Danny Hill v. Timothy Shoop

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0188p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

DANNY HILL,

│

Petitioner-Appellant, │

> Nos. 99-4317/14-3718

v. │

│

TIMOTHY SHOOP, Warden, │

Respondent-Appellee. │

┘

On Petition for Rehearing En Banc

United States District Court for the Northern District of Ohio at Youngstown.

No. 4:96-cv-00795—Paul R. Matia and John R. Adams, District Judges.

Argued En Banc: December 2, 2020

Decided and Filed: August 20, 2021

Before: SUTTON, Chief Circuit Judge; MERRITT, MOORE, COLE, CLAY,

GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,

BUSH, LARSEN, NALBANDIAN, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED EN BANC: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER’S

OFFICE, Cleveland, Ohio, for Appellant. Benjamin M. Flowers, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF:

Vicki Ruth Adams Werneke, Lori B. Riga, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cleveland, Ohio, for Appellant. Benjamin M. Flowers, Stephen E. Maher, Michael J.

Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,

Tennessee, Kevin J. Truitt, DISABILITY RIGHTS OHIO, Columbus, Ohio, for Amici Curiae.



Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Merritt, senior judge of the court

who sat on the original panel in this case, participated in this decision. Judge Murphy recused himself from

participation in this decision.

Nos. 99-4317/14-3718 Hill v. Shoop Page 2

GIBBONS, J., delivered the opinion of the court in which SUTTON, C.J., and GRIFFIN,

KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, and READLER, JJ., joined.

MOORE, J. (pp. 29–63), delivered a separate dissenting opinion, in which MERRITT, COLE,

CLAY, WHITE, STRANCH, and DONALD, JJ., joined. An excerpt of the panel’s 2018

opinion, see 881 F.3d 483 (6th Cir. 2018), is appended, (app. 64–81).

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. In this death penalty habeas case, appellant

Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelve-

year-old boy. The case has been to the Supreme Court once and before panels of this court

twice. The core issue in the underlying state case was whether Hill was ineligible for the death

penalty because he is intellectually disabled, a question that became pertinent after the Supreme

Court’s 2002 decision in Atkins v. Virginia. 536 U.S. 304 (2002). Before us, the issues are

whether, under governing AEDPA review principles, the state court decision “was contrary to, or

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

Supreme Court of the United States” or was “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We

conclude that the state court’s resolution of the issue does not meet either of the criteria that

would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s

denial of Hill’s petition for a writ of habeas corpus.

I.

In 1986, a three-judge Ohio state court panel convicted Hill of the murder of Raymond

Fife, a twelve-year-old boy. State v. Hill, 894 N.E.2d 108, 111 (Ohio Ct. App. 2008). Hill

abused and injured Fife in multiple horrible ways. Id. Fife was found by his father and died two

days later. Id. The same panel sentenced Hill to death. Id. During the mitigation stage of Hill’s

sentencing, the court heard testimony from three medical professionals about whether Hill was

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intellectually disabled.1 One found that Hill’s intelligence level “fluctuat[ed] between mild

retarded and borderline intellectual functioning,” another that Hill fell “in the mild range of

mental retardation,” and the last that Hill’s “upper level cortical functioning indicated very poor

efficiency.” Id. at 112 (quoting State v. Hill, 595 N.E.2d 884, 901 (Ohio 1992)).

After considering this evidence, the Ohio state court found that the record evidence suggested

that Hill had a “diminished mental capacity” and that testimony suggested he would be

“categorized as mildly to moderately retarded.” Id. (quoting State v. Hill, Nos. 3720, 3745, 1989

WL 142761, at *32 (Ohio Ct. App. Nov. 27, 1989)). The Ohio Court of Appeals and Ohio

Supreme Court both affirmed the trial court’s imposition of the death penalty because they found

that the aggravating circumstances outweighed any mitigating factors, including Hill’s

diminished intellectual capacity. Id.

In 2002, the Supreme Court decided Atkins v. Virginia, which held that it was

unconstitutional to execute the intellectually disabled. 536 U.S. 304 (2002). The Atkins Court

provided some discussion of the clinical definitions of intellectual disability, but it left it to the

states to “develop[] appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.” Id. at 317 (second alteration in original) (quoting Ford v. Wainwright,

477 U.S. 399, 416–17 (1986)). In State v. Lott, the Ohio Supreme Court articulated a three-part

test for establishing intellectual disability based on Atkins: “(1) significantly subaverage

intellectual functioning, (2) significant limitations in two or more adaptive skills, such as

communication, self-care, and self-direction, and (3) onset before the age of 18.” 779 N.E.2d

1011, 1014 (Ohio 2002), overruled by State v. Ford, 140 N.E.3d 616 (Ohio 2019).

In response to Atkins, Hill filed a petition for state post-conviction relief in 2003. State v.

Hill, 894 N.E.2d at 113. The trial court held an evidentiary hearing, and Hill, the prosecution,

and the court each chose a medical expert to evaluate Hill’s intellectual capabilities. Id. Hill

retained Dr. David Hammer, a professor and director of psychology services at the Ohio State

University; the prosecution hired Dr. Gregory Olley, a professor and director of the Center for

1

At the time, the condition was referred to as “mental retardation.” While some of the past decisions and

material we cite use that outdated terminology, the preferred term in the current lexicon is “intellectual disability.”

See Hall v. Florida, 572 U.S. 701, 704 (2014).

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the Study of Development and Learning at the University of North Carolina at Chapel Hill; and

the court appointed Dr. Nancy Huntsman, a forensic psychologist who worked at the Court

Psychiatric Clinic in Cleveland, Ohio. Id. The Ohio Court of Appeals, in reviewing Hill’s

Atkins claim, described the trial court proceedings as follows:

In April 2004, Drs. Olley, Hammer, and Huntsman evaluated Hill at the

Mansfield Correctional Institution for the purposes of preparing for the Atkins

hearing. At this time, Hill was administered the Wechsler Adult Intelligence

Scale (“WAIS–III”) IQ test, the Test of Mental Malingering, the Street Survival

Skills Questionnaire, and the Woodcock–Johnson–III. The doctors concurred that

Hill was either “faking bad” and/or malingering in the performance of these tests.

As a result, the full scale IQ score of 58 obtained on this occasion was deemed

unreliable, and no psychometric assessment of Hill’s current adaptive functioning

was possible. Thus, the doctors were forced to rely on collateral sources in

reaching their conclusions, such as Hill’s school records containing evaluations of

his intellectual functioning, evaluations performed at the time of Hill’s sentencing

and while Hill was on death row, institutional records from the Southern Ohio

Correctional Institution and the Mansfield Correctional Institution, interviews

with Hill, corrections officers, and case workers, and prior court records and

testimony.

The evidentiary hearing on Hill’s Atkins petition was held on October 4 through 8

and 26 through 29, 2004, and on March 23 through 24, 2005. Doctors Olley and

Huntsman testified that in their opinion, Hill is not mentally retarded. Doctor

Hammer concluded that Hill qualifies for a diagnosis of mild mental retardation.

Id. at 113–14.

The trial court held that Hill was not intellectually disabled and rejected his Atkins claim.

Id. at 114. The Ohio Court of Appeals affirmed, finding that Hill failed to prove he suffered

from two or more significant limitations in adaptive skills that manifested before age 18. Id. at

126–27. The Ohio Supreme Court, with two justices dissenting, declined to hear Hill’s appeal.

State v. Hill, 912 N.E.2d 107 (Ohio 2009) (Table).

Hill then filed a petition for a writ of habeas corpus, which the district court denied. The

district court concluded that Hill had not overcome the highly deferential standard of review

under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).2 Hill v.

2

The district court was critical of the Ohio Court of Appeals opinion. Some of us agree with some of its

observations. Here, however, we do not itemize the opinion’s possible flaws in order to focus attention on our

Nos. 99-4317/14-3718 Hill v. Shoop Page 5

Anderson, No. 4:96 CV 00795, 2014 WL 2890416, at *51 (N.D. Ohio June 25, 2014). The

district court explained that while reasonable minds may disagree with the state court’s

determination and weighing of the evidence, the state court’s “conclusion regarding Hill’s

adaptive behavior at the time he filed his Atkins claim was supported by sufficient credible

evidence and, most importantly, the opinions of two experts.” Id.

Hill appealed, and a panel of judges on this court reversed the district court’s decision on

Hill’s Atkins claim. The panel found that “the state court judgment . . . amounted to an

unreasonable application of the standard articulated by the Supreme Court in Atkins and as later

explained by Hall and Moore.”3 Hill v. Anderson, 881 F.3d 483, 489 (6th Cir. 2018). In

addition to his Atkins claim, Hill raised four other issues on appeal: an ineffective assistance of

counsel claim related to his Atkins hearing, a Miranda claim, a claim of prosecutorial

misconduct, and a due process claim based on the trial court’s alleged failure to hold a pretrial

competency hearing. Id. at 487. The panel pretermitted Hill’s ineffective assistance of counsel

claim and affirmed the district court’s denial of the other three claims, which Hill has not

challenged. Id. The Warden filed a petition for rehearing en banc, which was denied. He then

filed a petition for a writ of certiorari, which the Supreme Court granted.

The Supreme Court vacated and remanded, finding that the panel’s “reliance on Moore

was plainly improper under § 2254(d)(1).” Shoop v. Hill, 139 S. Ct. 504, 505 (2019) (per

curiam). The Court explained that “habeas relief may be granted only if the state court’s

adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application

of,’ Supreme Court precedent that was ‘clearly established’ at the time of the adjudication.” Id.

at 506 (quoting 28 U.S.C. § 2254(d)(1)). Because Moore was decided after Hill’s state-court

proceedings, the Court found that the panel erred by relying on Moore when determining

whether habeas relief was warranted under § 2254(d)(1). Id. at 508–09. The Court ordered that

“[o]n remand, the [panel] should determine whether its conclusions can be sustained based

strictly on legal rules that were clearly established in the decisions of this Court at the relevant

modest review role: that of determining whether the Ohio Court of Appeals unreasonably concluded that Hill was

not intellectually disabled.

3

See Hall v. Florida, 572 U.S. 701 (2014); Moore v. Texas, 137 S. Ct. 1039 (2017).

Nos. 99-4317/14-3718 Hill v. Shoop Page 6

time.” Id. at 509. The Supreme Court did not directly comment on any other part of the panel’s

decision, including its analysis under § 2254(d)(2) or Hill’s other four claims for relief. See

generally id.

On remand, the panel again granted Hill relief on his Atkins claim. Hill v. Anderson, 960

F.3d 260, 265 (6th Cir. 2020) (per curiam). The panel also once again pretermitted Hill’s

ineffective assistance of counsel claim and affirmed the district court’s denial of Hill’s other

three claims, incorporating its prior opinion in full. Id. at 265, 283.

The Warden filed a petition for rehearing en banc on Hill’s Atkins claim, arguing that the

panel erred under both § 2254(d)(1) and § 2254(d)(2). This court granted en banc review, which

vacated the prior panel decision. Because we conclude that Hill’s Atkins claim does not satisfy

the demanding AEDPA standard, we affirm the district court’s denial of habeas relief. In

addition to our discussion of his Atkins claim, we find that Hill’s ineffective assistance of counsel

claim fails on its merits. We also reinstate the panel’s prior discussion affirming the district

court’s denial of Hill’s remaining claims to the extent it is consistent with this opinion.

II.

Under 28 U.S.C. § 2254(d)(1), a federal court may grant a writ of habeas corpus if the

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

established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). A state court’s decision is an “unreasonable application” of clearly established

federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the

facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407–08 (2000). “The

‘unreasonable application’ clause requires the state court decision to be more than incorrect or

erroneous”—it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Objective unreasonableness is a higher standard than clear error. See White v. Woodall, 572 U.S.

415, 419 (2014). To demonstrate that the state court’s decision was objectively unreasonable,

the petitioner “must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

Nos. 99-4317/14-3718 Hill v. Shoop Page 7

existing law beyond any possibility for fairminded disagreement.” Id. at 419–20 (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)).

A federal court may grant a writ under 28 U.S.C. § 2254(d)(2) if the state court

proceedings “resulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under

AEDPA, the question for this court to answer “is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Furthermore,

“the petitioner must show that the resulting state court decision was ‘based on’ that unreasonable

determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). Factual findings made by the

state courts based on the trial record are entitled to a presumption of correctness that may be

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d

358, 360–61 (6th Cir. 1998).

This “highly deferential standard” requires that determinations made in state court “be

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). When applying AEDPA, this court

considers “the decision of ‘the last state court to issue a reasoned opinion on the issue[s]’ raised

in [the] habeas petition.” Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016) (first alteration in

original) (quoting Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006)). Here, that is the Ohio

Court of Appeals decision. See State v. Hill, 894 N.E.2d at 108.

III.

A.

1.

While Hill’s en banc supplemental brief only asserts a claim for relief under

§ 2254(d)(2), in his original appeal Hill also argued that he is entitled to relief under

§ 2254(d)(1). Specifically, Hill claimed that the state court’s decision to evaluate whether Hill

Nos. 99-4317/14-3718 Hill v. Shoop Page 8

was intellectually disabled at the time of his Atkins hearing rather than at the time the crime was

committed was an unreasonable application of clearly established federal law.4

At the time of the Ohio Court of Appeals decision, the only clearly established Supreme

Court precedent was Atkins itself.5 Atkins held that the execution of intellectually disabled

individuals violated the Eighth Amendment, but it did not provide a “comprehensive definition

of ‘mental retardation’ for Eighth Amendment purposes.” Shoop, 139 S. Ct. at 507. Instead,

Atkins delegated to the states “the task of developing appropriate ways to enforce the

constitutional restriction.” Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S. at 416). Atkins did

not, as the Warden appears to claim, relinquish all standard-making authority to the states.

Atkins set out several guideposts for the states’ discretion by relying heavily on clinical

definitions of intellectual disability and factors such as “subaverage intellectual functioning” and

“significant limitations in adaptive skills . . . that became manifest before age 18.” Atkins,

536 U.S. at 318.

Though Atkins took note of “standard definitions of mental retardation,” the Court “did

not definitively resolve how” those definitions “w[ere] to be evaluated but instead left [their]

application in the first instance to the States.” Shoop, 139 S. Ct. at 508; see Bobby v. Bies,

556 U.S. 825, 831 (2009) (explaining that Atkins “did not provide definitive procedural or

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

4

It is unclear whether Hill has waived this argument. In the district court, Hill argued that “[t]o the extent

that the state procedures themselves used to render the factual findings of the mental retardation clinical components

contributed to and fostered inaccurate and unreliable factfinding by the trial court, the procedures violated clearly

established federal law.” DE 94, Petition, Page ID 148. Read in the light most favorable to Hill, Hill’s current

argument that the Ohio Court of Appeals focused its inquiry on the incorrect time period may be construed as one of

the state procedures that Hill claimed before the district court contributed to inaccurate and unreliable factual

findings. Given the ambiguity, and because neither party raised the potential waiver issue, we will proceed under

the assumption that Hill’s argument has not been waived.

5

The Warden and twelve states as amici urge us to take this opportunity to overrule a line of Sixth Circuit

precedent which permits courts to rely on clearly established law from both the United States Supreme Court and

state supreme courts when considering an Atkins claim under § 2254(d)(1). See CA 6 R. 369, Response Br., at 14;

CA 6 R. 371, Amicus Br., at 6; see also Williams v. Mitchell, 792 F.3d 606, 612 (6th Cir. 2015) (“[I]n the Atkins

context, ‘clearly established governing law’ refers to the Supreme Court decisions and controlling state law

decisions applying Atkins.”) However, Hill does not attempt to rely on state court precedent to establish his

§ 2254(d)(1) claim. See CA 6 R. 375, Reply Br., at 7 n.2 (“The amicus brief filed on behalf of various states . . .

focuses solely on a 2254(d)(1) argument that petitioner does not raise.”). Because Hill does not present this issue to

us, it is extraneous to this appeal, and we decline to resolve it here. See United States v. Asakevich, 810 F.3d 418,

421 (6th Cir. 2016) (“The federal courts have no license to issue advisory opinions . . . .”).

Nos. 99-4317/14-3718 Hill v. Shoop Page 9

impaired as to fall within Atkins’ compass” (internal quotations omitted) (alteration adopted)).

Therefore, Hill faces the difficult task of showing that the Ohio Court of Appeals applied the

highly general holding of Atkins in an objectively unreasonable way. Cf. Parker v. Matthews,

567 U.S. 37, 49 (2012) (finding no unreasonable application of the “highly generalized standard for

evaluating claims of prosecutorial misconduct”); Lockyer, 538 U.S. at 73, 76 (finding no

unreasonable application of clearly established federal law when the “precise contours” of the

constitutional standard at issue were “unclear” (internal quotations omitted)).

While it is possible for state courts to unreasonably apply Atkins, evaluating a defendant’s

intellectual abilities at a later date rather than at the time of the crime is not an unreasonable

application of Atkins. Atkins does not define the time period when the inquiry must be made.

Hill argues that because the Court in Atkins “list[ed] several common characteristics of those

with intellectual disability . . . it contemplated their diminished culpability” which is “a reference

to the time the crime was committed. Thus, any assessment of a criminal defendant’s intellectual

function must derive from that same moment in time.” CA 6 R. 295, Petition, at 50. Hill’s

interpretation of Atkins, however, is hardly the only reasonable interpretation. As this court has

previously explained, Atkins supports the conclusion that intellectual disability is not a transient

condition. See Williams, 792 F.3d at 619 (concluding that “if an individual is indeed presently

intellectually disabled, . . . the disability would have manifested itself before the individual

turned eighteen” and “past evidence of intellectual disability . . . is relevant to an analysis of an

individual’s present intellectual functioning” (emphasis omitted)); see also id. at 626 (Gibbons,

J., concurring) (“It is clear from the entire thrust of the Atkins decision—along with the medical

literature that it cites in support—that intellectual disability is a permanent condition.”); Heller v.

Doe, 509 U.S. 312, 323 (1993) (noting, in a different context, that intellectual disability “is a

permanent, relatively static condition” (citing S. Brakel et al., The Mentally Disabled and the

Law 37 (3d ed. 1985))). If intellectual disability is not a transient condition, then the outcome

should not change if the court evaluates a defendant’s abilities at the time of the crime or at the

time of a later Atkins hearing. Thus, we find Hill’s argument that Atkins requires evaluating a

defendant’s intellectual abilities at the time of the offense to be unpersuasive.

Nos. 99-4317/14-3718 Hill v. Shoop Page 10

Here, the Ohio Court of Appeals did not question the trial court’s decision to evaluate

Hill’s intellectual abilities at the time of the Atkins proceedings rather than when the crime was

committed. Nevertheless, the Ohio court considered evidence of Hill’s past abilities including

Hill’s medical history, public school records, and prior standardized test results. State v. Hill,

894 N.E.2d at 123–24. The court also evaluated criteria mentioned in Atkins such as intellectual

functioning, adaptive skills, and the onset age of disability. We cannot say that the Ohio court’s

decision was objectively unreasonable given the discretion Atkins left to the states.

2.

Next, Hill argues that the Ohio Court of Appeals decision was an unreasonable

determination of the facts in light of the evidence presented in the state court proceedings, in

violation of 28 U.S.C. § 2254(d)(2). Specifically, Hill claims that the state court

mischaracterized the record, improperly discounted historical evidence, and unreasonably

concluded that Hill failed to establish that his disability manifested before age 18. The Warden

argues that the state court’s decision was not unreasonable because the court relied on the

opinions of two experts and because the court properly evaluated the evidence in the record. We

conclude that the Ohio Court of Appeals decision was not based on an unreasonable

determination of the facts.

Under Ohio law at the time of Hill’s Atkins hearing, a defendant had to prove three

factors to establish that he was intellectually disabled: “(1) significantly subaverage intellectual

functioning, (2) significant limitations in two or more adaptive skills, . . . and (3) onset before the

age of 18.”6 Lott, 779 N.E.2d at 1014. While courts are to conduct an independent review of the

evidence presented, they “should rely on professional evaluations of [the defendant’s] mental

status, and consider expert testimony.” Id. at 1015. Both parties agree that Hill satisfied the first

factor, that he had significantly subaverage intellectual functioning. The Warden also admits

that any adaptive deficits that Hill does have arose before he turned 18. Thus, the only

remaining dispute is whether the Ohio Court of Appeals reasonably determined that Hill failed to

prove the second Lott factor—“significant limitations in two or more adaptive skills, such as

6

Lott has since been overruled, see Ford, 140 N.E.3d at 654–55, but it was the controlling state law at the

time of the Ohio Court of Appeals decision.

Nos. 99-4317/14-3718 Hill v. Shoop Page 11

communication, self-care, and self-direction.” Lott, 779 N.E.2d at 1014; see also Hill v.

Anderson, 2014 WL 2890416, at *22.

As an initial matter, the Warden argues that the Ohio Court of Appeals opinion is per se

reasonable because two experts concluded that Hill did not have significant adaptive deficits.

CA 6 R. 369, Response Br., at 11–12, 17 (citing O’Neal v. Bagley, 743 F.3d 1010, 1023 (6th Cir.

2013); Carter v. Bogan, 900 F.3d 754, 771 (6th Cir. 2018); Apelt v. Ryan, 878 F.3d 800, 837 (9th

Cir. 2017); Larry v. Branker, 552 F.3d 356, 370 (4th Cir. 2009)). None of the four cases cited by

the Warden, however, suggests such a per se rule. Instead, the court in each case based its

conclusion on the content of the expert testimony and overall evidence before it. See O’Neal,

743 F.3d at 1023 (“With expert testimony split, . . . we cannot say from this vantage that [the

state court decision to credit two experts over another] was unreasonable . . . .”); Carter,

900 F.3d at 771; Apelt, 878 F.3d at 837; Larry, 552 F.3d at 370. The Warden claims that

“[w]hen a credible expert conducts an analysis—and when the defendant failed to put on

evidence contradicting that analysis beyond reasonable debate—it is not unreasonable for the

trial court to rely on that expert testimony.” CA 6 R. 369, Response Br., at 17. But that

statement itself is inconsistent with a per se rule. A per se rule would eliminate the need to ask

whether the defendant “put on evidence contradicting [the] analysis [of the state’s experts]

beyond reasonable debate.” CA 6 R. 369, Response Br., at 17; cf. Rice v. Collins, 546 U.S. 333,

341–42 (2006). Accordingly, this court must consider whether, based on the evidence presented,

the Ohio Court of Appeals’s determination that Hill did not suffer from significant limitations in

two or more adaptive skills was unreasonable.

Our resolution of this case turns on the Ohio Court of Appeals consideration of the expert

testimony presented at the Atkins hearing. Nevertheless, we outline the Court of Appeals’s

analysis in some detail before turning to the expert opinions, following the order in which the

state appellate court considered various portions of the factual record.

Nos. 99-4317/14-3718 Hill v. Shoop Page 12

The Ohio Court of Appeals began its review of the record by analyzing the standardized

adaptive behavior tests performed on Hill at various stages of his life.7 State v. Hill, 894 N.E.2d

at 122. First, the court noted that the three experts assigned to evaluate Hill’s ability at the time

of the Atkins hearing—Drs. Hammer, Olley, and Huntsman—could not obtain “reliable

[standardized test] results . . . on account of Hill’s lack of effort.” Id. The court considered

standardized adaptive behavior tests Hill had completed in the past but concluded that they were

unreliable because the methods used had later been discredited. Id. at 122–23. A voluminous

6,000 page record contains reports from Hill’s teachers, school psychologists, medical experts,

and prison officials about Hill’s adaptive abilities. See Hill v. Anderson, 2014 WL 2890416, at

*24.

The Ohio Court of Appeals next separated this factual record into four categories of

largely anecdotal evidence: public school records, reports around the time of the trial for the

killing of Raymond Fife, records from Hill’s time in prison, and Hill’s appearances before the

trial court itself. State v. Hill, 894 N.E.2d at 124–25. After summarizing each category and

considering the expert opinions, the court found that Hill had not met the second Lott factor. Id.

at 126.

First, the Ohio Court of Appeals considered Hill’s school records. Id. at 124. In one

paragraph, the court stated:

Hill’s public school records amply demonstrate a history of academic

underachievement and behavioral problems. Hill is often described as a lazy,

manipulative, and sometimes violent youth. Although there are references to

Hill’s being easily led or influenced by others, the trial court noted that much of

Hill’s serious misconduct, including two rapes committed prior to Fife’s murder,

occurred when he was acting alone. Hill knew how to write and was described by

at least one of his special education teachers as “a bright, perceptive boy with

high reasoning ability.”

Id.

7

The Ohio Court of Appeals reviewed the trial court’s decision for abuse of discretion and stated that the

trial court must be affirmed if its decision is supported by competent and credible evidence. State v. Hill,

894 N.E.2d at 121.

Nos. 99-4317/14-3718 Hill v. Shoop Page 13

This characterization of Hill’s school records represents a short summary of the records.

There are multiple accounts in Hill’s records of his lying, stealing, and struggling to interact

appropriately with his peers. See, e.g., DE 97, Supp. Appendix, Page 530 (“Lying needs to be

confronted.”); id. at Page 568 (“Danny often manipulates the truth to his own advantage.”); id. at

Page 584 (describing an incident where Hill stole money from teachers’ wallets); id. at Page 558

(listing one of Hill’s annual goals when he was twelve as “improve peer-group relations”). Hill’s

behavioral problems, however, do not necessarily correlate with an absence of intellectual

disability. See Atkins, 536 U.S. at 306 (“Because of their disabilities in areas of reasoning,

judgment, and control of their impulses . . . [intellectually disabled individuals] do not act with

the level of moral culpability that characterizes the most serious adult criminal conduct.”). Each

of the three experts who testified at Hill’s Atkins proceeding agreed that Hill’s behavioral

problems during childhood did not necessarily contradict a finding of significant adaptive

limitations. In addition to the accounts of behavioral problems, multiple evaluators also reported

that Hill attempted to follow instructions and behaved well, particularly when dealing with

adults. See, e.g., DE 97, Supp. Appendix, Page 513 (school psychologist reported that, when

given a test, Hill “did cooperate and accepted all tasks presented to him.”); id. at Page 524 (court

liaison officer describing Hill as a “personable black child who has good rapport with staff as

well as the other residents” in a group home where he was placed when he was sixteen); id. at

Page 568 (“Danny is a very affectionate child. He often expresses the desire to be hugged and

will often rest his head on the teachers shoulder.”).

Hill’s school records suggest that he struggled academically as a child. See, e.g., DE 97,

Supp. Appendix, Page 515 (reporting that at age thirteen Hill’s relative weaknesses included “not

being able to recall everyday information, do abstract thinking, perform mental arithmetic,

perceive a total social situation, perceive patterns, and to reproduce symbols using psychomotor

speed and coordination”); id. at Page 569 (describing how at age thirteen, Hill was working on

spelling words with more than four letters, learning to tell time, “ha[d] just begun working on

subtraction,” and “[w]hen given sentences, he [could] write them with assistance”); id. at Page

594 (listing one of Hill’s goals for ninth grade as being able to “read a one page story and . . .

answer comprehension questions with 80% accuracy”).

Nos. 99-4317/14-3718 Hill v. Shoop Page 14

There is also evidence that Hill needed reminders to perform basic personal hygiene and

lacked self-direction. See, e.g., id. at Page 511 (describing one of Hill’s weaknesses as “self-

direction”); id. at Page 524 (“[Hill] needs constant reminder to shower, brush his teeth, etc., [but]

he does attempt to do a [more] thorough job than when he first came to the program.”); id. at

Page 578 (reporting that Hill was still learning “to shower[] regularly, use[] deodorant regularly,

[and] maintain[] a neat appearance” at the age of fourteen); id. at Page 575 (listing one of Hill’s

goals for ninth grade as being able to “learn to maintain[] a clean, neat, appearance” throughout

the day). All of this additional evidence, not included in the Court of Appeals summary, may be

relevant to determining whether Hill had significant limitations in two or more adaptive skills.

Second, the Ohio Court of Appeals considered Hill’s conduct during the time period

surrounding the trial for the killing of Fife:

Hill’s Trial for the Murder of Raymond Fife. The trial court observed that the

record of Hill’s murder trial provided evidence of Hill’s ability concerning self-

direction and self-preservation. In particular, the court noted Hill’s initiative in

coming to the police in order to misdirect the focus of the investigation by

implicating others and Hill’s ability to adapt his alibi to changing circumstances

in the course of police interrogation. This last point was also noted by Dr. Olley

in his hearing testimony: Hill “stood his ground during that interrogation very,

very strongly. * * * He not only modified his story a little bit when he was faced

with evidence that couldn’t possibly have avoided. * * * That to me is a kind of

thinking and planning and integrating complex information that is a higher level

than I have seen people with mental retardation able to do.”

State v. Hill, 894 N.E.2d at 124 (alterations in original).

In looking at the evidence, it is unclear that Hill’s conduct demonstrated self-direction or

self-preservation. As the district court explained, under the prevailing medical guidelines at the

time, self-direction was defined as:

skills related to making choices; learning and following a schedule; initiating

activities appropriate to the setting, conditions, schedule, and personal interests;

completing necessary or required tasks; seeking assistance when needed;

resolving problems confronted in familiar and novel situations; and demonstrating

appropriate assertiveness and self-advocacy skills.

Hill v. Anderson, 2014 WL 2890416, at *33 (quoting AAMR 1992 Manual, 40). While the trial

court’s assessment of Hill’s conduct is one reasonable interpretation, a reasonable person might

Nos. 99-4317/14-3718 Hill v. Shoop Page 15

also interpret Hill’s conduct as evidence of a lack of self-direction. For example, before Hill

came forward to the police with information about the crime, the police were not pursuing Hill.

Thus, coming forward does not necessarily demonstrate appropriate self-advocacy skills since it

drew more attention to Hill and linked him to the crime. But faced with two reasonable

interpretations of evidence, we cannot say that the state court’s decision to go with one over the

other was unreasonable.

The Ohio Court of Appeals does not mention the testimony of three experts—Dr.

Douglas Darnall, Dr. Nancy Schmidtgoessling, and Dr. Douglas Crush—who found that Hill was

intellectually disabled at the time of the 1986 trial, see Hill, 595 N.E.2d at 901, though the court

recognized that “several of the experts pointed out . . . [that Hill] knew right from wrong,” Hill,

894 N.E.2d at 118 (quoting Hill, 595 N.E.2d at 901). On direct appeal, the Ohio Supreme Court

accepted these experts’ conclusion that Hill was intellectually disabled. Hill, 595 N.E.2d at 901.

Although the experts at the mitigation stage were not using the definition of intellectual disability

that was later articulated in Lott and Atkins, their testimony focused on similar characteristics

such as Hill’s intelligence level and adaptive skills, including whether Hill was a follower or a

leader and whether he acted appropriately in different situations. See, e.g., id. (describing Hill’s

moral development as “‘primitive,’ a level at which ‘one do[es] things based on whether you

think you’ll get caught or whether it feels good. [T]hat’s essentially whereabout [sic] a 2-year

old is.’” (alterations in original)). Failure to grapple with the expert reports from the time of the

Fife trial that found Hill to be intellectually disabled is concerning, particularly given Lott’s

direction that courts should rely on professional evaluations of the defendant’s mental state.

Lott, 779 N.E.2d at 1015.

Third, the Ohio Court of Appeals examined the records from Hill’s time on death row:

Death Row Records. At the time of the evidentiary hearing, Hill had been

incarcerated on death row for 20 years. From this period of time, the trial court

considered audiotaped interviews of Hill by Warren’s Tribune Chronicle reporter

Andrew Gray in the year 2000. These interviews were arranged on Hill’s

initiative in order to generate publicity for his case. The trial court found Hill’s

performance on these tapes demonstrated a high level of functional ability with

respect to Hill’s use of language and vocabulary, understanding of legal

processes, ability to read and write, and ability to reason independently.

Nos. 99-4317/14-3718 Hill v. Shoop Page 16

The trial court considered the evidence of the various prison officials who

testified at the evidentiary hearing. These witnesses consistently testified that Hill

was an “average” prisoner with respect to his abilities in comparison with other

death row inmates. They testified that Hill interacted with the other inmates,

played games, maintained a prison job, kept a record of the money in his

commissary account, and obeyed prison rules. Prison officials offered further

testimony in their interviews with the expert psychologists. One official opined

that Hill began to behave differently after Atkins was decided, and he believed

that Hill was “playing a game” to make others think he is retarded. Another

official reported that Hill’s self-care was “poor but not terrible” and that Hill had

to be reminded sometimes about his hygiene.

Hill, 894 N.E.2d at 124–25.

While Hill’s conduct in prison is relevant to an analysis of his adaptive skills, his time

incarcerated may be an imperfect indicator of his functional abilities. Both Dr. Olley and Dr.

Huntsman, who later concluded that Hill was not intellectually disabled, conceded that Hill’s

conduct in the highly-regulated prison environment was not a good indicator of his adaptive

skills. Some courts have also discounted prison records, reasoning that they provide little insight

into how the defendant would function in the general community. See Hill v. Anderson, 2014

WL 2890416, at *42 (collecting cases).

Additionally, Hill’s prison record is not neat. Describing Hill as an average death row

inmate is ambiguous without additional context about the average inmate’s adaptive functioning

level, particularly if some inmates, such as Hill, had been committed to death row before Atkins

was decided. Prison officials are also not trained to diagnose intellectual disability, and, as the

district court explained in detail, there were multiple inconsistencies within the prison

employees’ reports. See Hill v. Anderson, 2014 WL 2890416, at *43–44. The Ohio Court of

Appeals, however, accurately described the accounts of some prison officials who reported that

Hill did not appear to have significant limitations functioning on death row. See, e.g., DE 97,

Atkins Hr’g Tr., Page 787–89 (Hill did not need special accommodations to perform his prison

job); id. at Page 793 (Hill would inform the prison staff when he had a medical problem); id. at

Page 815 (“[Hill was] slow when he want[ed] to be slow.”).

Fourth, the Ohio Court of Appeals considered the trial court’s conclusion that “as a lay

observer, [he] did not perceive anything about Hill’s conduct or demeanor [during the court

Nos. 99-4317/14-3718 Hill v. Shoop Page 17

proceedings] suggesting that he suffers from mental retardation.” Hill, 894 N.E.2d at 125.

While the Ohio Court of Appeals conceded that trial courts should not rely solely on their own

perception of the defendant in court to determine whether the defendant is intellectually disabled,

the Ohio Court of Appeals still utilized the trial court’s perception here because it aligned with

the conclusions of two experts. Id. at 125–26.

The last, and most important, type of evidence the Ohio Court of Appeals considered was

the opinions of three medical experts who evaluated Hill in preparation for the Atkins hearing:

Dr. Hammer (selected by Hill), Dr. Olley (selected by the prosecution), and Dr. Huntsman

(selected by the court). State v. Hill, 894 N.E.2d at 113. All three experts relied on a

comprehensive record of Hill’s history, including his past medical reports, school records,

transcripts and videos from the time of the Fife trial, accounts from prison officials, and their

own evaluation of Hill. Dr. Hammer concluded that Hill was intellectually disabled, and Drs.

Olley and Huntsman found that he was not. The Ohio Court of Appeals described Drs. Olley’s

and Huntsman’s findings in detail. Id. at 125.

Dr. Hammer was licensed to practice psychology in the state of Ohio and was the director

of psychology services at the Nisonger Center at the Ohio State University. During his career, he

had specialized in behavioral pediatrics, which included working with children, adolescents, and

adults with intellectual disabilities. As part of his evaluation, Dr. Hammer reviewed an extensive

list of Hill’s relevant history including evaluations from school officials, transcripts from Hill’s

past court proceedings, and prison records. Hammer concluded that “[o]verall, these records

provide an extensive and consistent documentation that Mr. Hill has demonstrated, from an early

age, sufficient intellectual and adaptive behavior deficits to qualify for a diagnosis of Mild

Mental Retardation.” DE 97, Supp. Appendix, Page 1110. Hammer noted that “the records also

indicate that [Hill] was generally regarded as mentally retarded by nearly all the psychological,

psychiatric, educational, and youth authority professionals he encountered over the years.” Id.

Hammer, along with Olley and Huntsman, interviewed Hill himself. The three doctors

performed a series of tests to evaluate Hill’s intellectual abilities but could not complete the

testing. Id. at Page 1111–12. Hammer reported that Hill “appeared to be quite disinterested and

unmotivated” during some of the testing but was unable to determine whether Hill “was trying to

Nos. 99-4317/14-3718 Hill v. Shoop Page 18

deliberately do poorly on the test or whether the significant cognitive demands of the test,

especially following the extensive demands of [previous testing] may have caused him to give up

and shut down.” Id. at Page 1111. However, Hammer also testified at the Atkins hearing that all

three experts “agreed that [Hill] was trying to fake bad.” DE 97, Atkins Hr’g Tr., Page 264.

Because of the difficulties with testing and the inability to measure several adaptive abilities in a

prison setting, “all three psychologists agreed that an independent, valid standardized adaptive

behavior instrument could not be completed for Mr. Hill.” DE 97, Supp. Appendix, Page 1112.

In his report, Hammer weighed the opinions of prison officials who interacted with Hill.

Hammer concluded that the officials’ descriptions of Hill:

[W]ere relatively consistent in describing Mr. Hill across some areas (e.g.,

average compared to other inmates, helping others, no ‘falling out’ episodes) and

strikingly discrepant in others (e.g., energy level, getting along with other

inmates, hygiene and self-care problems.) Overall, the description of Mr. Hill’s

adaptive and social behavior on Death Row was not inconsistent with that of a

person with mild mental retardation and conduct problems and it was not

generally contradictory of information in Mr. Hill’s historical records.

Id. at Page 1115. In conclusion, Hammer found that “records, observations and interviews

indicate adaptive behavior functioning consistent with the Mild Retardation range” and

concluded that Hill had “significant deficits in functional academic, social-emotional

functioning, self-care and work habits over the years.” Id. at Page 1116–17.

Like Hammer, Dr. Olley was a licensed psychologist who specialized in working with

individuals who have intellectual disabilities. He had previously testified on behalf of a

defendant in nine other capital cases involving claims of intellectual disability. When making

his evaluation, Olley considered Hill’s historical records including evaluations performed at

school, evidence from around the time of the Fife trial, and interviews with Hill and prison

officials. Olley testified that “this [was] the most thorough evaluation of a death row inmate that

[he] ha[d] been involved with.” DE 97, Atkins Hr’g Tr., Page 773. Unlike Hammer, Olley

concluded that “[r]ecords regarding Mr. Hill’s adaptive behavior before age 18 [were] less

extensive.” DE 97, Supp. Appendix., Page 1119. But Olley acknowledged that Hill had

undergone two formal adaptive behavior tests during childhood, one “yield[ing] a score in the

average range, and another yield[ing] a score in the range of mild mental retardation.” Id. at

Nos. 99-4317/14-3718 Hill v. Shoop Page 19

Page 1119. Olley stated that Hill “had consistently low academic performance,” and his “records

indicate significant behavior problems from an early age and a history of lying.” Id.

Olley also analyzed more recent evidence of Hill’s intellectual abilities. He emphasized

Hill’s latest court appearance where he showed his “ability to orally express his claim of

innocence” and “used vocabulary and sentence structure and complex reasoning that, in [Olley’s]

opinion, indicate[d] intellectual ability above the level of mental retardation.” Id. Olley testified

that “the way that Mr. Hill presents himself in his language, in his arguing on his own behalf and

his assertiveness about his case is substantially more sophisticated than any of the other

defendants with whom [he] ha[d] worked.”8 DE 97, Atkins Hr’g Tr., Page 1763. Like Hammer,

Olley also interviewed several prison employees and compared their descriptions of Hill against

Hill’s own description of his abilities. In general, the prison officials reported that Hill had a

higher adaptive capability than Hill reported having himself, which Olley stated “further

support[ed] the conclusion that Mr. Hill tried to portray himself as having mental retardation.”

DE 97, Supp. Appendix., Page 1125. In sum, Olley held that there was “[t]oo little information

. . . available about adaptive behavior in childhood to make a confident retrospective diagnosis of

mental retardation” and that “[t]he available information on Mr. Hill’s current functioning [did]

not allow a diagnosis of mental retardation.” Id. at Page 1124–25; see also DE 97, Atkins Hr’g

Tr., Page 1785 (testifying that “this hits me between the eyeballs that this is not a man with

mental retardation”).

The third expert to testify at Hill’s Atkins proceeding was Dr. Huntsman. Unlike

Hammer and Olley, Huntsman’s work focused on diagnosing defendants who suffered from

serious mental disorders rather than intellectual disabilities. She had limited experience working

with defendants who had intellectual disabilities and had only administered an adaptive-skills

test a handful of times, the last time being several years before Hill’s Atkins hearing. Id. at Page

980–81, 992. Like Hammer and Olley, Huntsman considered Hill’s past school records,

8

Hammer testified that sometimes individuals with intellectual disabilities will learn “sort of scripts or

scenarios that they can kind of pull out and go through when they encounter a situation” to make it appear that they

are more competent or well-spoken than they truly are. DE 97, Atkins Hr’g Tr., Page 192–93. Olley, however, did

not address this cloak-of-competency theory, and Hammer himself did not verify that Hill was attempting to don a

“cloak of competence” when speaking about his past conduct, see DE 97, Atkins Hr’g Tr., Page 191–93.

Nos. 99-4317/14-3718 Hill v. Shoop Page 20

evidence from around the time of the Fife trial, and contemporary evidence when assessing

Hill’s intellectual abilities.

Huntsman concluded that Hill fell in the “[b]orderline” range of intellectual functioning

and his “level of adaptive behavior certainly exceeds the level expected of a mildly mentally

retarded individual.” DE 97, Supp. Appendix., Page 1140–41. Huntsman stated that “in many

respects [the] most persuasive[]” evidence was the prison officials’ “consistent descriptions of

[Hill] as ‘average’ within the death row population at Mansfield.” Id. at Page 1141. Huntsman,

however, testified that it was difficult to assess adaptive behaviors in the prison setting. And as

we previously explained, describing Hill as the “average” inmate is ambiguous without

additional context. Huntsman also appears to have relied heavily on her own conversations with

Hill, where she said Hill “demonstrated a remarkable memory for the history of his case.” DE

97, Supp. Appendix., Page 1141. She emphasized that she believed Hill was malingering during

standardized testing, trying “to appear less competent than he is.” Id. at Page 1140. Huntsman

concluded that in her opinion, “when one takes both his probable performance on the formal

assessment of I.Q. and his level of adaptive behavior into account, [Hill’s] overall level of

intellectual functioning falls within the borderline range” rather than intellectually disabled. Id.

at Page 1141.

Olley and Huntsman focused on whether Hill was intellectually disabled at the time of

the evaluation rather than at the time of the Fife trial or during his childhood. See DE 97, Supp.

Appendix, Page 1125 (Dr. Olley opining that “[t]he available information on Mr. Hill’s current

functioning does not allow a diagnosis of mental retardation.”). Both, however, grappled with

the historical evidence of Hill’s intellectual functioning and reviewed records from Hill’s

childhood when making their determinations.

Olley testified that “[b]ased upon the available information,” including records from

Hill’s time in school, it was his opinion that “Hill did not have mental retardation at the time of

the offense.” DE 97, Atkins Hr’g Tr., Page 779 (emphasis added). Olley did not dismiss Hill’s

past anecdotal evidence; rather, he concluded after reviewing the record that “there was

inadequate information about adaptive behavior that would allow [him] to conclude that there

was a significant impairment in adaptive behavior” at the time of the offense. Id. at Page 780.

Nos. 99-4317/14-3718 Hill v. Shoop Page 21

Olley explained that while there were numerous IQ tests from Hill’s childhood that satisfied the

first requirement of Lott, there was insufficient evidence to find that Hill had significant adaptive

deficits. Id. at Page 783. Olley testified that Hill “certainly did function low in academic skills”

but that none of the four formal evaluations Hill had taken during childhood “confirmed adaptive

behavior overall at a significantly subaverage level” and the “[o]ther information was anecdotal.”

Id. Huntsman also testified that she thought Hill probably was not intellectually disabled at the

time of the offense. Id. at Page 1051. When making her assessment, Huntsman weighed Hill’s

past records including formal testing done by psychologists and the evaluations done by school

officials. Id. at Page 1046–50. She explained that she gave less weight to school assessments

because they “were being done for a very different purpose,” namely to create educational

interventions rather than determine whether Hill was intellectually disabled under clinical

guidelines. Id. at Page 1046. Both doctors weighed the available evidence of Hill’s past and

present adaptive abilities when reaching their conclusions.

In view of this expert testimony, the Ohio Court of Appeals reasonably concluded that

Hill is not intellectually disabled. Three credentialed and independent physicians met with Hill,

thoroughly reviewed the evidence—including records dating back to Hill’s childhood—and

conveyed their findings in detailed reports. Two of those experts found that Hill is not

intellectually disabled.

In conclusion, the Ohio Court of Appeals did not act unreasonably in relying on the

opinions of Olley and Huntsman, trained medical professionals who had full access to the

extensive record in this case. The question before us is narrow, and the AEDPA standard is

demanding. The law does not allow us to weigh the evidence according to a modern

understanding of intellectual disability or to engage in de novo factfinding. To prevail, Hill must

demonstrate that “in light of the evidence presented” before it, the Ohio Court of Appeals’s

determination that he did not have significant limitations in two or more adaptive skills was

unreasonable. Schriro, 550 U.S. at 473 (“The question under AEDPA is not whether a federal

court believes the state court’s determination was incorrect but whether that determination was

unreasonable—a substantially higher threshold.”). Hill has not cleared this high hurdle.

Nos. 99-4317/14-3718 Hill v. Shoop Page 22

Admittedly, there is evidence in the record that shows Hill has limitations in some

adaptive skills such as self-care, functional academics, and self-direction. But there is also

evidence that Hill’s adaptive abilities were not as lacking as several of the anecdotal accounts

suggest. Importantly, two medical experts, including Dr. Olley who had significant experience

working with individuals with intellectual disabilities, concluded after looking at Hill’s entire

record that he did not have significant limitations in two or more adaptive skills, and, thus, was

not intellectually disabled. In light of the evidence presented, it was not unreasonable for the

Ohio Court of Appeals to rely on the reasoned judgment of two experts over another. See

O’Neal, 743 F.3d at 1023; see also Lott, 779 N.E.2d at 1015 (“The trial court should rely on

professional evaluations of [the defendant’s] mental status, and consider expert testimony . . . in

deciding this matter.”). While another judge could have reasonably reached the opposite

conclusion, the determination of the Ohio Court of Appeals was not unreasonable. Accordingly,

Hill cannot succeed on his Atkins claim. The district court properly denied Hill relief under

§ 2254(d)(2).

B.

Hill’s ineffective assistance of counsel claim also remains unresolved. In his first habeas

petition after his Atkins hearing, Hill argued that his Atkins counsel provided ineffective

assistance. The district court held that Hill’s claim was barred by 28 U.S.C. § 2254(i) and failed

on its merits. Hill, 2014 WL 2890416, at *53–57. The panel twice pretermitted the ineffective

assistance of counsel claim after granting Hill relief on his Atkins claim, Hill, 881 F.3d at 487;

Hill, 960 F.3d at 265, and the Supreme Court did not address the issue, see Shoop, 139 S. Ct. at

505–09. The Warden now asks this court to affirm the district court’s dismissal of Hill’s

ineffective assistance of counsel claim under § 2254(i). While Hill does not present a full

argument in his supplemental en banc briefing, he notes that “whether Atkins counsel provided

ineffective assistance has not been fully adjudicated.” CA 6 R. 362, Supp. Br., at 3 n.2. Because

we find that Hill’s claim fails on the merits, we affirm the district court.

As a preliminary matter, the parties dispute whether Hill’s ineffective assistance of

counsel claim is barred by § 2254(i), which provides that “[t]he ineffectiveness or incompetence

of counsel during Federal or State collateral post-conviction proceedings shall not be a ground

Nos. 99-4317/14-3718 Hill v. Shoop Page 23

for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Hill argues that his

claim is not barred by § 2254(i) because defendants like him, who were convicted before Atkins

was decided have a constitutional right to counsel during their postconviction Atkins hearings.

One circuit agrees with Hill, see Hooks v. Workman, 689 F.3d 1148, 1183–84 (10th Cir. 2012),

and the Supreme Court has left open the possibility that a right to counsel exists during initial-

review collateral proceedings, see Martinez v. Ryan, 566 U.S. 1, 8 (2012) (stating, without

deciding, that “the Constitution may require States to provide counsel in initial-review collateral

proceedings because ‘in [these] cases . . . state collateral review is the first place a prisoner can

present a challenge to his conviction’” (alteration and omission in original) (quoting Coleman v.

Thompson, 501 U.S. 722, 755 (1991))). But see Pennsylvania v. Finley, 481 U.S. 551, 555

(1987) (holding that the right to counsel generally does not extend to collateral proceedings);

Murray v. Giarratano, 492 U.S. 1, 10 (1989) (plurality opinion) (applying Finley to capital

cases); ); id. at 14 (Kennedy, J., concurring in the judgment) (agreeing that the Constitution does

not require the appointment of counsel for capital defendants in state collateral proceedings).

We need not address Hill’s constitutional argument here, however, because even if Hill had a

right to the effective assistance of post-conviction counsel during his Atkins proceedings, his

Atkins counsel provided effective assistance. See Hooks, 689 F.3d at 1208 (Gorsuch, J.,

concurring in part and dissenting in part) (“Caution is always warranted when venturing down

the road of deciding a weighty question of first impression and recognizing a previously

unrecognized constitutional right. And surely caution must be doubly warranted when nothing

turns on it.”).

To prevail on his ineffective assistance of counsel claim, Hill must first “show that

counsel’s performance was deficient” by “an objective standard of reasonableness,” meaning that

his Atkins counsel “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668,

687–88 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential,” and

there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. “Second, the defendant must show that the deficient

performance prejudiced the defense,” meaning that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

Nos. 99-4317/14-3718 Hill v. Shoop Page 24

687, 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. Because the Ohio state courts did not address the potential ineffectiveness

of Hill’s Atkins counsel, AEDPA deference does not apply, and we review the district court’s

findings de novo. Hill v. Mitchell, 842 F.3d 910, 919–20 (6th Cir. 2016).9

Hill argues that his Atkins counsel’s performance was deficient in four ways: (1) failing

to object to the presence of James Teeple during Hill’s psychological evaluation; (2) failing to

properly investigate Hill’s adaptive functioning with school officials, prison psychologists,

family members, and death row inmates; (3) failing to object to the Atkins proceeding on

competency grounds; and (4) failing to withdraw as counsel given his antagonistic relationship

with Hill.

1.

First, Hill claims that his Atkins counsel, Gregory Meyers, was ineffective for failing to

object to James Teeple’s presence during Hill’s psychological evaluation on April 26, 2004, with

Drs. Hammer, Olley, and Huntsman. Teeple was one of the detectives who was involved in the

initial 1985 investigation into Hill after the killing of Fife, and Hill wrongly believed that Teeple

was part of a conspiracy to frame him for Fife’s murder. Because Meyers was aware that Hill

distrusted Teeple, Hill argues that Meyers should have objected to Teeple’s presence during the

evaluation after the trial court issued an order on April 15, 2004, stating, among other things, that

Teeple would be present to record the April 26 evaluation.10

Assuming, without deciding, that Hill is correct that Meyers should have objected to

Teeple’s presence, Hill has not demonstrated prejudice. To establish prejudice Hill “must show

a substantial, not just conceivable, likelihood of a different result.” Campbell v. Bradshaw, 674

F.3d 578, 586 (6th Cir. 2012) (internal quotation marks omitted) (quoting Pinholster, 563 U.S. at

9

The Warden argues that Hill’s claim is procedurally defaulted because he may have been able to raise a

claim of ineffective assistance of Atkins counsel in state court. We decline to review this procedural question

because Hill’s claim fails on the merits. 28 U.S.C. § 2254(b)(2); see also Lambrix v. Singletary, 520 U.S. 518, 525

(1997); Cyars v. Hofbauer, 383 F.3d 485, 486 n.1 (6th Cir. 2004) (“We need not delve into the morass of procedural

bar, however, because Petitioner’s claim fails on the merits even assuming he properly exhausted available state

court remedies.” (emphasis omitted)).

10

In a rare misreading of the record, the district court incorrectly found that Meyers did not have notice that

Teeple would be present at the April 26 evaluation. Hill, 2014 WL 2890416, at *57.

Nos. 99-4317/14-3718 Hill v. Shoop Page 25

189). Both Drs. Huntsman and Olley acknowledged during 2011 depositions that the presence of

the three medical experts and Teeple may have negatively impacted Hill’s performance during

the psychological testing. Hill argues that this calls into doubt the experts’ determination that he

intentionally performed poorly during testing. However, neither Olley nor Huntsman stated that

they believed there is a substantial likelihood that their ultimate conclusion that Hill was not

intellectual disabled would have been different if Teeple had not been present. Furthermore,

neither expert could say that Teeple’s presence on the first of three days of testing was the only

possible cause for Hill’s performance. For example, Huntsman acknowledged that she did not

set a proper tone at the beginning of the evaluation and that could have influenced Hill’s

performance. While Teeple’s presence may have made Hill uncomfortable during the first day

of the psychological evaluation, Hill has not proven that there is a reasonable probability that the

outcome of his Atkins proceeding would have been different had Meyers objected to Teeple

videotaping the evaluation.

2.

Second, Hill argues that Meyers failed to investigate and fully prepare for the Atkins

hearing because he only presented one witness, Dr. Hammer. Hill claims Meyers should have

also presented testimony during the Atkins hearing from: (1) school psychologists Karen

Weiselberg-Ross and Annette Campbell; (2) Dr. John Vermeulen, who evaluated Hill when he

was incarcerated in 1986; (3) Dr. James Spindler, who evaluated Hill in 2000; (4) other death-

row inmates; and (5) Hill’s family members, including his mother. Hill argues that “[t]he failure

to investigate the issue of [Hill’s] mental retardation more thoroughly and to present these

additional witnesses . . . was deficient performance by Meyers which prejudiced [Hill] beyond

measure.” CA 6 R. 295, Petition, 73.

Failure to reasonably investigate a defendant’s background and medical history or present

mitigating evidence may establish ineffective assistance of counsel. Wiggins v. Smith, 539 U.S.

510, 522–23 (2003). However, a counsel’s “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices

made after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.” Strickland,

Nos. 99-4317/14-3718 Hill v. Shoop Page 26

466 U.S. at 690–91. While counsel may be deficient for failing to investigate a “known and

potentially important witness,” United States v. Arny, 831 F.3d 725, 732 (6th Cir. 2016) (quoting

Towns v. Smith, 395 F.3d 251, 259 (6th Cir. 2005) (quotation omitted)), a “reasonably diligent

counsel may draw a line when they have good reason to think further investigation would be a

waste,” Rompilla v. Beard, 545 U.S. 374, 383 (2005).

Meyers’s decision to rely solely on Dr. Hammer’s testimony and the factual record was a

reasonable professional judgment. Medical expert testimony is key to determining whether a

defendant is intellectually disabled under Ohio law. See Lott, 779 N.E.2d at 1015 (“The trial

court should rely on professional evaluations of [the defendant’s] mental status, and consider

expert testimony, appointing experts if necessary, in deciding this matter.”). A trial court “may

not disregard credible and uncontradicted expert testimony in favor of either the perceptions of

lay witnesses or of the court’s own expectations of how a mentally retarded person would

behave.” State v. White, 885 N.E.2d 905, 915 (Ohio 2008). Given the importance of medical

testimony, Meyers’s choice to focus on Hammer, an expert in intellectual disabilities, was

reasonable. Hammer had reviewed Hill’s past school records and medical evaluations as part of

his evaluation process, which included reports from many of the individuals Hill argues Meyers

should have called as witnesses. Because, as Hill concedes, Hammer’s evaluation and testimony

“w[ere] thorough and compelling in [their] own right,” CA 6 R. 295, Petition, 73, Meyers had

good reason to think that further investigation would be a waste. Meyers’s decision not to

continue the investigation was a reasonable professional judgment. Since Meyers’s performance

was not deficient, we need not address the prejudice prong of Strickland.

3.

Third, Hill argues that Meyers was deficient for failing to formally raise concerns about

Hill’s competency. In a preliminary hearing on April 15, 2004, Meyers told the court that he had

“deep professional concerns about Mr. Hill’s competence” because Hill was considering not

continuing his Atkins claim. DE 97, Supp. Appendix, Page 1192. Hill claims that based on this

one statement, Meyers should have petitioned the court to evaluate Hill’s competency before

proceeding. Hill does not point to any evidence beyond Meyers’s statement, however, that

suggests that he was incompetent at the time of his Atkins proceeding. Particularly given the fact

Nos. 99-4317/14-3718 Hill v. Shoop Page 27

that Hill continued to pursue his Atkins claim after Meyers’s statement on April 15, 2004, there is

insufficient evidence to prove either that Meyers’s decision not to file a motion to evaluate Hill’s

competency was deficient or to demonstrate that there was a reasonable probability that, had Hill

been evaluated at that time, he would have been found incompetent.

4.

Finally, Hill claims that Meyers should have done more to withdraw as his attorney

considering Hill’s distrust of Meyers and the Office of the Ohio Public Defender (“OPD”). Hill

had a “deep and abiding antipathy towards lawyers affiliated with the [OPD],” which began

before Meyers agreed to represent Hill during his Atkins proceeding. DE 97, Supp. Appendix,

Page 461, 464. Hill believed that the OPD had misrepresented him during his first, pre-Atkins,

postconviction litigation and was suspicious of the OPD because his uncle, Morris Hill, who Hill

believed had tried to wrongly frame him for the Fife murder while working as a police officer,

was an OPD investigator during his Atkins proceeding. Hill was also unhappy that OPD

attorneys would not pursue an actual innocence claim in conjunction with his Atkins proceeding.

According to Meyers, these longstanding issues made it impossible for him to maintain a

productive attorney-client relationship with Hill.

Hill argues that Meyers had a “duty to use any means available to get off the case” once

he realized the severity of the breakdown in the attorney-client relationship. CA 6 R. 295,

Petition, 95. The record demonstrates, however, that Meyers did use any means available to

attempt to withdraw after his relationship with Hill deteriorated. Meyers submitted two written

motions and one oral motion to withdraw as Hill’s counsel. DE 97, Supp. Appendix, Page 461.

In his second written motion, Meyers clearly asked to be removed as counsel because he

believed Hill’s misguided ideas that Meyers was conspiring against him had “utterly destroyed

anything akin to an attorney-client relationship” and, in his professional opinion, “no viable

attorney-client relationship exist[ed] between” himself and Hill. Id. at Page 467. Despite

Meyers’s appeals, the trial court denied his motions to withdraw as counsel, citing Meyers’s

experience as “probably the foremost capital jurisprudence public defender in the State of Ohio”

and the complicated nature of Hill’s case. Id. at 1178; see also id. at 1219–20 (finding no

Nos. 99-4317/14-3718 Hill v. Shoop Page 28

conflict of interest with respect to Meyers’s representation of Hill).11 Hill has not demonstrated

that Meyers was deficient for failing to bring a fourth motion to withdraw or that further attempts

by Meyers would have affected the outcome of the proceeding given the trial court’s consistent

refusal to allow Meyers to withdraw.

Alternatively, Hill claims that Meyers should never have accepted the appointment to

represent Hill in the first place because he knew that Hill had conflicts with the OPD during his

trial and initial appeals. When questioned by the trial court, however, Meyers explained that he

only agreed to represent Hill after carefully considering whether he could provide effective

representation given Hill’s past conflict with the OPD. Hill has not demonstrated that Meyers,

who was not employed by the OPD during Hill’s trial and first state postconviction appeal,

should have realized before he filed his initial appearance that Hill’s past disagreements with

OPD lawyers could have prevented Meyers from developing a working attorney-client

relationship with Hill. Additionally, Hill has not established a reasonable probability that the

outcome of his Atkins proceeding would have been different had Meyers not entered his initial

appearance. In sum, Hill’s arguments that Meyers provided ineffective assistance of counsel are

without merit. Accordingly, we affirm the district court’s denial of his claim.

C.

Hill’s remaining issues were correctly resolved in the panel’s 2018 opinion, see 881 F.3d

483 (6th Cir. 2018), and we reinstate those portions of the opinion to the extent they are

consistent with this opinion. For the convenience of the reader, they are attached as an appendix

to this opinion.

11

Hill appears to suggest that his right to counsel was violated by the district court’s denial of Meyers’s

motions to withdraw. A trial court’s “decision to deny a motion to withdraw or for substitute counsel is reviewed

for abuse of discretion.” United States v. Powell, 847 F.3d 760, 778 (6th Cir. 2017); see also id. (“Appellate courts

reviewing the denial of such a motion generally consider four factors: ‘the timeliness of the motion’; ‘the adequacy

of the court’s inquiry into the matter’; ‘the extent of the conflict between the attorney and client and whether it was

so great that it resulted in a total lack of communication preventing an adequate defense’; and ‘the balancing of these

factors with the public’s interest in the prompt and efficient administration of justice.’” (quoting United States v.

Mack, 258 F.3d 548, 556 (6th Cir. 2001)). Hill has not put forth any developed argument supporting his argument

that the trial court’s decision not to remove Meyers in this case was an abuse of discretion. Accordingly, Hill has

waived this argument. See United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006).

Nos. 99-4317/14-3718 Hill v. Shoop Page 29

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Danny Hill asserts in his habeas

petition that the State of Ohio may not execute him because he is intellectually disabled.1 See

Atkins v. Virginia, 536 U.S. 304 (2002). Atkins, the case that bars the execution of intellectually

disabled defendants, was decided and made retroactive after Hill was convicted of murder and

sentenced to death. Before Atkins was decided, Hill had been diagnosed as intellectually

disabled approximately ten times over the course of his life, R. 97 [disc 1] (Suppl. App.) (Pages

61–76, 513–530, 592–621), including during the penalty phase of his trial when three

psychological experts testified that Hill was intellectually disabled. See State v. Hill, Nos. 3720,

3745, 1989 WL 142761 (Ohio Ct. App. Nov. 27, 1989). The Ohio courts agreed, stating that Hill

“suffers from some mental retardation” and is “mildly to moderately retarded.” See id. at *6;

State v. Hill, 595 N.E.2d 884, 901 (Ohio 1992) (discussing the experts’ testimony). But

ultimately, Hill was sentenced to death because all that his intellectual disability counted for at

the time was a point in his favor in the sentencing calculation—not a bar to his execution. See

Hill, 1989 WL 142761, at *4. When Atkins came down, our court issued a remand order

directing the Ohio courts formally to assess Hill’s intellectual functioning under Atkins. Hill v.

Anderson, 300 F.3d 679, 682 (6th Cir. 2002). Even “[t]hough Ohio courts reviewing his case

have concluded that Danny Hill is retarded, and voluminous expert testimony supported this

conclusion,” we issued a remand because Hill’s Atkins claim “ha[d] not been exhausted or

conceded.” Id. (citations omitted). This time around, the Ohio courts decided that Hill was not

intellectually disabled. See State v. Hill, 894 N.E.2d 108, 127 (Ohio Ct. App. 2008).

No person looking at this record could reasonably deny that Hill is intellectually disabled

under Atkins. In holding otherwise, the Ohio courts avoided giving serious consideration to past

evidence of Hill’s intellectual disability. Doing so amounted to an unreasonable determination

of the facts and an unreasonable application of even the general Atkins standard. Because Atkins

1

I will use the medical community’s preferred term of “intellectually disabled” in place of “mentally

retarded” except where the term is in quoted material.

Nos. 99-4317/14-3718 Hill v. Shoop Page 30

and the record inescapably mandate, even under AEDPA deference, that Ohio cannot execute

Hill due to his intellectual disability, I dissent.

I. BACKGROUND

The facts and legal proceedings surrounding Hill’s conviction and death sentence in 1986

are set out in an earlier opinion. See Hill, 300 F.3d at 680–81. Because this case centers on the

issue of intellectual disability, what follows is an account of the facts and proceedings relevant to

that question in this case.

Several evaluations conducted around the time of Hill’s trial in 1986 reveal that Hill “has

a diminished mental capacity,” Hill, 1989 WL 142761, at *32, a fact acknowledged by the state

court after Hill’s Atkins hearing. See Hill, 894 N.E.2d at 112 (summarizing the testimony of the

three experts who testified during the mitigation phase of the initial trial that Hill was mentally

“retarded”). Hill’s IQ at the time of trial ranged from 55 to 68, and his moral development was

“primitive”—essentially that of a two-year-old. Id. There is no dispute that Hill’s IQ is so low

that he easily meets the first element of the clinical definition of intellectual disability.

Since his earliest days in school, Hill has struggled with academics. At the age of six, a

school psychologist noted that Hill was “a slower learning child” and recommended that his

teachers “make his work as concrete as possible” without “talking about abstract ideas.” R. 97

[disc 1] (Suppl. App.) (Pages 489–91). After kindergarten, Hill was placed into special

education classes for the remainder of his time in the public school system. R. 29 (Suppression

Hr’g Tr.) (Page ID #3081–92).2 Hill struggled to keep up academically even in his special

education classes and had difficulty remembering even the simplest of instructions. R. 31

(Mitigation Hr’g Tr. at 173–74) (Page ID #3485–86).3 At the age of thirteen, his academic and

social skills were at a first-grade level. R. 97 [disc 1] (Suppl. App.) (Page 568). At the age of

fifteen, Hill could barely read or write, and he was noted to have deficits in adaptive behavior,

specifically in the areas of self-direction, socialization, and communication. R. 31 (Mitigation

2

Because the pagination in the original transcript of the suppression hearing is unclear, I will cite the

pagination used by the district court.

3

The Mitigation Hearing Transcript can be found in the district court record at R. 31 in Hill v. Anderson,

No. 4:96-cv-00795 (N.D. Ohio Jan. 28, 1997).

Nos. 99-4317/14-3718 Hill v. Shoop Page 31

Hr’g Tr. at 79–89) (Page ID #3391–401); R. 97 [disc 1] (Suppl. App.) (Pages 592–93). Those

problems persist today.

Hill has also been unable to take care of his hygiene independently from a young age.

During his time in a home for children with behavioral issues, Hill could not remember to comb

his hair, brush his teeth, or take a shower without daily reminders. R. 31 (Mitigation Hr’g Tr. at

88) (Page ID #3400). Even in the highly structured environment of death row, Hill would not

shower without reminders.

After receiving two convictions for rape at age seventeen, Hill was assessed for

intellectual disability by the juvenile court. R. 97 [disc 1] (Suppl. App.) (Page 527). He was

diagnosed as “mildly retarded” with very poor adaptive functioning. Id. at 527–28. Before

Atkins was decided, Hill had been diagnosed as intellectually disabled approximately ten times

over the course of his life. Id. at 61–76, 513–30, 592–621. During the mitigation phase of his

trial for the Fife murder, the psychological experts and the Ohio courts decided that Hill was

intellectually disabled and had significant adaptive deficits. Hill, 1989 WL 142761, at *6; Hill,

595 N.E.2d at 901. Nevertheless, the Ohio Supreme Court upheld his death sentence because it

was then constitutional to execute intellectually disabled defendants. See Hill, 1989 WL 142761,

at *4.

The Supreme Court decided Atkins in 2002 while Hill’s appeal from the district court’s

denial of his habeas petition was pending before this court. We remanded the case to the district

court with instructions to remand Hill’s unexhausted Atkins claim to the state court and to stay

the remaining claims pending resolution of the Atkins claim. Hill, 300 F.3d at 683. After the

case was returned to the state court, three experts—Drs. David Hammer, J. Gregory Olley, and

Nancy Huntsman—examined Hill and testified over the course of several evidentiary hearings on

Hill’s Atkins claim. Hill retained Dr. Hammer, Dr. Olley acted as the state’s expert, and Dr.

Huntsman was appointed by the trial court. Dr. Hammer concluded that Hill met all three prongs

for a diagnosis of intellectual disability. However, Drs. Olley and Huntsman concluded that Hill

was not intellectually disabled.

Nos. 99-4317/14-3718 Hill v. Shoop Page 32

The state trial court denied Hill’s petition for relief under Atkins, finding that Hill did not

exhibit significant adaptive deficits and that any deficits that he did have did not manifest before

the age of 18. State v. Hill, No. 85-CR-317 (Ohio Ct. of Common Pleas Feb. 15, 2006)

(unreported) [R. 97 [disc 1] (Suppl. App.) (Pages 3399–482)]. The Ohio Court of Appeals

affirmed that decision, over a dissent, holding in the first instance that issue preclusion did not

require a different result “because the finding that he was mentally retarded was not essential to

the imposition of the death penalty in the same way that it is essential in the Atkins/Lott context.”

Hill, 894 N.E.2d at 116, 127. The Ohio Supreme Court declined to review the case, with two

justices dissenting. State v. Hill, 912 N.E.2d 107 (Ohio 2009) (table).

With the conclusion of his state-court proceedings, Hill moved to reopen and amend his

habeas petition in this case to include claims under Atkins. There is no dispute that Hill’s IQ is

so low (ranging from a low of 48 to a high of 71) that he easily meets the first element of the

clinical definition of intellectual disability. The parties disagree, however, on the propriety of

the state courts’ holdings that Hill did not exhibit sufficient adaptive deficits (the second

element).4 Thus, the issue before us is whether it was unreasonable for the Ohio courts to decide

that Hill did not exhibit significant adaptive deficits.

II. STANDARD OF REVIEW

In his opening brief, Hill argued that we should review the state courts’ determinations on

adaptive deficits as both legal and factual conclusions under 28 U.S.C. § 2254(d)(1) and (2). See

Hill Opening Br. at 34 (“The state courts’ application of the law and the determination of the

facts were unreasonable, and therefore habeas relief is warranted under 28 U.S.C. § 2254(d)(1)

and (2).”). That would mean that we ask whether, under § 2254(d)(1), those decisions amount to

an unreasonable application of Atkins and whether, under §§ 2254(d)(2) and 2254(e)(1), there is

clear and convincing evidence that the state courts’ findings amounted to an unreasonable

determination of the facts.

4

The Warden concedes that Hill’s “adaptive deficits (the second element) arose before age eighteen (the

third element) if they arose at all.” Warden Supp. En Banc Br. at 16.

Nos. 99-4317/14-3718 Hill v. Shoop Page 33

I agree with Hill that the state courts’ determination on adaptive deficits should be

analyzed as both legal and factual conclusions under § 2254(d)(1) and (2). Hill’s arguments

attack the reliability of the state courts’ determination of the facts and their interpretation of

Atkins. But, at the same time, his case partly turns on what a court must consider under Atkins in

testing for intellectual disability, which we have recognized is a question of law. Moreover, Hill

presented a § 2254(d)(1) argument in his opening brief. Hill’s strategic decision to focus on

§ 2254(d)(2) in his en banc brief does not waive the prior arguments raised in his opening brief.

And the Warden does not argue that Hill has waived his § 2254(d)(1) argument. Warden Supp.

En Banc Br. at 12. Accordingly, I will analyze Hill’s adaptive-deficits argument under both

§ 2254(d)(1) and (2), keeping in mind that Hill’s arguments draw heavily on the facts.

Under § 2254(d)(1), we must decide whether the state courts’ conclusion that Hill did not

exhibit significant adaptive limitations was “contrary to, or involved an unreasonable application

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

Section 2254(d)(1) applies when the state court “correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S.

362, 407–08 (2000). Under § 2254(d)(2), our review is limited to the question of whether the

state court’s findings amount to “an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” In making that assessment, we are mindful

that AEDPA directs us to presume that facts decided by the state court are correct absent “clear

and convincing evidence” to the contrary. § 2254(e)(1).

“As a condition for obtaining habeas corpus from a federal court, a state prisoner must

show that the state court’s ruling on the claim being presented in federal court was so lacking in

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

any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415, 419–20 (2014)

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). We recognize, of course, that state

court determinations are entitled to a great deal of deference. But “[e]ven in the context of

federal habeas, deference does not imply abandonment or abdication of judicial review.

Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).

Nos. 99-4317/14-3718 Hill v. Shoop Page 34

III. DISCUSSION

A. Atkins Claim

The Supreme Court held in Atkins that the Eighth Amendment prohibits the execution of

intellectually disabled individuals. 536 U.S. at 314–17. Although it ultimately left the

development of the test for intellectual disability up to the states, id. at 317, the Supreme Court

noted that two diagnostic manuals of the psychiatric profession require three separate findings

before a diagnosis of intellectual disability is appropriate.5 Id. at 308 n.3. Those findings are:

(1) “significantly subaverage intellectual functioning”;—typically indicated by an IQ level at or

below 70; (2) “significant limitations in adaptive functioning in at least two of the following skill

areas: communication, self-care, home living, social/interpersonal skills, use of community

resources, self-direction, functional academic skills, work, leisure, health, and safety”; and

(3) manifestation or onset before the age of 18. Id.

Ohio adopted the three-prong standard set forth in Atkins for evaluating a claim of

intellectual disability in State v. Lott, 779 N.E.2d 1011 (Ohio 2002).6 The Supreme Court of

Ohio specifically approved the definition of intellectual disability set forth in the then current

editions of the diagnostic manuals. Id. at 1014. Applying the standards in those manuals,

individuals had significant limitations in adaptive skills if they exhibited deficits in at least two

of the skill areas set out in Atkins. Id.

Hill disputes the Ohio courts’ finding that he did not exhibit significant adaptive

limitations, and he emphasizes that he has been diagnosed as intellectually disabled and lacking

in adaptive skills from a young age. I agree: Hill has exhibited significant adaptive limitations

since childhood and cannot justifiably be executed even under the general Atkins standard. See

Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“[E]ven a general standard may be applied in

an unreasonable manner.”); see e.g., Williams, 529 U.S. at 367 (finding that a state-court

5

Prior to 2007, the American Association on Intellectual and Developmental Disabilities (AAIDD) was

known as the American Association on Mental Retardation (AAMR).

6

Ohio later overruled Lott and substantially amended its standard for evaluating intellectual disability in

State v. Ford, 140 N.E.3d 616 (Ohio 2019).

Nos. 99-4317/14-3718 Hill v. Shoop Page 35

decision was both contrary to and an unreasonable application of the generalized standard for

evaluating whether a petitioner’s right to effective assistance of counsel was violated).

A state court decision is not entitled to AEDPA deference when “the factfinding

procedures upon which the [state] court relied were ‘not adequate for reaching reasonably correct

results’ or, at a minimum, resulted in a process that appeared to be ‘seriously inadequate for the

ascertainment of the truth.’” Panetti, 551 U.S. at 954 (quoting Ford v. Wainwright, 477 U.S.

399, 423–24 (1986) (Powell, J., concurring in part and concurring in the judgment)). Here, the

state trial court ruled that the focus of the evaluation would be Hill’s present functioning, and

therefore that contemporary evidence was what was primarily relevant—not historical accounts.

The Ohio courts failed seriously to contend with the extensive past evidence of Hill’s intellectual

disability. Atkins cannot reasonably be interpreted to permit state courts to exclude or discount

past evidence of intellectual disability. And the Ohio courts’ cafeteria-style selection of some

evidence from Hill’s behavior during the proceedings in this case and while incarcerated, over

evidence from his special education classes, resulted in an unreasonable determination of the

facts.

The Supreme Court stated in Atkins that “clinical definitions of mental retardation require

not only subaverage intellectual functioning, but also significant limitations in adaptive skills

such as communication, self-care, and self-direction that became manifest before age 18.”

536 U.S. at 318 (emphasis added). Accordingly, in Williams v. Mitchell, we held that the

“refusal to consider past evidence of intellectual disability in determining whether [the

petitioner] has significantly subaverage mental functioning and adaptive skills limitations”

contravenes “clearly established Supreme Court precedent.” 792 F.3d 606, 617, 619 (6th Cir.

2015). “[T]he clinical definitions cited with approval by Atkins and adopted by Lott do not treat

present functioning and early onset as unrelated parts of a disconnected three-part test.” Id. at

619. Intellectual disability must manifest before age eighteen. Id. Based on a “plain reading” of

Atkins, “past evidence of intellectual disability—including evidence of intellectual disability

from an individual’s childhood—is relevant to an analysis of an individual’s present intellectual

functioning.” Id.; see also id. at 626 (Gibbons, J., concurring in part and concurring in the

judgment) (noting that Atkins “plainly require[s]” the consideration of past evidence of

Nos. 99-4317/14-3718 Hill v. Shoop Page 36

intellectual disability, including evidence of a defendant’s functioning pre-incarceration, “[g]iven

the enduring nature of intellectual disability”).

We also noted in Williams that, prior to Atkins, the Supreme Court had recognized that

past evidence of intellectual disability is relevant to present or future functioning. See id. at 620

(majority opinion) (citing Heller v. Doe, 509 U.S. 312, 321–23 (1993)). In Heller, the Supreme

Court held that civilly committing people with intellectual disabilities based on clear and

convincing evidence of future dangerousness was constitutional because intellectual disability

manifests during childhood and “is a permanent, relatively static condition, so a determination of

dangerousness may be made with some accuracy based on previous behavior.” 509 U.S. at 321–

23 (citation omitted). “Thus, ‘almost by definition in the case of the retarded [adult] there is an

18-year record upon which to rely’ when assessing the individual’s future intellectual

functioning.” Williams, 792 F.3d at 620 (alteration in original) (quoting Heller, 509 U.S. at 323).

Although Atkins left to the states the job of delineating the precise contours of how to evaluate

intellectual disability, clearly established law mandates that courts cannot, under any reasonable

interpretation of Atkins’s general standard, discount or ignore evidence of intellectual disability

from an individual’s childhood.

In Hill’s case, the Ohio Court of Appeals correctly set forth the three-prong Atkins

standard as adopted by the Ohio Supreme Court in Lott. It also correctly noted that the second

criterion under Lott requires the defendant to demonstrate “significant limitations in two or more

adaptive skills, such as communication, self-care, and self-direction.” Hill, 894 N.E.2d at 113

(quoting Lott, 779 N.E.2d at 1014). Then it veered off track. Focusing mostly on Hill’s

interactions with law enforcement, prison officials, and the courts, the Ohio courts discounted

extensive past evidence of intellectual disability—including multiple diagnoses of intellectual

disability and numerous comments on Hill’s adaptive deficiencies made while Hill was in

school. The two experts who concluded that Hill did not exhibit significant adaptive deficits did

the same. In the few instances where the Ohio courts did confront Hill’s school records, they

grossly misrepresented the contents. The Ohio courts’ decision to focus on and privilege

contemporary evidence over historical accounts is contrary to clearly established Supreme Court

precedent in Atkins and Heller and seriously undermined the courts’ ability to make an accurate

Nos. 99-4317/14-3718 Hill v. Shoop Page 37

assessment of Hill’s intellectual disability. These errors amount to an unreasonable application

of Atkins and an unreasonable finding of fact. See Williams, 792 F.3d at 626 (Gibbons, J.,

concurring in part and concurring in the judgment) (“By excluding the pre–1989 evidence, the

state court severely limited its own ability to make a reasoned assessment of Williams’s

condition according to the legal and medical standard that Atkins . . . plainly require[s].”); see

also Panetti, 551 U.S. at 953 (recognizing that “a general standard may be applied in an

unreasonable manner,” especially when a reviewing court faces “a record that cannot, under any

reasonable interpretation of the controlling legal standard, support a certain legal ruling”). The

majority, in concluding otherwise, refuses to acknowledge the significance, and in some cases

the very existence, of these failures, misrepresentations, and omissions.

1. Significant Limitations

The history of Hill’s diagnoses and adaptive limitations was given short shrift in the Ohio

courts. According to the Ohio courts, the anecdotal evidence in the record “constituted a ‘thin

reed’ on which to make conclusions about Hill’s diagnosis.” Hill, 894 N.E.2d at 124. Yet, as the

district court noted, “the state-court record was hardly a ‘thin reed.’ At well over 6,000 pages, it

was voluminous.” Hill v. Anderson, No. 4:96-cv-00795, 2014 WL 2890416, at *24 (N.D. Ohio

June 25, 2014). “[T]he true ‘thin reed’ in this case was the information that was available

concerning Hill’s adaptive functioning at the time he filed his Atkins claim,” which, for whatever

reason, was “the focus of the evaluation.” Id.

Of the criteria for adaptive deficits set out in Lott, it is clear from the record that Hill

displayed significant limitations, at the very least, in functional academics, hygiene/self-care,

social skills, and self-direction. With respect to functional academics, Hill was considered

“mentally retarded” by the Warren City Schools. He was diagnosed as “mildly retarded,”

“trainable mentally retarded,” or “educable mentally retarded” several times before he turned 18,

beginning with the recognition that he was a “slower learning child” when he began formal

schooling at age 6. See R. 97 [disc 1] (Suppl. App.) (Pages 489–91). He scored 70 or below on

every IQ test administered during his school years. Id. at 489–94, 511–19. He attended special

Nos. 99-4317/14-3718 Hill v. Shoop Page 38

education classes for the entirety of his school career. R. 29 (Suppression Hr’g Tr.) (Page ID

#3081–88).7

At age six, Hill did not know his age, but thought he was nine. R. 97 [disc 1] (Suppl.

App.) (Page 489). His visual-motor coordination was at the three-year-old level, his reading and

verbal skills were at the five-year-old level, and he had a mental age of four years and six

months. Id. at 490. At age 8 years and 8 months, Hill was considered functioning at a “mid-

kindergarten to beginning first grade level.” Id. at 493. At age thirteen, he was functioning at

the “mid-2nd grade level” in reading and the “mid-1st grade level” in arithmetic. Id. at 515. His

psychologist noted that his learning abilities “ha[d] fallen 22 points” in the last five years, and

that his relative weaknesses lie “in not being able to recall everyday information, do abstract

thinking, perform mental arithmetic, perceive a total social situation, [and] perceive patterns.”

Id. At the same age, he was sent to a school for intellectually disabled children to continue his

special education. See id. at 513–19. A school psychologist set out instructional goals that

included teaching Hill his address and phone number, as well as how to tell time. Id. at 578. He

exhibited weaknesses in reasoning ability, originality, verbal interaction, and a lack of

intellectual independence.

By age fourteen, Hill was reading at a first-grade level and his math skills were at a third-

grade level. He still had not mastered writing his own signature. Id. His teacher was working

on self-control skills that should generally be mastered by a kindergarten student, including

“working without being disruptive” and not touching other students inappropriately. Id.

Teachers set academic objectives like learning to: tell time in five-minute intervals; write his

own signature; shower regularly; put soiled clothing in the appropriate place; and eat and drink

in a manner appropriate in a school setting.

Hill was transferred to another, similar school at fifteen because of poor academic

achievement and behavior. R. 31 (Mitigation Hr’g Tr. at 77–79) (Page ID #3389–91). He

received tutoring at a first-grade level for reading and a second-grade level for math. R. 97

7

Hill was “mainstreamed” only in physical education and music, and struggled even there to keep up with

and socialize normally with his peer group. R. 97 [disc 1] (Hammer Test., Atkins Hr’g Tr.) (Pages 247–49). There

is no record of him taking “mainstream” classes in any academic subject area, i.e., math, reading, or history. See id.

Nos. 99-4317/14-3718 Hill v. Shoop Page 39

[disc 1] (Suppl. App.) (Page 525). At seventeen years old, after being arrested for, and pleading

guilty to, two felony rape charges, the juvenile court placed Hill in a facility that housed youth

offenders with mental disabilities or emotional problems. R. 31 (Mitigation Hr’g Tr. at 120–23)

(Page ID #3432–35). There, Hill completed ninth grade in special education classes at age 18.

R. 97 [disc 1] (Suppl. App.) (Page 533). After being released, he returned to high school, and

testing indicated Hill was at a second-grade level for reading and math. Id. at 1109. Fife’s

murder occurred six months later.

The record also demonstrates that Hill was deficient in hygiene and self-care. At the age

of fourteen, he still needed to be told to shower regularly, brush his teeth, and apply deodorant

every day. He would not independently follow through and take care of his hygiene unless he

was told to do so. At approximately age sixteen, a group home officer noted that although Hill

was “improving in his personal hygiene,” he still “need[ed] constant reminder[s] to shower,

brush his teeth, etc.” Id. at 524. Hill continued to have problems with his hygiene in prison and

had to be reminded frequently to groom himself.

The record also demonstrates that Hill had limitations in the area of social skills. For

example, the district court pointed to the testimony of psychologists who spoke to Hill’s “poor

self-esteem, inability to interpret social situations and create positive relationships, and [the fact]

that he was easily influenced by people, gravitated toward an antisocial peer group, and did not

respond appropriately to authority figures.” Hill, 2014 WL 2890416, at *38. Hill’s school and

court records demonstrate that he had trouble making friends. At seventeen, Hill was described

as “socially constricted” and possessing “very few interpersonal coping skills.” R. 97 [disc 1]

(Suppl. App.) (Page 530).

Hill also showed limitations in at least one more area—self-direction. Hill was described

as “easily led” in both his school and court records, during periods both before and after he

committed serious crimes while apparently acting alone. In school, Hill was described as

immature and “easily led by others into trouble around school,” like fighting. Id. at 515. He was

vulnerable to exploitation by older individuals, displayed inappropriate and immature behaviors

in class, rarely considered the consequences before acting, and had trouble conforming his

behavior to the rules or the law. When Hill was thirteen, he was described as exhibiting a “great

Nos. 99-4317/14-3718 Hill v. Shoop Page 40

deal of impulsivity.” Id. When Hill was seventeen, he was evaluated by a psychologist who

concluded that he had poor judgment, “d[id] not think of consequences,” was “highly

suggestable,” and “was ‘likely to be exploited’” if placed in a halfway home for adults

“[b]ecause of his passivity and limited intellectual ability.” Id. at 527–28. Another report from

that same time expressed concern about his tendency to follow others. Even when he was in

prison at age twenty-one, a correctional officer reported that Hill was easily led by other inmates

and had to be told how to do his job at every step of the way. See R. 97 [disc 1] (Atkins Hr’g Tr.)

(Pages 437–39).

Time after time, psychologists examined Hill and diagnosed him as intellectually

disabled. R. 97 [disc 1] (Suppl. App.) (Pages 61–76, 513–30, 592–621). These psychologists

assessed Hill’s IQ and his adaptive skills. During one of the earliest assessments, his school’s

psychologist noted that Hill was limited in functional academics and self-direction. Id. at 63–65

(noting that Hill is “limited in his ability to generalize, to transfer learning from one situation to

another, . . . or to do much self-evaluation”). Later assessments consistently detailed the same

issues and deficits in social skills, communication, and self-care as well. See, e.g., id. at 69, 71,

516, 519, 527–28, 530, 592.

In addition to his significant limitations in functional academics, self-care, social skills,

and self-direction, the record also demonstrates that Hill never has lived independently, never

had a driver’s license or a bank account, never has been able to perform a job without substantial

guidance from supervisors, was labeled “functionally illiterate” at school and in prison, could

never read or write above a third-grade level, and could never adequately sign his own name.

Even if Hill appeared to be functioning at an average skill level to a layperson’s eyes, it is

common for someone with mild intellectual disability to present as functioning. See R. 97 [disc

1] (Hammer Test., Atkins Hr’g Tr.) (Page 189). That is why the impressions of schoolteachers

are critical—because children often are not diagnosed “until they get to school and teachers who

are familiar with kids at various cognitive abilities discover that this child is, No. 1, not where

they should be for their age in terms of their current [intellectual] functioning . . . . And, two,

that as they try to teach them they learn at a much slower rate.” Id. Comments from Hill’s

schoolteachers were largely left unaddressed—or were distorted—in the Ohio courts’ analysis.

Nos. 99-4317/14-3718 Hill v. Shoop Page 41

2. Unreliable Experts

Nevertheless, it might seem that the Ohio courts rendered a reasonable decision because

they relied on the opinions of two psychological experts who found that Hill did not exhibit

significant adaptive deficits. The majority here certainly takes that stance. Maj. Op. at 21–22.

According to the Ohio Court of Appeals, the experts and the record provided “competent and

credible evidence to support the trial court’s conclusion that Hill does not meet the second

criterion for mental retardation.” Hill, 894 N.E.2d at 126. But both experts, at the trial court’s

direction, ignored evidence of adaptive deficiencies from Hill’s school years, or set it aside as

irrelevant to the task at hand. Anecdotal evidence, such as comments and records from

schoolteachers and others who have interacted with or evaluated the subject, is key to the

adaptive-deficits analysis. See Hill, 894 N.E.2d at 124–25 (discussing anecdotal evidence); R.

97 [disc 1] (Hammer Test., Atkins Hr’g Tr.) (Pages 383–84) (stating that the psychological

profession values “collateral information”); R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page

696) (stating the importance of “drawing information from many different sources of functioning

in every day life under every day circumstances”).

Two experts testified in Hill’s Atkins proceedings that Hill did not display significant

adaptive limitations. State v. Hill, No. 85-CR-317, at 79–80 (Ohio Ct. of Common Pleas Feb.

15, 2006) (unreported) [R. 97 [disc 1] (Suppl. App.) (Pages 3477–78)]. The state trial court

relied upon their opinions to conclude that Hill had failed to demonstrate significant adaptive

deficits. Id. at 81 (Page 3479).8 All three experts, including Dr. Hammer (Hill’s expert), found

that Hill malingered or tried to “fake bad” on the adaptive skills tests given to him in 2004. Id. at

8

We have previously denied Atkins relief in an AEDPA case arising out of Ohio where, as here, two of the

three mental-health experts testified that the petitioner was not intellectually disabled. O'Neal v. Bagley, 743 F.3d

1010, 1023 (6th Cir. 2013) (“With expert testimony split, as it often is, the state court chose to credit Dr. Chiappone

and Dr. Nelson over Dr. Tureen, and we cannot say from this vantage that it was unreasonable to do so.”).

However, O’Neal is distinguishable on its facts, and Hill’s claim for Atkins relief is much stronger than the

petitioner’s claim in O’Neal. For example, in O’Neal there was insufficient evidence to prove that the petitioner met

the first prong in demonstrating “significantly subaverage intellectual functioning.” Id. at 1022. Here, by contrast,

Hill’s IQ is so low that the Warden concedes that Hill satisfies the first prong. Additionally, O’Neal’s claim for

Atkins relief also failed because his adaptive deficits may well have been better explained by his drug abuse and

personality disorder rather than organic mental illness. Id. at 1022–23. Furthermore, we have never held that a

reliance on an expert witness’s conclusion makes a state court’s determination reasonable per se. Instead, we

consider whether “the record read as a whole” allows a reviewing court to conclude that the state court’s

determination was unreasonable. Id. at 1022; see also Carter v. Bogan, 900 F.3d 754, 768, 771 (6th Cir. 2018).

Nos. 99-4317/14-3718 Hill v. Shoop Page 42

53, 81 (Pages 3451, 3479). In coming to their decision that Hill was not, at present, intellectually

disabled, Drs. Olley (the state’s expert) and Huntsman (the trial court’s expert) heavily weighed

the fact that Hill malingered. See R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 781); R. 97

[disc 1] (Huntsman Test., Atkins Hr’g Tr.) (Pages 1050–51). But see R. 97 [disc 1] (Hammer

Test., Atkins Hr’g Tr.) (Page 211) (stating that a person with intellectual disability can still lie,

manipulate, and cheat). Drs. Olley and Huntsman also emphasized the sophistication of Hill’s

crimes and his interactions with prison, law-enforcement, and court officials. See R. 97 [disc 1]

(Olley Test., Atkins Hr’g Tr.) (Pages 726–31, 737–50, 770–75); R. 97 [disc 1] (Huntsman Test.,

Atkins Hr’g Tr.) (Pages 1027, 1034–35, 1040–44). Dr. Hammer, on the other hand, based his

diagnosis on all types of anecdotal evidence, including Hill’s records from school, and concluded

that Hill satisfied all three prongs for a diagnosis of intellectual disability. See R. 97 [disc 1]

(Hammer Test., Atkins Hr’g Tr.) (Pages 383–84); id. at 156 (“My opinion is that [Hill] falls

within the high end of the mild retardation range.”); see also id. at 190 (describing mild

intellectual disability as “significant” or “severe” impairment in the ability to function).

Dr. Olley (the state’s expert) stated that Hill’s memory was very good in court on April

15, 2004, when he provided details of events. R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page

744). Dr. Olley also stated, based on an interview with Hill, that Hill was able “to express a

complex explanation of the crime in order to support his claim of innocence.” R. 97 [disc 1]

(Suppl. App.) (Page 1125). Although Dr. Olley admitted that Hill’s case was a “close call,”

R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 861), he nevertheless concluded that Hill’s

“way of presenting himself,” both in his police interrogation and before the court, was

inconsistent with an intellectual-disability diagnosis, id. at 718–19, 726–27. Dr. Olley said that

he had never heard of an intellectually disabled inmate calling the media to arrange an interview,

as Hill did in this case by reaching out to the Tribune Chronicle. Id. at 763. Dr. Olley noted that

Hill was able to tell an elaborate “conspiracy” theory about the events leading to his capital trial

for Fife’s murder, which echoed a “very similar” soliloquy he made before the trial court on

April 15, 2004. Id. at 770–72. Dr. Olley characterized this soliloquy as “long,” “rambling,” and

ultimately implausible—but he testified that he was nonetheless “struck” by Hill’s “sophisticated

memory and reasoning.” Id. at 744, 771–72.

Nos. 99-4317/14-3718 Hill v. Shoop Page 43

Dr. Huntsman (the trial court’s expert) similarly focused in her report on Hill’s

“remarkable memory for the history of his case,” his detailed and “very complex explanation for

how Raymond Fife came to be killed,” as well as the “competencies” observed by staff members

in prison. R. 97 [disc 1] (Suppl. App.) (Page 1141). Dr. Huntsman described Hill’s story as

“bouncing around in time,” and she initially “couldn’t keep track of what [they] were talking

about.” R. 97 [disc 1] (Huntsman Test., Atkins Hr’g Tr.) (Pages 1021). She characterized the

conspiracy story as “remarkable and not likely, not very plausible.” Id. at 1025. Still, despite the

story’s apparent lack of “logic,” Dr. Huntsman noted “the degree of organization, the degree of

complexity[,] and the degree of memory that he displayed as [they] talked.” Id. at 1025–26,

1031. She testified that it was not the story Hill told, but his “process of telling the story”—

which demonstrated complexity, “sophistication,” a noteworthy vocabulary, and a “general

ability to communicate”—that led to her conclusion that he was not intellectually disabled. Id. at

1190.

In the end, Drs. Olley and Huntsman each opined that Hill was “borderline intellectual

functioning” as defined in the DSM-IV. See R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page

936); R. 97 [disc 1] (Huntsman Test., Atkins Hr’g Tr.) (Page 1044); id. at 1049 (stating that

“what makes me say that I believe that in my opinion he falls within the borderline range of

intellectual functioning has to do with his adaptive behavior”). Dr. Olley described borderline

intellectual functioning as “no mental retardation but it is the . . . functioning that is . . . between

one standard deviation below the mean and two standard deviations below the mean,” i.e., an IQ

range between “71 to 85.” R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 936). Drs. Olley

and Huntsman came to this conclusion even though people at the lower end of borderline

intellectual functioning and the higher end of intellectual disability are “going to be quite similar

. . . in some regards,” R. 97 [disc 1] (Hammer Test., Atkins Hr’g Tr.) (Page 465), including in

their ability to create a “script” involving various people and events, id. at 537–38.

In the opinion of Dr. Hammer (Hill’s expert), Hill’s behavior was not inconsistent with

that of a person with mild intellectual disability because those persons often attempt to don a

“cloak of competence.” Id. at 191–92. “[M]any people with mild [intellectual disability],” he

explained, “are quite aware of their deficits in learning and functioning and are somewhat

Nos. 99-4317/14-3718 Hill v. Shoop Page 44

worried that other people will find that also. So they oftentimes will develop certain skill areas

that they can hold out as indicating that they have a competence in a certain area and, therefore,

are trying to mask . . . what their deficits actually are.” Id. This frequently involves “learning

sort of . . . scripts or scenarios that they can kind of pull out.” Id. at 192–93. The trial court,

which adopted the opinions of Drs. Olley and Huntsman, but made no reference to

Dr. Hammer’s cloak of competence discussion in its opinion, apparently did not afford this

concept much weight.

Drs. Olley and Huntsman also placed significant weight on the testimony of prison

officials about Hill’s recent behavior in the prison environment. These officials considered Hill

“average” in intelligence compared to other death row inmates. “They testified that Hill

interacted with the other inmates, played games, maintained a prison job, kept a record of the

money in his commissary account, and obeyed prison rules.” Hill, 2014 WL 2890416, at *39

(quoting Hill, 894 N.E.2d at 124). One official said that Hill was feigning intellectual disability

for his Atkins claim, and another said that Hill’s hygiene was “poor but not terrible.” Id. (quoting

Hill, 894 N.E.2d at 125).

As the district court noted, all of the experts conceded that relying on Hill’s behavior in

prison to assess adaptive skills is problematic because “death row is a segregated, highly

structured and regulated environment.” Id. at *42.9 Evidence of adaptive functioning in this

kind of controlled setting is of limited value because inmates do not have the same opportunities

to acquire new skills or show weaknesses in existing skills. Assessing Hill’s adaptive deficits as

an adult is particularly challenging given the absence of any reliable testing to measure Hill’s

adaptive functioning and the lack of reliable evidence of how Hill would have functioned as an

adult in general society as he has been incarcerated for all but six months of his adult life. Given

the lack of evidence regarding Hill’s likely adaptive performance as an adult in the general

community, the experts should have utilized all available evidence.

9

The medical literature available in 2008 prohibited the assessment of adaptive skills in atypical

environments like prison. For example, the 2002 AAMR Manual says “[l]imitations in present functioning must be

considered within the context of community environments typical of the individual’s age peers and culture.”

AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 13 (10th ed. 2002). It explains:

“[t]his means that the standards against which the individual’s functioning must be measured are typical community-

based environments, not environments that are isolated or segregated by ability.” Id. at 8.

Nos. 99-4317/14-3718 Hill v. Shoop Page 45

The majority acknowledges that Dr. Huntsman, in particular, considered prison officials’

descriptions of Hill’s adaptive behavior as “‘[the] most persuasive[]’ evidence” of Hill’s adaptive

functioning. Maj. Op. at 22 (alterations in original) (quoting R. 97 [disc 1] (Suppl. App.) (Page

1141)). Given that the existing medical guidelines prohibited measuring an individual’s

functioning based on their behaviors in a prison setting, Dr. Huntsman’s weighty reliance on this

evidence in coming to her conclusion about Hill’s intellectual disability casts serious doubt on its

reasonableness. The same is true for Dr. Olley, especially in light of his own admission that “[i]t

is impossible to assess all of Mr. Hill’s adaptive behavior while he is in prison.” R. 97 [disc 1]

(Suppl. App.) (Page 1124).

Drs. Olley and Huntsman leaned heavily on these prison officials’ testimony rather than

treating them with the degree of skepticism mandated by the medical literature. As the district

court noted, the weight of the testimony from various death-row prison officials was limited by

their potential bias against the inmates they were charged with guarding, as well as the

shortcomings affecting lay opinions about intellectual disability generally. Hill, 2014 WL

2890416, at *42–43. And many of the specific prison officials’ statements were “rife with

contradictions, with themselves and each other.” Id. at *43.

These flaws might be forgivable under AEDPA deference, but there is one problem with

Drs. Olley’s and Huntsman’s testimony that we cannot overlook: neither of them grappled with

the extensive past evidence of Hill’s intellectual disability. Both experts, instead, assessed Hill’s

adaptive skills “as they existed at the time of the hearing”—even though intellectual disability is

a static condition. Id. at *23; see Heller, 509 U.S. at 323; Williams, 792 F.3d at 617–19; R. 97

[disc 1] (Suppl. App.) (Page 1125) (Dr. Olley reporting that “[t]he available information on Mr.

Hill’s current functioning does not allow a diagnosis of mental retardation”) (emphasis added).

At the State’s urging, the trial court ruled that it would focus the Atkins inquiry on Hill’s current

functioning, but noted that it would not preclude historical evidence from coming in. R. 97 [disc

1] (Suppl. App.) (Pages 175–81, 217–23, 247–50). As a result, the opinions of Drs. Olley and

Huntsman, like the Ohio courts’ own assessments, lack a credible foundation.

Dr. Olley recognized the importance of anecdotal evidence when he relied on testimony

from prison guards to assess Hill’s adaptive skills. But when it came to past anecdotal evidence

Nos. 99-4317/14-3718 Hill v. Shoop Page 46

of Hill’s adaptive deficits, Dr. Olley dismissed it as evidence of low academic skills only. R. 97

[disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 783). Acknowledging that Hill’s schoolteachers

thought he was intellectually disabled, Dr. Olley said that he could not say the same because

“[t]he information is simply not available.” Id. As detailed extensively above, that is simply not

true.

The majority finds Dr. Olley’s determination to be reliable because Dr. Olley “did not

dismiss Hill’s past anecdotal evidence; rather, he concluded after reviewing the record that ‘there

was inadequate information about adaptive behavior that would allow [him] to conclude that

there was a significant impairment in adaptive behavior’ at the time of the offense.” Maj. Op. at

20 (alteration in original) (quoting R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 780)). But

that conclusion ignores Dr. Olley’s failure to engage with or consider the numerous reports from

teachers, mental health professionals, and other relevant observers of Hill’s adaptive behavior,

directly contravening Dr. Olley’s admitted methodology for determining intellectual disability

and what constitutes adequate information. See R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.)

(Pages 696–97) (noting that for retrospective determinations of intellectual disability, experts

should rely on records and statements from “teachers,” “mental health professionals,” and “other

people who know the individual well”).10 Those records are replete with observations and

diagnoses of significant limitations in adaptive behavior that Dr. Olley never mentioned or

explained away as irrelevant or inadequate in the areas of self-care or self-direction. For

example, in the area of self-direction, Dr. Olley failed to contextualize the results of the

standardized tests administered by mental health professionals with the numerous accounts

throughout Hill’s childhood and teenage years from teachers, psychologists, and social workers

who testified that Hill was easily led and a follower. Hill, 2014 WL 2890416, at *30–33. More

importantly, Dr. Olley admitted that Dr. Nancy Schmidtgoessling, one of the psychologists who

testified during the mitigation phase of Hill’s trial, assessed Hill’s adaptive behavior when she

diagnosed him as intellectually disabled. See R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Pages

941–42). But Dr. Olley never explained why he found that diagnosis unreliable.

10

Dr. Olley explained to the trial court that “our protocol was different” from other cases for which he had

served as an expert “in the sense that in speaking among the three psychologists, we were aware of your order to

look at Mr. Hill’s present functioning.” R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 862). He further

explained that it was because of the trial court’s order that the experts focused on Hill’s adaptation to prison life. Id.

Nos. 99-4317/14-3718 Hill v. Shoop Page 47

As for Dr. Huntsman, she, too, did not give much thought to the past anecdotal evidence

of Hill’s adaptive deficits. She stated that she was retained to decide “whether [Hill] is now a

mentally retarded individual.” R. 97 [disc 1] (Huntsman Test., Atkins Hr’g Tr.) (Page 1052)

(emphasis added). When prompted for her opinion of Hill’s school records, she stated that these

records were not as reliable as the court-conducted tests because teachers’ assessments “were

being done for a very different purpose.” Id. at 1046. Never mind that the Ohio Supreme Court

had already decided in White that school records are relevant for an adaptive-deficits analysis.

State v. White, 885 N.E.2d 905, 916 (Ohio 2008); see also Heller, 509 U.S. at 323 (noting that

for intellectual disability determinations “there is an 18-year record [of past behavior] upon

which to rely”). Never mind that several of the assessments used to evaluate Hill relied on

definitions of intellectual disability that match Lott’s factors. See e.g., R. 97 [disc 1] (Suppl.

App.) (Page 592–93) (finding that Hill qualified for placement into a special education program

for intellectually disabled students because he exhibited “significant subaverage intellectual

functioning” and deficiencies in at least two areas of adaptive behavior as determined by a

multidisciplinary team that included a qualified psychologist). Dr. Huntsman also speculated

that Hill had not tried his hardest in school. R. 97 [disc 1] (Huntsman Test., Atkins Hr’g Tr.)

(Page 1048).11 In fact, at one point Dr. Huntsman dismissed the evidence of Hill’s adaptive

deficits during his teenage years as Hill being “a pretty troubled and pretty troublesome youth”

due to his school system record. Id. at 1047. Despite Dr. Huntsman’s detailed analysis of the

reports from prison guards, there is no comparable analysis of the overwhelming historical

records detailing Hill’s struggles with self-care, self-direction, and academic functioning. Dr.

Huntsman testified that, excluding Hill’s mother, the record did not contain any non-school

records providing evidence of Hill’s adaptive skills or deficits. Id. at 1090, 1098.12 This

completely ignores the highly relevant non-school records and testimony from Brinkhaven,

where social workers observed Hill at all times and noted significant limitations in self-care,

academic functioning, and self-direction. See Hill, 2014 WL 2890416, at *31.

Having disregarded much of the past anecdotal evidence, Dr. Huntsman stated that Hill

11

Dr. Huntsman did not point to, nor have we been able to discover, any evidence in Hill’s school records

demonstrating that he intentionally performed poorly in school.

12

The record also indicates that, if anything, Hill’s mother “overestimated [Hill’s] adaptive behavior.”

R. 97 (Suppl. App.) (Page 527).

Nos. 99-4317/14-3718 Hill v. Shoop Page 48

“probably” was not intellectually disabled at the time of the offense. R. 97 [disc 1] (Huntsman

Test., Atkins Hr’g Tr.) (Page 1052) (“I think that the only thing that I’ve said today that I didn’t

say previously in my report, because I wasn’t asked to address it in my report, is that my opinion

is that he was probably not retarded at the time of the offense.”).

Even though Drs. Olley and Huntsman conceded that this was a close case, they made no

real attempt to reconcile their outcome with Hill’s past diagnoses of intellectual disability and the

voluminous relevant evidence of Hill’s significant adaptive limitations—and in fact, they were

effectively told not to do so. As we held in Williams, Atkins and Lott recognized that intellectual

disability presents itself in childhood and is a permanent condition. See Williams, 792 F.3d at

619–20. Under Atkins, courts cannot limit their focus to contemporary accounts while

discounting past evidence of intellectual disability. The Ohio trial court’s erroneous instruction

substantially undermined the Ohio courts’ ability to rely reasonably on Dr. Olley’s and Dr.

Huntsman’s conclusions regarding Hill’s intellectual disability.

Having set their gaze on Hill’s interactions with prison, court, and police officials, Drs.

Olley and Huntsman said next to nothing about the substantial evidence in the record from Hill’s

time both in school and in prison that Hill was easily led, struggled to communicate, struggled

with his personal hygiene, and struggled to read. These failures only encouraged the Ohio courts

to do the same. Rather than grapple with the extensive record of Hill’s intellectual disability, the

state trial court made its findings based on Hill’s scattered and scripted conspiracy story of the

Fife murder, his demeanor in interacting with law enforcement and the legal system, and the

supposed sophistication of his crimes. State v. Hill, No. 85-CR-317, at 73–77 (Ohio Ct. of

Common Pleas Feb. 15, 2006) (unreported) [R. 97 [disc 1] (Suppl. App.) (Pages 3471–76)].

Those “adaptive strengths” convinced the state trial court that Hill could not be intellectually

disabled because he had “remarkable” communication and vocabulary skills and was self-

directed. Id. at 74 (Page 3472). As shown throughout this discussion, there is substantial

evidence in the record to contradict these findings, which are based on evidence—Hill’s

functioning in a prison setting—prohibited by existing medical guidelines. See, e.g., discussion

infra Section III.A.3. Unlike the Ohio courts and Drs. Olley and Huntsman, I cannot cast aside

years of highly probative evidence and repeated diagnoses of intellectual disability. To do so

Nos. 99-4317/14-3718 Hill v. Shoop Page 49

flies in the face of then-prevailing medical standards, relevant guidance from the Ohio Supreme

Court, and the doctors’ own methodologies. Viewed in the context of the entire record and based

on clearly established Supreme Court precedent, no fairminded jurist could find their factual

determinations to be reasonable.

3. Myths and Misrepresentations

To the extent that the Ohio courts addressed past evidence of Hill’s adaptive

deficits, they misconstrued it or tried to offset it with irrelevant facts. Rather than take this

evidence seriously, the Ohio Court of Appeals adopted the trial court’s analysis as consistent

with its own perception of the record:

Public School Records. Hill’s public school records amply demonstrate a

history of academic underachievement and behavioral problems. Hill is often

described as a lazy, manipulative, and sometimes violent youth. Although there

are references to Hill’s being easily led or influenced by others, the trial court

noted that much of Hill’s serious misconduct, including two rapes committed

prior to Fife’s murder, occurred when he was acting alone. Hill knew how to

write and was described by at least one of his special education teachers as “a

bright, perceptive boy with high reasoning ability.”

Hill’s Trial for the Murder of Raymond Fife. The trial court observed that

the record of Hill’s murder trial provided evidence of Hill’s ability concerning

self-direction and self-preservation. In particular, the court noted Hill’s initiative

in coming to the police in order to misdirect the focus of the investigation by

implicating others and Hill’s ability to adapt his alibi to changing circumstances

in the course of police interrogation. This last point was also noted by Dr. Olley

in his hearing testimony: Hill “stood his ground during that interrogation very,

very strongly. * * * He not only modified his story a little bit when he was faced

with evidence that couldn’t possibly have avoided. * * * That to me is a kind of

thinking and planning and integrating complex information that is a higher level

than I have seen people with mental retardation able to do.”

Death Row Records. At the time of the evidentiary hearing, Hill had been

incarcerated on death row for 20 years. From this period of time, the trial court

considered audiotaped interviews of Hill by Warren’s Tribune Chronicle reporter

Andrew Gray in the year 2000. These interviews were arranged on Hill’s

initiative in order to generate publicity for his case. The trial court found Hill’s

performance on these tapes demonstrated a high level of functional ability with

respect to Hill’s use of language and vocabulary, understanding of legal

processes, ability to read and write, and ability to reason independently.

Nos. 99-4317/14-3718 Hill v. Shoop Page 50

The trial court considered the evidence of the various prison officials who

testified at the evidentiary hearing. These witnesses consistently testified that Hill

was an “average” prisoner with respect to his abilities in comparison with other

death row inmates. They testified that Hill interacted with the other inmates,

played games, maintained a prison job, kept a record of the money in his

commissary account, and obeyed prison rules. Prison officials offered further

testimony in their interviews with the expert psychologists. One official opined

that Hill began to behave differently after Atkins was decided, and he believed

that Hill was “playing a game” to make others think he is retarded. Another

official reported that Hill’s self-care was “poor but not terrible” and that Hill had

to be reminded sometimes about his hygiene.

Hill’s Appearances in Court. The trial court stated that it had “many

opportunities” to observe Hill over an extended period of time and, as a lay

observer, did not perceive anything about Hill’s conduct or demeanor suggesting

that he suffers from mental retardation.

Hill, 894 N.E.2d at 124–25.

These findings are deeply troubling. To start, the Ohio courts’ finding “that Hill

‘underachieved’ academically or in any other adaptive skill as a child is,” as the district court

remarked, “squarely contradicted by the record.” Hill, 2014 WL 2890416, at *26. The district

court could not find, and neither could I, “one reference in Hill’s school records by a teacher,

school administrator, psychologist, psychiatrist, or anyone else suggesting that Hill was capable

of performing at a substantially higher level but chose not to.” Id. (footnote omitted). And as

the experts in this case testified, evidence of behavioral problems or a conduct disorder simply

does not undermine a simultaneous finding of intellectual disability. See R. 97 [disc 1] (Hammer

Test., Atkins Hr’g Tr.) (Page 612); R. 97 [disc 1] (Olley Test., Atkins Hr’g Tr.) (Page 713) (“[I]f

he’s having conduct problems in school, that’s neither here nor there to a diagnosis of mental

retardation.”); (R. 97 [disc 1] (Huntsman Test., Atkins Hr’g Tr.) (Pages 1102–03). While

conceding that “there are references to Hill’s being easily led or influenced by others, the trial

court noted that much of Hill’s serious misconduct, including two rapes committed prior to

Fife’s murder, occurred when he was acting alone.” Hill, 894 N.E.2d at 124.13 The state courts

incorrectly discounted the numerous reports that Hill was easily led because he committed

13

The Ohio courts’ use of the word “references” is also a serious mischaracterization of the record. As the

district court found, almost every evaluation of Hill in his school records described Hill’s tendency to be “easily

influenced” by others. Hill, 2014 WL 2890416, at *26 n.19. These consistent assessments amount to much more

than fleeting “references.”

Nos. 99-4317/14-3718 Hill v. Shoop Page 51

crimes on his own. Under then-prevailing medical standards, Hill’s prior criminal behavior is

completely irrelevant to any determination of whether he exhibited deficits in adaptive skills.

See Hill, 2014 WL 2890416, at *26.

The Ohio courts’ focus on a note drafted by a teacher in a school for intellectually

disabled children describing Hill as “‘bright’ and ‘perceptive,’ with ‘high reasoning ability’”

was, as the district court put it, “almost cynical in its selective misrepresentation of the facts.”

Hill, 2014 WL 2890416, at *27. In the same report, Hill’s special education teacher noted that

Hill, who was thirteen at the time, had the reading skills of a first-grader and the math skills of a

third-grader. R. 97 [disc 1] (Suppl. App.) (Page 578). Her proposed goals for Hill were for him

to shower regularly, eat and drink in a manner appropriate to school, blend letter sounds to say

words altogether out loud, tell time in five-minute intervals, and count change up to $1.00. Id.

The Ohio courts’ statement that Hill knew how to write suffers from the same flaw. At best, it is

an erroneous description of Hill’s abilities; at worst, it purposefully distorts the record. See Hill,

2014 WL 2890416, at *27 (finding that there is “no evidence in the record that Hill could write

much more than his name during his school years, and struggled even with that”). More

importantly, the Ohio Court of Appeals blatantly omits the uncontradicted evidence from Hill’s

childhood through teenage years detailing Hill’s consistent academic struggles. See discussion

supra Section III.A.1.

The Ohio courts’ handling of evidence regarding self-care is equally troubling. The Ohio

Court of Appeals’s sole reference to Hill’s deficits with regard to self-care was its summary of

testimony provided by a prison official “that Hill’s self-care was ‘poor but not terrible’ and that

Hill had to be reminded sometimes about his hygiene.” Hill, 894 N.E.2d at 125. Such a

statement downplays the record’s extensive chronicling of Hill’s struggles with hygiene,

including the fact that an individual education plan established for Hill when he was nearly

fourteen years old included an “[a]nnual [g]oal and [o]bjective” of helping Hill “learn to shower

when necessary” and to “put soiled clothing in the appropriate place.” R. 97 [disc 1] (Hammer

Test., Atkins Hr’g Tr.) (Pages 280–81, 327). In short, the Ohio Court of Appeals’s description of

Hill’s school records does not contain a single accurate characterization of the evidence that is

relevant to determining whether Hill exhibits significant limitations in adaptive behavior.

Nos. 99-4317/14-3718 Hill v. Shoop Page 52

Instead, we are left to assume that the appellate court and also the trial court were all but

oblivious to the ample amount of evidence that credibly establishes Hill’s limitations in

functional academics, self-care, social skills, and self-direction.

The state trial court also unduly relied on Hill’s “initiative in coming to the police” after

Fife’s death, as well as his alleged efforts to misdirect the investigation and fabricate an alibi

while under interrogation, as “evidence of Hill’s ability concerning self-direction and

self-preservation.” Hill, 894 N.E.2d at 124. But Hill was not even a suspect before he went to

the police, and his statements are what aroused their suspicion. Incriminating oneself is hardly

self-preservation. And as the district court noted, “‘[s]elf-preservation’ is not [even] among the

adaptive skills measured under the clinical definitions of intellectual disability.” Hill, 2014 WL

2890416, at *33. And “self-direction” covers a host of behaviors—including “initiating

activities appropriate to the setting” and “demonstrating appropriate assertiveness and self-

advocacy skills”—that are either unrelated or directly contrary to Hill’s decision to make contact

with the police. Id. (quoting AAMR, Mental Retardation: Definition, Classification, and

Systems of Supports 40 (9th ed. 1992)).

Moreover, contrary to the Ohio courts’ findings, Hill’s “performance” during the police

interrogation revealed him to be “childlike, confused, often irrational, and primarily self-

defeating,” and Hill’s attempts to change his story under pressure failed to “skillfully hid[e] his

part” in Fife’s death. Id. at *34. The police even stated that Hill was suggestible, telling him

that “Everytime [sic] we suggest something to you, you have a tendency to agree with us.” R. 26

(Trial Tr. at 30) (Page ID #2105). Hill often changed his story or “embellished his statement[s]

at the slightest suggestion by the police, even when the information at issue was irrelevant or

incriminating.” Hill, 2014 WL 2890416, at *35. These actions “were quite the opposite of

adaptive.” Id. at *34. This is especially true where Hill’s decision to approach the police did not

“resolve his problems,” but “succeeded only in immediately drawing the police’s attention to

himself.” Id. I fail to see how such behavior reasonably could be interpreted as exhibiting skills

in “making choices,” “resolving problems,” and “demonstrating appropriate assertiveness and

self-advocacy skills.” AAMR, Mental Retardation: Definition, Classification, and Systems of

Supports 40 (9th ed. 1992).

Nos. 99-4317/14-3718 Hill v. Shoop Page 53

While purportedly relying on prison accounts, the Ohio courts made no mention of Hill’s

prison records. Those records reflect that prison officials always understood Hill to be mentally

incapacitated or “slow.” As when he was in school, Hill was considered to be illiterate in prison.

He was understood to have a “very limited writing ability,” and he had other inmates write for

him. R. 97 [disc 1] (Hammer Test., Atkins Hr’g Tr.) (Page 439). Notes written from Hill to

prison officials make clear that he had trouble keeping track of his prison account balance.

According to fellow inmates, when Hill was given a task, he had to be carefully supervised

because he could not remember how to complete the assigned task. At least one prison official

reported that Hill was able to perform his job as a porter because the cleaning supplies were

sorted by color, so Hill was not required to read the supplies’ instructions. Id. at 363, 1381.

Rather than credit the ten intellectual-disability diagnoses that Hill received prior to

Atkins even being decided, the trial court made its own lay judgment that “there is nothing about

[Hill’s] general appearance—facial expressions or conduct—suggesting . . . that the Petitioner is

mentally retarded.” State v. Hill, No. 85-CR-317, at 76 (Ohio Ct. of Common Pleas Feb. 15,

2006) (unreported) [R. 97 [disc 1] (Suppl. App.) (Page 3474)]. The Ohio Court of Appeals

defended that lay judgment on the basis that the experts also believed that Hill failed to exhibit

significant adaptive deficiencies. See Hill, 894 N.E.2d at 125–26.

Perhaps most disturbing, three psychologists who testified at Hill’s pre-Atkins mitigation

hearing concluded that Hill was intellectually disabled and had extremely poor adaptive

functioning. On appeal, the Ohio Supreme Court and Court of Appeals found these

psychologists’ testimony credible and concluded that Hill was intellectually disabled. See State

v. Hill, 595 N.E.2d 884, 901 (Ohio 1992); State v. Hill, Nos. 3720, 2745, 1989 WL 142761, at

*6, *32 (Ohio Ct. App. Nov. 27, 1989). It was only after Atkins came down, and Hill was again

assessed for intellectual disability in renewed state-court proceedings, that the Ohio courts

reversed course. See Hill, 300 F.3d at 682 (remanding this case to the Ohio courts so that Hill

could exhaust his Atkins claim, while recognizing that the “Ohio courts reviewing his case have

[already] concluded that Danny Hill is retarded and voluminous expert testimony supported this

conclusion” (citation omitted)). Yet the Ohio Court of Appeals does not attempt to address this

highly relevant evidence. See Maj. Op. at 15.

Nos. 99-4317/14-3718 Hill v. Shoop Page 54

Unfortunately, the majority papers over, when it does not outright ignore, the Ohio Court

of Appeals’s egregious mischaracterizations and omissions of probative favorable evidence.

Like the Ohio courts, the majority flagrantly downplays the overwhelming evidence in Hill’s

juvenile records that sets out Hill’s limitations in adaptive functioning. For example, the

majority describes Hill’s school records as merely “suggest[ing] that [Hill] struggled

academically as a child.” Maj. Op. at 13. But unanimous observations from teachers, social

workers, and psychologists that Hill consistently performed far below his age-level in almost

every academic arena do not constitute a “suggestion” of a deficit. They are uncontradicted

evidence of a significant limitation. The majority admits that the Ohio Court of Appeals’s “short

summary of [Hill’s school records]” omits evidence concerning Hill’s skills in academics, self-

direction, and self-care. Id. at 12. But again, it attempts to erase the significance of this error by

portraying the evidence as only possibly “relevant to determining whether Hill had significant

limitations in two or more adaptive skills.” Id. at 14. That characterization cannot stand in the

face of clearly established law that instructs us to rely on “the documentation and other evidence

of [intellectual disability]” that has accumulated during the individual’s first eighteen years when

assessing intellectual functioning. Williams, 792 F.3d at 620 & n.4 (quoting Heller, 509 U.S. at

322) (“[E]vidence of intellectual disability from earlier in life is directly relevant to present-day

intellectual disability determinations.”).

The majority refuses to recognize the substantial effect of these errors on our

determination of whether the Ohio Court of Appeals’s conclusion that Hill did not have

significant limitations in two or more adaptive skills was more than just incorrect but was

unreasonable. Several courts have recognized that errors of this magnitude can fatally

undermine the factfinding process, rendering the resulting factual finding unreasonable. See

Taylor v. Maddox, 366 F.3d 992, 999–1001 (9th Cir. 2004) (holding that a state court’s clear

misapprehension or misstatement of the record that “goes to a material factual issue that is

central to petitioner’s claim” and a state court’s “failure to consider and weigh relevant

evidence” that is “highly probative and central to the petitioner’s claim” can render “the resulting

factual finding unreasonable”), abrogated on other grounds by Cullen v. Pinholster, 563 U.S.

170 (2011); Byrd v. Workman, 645 F.3d 1159, 1171–72 (10th Cir. 2011) (following Taylor);

Gray v. Zook, 806 F.3d 783, 791 (4th Cir. 2015) (“When a state court apparently ignores a

Nos. 99-4317/14-3718 Hill v. Shoop Page 55

petitioner’s properly presented evidence, its fact-finding process may lead to unreasonable

determinations of fact under § 2254(d)(2).”); see also Miller-El, 537 U.S. at 346 (finding it

concerning under § 2254(d)(2) that a “state court also had before it, and apparently ignored”

probative evidence that was central to a petitioner’s claim of a constitutional violation). The

Ohio Court of Appeals did not just plainly misstate and grossly mischaracterize the record. Its

misstatements and mischaracterizations are of highly probative evidence related to Hill’s

adaptive functioning, which is central to his Atkins claim. Furthermore, the Ohio Court of

Appeals’s treatment of the historical record and of Hill’s functioning in prison contained

inexcusable omissions of evidence that not only are inconsistent with its findings but also are

“sufficient to support [Hill’s Atkins] claim when considered in the context of the full record.”

Taylor, 366 F.3d at 1001, 1007–08. As detailed above, the Ohio courts’ reliance on the

conclusions of Drs. Olley and Huntsman cannot serve to mitigate or cure these errors.

***

The evidence that Hill is intellectually disabled is overwhelming. It is clear from the

record that Hill was universally considered to be intellectually disabled and seriously lacking in

adaptive skills by schoolteachers, administrators, social workers, psychologists, the juvenile

court system, and even (previously) the Ohio Supreme Court. Hill consistently performed very

poorly in school (functional academics); there was consistent documentation that he had trouble

maintaining proper hygiene despite reminders (self-care); he had trouble making friends and

responding appropriately to authority figures (social and communication); and he was described

as a follower, easily led, and vulnerable to exploitation by adults (self-direction). The record

shows that these deficits largely continued into adulthood, particularly with respect to self-care

and functional academics. Nevertheless, the state courts and the experts they retained failed to

grapple with this extensive social history, choosing instead to favor the accounts of prison guards

and personal observations.

The Ohio courts’ legal conclusions breach the most basic tenets of Atkins, and their

factual findings cannot be sustained on this record. Atkins, on its most basic level, forbids the

execution of persons who are intellectually disabled. It requires courts to look at all relevant

evidence of intellectual disability—and certainly evidence of manifestations before the age of 18.

Nos. 99-4317/14-3718 Hill v. Shoop Page 56

This is not a case where evidence of intellectual disability comes out after conviction. Hill was

diagnosed as intellectually disabled from a very young age. He attended special education

classes. He could not be counted on to bathe. Yet, the Ohio courts were impressed by his ability

to incriminate himself to the police and to rehash a scripted story in a cloak of competency.

They valued the conflicting opinions of prison guards interacting with Hill in a highly structured

setting over professional reports and diagnoses recorded over a lifetime. Even if Atkins alone

poses no bar to offsetting adaptive deficiencies with adaptive strengths, the Ohio courts failed to

grapple with the evidence in the record indicating that Hill’s perceived strengths were actually

weaknesses. As the Ohio Court of Appeals itself stated at the penalty phase, “The record is

replete with competent, credible evidence which states that [Hill] has a diminished mental

capacity. He is essentially illiterate, displays poor word and concept recognition and, allegedly,

has deficient motor skills.” Hill, 1989 WL 142761, at *32. There is no getting around it—Hill is

intellectually disabled. To deny the obvious is unreasonable. Thus, respectfully, I dissent.

B. Ineffective Assistance of Counsel

Because I believe that we should grant habeas relief on Hill’s Atkins claim, I would

pretermit Hill’s claim of ineffective assistance by his Atkins counsel. However, because the

majority reaches Hill’s ineffective-assistance-of-counsel claim, I write to express my views on

its analysis. The district court held that Hill’s ineffective-assistance-of-counsel claim is barred

by 28 U.S.C. § 2254(i), which prohibits a petitioner from seeking habeas relief because of

the ineffectiveness of his counsel at a post-conviction proceeding. Hill, 2014 WL 2890416, at

*52–53. At the heart of this issue is a deeply important constitutional question: whether

petitioners bringing Atkins claims that arise after their initial appeals due to the retroactivity of

Atkins have a Sixth Amendment right to the effective assistance of counsel. An answer in the

affirmative would trump any statutory instruction that seemingly bars such a claim. The

majority, in denying Hill’s claim on the merits, decides not to resolve this issue. Maj. Op. at 23.

However, I believe that the importance of the issue warrants addressing why we should conclude

that Hill had the right to effective assistance of counsel during his Atkins hearing.

The Warden’s argument and the district court’s conclusion that § 2254(i) prevents Hill

from bringing a habeas claim based on the ineffectiveness of his Atkins counsel rests on the

Nos. 99-4317/14-3718 Hill v. Shoop Page 57

foundation that Hill’s Atkins hearing qualifies as a post-conviction proceeding. Thus, under the

Supreme Court’s general rule, Hill had “no constitutional right to an attorney” and consequently

“cannot claim constitutionally ineffective assistance of counsel in such [a] proceeding[].”

Coleman v. Thompson, 501 U.S. 722, 752 (1991). However, in Hooks v. Workman, the Tenth

Circuit, the only other circuit to review this issue, “concluded that defendants in Atkins

proceedings have the right to effective counsel secured by the Sixth and Fourteenth

Amendments” even when the Atkins proceeding takes place after a defendant’s conviction due to

the retroactivity of Atkins. 689 F.3d 1148, 1183–84 (10th Cir. 2012). Consequently, the Tenth

Circuit held that, in such circumstances, a defendant’s ineffective-assistance-of-counsel claim

“[was] properly . . . subject to federal habeas review under 28 U.S.C. § 2254.” Id. at 1174.

I find the Tenth Circuit’s reasoning to be persuasive. The Supreme Court’s fundamental-fairness

jurisprudence also mandates that we conclude that Hill’s claim is cognizable under § 2254.

When examined in the context of Supreme Court habeas and capital-punishment

caselaw, Atkins should be read as establishing a special exception regarding the right to counsel

for intellectual-disability determinations due to the high stakes of the penalty involved:

the irrevocable taking of a person’s life.

First, as Hooks makes clear, the nature of an Atkins proceeding clearly compels a

determination that the Sixth Amendment’s guarantee of effective assistance of counsel attaches

to the proceeding. For petitioners like Hill, an Atkins proceeding is “‘postconviction’ only in the

strict chronological sense.” Id. at 1183. Because Atkins was decided in 2002, after Hill had been

convicted and sentenced in 1986, Hill’s Atkins hearing was “‘the first designated proceeding’ at

which he could raise a claim of mental retardation.” Id. (quoting Martinez v. Ryan, 566 U.S. 1,

11 (2012)). That Hill had not and could not previously litigate his substantive constitutional

right not to be executed due to his intellectual disability “underscores the importance of

providing a capital defendant with the opportunity to fully present his constitutional issue, even

in the postconviction context.” State v. Lorraine, No. 2003-T-0159, 2005 WL 1208119, at *6

(Ohio Ct. App. May 20, 2005). Moreover, because the Atkins hearing was Hill’s first time

arguing the merits of his constitutional claim, Hill did not “have a brief from counsel or an

opinion of the court” on the issue, rendering Hill “ill equipped to represent [himself].” Martinez,

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566 U.S. at 11 (quoting Halbert v. Michigan, 545 U.S. 605, 617 (2005)).14 Consequently, “the

usual rationale for denying a right to counsel in postconviction proceedings is inapposite.”

Hooks, 689 F.3d at 1183.15 In the death-penalty context, a defendant’s first opportunity to argue

that the State should not impose a capital sentence is always accompanied by the Sixth

Amendment right to effective assistance of counsel. There is no reason why that should not be

the case here.

Although initiated by a civil petition in cases like Hill’s, an Atkins claim is intimately

associated with a capital criminal prosecution and its sentencing proceeding. Both the Supreme

Court and the Sixth Circuit recognize that an

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