# Brandon Wayne Hedrick v. William Page True, Warden, Sussex I State Prison

> Court of Appeals for the Fourth Circuit · March 31, 2006 · 443 F.3d 342

URL: https://www.frixlaw.com/law-library/cases/9498816

## Case

- **Full name:** Brandon Wayne HEDRICK, Petitioner-Appellant, v. William Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** March 31, 2006
- **Citations:** 443 F.3d 342; 2006 U.S. App. LEXIS 7904; 2006 WL 832679
- **Precedential status:** Published
- **Opinion:** Dissent by Gregory
- **Judges:** Widener, Gregory, Hamilton
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498816

## How later opinions describe it (automated extraction)

- stating that a claim is “technically” exhausted if “a state procedural rule would bar consideration if the claim [if it] was later presented to the state court”
- holding that a claim is “technically” exhausted if “a state procedural rule would bar consideration if the claim was later presented to the state court”
- stating that a claim is “technically” exhausted if “a state procedural rule would bar consideration if the claim was later presented to the state court”
- holding that exhaustion requirement is “technically met when exhaustion is unconditionally waived by the state”
- finding no ineffective assistance when expert did not indicate further investigation of defendant's childhood experiences would be helpful

## Opinion text

GREGORY, Circuit Judge,
dissenting in part from Part IV and concurring in the judgment only in Part V:
In Part IV, the majority concludes that Hedrick’s claim that his execution is prohibited because he is mentally retarded must be dismissed because (1) it is procedurally barred and (2) he has failed to meet his evidentiary burden on the merits. With regard to the first basis, I disagree that the procedural default doctrine applies here to preclude federal review, and I therefore respectfully dissent from Part IV.A. As to the second basis, although the recent decision in Walton v. Johnson, 440 *369 F.3d 160 , 2006 WL 561492 (4th Cir. March 9, 2006) (en banc), compels me to concur in the ultimate disposition of Hedrick’s claim in Part IV.B of the majority opinion, I write separately to voice my concern with this precedent.
A.
The circumstances surrounding the timing of Hedrick’s state habeas petition, the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), and Virginia’s legislative response to Atkins present a highly unusual backdrop to Hedrick’s claim of mental retardation. On June 20, 2002, as the proceedings in Hedrick’s state habeas petition drew to a close, the United States Supreme Court issued its decision in Atkins , holding that the Eighth Amendment bars the execution of the mentally retarded. The Court neither defined mental retardation nor prescribed the method by which to raise such a claim, leaving these matters to the States. Id. at 317 , 122 S.Ct. 2242 . By that time, Hedrick’s Virginia habeas petition had been pending for more than two years, the state habeas evidentiary hearing was long over, and briefs had been filed. All that remained was oral argument, which the Supreme Court of Virginia held on September 10, 2002. The court issued its decision denying Hedrick habeas relief on November 1, 2002. Although Hedrick did not raise Atkins prior to this denial, he did assert that he was mentally retarded in his December 2, 2002 petition for rehearing to the Supreme Court of Virginia. Pet. for Reh’g 10, Dec. 2, 2002. 1 In a one-page order issued on January 10, 2003, the Supreme Court of Virginia denied rehearing and dismissed the petition without addressing Hedrick’s request for expert assistance or his Atkins claim.
The Virginia legislature did not respond to Atkins until April 29, 2003, several months after the final ruling on Hedrick’s petition. On that date, in addition to defining mental retardation, see Va.Code Ann. § 19.2-264.3:1.1, Virginia also enacted Virginia Code Annotated § 8.01-654.2, providing the procedures for the “[presentation of claim of mental retardation by person sentenced to death before April 29, 2003.” Under § 8.01-654.2, a prisoner with a pending state habeas petition may file an amended petition asserting a mental retardation claim, which must be considered as long as it is not frivolous. However, the statute provides that a petitioner such as Hedrick, who has “completed both a direct appeal and a habeas corpus proceeding ... shall not be entitled to file further habeas petitions in the Supreme Court [of Virginia] and his sole remedy shall lie in federal court.” Id. Thereafter, Hedrick filed his federal habeas petition in the district court, asserting his Atkins claim. 2
Given this procedural history, the threshold question of this appeal is whether Hedrick’s Atkins claim is exhausted for purposes of federal habeas review. The doctrine of exhaustion is designed to give state courts a “full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). “This exhaustion requirement is *370 ... grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The requirement of exhaustion is mandated by statute in the federal habeas context. See 28 U.S.C. 2254(b)(1). Federal courts may. not grant an application for a writ of habeas corpus unless “(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” Id.
Whether a claim is exhausted is tested at the time of the federal petition. Gray v. Netherland, 518 U.S. 152, 161 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996). As the majority recognizes, the exhaustion requirement is met if a state rule would now prevent future consideration of the claim. Id. At the time Hedrick filed his habeas petition in the district court, Virginia law foreclosed him from later bringing his Atkins claim in the Commonwealth. Specifically, the newly enacted Virginia statute addressing mental retardation claims provides that an individual sentenced to death before April 29, 2003, whose Virginia proceedings are complete “shall not be entitled to file any further habeas petitions in the Supreme Court [of Virginia] and his sole remedy shall lie in federal court.” Va.Code Ann. § 8.01-654.2. Therefore, Hedrick’s Atkins claim is exhausted by this law.
Ordinarily, when exhaustion occurs because a state rule bars future state consideration of a federal habeas petitioner’s claim, the related doctrine of procedural default applies to preclude federal review. This is because, in the usual case, it is the petitioner’s failure to follow state procedures that causes the state rule to bar consideration. In other words, the petitioner has procedurally defaulted on his claim. In such a circumstance, comity instructs that we decline to consider the claim out of respect for the state procedural rule that the petitioner violated. See Dretke v. Haley, 541 U.S. 386, 392-93 , 124 S.Ct. 1847 , 158 L.Ed.2d 659 (2004) (a procedural default “provides only a strong prudential reason, grounded in ‘considerations of comity and concerns for the orderly administration of justice,’ not to pass upon a defaulted constitutional claim presented for federal habeas review.”) (quoting Francis v. Henderson, 425 U.S. 536, 538-39 , 96 S.Ct. 1708 , 48 L.Ed.2d 149 (1976)).
Here, however, the procedural default doctrine does not apply. Virginia Code Annotated § 8.01-654.2 does not foreclose Virginia review due to any failure to follow state procedures. Rather, as of the April 29, 2003 effective date of the statute, the only condition necessary to preclude Virginia’s consideration is that the death-sentenced prisoner’s Virginia proceedings be complete. This does not create or even suggest an intent to bar the claim for a procedural default. To the contrary, the statute demonstrates Virginia’s decision to decline her opportunity to first consider the Atkins claims of death-sentenced prisoners with Hedrick’s procedural posture. The statutory language specifically contemplates that those claims would be presented in federal court. With Hedrick’s claim thus exhausted by the choice of the Virginia legislature, rather than by a procedural default, the comity interests that would counsel against hearing Hedrick’s claim are not implicated.
The majority’s analysis goes astray in construing a procedural default out of Virginia’s statute authorizing only a single *371 habeas petition filed within sixty days of the resolution of the individual’s direct appeal. The majority reasons that Hedrick’s failure to seek leave from the Supreme Court of Virginia to amend his petition under Rule 1:8 constituted a default under this law. However, I believe that the Supreme Court of Virginia would apply — as I have done above— § 8.01-654.2, which specifically addresses the procedures for raising Atkins claims. See Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 375-76 , 110 S.Ct. 680 , 107 L.Ed.2d 782 (“It is an elementary tenet of statutory construction that ‘[wjhere there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one ....’” (quoting Morton v. Mancari, 417 U.S. 535, 550-51 , 94 S.Ct. 2474 , 41 L.Ed.2d 290 (1974))). Hedrick is a “person sentenced to death before April 29, 2003” who seeks to present a “claim of mental retardation.” See Va.Code Ann. § 8.01-654.2. As such, § 8.01-654.2 is the provision of the law specifically applicable to him. This provision on its own plainly forecloses review in Hedrick’s particular circumstance. We need not speculate, as the majority does, about the applicability of the single habeas petition statute or any other Virginia law.
In addition, even following the strained reasoning of the majority, I would not conclude that Hedrick’s failure to seek leave to amend his petition under Rule 1:8 constituted a federally cognizable default. Virginia’s legislative response to Atkins belies the notion that seeking leave to amend through Rule 1:8 is required to avoid default in these circumstances. Specifically, through § 8.01-654.2, an individual whose habeas petition is still pending as of April 29, 2003, may raise a mental retardation claim as a matter of right without regard to any earlier failure to seek leave to amend his petition under Rule 1:8. See Va.Code Ann. 8.01-654.2. Thus, § 8.01-654.2 faults no death-sentenced prisoner for failing to attempt to raise a claim of mental retardation between the June 20, 2002 decision date of Atkins and the April 29, 2003 effective date of the statute. The fact that the Virginia General Assembly created this new procedure to add mental retardation claims suggests that the legislature did not expect that petitioners would have already used Rule 1:8 for that purpose, let alone that the General Assembly had any intent to penalize them for failing to employ it. The majority’s approach is therefore inconsistent with Virginia’s treatment of other Atkins claimants whose petitions were pending when Atkins was decided.
For these reasons, I would hold that Hedrick’s Atkins claim is exhausted, but not defaulted. As such, there is no doctrine that precludes federal review. To the contrary, Virginia has indicated that such claims should be heard and that federal court is the appropriate forum. We thus best respect Virginia law and the interests of justice by reaching the merits of Hedrick’s claim. Therefore, I respectfully dissent from the majority’s conclusion that Hedrick’s Atkins claim is procedurally barred.
B.
In the alternative, the majority holds that Hedrick’s claim that he is mentally retarded fails because he has not met his evidentiary burden on the merits. Because of the recent decision in Walton v. Johnson, 440 F.3d 160 , 2006 WL 561492 (4th Cir. March 9, 2006) (en banc), I must concur that Hedrick’s claim must be dismissed. I am concerned, however, that this precedent prevents potentially viable claims from development and consideration in federal court.
*372 Under Walton , it is not enough for a petitioner claiming that he is mentally retarded to produce an IQ score that is within the standard error of measurement of scores indicative of mental retardation. See id. at *13. Rather, the petitioner must support his allegation with a mental health expert’s opinion that the standard error of measurement should be applied to lower his IQ score. See id. Thus, even where a petitioner has had no opportunity to develop the factual basis for his claim in state court, he must marshal expert support for an apparently viable claim even at the motion to dismiss stage.
I concurred with the dissent in Walton in finding no basis in Virginia law or elsewhere for this heightened evidentiary hurdle. See id. at *25 n. 5 (Wilkins, C.J., dissenting) (dissenting for the reasons stated in Judge Motz’s panel opinion in Walton v. Johnson, 407 F.3d 285, 294-97 (4th Cir.2005)). In addition, Hedrick’s case illustrates my concern with the Walton rule. Hedrick’s IQ score of 76 is the same score received by the Virginia petitioner in Walker v. True, 399 F.3d 315, 322 (4th Cir.2005). In Walker , we recognized that an IQ score of 76 can support a claim of mental retardation and therefore ordered an evidentiary hearing. Id. at 322-23 . In that case, the petitioner had produced expert opinions stating that the standard error of measurement and the Flynn Effect should apply to lower his score to 70 or below. Id. Here, Hedrick requested expert assistance and an eviden-tiary hearing in his petition to the district court to similarly support and develop his claim, but has received neither. 3 As a result, Hedrick has not yet been able to proffer an appropriate level of manipulation based on the standard error of measurement, or yet been able to determine the applicability of the Flynn Effect, which could reduce his IQ score to 70 or below.
Because Hedrick has not produced expert support at this stage, Walton requires that Hedrick’s claim be dismissed. Although I am bound by this precedent, I find it troubling that despite the fact that Walker and Hedrick are from the same state and have the same IQ, Hedrick’s allegations of mental retardation are found to lack merit essentially for his failure to prove them at this stage. Hedrick seeks only to develop and be heard on what is, under Walker , a demonstrably colorable claim. The potential exists for great and irreversible harm in denying him that opportunity, for in death penalty cases, the results of such decisions are final.
Under Walker , it is clear that Hedrick could be mentally retarded. As a result of today’s decision, we allow the execution of a man whose death sentence might be unconstitutional without a full and fair consideration of his claim. Although the manifest unfairness of this result gives me great concern, I am bound by Walton to concur in the judgment.
. In the petition, he requested both an eviden-tiary hearing and the court’s assistance in obtaining an expert assessment of his mental state.
. Hedrick appears to be the only death-sentenced Virginia prisoner whose Virginia habe-as petition was pending when Atkins was decided, but whose proceedings were complete by the April 29, 2003 effective date of the statute.
. Section 848(q) of Title 21 of the U.S.Code provides that in capital habeas cases, the court may authorize investigative and expert services that are "reasonably necessary for the representation of the defendant” and order the payment of fees and expenses therefor. 21 U.S.C. 848(q)(9). Likewise, Virginia law would require court appointment of a qualified expert to assess whether or not the defendant is mentally retarded where a defendant with a non-frivolous mental retardation claim is unable to afford such expert assistance. Va.Code Ann. 19.2-264.3:1.2.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498816. Public record. Not legal advice.