               Case: 14-15468    Date Filed: 12/09/2014   Page: 1 of 12



                                                              [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 14-15468
                            ________________________

                                    CORRECTED
                        D. C. Docket No. 07-00129-CV-CDL

In re:

         ROBERT WAYNE HOLSEY,

                                                           Petitioner.


                            ________________________

                      Application to File a Second or Successive
                     Habeas Corpus Petition, 28 U.S.C. § 2244(b)
                            ________________________

                             (December 9, 2014)

Before ED CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

         Robert Wayne Holsey, a Georgia death row inmate, is scheduled for

execution today, Tuesday, December 9, 2014, at 7:00 p.m. Late this afternoon, Mr.

Holsey filed an Application for Permission to File a Second Petition for Writ of

Habeas Corpus in the District Court, a Request to Certify Certain Legal Questions
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to the United States Supreme Court, and a Motion for Stay of Execution. For the

reasons that follow, we deny Mr. Holsey’s application for leave to file a second

petition and motion for stay because he cannot show a substantial likelihood of

success on the merits. See DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir.

2011).

                                          I.

      The facts surrounding Mr. Holsey’s trial, sentencing, direct appeal, and state

and federal postconviction proceedings are detailed in this Court’s opinion

affirming the denial of his first federal petition for writ of habeas corpus. See

Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1231–56 (11th Cir.

2012) (Holsey V), cert. denied sub nom. Holsey v. Humphrey, 133 S. Ct. 2804

(2013); see also Holsey v. State, 524 S.E.2d 473 (Ga. 1999) (direct appeal) (Holsey

I); Holsey v. Schofield, No. 2000–V–604 (Ga. Super. Ct. of Butts Cnty., May 9,

2006) (order on state habeas petition) (Holsey II); Schofield v. Holsey, 642 S.E.2d

56 (Ga. 2007) (collateral appeal) (Holsey III); Holsey v. Hall, No. 3:07-cv-129

(M.D. Ga. July 2, 2009) (order denying federal habeas petition).

         On November 19, 2014, Morgan County, Georgia Superior Court Judge

Levis A. McConnell, Jr., issued a warrant setting Mr. Holsey’s execution for

December 9–16. The next day, Mr. Holsey filed a second state habeas petition in

Butts County Superior Court, arguing that his intellectual disability should be


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reconsidered in light of the Supreme Court’s decision in Hall v. Florida, 572 U.S.

___, 134 S. Ct. 1986 (2014). See Petition for Writ of Habeas Corpus at i, Holsey

v. Chatman, No. 2014-HC-14 (Ga. Super. Ct. of Butts Cnty. Nov. 20, 2014).

Specifically, Mr. Holsey argued that he presented ample evidence that he is

intellectually disabled but Georgia’s beyond reasonable doubt standard

unconstitutionally denied him “‘a fair opportunity to show that the Constitution

prohibits his execution.’” State Petition at 24–25 (alteration adopted) (quoting

Hall, 134 S. Ct. at 2001).

      On December 2 Butts County Superior Court Chief Judge Thomas Wilson

dismissed Mr. Holsey’s second state habeas petition and denied his stay

application. Holsey v. Chatman, No. 2014–HC–14, slip op. at 1–2 (Ga. Super. Ct.

of Butts Cnty., Dec. 2, 2014) (Holsey VI).

      On December 4 Mr. Holsey filed a Consolidated Application for a

Certificate of Probable Cause to Appeal and Motion for Stay of Execution in the

Georgia Supreme Court. Holsey v. Chatman, No. S15W0530 (Ga. Dec. 4, 2014)

(Holsey VII). Mr. Holsey asked the Georgia Supreme Court to revisit his

intellectual disability claim in light of Hall, making two arguments: (1) that he

“Presented Ample Evidence That He Is Intellectually Disabled But Georgia’s

Unique ‘Beyond Reasonable Doubt’ Standard Unconstitutionally Denied Him ‘A

Fair Opportunity To Show That The Constitution Prohibits His Execution,’” id. at


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18–31 (alteration adopted) (quoting Hall, 134 S. Ct. at 2001); and (2) that “[The

Georgia Supreme] Court Should Revisit [His] Claim of Intellectual Disability

Because the State Habeas Court’s Bases for Previously Rejecting the Claim

Contravene Accepted Clinical Diagnostic Practices as to Intellectual Disability, in

Violation of Atkins[ v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)] and Hall,”

id. at 31–45. The state filed its opposition on December 5. The Georgia Supreme

Court denied Mr. Holsey’s application for CPC and motion for stay at about 2:30

p.m. on December 9, 2014.

      Separately, the Georgia Board of Pardons and Parole gave Mr. Holsey a

clemency hearing on December 8, 2014 and denied clemency that same day.

                                         II.

      Mr. Holsey seeks permission to file a second federal habeas corpus petition

in the District Court. Because Mr. Holsey previously filed a federal habeas corpus

petition, he must meet the requirements of 28 U.S.C. § 2244(b) before filing a

second federal petition. That statute provides in relevant part:

      (b)(1) A claim presented in a second or successive habeas corpus
      application under section 2254 that was presented in a prior
      application shall be dismissed.

      (2) A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless—

             (A) the applicant shows that the claim relies on a new
             rule of constitutional law, made retroactive to cases on
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             collateral review by the Supreme Court, that was
             previously unavailable; or

             (B)(i) the factual predicate for the claim could not have
             been discovered previously through the exercise of due
             diligence; and

             (ii) the facts underlying the claim, if proven and viewed
             in light of the evidence as a whole, would be sufficient to
             establish by clear and convincing evidence that, but for
             constitutional error, no reasonable factfinder would have
             found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b).

      “In ruling on an application to file a successive petition, this Court must

make a threshold determination of whether the claim to be presented in the second

or successive petition was presented in the first petition.” In re Hill, 715 F.3d 284,

291 (11th Cir. 2013). In his first petition, Mr. Holsey claimed that his intellectual

disability barred his execution under Atkins. Petition for Writ of Habeas Corpus

by a Person in State Custody at 31, Holsey v. Hall, No. 3:07-cv-129 (M.D. Ga.

Nov. 21, 2007) (“Petitioner Is Mentally Retarded and Therefore Ineligible for the

Death Penalty under the Eighth and Fourteenth Amendments to the United States

Constitution and Atkins. . . .”). In a brief filed in support of his first federal

petition, Mr. Holsey argued: “The Finding That Georgia May Limit the Eighth

Amendment Exemption to Offenders Who Are Mentally Retarded ‘Enough’ to

Prove it Beyond a Reasonable Doubt is Manifestly Contrary to and/or Involves

Unreasonable Applications of the Holdings of Atkins, Cooper, Addington and
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Related Precedent.” Petitioner’s Brief in Support of Petition for Writ of Habeas

Corpus at 163, Holsey v. Hall, No. 3:07-cv-129 (M.D. Ga. Nov. 21, 2007). Both

the District Court and this Court rejected Mr. Holsey’s Atkins claim on the merits.

Holsey, 694 F.3d at 1231–32 (“In Hill v. Humphrey, 662 F.3d 1335, 1360–61

(11th Cir. 2011) (en banc), we held that the Georgia Supreme Court’s decision

affirming the states’s reasonable doubt standard for mental retardation claims did

not contravene clearly established Supreme Court precedent.”).

      In Mr. Holsey’s application to file a second habeas petition, he effectively

seeks the opportunity to revisit the determination of his intellectual disability in

light of Hall. He contends “Georgia’s Unique ‘Beyond Reasonable Doubt’

Standard Unconstitutionally Denied Him ‘A Fair Opportunity To Show That The

Constitution Prohibits [His] Execution.” Application to file Second Petition at 12

(quoting Hall, 134 S. Ct. at 2001). Under this Court’s binding precedent, Mr.

Holsey is not entitled to file a second § 2254 petition raising another intellectual

disability claim because he presented an intellectual disability claim in his first

§ 2254 petition. In re Hill, 715 F.3d at 291–92. Mr. Holsey is still asserting an

intellectual disability claim even if he is raising new arguments to support it. Id. at

293 (“[A] new legal argument, even one that may entitle a habeas petitioner to

relief, does not make a prior ‘claim’ a new ‘claim’ for the purpose of

§ 2244(b)(1).”).


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      We decline Mr. Holsey’s invitation to treat prior panel decisions of this

Court issued in the context of applications to file second or successive petitions as

having no precedential value. While “[t]he grant or denial of an authorization by a

court of appeals to file a second or successive application shall not be appealable

and shall not be the subject of a petition for rehearing or for a writ of certiorari,” 28

U.S.C. § 2244(b)(3)(E), the statute does not preclude the Court of Appeals from

rehearing such a decision sua sponte. In other words, three-judge orders issued

under § 2244(b) are not beyond all review. Therefore, we are not persuaded that

our prior-panel-precedent rule should not apply to published opinions issued in this

context.

      Under our Court’s prior-panel-precedent rule, “a prior panel’s holding is

binding on all subsequent panels unless and until it is overruled or undermined to

the point of abrogation by the Supreme Court or by this court sitting en banc.”

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). “While an

intervening decision of the Supreme Court can overrule the decision of a prior

panel of our court, the Supreme Court decision must be clearly on point.” Garrett

v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003).

      The prior-panel-precedent rule requires us to reject Mr. Holsey’s argument

that he should be allowed to file a second or successive habeas petition because he

is actually innocent of the death penalty, irrespective of the literal language of 28


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U.S.C. § 2244(b)(1). In In re Hill, this Court squarely rejected the argument that

the Supreme Court’s pre-AEDPA decision in Sawyer v. Whitley, 505 U.S. 333,

112 S. Ct. 2514 (1992), survived AEDPA. See 715 F.3d at 299–301. While Mr.

Holsey makes some compelling arguments that Sawyer’s “innocence of the death

penalty” exception should survive § 2244(b)’s restrictions, he has not identified

any en banc or Supreme Court authorities that are “clearly on point,” at least none

that we can say overruled or undermined the In re Hill panel decision to the point

of abrogation. It is true, the In re Hill panel did not have the benefit of the

Supreme Court’s recent decision in McQuiggin v. Perkins, ___ U.S. ___, 133 S.

Ct. 1924 (May 28, 2013), when it decided In re Hill. In Perkins, the Supreme

Court held “that actual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as it was in Schlup

and House, or, as in this case, expiration of the statute of limitations.” Id. at 1928.

Indeed, Perkins, to the extent it created an exception to AEDPA’s statute of

limitations bar, suggests that Sawyer’s “innocent of the death penalty” may have

survived § 2244(b) restrictions as well. However, Perkins did not specifically

address § 2244(b), so it is not clearly on point. Further, AEDPA’s statute of

limitations bar and restrictions on second or successive habeas petitions and claims

serve different purposes. Our precedent precludes a ruling by this panel that In re

Hill was overruled or undermined to the point of abrogation by Perkins. Because


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this Circuit has rejected Sawyer in this context, we need not, and do not, make any

finding about whether Mr. Holsey has shown he is innocent of the death penalty by

clear and convincing evidence. We part ways with the concurrence in that regard.

      Even if we were not constrained by In re Hill and § 2244(b)(1), there are

additional reasons why we cannot grant Mr. Holsey permission to file a second or

successive habeas petition based on Hall. In In re Henry, this Court held that “Hall

. . . announce[d] a new rule of constitutional law.” 757 F.3d 1151, 1158 (11th Cir.

2014). However, Mr. Henry was not “entitled to leave to file a second or

successive petition because the Supreme Court has not made the new rule

announced in Hall retroactive to cases on collateral review,” as required by 28

U.S.C. § 2244(b)(2)(A). Id. at 1160. Although I have set out how I would decide

the retroactivity issue, this panel is bound by the majority holding of In re Henry in

this § 2244(b)(2) context. See id. at 1163–73 (Martin, J., dissenting).

      For all of these reasons, we DENY Mr. Holsey’s application for leave to file

a second or successive habeas petition.




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ED CARNES, Chief Judge, concurring:

      I agree that the application to file a second or successive application is due

to be denied.

      In support of his application to file a second or successive petition Holsey

contends that the old, pre-AEDPA miscarriage of justice exception to the second

and successive petition bar survived the enactment of 28 U.S.C. § 2244(b). It did

not, as held by and for the reasons explained in a number of decisions. See In re

Hill, 715 F.3d 284, 299–301 (11th Cir. 2013); Gilbert v. United States, 640 F.3d

1293, 1322 (11th Cir. 2011) (en banc); Hope v. United States, 108 F.3d 119, 120

(7th Cir. 1997); see also In re Webster, 605 F.3d 256, 258 (5th Cir. 2010).

      Contrary to Holsey’s assertion, published decisions like Hill involving

applications for permission to file a second or successive petition are binding

precedent. In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000), the prisoner

filed, pursuant to 28 U.S.C. § 2244(b)(3)(A), an application to file a second or

successive application, which challenged our earlier decision in In re Medina, 109

F.3d 1556 (11th Cir. 1997). Our Medina decision had held, in the course of

denying an application for permission to file a second or successive petition, that

the § 2244(b) bar applies to competency-to-be-executed claims. See Provenzano,

215 F.3d at 1235. We held in Provenzano that Medina was binding precedent:

“Under our prior panel precedent rule, we are bound to follow the Medina


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decision.” Id. (citation omitted). And our decisions have treated Provenzano as

binding authority regarding the prior panel precedent rule. See United States v.

Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009); Hunter v. Sec’y, Dep’t of Corr., 395

F.3d 1196, 1201–02 (11th Cir. 2005); United States v. Marte, 356 F.3d 1336, 1344

(11th Cir. 2004).

      Even if our decision in Hill did not exist, and the language of § 2244(b) did

not mean what it says, the miscarriage of justice exception would not do Holsey

any good because he has not shown, and cannot show, actual innocence. And even

if Georgia law did not require a capital defendant to prove mental retardation

beyond a reasonable doubt –– if it required, for example, that he prove it by clear

and convincing evidence or by a preponderance of the evidence –– Holsey would

still not be actually innocent of a death sentence. Where it applies, the actual

innocence miscarriage of justice exception requires a petitioner to show “by clear

and convincing evidence that, but for a constitutional error, no reasonable juror

would have found the petitioner eligible for the death penalty.” Cade v. Haley, 222

F.3d 1298, 1308 (11th Cir. 2000). The constitutional error Holsey claims is that he

was required to prove mental retardation by too high a standard of proof, but he

has not shown that he could convince a jury with a lesser standard. He has not

shown that, if the burden he was required to meet was clear and convincing




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evidence or a preponderance of the evidence, no reasonable jury could have found

that he was not mentally retarded.




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