgia started by enacting the

very same statute — § 17-7-131(c)(3), (j) — that petitioner Hill now claims

violates Atkins by using a reasonable doubt standard. In Hill’s state habeas appeal



       1
        Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) (recognizing national
consensus against execution of mentally retarded persons, and concluding such executions
violated Eighth Amendment’s ban on cruel and unusual punishments).

                                              2
in 2003, and after Atkins, the Georgia Supreme Court held that the reasonable

doubt standard in § 17-7-131 comports with the Eighth and Fourteenth

Amendments. Head v. Hill, 587 S.E.2d 613, 621-22 (Ga. 2003) (“Hill III”). The

Georgia Supreme Court recently reaffirmed its holding in Hill III that Georgia’s

beyond a reasonable doubt standard for proving mental retardation is

constitutional. See Stripling v. State, 711 S.E.2d 665, 668 (Ga. 2011) (“We have

previously addressed this very issue, and we now reiterate our prior holding that

Georgia’s beyond a reasonable doubt standard is not unconstitutional.”) (citing Hill

III, 587 S.E.2d at 620-22).

       In this appeal under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), codified in 28 U.S.C. § 2254, the sole legal issue before this en

banc court is:

       Pursuant to AEDPA’s § 2254(d)(1), is the Georgia Supreme Court’s
       decision in Head v. Hill, 587 S.E.2d 613, 620-22 (Ga. 2003)—that
       Georgia’s statutory reasonable doubt standard for capital defendants’
       mental retardation claims does not violate the Eighth
       Amendment—contrary to clearly established federal law, as
       announced in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242
       (2002)?[2]

       In § 2254 cases, federal courts do not review state courts’ decisions de novo.

Rather, Congress restricted federal review to whether the state court’s decision is

       2
        The Eighth Amendment issue is the sole question the parties were directed to brief, and
we precisely quote the issue from the briefing instructions.

                                               3
“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” as of the

date of the state court decision. 28 U.S.C. § 2254(d)(1) (emphasis added).

Discussing § 2254(d)(1) specifically, and reversing federal circuit courts for

granting habeas relief, the Supreme Court has admonished: “A legal principle is

‘clearly established’ within the meaning of this provision only when it is embodied

in a holding of this [Supreme] Court.” Thaler v. Haynes, 559 U.S. —, 130 S. Ct.

1171, 1173 (2010); see Berghuis v. Smith, 559 U.S. —, 130 S. Ct. 1382, 1392,

1395-96 (2010). AEDPA established a “highly deferential standard for evaluating

state-court rulings.” Renico v. Lett, 559 U.S. —, 130 S. Ct. 1855, 1862 (2010).

      As the Georgia Supreme Court correctly noted, there is no holding in Atkins,

or any Supreme Court decision, invalidating a reasonable doubt standard for

mental retardation claims. Just the opposite is true. Atkins expressly left it for the

states to develop the procedural and substantive guides for determining who is

mentally retarded. Bobby v. Bies, 556 U.S. 825, —, 129 S. Ct. 2145, 2150 (2009).

And in the 219-year history of our nation’s Bill of Rights, no United States

Supreme Court decision has ever suggested, much less held, that a burden of proof

standard on its own can so wholly burden an Eighth Amendment right as to




                                           4
eviscerate or deny that right.3 Because there is no specific, much less “clearly

established” by Supreme Court precedent, federal rule regarding the burden of

proof for mental retardation claims, AEDPA mandates that this federal court leave

the Georgia Supreme Court decision alone—even if we believe it incorrect or

unwise—and affirm in this case. See Harrington v. Richter, 562 U.S. —, 131 S.

Ct. 770, 786 (2011) (“It is not an unreasonable application of clearly established

Federal law for a state court to decline to apply a specific legal rule that has not

been squarely established by this Court.” (brackets and quotation marks omitted));

Lett, 559 U.S. at —, 130 S. Ct. at 1862 (“We have explained that ‘an unreasonable

application of federal law is different from an incorrect application of federal

law.’”).

                                    I. BACKGROUND

       It is important to the burden of proof issue that the whole story of this case

be told. So we start at the beginning.

A.     Mental Retardation and the Death Penalty

       In 1988, the Georgia General Assembly passed the nation’s first statute



       3
        Atkins is not based on the Fourteenth Amendment’s Due Process Clause and a
defendant’s procedural right to a fair criminal trial, but only on the Eighth Amendment’s cruel
and unusual punishment prohibition. The narrow question before the en banc court thus
concerns only the Eighth Amendment and AEDPA’s highly deferential review of state court
decisions.

                                                5
prohibiting the execution of mentally retarded persons. Specifically, O.C.G.A. §

17-7-131(c)(3) and (j) state:

       [A criminal] defendant may be found “guilty but mentally retarded” if
       the jury, or court acting as trier of facts, finds beyond a reasonable
       doubt that the defendant is guilty of the crime charged and is mentally
       retarded. If the court or jury should make such finding, it shall so
       specify in its verdict.
       ...
       In the trial of any case in which the death penalty is sought which
       commences on or after July 1, 1988, should the judge find in
       accepting a plea of guilty but mentally retarded or the jury or court
       find in its verdict that the defendant is guilty of the crime charged but
       mentally retarded, the death penalty shall not be imposed and the
       court shall sentence the defendant to imprisonment for life.

O.C.G.A. § 17-7-131(c)(3), (j) (emphasis added).

       One year later, in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989),

the United States Supreme Court concluded that the Eighth Amendment did not

prohibit the execution of the mentally retarded.4 The Supreme Court noted that, as

of that time, “[o]nly one State . . . currently bans execution of retarded persons who

have been found guilty of a capital offense.” Id. at 334, 109 S. Ct. at 2955 (citing

Georgia’s O.C.G.A. § 17-7-131(j)).


       4
        Shortly after the passage of O.C.G.A. § 17-7-131(c)(3) and (j), the Georgia Supreme
Court upheld a state constitutional challenge to the death penalty as applied to mentally retarded
defendants who were tried before the effective date of the statute. Fleming v. Zant, 386 S.E.2d
339 (Ga. 1989), superseded in part by statute, Turpin v. Hill, 498 S.E.2d 52, 53-54 (Ga. 1998).
Thus, thirteen years before Atkins in 2002, the Georgia Supreme Court concluded that executing
a mentally retarded defendant constitutes cruel and unusual punishment as defined in the
Georgia Constitution. Id. at 342.

                                                6
      Then in 2002, the United States Supreme Court overruled Penry in Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), and declared that the Eighth

Amendment’s “cruel and unusual punishment” provision prohibited the execution

of mentally retarded offenders. Id. at 315-21, 122 S. Ct. at 2249-52.

      Although the Supreme Court in Atkins recognized a national consensus

against executing mentally retarded persons, it said that there was a notable lack of

consensus on how to determine which offenders are mentally retarded:

      To the extent there is serious disagreement about the execution of
      mentally retarded offenders, it is in determining which offenders are
      in fact retarded. . . . Not all people who claim to be mentally retarded
      will be so impaired as to fall within the range of mentally retarded
      offenders about whom there is a national consensus.

Atkins, 536 U.S. at 317, 122 S. Ct. at 2250. The Supreme Court added that

although the states’ “statutory definitions of mental retardation are not identical,

[they] generally conform to the clinical definitions” established by the American

Association on Mental Retardation (“AARM,” now known as the American

Association on Intellectual and Developmental Disabilities) and the American

Psychiatric Association (“APA”). Atkins, 536 U.S. at 317 n.22, 122 S. Ct. at 2250

n.22. The AARM’s and APA’s definitions of mental retardation contain three

basic requirements: (1) significantly subaverage general intellectual functioning, as

reflected by an IQ generally about 70 or below; (2) limitations in adaptive


                                           7
functioning; and (3) onset before age 18. Id. at 308 n.3, 122 S. Ct. at 2245 n.3.

      In Atkins, the Supreme Court was careful not to fix the burden of proof or to

impose rigid definitions of mental retardation. Instead, the Court left it to the

states to develop “appropriate” procedures for mental retardation determinations:

      As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S. Ct.
      2595, 91 L.Ed.2d 335 (1986), with regard to insanity, we leave to the
      States the task of developing appropriate ways to enforce the
      constitutional restriction upon their execution of sentences.

Id. (quotation marks and brackets omitted). As the Georgia Supreme Court noted

in Hill III, the Supreme Court in Atkins “made clear that it was entrusting the states

with the power to develop the procedures necessary to enforce the newly

recognized federal constitutional ban.” Hill III, 587 S.E.2d at 620 (citing Atkins,

536 U.S. at 317, 122 S. Ct. at 2250).

      Later, in Bobby v. Bies, 556 U.S. 825, 129 S. Ct. 2145 (2009), the Supreme

Court pointed out that Atkins “did not provide definitive procedural or substantive

guides for determining when a person who claims mental retardation ‘will be so

impaired as to fall within Atkins’ compass.’” 556 U.S. at ___, 129 S. Ct. at 2150

(brackets omitted). In its 2009 Bies decision, the Supreme Court repeated that

Atkins had “left to the States the task of developing appropriate ways to enforce

the constitutional restriction” on executing the mentally retarded. Id. (brackets

omitted).

                                           8
      We turn to how the Georgia reasonable doubt statute and Atkins intersect

with Hill’s case.

B.    Facts and Procedural History

      In 1990, while Hill was serving a life sentence for the murder of his

girlfriend, he murdered another person in prison. Using a nail-studded board, Hill

bludgeoned a fellow inmate to death in his bed. As his victim slept, “Hill removed

a two-by-six board that served as a sink leg in the prison bathroom and forcefully

beat the victim numerous times with the board about the head and chest as

onlooking prisoners pleaded with him to stop.” Hill III, 587 S.E.2d at 618. Hill

“mocked the victim as he beat him.” Id. Even locked up in jail for one murder,

Hill continued to kill.

      A jury unanimously convicted Hill of malice murder and unanimously

imposed a death sentence. See Hill v. State, 427 S.E.2d 770, 774 (Ga. 1993) (“Hill

I”). Despite the fact that O.C.G.A. § 17-7-131(c)(3) and (j) already exempted

mentally retarded persons from execution at the time of Hill’s trial, Hill did not

assert at trial that he was mentally retarded. To the contrary, Hill called clinical

psychologist William Dickinson, who testified that Hill’s IQ was 77 and he was

not mentally retarded.

      On direct appeal in 1993, the Georgia Supreme Court affirmed Hill’s malice


                                           9
murder conviction and death sentence. Hill I, 427 S.E.2d at 772. On direct appeal,

Hill made no claim of mental retardation.

       In 1994, Hill filed a state habeas petition. Again he made no mental

retardation claim. But five years after trial, Hill amended his petition to allege,

inter alia, that he is mentally retarded. In 1997, the state habeas court granted Hill

a writ of habeas corpus for the limited purpose of conducting a jury trial on Hill’s

mental retardation claim, using a preponderance of the evidence standard.

       The State appealed, and the Georgia Supreme Court reversed. Turpin v.

Hill, 498 S.E.2d 52 (Ga. 1998) (“Hill II”).5 The Georgia Supreme Court concluded

that § 17-7-131’s requirement that a defendant prove his mental retardation beyond

a reasonable doubt applies to all defendants tried after the statute’s effective date in

1988. Id. at 53-54. The Georgia Supreme Court remanded Hill’s case to the state

habeas court to determine, without a jury, whether Hill could establish under the

reasonable doubt standard that he is mentally retarded. Id.

       On remand, the state habeas court ordered mental evaluations, conducted an


       5
          The Georgia Supreme Court noted that (1) Hill was tried three years after the 1988
effective date of § 17-7-131(c)(3) and (j), and (2) Hill never alleged (either at trial in 1991 or on
direct appeal in 1993) that he was mentally retarded. Hill II, 498 S.E.2d at 52. Therefore, Hill’s
claim was procedurally defaulted. Id. Nevertheless, the Georgia Supreme Court concluded that,
to the extent that Hill’s mental retardation claim challenged the imposition of the death penalty,
it fell within Georgia’s “miscarriage of justice” exception to its procedural default rules. Id. at
53. Thus, Georgia has allowed death-sentenced inmates to raise the mental retardation bar in
collateral proceedings even if procedurally defaulted.

                                                 10
evidentiary hearing, and then denied all of Hill’s claims. In a May 2002 order, the

state habeas court concluded that Hill had not proven he was mentally retarded

under the reasonable doubt standard. The state habeas court employed the

definition of mental retardation in O.C.G.A. § 17-7-131(a)(3), which provides that

“mentally retarded” means (1) having “significantly subaverage general intellectual

functioning,” (2) “resulting in or associated with impairments in adaptive

behavior,” (3) “which manifested during the developmental period.” Georgia’s

definition essentially tracks the AARM and APA definitions mentioned in Atkins.6

       As to the first prong, the state habeas court found that Hill established

beyond a reasonable doubt his “significantly subaverage general intellectual

functioning.”7

       6
         In Stripling v. State, 401 S.E.2d 500 (Ga. 1991), the Georgia Supreme Court stated that
the “significantly subaverage general intellectual functioning” prong of the mental retardation
definition “is generally defined as an IQ of 70 or below,” but that “an IQ test score of 70 or
below is not conclusive” because “an IQ score is only accurate within a range of several points,
and for a variety of reasons, a particular score may be less accurate.” Id. at 504. Similarly, in
Atkins, the Supreme Court noted that an IQ score between 70 and 75 “is typically considered the
cutoff IQ score for the intellectual function prong of the mental retardation definition.” Atkins,
536 U.S. at 309 n.5, 122 S. Ct. at 2245 n.5. The Atkins Court also stated, “‘[m]ild’ mental
retardation is typically used to describe people with an IQ level of 50–55 to approximately 70.”
Id. at 308 n.3, 122 S. Ct. at 2245 n.3.
       7
        Before trial in 1991, clinical psychologist Dickinson evaluated Hill using the Wechsler
Adult Intelligence Scale, Revised (“WAIS-R”) test. Hill’s full-scale IQ score on the WAIS-R
was 77. Dickinson also administered to Hill in 1991 the Peabody Picture Vocabulary Test
(“PPVT”), on which Hill earned an estimated IQ score of 74. Records show Hill took the PPVT
when he was in second grade and scored a 75.
       In 1997, in Hill’s state habeas proceedings, Dr. Daniel Grant evaluated Hill using the
Stanford-Binet Intelligence Test, and Hill received an IQ score of 72. In 2000, Dr. Jethro
Toomer administered the Wechsler Adult Intelligence Scale III (“WAIS-III”) to Hill. Hill’s full-

                                                11
       As to the second prong, however, the state habeas court found Hill failed to

show beyond a reasonable doubt that he had “impairments in adaptive behavior”

such as “communication, self-care, home living, social/interpersonal skills, use of

community resources, self direction, functional academic skills, work, leisure,

health, and safety.” The state habeas court noted Hill’s (1) extensive work history

and “apparent ability to function well in such employment,” (2) disciplined savings

plans to purchase cars and motorcycles, (3) military service, (4) social life, (5)

weak but sufficient writing skills, (6) ability to care for himself in home living

except in periods of stress, and (7) health problems with seizures. The state habeas

court did not discuss the third prong of the mental retardation test, which is onset

before age 18.

        After the Supreme Court issued Atkins in June 2002, Hill moved the state

habeas court to reconsider its denial in light of Atkins. Granting Hill’s motion, the

state habeas court in November 2002 concluded that a preponderance of the

evidence standard should be applied to Hill’s mental retardation claim. Although

the state habeas court did not retreat from its earlier finding that Hill failed to show


scale IQ score on the WAIS-III was 69.
        Hill produced an affidavit from Dickinson in 2000 stating that his earlier finding of no
mental retardation was erroneous because it was based on inadequate information, and his
original IQ testing of Hill led to an inaccurate and misleading result. See Hill II, 498 S.E.2d at
52 n.1. In this affidavit, Dickinson opined that the 1991 WAIS-R overestimated Hill’s IQ by 3-
7 points; given Dickinson’s original score of 77, this still results in a range of 70-74.

                                                12
he was mentally retarded under the reasonable doubt standard, the court stated it

would find Hill to be mentally retarded under the preponderance of evidence

standard.

       The State appealed. In 2003 the Georgia Supreme Court again reversed the

state habeas court. See Hill III, 587 S.E.2d at 618. The Georgia Supreme Court

concluded: (1) Hill could have had a jury trial on mental retardation under

O.C.G.A. § 17-7-131(c)(3) at the time of his original guilt trial in 1991 if he had

asked for one, but he waived that right; (2) Hill was only entitled to have the state

habeas court—not a jury—assess his mental retardation claim;8 (3) Atkins applied

retroactively, but Atkins entrusted to the states the task of developing procedures to

enforce the ban on executing the mentally retarded; (4) “nothing in Atkins instructs

the states to apply any particular standard of proof to mental retardation claims”;

and (5) the Supreme Court’s decision in Leland v. Oregon, 343 U.S. 790, 72 S. Ct.

1002 (1952), which upheld as constitutional the reasonable doubt standard for

insanity claims, supported Georgia’s reasonable doubt standard in Hill’s case. Hill

III, 587 S.E.2d at 619-21.

       The Georgia Supreme Court concluded that Georgia’s reasonable doubt



       8
         Hill does not complain about having the state habeas judge, as opposed to a jury, decide
his mental retardation claim, given that he had a statutory right to raise the issue in his initial
jury trial but he did not raise it until five years later, in state habeas proceedings.

                                                13
standard was constitutionally acceptable for mental retardation claims. Id. The

Georgia Supreme Court explained that O.C.G.A. § 17-7-131’s reasonable doubt

standard reflected an acceptable state legislative choice to define as mentally

retarded those defendants who are able to prove their mental retardation beyond a

reasonable doubt:

      [A] higher standard of proof serves to enforce the General Assembly’s
      chosen definition of what degree of impairment qualifies as mentally
      retarded under Georgia law for the purpose of fixing the appropriate
      criminal penalty that persons of varying mental impairment should
      bear for their capital crimes . . . . [T]he Court in Atkins recognized
      that, despite a “national consensus” against executing mentally
      retarded persons, there might be “serious disagreement . . . in
      determining which offenders are in fact retarded.” In view of the lack
      of national consensus as to which mentally impaired persons are
      constitutionally entitled to an exemption from death sentences, we
      conclude that the Georgia General Assembly . . . was originally and
      remains within constitutional bounds in establishing a procedure for
      considering alleged mental retardation that limits the exemption to
      those whose mental deficiencies are significant enough to be provable
      beyond a reasonable doubt.

Id. at 622 (citations omitted). The Georgia Supreme Court vacated the state habeas

court’s November 2002 order (granting Hill’s motion for reconsideration and

finding that Hill had established he was mentally retarded by a preponderance of

the evidence). Id. at 623. The Georgia Supreme Court remanded Hill’s case to the

state habeas court for entry of an order denying Hill’s state habeas petition. See id.

at 618, 622-23. On remand, the state habeas court reinstated its May 2002 order,


                                          14
finding Hill failed to prove mental retardation beyond a reasonable doubt. The

state habeas court’s final order does not contain a preponderance of the evidence

finding either way.

      In 2004, Hill filed a § 2254 petition, alleging that Georgia’s reasonable

doubt standard for mental retardation violates the Eighth and Fourteenth

Amendments. The district court denied relief. Hill appealed. A panel of this

Court reversed, and we granted en banc rehearing and vacated the panel opinion.

Hill v. Schofield, 625 F.3d 1313 (11th Cir.), vacating Hill v. Schofield, 608 F.3d

1272 (11th Cir. 2010). As stated earlier, the sole question before the en banc Court

is whether the Georgia Supreme Court’s decision in Hill III—holding that

Georgia’s reasonable doubt standard does not violate the Eighth Amendment— “is

contrary to clearly established federal law, as announced in Atkins.”

                          II. STANDARD OF REVIEW

      Hill’s § 2254 petition and appeal are governed by AEDPA. Owen v. Sec’y,

Dep’t of Corr., 568 F.3d 894, 907 (11th Cir. 2009), cert. denied, 130 S. Ct. 1141

(2010). “Under AEDPA, our review of a final state habeas decision is ‘greatly

circumscribed and is highly deferential to the state courts.’” Payne v. Allen, 539

F.3d 1297, 1312 (11th Cir. 2008) (quoting Crawford v. Head, 311 F.3d 1288, 1295

(11th Cir. 2002)). Under 28 U.S.C. § 2254(d)(1), as amended by AEDPA, a state


                                         15
prisoner cannot obtain federal habeas relief unless he can show the decision of the

state court “was contrary to, or involved an unreasonable application of, clearly

established Federal law . . . .” 28 U.S.C. § 2254(d)(1) (emphasis added). In this

case, the only question is whether the Georgia Supreme Court’s decision—that the

reasonable doubt standard for mental retardation claims is constitutional—is

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” Id.9

       In 2010-11 alone, the Supreme Court has reversed circuit appellate courts in

ten decisions for not adhering to AEDPA’s requirements. See Bobby v. Dixon,

565 U.S. —, — S.Ct. —, 2011 WL 5299458, No. 10-1540 (U.S. Nov. 7, 2011);

Bobby v. Mitts, 563 U.S. —, 131 S. Ct. 1762 (2011); Cullen v. Pinholster, 563

U.S. —, 131 S. Ct. 1388 (2011); Felkner v. Jackson, 562 U.S. —, 131 S. Ct. 1305

(2011); Premo v. Moore, 562 U.S. —, 131 S. Ct. 733 (2011); Richter, 131 S. Ct.

770 (2011); Lett, 130 S. Ct. 1855 (2010); Berghuis, 130 S. Ct. 1382 (2010);

Haynes, 130 S. Ct. 1171 (2010); Smith v. Spisak, 558 U.S. —, 130 S. Ct. 676

(2010). We briefly review a few of those decisions.

       Starting with Haynes, the Supreme Court instructed: “A legal principle is



       9
         We review de novo the legal conclusions reached by the district court in denying Hill’s §
2254 petition. Owen, 568 F.3d at 907. We review the district court’s factual findings for clear
error, and mixed questions of law and fact de novo. Id.

                                               16
‘clearly established’ within the meaning of this provision only when it is embodied

in a holding of this Court.” Haynes, 130 S. Ct. at 1173 (citing Carey v. Musladin,

549 U.S. 70, 74, 127 S. Ct. 649, 653 (2006); Williams v. Taylor, 529 U.S. 362,

412, 120 S. Ct. 1495, 1523 (2000)) (emphasis added); see also Owen, 568 F.3d at

907 (“‘Clearly established Federal law’ means the holdings, not the dicta, of the

United States Supreme Court.”).

      In Haynes, the Supreme Court unanimously reversed the Fifth Circuit’s

decision, which had concluded that a state court judge in ruling on a Batson

challenge must reject a demeanor-based explanation for a challenge unless that

judge personally observed and recalls the aspect of the prospective juror’s

demeanor on which the explanation is based. Haynes, 130 S. Ct. at 1172. After

the Texas appellate court denied state habeas relief, the Fifth Circuit concluded that

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and Snyder v. Louisiana,

552 U.S. 472, 128 S. Ct. 1203 (2008), “clearly established” that rule and on that

basis granted federal habeas relief. Id. at 1173-74. In Snyder, the Supreme Court

actually had (1) stressed that when the explanation for a peremptory challenge

“invoke[s] a juror’s demeanor,” the trial judge’s “first hand observations” are of

“great[] importance,” and (2) pointed out that the peremptory challenge (based on

nervousness) was not exercised until some time after the juror was questioned and


                                          17
the state trial judge might not have recalled that juror’s demeanor. Snyder, 552

U.S. at 477, 479, 128 S. Ct. at 1208-09. Despite Batson and Snyder, the Supreme

Court in Haynes concluded the Fifth Circuit “read far too much into those

decisions” and “no decision of this Court clearly establishes the categorical rule on

which the [Fifth Circuit] Court of Appeals appears to have relied.” Haynes, 130 S.

Ct. at 1172, 1175.

       A month later, in Berghuis v. Smith, the Supreme Court unanimously

reversed the Sixth Circuit’s decision, which had concluded that in determining

whether a jury venire was drawn from a fair cross-section of the community,

“courts should use the comparative disparity test to measure underrepresentation”

where the allegedly excluded group is small, and the defendant’s comparative

disparity statistics demonstrate that African-Americans’ representation in the

County Circuit Court venires is “unfair and unreasonable.” Berghuis, 130 S. Ct. at

1391 (citing Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir. 2008)). In granting

federal habeas relief after the Michigan Supreme Court had denied relief, the Sixth

Circuit relied on Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979).10

       10
          The Supreme Court in Duren set forth the following showing required for a prima facie
claim that a petit jury was not drawn from a fair cross-section of the community:
        In order to establish a prima facie violation of the fair-cross-section requirement, the
        defendant must show (1) that the group alleged to be excluded is a “distinctive”
        group in the community; (2) that the representation of this group in venires from
        which juries are selected is not fair and reasonable in relation to the number of such
        persons in the community; and (3) that this underrepresentation is due to systematic

                                               18
       Reversing the Sixth Circuit, the United States Supreme Court stated, “[O]ur

Duren decision hardly establishes—no less ‘clearly’ so—that Smith was denied his

Sixth Amendment right to an impartial jury drawn from a fair cross section of the

community.” Berghuis, 130 S. Ct. at 1392. The Supreme Court added: “[N]either

Duren nor any other decision of this Court specifies a method or test courts must

use to measure the representation of distinctive groups in jury pools.” Id. at 1393.

       In Lett, the Supreme Court again reversed a Sixth Circuit decision

concluding that the Michigan Supreme Court had unreasonably applied Supreme

Court precedent regarding the Double Jeopardy Clause. 130 S. Ct. at 1860. The

Supreme Court stated:

       We have explained that an unreasonable application of federal law is
       different from an incorrect application of federal law. Indeed, a
       federal habeas court may not issue the writ simply because that court
       concludes in its independent judgment that the relevant state-court
       decision applied clearly established federal law erroneously or
       incorrectly. Rather, that application must be objectively unreasonable.
       This distinction creates a substantially higher threshold for obtaining
       relief than de novo review. AEDPA thus imposes a highly deferential
       standard for evaluating state-court rulings and demands that
       state-court decisions be given the benefit of the doubt.

Id. at 1862 (citations and quotation marks omitted). The Supreme Court

emphasized that “AEDPA prevents defendants—and federal courts—from using



       exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364, 99 S. Ct. at 668.

                                                19
federal habeas corpus review as a vehicle to second-guess the reasonable decisions

of state courts.” Id. at 1866.

      Richter concerned a Ninth Circuit decision holding that the California

Supreme Court had unreasonably applied the Supreme Court’s Strickland v.

Washington ineffective-counsel test by not concluding that the petitioner’s trial

counsel was ineffective for failing to consult with blood-evidence experts. Richter,

131 S. Ct. at 783. In reversing, the Richter Court lectured the court of appeals on

the deference owed to state court decisions pursuant to § 2254(d)(1):

      A state court’s determination that a claim lacks merit precludes
      federal habeas relief so long as “fairminded jurists could disagree” on
      the correctness of the state court’s decision. Yarborough v. Alvarado,
      541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). . . .
      “[I]t is not an unreasonable application of clearly established Federal
      law for a state court to decline to apply a specific legal rule that has
      not been squarely established by this Court.” Knowles v. Mirzayance,
      556 U.S. —, —, 129 S. Ct. 1411, 1413-14, 173 L. Ed. 2d 251 (2009)
      (internal quotation marks omitted).
      ....
      . . . It bears repeating that even a strong case for relief does not mean
      the state court’s contrary conclusion was unreasonable. See Lockyer,
      supra, at 75, 123 S. Ct. 1166.
               If this standard is difficult to meet, that is because it was meant
      to be. As amended by AEDPA, § 2254(d) stops short of imposing a
      complete bar on federal court relitigation of claims already rejected in
      state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct.
      2333, 135 L. Ed. 2d 827 (1996) (discussing AEDPA’s “modified res
      judicata rule” under § 2244). It preserves authority to issue the writ in
      cases where there is no possibility fairminded jurists could disagree
      that the state court’s decision conflicts with this Court’s precedents. It
      goes no farther. Section 2254(d) reflects the view that habeas corpus

                                          20
      is a “guard against extreme malfunctions in the state criminal justice
      systems,” not a substitute for ordinary error correction through appeal.
      Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S. Ct. 2781, 61 L. Ed.
      2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
      for obtaining habeas corpus from a federal court, a state prisoner must
      show that the state court’s ruling on the claim being presented in
      federal court was so lacking in justification that there was an error
      well understood and comprehended in existing law beyond any
      possibility for fairminded disagreement.
             The reasons for this approach are familiar. “Federal habeas
      review of state convictions frustrates both the States’ sovereign power
      to punish offenders and their good-faith attempts to honor
      constitutional rights.” Calderon v. Thompson, 523 U.S. 538, 555-556,
      118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998) (internal quotation marks
      omitted). It “disturbs the State’s significant interest in repose for
      concluded litigation, denies society the right to punish some admitted
      offenders, and intrudes on state sovereignty to a degree matched by
      few exercises of federal judicial authority.” Reed, 489 U.S., at 282,
      109 S. Ct. 1038 (KENNEDY, J., dissenting).
             Section 2254(d) is part of the basic structure of federal habeas
      jurisdiction, designed to confirm that state courts are the principal
      forum for asserting constitutional challenges to state convictions.

Richter, 131 S. Ct. at 786-87 (emphasis added). Phrased “more simply and maybe

a little more clearly: if some fairminded jurists could agree with the state court’s

decision, although others might disagree, federal habeas relief must be denied.”

Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).

      And in Moore, as in Richter, the Supreme Court reversed a Ninth Circuit

decision finding that a state court had unreasonably applied Strickland. Moore,

131 S. Ct. at 737-39. The Supreme Court took issue particularly with the court of

appeals’ conclusion that the state court’s decision—that Moore’s counsel was not

                                           21
ineffective for failing to file a motion to suppress before advising Moore to plead

guilty—was contrary to Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246

(1991). Fulminante was not an ineffective assistance of counsel case, and because

it did not speak to Strickland’s prejudice standard or contemplate prejudice in the

plea bargain context, the state court’s “finding of constitutionally adequate

performance under Strickland cannot be contrary to Fulminante.” Moore, 131 S.

Ct. at 743. The Supreme Court emphasized that the court of appeals’ decision

“transposed [Fulminante] into a novel context; and novelty alone—at least insofar

as it renders the relevant rule less than ‘clearly established’—provides a reason to

reject it under AEDPA.” Id.

      In another recent case reversing the en banc Ninth Circuit’s grant of § 2254

habeas relief, the Supreme Court admonished again that AEDPA’s § 2254(d)(1)

standard “is a difficult to meet” and “highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit

of the doubt” and that “the petitioner carries the burden of proof.” Pinholster, 131

S. Ct. at 1398. The California Supreme Court had summarily denied petitioner

Pinholster’s penalty-phase ineffective assistance claim in state habeas proceedings

“‘on the substantive ground that it is without merit.’” Id. at 1396-97, 1402. The

Supreme Court reversed the en banc determination that the California Supreme


                                          22
Court had unreasonably applied Strickland, concluding that the federal court of

appeals had not applied the requisite AEDPA deference to the California Supreme

Court’s decision. Id. at 1401-11.

      Then in Dixon, the Supreme Court reversed a Sixth Circuit decision

concluding that the Ohio Supreme Court had, among other things, unreasonably

applied Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and Oregon v.

Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985), when it found that the petitioner’s

murder confession was voluntary. Dixon, 2011 WL 5299458, No. 10-1540, slip

op. at 4-6. The Supreme Court noted that, under AEDPA, “a state prisoner seeking

a writ of habeas corpus from a federal court ‘must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Id., slip op. at 1 (quoting Richter, 131

S. Ct. at 786-87) (emphasis added). The United States Supreme Court concluded

that “[b]ecause it is not clear that the Ohio Supreme Court erred at all, much less

erred so transparently that no fairminded jurist could agree with that court’s

decision, the Sixth Circuit’s judgment must be reversed.” Id. (emphasis added).

      These seven § 2254(d)(1) habeas decisions emphasize that (1) petitioner Hill

must show a “clearly established” federal law in the form of a United States


                                          23
Supreme Court holding before this Court can find a Georgia Supreme Court

decision unreasonable, and (2) this Court cannot find that highest state court’s

habeas decision unreasonable unless “no fairminded jurist could agree with that

[state] court’s decision.” Dixon, slip op. at 1. This AEDPA “standard of ‘contrary

to, or involving an unreasonable application of, clearly established Federal law’ is

‘difficult to meet,’ because the purpose of AEDPA is to ensure that federal habeas

relief functions as a ‘guard against extreme malfunctions in the state criminal

justice systems,’ and not as a means of error correction.” Greene v. Fisher, 565

U.S. —, — S. Ct. —, No. 10-637, slip op. at 4 (U.S. Nov. 8, 2011) (quoting

Richter, 131 S. Ct. at 786 (internal quotation marks, citation, and brackets

omitted)).11

                                      III. DISCUSSION


       11
          One dissent criticizes our reference to these recent Supreme Court decisions and argues
these cases are not in point because they involve “dual layers of deference,” Lett, 130 S. Ct. at
1865, that is, (1) the deference required by AEDPA, and (2) an additional underlying deferential
standard of proof for the relevant claim (such as ineffective assistance of counsel). Infra, at 68
n.2 (Dissenting opinion of Barkett, J.). Contrary to that dissent’s contentions, the parts we quote
from these cases are only about the AEDPA deference, not the second layer for the underlying
claim. Moreover, four of these Supreme Court decisions did not involve ineffective assistance
of counsel as the underlying claim.
        In this case we are obviously not taking a deferential view of, say, trial counsel’s
performance in addition to deferring, as AEDPA requires, to any reasonable decision of the
Georgia Supreme Court. That fact, however, does not change the AEDPA deference standard,
which does apply here. Regardless of the standard of proof for the underlying claim, the
Supreme Court has repeatedly instructed, as shown above, that our AEDPA review is highly
deferential and we may not grant habeas relief unless the state court decision is contrary to or an
unreasonable application of a prior Supreme Court holding.

                                                24
       Hill does not challenge the state habeas court’s finding that Hill has not

shown he is mentally retarded beyond a reasonable doubt. The AEDPA “deference

due is heavy and purposely presents a daunting hurdle for a habeas petitioner to

clear.” Loggins, 654 F.3d at 1220. Rather, he contends that the Georgia Supreme

Court’s Hill III decision upholding Georgia’s statutory reasonable doubt standard

is contrary to the holding in Atkins. Hill’s position is that Georgia’s statute (which

was at the vanguard of the “national consensus” leading the Supreme Court to

abolish the execution of the mentally retarded in Atkins) is now unconstitutional

under the authority of Atkins—even though Atkins does not require any specific

burden of proof and explicitly leaves such procedural matters to the states. For

several reasons, Hill “read[s] far too much into” Atkins, and other cases he cites for

that matter. Haynes, 130 S. Ct. at 1172.

A.     Atkins Left Procedural Rules to States

       First, the Supreme Court in Atkins made no reference to, much less reached

a holding on, the burden of proof. See Haynes, 130 S. Ct. at 1173; Owen, 568 F.3d

at 907. To the contrary, the Supreme Court in Atkins noted the lack of agreement

as to how mental retardation is to be determined and expressly left the procedures

for doing so to the states.12 536 U.S. at 317, 122 S. Ct. at 2250; see also Holladay

       12
          Moreover, as part of its national consensus analysis, the Atkins Court cited the Georgia
statute at issue here—O.C.G.A. § 17-7-131, which then, as now, required mental retardation to

                                                25
v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009) (“[T]he [Supreme] Court left to the

states the development of standards for determining when an offender is mentally

retarded.”). Therefore, Atkins provides no support for Hill’s or the dissents’

argument.

       Atkins’s decision to leave the task to the states not only renders the federal

law not “clearly established,” but also makes it “wholly inappropriate for this

court, by judicial fiat, to tell the States how to conduct an inquiry into a

defendant’s mental retardation.” In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003)

(noting that Atkins explicitly left the procedures governing its implementation to

the states).13

       In Bies, the Supreme Court in 2009 reaffirmed that “[its] opinion [in Atkins]

did not provide definitive procedural or substantive guides for determining when a



be proven beyond a reasonable doubt. Atkins, 536 U.S. at 313-14 & n.9, 122 S. Ct. at 2248 &
n.9. Notably, there was no criticism of the Georgia statute.
       13
          The state supreme courts are split on the burden of proof issue in mental retardation
cases. Compare State v. Grell, 135 P.3d 696, 705 (Ariz. 2006) (finding clear and convincing
evidence standard for mental retardation claims is constitutional), People v. Vasquez, 84 P.3d
1019, 1023 (Colo. 2004) (stating that “the substantive restriction of Atkins” does not limit
Colorado’s “discretion in allocating and quantifying the appropriate burden of proof”), and Hill
III, 587 S.E.2d at 621-22, with Pruitt v. State, 834 N.E. 2d 90, 103 (Ind. 2005) (invalidating clear
and convincing evidence scheme for mental retardation claims based not on clearly established
Supreme Court holdings but on the “implication” of Atkins) and State v. Williams, 831 So. 2d
835, 860 (La. 2002) (stating decision to invalidate clear and convincing evidence requirement
was one made in “the absence of any guidance from the Supreme Court”), superseded in part by
statute, La. Code Crim. Proc. Ann. art. 905.5.1 (2003), as recognized in State v. Turner, 936
So.2d 89 (La. 2006). Unlike federal courts, state supreme courts are not constrained by AEDPA.

                                                 26
person who claims mental retardation ‘will be so impaired as to fall [within Atkins’

compass.]’” Bies, 129 S. Ct. at 2150. Bies thus makes it clear that Atkins did not

prescribe the burden of proof. Bies even reiterated that Atkins “left to the States

the task of developing appropriate ways to enforce the constitutional restriction.”

Id.14

        Atkins simply did not consider or reach the burden of proof issue, and

neither has any subsequent Supreme Court opinion. We do not gainsay the

possibility that the Supreme Court may later announce that a reasonable doubt

standard for establishing the mental retardation exception to execution is

constitutionally impermissible. But under AEDPA, we are not concerned with

what a United States Supreme Court holding could or should be in the future, but

only what holdings of the Supreme Court established the law to be at the time the

Georgia Supreme Court decided Hill III in 2003.

B.      Beyond a Reasonable Doubt Standard Upheld for Insanity Defense



        14
          In three of Georgia’s post-Atkins death penalty cases, Schofield v. Holsey, 642 S.E.2d
56 (Ga.) (appeal from denial of state habeas petition), cert. denied, 128 S. Ct. 728 (2007); Head
v. Stripling, 590 S.E.2d 122 (Ga. 2003) (appeal from denial of state habeas petition), cert.
denied, 541 U.S. 1070 (2004); King v. State, 539 S.E.2d 783 (Ga. 2000) (direct appeal), cert.
denied, 536 U.S. 982 (2002), the United States Supreme Court denied capital defendants’
certiorari petitions that made the same constitutional reasonable doubt challenge that Hill makes
here. As King v. State illustrates, another avenue (certiorari petition on direct appeal) exists to
present the constitutional issue here in a way that is not constrained by AEDPA deference and
the requirement of clearly established federal law as shown by a United States Supreme Court
holding.

                                                27
      Second, in the absence of any Supreme Court burden of proof holding in

mental retardation execution cases, the Georgia Supreme Court reasonably looked

to the Supreme Court’s insanity decisions in Leland v. Oregon, 343 U.S. 790, 72 S.

Ct. 1002 (1952) (rejecting due process challenge to reasonable doubt standard for

establishing insanity plea), and Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595

(1986) (recognizing Eighth Amendment prohibits execution of insane persons and

allowing states to decide ways to enforce that constitutional restriction). The

Georgia Supreme Court determined, inter alia, that “a mental retardation claim is

comparable to a claim of insanity” in that “both relieve a guilty person of at least

some of the statutory penalty to which he would otherwise be subject.” Hill III,

587 S.E.2d at 621. Both Leland and Ford lend enough support to the Georgia

Supreme Court’s decision that we cannot say “no fairminded jurist could agree

with that court’s decision.” Dixon, 2011 WL 5299458, No. 10-1540, slip op. at 1.

      At the time of Leland, Oregon was the only state that required a defendant to

establish a plea of insanity beyond a reasonable doubt. Nonetheless, in Leland the

Supreme Court determined that that fact was not dispositive and that Oregon’s

reasonable doubt standard for insanity pleas was constitutional, stating:

      Today, Oregon is the only state that requires the accused, on a plea of
      insanity, to establish that defense beyond a reasonable doubt. Some
      twenty states, however, place the burden on the accused to establish
      his insanity by a preponderance of the evidence or some similar

                                          28
       measure of persuasion. While there is an evident distinction between
       these two rules as to the quantum of proof required, we see no
       practical difference of such magnitude as to be significant in
       determining the constitutional question we face here. Oregon merely
       requires a heavier burden of proof. . . . The fact that a practice is
       followed by a large number of states is not conclusive in a decision as
       to whether that practice accords with due process, but it is plainly
       worth considering in determining whether the practice offends some
       principle of justice so rooted in the traditions and conscience of our
       people as to be ranked as fundamental.

Leland, 343 U.S. at 798, 72 S. Ct. at 1007 (footnote, quotation marks, and citation

omitted) (emphasis added).15 The Leland Court noted that a defense of insanity

lessened one’s culpability, which is the same basis used for Eighth Amendment

protection in Atkins. Id. at 796-97, 72 S. Ct. at 1006-07; see Atkins, 536 U.S. at

316, 318, 122 S. Ct. at 2249, 2250-51 (stating, “our society views mentally

retarded offenders as categorically less culpable than the average criminal,” and

“[t]heir deficiencies do not warrant an exemption from criminal sanctions, but they

do diminish their personal culpability”).

       And further, in Ford, as in Atkins, the Supreme Court refused to impose any

particular burden of proof on the right of the insane not to be executed and left “to

the State[s] the task of developing appropriate ways to enforce the constitutional



       15
          The Supreme Court in Leland also stated, “We are . . . reluctant to interfere with
Oregon’s determination of its policy with respect to the burden of proof on the issue of sanity
since we cannot say that policy violates generally accepted concepts of basic standards of
justice.” Id. at 799, 72 S. Ct. at 1007-08.

                                                29
restriction upon [their] execution of sentences.” 477 U.S. at 416-17, 106 S. Ct. at

2605 (plurality opinion). In Ford, a majority of the Supreme Court first held that

the Eighth Amendment prohibited execution of insane persons. Then, in a portion

of the lead opinion garnering plurality support, the Supreme Court stated that “[i]t

may be that some high threshold showing on behalf of the prisoner will be found a

necessary means to control the number of non-meritorious or repetitive claims of

insanity.” Id. at 417, 106 S. Ct. at 2605 (emphasis added).16

C.     Hill’s Cooper Argument

       Hill relies on Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373 (1996),

which held that an Oklahoma law that required a defendant to prove incompetence

to stand trial by clear and convincing evidence violated the Due Process Clause.

Id. at 366-69, 116 S. Ct. at 1383-84. In Hill III, the Georgia Supreme Court

       16
          The plurality opinion in Ford discussed the procedures by which a state will determine
insanity-based exclusion from execution under the Eighth Amendment:
        [W]e must conclude that the State’s procedures for determining sanity are inadequate
        to preclude federal redetermination of the constitutional issue. We do not here
        suggest that only a full trial on the issue of sanity will suffice to protect the federal
        interests; we leave to the State the task of developing appropriate ways to enforce the
        constitutional restriction upon its execution of sentences. It may be that some high
        threshold showing on behalf of the prisoner will be found a necessary means to
        control the number of nonmeritorious or repetitive claims of insanity. Other
        legitimate pragmatic considerations may also supply the boundaries of the
        procedural safeguards that feasibly can be provided.
Id. at 416-17, 106 S. Ct. at 2605 (footnote and citation omitted). The plurality opinion noted that
Florida’s procedure was deficient for not furnishing the procedural safeguards of: an opportunity
for the prisoner to submit evidence, an opportunity for the prisoner to impeach or challenge the
opinions of the state-appointed mental health experts, and placement of factfinding authority in
the hands of a neutral party. Id. at 413-16, 106 S. Ct. at 2603-05.

                                                30
reasonably concluded that the insanity cases of Leland and Ford are more closely

analogous to the burden of proof standard in Georgia’s mental retardation statute

than is the mental incompetency case of Cooper. See Hill III, 587 S.E.2d at 621-

22.

      First, Cooper emphasized that (1) the Supreme Court had historically and

consistently recognized that “the criminal trial of an incompetent defendant

violates due process”; and (2) the historical common law standard of proof for

incompetency in both English and American cases was preponderance of the

evidence. Cooper, 517 U.S. at 354-56, 116 S. Ct. at 1376-77 (emphasis added). In

contrast, there is no historical right (in the Eighth Amendment or elsewhere) of a

mentally retarded person not to be executed. And since the constitutional right

itself is new, there is no historical tradition regarding the burden of proof as to that

right. As recently as 1989, Penry refused to bar the execution of the mentally

retarded. Atkins was based not on historical tradition or the Due Process Clause,

but on the contemporary national consensus that reflected “the evolving standards

of decency” that informed the meaning of the Eighth Amendment. Atkins, 536

U.S. at 311-12, 122 S. Ct. at 2247. Indeed, Georgia’s reasonable doubt standard

for establishing a mental retardation exception to the death penalty, which was

enacted twenty-three years ago, is the oldest such law in the nation. Although


                                           31
other states recently have employed either clear and convincing evidence or

preponderance of evidence standards, no more lenient standard of proof predates

Georgia’s. Thus, Cooper’s due process analysis does not help Hill’s Eighth

Amendment claims under Atkins.

D.     Hill’s Argument that Georgia’s Standard Undermines Atkins

       Hill argues that (1) Atkins prohibits the execution of mentally retarded

persons, (2) a person who meets the preponderance of the evidence standard is

more likely than not mentally retarded, and (3) thus Georgia’s reasonable doubt

procedural rule impermissibly burdens and effectively undermines the Eighth

Amendment substantive right of the mentally retarded not to be executed.

       As noted earlier, in the 219-year history of our nation’s Bill of Rights, no

Supreme Court decision has ever held, or even implied, that a burden of proof

standard on its own can so wholly burden an Eighth Amendment right as to

eviscerate or deny that right. Because there is no “clearly established” federal law

supporting Hill’s position, AEDPA mandates that we not overturn the Georgia

Supreme Court’s denial of Hill’s constitutional challenge to Georgia’s statutory

reasonable doubt standard.17 See Berghuis, 130 S. Ct. at 1391-92; Haynes, 130 S.


       17
          Two district court judges in our circuit have examined the Georgia statute in other cases
and, like us, have similarly failed to see a “clearly established” right to a more lenient burden of
proof in the mental retardation context. See Ledford v. Head, No. 1:02-CV-1515-JEC, 2008 WL
754486, at *3 n.6 (N.D. Ga. Mar. 19, 2008) (Carnes, J.) (“There is no language in Atkins to

                                                 32
Ct. at 1173.

       Atkins itself does not support Hill’s argument. Atkins did not bestow a

substantive Eighth Amendment right to a fixed and rigid definition of “mentally

retarded persons.” Indeed, various states use different definitions of intellectual

functioning (some draw the line at an IQ of 75 or below, some at 70 or below,

others at 65 or below)18 and consider different factors in assessing adaptive


suggest that Georgia’s standard is constitutionally impermissible. In fact, the Supreme Court
cited Georgia’s statute with approval.”); Ferrell v. Head, 398 F. Supp. 2d 1273, 1295 (N.D. Ga.
2005) (Thrash, J.) (“Atkins makes it abundantly clear that each state is permitted to design its
own system for determining mental retardation, insofar as such system does not wholly erode the
constitutional prohibition against execution of the mentally retarded. The Petitioner fails to
persuade this Court that Georgia’s statute so erodes this prohibition.”), rev’d in part on other
grounds by Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011).
       18
          See, e.g., Ariz. Rev. Stat. Ann. § 13-753 (establishing procedure by which defendants in
capital cases are pre-screened by psychological expert who administers IQ test; those with scores
below 76 are tested further by mental retardation experts, and if the defendant then scores 70 or
below on any IQ test, the court conducts a hearing at which the defendant must prove mental
retardation by clear and convincing evidence; a “determination by the trial court that the
defendant’s intelligence quotient is sixty-five or lower establishes a rebuttable presumption that
the defendant has mental retardation,” but “a defendant with an intelligence quotient of seventy
or below” can still prove mental retardation by the clear and convincing evidence standard),
amended by 2011 Ariz. Legis. Serv. 89 (West) (replacing term “mental retardation” with “an
intellectual disability”); Ark. Code Ann. § 5-4-618(a)(2) (“There is a rebuttable presumption of
mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below.”);
725 Ill. Comp. Stat. § 5/114-15(d) (2010) (“An intelligence quotient (IQ) of 75 or below is
presumptive evidence of mental retardation.”), amended by 2011 Ill. Legis. Serv. 97-227
(replacing terms “mentally retarded” and “mental retardation” with “intellectually disabled” and
“an intellectual disability”); Ky. Rev. Stat. Ann. § 532.130 (“‘Significantly subaverage general
intellectual functioning’ is defined as an intelligence quotient (I.Q.) of seventy (70) or below.”);
Neb. Rev. Stat. § 28-105.01(3) (“An intelligence quotient of seventy or below on a reliably
administered intelligence quotient test shall be presumptive evidence of mental retardation.”);
S.D. Codified Laws § 23A-27A-26.2 (“An intelligence quotient exceeding seventy on a reliable
standardized measure of intelligence is presumptive evidence that the defendant does not have
significant subaverage general intellectual functioning.”); Wiley v. Epps, 668 F. Supp. 2d 848,
897 (N.D. Miss. 2009) (“In Mississippi, [an] IQ of 75 is the ‘cutoff score’ for assessing

                                                33
functioning. Atkins itself acknowledged that the states’ “statutory definitions of

mental retardation are not identical,” though they “generally conform to the clinical

definitions” set forth by the APA and AAMR. Atkins, 536 U.S. at 317 n.22, 122 S.

Ct. at 2250 n.22.

       It is undisputed that Georgia’s statutory definition of mental retardation is

consistent with the clinical definitions cited in Atkins. Compare O.C.G.A. § 17-7-

131(a)(3), with Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3. Thus, contrary

to the dissents’ contentions, this is not a case about the categorical exclusion of the

mildly mentally retarded or any other group from the Atkins prohibition. Instead,

it is about Georgia’s procedure for determining who is mentally retarded, which is

a matter distinct from the Eighth Amendment issue decided in Atkins. See Atkins,

536 U.S. at 317, 122 S. Ct. at 2250; cf. Walker v. True, 399 F.3d 315, 319 (4th Cir.

2005) (“While Walker’s claim ultimately derives from his rights under the Eighth

Amendment, whether he is mentally retarded is governed by Virginia law.”). To

argue otherwise is to argue that federal courts, not the states, have the

responsibility under Atkins for promulgating the procedures that will be used to

determine mental retardation.

       In any event, because Atkins never said, or even hinted at (much less held),



subaverage intellectual functioning for purposes of diagnosing mental retardation.”).

                                               34
what procedures are or are not “appropriate” for implementing the prohibition

Atkins recognized, Atkins cannot possibly provide “clearly established” federal

law for Hill’s claims. To accept Hill’s argument would require us not only to

abandon the deference AEDPA demands, but also to ignore the clear language of

Atkins itself about who is to decide what procedures are to be used to determine

mental retardation.19

       Additionally, Hill focuses on Georgia’s burden of proof procedure and

ignores the many other procedural protections afforded under Georgia’s statute and

processes. Looking solely to one aspect of Georgia’s procedures, without placing

them in context, is inconsistent with Ford, where the Supreme Court evaluated

Florida’s process as a whole.20


       19
         We do not hold, as one dissent charges, “that states have complete discretion to choose
any procedures to govern the determination of mental retardation.” Infra, at 72 (Dissenting
opinion of Barkett, J.). We decide only the issue before us, which concerns only the standard of
proof, and we hold only that the Georgia Supreme Court’s decision in Hill III was not contrary
to, and did not involve an unreasonable application of, Atkins.
       20
          Florida law directed the Governor to appoint a commission of three psychiatrists to
simultaneously examine the defendant and then to provide an ex parte report to the Governor.
The Supreme Court found that Florida’s process suffered from a number of grievous flaws: (1)
defendants were not included at all in the “truth-seeking process”; (2) defendants were
prohibited from submitting material to the factfinder; (3) there was no opportunity for the
defendant to challenge or impeach state-appointed experts; (4) the psychiatric examination of
defendant Ford was only 30 minutes long; and (5) the insanity evaluation process was housed
exclusively within the province of the executive branch, which gave the Governor the final say
over fact findings needed to trigger the constitutional protection. See Ford, 477 U.S. at 416, 106
S. Ct. at 2605 (“In no other circumstance of which we are aware is the vindication of a
constitutional right entrusted to the unreviewable discretion of an administrative tribunal.”)
(plurality opinion).

                                                35
       Georgia’s process, when evaluated as a whole, contains substantial

procedural protections.21 The Georgia statute allows a defendant to raise the issue

of mental retardation in the guilt phase of his criminal trial and permits a jury to

find a defendant guilty but mentally retarded. O.C.G.A. § 17-7-131(c)(3). This

has two significant advantages. The jury does not hear the criminal history that is

allowed in the penalty phase, and it is not informed that a guilty but mentally

retarded verdict will preclude the death penalty. See King v. State, 539 S.E.2d

783, 798 (Ga. 2000) (“[A] jury should not be informed that a finding of mental

retardation bars the imposition of the death penalty.”); Heidler v. State, 537 S.E.2d

44, 55 (Ga. 2000) (“[I]n the guilt-innocence phase, the trial court should not inform

the jury that the defendant will not receive a death sentence if he is found guilty but

mentally retarded.”).

       Georgia law also guarantees Hill the right: (1) not to be sentenced to death

except by unanimous verdict, with no judicial override possible; (2) to a full and

fair plenary trial on his mental retardation claim, as part of the guilt phase of his


       21
         If anything, Georgia’s procedural protections go above and beyond the protections
required by Ford. For starters, the plurality opinion in Ford made clear that it did not “suggest
that only a full trial on the issue of sanity will suffice to protect the federal interests.” Id. Here,
Georgia provides for a full trial on the issue of mental retardation. Furthermore, Justice Powell’s
decision to join the four-vote plurality in Ford was based not on plucking out one piece of
Florida’s procedure, but rather on his assessment that, considered collectively, “the procedures
followed by Florida in this case do not comport with basic fairness.” Id. at 399, 106 S. Ct. at
2609 (emphasis added).

                                                  36
capital trial; (3) to present his own experts and all other relevant evidence; (4) to

cross-examine and impeach the State’s experts and other witnesses; (5) to have a

neutral factfinder (the jury, if Hill had elected to have mental retardation decided

during the guilt phase, and a judge if otherwise) decide the issue; (6) to question

prospective jurors about their biases related to mental retardation; (7) to have

jurors decide mental retardation without being informed that a finding of mental

retardation precludes the death penalty and without being informed of the

defendant’s criminal record; (8) to orally argue before the factfinder; and (9) to

appeal any adverse mental retardation determination. Within the bounds of

evidentiary admissibility, there is virtually no limit to the evidence a Georgia

defendant can present in support of his mental retardation claim. Thus, the

reasonable doubt standard is but one aspect of a multifaceted fact-finding process

under Georgia law. This is not to say what the ultimate outcome of the

constitutional issue may or should be in future non-AEDPA cases, but only

illustrates further how Hill’s challenge to the burden of proof standard should not

be viewed in isolation.22



       22
          Hill asks this Court to review the burden of proof standard in isolation. However, we
should not ignore the full range of rights available to a capital defendant claiming mental
retardation under O.C.G.A. § 17-7-131 merely because Hill — by raising his mental retardation
claim not as part of his criminal trial as the statute contemplates, but only later in his state habeas
case — did not take advantage of all the rights available to him.

                                                  37
      As did the Atkins Court, Justice Powell’s concurring opinion in Ford made

clear the refusal to clearly establish any precise limit on a state’s fact-finding

procedures for determining the insanity bar to execution, aside from a few core due

process rights. See Ford, 477 U.S. at 427, 106 S. Ct. at 2610 (Powell, J.,

concurring in part and concurring in the judgment) (“The State should provide an

impartial officer or board that can receive evidence and argument from the

prisoner’s counsel, including expert psychiatric evidence that may differ from the

State’s own psychiatric examination. Beyond these basic requirements, the States

should have substantial leeway to determine what process best balances the various

interests at stake.” (emphasis added)).

      The Supreme Court in Atkins, as in Ford, announced an Eighth Amendment

prohibition on executions in specified circumstances but never purported to decide

or prescribe how states should procedurally implement that prohibition. Atkins left

the states substantial leeway in enacting procedures to determine whether a capital

defendant is exempt from execution because he is mentally retarded. And Georgia

has exercised that leeway by setting the IQ level at 70, by affording a capital

defendant the multiple and significant rights outlined above, and by determining

that the risk of error due to malingering or other factors is substantial and that there

is a need for a robust burden of proof. This potential for malingering is evidenced


                                           38
in this case (1) where Hill’s initial expert (clinical psychologist William

Dickinson) initially testified Hill had an IQ of 77 and was not mentally retarded,

and (2) even though Georgia provided a mental retardation bar to execution since

1988, Hill never claimed mental retardation at trial, on direct appeal, or in his first

state habeas petition. In fact, the state habeas record documents Hill’s (1)

extensive work history and ability to function well; (2) disciplined savings plans to

purchase cars and motorcycles; (3) military service; and (4) active social life. This

is not to diminish the critical importance of the Atkins right not to be executed if

mentally retarded. It is only to say that the Georgia Supreme Court’s decision was

not contrary to “clearly established” federal law and for that reason AEDPA bars

our reversing it.

E.    Hill’s Risk of Error Argument

      Hill argues that Georgia’s burden of proof statute will inevitably result in the

execution of some mentally retarded defendants because they might be able to

prove they are mentally retarded by a preponderance of the evidence but not

beyond a reasonable doubt. From this Hill extrapolates that the beyond a

reasonable doubt standard is contrary to Atkins because it will result in the

execution of some offenders who are mentally retarded but cannot prove it beyond

a reasonable doubt. There are fundamental flaws in Hill’s argument.


                                           39
      First, Hill’s risk of error argument, like his other claims, ignores the fact that

Atkins disavowed any intent to establish a nationwide procedural or substantive

standard for determining mental retardation. See Atkins, 536 U.S. at 317, 122 S.

Ct. at 2250; Bies, 129 S. Ct. at 2150. Notably too, Hill isolates Georgia’s burden

of proof standard and ignores all of the many other procedures in Georgia law

favorable to a defendant, as outlined above, that assist a jury in accurately

determining whether a defendant is mentally retarded.

      Second, Hill’s risk of error inquiry asks and answers the wrong question.

Instead of asking whether the decision of the Georgia Supreme Court was contrary

to clearly established federal law as determined by the Supreme Court, it asks

whether, under de novo review, the Georgia procedural requirement goes as far as

it could to enforce the substantive constitutional prohibition the Supreme Court

announced in Atkins. Because the Supreme Court has never considered that

question, or even a similar one, it is necessarily a matter of first impression. Such

de novo inquiry is precisely what a federal habeas court cannot, and should not, do.

A federal court may not grant habeas relief on a claim a state court has rejected on

the merits simply because the state court held a view different from its own. See

Mitchell v. Esparza, 540 U.S. 12, 17, 124 S. Ct. 7, 11 (2003).

      A third critical flaw in Hill’s argument is that a risk of error exists with any


                                           40
burden of proof. Every standard of proof allocates some risk of an erroneous

factual determination to the defendant and therefore presents some risk that

mentally retarded offenders will be executed in violation of Atkins. The

adjudication of all facts always involves a “margin of error . . . which both parties

must take into account.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072

(1970) (quotation marks omitted). In any proceeding to determine whether a

defendant is mentally retarded, and no matter what the burden of proof, “the trier

of fact will sometimes, despite his best efforts, be wrong in his factual

conclusions.” Id. at 370, 90 S. Ct. at 1076 (Harlan, J., concurring).

       Two kinds of fact determination risks are possible when an offender alleges

that he is mentally retarded. See id. at 370–71, 90 S. Ct. at 1076. The first is that

the trier of fact will conclude that the offender is mentally retarded when, in fact,

he is not. The second is that the trier of fact will conclude that the offender is not

mentally retarded when, in fact, he is.

       Although the preponderance of the evidence standard may present a smaller

risk of the latter kind of error, even under that standard there is a risk that the trier

of fact will erroneously conclude that an offender is not mentally retarded when, in

fact, he is. Consequently, under Hill’s reasoning, even a preponderance of the

evidence standard will result in the execution of those offenders that Atkins was


                                            41
designed to protect because it does not eliminate the risk that the trier of fact will

conclude that the offender is not mentally retarded when, in fact, he is. It only

decreases the risk of that kind of erroneous conclusion. That necessarily would

mean that those 28 states that require the defendant to prove mental retardation

either by clear and convincing evidence (Arizona, Colorado, Delaware, Florida,

and North Carolina) or by a preponderance of the evidence standard (23 states)

have violated the Eighth Amendment because there will always be some risk of

error in those two standards. The necessary result of Hill’s reasoning is that the

burden of proof must be placed on the state and that the state must prove beyond

any doubt that an offender is not mentally retarded. No state uses that standard.

The effective result of Hill’s argument, then, is that every state’s death penalty

statute or case law procedure is unconstitutional because none of them requires the

state to prove the absence of mental retardation beyond a reasonable doubt. Or, to

take Hill’s argument to its logical conclusion, beyond all doubt.

      Indeed, under the reasoning Hill employs, virtually any state rule that

allocates to the defendant at least some risk that the trier of fact will erroneously

conclude that he is not mentally retarded would be insufficient to enforce the

constitutional prohibition of Atkins. All kinds of rules serve to allocate the risk of

an erroneous decision—procedural rules that determine who can participate in the


                                           42
presentation of evidence and argument, evidentiary rules that determine what

evidence the trier of fact can consider, and decisional rules like the standard of

proof at issue here. See Alex Stein, Constitutional Evidence Law, 61 Vand. L.

Rev. 65, 67–68 (2008). Taken literally, the logic on which Hill relies would

invalidate any rule that allocates to the defendant some risk of an erroneous

conclusion about a defendant’s mental retardation. Cf. Patterson v. New York, 432

U.S. 197, 208, 97 S. Ct. 2319, 2326 (1977) (“Punishment of those found guilty by

a jury . . . is not forbidden merely because there is a remote possibility in some

instances that an innocent person might go to jail.”).

      And there is no reason to limit the insistence that all risk of error be borne by

the state just to mental retardation cases. If Hill’s no-risk reasoning is accepted, it

would give rise to similar claims about determining insanity and competency to be

executed. After all, unless the state is required to rule out those two mental

conditions beyond all doubt, there will be, as Hill’s argument goes, some who are

convicted and punished, even executed, although they were insane at the time of

the crime, see Leland, 343 U.S. at 790, 72 S. Ct. at 1002, or were mentally

incompetent at the time of the execution, see Ford, 477 U.S. at 399, 106 S. Ct. at

2595. There is no end to the position that Hill espouses.

      Fourth, there is no evidence in this record to support the proposition that the


                                           43
reasonable doubt standard triggers an unacceptably high error rate for mental

retardation claims. Whether a burden of proof scheme will result in an

unacceptably high error rate is, in part, an empirical question that we are ill-

equipped to measure in the first instance. There is no data on this question in this

record.

F.    Dissent’s Reported Cases

      In an effort to circumvent this lack of any evidence on the error rate, one

dissent cites 22 reported capital cases in Georgia where mental retardation claims

were raised. Infra, at 89-91 (Dissenting opinion of Barkett, J.). The dissent argues

that out of those cases, “only one defendant has ever successfully established his

mental retardation beyond a reasonable doubt.” Id. at 90. The dissent argues that

this “confirms just how extraordinarily difficult it is for an offender to meet the

beyond a reasonable doubt standard.” Id. at 89. Those purported statistics and that

reasoning are faulty for multiple reasons.

      First, the 22 case statistics. We note that: (1) in 5 of the 22 cases cited by

the dissent, the defendant received a life sentence, not a death sentence, see Foster

v. State, 283 Ga. 47, 656 S.E.2d 838 (2008); Torres v. State, 272 Ga. 389, 529

S.E.2d 883 (2000); Lyons v. State, 271 Ga. 639, 522 S.E.2d 225 (1999); Mosher v.

State, 268 Ga. 555, 491 S.E.2d 348 (1997); Williams v. State, 262 Ga. 732, 426


                                             44
S.E.2d 348 (1993); (2) in one of the cases, Heidler v. State, the defendant admitted

at trial that he introduced no evidence he was mentally retarded and told the jury it

had nothing to consider as to mental retardation, 273 Ga. 54, 63, 537 S.E.2d 44, 55

(2000); (3) in another of the cases, Foster v. State, the defendant’s conviction was

reversed because the trial court failed to charge the jury on the statutory definition

of mental retardation, 283 Ga. 47, 49-50, 656 S.E.2d 838, 841 (2008); (4) in

another of the cases, Head v. Stripling, the Georgia Supreme Court affirmed the

state habeas court’s order granting habeas relief and ordering a retrial on mental

retardation because the State suppressed evidence favorable to the defendant’s

mental retardation claim, 277 Ga. 403, 407-10, 590 S.E.2d 122, 126-28 (2003); and

(5) in two of the cases, Morrison v. State, 276 Ga. 829, 830, 583 S.E.2d 873, 875

(2003), and Rogers v. State, 282 Ga. 659, 659, 653 S.E.2d 31, 34 (2007), the

defendants were granted a trial on mental retardation under a preponderance

standard, which they failed to meet. That leaves only 13 reported mental

retardation capital cases (including Hill’s) from 1988 to 2011.

      Second, the dissent’s focus on only reported appellate decisions skews its

analysis. The dissent overlooks the fact that in Georgia mental retardation is tried

in the guilt phase of capital cases, not the penalty phase. When a Georgia capital

defendant is found guilty but mentally retarded, he automatically obtains a life


                                           45
sentence and (1) may not appeal at all, or (2) may appeal as to issues that do not

require discussion of the mental retardation issue, which was decided in his favor.

Also unreflected in the dissent’s data are cases where a defendant offers evidence

of mental retardation, but also proves he is innocent of the crime, thereby obtaining

a verdict of not guilty (instead of guilty but mentally retarded), precluding any

appeal. And, of course, defendants who have substantial evidence of mental

retardation may plead guilty but mentally retarded, with the State’s acquiescence,

and not appear in the reported appellate decisions for that reason. The dissent’s

listing of 13 reported cases where a death sentence was imposed far from captures

the universe of mental retardation issue cases. That Georgia has had the mental

retardation bar for 23 years and the dissent can cite only 13 reported cases of a

defendant not prevailing, if anything, suggests just the opposite of the dissent’s

proposition.

       Third, the dissent proffers no evidence that the defendants in those 13

reported cases actually are mentally retarded, or would be found to be mentally

retarded under a preponderance of the evidence standard. There is no evidence at

all of that.

       Fourth, even if one were to consider the dissent’s skewed data, the fact

remains that reported cases in Georgia actually show that judges and juries do find


                                          46
defendants guilty but mentally retarded under Georgia’s proof beyond a reasonable

doubt standard. See, e.g., Hall v. Lewis, 286 Ga. 767, 692 S.E.2d 580 (2010)

(defendant convicted of murder and sentenced to death; trial court in state habeas

held defendant had proven his mental retardation beyond a reasonable doubt and

found trial counsel ineffective for not investigating and presenting evidence of

defendant’s mental retardation at guilt/innocence phase); Walker v. State, 282 Ga.

774, 782, 653 S.E.2d 439, 447 (2007), abrogated on other grounds by Ledford v.

State, 289 Ga. 70, 85, 709 S.E.2d 239, 254, cert. denied, — U.S. —, — S. Ct. —,

2011 WL 4344614 (Nov. 7, 2011) (defendant convicted and sentenced to death,

but in doing proportionality review, the Georgia Supreme Court’s opinion stated

that defendant’s co-defendant Griffin was sentenced to life and “has been

adjudicated mentally retarded, making him ineligible for a death sentence”);

Marshall v. State, 276 Ga. 854, 583 S.E.2d 884 (2003) (defendant charged with

malice murder but convicted of felony murder and involuntary manslaughter; jury

found defendant guilty but mentally retarded as to felony murder and involuntary

manslaughter); Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007) (after

bench trial, judge found defendant guilty but mentally retarded on eight charges of

aggravated child molestation and aggravated sodomy); Laster v. State, 234 Ga.

App. 16, 505 S.E.2d 560 (1998) (jury found defendant guilty but mentally retarded


                                         47
on charge of first-degree arson); Moody v. State, 205 Ga. App. 376, 422 S.E.2d 70

(1992) (jury found defendant guilty but mentally retarded on charges of child

molestation and aggravated child molestation). All of those cases are examples of

defendants being found mentally retarded under the proof beyond a reasonable

doubt standard the dissent implies precludes such a finding.

G.    The Dissents and Procedural Due Process

      Because the United States Supreme Court has never stated, in Atkins or

elsewhere, that a reasonable doubt standard for mental retardation violates the

Eighth Amendment, the dissents attempt to avoid this pivotal fact by making what

are, in effect, procedural due process arguments. The primary dissent argues that

Georgia’s burden of proof procedure, in practical operation, eviscerates the

substantive Eighth Amendment right under Atkins. Infra, at 76 (Dissenting

opinion of Barkett, J.). The dissent states that “the question before the Supreme

Court of Georgia was whether Georgia’s burden of proof eviscerates the

substantive constitutional right of the mentally retarded not to be executed” under

Atkins. Id. In this regard, the dissent argues that: (1) “Georgia . . . cannot

indirectly authorize the execution of mentally retarded offenders through a

procedure that in practical operation accomplishes that result”; and thus (2) the

Georgia Supreme Court’s approval of the beyond a reasonable doubt standard for


                                           48
mental retardation claims is contrary to clearly established federal law, as

announced by the Supreme Court in Bailey v. Alabama, 219 U.S. 219, 31 S. Ct.

145 (1911), and Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332 (1958). Infra, at

76, 92 (Dissenting opinion of Barkett, J.).

       Although this en banc case and the Georgia Supreme Court decision under

scrutiny are about the Eighth Amendment, the separate procedural due process

provenance of this dissent’s argument is evident from the Bailey and Speiser cases

upon which it relies. Neither Bailey nor Speiser are Eighth Amendment cases (or

capital cases, or mental retardation cases). Bailey concerned a Thirteenth

Amendment challenge to a state statute criminalizing the breach of a personal

service contract. Bailey, 219 U.S. at 227, 245, 31 S. Ct. at 146, 153. Speiser

resolved a First Amendment and Fourteenth Amendment challenge to a state tax

exemption scheme that required applicants to prove they did not advocate the

overthrow of the government. Speiser, 357 U.S. at 514-17, 78 S. Ct. at 1336-37.

The Speiser Court stated specifically that “[t]he question for decision . . . is

whether [the state’s] allocation of the burden of proof, on an issue concerning

freedom of speech, falls short of the requirements of due process.” Id. at 523, 78

S. Ct. at 1341.23

       23
          Although Bailey did not expressly rely on due process grounds in finding a
constitutional violation, its focus on state procedural rules and its subsequent use by the Supreme

                                                49
       But the wholly separate issue of procedural due process under the Due

Process Clause, however formulated, is not in the case before us. Rather, this case

is about Hill’s substantive constitutional right under the Eighth Amendment. It is

telling that the parties never mentioned either Bailey or Speiser in their briefs to the

Georgia Supreme Court.

       By attempting to transpose the holdings of Bailey (a Thirteenth Amendment

case) and Speiser (a First Amendment case) into the Eighth Amendment context,

the dissent makes the same error the Supreme Court identified in Moore. In

Moore, as discussed above, the Supreme Court reversed a court of appeals’

decision—that a state court unreasonably applied the Strickland ineffective

assistance of counsel standard—that relied on a case, Arizona v. Fulminante, 499

U.S. 279, 111 S. Ct. 1246 (1991), which did not involve ineffective assistance of

counsel. See Premo v. Moore, 131 S. Ct. at 737-39, 743. The Supreme Court

stated that the court of appeals, to reach its conclusion that the state court decision

was an unreasonable application of Strickland, “transposed [Fulminante] into a

novel context; and novelty alone—at least insofar as it renders the relevant rule

Court suggest a due process analysis. See Speiser, 357 U.S. at 526, 78 S. Ct. at 1342 (relying on
Bailey as part of its analysis finding a due-process-based First Amendment infringement); see
also Heiner v. Donnan, 285 U.S. 312, 329, 52 S. Ct. 358, 362 (1932) (quoting Bailey’s
pronouncement “that a constitutional prohibition cannot be transgressed indirectly by the
creation of a statutory presumption” in context of due process discussion). But even if Bailey is
read as relying not on due process but only the Thirteenth Amendment, it undisputedly is not an
Eighth Amendment case.

                                               50
less than ‘clearly established’—provides a reason to reject it under AEDPA.” Id.

at 743. The Georgia Supreme Court’s decision in Hill III, like the state court

decision discussed in Moore, was not “contrary to,” and did not “involve[] an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added).

H.    Panetti and Procedural Due Process

      The two other dissents in this case, (Dissenting opinions of Wilson, J., and

Martin, J.), rely primarily on Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842

(2007), which addressed the petitioner’s (1) incompetence-to-be-executed claim

and (2) his argument that the state court failed to provide the minimum procedural

due process requirements of Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595

(1986). Panetti, 551 U.S. at 948, 127 S. Ct. at 2855.

      Panetti (1) does not involve Atkins or mental retardation, (2) does not

discuss burdens of proof, and (3) was issued four years after the Georgia Supreme

Court’s decision in Hill III. Each factor alone, and certainly collectively, is

sufficient to demonstrate Panetti’s inadequacy for showing that the Georgia

Supreme Court’s decision in Hill III is contrary to, or an unreasonable application

of, clearly established federal law.

      But there is something more. Panetti, if anything, shows why Hill’s claim


                                           51
fails here. Panetti relied on the prior decision of Ford, which had announced both a

substantive Eighth Amendment right and a specific procedural due process

requirement under the Due Process Clause for incompetency claims: the petitioner

must have an opportunity to present evidence and argument. See Ford, 477 U.S. at

424-25, 106 S. Ct. at 2609 (concurring opinion of Powell, J.) (stating that “the

question in this case is whether Florida’s procedures for determining petitioner’s

sanity comport with the requirements of due process,” finding Florida’s procedures

do not require the factfinder to consider the petitioner’s materials, and concluding

they thus deprive the prisoner of an “opportunity to be heard”); see also Panetti,

551 U.S. at 948-49, 127 S. Ct. at 2855-56 (noting Ford “identifies the measures a

State must provide when a prisoner alleges incompetency to be executed,” “sets the

minimum procedures a State must provide to a prisoner raising a Ford-based

competency claim,” and “constitutes ‘clearly established’ law for purposes of §

2254”).

      As to the minimum procedures for incompetence-to-be-executed claims,

Ford announced that the “basic [procedural] requirements” include an opportunity

to submit “evidence and argument from the prisoner’s counsel, including expert

psychiatric evidence that may differ from the State’s own psychiatric

examination.” Ford, 477 U.S. at 427, 106 S. Ct. at 2610 (concurring opinion of


                                          52
Powell, J.). In Panetti, the state court appointed its own experts but did not give

petitioner Panetti an “opportunity to submit expert evidence in response to the

report filed by the court-appointed experts,” an error “that Ford makes clear is

impermissible under the Constitution.” Panetti, 551 U.S. at 950-51, 127 S. Ct. at

2857. The state court’s adjudication in Panetti thus violated the specific legal

procedure required by Ford.24

       Panetti is a straightforward application of AEDPA. The Court in Panetti

concluded that: (1) Supreme Court precedent in Ford clearly established not only

the substantive Eighth Amendment right not to be executed if incompetent but also

certain minimum procedural due process guidelines under the Due Process Clause

for bringing the substantive claim, and (2) the state court procedures afforded

Panetti did not satisfy Ford’s procedural requirement of an opportunity to present

expert evidence. Here, by contrast, Atkins established only a substantive Eighth

Amendment right for the mentally retarded, not any minimum procedural due

process requirements for bringing that Eighth Amendment claim. Importantly too,

Panetti does not mention the burden of proof at all and thus did not establish


       24
          When the Supreme Court in Panetti noted (1) that the state court’s decision rested on
the implicit finding that the procedures provided were adequate, (2) that “this determination
cannot be reconciled with any reasonable application of the controlling standard in Ford,” and
(3) “[t]hat the standard is stated in general terms does not mean the application was reasonable,”
551 U.S. at 952-53, 127 S. Ct. at 2858, the “standard” to which the Court was referring was
Ford’s procedural due process standard, not its substantive Eighth Amendment standard.

                                                53
federal law as to the burden of proof. Thus, the Georgia Supreme Court’s decision

about the burden of proof cannot be contrary to, or an unreasonable application of,

the controlling Supreme Court precedent in Atkins, or Panetti for that matter.

AEDPA does not permit us, as the dissents’ approach would have us do, to import

a procedural burden of proof requirement into Atkins (that expressly declined to

adopt one) from Panetti (that did not mention the burden of proof), and then find

that a state’s preexisting procedural standards are an unreasonable application of

that imported standard.

                                IV. CONCLUSION

      Even if the State of Georgia has somehow inappropriately struck the balance

between two competing interests in § 17-7-131(c)(3), and even if the Georgia

Supreme Court’s decision upholding that statute is considered incorrect or unwise

by a federal court, AEDPA precludes a federal court from imposing its will,

invalidating that state statute as unconstitutional, and granting federal habeas relief

in the absence of “clearly established” federal law, which the United States

Supreme Court admonishes is a holding of that Court. There is no United States

Supreme Court case holding that a reasonable doubt burden of proof for claims of

mental retardation violates the Eighth Amendment. Atkins did not ask or answer

that question.


                                           54
      Whether we agree with the Georgia Supreme Court or not, AEDPA requires

us to affirm the denial of Hill’s § 2254 petition. We do not decide whether

Georgia’s burden of proof is constitutionally permissible, but only that no decision

of the United States Supreme Court clearly establishes that it is unconstitutional.

Simply put, Hill has failed to show “that no fairminded jurist could agree” with the

Georgia Supreme Court’s decision about the burden of proof, and thus this Court is

“without authority to overturn the reasoned judgment of the State’s highest court.”

Dixon, slip op. at 1, 10.

      If the standard of proof Georgia has adopted for claims of mental retardation

is to be declared unconstitutional, it must be done by the Supreme Court in a direct

appeal, in an appeal from the decision of a state habeas court, or in an original

habeas proceeding filed in the Supreme Court, see Felker v. Turpin, 518 U.S. 651,

662–63, 116 S. Ct. 2333, 2339 (1996) (leaving open the question whether

AEDPA’s restrictions apply to federal habeas proceedings that originate in the

Supreme Court). AEDPA prohibits this Court from doing it here.

      AFFIRMED.




                                          55
TJOFLAT, Circuit Judge, specially concurring:

      I concur only in the court’s judgment. I cannot quibble with the court’s

finding that Supreme Court precedent does not prevent the State of Georgia from

applying a beyond-a-reasonable-doubt standard to Hill’s claim that he is mentally

retarded. However, I do not believe we ought to reach this conclusion for two

reasons. First, burdens of proof are procedural rules and are governed by laws

pertaining to procedural due process. Second, Hill raised his mental retardation

claim—and the associated claim regarding the beyond-a-reasonable-doubt

standard—in a state post-conviction proceeding, as opposed to during his criminal

trial. These two points combine to form Hill’s true claim: that he deserves habeas

relief because the State violated his procedural due process rights during a post-

conviction proceeding. Such claims do not form the basis of habeas relief, and I

would affirm the district court’s judgment on that ground.

      Georgia law provides that defendants accused of murder may avoid the

death penalty if they prove that they are mentally retarded beyond a reasonable

doubt. O.C.G.A. § 17-7-131(c)(3). Hill could have raised this defense during the

guilt phase of his 1991 criminal trial; for some reason, he did not. Turpin v. Hill,

498 S.E.2d 52, 52 (Ga. 1998). The Georgia courts forgave this obvious procedural

default and permitted Hill to argue his mental-retardation defense in a post-


                                          56
conviction proceeding. Id. at 53. The Georgia courts did not vacate Hill’s

sentence and, in effect, re-open his criminal trial. The Georgia Supreme Court

rejected the post-conviction trial court’s initial decision to issue a limited writ of

habeas corpus and hold a jury trial on the mental-retardation defense, which would

have presumably re-opened his conviction for this limited proceeding. Id. at

53–54. Rather, the court permitted Hill to raise the issue without a jury during the

post-conviction proceeding. Id. It was during that proceeding that Hill argued that

Georgia’s beyond-a-reasonable-doubt standard conflicted with the Supreme

Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.

2d 335 (2002).1 Head v. Hill, 587 S.E.2d 613, 618, 620–22 (Ga. 2003).

       The court and I part ways at the starting point of its analysis. The court

accepts and responds to Hill’s argument as he presents it—that Georgia’s beyond-

a-reasonable-doubt standard somehow violates the rule laid out in Atkins that the

Eighth Amendment prohibits the execution of the mentally retarded. But Hill’s

real argument, framed properly, is not an Eighth Amendment argument; it is that


       1
          Note that, at the time of Hill’s 1991 criminal trial, the Eighth Amendment did not
prohibit the execution of the mentally retarded. Compare Penry v. Lynaugh, 492 U.S. 302, 335,
109 S. Ct. 2934, 2955, 106 L. Ed. 2d 256 (1989) (finding that the Eighth Amendment did not
prohibit executions of mentally-retarded defendants), with Atkins v. Virginia, 536 U.S. 304, 122
S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (finding that the Eight Amendment prohibits such
executions). Georgia’s standard, enacted in 1988, was written not as a way to enforce federal
law, but rather as an expression of the State’s independent judgment that it ought not execute the
mentally retarded.

                                               57
the beyond-a-reasonable-doubt standard denies him due process of law.

      Burdens of proof are procedural rules governed by norms of procedural due

process. See Medina v. California, 505 U.S. 437, 446–48, 112 S. Ct. 2572,

2577–78, 120 L. Ed. 2d 353 (1992) (deciding whether shifting the burden of proof

to the defendant to demonstrate that he is incompetent to stand trial violates a

defendant’s due process rights); Sandstorm v. Montana, 442 U.S. 510, 520, 99 S.

Ct. 2450, 2457, 61 L. Ed. 2d 39 (1979) (“[W]e explicitly hold that the Due Process

Clause protects the accused against conviction except upon proof beyond a

reasonable doubt . . . .” (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,

1073, 25 L. Ed. 2d 368 (1970))). The Eighth Amendment inquiry in Atkins, in

contrast, had nothing to do with due process. The Court’s holding was based

solely on the “evolving standards of decency” inquiry into whether executing the

mentally retarded was excessive punishment. Atkins, 536 U.S. at 311–12, 122 S.

Ct. at 2247. So, by challenging the beyond-a-reasonable-doubt standard, Hill’s

claim is not properly an Eighth Amendment claim, but one cognizable under due

process. As such, Hill’s real complaint is not that he is mentally retarded, and that

the state post-conviction court’s contrary conclusion was erroneous. Hill instead

argues that the state post-conviction proceeding utilized an unfair procedure for

determining whether he is mentally retarded.


                                          58
       With Hill’s argument framed in this way, the forum in which Hill made his

argument is of paramount importance. We would of course address his due

process claim if the allegedly foul process occurred during his criminal trial. E.g.,

Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir. 2002)

(addressing, under 28 U.S.C. § 2254, the petitioner’s claim that the state trial court

violated his procedural due process rights because he was incompetent to stand

trial). If Hill had raised his mental-retardation defense at trial, and raised this

challenge to the beyond-a-reasonable-doubt standard there, he could claim that his

conviction and sentence were tainted by a violation of his due process rights.2

       Due process violations during state post-conviction proceedings do not,

however, form the basis of habeas relief. Carroll v. Sec’y, Dep’t of Corr., 574 F.3d

1354, 1365 (11th Cir. 2009); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir.

2004). The habeas statute permits federal courts to grant habeas relief to state

prisoners on the ground that they are “in custody pursuant to the judgment of a

State court” in violation of federal law. 28 U.S.C. § 2254(a). State post-conviction

proceedings are not the “judgment” that resulted in the prisoner’s detention. See

Carroll, 574 F.3d at 1365 (“[A] challenge to a state collateral proceeding does not


       2
          This statement assumes that Hill’s criminal trial occurred after the Supreme Court
decided Atkins. If Hill had raised his mental-retardation defense in during his 1991 trial, he
would not have been able to argue that the beyond-a-reasonable-doubt standard conflicted with
Atkins, for Atkins did not yet exist.

                                              59
undermine the legality of the detention or imprisonment- i.e., the conviction itself .

. . .”). Post-conviction proceedings are instead “civil in nature and are not part of

the criminal proceeding itself.” Pennsylvania v. Finley, 481 U.S. 551, 556–57, 107

S. Ct. 1990, 1994, 95 L. Ed. 2d 539 (1987).

      Therefore, procedural violations during state post-conviction proceedings

are “issues unrelated to the cause of the petitioner’s detention.” Spradley v.

Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987). As such, they cannot form the

basis for habeas relief. See, e.g., Carroll, 574 F.3d at 1365 (holding that a failure

to hold an evidentiary hearing in a state post-conviction proceeding was not a basis

for habeas relief); In re Rutherford, 437 F.3d 1125, 1127 (11th Cir. 2006) (finding

insufficient for habeas relief the petitioner’s claim that the state post-conviction

court denied him due process by failing to provide mental health records of a

person the petitioner alleged had actually committed the crime (citing Quince, 360

F.3d at 1261–62)); Quince, 360 F.3d at 1262 (rejecting a habeas petition, which

alleged that the state judge presiding over the petitioner’s post-conviction hearing

denied the petitioner due process by not recusing himself, because the claim did

not relate to the petitioner’s conviction).

      The alleged due process violation in Hill’s case occurred during a state post-




                                              60
conviction proceeding, and not during his criminal trial.3 The process afforded Hill

during that proceeding therefore had no bearing on the judgment that lead to his

conviction and sentence. A writ of habeas corpus is not the proper remedy for this

alleged wrong.

       Hill should instead have used this alleged due process violation as a means

for obtaining an evidentiary hearing in federal court. A hypothetical application of

the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-

132, 110 Stat. 1214, 28 U.S.C. § 2254, to Hill’s case will demonstrate why this is

so.

       As my previous discussion implies, Hill’s only claim cognizable for habeas

relief is that he is mentally retarded and cannot constitutionally be executed

pursuant to the Eighth Amendment. Because the Georgia courts determined that

he was not mentally retarded, Hill must first overcome 28 U.S.C. § 2254(d)’s

deferential hurdle. Cullen v. Pinholster, 536 U.S. ____, 131 S. Ct. 1388,

1398–1400 (2011) (holding that federal courts must first determine whether a

petitioner satisfies § 2254(d) before they may consider new evidence acquired

during a federal hearing). This determination was of a factual nature, and therefore



       3
           Remember that the Georgia Supreme Court explicitly rejected the state post-conviction
trial court’s attempt to re-open Hill’s conviction via a limited writ of habeas corpus. Turpin v.
Hill, 498 S.E.2d at 52, 53–54 (Ga. 1998).

                                               61
falls under § 2254(d)(2)’s instruction that federal courts may not grant habeas

relief unless the state court decision “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)(2). The district court, or this court on appeal, would review the

evidence introduced at Hill’s post-conviction hearing and determine if the state

court’s ultimate finding of fact—that Hill was not mentally retarded—was

“objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct.

1166, 1175, 155 L. Ed. 2d 144 (2003) (explaining that § 2254(d)(1)’s

“unreasonable application” clause bars federal habeas relief unless the state court’s

decision was “objectively unreasonable,” which is not synonymous with “clear

error” or other “independent review” by the federal court) (citing Williams v.

Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000)).

      If the federal court found the Georgia courts’ determination unreasonable,

the federal court would then decide, in its independent judgment, whether Hill

actually was mentally retarded. See McGahee v. Ala. Dep’t of Corr., 560 F.3d

1252, 1266 (11th Cir. 2009) (reviewing a petitioner’s claim de novo after

determining that the petitioner satisfied § 2254(d)). At this point, Hill would likely

ask for an evidentiary hearing; questions of mental retardation are, as his state

proceedings suggest, incredibly fact intensive. To be eligible for an evidentiary


                                          62
hearing, Hill would then need to demonstrate that he was diligent in attempting to

develop the factual underpinnings of his claim. 28 U.S.C. § 2254(e)(2) (restricting

a district court’s discretion to hold evidentiary hearings where the petitioner “failed

to develop the factual basis of a claim in State court proceedings”); Williams v.

Taylor, 529 U.S. 420, 430, 120 S. Ct. 1479, 1487, 146 L. Ed. 2d 435 (2000)

(“‘[F]ailed to develop’ implies some lack of diligence . . . .”). Nothing in the

record suggests that Hill would be barred by § 2254(e)(2)’s restriction. Therefore,

the district court would have had the discretion to hold an evidentiary hearing

according to pre-AEDPA rules. Williams v. Allen, 542 F.3d 1326, 1346–47 (11th

Cir. 2008) (analyzing the petitioner’s request for an evidentiary hearing under the

standards set out by Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d

770 (1963)).

      At this point, Hill could have argued that the district court was required to

hold an evidentiary hearing because the beyond-a-reasonable-doubt standard

deprived him of a “full and fair hearing.” See Kelley v. Sec’y for Dep’t of Corr.,

377 F.3d 1317, 1334 (2004) (quoting Townsend, 372 U.S. at 313, 83 S. Ct. at 757);

see also Quince, 360 F.3d at 1262–63 (stating that the state post-conviction judge’s

conflict of interest could have been a basis for arguing that the state post-




                                          63
conviction proceeding was not “full and fair”).4 His argument here would mirror

the grounds he asserts for habeas relief. Claims of mental retardation are

incredibly fact-intensive and could devolve into a swearing match between

conflicting, and equally qualified, experts. This swearing match could easily—if

not always—create reasonable doubt that the defendant is not mentally retarded.5

By erecting this higher burden, the State effectively put its thumb on the scale

against a defendant’s mental-retardation defense. The state post-conviction trial

court demonstrated this point; it found Hill mentally retarded by a preponderance

of the evidence, but not beyond a reasonable doubt. Therefore, the State’s unfair

thumb—the beyond-a-reasonable-doubt standard—deprived Hill of full and fair

post-conviction hearing, and he would be entitled to an evidentiary hearing in

federal court.6


       4
          The pre-AEDPA version of 28 U.S.C. § 2254(d) explicitly tied the “full and fair
hearing” concept to due process. That provision provided that state court fact findings would be
presumed correct unless, “the fact finding procedure employed by the state court was not
adequate to afford a full and fair hearing; . . . [or] the applicant was otherwise denied due process
of law in the State court proceeding . . . .” 28 U.S.C. § 2254(d)(2), (7) (1995).
       5
          This appears to have happened in Hill’s case. Both the defense and the State presented
the testimony of highly qualified, reputable expert witnesses. Hill’s expert opined that Hill had
significant adaptive-functioning limitations and therefore was mentally retarded; the State’s
expert opined that he did not and therefore was not. To prevail under the beyond-a-reasonable-
doubt standard, the post-conviction court had to not only agree with Hill’s expert; it had to find
no basis for agreeing with the State’s expert’s opinion, which served as the main source of
reasonable doubt against Hill’s mental-retardation defense.
       6
          And, assuming he was granted a hearing, he would have to rebut the state court’s
finding that he was not mentally retarded with clear and convincing evidence. 28 U.S.C.

                                                 64
       The previous paragraphs illustrate how Hill should have attacked the

beyond-a-reasonable-doubt standard applied during his state post-conviction

hearing. Instead, he asks this court for a writ of habeas corpus—and not an

evidentiary hearing—to remedy this alleged due process violation. I would

therefore affirm the denial of Hill’s petition because due process violations during

state post-conviction proceedings are not grounds for habeas relief.




§ 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 266, 125 S. Ct. 2317, 2340, 162 L. Ed. 2d 196
(2005).

                                              65
BARKETT, Circuit Judge, dissenting, in which MARCUS and MARTIN, Circuit
Judges, join:

       Although Georgia was the first state to declare that the mentally retarded

should not be executed, it is the only one to guarantee precisely the opposite result

by requiring offenders to prove beyond a reasonable doubt that they are mentally

retarded.1 Requiring proof beyond a reasonable doubt, when applied to the highly

subjective determination of mental retardation, eviscerates the Eighth Amendment

constitutional right of all mentally retarded offenders not to be executed, contrary

to Atkins v. Virginia, 536 U.S. 304, 321 (2002).

       The fallacy underlying the majority’s opinion is its belief that because

Atkins “made no reference to, much less reached a holding on, the burden of

proof,” there is no “clearly established” Supreme Court precedent that explicitly

tells us that the beyond a reasonable doubt standard is unconstitutional. Thus, the

majority holds that it must defer to the state court’s decision upholding this

standard. Taken to its logical conclusion in this case, such deference permits states

       1
          Georgia is the only state to require proof of mental retardation beyond a reasonable
doubt. Of those other states that impose the death penalty, twenty-three states and the federal
government require the offender to prove his mental retardation by a preponderance of the
evidence (Alabama, Arkansas, California, Idaho, Indiana, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, South
Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington). New Mexico and
Illinois both recently repealed their death penalty but previously had required a preponderance
standard. Another five states—Arizona, Colorado, Delaware, Florida, and North
Carolina—have adopted a clear and convincing standard. Six states, Connecticut, Kansas,
Montana, New Hampshire, Oregon and Wyoming, have not set a standard of proof.

                                               66
to adopt procedures that effectively exclude nearly every mentally retarded

offender from the protection of Atkins. This deference requires so detailed and

demanding a level of specificity in Supreme Court holdings that it eliminates any

federal review whatsoever. Indeed, the State’s position, endorsed by the majority,

is that Atkins does not preclude the State from setting the bar of proof as high as it

wishes or defining mental retardation to include only those persons whose IQ falls

below 30, a level which includes only 4% of the mentally retarded, thereby leaving

96% of all recognized mentally retarded persons subject to execution. This cannot

be squared with the command of Atkins, which protects all of the mentally retarded

from execution—whether their mental retardation is mild or severe. And when a

state court decision eviscerates the substantive constitutional right the Supreme

Court has explicitly recognized, it is contrary to that Supreme Court precedent.

      For the reasons amplified below, I believe that Supreme Court precedent has

clearly established that no State is constitutionally permitted to execute mentally

retarded offenders. Nor does the State have unfettered discretion to establish

procedures that through their natural operation will deprive the vast majority of

mentally retarded offenders of their Eighth Amendment right not to be executed.

Because the state court’s decision is contrary to clearly established Supreme Court




                                          67
law, it is owed no AEDPA deference. See 28 U.S.C. § 2254(d).2

       I.      Atkins Clearly Established that the Eighth Amendment Protects All
               Mentally Retarded Offenders from Execution

       The majority first errs in suggesting that Atkins did not clearly establish that

all of the mentally retarded are protected from execution. Contrary to both the

majority’s assertion that “Atkins did not bestow a substantive Eighth Amendment

right to a fixed and rigid definition of mentally retarded persons” and the State’s

       2
          Under AEDPA, a federal court may grant habeas relief for a claim denied on the merits
by a state court when the state court decision “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d). No AEDPA deference is due where
preexisting Supreme Court precedent “dictate[s]” a rule or result contrary to the state court’s
decision. Williams v. Taylor, 529 U.S. 362, 391 (2000); Carroll v. Sec’y, DOC, 574 F.3d 1354,
1370 (11th Cir. 2009). A decision is contrary to clearly established federal law if “the state court
applied a rule that contradicts with the governing law set forth by Supreme Court case law.”
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). When the state court fails to “correctly
identif[y],” Williams, 529 U.S. at 406, or applies a rule “substantially different from,” id. at 405,
the appropriate legal rule, the state court’s decision is “contrary to” Supreme Court law. Id. at
405-06. Deciding a constitutional entitlement using a standard of proof foreclosed by Supreme
Court precedent constitutes a decision that is “contrary to” federal law. See id.
        The majority details a litany of unrelated cases recently handed down by the Supreme
Court to remind us that AEDPA constrains our review. However, in all but one of the cases, the
particular issue before the Court carried its own highly deferential standard of review, resulting
in “dual layers” of deference, Renico v. Lett, 130 S. Ct. 1855, 1865 (2010). See Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011) (“Our review of the California Supreme Court’s
decision is thus doubly deferential. We take a highly deferential look at counsel’s performance
[under] Strickland, through the deferential lens of § 2254(d).” (internal quotation marks and
citations omitted)); Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review
is doubly so . . . .” (internal quotation marks and citations omitted)); Premo v. Moore, 131 S. Ct.
733, 740 (2011) (same); Lett, 130 S. Ct. at 1865 (holding that “AEDPA and our double jeopardy
precedents” require “dual layers of deference”); Thaler v. Haynes, 130 S. Ct. 1171, 1172-73
(2010) (reviewing objection to a peremptory challenge under Batson v. Kentucky, 476 U.S. 79
(1986), which is reviewed on appeal under the “clearly erroneous” standard). By contrast, Hill’s
claim is subject to only a single layer of AEDPA deference, unencumbered by a secondary layer
of deference to the discretionary decisions of trial judges.

                                                 68
contention that it could, if it chose to do so, limit the protection of Atkins to those

with an IQ of 30 or below, the Supreme Court extended the Eighth Amendment

right to the entire class of mentally retarded, which it recognized in Atkins ranges

from those with mild to profound mental retardation.

      Relying on the medical consensus embodied in the clinical manuals of the

American Psychiatric Association (APA) and the American Association on Mental

Retardation (AAMR),3 the Supreme Court recognized that mental retardation spans

a spectrum of intellectual impairment, ranging from mild to moderate to severe to

profound mental retardation. See Atkins, 536 U.S. at 309 n.3, 317 n.22 (citing

APA, Diagnostic and Statistical Manual of Mental Disorders 41-43 (4th ed. 2000)

(“DSM-IV”); AAMR, Mental Retardation: Definition, Classification, and Systems

of Supports 5 (9th ed. 1992) (“AAMR 1992 Manual”)); see also City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 442 n.9 (1985) (acknowledging that

“[m]entally retarded individuals fall into four distinct categories”—mild, moderate,

severe and profound). Atkins’s command to enforce the substantive constitutional

right applies to this entire “range of mentally retarded offenders about whom there

is a national consensus.” Atkins, 536 U.S. at 317.

      Moreover, within the universe of all mentally retarded individuals, 89% fall

      3
       The AAMR is now known as the American Association on Intellectual and
Developmental Disabilities (AAIDD).

                                           69
in the mildly mentally retarded range, a fact the Supreme Court recognized many

years before Atkins was decided. See Cleburne Living Ctr., 473 U.S. at 442 n.9.

See also DSM-IV at 41-43 (classifying 89% of the universe of mentally retarded as

mild, 7% as moderate, and the remaining 4% as severe or profound). Indeed,

Atkins specifically recognized that “[m]ild mental retardation is typically used to

describe people with an IQ level of 50-55 to approximately 70.” 536 U.S. at 309

n.3. More importantly, the Court had previously recognized that the mildly

mentally retarded were the only members of the class of all mentally retarded who

would be likely to reach the point of sentencing in criminal cases. See Penry v.

Lynaugh, 492 U.S. 302, 333 (1989) (citing ABA Standards for Criminal Justice

7-9.1, commentary, p. 460 (2d ed. 1980)). Thus, of those who are mentally

retarded, it is the mildly mentally retarded who not only are entitled to Atkins

protection, but are most likely to need it.

      The state court’s decision, however, endorses the use of a standard of proof

so high that it effectively limits the constitutional right protected in Atkins to only

those who are severely or profoundly mentally retarded. In holding that Atkins

applies only to “those whose mental deficiencies are significant enough to be

provable beyond a reasonable doubt,” Head v. Hill, 587 S.E.2d 613, 622 (Ga.

2003), Georgia’s determination is directly contrary to Atkins’s command to protect


                                              70
from execution all of the mentally retarded. That a mildly mentally retarded

individual’s “mental deficiencies” are less “significant” than the deficits of one

who is severely or profoundly mentally retarded does not alter the indisputable fact

that both are mentally retarded and entitled to the protection of the Eighth

Amendment. Indeed, the offender in Atkins himself was only mildly mentally

retarded. Atkins, 536 U.S. at 308. Thus, when the Supreme Court announced that

“the Constitution places a substantive restriction on the State’s power to take the

life of a mentally retarded offender,” id. at 321, there can be no doubt that it was

extending this protection to all of the mentally retarded, whether classified as mild

or “significant enough to be provable beyond a reasonable doubt.” Head v. Hill,

587 S.E.2d at 622.

      II.    States May Not Procedurally Eviscerate Substantive Constitutional
             Rights

      The majority also errs in holding that Atkins does not place any

constitutional restraint on state procedures pertaining to the execution of the

mentally retarded. In Atkins, the Supreme Court not only prohibited the execution

of any mentally retarded offender, but also commanded states to “develop[]

appropriate ways to enforce the constitutional restriction upon their execution of

sentences.” 536 U.S. at 317. Thus, states have an affirmative duty to “develop[]

appropriate ways to enforce” the constitutional right of the mentally retarded.

                                          71
       Notwithstanding the command to enforce the constitutional restriction, the

majority holds that states have complete discretion to choose any procedures to

govern the determination of mental retardation. Not only is this position based on

a flawed reading of Atkins, it is also contrary to Bailey v. Alabama, which clearly

establishes that if a State’s procedures transgress a substantive constitutional right,

“in their natural operation,” those procedures are unconstitutional. 219 U.S. 219,

239, 245 (1911).4

       In Bailey, a defendant successfully challenged, as a violation of the

Thirteenth Amendment, a state procedural rule. Id. at 244. Although the Court in

Bailey recognized that states generally possess the power to prescribe procedures

affecting their own laws, the Court went on to hold that this state power is limited

when federal constitutional rights are at stake:

       [W]here the conduct or fact . . . , itself falls within the scope of a
       provision of the Federal Constitution, a further question arises. It is
       apparent that a constitutional prohibition cannot be transgressed
       indirectly by the creation of a statutory presumption any more than it

       4
           In Bailey, Alabama made it a crime to enter into a contract for employment with the
intent to injure or defraud an employer by refusing to perform the contracted services after being
paid. Id. at 227-28. The statute also provided that failure to perform the service without
refunding the money was prima facie evidence of the fraudulent criminal intent. Id. The
defendant challenged his conviction arguing, inter alia, that the statutory presumption of
fraudulent intent violated the Thirteenth Amendment’s prohibition against involuntary servitude.
Id. at 239. The Supreme Court agreed, finding that the State’s presumption was unconstitutional
as a State could not “compel one man to labor for another in payment of a debt, by punishing
him as a criminal if he does not perform the service or pay the debt” without violating the
Thirteenth Amendment. Id. at 244.

                                               72
      can be violated by direct enactment. The power to create
      presumptions is not a means of escape from constitutional restrictions.
      And the state may not in this way interfere with matters withdrawn
      from its authority by the Federal Constitution, or subject an accused to
      conviction for conduct which it is powerless to proscribe.

Id. at 239 (emphasis added). Succinctly put, “[w]hat the state may not do directly

it may not do indirectly.” Id. at 244. “If it cannot punish the servant as a criminal

for the mere failure or refusal to serve without paying his debt, it is not permitted

to accomplish the same result by creating a statutory presumption which, upon

proof of no other fact, exposes him to conviction and punishment.” Id. Likewise

here, because the State cannot directly authorize the execution of the mentally

retarded, it cannot do so indirectly by creating a statutory burden of proof which

assures the same result. And whether a state procedural or evidentiary rule

transgresses a constitutional command is judged by whether “the natural operation

of the statute” produces the proscribed result, not whether the statute or its enactors

betray such an intention. Id. Although the Georgia state court in this case was

constrained by these binding Supreme Court holdings, it utterly failed to “correctly

identif[y]” this precedent, Williams, 529 U.S. at 406, and instead “applied a rule

that contradicts” it, Putman, 268 F.3d at 1241, thus depriving the state court’s

decision of AEDPA deference.

      In Speiser v. Randall, the Court again imposed express constitutional limits


                                          73
on state procedural rules implicating federal constitutional rights in the specific

context of confronting a state law placing the burden of proof on an individual.

357 U.S. 513 (1958).5 The Court declared that when federal constitutional rights

are at issue, the State “must provide procedures which are adequate to safeguard

against infringement of constitutionally protected rights.” Id. at 521. More

explicitly, because the vindication of a legal right often turns on the fact-finding

process “the procedures by which the facts of the case are determined assume an

importance fully as great as the validity of the substantive rule of law to be

applied.” Id. at 520. “[T]he more important the rights at stake the more important

must be the procedural safeguards surrounding those rights.” Id. at 520-21.

Relying on Bailey, the Court in Speiser concluded that the State’s placement of the

burden of proof on the individual could not stand because it “necessarily

produce[d] a result which the State could not command directly,” in that it

“result[ed] in a deterrence of speech which the Constitution makes free.” Id. at

526. Again here, the state court utterly failed to identify and apply this governing

Supreme Court precedent, by failing even to confront the fact that requiring an

offender to prove mental retardation beyond a reasonable doubt “necessarily


       5
          In Speiser, the Court was asked to consider the constitutionality of a state statute
requiring taxpayers to bear the burden of proving that “they are not persons who advocate the
overthrow of the government,” which implicated First Amendment free speech rights. 357 U.S.
at 521.

                                              74
produce[s] a result which the State could not command directly,” id., namely,

making the mildly and even moderately mentally retarded eligible for execution.6

       More recently, in Ford v. Wainwright, the Court reiterated the constitutional

limitation on a State’s power to prescribe procedures affecting the determination of

a substantive constitutional right. 477 U.S. 399 (1986). In Ford, the Court was

asked to resolve two questions: “whether the Eighth Amendment prohibits the

execution of the insane” and, if so, whether one is entitled to a hearing on a claim

of insanity. Id. at 405. In addressing the adequacy of the State’s procedures to

determine sanity, a majority of the Court first noted that if the right was merely a

state-created one, the only question would be whether the State’s procedures

effected the State’s own policy of protecting the insane from execution. Id.

However, a majority of the Court explained the adequacy of a State’s procedures

must be viewed in a completely different light if “the Constitution places a

substantive restriction on the State’s power to take the life of an insane prisoner.”



       6
            The majority disregards Bailey and Speiser concluding that they are not Eighth
Amendment cases. Indeed they are not. Instead the Court’s pronouncement that “the state may
not . . . interfere with matters withdrawn from its authority by the Federal Constitution,” Bailey,
219 U.S. at 239, and hence “may not do indirectly” that which it “may not do directly,” id. at 244
(emphasis added), is a command that is not limited to only the First Amendment (Speiser) or the
Thirteenth Amendment (Bailey), but is one that applies to all federal substantive constitutional
rights, including the Eighth Amendment right at issue in Atkins. Moreover, even if the
challenged laws in those cases also violated individual procedural due process rights—as the
majority reads these cases—the principle that State action cannot indirectly transgress
substantive constitutional rights is no less the authoritative holding of Bailey and Speiser.

                                                75
Id. Having then held that the execution of the insane was prohibited by the Eighth

Amendment, a majority of the Court in Ford determined that the state procedures at

issue were inadequate to protect the substantive federal constitutional right of the

insane not to be executed. Id. at 416 (plurality opinion); id. at 424-25 (Powell, J.,

concurring in part and concurring in judgment). As in Ford, the State’s burden of

proof here is inadequate to protect the substantive federal constitutional right of the

mentally retarded not to be executed. The state court disregarded this precedent in

concluding that Georgia’s standard of proof was constitutional.

      In sum, by holding that “Atkins does not require any specific burden of

proof and explicitly leaves such procedural matters to the states” without

limitation, the majority improperly defers to a state court ruling that is in direct

conflict with Bailey v. Alabama and its progeny. Under these cases, a State cannot

create procedures that effectively eviscerate a substantive constitutional right, but

rather “must provide procedures which are adequate to safeguard against

infringement of [the] constitutionally protected right[].” Speiser, 357 U.S. at 521.

      Thus, the question before the Supreme Court of Georgia was whether

Georgia’s burden of proof eviscerates the substantive constitutional right of the

mentally retarded not to be executed. Rather than answering the question, as

Bailey requires, of whether Georgia’s standard of proof necessarily results in that


                                           76
which Atkins has held is constitutionally prohibited, the state court wholly

sidestepped the requisite analysis.

      The state court’s erroneous decision, to which the majority defers, instead

was based on inapplicable Supreme Court precedent, further depriving the state

court decision of AEDPA deference. See 28 U.S.C. § 2254(d). Rather than

relying on the clearly established law of Bailey, Speiser, and Ford, the state court

looked to the Supreme Court’s decision in Leland v. Oregon, 343 U.S. 790 (1952).

In that case, the Supreme Court held that the statutory requirement of proof beyond

a reasonable doubt for the state-created affirmative defense of insanity did not

violate the federal constitution. Leland, 343 U.S. at 799. The Supreme Court

upheld Oregon’s standard of proof expressly because the affirmative defense was

exclusively a state-created right and did not involve any federal constitutional

protection. Id. at 798. Simply put, there was no constitutional right at stake in

Leland. Thus, Leland is inapposite on its own terms where the right at issue is one

secured by the federal constitution. Where, as in this case, a constitutionally

protected right—the Eighth Amendment—is at stake, Bailey, Speiser, and Ford,

and not Leland, direct the analysis and require a different result.

      The Supreme Court of Georgia’s decision fails to recognize that when a

constitutional right is at issue, a State cannot chose a process that will effectively


                                           77
gut that right. And the majority condones this disregard of Supreme Court law by

simply asserting that because Atkins did not expressly establish a particular

standard of proof, the State can choose any procedural scheme it wishes. Clearly

established Supreme Court law forbids this result.

       III.    Requiring Proof Beyond A Reasonable Doubt When Applied to the
               Highly Subjective Determination of Mental Retardation Eviscerates
               the Eighth Amendment Right of Mentally Retarded Offenders Not To
               Be Executed

       Requiring the mentally retarded to prove their mental retardation beyond any

reasonable doubt will inevitably lead, through the rule’s natural operation, to the

frequent execution of mentally retarded individuals, thus depriving the mentally

retarded of their constitutional right “to procedures which are adequate to

safeguard against” their execution.7 See Speiser, 357 U.S. at 521. This is so

because placing this highest of standards of proof upon such offenders places upon

them practically all of the risk of an erroneous determination.8 The risk is

compounded here because the fact of mental retardation has to be based on a

psychiatric diagnosis, “the subtleties and nuances” of which the Supreme Court has



       7
        The State itself at oral argument recognized that Georgia’s standard of proof beyond a
reasonable doubt will result in the execution of some mentally retarded offenders.
       8
         The Supreme Court has explained that the beyond a reasonable doubt standard shifts
“almost the entire risk of error” to the party bearing the burden of proof. Addington v. Texas,
441 U.S. 418, 424 (1979).

                                               78
recognized “render certainties beyond reach in most situations.” Addington, 441

U.S. at 430. Thus, mental retardation is almost never provable beyond a

reasonable doubt (at least where contested), and the “risk” of an erroneous

determination resulting in a wrongful execution approaches a near certainty.

       For any factual question, “[t]he more stringent the burden of proof a party

must bear, the more that party bears the risk of an erroneous decision.” Cruzan v.

Dir., Mo. Dept. of Health, 497 U.S. 261, 283 (1990).9 Accordingly, when a

procedural scheme requires one party to bear the burden of establishing a particular

fact by the most stringent standard of proof that our legal system

recognizes—proof beyond a reasonable doubt—it reflects society’s desire that the

party with the burden should bear the overwhelming risk of erroneous

decisionmaking.10 Thus, for example, because “the interests of the defendant

[facing a criminal charge] are of such magnitude, . . . historically they have been

protected by standards of proof designed to exclude as nearly as possible the

likelihood of an erroneous judgment”—that is, by requiring proof of his guilt

       9
          See also Cooper v. Oklahoma, 517 U.S. 348, 366 (1996) (“A heightened standard [of
proof] does not decrease the risk of error, but simply reallocates that risk between the parties.”);
Addington, 441 U.S. at 423 (“The standard [of proof] serves to allocate the risk of error between
the litigants.”).
       10
          As Justice Harlan explained in his concurring opinion, “[b]ecause the standard of proof
affects the comparative frequency of . . . erroneous outcomes, the choice of the standard to be
applied in a particular kind of litigation should, in a rational world, reflect an assessment of the
comparative social disutility of each.” In re Winship, 397 U.S. 358, 371 (1970).

                                                 79
beyond a reasonable doubt. Addington, 441 U.S. at 423 (emphasis added).11 Here,

despite longstanding principles,12 the burden Georgia places on a capital offender

to prove the ultimate fact on which his Eighth Amendment right depends allocates

almost the entire risk of error to the offender while leaving virtually none of it with

the State. In other words, Georgia has decided that it is far better to erroneously

execute a mentally retarded person than to erroneously imprison for life one who is

not mentally retarded.13


       11
          This reflects society’s belief that “it is far worse to convict an innocent man than to let
a guilty man go free.” In re Winship, 397 U.S. at 372 (Harlan, J., concurring).
       12
          See Gregg v. Georgia, 428 U.S. 153, 187 (1976) (plurality opinion) (“When a
defendant’s life is at stake, the Court has been particularly sensitive to insure that every
safeguard is observed.”); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality
opinion) (“Because of th[e] qualitative difference [between life imprisonment and punishment by
death], there is a corresponding difference in the need for reliability in the determination that
death is the appropriate punishment in a specific case.” (internal citation omitted)).
       13
           The majority’s argument on this point is internally inconsistent. On the one hand, the
majority refuses to accept the possibility of error, arguing that because the states have unchecked
authority to choose the procedures by which an offender must establish the fact of mental
retardation, one who partakes of those procedures but fails to be labeled by the State as mentally
retarded is therefore conclusively not mentally retarded. Under this reasoning, there can be no
such thing as an erroneous determination of mental retardation—an offender is mentally retarded
if and only if the output of the State’s procedures declares him to be. By contrast, the majority
later admits that “[e]very standard of proof allocates some risk of an erroneous factual
determination to the defendant and therefore presents some risk that mentally retarded offenders
will be executed in violation of Atkins,” and, under any standard of proof, there is a risk “that the
trier of fact will conclude that the offender is not mentally retarded when, in fact, he is.” The
majority cannot have it both ways.
         Moreover, the majority’s assertion that the beyond a reasonable doubt standard is not
contrary to Atkins because it is merely “one aspect of a multifaceted fact-finding process under
Georgia law” is beside the point. No matter how many procedures, hearings, and evidentiary
opportunities Georgia provides, the law remains that every one of those procedural opportunities
will be governed by one, and only one, standard of proof—beyond a reasonable doubt. Thus, the

                                                 80
       Moreover, not only is the risk of error allocated overwhelmingly to the

offender, but it is also enlarged exponentially by the highly subjective nature of the

inquiry into mental retardation, making it even clearer that the reasonable doubt

standard unquestionably will result in the execution of those offenders that Atkins

protects. Mental retardation is a medical condition that is diagnosed only through,

among other things, a subjective standard that requires experts to assess intellectual

functioning and to interpret the meaning of behavior long into the offender’s past.

Given the imprecise nature of the mental retardation determination, “the possibility

of mistaken factfinding inherent in all litigation,” Speiser, 357 U.S. at 526

(emphasis added), becomes a near-certainty in this context.

       Prior to its decision in Atkins, the Supreme Court had already expressed its

doubt that psychiatric conditions could ever be proved beyond a reasonable doubt.

In discussing the determination of an individual’s mental condition in the context

of civil commitment, the Court recognized that “[g]iven the lack of certainty and


majority’s concern that it is erroneous to consider the constitutionality of the standard of proof in
isolation from the panoply of Georgia’s procedures is of no moment. In resolving whether
Georgia’s standard of proof of beyond a reasonable doubt is contrary to Atkins’s command, it is
understood that the entirety of the procedural scheme for the factual determination of mental
retardation, including each of the specific procedural “rights” that the majority cites, is subjected
to the most exacting standard of proof that our legal system tolerates. Thus, just as the majority
urges that “we should not ignore the full range of rights available to a capital defendant claiming
mental retardation,” we cannot ignore that each and every one of those “full range of rights” is
constrained by the beyond a reasonable doubt standard of proof.


                                                 81
the fallibility of psychiatric diagnosis, there is a serious question as to whether [a

litigant] could ever prove beyond a reasonable doubt that an individual is both

mentally ill and likely to be dangerous. . . . The subtleties and nuances of

psychiatric diagnosis render certainties virtually beyond reach in most situations.”

Addington, 441 U.S. at 429-30; see also Ford, 477 U.S. at 426 (Powell, J.,

concurring) (explaining that the question of sanity, unlike issues of historical fact,

“calls for a basically subjective judgment” that “depends substantially on expert

analysis in a discipline fraught with subtleties and nuances”) (internal quotation

marks omitted).

       The determination of mental retardation—generally characterized as

significantly subaverage intellectual functioning accompanied by significant

deficits in adaptive skills that manifested before the age of eighteen14—presents

exactly the same concerns noted in Addington and Ford. The determination

inescapably rests on expert opinions, which in turn are “based on medical

‘impressions’ drawn from subjective analysis,” Addington, 441 U.S. at 430, of

scattered pieces of information, themselves distilled from the subjective views of

others.


       14
          Georgia’s definition of mental retardation essentially tracks the authoritative medical
definitions quoted by the Supreme Court in Atkins. See 536 U.S. at 308 n.3 (quoting DSM-IV;
AAMR 1992 Manual); see Ga. Code Ann. § 17-7-131(a)(3).

                                                82
       An individual’s intellectual functioning is measured through various

standardized tests, the results of which are subject to variable interpretation.15

And, the requirement that an individual possess adaptive skills impairments and

that they have manifested before age eighteen further complicates the assessment.

Adaptive behavior is “the collection of conceptual, social, and practical skills that

have been learned and are performed by people in their everyday lives.” See

AAIDD, Intellectual Disability: Definition. Classification, and Systems of Support

45 (11th ed. 2010) (“AAIDD Manual”). The AAIDD itself admits that adaptive

skills impairment is an “elusive” concept, depending on interviews, observation

and professional judgment for diagnosis. See AAMR, Mental Retardation:

Definition, Classification, and Systems of Supports 39-40, 89-90 (10th ed. 2002).

The expert must make a subjective assessment of the individual’s actions across

various contexts in numerous relevant skill areas including “communication,

self-care, home living, social/interpersonal skills, use of community resources,

self-direction, functional academic skills, work, leisure, health, and safety,” Atkins,

536 U.S. at 308 n.3, none of which is singularly determinative nor subject to


       15
         For example, this circuit has recognized that the statistical phenomenon known as the
Flynn Effect and the Standard Error of Measurement of plus or minus 5% can be applied by a
test administrator to an individual’s raw IQ test score when arriving at a final IQ score. See
Thomas v. Allen, 607 F.3d 749, 753, 757-58 (11th Cir. 2010).


                                              83
quantifiable precision.

       This assessment also necessarily “looks backwards—past even the time of

the crime and back into the developmental period,” United States v. Hardy, 762 F.

Supp. 2d 849, 881 (E.D. La. 2010), which may be as many as thirty years, as for

Hill. According to professional standards, a proper retrospective analysis entails a

“longitudinal approach of adaptive behavior that involves multiple raters, very

specific observations across community environments . . . , school records, and

ratings by peers in the development process.” Thomas v. Allen, 614 F. Supp. 2d

1257, 1290 (N.D. Ala. 2009) (quoting AAIDD, User’s Guide: Mental Retardation:

Definition, Classification and Systems of Support 17-20 (2007) (“AAIDD User’s

Guide”)), aff’d, 607 F.3d 749 (11th Cir. 2009). A clinician conducting this

retrospective diagnosis must assess a “thorough social history” of the individual,

including “investigat[ing] and organiz[ing] . . . all relevant information about the

person’s life,” and “explor[ing] . . . possible reasons for absence of data or

differences in data”; she must also “[c]onduct a thorough review of school

records,” and contact teachers and peers from the subject’s adolescence, looking

for evidence of deficits in cognitive, adaptive, or social skills. Id. (quoting AAIDD

User’s Guide, at 17-20).

      Where the proof must be beyond a reasonable doubt, common sense tells us


                                          84
that requiring reliance on these unavoidably incomplete and subjective sources of

information renders the Atkins claimant’s job a near-impossible task.

Compounding the difficulty of this inherently subjective diagnosis is that all of the

relevant proof will be presented to a judge or jury via the dueling views of mental

health experts who have evaluated subtle and often contradictory aspects of the

offender’s behavioral history, often times through second- or third-hand accounts

of a long distant past not subject to direct observation. Because of the subjectivity

of both the diagnosis and the documentation of the offender’s childhood, experts

are bound to disagree about whether an offender is mentally retarded. Obviously,

the less severe an individual’s mental retardation, the more susceptible his

condition is to differing interpretations by the experts. For these offenders, the

result of the experts’ dispute about whether the offender falls just within or just

outside the ambit of mental retardation is some quantum of irreducible

doubt—which in Georgia amounts to a death sentence.

      Indeed, the Supreme Court discussed at length how Atkins himself was

unable to convince a jury and the Virginia state courts that he was mildly mentally

retarded because of the disagreement between his expert and the state’s expert on

the meaning of his intellectual functioning and behavioral history. See Atkins, 536

U.S. at 308-09 n.4, n.5, n.6. Despite the defense expert’s testimony that Atkins had


                                          85
a full-scale IQ of 59 and was only the second capital defendant, out of forty, that

the expert had ever found to meet the criteria for mental retardation, the state’s

expert opined that Atkins was not mentally retarded but of “average intelligence, at

least,” id. at 309, and explained Atkins’s abominable academic performance by

saying he “did poorly because he did not want to do what he was required to do,”

id. at 309 n.6. And although the dissenting justices on the Virginia Supreme Court

rejected the state’s expert’s opinion that “Atkins possesses average intelligence as

‘incredulous as a matter of law,’” id. at 310 (quoting Atkins v. Commonwealth,

534 S.E.2d 312, 323 (Va. 2000)), the majority of the state supreme court refused to

excuse Atkins from execution “merely because of his IQ score,” id. (quoting

Atkins v. Commonwealth, 534 S.E.2d at 321).

      Likewise, the proceedings in Hill’s case illustrate the inherent challenge of

proving the fact of mental retardation beyond a reasonable doubt, again particularly

for the mildly mentally retarded. After a lengthy hearing, the state habeas trial

court found that Hill had proven beyond a reasonable doubt that he had an IQ

indicating mild mental retardation. Yet, it also found that Hill had not

demonstrated sufficient “deficits in adaptive skills functioning” beyond a

reasonable doubt, only because there was no unanimity of opinion by the experts.

Virtually all of the testifying experts personally met with Hill and reviewed


                                          86
essentially the same documentation, yet they disagreed about the meaning of Hill’s

behavior during his developmental period. Thus, although the state habeas court

ultimately found that Hill was probably mentally retarded,16 it was precluded from

granting Atkins relief because Georgia limited this constitutionally guaranteed

right to only those individuals who could establish mental retardation beyond any

reasonable doubt, a standard that cannot be met when experts are able to formulate

even the slightest basis for disagreement.

       Moreover, as the trial proceedings in both Atkins’s and Hill’s cases

demonstrate, it is apparent that mildly mentally retarded offenders—89% of the

universe of all mentally retarded17—face the greatest difficulty in satisfying the



       16
           The majority suggests that there is no finding in this case that Hill is mentally retarded
by a preponderance of the evidence. There is no question that the state habeas court found this
to be a fact. See Head v. Hill, No. 94-V-216, Order on Petitioner’s Motion for Reconsideration
of Denial of Habeas Relief (Ga. Super. Ct. Nov. 19, 2002) (“Under [the preponderance]
standard, this Court would find Petitioner to be mentally retarded.”). That the state habeas court,
on remand, complied with the mandate of the state supreme court to apply the higher standard of
proof does not alter the fact that the state habeas court would have found Hill to be mentally
retarded under a less stringent standard of proof.
        The majority’s efforts on several occasions to engage in its own speculation about Hill’s
mental retardation is not only an impermissible attempt to re-adjudicate the fact of Hill’s mental
retardation but also goes astray of the sole legal question before this en banc court.


       17
          The mildly mentally retarded comprise the largest percentage of the universe of
mentally retarded individuals who would be in the position to mount an Atkins claim. See
Penry, 492 U.S. at 333 (noting that “most retarded people who reach the point of sentencing are
mildly retarded”); Marc J. Tasse, Adaptive Behavior and the Diagnosis of Mental Retardation in
Capital Cases, 16 Applied Neuropsychology 114, 117 (2009) (noting that the mildly mentally
retarded make up the “vast majority of Atkins claims, if not all”).

                                                 87
standard, and are at the greatest risk of an erroneous determination that they are not

mentally retarded. In the first place, their IQ score is frequently within an error

range of a non-mentally retarded person. Moreover, with respect to adaptive skills,

most mentally retarded individuals, especially those whose mental retardation is

mild, “present a mixed competence profile.” AAIDD User’s Guide, at 16.

Individuals with mild mental retardation may “manifest subtle limitations that are

frequently difficult to detect, especially in academic skills, planning, problem

solving, and decision making, and social understanding and judgment.” Id.

      These adaptive abilities are frequently mischaracterized by judicial

factfinders as evidence that the individual is not retarded. Indeed, this Court and

the Fifth Circuit have recognized that mildly mentally retarded individuals are

capable of holding jobs, driving cars, paying bills, taking care of their families, and

so forth. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010); Wiley v. Epps,

625 F.3d 199, 217 (5th Cir. 2010); see also Holladay v. Allen, 555 F.3d 1346, 1363

(11th Cir. 2009) (defendant’s expert “cogently explained” that “some of what

Alabama points to as strengths are activities that an individual with mild mental

retardation is capable of performing”). Therefore, the existence of the fact of

mental retardation, especially in the case of mild mental retardation, will almost

always be open to some doubt.


                                          88
       Indeed, a review of published Georgia state court cases adjudicating mental

retardation in the capital context confirms just how extraordinarily difficult it is for

an offender to meet the beyond a reasonable doubt standard.18 Although Georgia

       18
           See Hall v. Lewis, 692 S.E.2d 580 (Ga. 2010); Foster v. State, 656 S.E.2d 838 (Ga.
2008); Ledford v. Head, 2008 WL 754486 (N.D. Ga. 2008); Rogers v. State, 653 S.E.2d 31, 35
(Ga. 2007); Schofield v. Holsey, 642 S.E.2d 56 (Ga. 2007); Perkinson v. State, 610 S.E.2d 533
(Ga. 2005); Morrison v. State, 583 S.E.2d 873 (Ga. 2003); Head v. Stripling, 590 S.E.2d 122
(Ga. 2003); Head v. Hill, 587 S.E.2d 613 (Ga. 2003); Head v. Ferrell, 554 S.E.2d 155 (Ga.
2001); Foster v. State, 525 S.E.2d 78, 79 (Ga. 2000); King v. State, 539 S.E.2d 783 (Ga. 2000);
Heidler v. State, 537 S.E.2d 44 (Ga. 2000); Torres v. State, 529 S.E.2d 883 (Ga. 2000); Lyons v.
State, 522 S.E.2d 225 (Ga. 1999); Palmer v. State, 517 S.E.2d 502 (Ga. 1999); Stephens v. State,
509 S.E.2d 605 (Ga. 1998); Jenkins v. State, 498 S.E.2d 502 (Ga. 1998); Mosher v. State, 491
S.E.2d 348 (Ga. 1997); Raulerson v. State, 491 S.E.2d 791 (Ga. 1997); Burgess v. State, 450
S.E.2d 680 (Ga. 1994); Williams v. State, 426 S.E.2d 348 (Ga. 1993).
        To support its conclusion that “there is no evidence . . . that the reasonable doubt
standard triggers an unacceptably high error rate for mental retardation cases,” the majority
suggests that it is relevant that in five of these cases the defendants received a life sentence
instead of a death sentence. In each of the cases, however, the defendant received a life sentence
for reasons unrelated to his asserted mental retardation, even though he had raised a claim of
mental retardation.
        The majority also cites to four non-capital cases— Marshall v. State, 583 S.E.2d 884, 886
(Ga. 2003); Chauncey v. State, 641 S.E.2d 229, 230 (Ga. Ct. App. 2007); Laster v. State, 505
S.E.2d 560, 561 (Ga. Ct. App. 1998); and Moody v. State, 422 S.E.2d 70, 70 (Ga. Ct. App.
1992)— as proof that juries and judges in Georgia do find defendants to be mentally retarded.
The majority fails to acknowledge, however, that although the verdict of “guilty but mentally
retarded” is available in both capital and non-capital felony cases, see Ga. Code Ann. §
17-7-131(b)(1), the determination of mental retardation is of consequence only in capital cases.
Non-capital offenders who are found “guilty but mentally retarded” are sentenced no different
than any other defendant under Georgia’s law. Id. § 17-7-131(g)(1) (“Whenever a defendant is
found . . . guilty but mentally retarded, . . . the court shall sentence him or her in the same
manner as a defendant found guilty of the offense.”). Thus, because the stakes for mental
retardation claims are exponentially higher in capital cases, the State is much more likely to
vigorously oppose the assertion of mental retardation in a capital case. See Bobby v. Bies, 129
S. Ct. 2145, 2153 (2009) (“[P]rosecutors, pre-Atkins, had little incentive vigorously to contest
evidence of retardation. [Atkins’s prohibition on execution of the mentally retarded]
substantially altered the State’s incentive to contest [offenders’] mental capacity . . . .”). This
bears out in the four cases the majority relies on and one additional as well. See Sims v. State,
614 S.E.2d 73, 75 (Ga. 2005). Indeed, of the nine reported non-capital cases in Georgia in which
mental retardation was at issue, the defendant was able to successfully establish his mental
retardation in five of them.

                                                89
has ostensibly outlawed the imposition of the death penalty for mentally retarded

offenders for over twenty years, of the twenty-two reported capital cases involving

mental retardation claims, only one defendant has ever successfully established his

mental retardation beyond a reasonable doubt. See Lewis, 692 S.E.2d at 593.19

       Rather than securing the constitutional right at issue, Georgia and the

majority have effectively revoked that right. If an offender is erroneously found

not mentally retarded, he will be executed; if an offender is erroneously found

mentally retarded, the government’s only detriment is that of incarcerating for life

one who is not mentally retarded. To eliminate the risk of the latter by




        The majority also notes that in Walker v. State, 653 S.E.2d 439, 447 (Ga. 2007), the co-
defendant Griffin had been “adjudicated mentally retarded.” However, Griffin entered a plea of
“guilty but mentally retarded,” rather than receiving that verdict at trial. See Brief On Behalf of
the Appellee By the Attorney General, Walker, 653 S.E.2d 439, 2007 WL 4997723, at *11 n.5
(Mar. 27, 2007). Under Georgia law, to accept a plea of “guilty but mentally retarded,” a judge
need not find the defendant mentally retarded beyond a reasonable doubt but need only find that
there is a factual basis that the defendant is mentally retarded. Ga. Code Ann. § 17-7-131(b)(2).
       19
           And in that case, the State did not even mount a credible challenge to the offender’s
claim. Three experts testified that the offender was mentally retarded, and the state habeas court
found their testimony scientifically sound and credible. Response Brief of Appellee/Petitioner,
Lewis, 692 S.E.2d 580, 2009 WL 4028408, at *9 (Oct. 8, 2009). By contrast, the state habeas
court found the State’s psychologist to be a “hired gun” who lacked expertise in the field of
mental retardation and whose opinion was a “sham” premised on a repeated willingness to
disregard the established standards of the psychological profession. Id. On the basis of these
factual findings, the court found the petitioner had established mental retardation beyond a
reasonable doubt. Id. The State never challenged this determination. Lewis, 692 S.E.2d at 593.
Notably, no other capital offender in any reported case has ever been able to establish his mental
retardation beyond a reasonable doubt so as to avail himself of Georgia’s prohibition on
execution of the mentally retarded.

                                                90
exponentially increasing the risk of the former20 is contrary not only to Atkins, but

also to the Supreme Court’s requirement that the margin of error in fact-finding be

reduced on the side of an individual’s constitutionally protected rights.21 This

utterly one-sided risk of error is all the more intolerable when the individual right

at stake is a question of life or death.22


       20
          The Supreme Court has recognized that these two types of error are inversely related,
and that the beyond a reasonable doubt standard of proof reduces the risk of one type of error by
maximally increasing the risk of the opposite error. Addington, 441 U.S. at 423-24 (beyond a
reasonable doubt standard “exclude[s] as nearly as possible” the risk of one type of error by
shifting “almost the entire risk of error” to the other party). The ratio between the two types of
errors yielded by the beyond a reasonable doubt standard has been estimated at ten to one. See 4
W. Blackstone, Commentaries 358 (“[T]he law holds[] that it is better that ten guilty persons
escape, than that one innocent suffer.”). That is, in this context, it will produce roughly ten
executions of mentally retarded individuals for every one non-mentally retarded individual
erroneously spared from execution.
       21
           Several Supreme Court cases establish that states may not require the individual
putative holder of a substantive constitutional right to bear a significant majority of the risk of an
erroneous determination of a fact that implicates the right. See e.g., Cooper, 517 U.S. at 364-65
(holding unconstitutional the requirement that a defendant to prove competence to stand trial by
clear and convincing evidence because the consequences “of an erroneous determination of
competence are dire” for defendant while “the injury to the State of the opposite error—a
conclusion that the defendant is incompetent when he is in fact malingering—is modest”);
Addington, 441 U.S. at 427 (requiring the State to meet a heightened clear-and-convincing
standard for civil involuntary commitment because a defendant with liberty at stake “should not
be asked to share equally with society the risk of error”); Santosky v. Kramer, 455 U.S. 745, 755
(1982) (requiring the State to bear a heightened burden of at least clear and convincing evidence
in parental termination proceedings, which the Court recognized involved a parent’s
fundamental liberty interest in the care, custody, and management of their child).
       22
         “In capital proceedings generally, [the Supreme] Court has demanded that factfinding
procedures aspire to a heightened standard of reliability . . . [because] execution is the most
irremediable and unfathomable of penalties.” Ford, 477 U.S. at 411 (plurality opinion). “When
the choice is between life and death, th[e] risk [that the death penalty will be imposed in spite of
factors which may call for a less severe penalty] is unacceptable and incompatible with the
commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, 438 U.S. 586, 605
(1978) (Burger, C.J.) (plurality opinion).

                                                 91
      IV.    Conclusion

      No State has the power to deny citizens any of their federal constitutional

rights. Atkins has recognized the federal constitutional right of mentally retarded

offenders not to be executed. Georgia, therefore, cannot indirectly authorize the

execution of mentally retarded offenders through a procedure that in practical

operation accomplishes that result. Because Georgia’s standard of proof will

inevitably result in the execution of mentally retarded offenders and thus is

contrary to the dictates of Atkins, I dissent.




                                           92
WILSON, Circuit Judge, dissenting, in which MARTIN, Circuit Judge, joins:

       The majority today not only reaches the wrong answer, it asks the wrong

question. Suppose that, instead of a beyond-a-reasonable-doubt standard, the State

of Georgia required mentally retarded death-row inmates to prove their Atkins1

claims beyond any shadow of a doubt—a standard requiring, under Georgia law,

that prisoners obtain the unanimous consent of a 100-member panel of

state-appointed psychologists, ten consecutive IQ tests showing an intelligence

quotient of not more than thirty, and supporting affidavits from the victims’

families and the Governor. Could fair-minded jurists disagree that the foregoing

standard is unconstitutional? Of course not. But in order to endorse not only the

result, but the logic of today’s majority opinion, one must answer yes.

       We are not asking whether the Supreme Court has determined that the

Constitution requires a particular burden of proof for Atkins claims; it plainly has

not. We are not asking whether the Supreme Court has left it to states to draw the

exact boundaries and define the precise contours of the right announced in Atkins;

it plainly has. Our job, instead, is simply to ask whether it is beyond fair-minded

disagreement that the boundaries applied by the State of Georgia in this case run

afoul of Supreme Court holdings, including that of Atkins itself.

       1
         Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252 (2002) (holding that
execution of mentally retarded criminals is unconstitutional).

                                              93
       I believe that it is, and I endorse the substance of Judge Barkett’s dissent.

However, I part company with Judge Barkett in that I tend to see this as an

“unreasonable application”—instead of a “contrary to”—case under AEDPA and,

therefore, conceptualize our inquiry as follows.

       Atkins declared a federal constitutional right, but left it to the individual

states to define that right’s exact boundaries—thereby creating a zone of discretion

for state action.2 On habeas review, AEDPA essentially broadens that zone of

discretion, so that federal courts must respect states’ boundaries (i.e., definitions,

procedures, burdens, etc.) even if those courts believe them to be erroneous, so

long as they are not unreasonable. Nevertheless, at some extreme point, the clear

mandate of Atkins and the Due Process Clause must limit a state’s ability to set

overly restrictive boundaries. And in rare cases, a state’s Atkins boundaries may

be so restrictive that they fall outside of even the AEDPA buffer to the Atkins zone

of discretion. For the reasons described in Judge Barkett’s dissent, I believe this is

one of those rare cases.

       It is no answer to simply say that the Supreme Court has not explicitly


       2
          Contrary to the majority’s contention, the Supreme Court’s denial of certiorari in three
cases where Georgia inmates challenged the burden of proof for establishing mental retardation
in no way reflects the Court’s approval of Georgia’s standard. See, e.g., Missouri v. Jenkins,
515 U.S. 70, 85, 115 S. Ct. 2038, 2047 (1995) (“Of course, ‘the denial of a writ of certiorari
imports no expression of opinion upon the merits of the case, as the bar has been told many
times.’” (quoting United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182 (1923))).

                                                94
passed on the Atkins burden of proof question, or that Atkins left it to the states to

set their own procedures. AEDPA “recognizes . . . that even a general standard

may be applied in an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930,

953, 127 S. Ct. 2842, 2858 (2007). And with respect to the particular general

standard at issue in this case—that it is unconstitutional to execute every class of

mentally retarded persons (i.e., mild, moderate, severe, and profound)—we have a

unique perspective on what it means for that standard to be applied unreasonably.

The Supreme Court has already shown us by analogy.

      Atkins relied, in large part, on a recently developed national consensus

against executing every class of mentally retarded persons. 536 U.S. at 313–16,

122 S. Ct. at 2248–50. But recognizing that there may be “serious

disagreement[s]” about determining exactly “which offenders are in fact retarded,”

and that “[n]ot all people who claim to be mentally retarded will be so impaired as

to fall within the range of mentally retarded offenders about whom there is a

national consensus,” the Court declared: “As was our approach in Ford v.

Wainwright, with regard to insanity, ‘we leave to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.’” Id. at 317, 122 S. Ct. at 2250 (alterations in original)

(citing 477 U.S. 399, 405, 416–17, 106 S. Ct. 2595, 2599, 2605 (1986) (holding


                                          95
that the Constitution forbids execution of the insane)) (internal citation omitted).

Consequently, Ford is our guide for understanding of what is, and what is not, an

“appropriate way[] to enforce” the Atkins constitutional restriction.

      Upon turning to the cited portions of Ford, we discover that the Supreme

Court’s delegation to the states has limits. After determining that it is

unconstitutional to execute an insane person, the Court addressed what was

required of states in the setting their own procedures. See Ford, 477 U.S. at

416–17, 106 S. Ct. at 2605 (plurality opinion). It began by confirming that states

should have substantial discretion in choosing their methods, stating that “a full

trial on the issue of sanity” was not required to “protect the federal interests” at

stake. See id. And it specifically recognized that “some high threshold showing

on behalf of the prisoner” may be “a necessary means to control the number of

nonmeritorious or repetitive claims of insanity.” Id. at 417, 106 S. Ct. at 2605.

But after acknowledging that states must have flexibility in determining who is,

and who is not, legally insane, the Court’s instructions culminated with this clear

and forceful mandate:

                   Yet the lodestar of any effort to devise a procedure
             must be the overriding dual imperative of providing
             redress for those with substantial claims and of
             encouraging the accuracy in the factfinding
             determination.


                                           96
Id. (emphases added). I believe Judge Barkett’s opinion demonstrates beyond any

reasonable dissent how Georgia’s procedures cannot be squared with this explicit

admonition. And if there was any doubt about how those dual imperatives interact

with our current deferential standard of review under AEDPA, it was resolved by

the Supreme Court’s example in Panetti v. Quarterman, 551 U.S. at 954, 127 S. Ct.

at 2859.

      In Panetti, the Supreme Court—in a materially indistinguishable posture

from that which we occupy today—addressed whether Texas’s procedures for

applying Ford’s general constitutional prohibition were contrary to or an

unreasonable application of clearly established federal law. Id. at 952–54, 127 S.

Ct. at 2858–59. Notwithstanding Ford’s explicit delegation to the states and

AEDPA deference, the Supreme Court concluded that Panetti was entitled to

plenary federal review of his constitutional claim. Id. at 954, 127 S. Ct. at 2859.

Recognizing that Justice Powell’s controlling concurrence in Ford mandated that a

state’s “substantial leeway [in] determin[ing] what process best balances the

various interests at stake” be limited by “the ‘basic requirements’ required by due

process,” the Court found myriad defects in the State’s approach to enforcing

Ford’s constitutional restriction warranting de novo review. See id. at 950–52, 127

S. Ct. at 2856–57 (cataloging errors demonstrating that “the state court failed to


                                          97
provide petitioner with the minimum process required by Ford”). It did so

notwithstanding a lack of specific case law on Panetti’s particular complaints as

today’s majority would require, but by relying instead on Justice Powell’s general

discussion regarding the basic requirements of due process, as well as the Court’s

own assessment that “[t]he state court failed to provide petitioner with a

constitutionally adequate opportunity to be heard.” Id. at 952, 127 S. Ct. at 2858.

In other words, the Supreme Court recognized that Ford set a constitutional floor,

not a target. And because “the factfinding procedures upon which the [state] court

relied were ‘not adequate for reaching reasonably correct results’ or, at a minimum,

resulted in a process that appeared to be ‘seriously inadequate for the ascertainment

of the truth,’” they represented an “unreasonable application” of Ford’s general

standard under AEDPA. Id. at 954, 127 S. Ct. at 2859 (quoting Ford, 477 U.S. at

423–24, 106 S. Ct. at 2609 (opinion of Powell, J.)).3

       The Supreme Court in Atkins unequivocally held that the Constitution

prohibits the execution of mentally retarded persons. 536 U.S. at 321, 122 S. Ct. at

2252. And it unequivocally invoked its approach in Ford. Id. at 317, 122 S. Ct. at



       3
          Panetti provides the clearest and most instructive Supreme Court guidance on how we
must conduct the inquiry before us. Although not a case specifically involving mental
retardation (and, in the majority’s view, therefore completely inapposite), Panetti elucidates the
standard of AEDPA deference due when federal courts consider the constitutionality of
procedures that burden a petitioner’s substantive constitutional rights.

                                                98
2250. Moreover, as Judge Barkett’s opinion demonstrates, there are several other

unimpeachable—albeit general—principles of constitutional law that must be

brought to bear in our determination of where Atkins’s constitutional floor was set

and what exactly it proscribes. In particular, I find the majority’s attempt to ignore

the guidance of cases such as Cooper v. Oklahoma, 517 U.S. 348, 366–69, 116 S.

Ct. 1373, 1382–84 (1996) (holding that state law requiring defendant to prove

incompetence to stand trial by clear-and-convincing evidence violated the Due

Process Clause), and Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 1812

(1979) (holding that the burden of proof for involuntary civil commitment must

exceed a preponderance of the evidence) entirely unavailing; in Ford, the Supreme

Court explicitly referenced the procedures governing these parallel proceedings as

“instructive analogies” that inform states’ choices of how to appropriately enforce

Ford’s constitutional mandate. 477 U.S. at 416–17 & n.4, 106 S. Ct. at 2605

(plurality opinion).

      As the Supreme Court did in Panetti, we must consider all relevant clearly

established legal rules and standards to make a substantive determination, through

the lens of the reasonable jurist, as to where Georgia’s procedure falls on the

spectrum of constitutional appropriateness, relative to the floor set by Atkins. In

other words, in this Atkins case, we are not asking what the constitutionally proper


                                          99
burden of proof is. We are not even asking what the constitutionally proper burden

of proof should be. We are simply asking what the constitutionally proper burden

of proof cannot be. And it cannot be this.

         The beyond-a-reasonable doubt standard is patently inappropriate in the

Atkins context. Since the majority invokes the useful, but imperfect parallel of

cases dealing with burdens of proof and mental illness, I rely upon the words of

Chief Justice Burger, speaking for a unanimous Supreme Court, to illustrate the

point:

                      The subtleties and nuances of psychiatric diagnosis
               render certainties virtually beyond reach in most
               situations. The reasonable-doubt standard of criminal
               law functions in its realm because there the standard is
               addressed to specific, knowable facts.          Psychiatric
               diagnosis, in contrast, is to a large extent based on
               medical “impressions” drawn from subjective analysis
               and filtered through the experience of the diagnostician.
               This process often makes it very difficult for the expert
               physician to offer definite conclusions about any
               particular patient. Within the medical discipline, the
               traditional standard for “factfinding” is a “reasonable
               medical certainty.” If a trained psychiatrist has difficulty
               with the categorical “beyond a reasonable doubt”
               standard, the untrained lay juror—or indeed even a
               trained judge—who is required to rely upon expert
               opinion could be forced by the criminal law standard of
               proof to reject commitment for many patients desperately
               in need of institutionalized psychiatric care.

Addington, 441 U.S. at 430, 99 S. Ct. at 1811.


                                           100
      Just like a psychiatric diagnosis of mental illness, the psychological

diagnosis of mental retardation deals not with “specific, knowable facts,” but, “in

contrast, is to a large extent based on medical ‘impressions’ drawn from subjective

analysis and filtered through the experience of the diagnostician.” What is more,

unlike a diagnosis of mental illness, which deals solely with the defendant’s mental

state today, a diagnosis of mental retardation relies on the defendant’s mental

capacity years, if not decades, in the past. See, e.g., O.C.G.A. § 17-7-131(a)(3)

(defining mental retardation as requiring intellectual deficiency during a person’s

“developmental period”). Moreover, since in reality a mildly retarded defendant

can only prove an Atkins claim using expert medical testimony, I am struck by the

gross disparity between the certainty communicated to the factfinder by that type

of expert opinion—a reasonable degree of medical certainty—and that required by

Georgia’s Atkins burden of proof—proof beyond any reasonable doubt. What

alchemy might allow a mildly retarded Atkins petitioner to transform these

imprecise, subjective, and retrospective elements into a successful constitutional

claim in Georgia is beyond my imagination.

      Whatever standard the Supreme Court may one day set, even with the shield

of AEDPA deference, Georgia’s current burden of proof does not honor the

command of Atkins. As a consequence, I respectfully dissent.


                                         101
MARTIN, Circuit Judge, dissenting:

       Nearly forty-five years ago, the Supreme Court warned: “[w]ith faithfulness

to the constitutional union of the States, we cannot leave to the States the

formulation of the authoritative laws, rules, and remedies designed to protect

people from infractions by the States of federally guaranteed rights.” Chapman v.

California, 386 U.S. 18, 21, 87 S. Ct. 824, 826 (1967). I fully join in Judge

Barkett’s well-reasoned dissent, and I write separately only to emphasize the ways

in which I believe the majority has run afoul of Chapman’s venerable admonition.

       As the Supreme Court did in Ford v. Wainwright, 477 U.S. 399, 106 S. Ct.

2595 (1986), with regard to the constitutional ban against executing the insane, in

Atkins it left “to the State[s] the task of developing appropriate ways to enforce the

constitutional restrictions upon” executing the mentally retarded.1 Atkins v.

Virginia, 536 U.S. 304, 317, 122 S. Ct. 2242, 2250 (2002) (quoting Ford, 477 U.S.

at 416–417, 106 S. Ct. at 2605 (plurality opinion)). But as Panetti v. Quarterman,

       1
          The majority is quite right that Georgia was the first state to ban execution of the
mentally retarded. However, this fact sheds little light on the Eighth Amendment issue we
undertake to decide here. In Ford itself, the State of Florida had a pre-existing ban on executing
the insane. See Ford, 477 U.S. at 403, 106 S. Ct. at 2598 (referring to Fla. Stat. § 922.07 (1985)
(proceedings when person under sentence of death appears to be insane); see also Goode v.
Wainwright, 448 So. 2d 999, 1001–02 (Fla. 1984) (holding that an “insane person cannot be
executed,” but that Florida’s statutory procedure embodied in Fla. Stat. § 922.07 does not
violate due process). Yet, the Supreme Court found those procedures inadequate to enforce the
Eighth Amendment right at issue. Ford, 477 U.S. at 416–17, 106 S. Ct. at 2605 (plurality
opinion); id. at 425–27, 106 S. Ct. at 2609–10 (Powell, J., concurring in part and concurring in
the judgment).

                                               102
551 U.S. 930, 127 S. Ct. 2842 (2007), makes plain, even under AEPDA deference,

the fact that States have leeway to enforce Ford’s substantive restrictions does not

mean that they are free to adopt any procedures they choose to enforce federal

constitutional rights. See id. at 952–54, 127 S. Ct. at 2858–59. Rather, as Panetti

illustrates, once a substantive federal right is established, the State must provide

adequate procedures for protecting that right. Id. at 952, 127 S. Ct. at 2858.

Atkins, like Ford, commands States to develop only “appropriate” procedures to

“enforce” the Eighth Amendment right at issue. Atkins, 536 U.S. at 317, 122 S.

Ct. at 2550.

       Panetti in turn instructs us how to measure this “appropriateness” under

AEDPA review. Indeed, Panetti is instructive for Mr. Hill’s case in many ways.2

First, it confirms that rights guaranteed under the Eighth Amendment must be

protected by procedures which comport with “basic requirements” of Due Process.

Panetti, 551 U.S. at 949–50, 127 S. Ct. at 2856 (quoting Ford, 477 U.S. at 427, 106

S. Ct. at 2610) (Powell, J., concurring in part and concurring in the judgment). Of

       2
           By saying Panetti is instructive to Mr. Hill’s case, I do not mean to suggest that Panetti
itself provides the source of “clearly established” federal law by which Georgia’s standard of
proof must be measured. Panetti is relevant for a different reason. It illustrates how even a
general constitutional standard may be applied in an unreasonable manner under AEDPA’s
deference standard. See Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. This is a principle of
statutory construction concerning the interpretation and application of ADEPA itself. Thus, the
fact that Panetti did not involve mental retardation, a standard of proof, or was decided after
Head v. Hill, 587 S.E.2d 613 (Ga. 2003) (Hill III), does not detract from the lesson it provides
here.

                                                103
course, Due Process under the Fourteenth Amendment is only one clearly

established measure of the adequacy of Georgia’s mental retardation procedures.

The substantive right recognized in Atkins is different in kind, and arguably more

important in a Due Process sense, than the substantive right recognized in Ford.3

Justice Powell pointed out in Ford that the question of whether an inmate who has

already been convicted is competent to be executed is quite different from that of

whether he is eligible to be sentenced to death in the first place. He said it this

way: “the only question raised [by incompetency to be executed] is not whether,

but when, [an] execution may take place. This question is important, but it is not



       3
           Judge Posner recognized in a different context,

       A state, although limited in its right under the Constitution to put to death or even on
       trial a person who is mentally incompetent, Ford, 477 U.S. 399, 106 S. Ct. 2595
       (1986); Medina v. California, 505 U.S. 437, 451–53, 112 S. Ct. 2572, 2581 (1992),
       is not constitutionally obligated to recognize a defense of insanity-several states have
       abolished the defense . . .

Despears v. Milwaukee County, 63 F.3d 635, 637 (7th Cir. 1995) (parallel citations omitted).
There is a critical distinction between the Due Process required to protect substantive rights
derived from the United States Constitution on the one hand, see Cooper v. Oklahoma, 517 U.S.
348, 355–56, 116 S. Ct. 1373, 1377 (1996) (holding that state law presuming criminal defendant
is competent to stand trial unless he proves incompetence by clear and convincing evidence
violates Due Process), and state created rights on the other, see Leland v. Oregon, 343 U.S. 790,
799, 72 S. Ct. 1002, 1007–08 (1952) (holding state law requiring defendant to prove state
created insanity defense beyond a reasonable doubt does not violate Due Process). Given this
important distinction, which was well established at the time Hill III was decided, and the
reasoning and authorities discussed in Judge Barkett’s dissent, I cannot agree with the majority’s
conclusion that either Leland or Ford “lend enough support” to the Georgia Supreme Court’s
decision to make it consistent with, or a reasonable application of, clearly established Supreme
Court precedent.

                                                104
comparable to the antecedent question whether petitioner should be executed at

all.” Ford, 477 U.S. at 425, 106 S. Ct. at 2610 (Powell, J., concurring in part and

concurring in the judgment). Based on this distinction, Justice Powell concluded

that the Supreme Court’s “decisions imposing heightened procedural requirements

on capital trials and sentencing proceedings—e.g., Lockett v. Ohio, 438 U.S. 586,

98 S. Ct. 2954 (1978) (plurality opinion); Turner v. Murray, 476 U.S. 28, 106 S.

Ct. 1683 (1986)—do not apply in [the determination of insanity at time of

execution] context.” Id. But even with this view, Justice Powell joined that

portion of Ford which recognized that “the Eighth Amendment has been

recognized to affect significantly both the procedural and the substantive aspects of

the death penalty.” Id. at 405, 106 S. Ct. at 2599 (majority opinion).

      Atkins is an Eighth Amendment decision about whether, not when, a person

may be executed. Thus, the determination of whether a capital defendant is

mentally retarded as a predicate to imposing a death sentence “calls for no less

stringent standards than those demanded in any other aspect of a capital

proceeding.” Ford, 477 U.S. at 411–12, 106 S. Ct. at 2603 (plurality opinion).

This means Georgia’s mental retardation procedures must meet not only Due

Process requirements, but also the Supreme Court’s clearly established Eighth

Amendment principles demanding more reliability and accuracy in capital


                                         105
proceedings.

      Second, like Hill, Panetti involves a substantive Eighth Amendment

prohibition against carrying out a sentence of death against a certain class of

prisoners—the mentally retarded in Hill and the insane in Panetti. Third, in both

cases AEDPA bars federal habeas corpus relief unless the state court decision is

contrary to, or involves an unreasonable application of, clearly established federal

law. See 28 U.S.C. § 2254(d)(1). Fourth, both Hill and Panetti involve Eighth

Amendment prohibitions for which the States were expressly given “the task of

developing appropriate ways to enforce the constitutional restrictions.” Atkins,

536 U.S. at 317, 122 S. Ct. at 2250 (quoting Ford, 477 U.S. at 416–17, 106 S. Ct.

at 2605 (plurality opinion)). Finally, the question decided in Panetti is strikingly

similar to the question presented by Hill: whether the procedures provided by the

state court were adequate to protect the constitutional right—specifically, the right

not to be executed if insane at the time of execution in Ford and the right of the

mentally retarded not to be executed in Hill.

      In light of the similarity of Mr. Hill’s case to Panetti, I cannot agree with the

majority’s conclusion that AEDPA’s deference standard precludes us from finding

that Georgia’s beyond a reasonable doubt standard is not contrary to or an

unreasonable application of clearly established Supreme Court precedent. Just


                                         106
because Atkins, like Ford, announced a general standard does not mean that

Georgia’s application of Atkins to Mr. Hill cannot be contrary to, or involve an

unreasonable application of, Atkins’s constitutional restriction against executing

mentally retarded defendants. On this issue, Panetti is clear:

      That the [Ford] standard is stated in general terms does not mean the
      application was reasonable. AEDPA does not require state and
      federal courts to wait for some nearly identical factual pattern before a
      legal rule must be applied. Nor does AEDPA prohibit a federal court
      from finding an application of a principle unreasonable when it
      involves a set of facts different from those of the case in which the
      principle was announced. The statute recognizes, to the contrary, that
      even a general standard may be applied in an unreasonable manner.

Panetti, 551 U.S. at 953, 127 S. Ct. at 2858 (citations and quotation marks

omitted). As the Supreme Court did in Panetti, I would hold here that “the

factfinding procedures upon which the [state] court relied were not adequate for

reaching reasonably correct results, or, at a minimum, resulted in a process that

appeared to be seriously inadequate for the ascertainment of the truth” of whether a

defendant is eligible to be executed. Id. at 954, 127 S. Ct. at 2859 (citation and

quotation marks omitted). For all the reasons set forth by Judge Barkett, and

because the Eighth Amendment demands heightened reliability and accuracy, I

conclude that this standard has plainly been violated in Mr. Hill’s case.

      This is so because the beyond a reasonable doubt standard for proving

mental retardation is fundamentally at odds with the basis for the holding in

                                         107
Atkins. As detailed in Judge Barkett’s opinion, the state habeas trial court, after an

extensive evidentiary hearing concerning mental retardation, has already

determined that Mr. Hill is more likely than not mentally retarded, yet he cannot

prove beyond a reasonable doubt that he is mentally retarded. Executing an inmate

fitting this description does not serve the penological purposes of the death penalty

identified in Atkins itself: deterrence and retribution. Atkins, 536 U.S. at 318–20,

122 S. Ct. at 2251. Atkins instructs that because the mentally retarded are less

morally culpable, and because our Eighth Amendment jurisprudence “seeks to

ensure that only the most deserving of execution are put to death, an exclusion for

the mentally retarded is appropriate.” Id. at 319, 122 S. Ct. at 2251. Atkins also

plainly tells us that “executing the mentally retarded will not measurably further

the goal of deterrence.” Id. at 320, 122 S. Ct. at 2251. Thus executing Mr. Hill,

who has already demonstrated that he is mentally retarded and therefore less

morally culpable because of his “cognitive and behavioral impairments,” id. at 320,

122 S. Ct. at 2251, is contrary to Atkins insofar as it will not “measurably further

the goal[s] of deterrence” or retribution. Id.

      To conclude, Georgia’s beyond a reasonable doubt standard of proof is

contrary to the Supreme Court’s longstanding recognition that death is different,

and for that reason requires heightened reliability in the determinations underlying


                                          108
capital punishment. Specifically, the Supreme Court has clearly established that

“the Eighth Amendment requires a greater degree of accuracy . . . than would be

true in a noncapital case.” Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112,

2117 (1993) (citation omitted).4 Because this principle ranks as “fundamental

enough” to the Supreme Court’s post-Furman5 Eighth Amendment death penalty

jurisprudence, the necessity to apply these principles to Georgia’s beyond a

reasonable doubt standard is clear. See Yarborough v. Alvarado, 541 U.S. 652,

666, 124 S. Ct. 2140, 2151 (2004) (“Certain principles are fundamental enough

that when new factual permutations arise, the necessity to apply the earlier rule will

be beyond doubt.”). But, by contrast, Georgia’s requirement that a capital

defendant prove his mental retardation beyond a reasonable doubt “would seem

inevitably to enhance the risk of unwarranted” imposition of the death sentence

upon those who are mentally retarded. Cf. Beck v. Alabama, 447 U.S. 625, 637,



       4
           See also Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197, 1204 (1977) (plurality
opinion) (“[D]eath is a different kind of punishment from any other which may be imposed in
this country.”); Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965 (1978) (explaining
rationale for requiring more reliable procedures in capital sentencing determinations to minimize
the “risk that the death penalty will be imposed in spite of factors which may call for a less
severe penalty”); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976)
(plurality opinion) (“Death, in its finality, differs more from life imprisonment than a 100-year
prison term differs from one of only a year or two. Because of that qualitative difference, there
is a corresponding difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case.”).
       5
           Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972).

                                              109
100 S. Ct. 2382, 2389 (1980) (reversing death sentence imposed after a jury verdict

of guilt of a capital offense when the jury was not permitted to consider a verdict of

guilt of a lesser included offense). Since Mr. Hill has already satisfied the state

trial court that he is mentally retarded by a preponderance of the evidence, we

should assume that “some characteristics of [Mr. Hill’s] mental retardation

undermine the procedural protections that our capital jurisprudence steadfastly

guards.” See Atkins, 536 U.S. at 317, 122 S. Ct. at 2250. “Such a risk cannot be

tolerated in a case in which the defendant’s life is at stake.” Beck, 447 U.S. at 657,

1005 S. Ct. at 2389.

      While federal habeas courts must accord state court decision substantial

deference under AEDPA, we must be vigilant to “guard against extreme

malfunctions in the state criminal justice systems.” Harrington v. Richter,

—U.S.—, —, 131 S. Ct. 770, 786 (2011) (quotation omitted). In my judgement,

execution of a person who has already proven he is more likely than not mentally

retarded, but who is unable to prove his mental retardation beyond a reasonable

doubt, is an “extreme malfunction” that warrants the protection of the Great Writ.

      For all of these reasons, as well as those expressed by Judge Barkett, I

respectfully dissent from the majority opinion.




                                          110
