Reply Brief — Billy Daniel Raulerson, Jr., Petitioner v. Warden, Georgia Diagnostic and Classification Prison

No. 19-941

IN THE

Supreme Court of the United States

_________

BILLY DANIEL RAULERSON, JR.,

Petitioner,

v.

WARDEN,

Respondent.

________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

________

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

________

DAVID W. DEBRUIN

Counsel of Record

ADRIENNE LEE BENSON*

FAARIS AKREMI*

BRADLEY D. POUGH

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6015

ddebruin@jenner.com

*Admitted only in New York and

California respectively. Not admitted in

the District of Columbia. Practicing

under the supervision of the partnership

of Jenner & Block LLP.

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTRODUCTION ............................................................. 1

ARGUMENT ...................................................................... 2

I.

II.

The Georgia Supreme Court Decision Is

Contrary To And Unreasonably Applies

Cooper. ..................................................................... 2

A.

Cooper Was Clearly Established

Federal Law Before The State

Court Decision. ........................................... 2

B.

The State Court Decision Is

Contrary To Cooper. .................................. 3

C.

The

State

Court

Decision

Unreasonably Applies Cooper. ................. 4

Georgia’s Failure To Apply Cooper

Eliminates The Atkins Right In That

State. ........................................................................ 8

A.

Georgia’s Procedures Are Not

Comparably

Favorable

To

Defendants................................................... 8

B.

The State Misconstrues The

Significance Of The Record....................... 9

C.

Petitioner Did Not Fail To Exhaust

His Claim. .................................................... 9

D.

ii

The

State’s

Suggestion

Of

Harmless Error Is Incorrect. ................. 10

CONCLUSION ................................................................ 12

iii

TABLE OF AUTHORITIES

CASES

Addington v. Texas, 441 U.S. 418 (1979) ..................... 9

Atkins v. Virginia, 536 U.S. 304 (2002) ....................... 6

Bailey v. Alabama, 219 U.S. 219 (1911) ...................... 7

Brecht v. Abrahamson, 507 U.S. 619 (1993).............. 10

Cooper v. Oklahoma, 517 U.S. 348 (1996) ........ passim

Davis v. Ayala, 135 S. Ct. 2187 (2015) ....................... 10

Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989).............. 12

Ford v. Wainwright, 477 U.S. 399 (1986)..................... 7

Hall v. Florida, 572 U.S. 701 (2014) ............................. 2

Head v. Hill, 587 S.E.2d 613 (Ga. 2003) ....................... 3

Hill v. Humphrey, 662 F.3d 1335 (11th Cir.

2011) ............................................................................ 9

Lafler v. Cooper, 566 U.S. 156 (2012) ........................... 3

Leland v. Oregon, 343 U.S. 790 (1952) ......................... 3

McGregor v. Gibson, 248 F.3d 946 (10th Cir.

2001) .......................................................................... 12

McWilliams v. Dunn, 137 S. Ct. 1790 (2017) ............ 11

Medina v. California, 505 U.S. 437 (1992) .............. 4, 5

Moore v. Texas, 137 S. Ct. 1039 (2017)......................... 2

Panetti v. Quarterman, 551 U.S. 930 (2007) ............... 7

Pruitt v. State, 834 N.E.2d 90 (Ind. 2005) ................... 8

Speiser v. Randall, 357 U.S. 513 (1958) ................... 5, 6

iv

Timbs v. Indiana, 139 S. Ct. 682 (2019)....................... 6

Williams v. Taylor, 529 U.S. 362 (2000) ...................... 3

STATUTES

28 U.S.C. § 2254(d)(1) ..................................................... 3

1

INTRODUCTION

In its Brief in Opposition (“BIO”), the State does not

defend the merits of requiring a capital defendant to

prove intellectual disability beyond a reasonable doubt.

Nor does the State deny that, under this burden that

Georgia alone imposes, not a single defendant has been

able to establish intellectual disability at trial,

essentially rendering Atkins a nullity in Georgia.

Instead, the State invokes AEDPA. But AEDPA

provides no deference to a state court decision that not

only applies the wrong rule, but also contradicts and

unreasonably applies the clearly established holdings of

this Court.

With no AEDPA deference due, this Court faces a

question of utmost importance, on which other state

courts of last resort have disagreed with Georgia,

regarding the import of this Court’s decision in Cooper.

The choice is stark: this Court either will allow Georgia

to continue to flout Cooper and Atkins by executing

persons with intellectual disabilities, or it will grant

review to address Georgia’s unique and insurmountable

standard. This case is about due process of law, and

ensuring that our Nation’s most severe punishment is

not arbitrarily and unconstitutionally imposed in one

single state on persons, like Petitioner, who have an

intellectual disability but are denied a meaningful

opportunity to prove it.

2

ARGUMENT

I.

The Georgia Supreme Court Decision Is Contrary

To And Unreasonably Applies Cooper.

The State accuses Petitioner of arguing that the

state court decision at issue is both contrary to and an

unreasonable application of Cooper v. Oklahoma, 517

U.S. 348 (1996). E.g., BIO at 13. The State is correct.

As the Petition explains, AEDPA is no impediment to

this Court’s review for both reasons. Pet. 12-18, 30-33.

A. Cooper Was Clearly Established Federal Law

Before The State Court Decision.

The State does not contest that the due process

requirements of Cooper were clearly established at the

time of the Georgia court decision at issue. Cooper sets

forth the clearly established rule the Georgia court failed

to follow and on which Petitioner has consistently relied.

The State unsuccessfully attempts to portray the

Petition as dependent instead upon the rules of Hall v.

Florida, 572 U.S. 701 (2014), and Moore v. Texas, 137 S.

Ct. 1039 (2017). BIO at 25-26. Not so. Petitioner does

not argue that Hall and Moore I were “clearly

established law” at the time of the state court’s decision.

Rather, those cases illustrate this Court’s recognition of

the importance of rejecting attempts by states to

unconstitutionally narrow the Atkins right. Pet. at 20-

3

23. Georgia’s standard simply uses an unconstitutional

procedural rule to reach a similar result. Id. at 23-25.

B. The State Court Decision Is Contrary To

Cooper.

The state court decision is “contrary to” Cooper in

two respects. 28 U.S.C. § 2254(d)(1).

First, the decision applied the wrong rule. See

Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion for

the Court by O’Connor, J.). Petitioner’s due process

claim was governed by this Court’s decision in Cooper.

Instead, the state habeas court relied on Head v. Hill,

587 S.E.2d 613 (Ga. 2003), which identified the relevant

precedent as Leland v. Oregon, 343 U.S. 790 (1952). But

Leland addressed a state statutory right with a burden

of proof unrestricted by constitutional due process

requirements. Cf. Cooper, 517 U.S. at 367-68 (explaining

this distinction). The failure in Head to apply this

Court’s clearly established precedent in Cooper is alone

sufficient to deny AEDPA deference. See Lafler v.

Cooper, 566 U.S. 156, 173 (2012).

Second, the court’s conclusion in Head that a state

may require a capital defendant to prove intellectual

disability beyond a reasonable doubt directly contradicts

Cooper’s rule. The State attempts to distinguish this

case by asserting that “Cooper addressed a clear-andconvincing burden of proof for a defendant claiming to

be incompetent to stand trial; this claim concerns a

beyond-a-reasonable-doubt burden of proof for

determining whether a defendant is eligible for a death

sentence based upon a plea of guilty-but-intellectuallydisabled.” BIO at 16. The State is correct, but this

hardly helps its position. Both Cooper and the claim at

4

issue here involve proof of an intellectual impairment.

And the Georgia Supreme Court went well beyond the

bounds of Cooper on both the dimensions on which the

State’s distinction rests.

Cooper held that the

Constitution does not permit a state to require a

defendant to prove mental incompetency, which

concerns the fairness of trial proceedings, by clear and

convincing evidence. Cooper, 517 U.S. at 350-56. In this

case, the Georgia Supreme Court incongruously held

that a defendant not only may be required to stand trial,

but may be executed, if he fails to prove a similar

condition of intellectual disability beyond a reasonable

doubt. Such clear contradiction of this Court’s precedent

is not entitled to AEDPA deference. Pet. 12-14.

C. The State Court

Applies Cooper.

Decision

Unreasonably

The state court decision in Head also involves, at a

minimum, an “unreasonable application” of Cooper.

Parroting the Eleventh Circuit’s faulty logic, the

State seeks to avoid that conclusion by contorting

Cooper’s historical practice analysis. Cooper looked to

historical practice as “probative of whether a procedural

rule [could] be characterized as fundamental.” Cooper,

517 U.S. at 356 (emphasis added) (quoting Medina v.

California, 505 U.S. 437, 446 (1992)). The Court stressed

that there was “no indication that the rule Oklahoma

seeks to defend ha[d] any roots in prior practice.” Id.

(emphasis added). Despite the clarity of the Court’s

analysis, the State contends the Court in fact was

concerned with whether the constitutional right at

issue, not the state rule burdening that right, was

longstanding. That reading represents an unreasonable

5

application of this Court’s decision in Cooper and ignores

clearly established Supreme Court precedent that came

before it.

In Cooper, this Court first asked whether

Oklahoma’s requirement that a defendant prove

competence by clear and convincing evidence

“offend[ed] some principle of justice” that “ranked as

fundamental.” Id. at 355 (quoting Medina, 505 U.S. at

449). It concluded that it did. Id. at 356. Tellingly, the

State does not point to anything in Cooper indicating

that the age of a constitutional right determines whether

it is “fundamental.” Nor could it. Cooper affirmed “the

existence of the fundamental right that the petitioner

invoke[d]” without reference to “history,” “roots,” or

“prior practice.” Id. at 354. It recognized that the

competency right arises out of the Due Process Clause,

emphasizing that “the significance of this right [is not]

open to dispute” because it is essential to a fair trial. Id.

(citing Drope v. Missouri, 420 U.S. 162, 171-72

(Kennedy, J., concurring in the judgment)).

Nor do the cases on which Cooper relied provide any

support for the notion that the age of the right at issue

was material to the decision. For instance, in Medina,

the Court stressed that “[h]istorical practice is probative

of whether a procedural rule can be characterized as

fundamental.” 505 U.S. at 446 (emphasis added). The

Court then explained that English common-law and

early American decisions offered little guidance

regarding whether California’s procedural rule had

roots in prior practice, because “there is no settled

tradition on the proper allocation of the burden of proof

in a [competency] proceeding.” Id. Similarly, in Speiser

6

v. Randall, the Court described how burden-shifting

rules squared with common-law tradition. 357 U.S. 513,

523-24 (1958). But in concluding that the California rule

at issue violated due process by abridging appellants’

First Amendment rights, this Court did not discuss

whether the right to free speech had historical “roots.”

The Court instead acknowledged that, as constitutional

rights, appellants’ free speech interests were of such

“transcendent value” that California could not abridge

them through an onerous burden of proof. Id. at 526.

As in Cooper, Medina, and Speiser, so too here. The

Atkins right “ranks as fundamental” not because of its

age or roots in prior practice, but because it derives from

the Eighth Amendment and concerns the fundamental

fairness of whether an individual may be executed.

Atkins v. Virginia, 536 U.S. 304, 320-21 (2002); Cooper,

517 U.S. at 354. Indeed, taken to its logical end, the

State’s insistence that the Atkins right does not “rank as

fundamental” because it is “newly created” would

compel the same conclusion in nearly all cases where a

state attempts to burden an Eighth Amendment right

through onerous procedures. Yet notwithstanding the

Eighth Amendment’s evolving nature, this Court has

consistently characterized the rights it entails as

“fundamental” and “deeply rooted in this Nation’s

history and tradition.” Timbs v. Indiana, 139 S. Ct. 682,

687 (2019).

Thus, the decision of the state court involves an

unreasonable application of Cooper for two reasons: one,

Cooper never wavered in its focus on whether “the rule

Oklahoma seeks to defend” (rather than the

constitutional right at issue) had “roots” in historical or

7

contemporary practice, 517 U.S. at 356-62; and two, even

if the right at issue must have historical roots, this Court

has made clear that Eighth Amendment rights, despite

their evolving character, nonetheless are fundamental

and deeply rooted in this Nation’s history and tradition.

The State also seeks AEDPA deference because

Atkins “le[ft] to the states the task of developing

appropriate ways to enforce the constitutional

restriction.”

536 U.S. at 317 (quoting Ford v.

Wainwright, 477 U.S. 399, 416 (1986)). But this proves

too much. Certainly, in making this statement, the

Court did not wipe out the entirety of its established due

process jurisprudence, including prior decisions like

Cooper. Indeed, this Court has already rejected a

similar claim. Even though this Court in Ford left states

“the task of developing appropriate ways to enforce the

constitutional restriction” on executing one who is

insane, 477 U.S. at 413-16, the Court nevertheless later

found that Ford “clearly established” that “a prisoner

must be accorded an ‘opportunity to be heard’” and a

“fair hearing” on the question of sanity. Panetti v.

Quarterman, 551 U.S. 930, 949 (2007). So too here: Even

though Atkins “le[ft] to the states” the task of

developing procedures for determining intellectual

disability, that did not leave Georgia free to disregard

and unreasonably apply the clearly established due

process principles set forth in Cooper.

This Court has long held that a state cannot

undermine constitutional rights with procedure “any

more than it can . . . violate[ them] by direct enactment.”

Bailey v. Alabama, 219 U.S. 219, 239 (1911). As

recognized by several other state courts of last resort,

8

Cooper forecloses the use of a heightened burden of

proof for Atkins claims. Pruitt v. State, 834 N.E.2d 90,

101 (Ind. 2005) (“The reasoning of Cooper in finding a

clear and convincing standard unconstitutional as to

incompetency is directly applicable to the issue of mental

retardation.”); Pet. 14-17 (collecting cases).

II. Georgia’s Failure To Apply Cooper Eliminates

The Atkins Right In That State.

A. Georgia’s Procedures Are Not Comparably

Favorable To Defendants.

Georgia’s burden of proof effectively eliminates the

right of defendants with an intellectual disability not to

be executed. Pet. 26-27. The State responds, incredibly,

that Georgia’s procedures for determining intellectual

disability are in fact “far less constrictive than

procedures of other states” and “ensure . . .

intellectually disabled” defendants will not be put to

death. BIO at 22 n.7, 23.

But the State cannot deny that, despite these

supposed protections, “not a single capital defendant in

Georgia has been able to establish intellectual disability

when the matter has been disputed.” Pet. App. 41a.

(Jordan, J., dissenting in part and concurring in part). If

anything, the State’s litany of other procedures only

underscores that its reasonable doubt standard is

dispositive of any defendant’s Atkins claim. Although

there is virtually no limit to the evidence a Georgia

defendant can present in support of an Atkins claim, BIO

at 23, not a single defendant has been able to

demonstrate intellectual disability beyond a reasonable

doubt at trial. Thus, the State only proves that it is

impossible, given the nature of intellectual disability

9

diagnosis, for most defendants to satisfy that standard—

no matter the evidence presented. See Pet. at 28-30;

Addington v. Texas, 441 U.S. 418, 430 (1979).

B. The State Misconstrues The Significance Of

The Record.

Rather than address the historical experience in

Georgia, the State tries to prevent the Court from

considering it, suggesting it is not properly in the record.

The State is wrong. District Judge Alaimo properly

admitted this evidence, which came directly from the

State. But more important, even if it had never been

introduced into the record, the State misconstrues the

significance of the information. Petitioner does not

contend the Georgia decision in Head is wrong because

of this historical evidence. Head was wrongly decided

because of Cooper. The historical experience simply

contextualizes the undeniable real-world effect of the

Georgia court’s error:

By requiring intellectual

disability to be proven beyond a reasonable doubt, a

standard even more demanding than that struck down

in Cooper, Georgia has erected an insurmountable

procedural barrier that eviscerates a fundamental

constitutional right.1

C. Petitioner Did Not Fail To Exhaust His Claim.

The State makes a passing reference in its

1

The State’s additional assertion that this Court “has denied . . . a

petition on the same issue raised here,” BIO at 11, is incorrect. As

Judge Tjoflat explained in Hill v. Humphrey, 662 F.3d 1335 (11th

Cir. 2011) (en banc), that case did not properly present a due process

challenge to Georgia’s burden of proof but stated claims only under

the Eighth Amendment. See Hill, 662 F.3d at 1362 (Tjoflat, J.,

concurring).

10

background statement, but does not argue, that

Petitioner failed to exhaust his due process claim in state

court. BIO at 8 & n.3. This suggestion has no merit; the

Eleventh Circuit did not find a failure to exhaust. Id. at

8 n.3. And the State does not argue non-exhaustion here

because it clearly waived the argument below. In its

Answer and brief on procedural default in the District

Court, the State listed six claims as being procedurally

defaulted—but not Petitioner’s due process claim.

Suppl. App. 3-6, 153.

The State affirmatively

characterized the due process claim as properly before

the District Court—not once, but repeatedly. Id. at 17

& n.2, 153 & n.3, 174; see also id. at 181, 185-92 (due

process claim among “Claims On The Merits Before This

Court”). The State thus waived this argument under 28

U.S.C. § 2254(b)(3).

D. The State’s Suggestion Of Harmless Error Is

Incorrect.

The State contends the Petition should be denied

because “the choice of burden of proof for determining

intellectual disability is not dispositive in this case.” BIO

at 28. The State fails to even address, however, the

relevant legal standard for determining whether the due

process violation asserted by Petitioner was

constitutionally harmless.

“[T]he standard for determining whether habeas

relief must be granted is whether . . . the error ‘had

substantial and injurious effect or influence in

determining the jury’s verdict.’” Brecht v. Abrahamson,

507 U.S. 619, 622 (1993) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)). The government bears

the burden of “demonstrat[ing] harmlessness.” Davis v.

11

Ayala, 135 S. Ct. 2187, 2197 (2015). The State does not

address this standard, and it cannot show that Georgia’s

unique burden of proof did not have “a substantial and

injurious effect or influence” on the jury’s verdict on

Petitioner’s intellectual disability. As Petitioner has

shown, the prosecutor repeatedly argued at trial that

Petitioner’s intellectual disability claim failed because he

could not prove it beyond a reasonable doubt despite the

substantial evidence of intellectual disability before the

jury. Pet. 6-8, 23-25. But critically, this Court need not

address that issue now, or if review is granted. Because

it is “a court of review, not of first view,” McWilliams v.

Dunn, 137 S. Ct. 1790, 1801 (2017), the Court may leave

that issue to the lower courts to decide in the first

instance.

The State’s argument relies on a different issue

addressed by the Eleventh Circuit. The panel majority

rejected a claim that Petitioner was “actually innocent”

of the death penalty because he has intellectual

disability. Pet App. at 29a-40a. The panel ruled that

“[b]ecause the state courts determined that Raulerson is

not intellectually disabled and that determination is

entitled to be presumed correct, he bears ‘the burden of

rebutting the presumption of correctness by clear and

convincing evidence.’” Id. at 33a (emphasis added)

(quoting 28 U.S.C. § 2254(e)(1)). The panel held

Petitioner failed to rebut this “presumption of

12

correctness” by clear and convincing evidence. Id. at

36a.2

A state court determination is not entitled to the

presumption of correctness, however, if the court

applied an erroneous legal standard. See, e.g., McGregor

v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001) (en banc)

(“When a criminal defendant’s competency was

determined under an unconstitutional burden of proof,

the prior competency determination merits no

presumption of correctness.”).

If this Court finds that Georgia’s burden of proof for

intellectual disability violates due process as clearly

established in Cooper, Petitioner is entitled to a new

determination of the issue under an appropriate burden

of proof. Whether that determination would be made in

federal court or remanded to the state court, and what

burden of proof would apply, are matters to be

addressed on remand.

Significantly, the Georgia

Supreme Court previously held that an intellectual

disability claim that arose before the State’s heightened

burden was enacted should be resolved under a

preponderance standard. Fleming v. Zant, 386 S.E.2d

339 (Ga. 1989). In any event, nothing in the panel

decision of the Eleventh Circuit establishes that the

2

The panel expressly and correctly found that the only

determination on the merits of Petitioner’s intellectual disability

claim was made by the jury at trial, under the beyond-a-reasonable

doubt standard; the state habeas court found the intellectual

disability claim to be “res judicata” and the court did not make an

independent determination in state habeas or apply a different

standard after Atkins. Pet. App. 32a-33a.

13

burden of proof is immaterial to Petitioner’s Atkins

claim.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVID W. DEBRUIN

Counsel of Record

ADRIENNE LEE BENSON*

FAARIS AKREMI*

BRADLEY D. POUGH

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6015

ddebruin@jenner.com

*Admitted only in New York and

California respectively. Not admitted in

the District of Columbia. Practicing

under the supervision of the partnership

of Jenner & Block LLP.