explaining that Toumsend holds that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court” (some emphasis removed)
How later courts described this case
- explaining that Toumsend holds that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court” (some emphasis removed)
- explaining that Townsend holds that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court” (some emphasis removed)
- observing that under Rule 11, Rules Governing § 2254 Cases, that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied when appropriate, to petitions filed under these rules.” (citing Fed. R. Civ. P. 81(a)(2) (“These rules are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in the statutes of the United States, the Rules Governing Section 2254 Cases, the Rules Governing Section 2255 Proceedings, and has heretofore conformed to the practice in civil action.”))
- stating that on remand, the district court should consider the Flynn effect evidence to determine if petitioner’s IQ score is overstated
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Bracey, 604 Pa. 459 (2009)
See, e.g., Walker, 399 F.3d at 325 (after noting that defendant contended that Summerlin is inapplicable in context of Atkins hearing, since he was "not seeking to vacate a factual decision already made by a judge in favor of having the factual determination made by a jury,” court opted to turn to jury trial right under Ring rather than definitively ruling on retroactivity question).
The opinion
GREGORY, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority insofar as it holds that Walker’s petition should not have been dismissed without an evidentia-ry hearing. I must dissent, however, from the majority’s failure to recognize that Va. *328 Code § 8.01-654.2 violates the Equal Protection Clause.
As interpreted by the majority, Virginia’s statutory scheme denies to Walker what it gives freely to others with non-frivolous claims of mental retardation: assured jury review. Stated otherwise, the majority allows Virginia to treat unequally criminal defendants submitting non-frivolous claims of mental retardation for the first time by withholding its juries from those who have exhausted state remedies on other grounds. See Va.Code § 8.01-654.2 (“If the person has completed both a direct appeal and a [state] habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court.”). Thus, Daryl Atkins and Dariek Walker, despite being identically situated for present purposes, will be treated unequally: Atkins — merely because he was on direct review — -will be allowed to present his retardation claim to a jury, but Walker may not. This is unconstitutional.
The majority’s error begins by adopting the Warden’s contention that Virginia’s scheme merits merely rational-basis review. It is plain that “when state laws impinge on personal rights protected by the Constitution,” strict scrutiny — -not rational-basis review — -is warranted. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985). 1 The Eighth Amendment’s prohibition against the cruel and unusual punishment embodied by the execution of the mentally retarded is surely a fundamental, personal constitutional right. Thus, Virginia’s law should be sustained only if it is “suitably tailored to serve a compelling state interest.” Id.
Virginia’s post-Atkins statute cannot survive such scrutiny. The Warden proffers two sides of the same “prompt finality” coin for Virginia’s otherwise arbitrary distinction: avoiding delay in executions from frivolous litigation and encouraging finality of the judgments. See Appellee’s Br. at 37 n. 12 (Virginia legislature made policy choice to avoid “unnecessary delay for frivolous litigation”) and at 40 n. 15 (“Obviously it is a legitimate, even compelling, state interest to further the finality of criminal judgments.”).
First, I doubt the Warden precisely captures Virginia’s interests when it passed the statute dealing with Atkins claims. Evidently, the Commonwealth felt sufficiently strongly that a jury had to decide these factual questions 2 that it mandated a jury trial for all persons on direct appeal. See Va.Code § 8.01-654.2 (“If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.”). At the very least, this adds nuance to Virginia’s interests: it commanded its circuit courts to empanel a jury for some defendants, while it wished to deny the right to such a determination *329 to defendants like Walker. Thus, the question should be whether Virginia’s interest in promptly executing the tiny handful of death-row prisoners like Walker who had exhausted state habeas appeals 3 is “compelling,” and if so, compelling enough to justify denying these few persons a jury determination of their Atkins claim.
Even accepting the Warden’s proffered justification as compelling, surely this scheme is not narrowly tailored; indeed, the statute seems to be an awfully clumsy means of obtaining quick executions. The Commonwealth could have allowed for an expedited state-court review of Walker’s Atkins claim, just as they did for those of other defendants. But by short-circuiting AEDPA and pushing off Walker to federal court, Virginia denies us the benefit of its fact-finding. I seriously doubt that this shortens the time to execution at all. Indeed, it may well lengthen the review process by forcing federal courts — perhaps ultimately the Supreme Court — to attempt awkwardly to harmonize federal habeas procedures with both Virginia’s substantive and procedural post-Atkins statutes.
I know of no other reason why treating Walker the same as defendants like Daryl Atkins would have' been so unpardonably slow as to justify the denial of equal treatment. As the Virginia Supreme Court noted about this very statute just last year,
The different procedures for resolving this factual issue [whether the defendant is mentally retarded] that the Warden urges are based solely on whether a capital defendant happened to have his case on direct appeal or collateral attack on April 29, 2003. To assign the finding of this fact to the trial court for one group of qualifying defendants and to either a court or a jury for another, as the Warden suggests, would treat similarly situated persons differently in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Burns v. Warden, 268 Va. 1 , 597 S.E.2d 195, 196 (2004)(citing City of Cleburne, 473 U.S. at 439 , 105 S.Ct. 3249 ).
In sum, Atkins did not leave the states with unbridled authority to craft procedures that would protect mentally retarded defendants. Rather, it allows the states to develop “ ‘appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (emphasis added). If nothing else, to be appropriate, procedures must comport with the Constitution. The majority allows Virginia’s violation of the Equal Protection Clause by not requiring that Walker’s claim, as would Atkins’, be heard by a jury of his peers. I respectfully remove myself from this part of the decision and strongly encourage the district court to exercise its discretion— which this decision does not destroy — to empanel a jury to hear Walker’s claim.
. The majority opinion cites, but misapplies, Cleburne for the idea that rational basis review governs. Ante at 325-26. Cleburne establishes that mental retardation itself is not a “quasi-suspect classification” such that all laws affecting the mentally retarded merit heightened scrutiny. 473 U.S. at 442-47 , 105 S.Ct. 3249 . Cleburne also recognized quite plainly, however, that strict scrutiny is warranted “when state laws impinge on personal rights protected by the Constitution.” Id. at 440 , 105 S.Ct. 3249 .
. See Burns v. Warden of Sussex I State Prison, 268 Va. 1 , 597 S.E.2d 195, 196 (2004) (“The threshold issue — whether the defendant is mentally retarded — is a factual one.”).
. There appears to be only one other Virginia death-row inmate who, like Walker, exhausted state remedies on other grounds and then raised a mental retardation claim after Atkins . Five other death-row prisoners had completed state habeas proceedings when Atkins was decided, but none of them raised an Atkins claim and all have since been executed. Thus, it is not as if scores of cases threaten to drown Virginia’s courts with frivolous retardation claims.