              Case: 13-10702     Date Filed: 04/22/2013    Page: 1 of 72


                                                                           [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 13-10702
                            ________________________




In re: WARREN LEE HILL, JR.,


                                                                             Petitioner.

                            ________________________

              On Appeal from the United States District Court for the
                           Middle District of Georgia
                          ________________________



Before BARKETT, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

      This case comes before this Court on Petitioner Warren Lee Hill, Jr.’s

Application, under 28 U.S.C. § 2244(b)(3)(A), for permission to file a second or

successive federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 in

the district court. After review, we must deny the Application because Hill’s claim

of mental retardation, proposed in his successive petition, was already presented in

his first petition and is barred by the statutory prohibition in § 2244(b)(1).
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Additionally, Hill’s mental retardation claim challenges only his eligibility for a

death sentence, and not whether he is “guilty of the underlying offense,” and thus

does not fall within the narrow statutory exception in § 2244(b)(2)(B)(ii) anyway.

                          I. PROCEDURAL HISTORY

A. Malice Murder Conviction and Unanimous Death Sentence

       In 1990, while serving a life sentence for murdering his girlfriend, Hill

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 sinkleg 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. Although in jail for life 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, 263 Ga. 37, 427 S.E.2d 770, 774

(1993).

B. No Mental Retardation Claim at Trial or on Direct Appeal

       In 1988, the State of Georgia abolished the death penalty for mentally

retarded defendants. See O.C.G.A. § 17-7-131 (1988 statute prohibiting the death

penalty where defendant proves mental retardation). Therefore, at the time of

Hill’s 1991 trial, Georgia prohibited executing mentally retarded defendants. Yet


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at his trial and on direct appeal, Hill never claimed to be mentally retarded.

Rather, it was five years after his 1991 trial that Hill claimed for the first time he

was mentally retarded and thus could not be executed.

      Importantly, at all times herein, Hill has never asserted mental retardation as

a defense to his malice murder conviction. Instead, Hill’s mental retardation claim

now and always has related to only his sentence.

C. 1996 Amendment to First State Habeas–First Claim of Mental
   Retardation

      In 1994, Hill filed in state court a petition for habeas corpus that did not

make any mental retardation claim.

      Two years later, in 1996, Hill amended his state habeas petition to allege, for

the first time, that he was mentally retarded and his mental retardation barred his

death sentence. The court ordered mental evaluations, conducted a lengthy

evidentiary hearing, and heard extensive testimony from mental health experts who

had conducted tests and reviewed Hill’s school and medical records, his military

and employment history, and voluminous other documents. The court also

received affidavits as to his abilities from 59 friends and family members of Hill

and heard testimony from Hill’s trial counsel.

      The state habeas court determined that Hill’s evidence failed to prove he was

mentally retarded. In doing so, it employed the definition of mental retardation in

O.C.G.A. § 17-7-131(a)(3), which provides that “mentally retarded” means (1)
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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

clinical definitions mentioned by the Supreme Court in Atkins v. Virginia, 536

U.S. 304, 308 n.3, 122 S. Ct. 2242, 2245 n.3 (2002).

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

reasonable doubt his “significantly subaverage general intellectual functioning.”1

While the court did not find an exact IQ score, psychologists had administered

multiple tests, resulting in IQ scores ranging between 69 and 77.

       As to the second prong of the mental retardation standard, however, the state

habeas court found Hill had 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 court noted

Hill’s (1) extensive work history and “apparent ability to function well in such
       1
        Before trial in 1991, clinical psychologist William 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 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”), on which Hill
earned a full-scale IQ score of 69.
       In a 2000 affidavit, Dickinson opined that the 1991 WAIS-R overestimated Hill’s IQ by
3-7 points; given Hill’s original score of 77, this results in a range of 70 to 74.


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employment,” (2) disciplined savings plans pursued to purchase cars and

motorcycles, (3) military service, (4) active social life, (5) writing skills, and (6)

ability to care for himself.2

       The state court based its conclusion, in part, on a 35-page report prepared by

three mental health experts. One expert, Dr. Thomas H. Sachy, a psychiatrist,

evaluated Hill on November 22, 2000. The other two experts, Dr. Donald W.

Harris, a psychologist, and Dr. J. Gary Carter, a psychiatrist,3 evaluated Hill

together on December 6, 2000. Based on their in-person evaluations and the

voluminous evidence of Hill’s adequate “adaptive behavior,” the experts

determined that Hill was not mentally retarded and was malingering.

       Among the evidence relied on by the experts and presented to the state

habeas court, Hill’s military record was particularly meaningful. He entered the

military at the rank E-1 and, advancing each year, attained the rank of E-5 in five

years.4 Hill was decorated as a .38 caliber sharpshooter. He received military

education in nuclear weapons loading, aviation fund school, and corrosion control.

He completed an 80-hour instructor training course. Hill also attended and


       2
        The state habeas court did not discuss the third prong of the mental retardation test,
which is that the onset of it must have been before age 18.
       3
        In 2000, Dr. Carter was the Clinical Director of Forensic Services at Central State
Hospital.
       4
        Hill was eligible for an E-6 promotion in the military; however, he was demoted not
because of any mental inability, but because he murdered his girlfriend.
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completed a 2-week military course in leadership management education and

training. He was qualified as an assistant supervisor and ordnance systems

maintenance man and troubleshooter, with collateral duties in shop training, as a

publications petty officer, as a nuclear conventional weapons load team member,

and as a corrosion control/reclamation and salvage team member. Hill was

qualified as a weapons technician and was a Human Relations council member.

He completed a 2-week tour with a hometown recruiting program, played on the

football team, and was Petty Officer of the Watch. Hill also functioned as an

assistant work center supervisor, an ordnance troubleshooter, was CPR qualified,

and played on an intramural basketball team.

       Evaluations of Hill during his military duty contain these descriptions of

him:

       Dedicated and reliable petty officer.          Completes all tasks
       expeditiously, at times under very adverse conditions. Quiet, friendly
       manner, and positive attitude greatly enhances squadron morale.
       Uniforms and appearance always outstanding. Actively supports the
       Navy’s equal opportunity goals. Good use of the English language
       orally and written. Strongly recommended for advancement and
       retention.

       Similarly, Hill was reported to be:

       [a] reliable individual and devoted second class petty officer. Works
       exceptionally well with others and assists in the training of weapons-
       loading team members. Implemented a new W/C tool control
       program and aided in the redesigning of the W/C technical Pubs
       library, both areas receiving an outstanding during the latest
       COMHEL WINGGRES visit.              His quiet personality enhances
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       squadron morale. Uniforms and appearance continually outstanding.
       Actively supports the Navy’s equal opportunity goals. Demonstrates
       excellent command of the English language orally and written.
       Strongly recommended for advancement and retention in the Naval
       service.

       Based on all of the evidence, the state habeas court concluded that Hill had

not shown impairments in adaptive behavior and thus had not established his

mental retardation beyond a reasonable doubt.

       The Georgia Supreme Court affirmed. Head v. Hill, 277 Ga. 255, 587

S.E.2d 613 (2003). In doing so, it upheld the state habeas court’s findings and

reasons for denying Hill’s mental retardation claims. See id. at 256–56, 587

S.E.2d at 617–18.

D. First Federal 28 U.S.C. § 2254 Petition–Filed October 5, 2004

       On October 5, 2004, Hill filed a 28 U.S.C. § 2254 petition for a writ of

habeas corpus in the United States District Court for the Middle District of

Georgia. The petition raised multiple mental retardation claims involving Hill’s

death sentence, including a claim that because he had proved his mental

retardation, the Eighth Amendment barred his execution.5 After extensive briefing

on this and other issues, the district court denied relief on November 7, 2007.6


       5
        Hill also argued that Georgia’s standard of proof—beyond a reasonable doubt—was
unconstitutional.
       6
      On August 22, 2008, the district court denied Hill’s timely filed Motion to Alter and
Amend Judgment.

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       This Court granted a certificate of appealability on limited issues.

Subsequently, this Court en banc affirmed the district court’s denial of Hill’s

§ 2254 petition. Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) (en banc). The

United States Supreme Court denied certiorari. Hill v. Humphrey, 132 S. Ct. 2727

(June 4, 2012).

       The State initially set Hill’s execution for July 18, 2012 at 7:00 pm., but

rescheduled it for July 23, 2012 at 7:00 pm.7

E. Second State Habeas–Filed July 18, 2012

       On July 18, 2012, shortly before his scheduled execution, Hill filed a

successive state habeas petition reasserting the same mental retardation claim. On

July 19, 2012, the state habeas court denied the claim. Hill appealed. On July 23,

2012, the Georgia Supreme Court found Hill’s claim was barred from review by

Georgia res judicata principles, holding:

       To the extent that Hill’s petition for a writ of habeas [corpus] raised
       claims previously addressed by this Court in Hill’s first state habeas
       proceedings, such claims are barred as res judicata. See Head v. Hill,
       277 Ga. 255 (587 S.E. 613) (2003) . . . .

Hill v. Humphrey, Case No. S12W1799 (Ga. July 23, 2012) (unpublished order).

The United States Supreme Court denied certiorari as to the Georgia Supreme



       7
       On June 16, 2012, the Georgia Board of Pardons and Paroles denied Hill’s petition for
clemency.

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Court’s denial of Hill’s second state habeas petition. Hill v. Humphrey, No. 12-

8048 (Feb. 19, 2013).

F. Lethal Injection Claims

      Also during July 2012, Hill filed a separate civil action challenging the

State’s method of his lethal injection on various grounds. On July 23, 2012, the

state trial court rejected the lethal injection claim on the merits. Hill appealed to

the Georgia Supreme Court, and, on July 23, 2012, that court entered a stay of

execution to allow for consideration of those lethal injection claims. The Georgia

Supreme Court granted a discretionary appeal, and later rejected Hill’s lethal

injection claims on the merits and vacated the stay. Hill v. Owens, No. S12A1819,

(Ga. Feb. 4, 2013).

G. Third State Habeas–Filed February 15, 2013

      The State set Hill’s execution for February 19, 2013 at 7:00 pm.

      On February 15, 2013, Hill filed his third state habeas petition, this time

asserting that certain prior mental health experts, including Dr. Thomas Sachy, had

now modified their opinions about Hill’s mental capabilities. These mental health

experts had not seen Hill since their evaluations in 2000 and had not administered

any new tests to Hill.

      Rather, as explained below, Hill’s pleadings admit that Dr. Thomas Sachy,

on his own, read about Hill’s scheduled execution and contacted Hill’s attorney on


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July 27, 2012 to advise that his earlier 2000 conclusion in the state habeas court—

that Hill was not mentally retarded—may have been in error. Dr. Sachy’s affidavit

states:

          In late July 2012, I noticed media reports about a man whom courts
          had found to be mildly mentally retarded and who was nevertheless
          facing execution. I then realized that this man was Warren Lee Hill,
          and I remembered that I had evaluated him for the government many
          years ago. Not realizing that a stay of execution had already been
          entered in the case, I contacted Mr. Hill’s counsel on July 27, 2012,
          and offered to discuss the case. I told counsel I felt that my previous
          conclusions about Mr. Hill’s mental health status were unreliable
          because of my lack of experience at the time, and I wanted to revisit
          the case.

Pet. for Writ of Habeas Corpus 12 (quoting Dr. Thomas Sachy Aff.). Although Dr.

Sachy contacted Hill’s attorney on July 27, 2012, Hill filed nothing regarding Dr.

Sachy’s changing his opinion until February 15, 2013, right before his execution

scheduled for February 19, 2013.8

          In response to Hill’s third state habeas petition, the State pointed out that

Hill was again raising the same, multiple claims of mental retardation that were

previously adjudicated and denied by the state habeas courts and the Georgia

Supreme Court. The State also stressed, among other things, that Hill’s claims in




          8
         Hill’s attorney candidly acknowledges that Dr. Sachy contacted him in July 2012 “after
a temporary stay had been entered in his case” by the Georgia Supreme Court. Hill’s attorney
implies that he did not immediately seek affidavits from Dr. Sachy and the other experts because
he was concentrating on the lethal injection claims in July 2012 to February 2013 and “had no
knowledge as to when the Georgia Supreme Court would issue a decision in the case.”
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his third habeas petition remained barred under state law by Stevens v. Kemp, 254

Ga. 228, 327 S.E.2d 185 (1985).

      On February 18, 2013, the state habeas court denied Hill’s third habeas

petition concluding that it was procedurally barred and that he had not shown a

miscarriage of justice:

      This Court DISMISSES the instant action as procedurally barred as
      this is Petitioner’s third state habeas petition in this Court asserting the
      same claims. Stevens v. Kemp, 254 Ga. 228, 230 (198[5]). This
      Court does not find Petitioner has cited any new law to overcome the
      bar. Further, Petitioner’s “new evidence” does not establish a
      miscarriage of justice. Thus, the claims in this petition are barred by
      law from review. The instant petition is DISMISSED             and      this
      Court therefore DENIES Petitioner’s motion for stay of his execution.

Hill v. Humphrey, Habeas Corpus Action (Butts Cnty., Ga. Super. Ct. Feb. 18,

2013) (unpublished order).

      After the denial of his third state habeas petition, Hill sought a stay of

execution and filed an application for a certificate of probable cause to appeal to

the Georgia Supreme Court, which denied his application and request for a stay of

execution.

H. Application to File Successive § 2254 Petition

      On February 19, 2013, just three hours before the scheduled execution, Hill

filed in this Court an Application for leave to file a successive federal § 2254

habeas petition. In support of his Application, Hill refers to the same recanted



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evidence from the mental health experts on which he had based his third state

habeas petition.

      As he did in his third state habeas petition, Hill recounted how Dr. Thomas

Sachy heard news reports about Hill’s pending execution and contacted Hill’s

attorney on July 27, 2012. Although he had not seen Hill since 2000, Dr. Sachy

had revisited his notes from his 2000 evaluation and concluded that his previous

assessment was wrong. Hill filed Dr. Sachy’s affidavit, dated February 8, 2013,

which states that he has changed his 2000 opinion. According to Dr. Sachy, his

additional experience in practicing psychiatry since 2000 and new research studies

by others caused him to conclude that: (1) Hill was not malingering during the

2000 evaluation; and (2) Hill’s Naval records were “not inconsistent with mild

mental retardation.”

      Hill also filed affidavits, dated February 11 and 12, 2013 respectively, by

Drs. Donald Harris and James Gary Carter. Dr. Harris, a psychologist, and Dr.

Carter, a psychiatrist, both testified at the 2000 hearing that Hill was not mentally

retarded. They did so after jointly conducting a two-hour, in person evaluation. In

their 2013 affidavits, Drs. Harris and Carter each state they were contacted by

Hill’s attorney in February 2013 and informed of Dr. Sachy’s new assessment.

They then reconsidered their 2000 opinions and now consider Hill mildly mentally




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retarded. Like Dr. Sachy, Drs. Harris and Carter had not administered any new

tests to Hill or even seen him in 13 years.9

       After Hill’s Application was filed, this Court in an unpublished order

granted a conditional stay of execution to permit further briefing by Hill, then the

State, and then a reply by Hill. That extensive briefing is now complete, and thus

we proceed to rule on Hill’s Application.

                                     II. DISCUSSION

A. Strict Federal Restrictions on Successive Petitions

       Hill seeks to file a successive petition for habeas corpus under 28 U.S.C.

§ 2254. Because he already filed one § 2254 habeas petition, Hill must meet the

strict requirements of 28 U.S.C. § 2244 before filing a successive federal habeas

petition. 28 U.S.C. § 2244(b).

       Section 2244 was enacted as part of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). “[O]ne of the principal functions of AEDPA

was to ensure a greater degree of finality for convictions.” Gilbert v. United

States, 640 F.3d 1293, 1310 (11th Cir. 2011) (en banc); see also Johnson v. United

States, 340 F.3d 1219, 1224 (11th Cir. 2003); Jones v. United States, 304 F.3d

1035, 1039 (11th Cir. 2002) (“A fundamental purpose for the AEDPA was to

       9
        Notably, Hill did not attach to his third state habeas petition, or to his instant
Application, any affidavit prepared by a mental health expert who had evaluated him after
December 2000. Drs. Sachy, Harris, and Carter each base their revised opinions on
reconsideration of their December 2000 evaluations.
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establish finality in post-conviction proceedings.”). The Supreme Court has

instructed that AEDPA’s purpose is to advance the principles of comity, finality,

and federalism. Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 1490

(2000). As we have explained:

      The statutory bar against second or successive motions is one of the
      most important AEDPA safeguards for finality of judgment . . . .
      “The central purpose behind the AEDPA was to ensure greater finality
      of state and federal court judgments in criminal cases, and to that end
      its provisions greatly restrict the filing of second or successive
      petitions.”

Gilbert, 640 F.3d at 1311 (quoting Gonzalez v. Sec’y for Dep’t of Corrs., 366 F.3d

1253, 1269 (11th Cir. 2004) (en banc), aff’d on other grounds sub nom., Gonzalez

v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005)); see also Tyler v. Cain, 533 U.S.

656, 661, 121 S. Ct. 2478, 2481–82 (2001) (“AEDPA greatly restricts the power of

federal courts to award relief to state prisoners who file second or successive

habeas corpus applications.”). “If second and successive motions are not ‘greatly

restrict[ed],’ there will be no end to collateral attacks on convictions and sentences,

and there will be no finality of judgment.” Gilbert, 640 F.3d at 1311 (quoting

Tyler, 533 U.S. at 661, 121 S. Ct. at 2481).

      One tool AEDPA uses to restrict successive petitions is the requirement that

petitioners, like Hill, obtain permission from this Court before they can file a

successive § 2254 petition in a district court. Specifically, § 2244(b)(3)(A)

requires a state prisoner seeking to file a second or successive habeas petition to
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move this Court “for an order authorizing the district court to consider the

application.” 28 U.S.C. § 2244(b)(3)(A).

B. 28 U.S.C. § 2244(b)(1)

      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. We do that because

§ 2244(b)(1), added by AEDPA, provides that “[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a

prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis added). It

provides no exceptions.

      As held by the Supreme Court, “[u]nder § 2244(b), the first step of analysis

is to determine whether ‘a claim presented in a second or successive habeas corpus

application’ was also ‘presented in a prior application.’ If so, the claim must be

dismissed; if not, the analysis proceeds to whether the claim satisfies one of two

narrow exceptions.” Gonzalez, 545 U.S. at 530, 125 S. Ct. at 2647 (emphasis

added); see also Tyler, 533 U.S. at 661–62, 121 S. Ct. at 2481–82; In re Lambrix,

624 F.3d 1355, 1362 (11th Cir. 2010) (“Because Claims 7, 8, and 10 were

previously presented by Lambrix, they cannot be the basis of a claim for leave to

file a successive habeas petition.” (citing 28 U.S.C. § 2244(b)(1))); Gonzalez, 366




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F.3d at 1269 (noting the “total ban on claims that were presented in a prior

petition” (emphasis added)).

       Here, Hill’s first federal habeas petition in 2004 was a “prior application” for

the purposes of § 2244(b)(1). It contained the same claim that Hill wants to raise

in the successive petition he has applied to file. Therefore, we must deny Hill’s

Application and dismiss the claim. The statute does not say “may be dismissed,” it

says “shall be dismissed.” 28 U.S.C. § 2244(b)(1).

       More specifically, in his first federal habeas petition in 2004, Hill included

the following claim as “Claim One”: “Mr. Hill is mentally retarded, and his

execution would violate the Eighth and Fourteenth Amendments to the United

States Constitution.” See Hill v. Schofield, No. 04-cv-00151-WLS, DE 2 at i

(“Petition”) (Table of Contents, stating that Claim One of the petition is that “Mr.

Hill is mentally retarded, and his execution would violate the Eighth and

Fourteenth Amendments to the United States Constitution.”). 10 Hill’s claims are

then broken up into subparts. His first argument in part A of Claim One was that

he had proven he was mentally retarded and thus could not be executed under the

Eighth Amendment. Id. at i, 12–19. In part A of Claim One, Hill specifically

argued that he met the diagnostic requirements of mental retardation, i.e., that he


       10
          We attach a copy of the first page of the table of contents to Hill’s first federal habeas
petition as “Appendix A.”

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has significant defects in intellectual functioning and significant limitations in

adaptive functioning. In fact, he specifically argued that although the state habeas

court found that he had not established significant adaptive deficits, the evidence

showed to the contrary. Id. at i, 17–19.11

       As a separate argument in part C of Claim One, Hill also asserted that

Georgia’s statutory requirement that a defendant prove mental retardation beyond a

reasonable doubt violated the Eighth and Fourteenth Amendments. Id. at i, 25–32.

In his first federal habeas proceedings, Hill thoroughly litigated not only his mental

retardation claim, but also his allegations concerning the constitutionality of

Georgia’s burden of proof for such mental retardation claims.

       Likewise, in the current Application, Hill requests permission to file a

second or successive § 2254 petition on the basis that he “cannot be executed due

to his mental retardation.” Hill asserts that he “is mentally retarded . . . and must

       11
          After several pages of explaining why the evidence showed that Hill met the criteria for
mental retardation, the first federal habeas petition reads as follows:
        In its initial order, the habeas court held that Mr. Hill had “failed to show beyond
        a reasonable doubt that he possesses significant deficits in adaptive skills.” Order
        of May 2002 at 6. The habeas court found that doubt existed because Mr. Hill
        had a “consistent work ethic” and extensive work history; was able to purchase
        vehicles; performed well in the military; dated girls; and wrote several letters to
        his counsel that were “grammatically lacking,” but logical. As stated above, these
        factors are not inconsistent with mental retardation nor do they preclude a
        diagnosis of mental retardation. By relying upon such facts to establish “doubt,”
        the habeas court fell into a common trap: the misconception that mildly mentally
        retarded persons cannot accomplish such things.
Petition at 17 (second emphasis added). Indeed, from the very beginning, Hill has argued that he
is “mentally retarded within the meaning of OCGA § 17-7-131 et seq.,” which requires mental
retardation to be proven beyond a reasonable doubt.

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be protected from wrongful execution.” Again, Hill asserts that, because he is

mentally retarded, his execution would violate the Eighth Amendment to the

United States Constitution, and the Supreme Court’s decision in Atkins.

      We fully recognize that Hill has now submitted new evidence to bolster

these same mental retardation claims. In his initial state habeas proceedings, he

presented a large volume of evidence, including school records, military records,

multiple test results, and extensive testimony from experts, family members, and

friends. Petition at i, 10–19. In the instant Application, he refers to the same

supporting evidence, but seeks to bolster his claim by filing the new February 2013

affidavits of Drs. Sachy, Harris, and Carter recanting their earlier opinions.

      Although he has some new evidence, Hill nevertheless asserts in his

Application the same “federal basis of relief from the state court’s judgment” he

asserted in his first federal habeas petition—that he is mentally retarded and cannot

be executed pursuant to the Eighth Amendment. See Gonzalez v. Crosby, 545

U.S. 524, 530, 125 S. Ct. 2641, 2647 (2005) (defining § 2244(b)(1)’s term “claim”

as “an asserted federal basis for relief from a state court’s judgment of

conviction”). Hill cannot convert his previously asserted “claim” into a wholly

new “claim” merely by coming forward with new supporting evidence or even new

legal arguments. At an irreducible minimum, what Hill is asserting now is

precisely the same thing that he asserted in his initial habeas petition—he is and


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has always been mentally retarded and his execution would therefore violate the

Eighth and Fourteenth Amendments of the United States Constitution under the

Supreme Court’s decision in Atkins. Here, it is new evidence in support of the

same claim; it is not the basis of a new claim.

      Tellingly too, Hill does not cite any authority suggesting that new supporting

evidence or a new legal argument can transform a previously asserted claim into a

wholly new claim. Rather, this Court and other circuits have repeatedly held that

new evidence and new legal arguments in support of a prior claim are insufficient

to create a new claim and avoid § 2244(b)(1)’s bar on successive petitions.

      For example, in In re Mills, 101 F.3d 1369 (11th Cir. 1996), this Court held

that new supporting evidence is insufficient to avoid § 2244(b)(1)’s scope. There,

a state prisoner’s application to file a successive § 2254 petition alleged, inter alia,

the State withheld information regarding the ways it induced its key trial witness to

testify against petitioner. Id. at 1371. The state prisoner’s first § 2254 petition

alleged the State improperly coerced the trial witness to testify. Id. In his

application to file a successive § 2254 petition, the state prisoner bolstered his

coercion allegation by quoting from a recently obtained affidavit of the trial

witness. Id. This Court denied the application because the claim, although

supported by new evidence, was “presented in a prior petition.” Id.




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      Our sister circuits also have concluded that newly discovered factual support

for a prior claim does not justify the filing of a successive § 2254 petition. For

example, in Felder v. McVicar, 113 F.3d 696 (7th Cir. 1997), the Seventh Circuit

considered an application to file a successive § 2254 petition alleging ineffective

assistance of trial counsel based on counsel’s failure to interview two eyewitnesses

who, according to the petitioner, had exculpatory information. Id. at 697. The

state prisoner made the same claim in his first federal habeas petition; however, he

voluntarily dismissed that petition when he was unable to obtain affidavits from

the two eyewitnesses. Id. at 697–98. In support of his application to file a second

petition, the state prisoner came forward with the eyewitness affidavits. Id. at 698.

Nevertheless, the Seventh Circuit held that § 2244(b)(1) barred the application

because the state prisoner had already asserted the ineffective assistance of counsel

claim, albeit with a lot less evidence. Id. The court reasoned that while “[a] newly

discovered factual basis for a claim may permit filing a successive petition raising

a new claim, . . . it does not permit filing a successive petition raising the same

claim that was presented in a previous petition.” Id. (internal citations omitted).

      Similarly, 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). See, e.g., Thompson v. Nixon, 272 F.3d 1098, 1100–01 (8th Cir.

2001) (concluding that, where state prisoner’s federal habeas petitions argued that


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jury instructions violated the Due Process Clause, the Supreme Court’s new Fiore

v. White12 decision supporting his argument did not “make his claim a new one”;

instead “Fiore simply provide[d] a new argument . . . in support of the same due-

process claim that [was] presented twice before.”).13

       Similarly, in Babbitt v. Woodford, 177 F.3d 744 (9th Cir. 1999), the Ninth

Circuit denied a state prisoner’s application to file a successive § 2254 petition

because the petition was raising essentially the same claim raised before. Id. at

746, 748. The Ninth Circuit concluded that § 2244(b)(1) barred the state prisoner’s

federal habeas claim based on ineffective assistance of counsel because the state

prisoner asserted an ineffective assistance of counsel claim in a prior federal

habeas petition. Id. at 746. It did not matter to the Ninth Circuit that the petitioner

previously based his claim on his attorney’s alleged failure to raise post-traumatic

stress disorder as an affirmative defense at trial or as a mitigating factor at

sentencing, whereas he later based his claim on new factual allegations of his

attorney’s ineffectiveness, including his attorney’s alleged alcohol use during trial.



       12
            531 U.S. 225, 121 S. Ct. 712 (2001).
       13
          In Thompson, the state prisoner did not file a § 2244(b)(3)(A) application, but filed a
motion asking the Eighth Circuit to recall its mandate denying his § 2254 petition. 272 F.3d at
1099. Specifically, the state prisoner argued that the Supreme Court’s decision in Fiore, issued
after the Eighth Circuit’s mandate, established that the trial court’s jury instructions in his case
violated the Due Process Clause of the Fourteenth Amendment. Id. at 1099. The Eighth Circuit
declined to recall the mandate, concluding that the state prisoner’s claims in support of his
motion to recall the mandate were successive and thus subject to § 2244(b)(1). Id.
                                                   21
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Id. This was because “the basic thrust or gravamen of [the petitioner’s] legal claim

[was] the same . . . .” Id. (internal quotation marks omitted)14

       These cases are instructive. Hill suggests that because he has new evidence

to support his claim—the affidavits of Drs. Sachy, Harris, and Carter—his present

mental retardation claim is new. But in Mills, this Court held that new evidence

does not constitute a new claim. See 101 F.3d at 1371. Hill also reasons that

because he no longer raises the burden of proof issue, his Eighth Amendment-

mental retardation claim is new. Hill’s argument seems to be that he now claims

he is mentally retarded beyond a reasonable doubt, whereas he asserts that

previously he only claimed he was mentally retarded by a preponderance of the

evidence and that Georgia’s higher standard was unconstitutional. However, Hill’s

burden of proof argument was only one subpart (part C) of his Eighth Amendment

claim. Hill now is merely offering new evidence or a new legal argument in

support of the same Eighth Amendment claim—that his mental retardation bars his

execution under the Eighth Amendment—that we previously rejected. See

Thompson, 272 F.3d at 1100–01. The core factual allegation remains that Hill is

mentally retarded, and the core legal basis for the claim remains that his execution


       14
          Similarly, in Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007), the Ninth Circuit
concluded that “[a] claim is not newly presented merely because the petitioner offers new factual
bases in support of a legal claim that has already been raised.” Id. at 918 (emphasis added).
That is exactly what Hill has done here. He has come forward with additional proofs in support
of the same core claim—namely, that he is mentally retarded and that therefore his execution
would violate the Eighth and Fourteenth Amendments.
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would violate the Eighth and Fourteenth Amendments under Atkins. “[T]he basic

thrust or gravamen of [Hill’s] legal argument is the same . . . .” See Babbitt, 177

F.3d at 746 (internal quotation marks omitted). The burden of proof issue does not

alter the core mental retardation claim.

      Not only does precedent dictate our conclusion, so too do reason and the

finality interests underlying AEDPA. If all that was required to reassert years later

a previously rejected claim was a change in testimony, every material witness

would have the power to upset every notion of finality by simply changing his

testimony. And, as this case illustrates, opinion testimony can be changed with

great ease (indeed, even without seeing Hill in 13 years, administering any new

tests, or reviewing new documents, three witnesses pivoted their positions 180

degrees). Moreover, there is no reason to limit the change in evidence theory to

changes in testimony of previous witnesses. New witnesses could be rounded up,

and every new witness would transform the same old claim into a brand new one.

There is no good reason to read “claim” as used in § 2244(b)(1) unnaturally to

mean “new evidence supporting the claim” or a “new argument supporting the

claim.”

      And there is every reason not to read it in that unnatural way. When it

enacted AEDPA, Congress sought to bolster or add to the then-existing limitations

on judicial power to grant habeas relief. See Tyler v. Cain, 533 U.S. 656, 661, 121


                                           23
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S. Ct. 2478, 2481–82 (2001) (“AEDPA greatly restricts the power of federal courts

to award relief to state prisoners who file second or successive habeas corpus

applications.”); Stewart v. United States, 646 F.3d 856, 860 (11th Cir. 2011)

(referencing “Congress’s clear intention to limit ‘second or successive’ attempts at

post-conviction relief”).

      Permitting a second or successive petition to be filed whenever expert

witnesses decide to change their earlier opinions would not “greatly restrict[] the

power of federal courts” to entertain second or successive petitions, Tyler, 533

U.S. at 661, 121 S. Ct. at 2481, but instead would have exactly the opposite

effect—permitting second or successive petitions where pre-AEDPA law would

not have. That is why in § 2244(b)(1), “claim” means claim, not evidence or

arguments supporting a claim. And that is why the Supreme Court has instructed

us that “[i]f the prisoner asserts a claim that he has already presented in a previous

federal habeas petition, the claim must be dismissed in all cases.” Tyler, 533 U.S.

at 661, 121 S. Ct. at 2482 (citing 28 U.S.C. § 2244(b)(1)). “In all cases” means all

cases. Section 2244(b)(1) bars the petition Hill requests authorization to file.

C. 28 U.S.C. § 2244(b)(2)

      Alternatively, even if we did view Hill’s present claim as a new one that he

did not present in his prior federal petition, we are nevertheless required to deny




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his Application to file a successive petition because he has not satisfied the

requirements of 28 U.S.C. § 2244(b)(2).

      Under AEDPA, this Court may now grant authorization to file a successive

federal habeas petition only if the applicant satisfies one of the two narrow

statutory exceptions in § 2244(b)(2), stated as:

             (A) the applicant shows that the claim relies on a new rule of
      constitutional law, made retroactive to cases on 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)(2) (emphasis added). This Court “may authorize the filing of

a second or successive application only if it determines that the application makes

a prima facie showing that the application satisfies the requirements of this

subsection [§ 2244(b)].” Id. § 2244(b)(3)(C). A prima facie showing is “a

sufficient showing of possible merit to warrant a fuller exploration by the district

court.” In re Turner, 637 F.3d 1200, 1204 (11th Cir. 2011) (internal quotation

marks omitted).

      Hill’s Application does not meet either of the two narrow exceptions

enunciated in § 2244(b)(2). As to the first exception, Hill concedes that he does
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not rely on a new rule of constitutional law that was previously unavailable.

Indeed, under Georgia law, Hill had a right to raise his mental retardation claim at

trial and his state habeas cases long before the Supreme Court’s decision in Atkins

v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). And, as outlined above, Hill has

already raised the mental retardation issue multiple times in state and federal

courts, and all of those courts have rejected his claims. See Hill v. Humphrey, 662

F.3d 1335, 1340–43 (11th Cir. 2011) (en banc) (outlining procedural history of

case). And, in any event, the Supreme Court decided Atkins in 2002, well before

Hill filed his first federal habeas petition in 2004. Hill’s Atkins claims were not

only available to him, but were pleaded by him and rejected before in both state

and federal courts.

       As to the second exception in § 2244(b)(2)(B) concerning newly discovered

evidence of actual innocence, Hill has failed to satisfy that exception too. Even

assuming arguendo Hill has shown due diligence, the new evidence (i.e., the

recanted expert opinions) does not establish that, “but for constitutional error, no

reasonable factfinder would have found [Hill] guilty of the underlying offense.”

See 28 U.S.C. § 2244(b)(2)(B)(ii) (emphasis added).15 Again, because the purpose



       15
          The State vigorously argues that Hill has not come close to showing that the factual
predicate could not have been discovered previously through due diligence because: (1) the
experts based their change of their staunchly held opinions on supposedly “new advancements”
in assessing adaptive deficits, but (2) those alleged advancements are not new and were available
to Hill and the experts in 2000 at the time of the first state habeas hearing.
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of AEDPA is to greatly restrict the power of federal courts to entertain second or

successive petitions, the Supreme Court has made clear that this is a “narrow

exception[]” for claims “that call into question the accuracy of a guilty verdict.”

Tyler, 533 U.S. at 661–62 (emphasis added).

       Hill has not pointed to any newly discovered facts that establish, or even

could possibly establish, his innocence of the underlying offense of murder. To the

contrary, Hill has never denied that he was guilty of intentionally murdering his

fellow inmate, and even now he does not challenge his murder conviction. Hill’s

claim is a pure sentencing claim. His claim is that under Atkins, he cannot be

executed because he is mentally retarded. But Atkins had nothing to do with

convictions. Hill’s “underlying offense” within the meaning of § 2244(b)(2)(B)(ii)

is murder, not a death sentence. As the Georgia Supreme Court described it,

“Warren Lee Hill was convicted of murder by a jury in Lee County and sentenced

to death.” Hill v. State, 263 Ga. 37, 37, 427 S.E.2d 770, 772 (1993). His

conviction was for the offense of murder; his sentence, based on the aggravating



        The State also points out that the experts allege that they did not have, in 2000, the
information that Hill could have served in the Navy as a mentally retarded individual, but that
the record shows the experts had Hill’s military records, reviewed them prior to their 2000
testimony, and found they undermined Hill’s claim of mental retardation. According to the
State, the experts also reviewed the affidavits of Dr. Garrett Duckworth and Chief Warren
O’Bryant prior to the 2000 state habeas and those affidavits are consistent with the testimony of
Drs. Stonefield and Brittain regarding serving in the military if mentally retarded. Thus, the
State emphasizes that the basis for the experts’ change of opinion was already available before
their 2000 testimony. We ultimately need not reach this due diligence issue given our other
rulings above.
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and mitigating circumstances that were established at the later sentencing hearing,

was death. A sentence is not a conviction for an “underlying offense.” See 28

U.S.C. § 2244(b)(2)(B)(ii).

      Importantly here, the language of “guilty of the underlying offense” is plain

and unambiguous. “Indeed, ‘[t]he first rule in statutory construction is to

determine whether the language at issue has a plain and unambiguous meaning

with regard to the particular dispute. If the statute’s meaning is plain and

unambiguous, there is no need for further inquiry.’” In re Davis, 565 F.3d 810,

823 (11th Cir. 2009) (quoting United States v. Silva, 443 F.3d 795, 797–98 (11th

Cir. 2006)). “Put differently, we ‘must presume that Congress said what it meant

and meant what it said.’” Davis, 565 F.3d at 823 (quoting Shotz v. City of

Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir. 2003)).

      The first term that Hill cannot overcome is the word “guilty.” “Guilty”

means “[h]aving committed a crime” or “responsible for a crime.” Black’s Law

Dictionary 776 (9th ed. 2009); see also Webster’s Third New International

Dictionary Unabridged 1009–1010 (2002) (defining “guilt” as “responsibility for

an offense” or “the fact of having committed a breach of conduct esp. violating

law”). Hill’s Atkins claim, regardless of his new evidence, does not call into




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question the fact that he committed the crime of murder, nor does it controvert his

responsibility for that act. Hill remains guilty of the “underlying” crime.16

       The statutory use of the word “underlying” is also significant, drawing

further contrast between the offense of conviction and the ensuing sentence. If

“guilty of the underlying offense” is read to cover sentencing claims as well, then

the word “underlying” is rendered utterly superfluous. See Dole Food Co. v.

Patrickson, 538 U.S. 468, 476–77 (2003) (“Absent a statutory text or structure that

requires us to depart from normal rules of construction, we should not construe the

statute in a manner that is strained and, at the same time, would render a statutory

term superfluous.”). When you combine the term “guilty” with the word

“underlying,” it is clear that the statute sharply distinguishes between a petitioner’s

offense of conviction and his sentence. We are unable to transmute a claim that a

petitioner is not eligible for a capital sentence into a claim that the petitioner is not

“guilty of the underlying offense.”




       16
         Hill points out that the Georgia statutory scheme requires that a defendant be both
guilty and not mentally retarded before receiving a death sentence. This argument cuts against
him. It demonstrates that the concepts of guilt and mental retardation are distinct and
independent; that is, Hill can be found guilty of murder in Georgia and yet still be mentally
retarded. See O.C.G.A. § 17-7-131(c) (providing for verdict of “guilty but mentally retarded”).
In other words, what the statute does is prohibit a death sentence, not a verdict of guilt. Id. § 17-
7-131(j) (“In the trial of any case in which the death penalty is sought . . . , 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.” (emphasis added)).
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      Given the plain and unambiguous language in the statute, this Court

repeatedly has held that federal law does not authorize the filing of a successive

application under § 2244(b)(2)(B) based on a sentencing claim even in death cases.

In re Schwab, 531 F.3d 1365, 1366–67 (11th Cir. 2008) (denying a death row

inmate’s application for a successive habeas petition premised on a change of

expert opinion purporting to establish the inmate’s “innocen[ce] of the death

penalty,” because (1) the inmate’s application did not assert “a constitutional error,

just a change in the opinion of an expert witness,” and (2) “the asserted change in

opinion [went] to the existence of mitigating circumstances, not to whether [the

inmate was] guilty of the underlying offense”); In re Diaz, 471 F.3d 1262, 1263–64

(11th Cir. 2006) (per curiam) (“Because [Petitioner] does not, and could not,

suggest that the alleged new evidence would have altered the jury finding on his

guilt of the underlying offense, he is not eligible for relief under the second

exception.”); In re Provenzano, 215 F.3d 1233, 1237 (11th Cir. 2000)

(“[Petitioner’s] innocence-of-the-death-penalty claim does not fit within either

§ 2244(b)(2) exception.”); In re Jones, 137 F.3d 1271, 1273-74 (11th Cir. 1998)

(denying an application to file a second or successive habeas petition on a claim

that execution by electric chair violates the Eighth Amendment, because the newly

discovered evidence exception in § 2244(b)(2)(B) does not apply to sentence-

related claims); In re Medina, 109 F.3d 1556, 1565 (11th Cir. 1997) (“[T]he plain


                                          30
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terms of [the] exception make it clear that it is limited to claims going to whether

the applicant is ‘guilty of the underlying offense.’”), overruled on other grounds by

Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618 (1998); see also In re

Schwab, 506 F.3d 1369, 1370 (11th Cir. 2007) (denying a death row inmate’s

application to file a second or successive habeas petition because it neither relied

on a new rule of constitutional law, “nor involve[d] facts relating to guilt or

innocence”).17 Hill essentially concedes our Court’s holding in In re Medina is

against him.

       Notably too, the Fifth Circuit has construed similar plain language in 28

U.S.C. § 2255(h)—“guilty of the offense”—as not applying to sentences and not

allowing the filing of a successive § 2255(h) motion where the movant claimed he

was “not guilty of the death penalty” or “not eligible for a death sentence.” See In

re Webster, 605 F.3d 256, 258–59 (5th Cir. 2010). Section 2255(h)(1) provides

that

       [a] second or successive motion must be certified as provided in
       section 2244 by a panel of the appropriate court of appeals to contain .
       . . newly discovered evidence that, if proven and viewed in light of the
       evidence as a whole, would be sufficient to establish by clear and
       convincing evidence that no reasonable factfinder would have found
       the movant guilty of the offense . . . .


       17
          In Ward v. Hall, 592 F.3d 1144 (11th Cir. 2010), this Court held that similar language
in 28 U.S.C. § 2254(e)(2), authorizing federal evidentiary hearings, did “not apply to issues
relating to the sentencing phase of a trial.” Id. at 1161. We construed “guilt of the underlying
offense” to mean exactly what it says and nothing else. See id.
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28 U.S.C. § 2255(h)(1) (emphasis added). The movant in Webster urged the Fifth

Circuit “to read ‘offense’ broadly so that § 2255(h)(1) would cover not only a

claim that a prisoner is not guilty of the offense of conviction, but also a claim that

he is ‘not guilty of the death penalty.’” 605 F.3d at 258.

      Rejecting that argument and denying Webster’s application to file a

successive § 2255(h) motion, the Fifth Circuit stressed three points. First, “there is

no reason to believe that Congress intended the language ‘guilty of the offense’ to

mean ‘eligible for a death sentence.’” Id. (quoting 28 U.S.C. § 2255(h)(1)).

Secondly, “[h]ad Congress wanted the provision to cover challenges to a

sentence—even if only to a death sentence—it easily could have referenced

sentences explicitly in the text . . . .” Id. Third, Congress “elected to couch

§ 2255(h)(1), as well as § 2244(b)(2)(B)(ii), in the markedly different,

unmistakable terms of guilt of the offense.” Id. at 259; see also Hope v. United

States, 108 F.3d 119, 120 (7th Cir. 1997) (“We conclude that a successive motion

under 28 U.S.C. § 2255 (and presumably a successive petition for habeas corpus

under section 2254, governing habeas corpus for state prisoners, which has

materially identical language) may not be filed on the basis of newly discovered

evidence unless the motion challenges the conviction and not merely the

sentence.”); cf. Wright v. Angelone, 151 F.3d 151, 164 n.8 (4th Cir. 1998) (dicta)

(noting in a procedural default case under 28 U.S.C. § 2254(e)(2)(B), that “other


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circuit courts narrowly have interpreted the identical language in § 2244(b)(2) to

require that habeas petitioners demonstrate actual innocence of the underlying

crime to file a successive habeas petition on the basis of newly discovered

evidence[,]” and thus, “[a] claim of ‘innocence of the death penalty’ only is no

longer sufficient to warrant review”).18

       In sum, as this Court held, “‘Our function is to apply statutes, to carry out

the expression of the legislative will that is embodied in them, not to ‘improve’

statutes by altering them.’” Davis, 565 F.3d at 823 (quoting Wright v. Sec’y for

the Dep’t of Corrs., 278 F.3d 1245, 1255 (11th Cir. 2002)). As the statute in

§ 2244(b)(3)(C) makes clear, this Court may authorize the filing of a successive

petition only if Hill’s Application makes a prima facie showing that the proposed

petition satisfies one of the narrow exceptions in § 2244(b)(2). Even if

§ 2244(b)(1) did not bar Hill’s attempt to file a second or successive petition, he

has not, and cannot, meet the statutory requirements in § 2244(b)(2) for

authorization to file one. Therefore, this Court is not authorized to grant Hill

permission to file a successive federal habeas petition.

       Finally, we have considered with care and caution our colleague’s dissent.

We are required, however, to apply the rules of AEDPA and, more particularly, the

       18
          But see Thompson v. Calderon, 151 F.3d 918, 923–24 (9th Cir. 1998) (en banc)
(holding that petitioner’s “claim that he is ineligible for the death penalty due to the
constitutional infirmity of [his] . . . conviction . . . states a claim under § 2244(b)”).

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stringent rules found in § 2244(b)(1) and (b)(2) that Congress has enacted

regarding second or successive petitions. The unequivocal and plain text compels

this result.

D. Sawyer Exception Does Not Survive AEDPA

       Given that Hill’s sentence claim does not fall within the § 2244(b)(2)(B)

exception, we note that Hill also asks us to grant equitable relief by applying a pre-

AEDPA exception to the bar on successive habeas petitions. Our precedent and

AEDPA’s plain terms also foreclose that request too.

       Hill relies primarily on the pre-AEDPA decision in Sawyer v. Whitley, 505

U.S. 333, 112 S. Ct. 2514 (1992), where the Supreme Court considered an

exception to the judicially-developed bar on second or successive habeas petitions.

Id. at 346–47, 112 S. Ct. at 2523. Prior to AEDPA, Supreme Court decisions

barred second or successive habeas petitions unless the petitioner could establish

cause and prejudice or a miscarriage of justice. Id. at 338, 112 S. Ct. at 2518. To

prove a miscarriage of justice, a petitioner had to show actual (factual) innocence.

Id. at 339, 112 S. Ct. at 2518–19.

       In Sawyer, the Supreme Court held that the “actual innocence” exception

applied to claims asserting innocence of facts underlying a petitioner’s eligibility

for capital sentencing. Id. at 346–47, 112 S. Ct. at 2523. To bring a claim within

the miscarriage of justice exception to the bar on successive habeas petitions, the


                                          34
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Supreme Court required a petitioner to present evidence establishing “a fair

probability that a rational trier of fact would have entertained a reasonable doubt as

to the existence of those facts which are prerequisites under state or federal law for

the imposition of the death penalty.” Id. at 346, 112 S. Ct. at 2523 (internal

quotation marks omitted).

      The pre-AEDPA bar on successive habeas petitions was judge-made. So too

were its exceptions. When it enacted AEDPA, Congress codified the bar on

successive habeas petitions, but not any pre-AEDPA exceptions. In their place,

Congress crafted narrow exceptions. The Supreme Court has recognized that the

pre-AEDPA Sawyer exception did not survive the plain language of § 2244(b)(2).

It has explained:

      AEDPA greatly restricts the power of federal courts to award relief to
      state prisoners who file second or successive habeas corpus
      applications. If the prisoner asserts a claim that he has already
      presented in a previous federal habeas petition, the claim must be
      dismissed in all cases. § 2244(b)(1). And if the prisoner asserts a
      claim that was not presented in a previous petition, the claim must be
      dismissed unless it falls within one of two narrow exceptions. One of
      these exceptions is for claims predicated on newly discovered facts
      that call into question the accuracy of a guilty verdict.
      § 2244(b)(2)(B). The other is for certain claims relying on new rules
      of constitutional law. § 2244(b)(2)(A).

Tyler, 533 U.S. at 661–62, 121 S. Ct. at 2481–82 (emphasis added). The Supreme

Court has said there are only two narrow statutory exceptions, not that there are

three exceptions—the two in the statute plus a third one that existed before the


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statute was enacted. Simply put, the Sawyer exception for actual innocence of the

death penalty is not among the exceptions Congress chose to enact. See 28 U.S.C.

§ 2244(b)(2).

      This Court, en banc, has already held that Congress’s failure to codify the

Sawyer exception was meaningful and that the Sawyer exception does not survive

AEDPA. See Gilbert, 640 F.3d at 1322. In Gilbert, a § 2255 movant attempted to

take advantage of the Sawyer exception to obtain relief from his sentence. We

gave a number of independently alternative reasons for not applying that exception

in his case. Id. at 1320–23. One of the reasons was that the Sawyer exception did

not survive the enactment of AEDPA. Id. at 1322. We quoted at length and with

approval the Seventh Circuit’s decision in Hope v. United States, 108 F.3d 119

(7th Cir. 1997), which held that the “judge-fashioned” Sawyer exception does not

survive AEDPA because “[t]he exception[s] in the new law [are] graven in

statutory language that could not be any clearer.” Hope, 108 F.3d at 120. Then we

adopted that holding as our own. Gilbert, 640 F.3d at 1322 (“In other words, the

actual innocence of sentence exception to the bar against second or successive

motions involving sentence claims, as narrow as it was, did not survive AEDPA.




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For all of these reasons we conclude that the Sawyer actual innocence of sentence

exception does not apply . . . .” (emphasis added)).19

       We acknowledge that Gilbert dealt with a § 2255 motion based on an

erroneous application of the United States Sentencing Guidelines, not a § 2254

habeas petition challenging a state death sentence. However, in Gilbert, this Court

did not suggest that the Sawyer exception remains viable in some circumstances

not present in that case. Rather, this Court made clear that AEDPA forecloses the

Sawyer exception in all circumstances, including § 2254 challenges to state death

sentences. Gilbert, 640 F.3d at 1322.

       This holding of the en banc court in Gilbert is consistent with our decisions

in Schwab, Diaz, Provenzano, Jones, and Medina. Each of those cases involved

challenges to state death sentences. Yet in none of them did we apply the Sawyer

exception, although the exception might have been relevant under pre-AEDPA

law. To the extent that our precedent was previously unclear, we now clarify it—

post-AEDPA, there is no Sawyer exception to the bar on second or successive

habeas corpus petitions for claims asserting “actual innocence of the death




       19
         The Fifth Circuit has also followed Hope’s conclusion that the Sawyer exception did
not survive the AEDPA amendment in § 2255(h). See Webster, 605 F.3d at 258.


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penalty.”20 Thus, this Court is not authorized to grant Hill’s Application on this

basis either.

                                     III. CONCLUSION

       For all of these reasons, we DENY Hill’s Application under 28 U.S.C.

§ 2244(b)(3)(A) for permission to file a second or successive petition for writ of

habeas corpus in the district court. We also VACATE the conditional stay of

execution entered on February 19, 2013.

       APPLICATION DENIED; STAY VACATED.




       20
          Hill does not argue that our failure to recognize the Sawyer exception to § 2244(b)(2)
results in a suspension of the writ of habeas corpus in violation of Article I, Section 9, Clause 2
of the United States Constitution. Nevertheless, we make clear that our decision does not leave
Hill without the ability to petition for a writ of habeas corpus. Hill may petition the Supreme
Court directly for a writ of habeas corpus under that Court’s original jurisdiction. See Felker v.
Turpin, 518 U.S. 651, 661–63, 116 S. Ct. 2333, 2338–39 (1996) (holding that AEDPA did not
withdraw from the Supreme Court its original jurisdiction to consider petitions for writs of
habeas corpus and leaving open the question whether AEDPA’s restrictions apply to federal
habeas petitions brought under the Supreme Court’s original jurisdiction); In re Davis, 565 F.3d
810, 826–27 (11th Cir. 2009) (“The Supreme Court has made clear that the habeas corpus
statute, even after the AEDPA amendments of 1996, continues to allow it to grant a writ of
habeas corpus filed pursuant to its original jurisdiction.”). Because Hill has an alternative
avenue for habeas relief available to him, any argument that the writ has been suspended in his
case would be a non-starter.
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BARKETT, Circuit Judge, dissenting:

       The Supreme Court has said unequivocally that it is a violation of the Eighth

Amendment to the U.S. Constitution to execute a mentally retarded person.

Atkins v. Virginia, 536 U.S. 304 (2002). Despite the Supreme Court’s command

“that such punishment is excessive and that the Constitution ‘places a substantive

restriction on the State’s power to take the life’ of a mentally retarded offender,”

Atkins, 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)),

the state of Georgia will execute a mentally retarded man when it carries out the

execution of Warren Lee Hill. There is no question that Georgia will be executing

a mentally retarded man because all seven mental health experts who have ever

evaluated Hill, both the State’s and Hill’s, now unanimously agree that he is

mentally retarded.1

       The state of Georgia and the majority, however, take the position that a

federal court cannot consider Hill’s newly discovered and compelling evidence

because Congress’s gatekeeping rules under AEDPA preclude us from allowing a
       1
          In referring to “mental retardation” throughout this dissent, I recognize that increasingly
professionals in this field, such as the American Association on Intellectual and Developmental
Disabilities (formerly the American Association on Mental Retardation), are replacing the term
“mental retardation” with “intellectual disability” or “intellectual developmental disability.” In
this dissent, however, I use the term “mental retardation” to maintain consistency with the
terminology used throughout Hill’s appeal and relevant caselaw.
        As I noted in my dissent in Hill v. Humphrey, 662 F.3d 1335, 1366-67 (11th Cir. 2011)
(en banc) (Barkett, J., dissenting), “the Supreme Court recognized [in Atkins] that mental
retardation spans a spectrum of intellectual impairment, ranging from mild to moderate to severe
to profound mental retardation,” and that “within the universe of all mentally retarded
individuals, 89% fall in the mildly mentally retarded range.”

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mentally retarded person to vindicate his constitutional right to never be put to

death. The perverse consequence of such an application of AEDPA is that a

federal court must acquiesce to, even condone, a state’s insistence on carrying out

the unconstitutional execution of a mentally retarded person. When Hill has

proffered uncontroverted evidence of his mental retardation, I cannot agree that we

have no choice but to execute him anyway because his claim does “not fit neatly

into the narrow procedural confines delimited by AEDPA,” In re Davis, 565 F.3d

810, 827 (11th Cir. 2009) (Barkett, J., dissenting).

      The idea that courts are not permitted to acknowledge that a mistake has

been made which would bar an execution is quite incredible for a country that not

only prides itself on having the quintessential system of justice but attempts to

export it to the world as a model of fairness. Just as we have recognized that a

petitioner who “in fact has a freestanding actual innocence claim . . . would be

entitled to have all his procedural defaults excused as a matter of course under the

fundamental miscarriage of justice exception,” Mize v. Hall, 532 F.3d 1184, 1195

n.9 (11th Cir. 2008), I see no reason not to accord the same consideration to one

who has a freestanding claim that he is, in fact and in law, categorically exempt

from execution.



                                          I.


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      The basis for Hill’s present request for relief from his sentence of death is

that all three experts who previously testified for the state of Georgia in 2000 that

Hill did not meet the criteria for mental retardation have recently come forward

and said they made a grievous mistake. They explained that their earlier

conclusions were unreliable and that it is now their professional opinion that Hill is

mentally retarded. For example, Dr. Thomas H. Sachy, who initiated contact with

Hill’s attorney after reading about the then impending execution, said he believed

his original “conclusions about Mr. Hill’s mental health status were unreliable

because of [his] lack of experience at the time.” Moreover, he noted that he had

only spent approximately an hour with Hill the day before the hearing on Hill’s

mental status, that he did not have experience evaluating mental retardation, and

that Hill’s case constituted one of his first death penalty cases. After reviewing his

earlier evaluation and substantial other materials in this case, Dr. Sachy now states:

      I believe that my judgment that Mr. Hill did not meet the criteria for
      mild mental retardation was in error. In my opinion today, within a
      reasonable degree of scientific certainty, Mr. Hill has significantly
      subaverage intellectual functioning with an IQ of approximately 70,
      associated with significant deficits in adaptive skills, with onset prior
      to age 18. I thus concur with the conclusions (rendered previously in
      Mr. Hill’s case) of Dr. Daniel Grant, Dr. Jethro Toomer, Dr. Donald
      Stonefeld, and Dr. William Dickinson that Mr. Hill meets the criteria
      for mild mental retardation and the bases for those conclusions which
      they articulated.




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Dr. Thomas H. Sachy, at ¶ 6 (Feb. 8, 2013).2 Not only did Dr. Sachy conclude that

it is his professional opinion now that Hill is mentally retarded, but he also

explained why he previously erred in concluding otherwise.

      In 2000, my erroneous judgment that Mr. Hill was deliberately
      feigning a disorder, as well as the narrow scope of information I
      reviewed, resulted in my error in finding that Mr. Hill was not
      mentally retarded. However, having learned about and revisited the
      issues of malingering and mental retardation and having reviewed
      extensive additional materials from the court record in Mr. Hill’s case,
      my conclusion now, to a reasonable degree of scientific certainty, is
      that Mr. Hill meets the criteria for mild mental retardation as set out in
      the DSM-IV-TR and as delineated by the American Association on
      Intellectual and Developmental Disabilities (AAIDD).

Id. at ¶ 18. Dr. Donald W. Harris and Dr. James Gary Carter likewise have attested

that their earlier conclusions about Hill were wrong and that they now believe to a

reasonable degree of scientific certainty that Hill is mildly mentally retarded.

Accordingly, every expert who has ever evaluated Hill for mental retardation

believes that he is mentally retarded.

      But until Dr. Sachy contacted Hill’s attorneys in July 2012, Hill lacked the

factual basis to meet Georgia’s stringent (and, in my opinion, unconstitutional)

beyond a reasonable doubt burden of proof for mental retardation. See Hill, 662

F.3d at 1365 (Barkett, J., dissenting) (“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

      2
          I have attached a copy of Dr. Sachy’s affidavit as “Appendix B.”
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offenders not to be executed.”). Because some disagreement previously existed

among the seven experts about Hill’s mental retardation, this court held that he

could not meet that stringent burden. See id. at 1374–75 (Barkett, J., dissenting)

(“Thus, although the state habeas court ultimately found that Hill was probably

mentally retarded, 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.”).

      Now, given the unanimity of all experts that Hill is mentally retarded, he can

prove his mental retardation beyond a reasonable doubt and, thus, conclusively

establish that his execution would be unconstitutional, even under Georgia’s

unreasonable standard. The majority minimizes the compelling testimony of these

three experts as mere recantations, failing to acknowledge the very unusual

circumstance of medical professionals unequivocally reversing their prior

diagnoses and concluding that to a reasonable degree of medical certainty that Hill

is mentally retarded. These experts not only have asserted that their prior

testimony was unreliable but now have affirmatively stated that Hill is mentally

retarded. Under these extraordinary circumstances, a statute, even if directly

applicable, cannot trump the Eighth Amendment’s constitutional mandate.


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       Hill is within one of three discrete classes of individuals, namely the insane,3

the mentally retarded,4 and juvenile offenders,5 whom the Supreme Court has

categorically protected from execution because individuals in these categories

inherently lack the degree of culpability necessary to insure that the administration

of the death penalty does not violate the prohibition against cruel and unusual

punishments under the Eighth Amendment. By categorically exempting these

classes of persons from the death penalty, the Supreme Court has “vindicate[d] the

underlying principle that the death penalty is reserved for a narrow category of

crimes and offenders.” Roper, 543 U.S. at 568–69 (quoting Atkins, 536 U.S. at

319). This principle was critical to the Supreme Court’s reauthorization of the

death penalty in 1976, at which time the Court made clear that the death penalty

could only be used, without violating the Constitution, if it was reserved for the

most atrocious murders committed by the most heinous of murderers so as to

protect against its previous arbitrary and disproportionate application.6 See Gregg



       3
           Ford, 477 U.S. at 405.
       4
           Atkins, 536 U.S. at 321.
       5
           Roper v. Simmons, 543 U.S. 551 (2005).
       6
         When the Supreme Court four years earlier halted the use of the death penalty, several
of the Court’s justices expressed concern that the unfettered discretion judges or juries had in
imposing capital punishment disproportionately resulted in the poor, sick, uneducated and
unpopular members of society being sentenced to death. See Furman v. Georgia, 408 U.S. 238
(1972). As Justice Marshall pointed out in his concurring opinion in Furman:


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v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Woodson v. North Carolina,

428 U.S. 280 (1976) (plurality opinion). Since that time, the Court has

categorically barred the execution of juvenile, mentally retarded, and insane

offenders, reiterating that “[c]apital punishment must be limited to those offenders

who commit ‘a narrow category of the most serious crimes’ and whose extreme

culpability makes them ‘the most deserving of execution.’” Roper, 543 U.S. at 568

(emphasis added)(quotation marks omitted). The Court held that it would violate

the Eighth Amendment to execute offenders within these three classes, “no matter

how heinous the crime,” id., and thus did not leave it to judges or juries to decide

what weight to give to an offender’s youth, mental retardation, or insanity. These

categorical bars “vindicate the underlying principle that the death penalty is

reserved for a narrow category of crimes and offenders.” Id. at 568–69.

       Accordingly, I cannot see how any procedural hurdle, even AEDPA’s bars

to filing a second or successive habeas application, can be constitutionally

enforced when doing so will eviscerate the constitutionally-protected right that a



       It is the poor, and the members of minority groups who are least able to voice
       their complaints against capital punishment. Their impotence leaves them victims
       of a sanction that the wealthier, better-represented, just-as-guilty person can
       escape. So long as the capital sanction is used only against the forlorn, easily
       forgotten members of society, legislators are content to maintain the status quo,
       because change would draw attention to the problem and concern might develop.
       Ignorance is perpetuated and apathy soon becomes its mate, and we have today’s
       situation.

Id. at 366 (Marshall, J., concurring).
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juvenile, mentally retarded, or insane offender has not to be executed. Cf. In re

Webster, 605 F.3d 256, 260 (5th Cir. 2010) (Wiener, J., concurring) (“I continue to

harbor a deep and unsettling conviction that, albeit under Congress’s instruction

which ties our judicial hands so illogically, we today have no choice but to

condone just such an unconstitutional punishment.”).

                                               II.

       The majority believes that we cannot grant permission for a federal court to

hear Hill’s present application because he cannot satisfy the procedural hurdles of

28 U.S.C. § 2244(b)(2)(B)(ii), which govern when a “second or successive” habeas

petition can be heard. I do not quarrel with whether Hill’s claim fits within the

requirements of this statutory provision because, as I see it, and as explained

above, Congress cannot have intended to preclude federal habeas relief for an

individual who is constitutionally ineligible for execution.7 Claims of freestanding


       7
           However, I disagree with the majority’s position that Hill’s present claim, that his
execution would be in violation of the Eighth Amendment because he can establish the fact of
his mental retardation beyond a reasonable doubt, would be barred under 28 U.S.C. § 2244(b)(1).
This provision requires a federal court to dismiss “[a] claim presented in a second or successive
habeas corpus application . . . that was presented in a prior application[.]” As the majority sees
it, Hill previously raised the claim that he could establish the fact of his mental retardation
beyond a reasonable doubt, but the majority’s position is based on reading legal arguments into
the factual assertions that Hill presented in his first federal habeas petition.
         Hill argued in his prior federal habeas petition that his execution would violate the Eighth
Amendment, not because he could establish the fact of his mental retardation beyond a
reasonable doubt, but because Georgia’s legal standard of proof of beyond a reasonable doubt
was contrary to or an unreasonable application of Atkins where the state habeas court had found
him to be mentally retarded by a preponderance of the evidence. When his prior federal petition
is considered in its entirety it is clear that Hill’s argument was limited to a challenge to Georgia’s
insuperably high burden of proof for mental retardation. This court’s (now-vacated) panel
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actual innocence of the underlying offense and categorical ineligibility for the

death penalty, as here in Hill’s case, “do not fit neatly into the narrow procedural

confines delimited by AEDPA.” In re Davis, 565 F.3d at 827 (Barkett, J.,

dissenting). Such claims cannot be subject to AEDPA’s restrictions when doing so

will ensure that the U.S. Constitution is violated. See, e.g., Herrera v. Collins, 506

U.S. 390, 402 (1993) (“[F]ederal habeas courts act in their historic capacity–to

assure that the habeas petitioner is not being held in violation of his or her federal

constitutional rights.”).

       Indeed, the Supreme Court has not always adhered to a strict construction of

28 U.S.C. § 2244, particularly when determining whether a claim is subject to the

restrictions on filing a “second or successive” habeas petition. In Stewart v.

Martinez-Villareal, 523 U.S. 637, 645 (1998), the Court concluded that the

restrictions on second or successive applications for federal habeas relief would not

preclude a federal court from hearing a petitioner’s Ford claim that he was

categorically exempt from execution because of insanity. At the time the state


opinion also confirms that the only claim before this Court was the purely legal claim of whether
Georgia’s standard of proof was an unreasonable application of or contrary to Atkins. Our en
banc decision addressed the same question.
        While it is true that Hill has consistently asserted the fact that he is mentally retarded,
nowhere in his prior federal habeas petition, our original panel decision, nor our en banc
decision, was the question raised or answered of whether Hill had established his mental
retardation beyond a reasonable doubt. See Hill, 662 F.3d at 1362 (Tjoflat, J., concurring)
(“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.”)

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issued a warrant for his execution, Martinez-Villareal sought federal habeas relief

on his Ford claim. Martinez-Villareal, 523 U.S. at 640. Even though the Court

acknowledged that this was the second time the petitioner had asked for relief

pursuant to Ford, it did not treat the present claim as a second application for relief

even though his Ford claim had previously been dismissed as premature. Id. The

Court instead concluded that because the Ford claim was now ripe for adjudication,

there had only been one application for relief and 28 U.S.C. § 2244(b) did not bar

review of the claim. Id.

      Subsequently, in Panetti v. Quarterman, 551 U.S. 930, 945 (2007), the Court

addressed the related question of whether a Ford claim raised for the first time in a

petition, after a petitioner’s other federal habeas claims had already been rejected

in an earlier petition, should be treated as a second or successive application. As it

did in Martinez-Villareal, the Court explained that “the implications for habeas

practice would be far reaching and seemingly perverse” were it to strictly construe

the meaning of “second or successive” under these circumstances. Id. at 943

(citing to Martinez-Villareal, 523 U.S. at 644). Accordingly, the Court concluded

“that Congress did not intend the provisions of AEDPA addressing ‘second or

successive’ petitions to govern a filing in the unusual posture presented here: a §

2254 application raising a Ford-based incompetency claim filed as soon as that

claim is ripe.” Id. at 945.


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      Simply put, the Supreme Court has recognized that “[t]here are, however,

exceptions” to AEDPA’s “second or successive” bar to the filing of a federal

habeas petition second in time. Id. at 947. In the cases of Martinez-Villareal and

Panetti, the Court was unwilling to construe AEDPA “in a manner that would

require unripe (and, often, factually unsupported) claims to be raised as a mere

formality, to the benefit of no party.” Id.

      The Court, likewise, has refused to construe AEDPA in a way that would

undermine the “equitable principles [which] have traditionally governed the

substantive law of habeas corpus.” Holland v. Florida, 130 S. Ct. 2549, 2560

(2010) (internal citation and quotation marks omitted). In Holland, the Court

specifically rejected the contention that allowing equitable tolling of the one year

statute of limitation for filing a federal habeas petition would undermine one of

AEDPA’s “basic purposes” of eliminating delays in the process. Id. at 2562.

Instead, the Court reiterated that Congress did not “los[e] sight of the fact that the

‘writ of habeas corpus plays a vital role in protecting constitutional rights.’” Id.

(quoting Slack v. McDaniel, 529 U.S. 473, 483 (2000)).

      [Congress] did not seek to end every possible delay at all costs. The
      importance of the Great Writ, the only writ explicitly protected by the
      Constitution, Art. I, § 9, cl. 2, along with congressional efforts to
      harmonize the new statute with prior law, counsels hesitancy before
      interpreting AEDPA’s statutory silence as indicating a congressional
      intent to close courthouse doors that a strong equitable claim would
      ordinarily keep open.


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Id.

      Contrary to the State and the majority’s view that Hill’s claim cannot be

heard because the statute only addresses guilt of the “underlying offense,” I do not

believe that we must “interpret[ ] AEDPA’s statutory silence” regarding claims

that an offender is categorically barred from receiving a sentence of death “as

indicating a congressional intent to close courthouse doors that a strong equitable

claim would ordinarily keep open.” Holland, 130 S. Ct. at 2562. Indeed, although

Ford’s ban on the execution of the insane pre-dates AEDPA’s enactment, it is

telling that the Supreme Court has not construed AEDPA to bar a petitioner from

raising a Ford claim in what would otherwise be considered a second or successive

habeas petition. See Martinez-Villareal, 523 U.S. at 643; Panetti, 551 U.S. at 945.

Likewise, it simply cannot be that Congress would have intended AEDPA to

preclude a federal court from hearing the claim of a juvenile or mentally retarded

offender who obtains, albeit after the conclusion of his prior federal habeas

proceedings, irrefutable proof that his status constitutionally bars his execution

forever.

      Just as the Court was able to reconcile AEDPA’s finality concerns with

habeas’s equitable principles in the context of a Ford claim, AEDPA’s

requirements should not be construed to require the unconstitutional execution of a

mentally retarded offender who, by presenting evidence that virtually guarantees


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that he can establish his mental retardation, is able to satisfy even the preposterous

burden of proof Georgia demands. If the Supreme Court means that the mentally

retarded cannot be constitutionally executed, and Hill has now shown beyond any

reasonable doubt that he is mentally retarded, a congressional act cannot be applied

to trump Hill’s constitutional right not to be executed.8




       8
           Although, as the majority notes, notwithstanding this court’s denial of his application,
Hill still may petition the Supreme Court for a writ of habeas corpus under its original
jurisdiction, see Maj. Op. at 37 n.20 (citing Felker v. Turpin, 518 U.S. 651, 661–63 (1996)); see
also In re Davis, 565 F.3d at 826–27. Nonetheless, the potential availability of this alternative
avenue for relief does not, as I see it, mean that federal courts do not have the authority or
responsibility to enforce the constitutional mandates of the Supreme Court through the equitable
remedy of habeas.

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                   APPENDIX A




                          52
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                   APPPENDIX B




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