Petition for Writ of Certiorari — Danny Lee Hill, Petitioner v. Tim Shoop, Warden

Supreme Court briefNov 18, 2021

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CASE NO. ______

CAPITAL CASE

IN THE UNITED STATES SUPREME COURT

DANNY LEE HILL,

Petitioner,

TIM SHOOP, WARDEN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

STEPHEN C. NEWMAN

Federal Public Defender

Ohio Bar: 0051928

VICKI RUTH ADAMS WERNEKE

Assistant Federal Public Defender

Ohio Bar: 0088560

*COUNSEL OF RECORD

Office of the Federal Public Defender

1660 West Second Street, Suite 750

Cleveland, Ohio 44113

(216) 522-4856

(216) 522-1951 (facsimile)

vicki_werneke@fd.org

Counsel for Petitioner Danny Lee Hill

QUESTIONS PRESENTED FOR REVIEW

Whether it constitutes an unreasonable determination of the facts under 28 U.S.C.

§ 2254(d)(2) when a state court decision rejecting an Atkins v. Virginia, 536 U.S. 304

(2002) claim of intellectual disability does so by focusing on the individual’s “present

functioning” in the confines of a prison environment, effectively discounting

overwhelming historical record evidence and multiple diagnoses of intellectual disability.

II.

Whether a state court unreasonably applies Atkins when, contrary to the clinical

standards in existence at the time adopted as controlling under state law for resolving

claims of intellectual disability brought by death sentenced inmates, it treats the primary

inquiry as the individual’s “present functioning” in a prison environment?

III.

Whether it is a miscarriage of justice and a constitutional violation to allow the

death sentence to stand when the Warden and the Sixth Circuit Court of Appeals agree Mr.

Hill is intellectually disabled?

List of All Parties to the Proceeding

The parties are the same as those listed in the caption.

iii

Corporate Disclosure

There are no corporate disclosures necessary for this case.

List of Proceedings

1. State of Ohio v. Danny Lee Hill, Case No. 85-CR-371 (Trumbull County Court of Common

Pleas). Charges filed September 17, 1985.

a. Aggravated Murder in violation of Ohio Rev. Code §2903.01(B)

b. Kidnapping in violation of Ohio Rev. Code §2905.01(A)

c. Rape in violation of Ohio Rev. Code §2907.02(A)(1)(3)

d. Aggravated Arson in violation of Ohio Rev. Code § 2909.02

e. Aggravated Robbery in violation of Ohio Rev. Code § 2911.01

f. Felonious Sexual Penetration in violation of Ohio Rev. Code §2907.12(A)(1)(3)

g. Aggravating circumstances of kidnapping, rape, aggravated arson and aggravated

robbery, Ohio Rev. Code §2929.04(A)(7)

h. Trial: January 21, 1986, before a three-judge panel

i. Guilty verdict: February 26, 1986, on all charges except aggravated robbery

j. Mitigation trial: February 26 to March 5, 1986

k. Death sentence on aggravated murder; 10-25 years’ imprisonment for Arson and

Kidnapping, life imprisonment for Rape and Felonious Sexual Penetration.

2. Direct Appeal:

a. State v. Oho v. Danny Lee Hill, Case No. 3720, 3745 (11th District Court of

Appeals)

i. Convictions and sentences affirmed November 27, 1989

ii. Case citation: 1989 WL 142781 unpublished

b. State of Ohio v. Danny Lee Hill, Case No. 1990-0177 (Ohio Supreme Court)

i. Convictions and sentences affirmed August 12, 1992

ii. Case citation: 64 Ohio St. 3d 313, 595 N.E.2d 884 (Ohio 1992)

3. Post Conviction:

a. Petition to Vacate or Set Aside Judgment and/or Sentence Pursuant to Ohio Revised

Code §2953.23

i. Filed with Trumbull County Court of Common Pleas on December 21, 1993

ii. Denied by the trial court on July 18, 1994

b. State of Ohio v. Danny Lee Hill, Case No 94-T-5116 (11th District Court of

Appeals)

i. Denial of post conviction relief affirmed on June 16, 1995.

ii. Case citation: 1995 WL 418683

c. Ohio Supreme Court declined to accept jurisdiction on November 15, 1995, State

of Ohio v. Danny Hill, Case No. 1995-1577.

4. Habeas Proceedings:

a. Hill v. Anderson, Case No. 96-CV-795, United States District Court for the

Northern District of Ohio.

b. Habeas petition filed December 2, 1996.

c. Habeas petition denied September 29, 1999.

d. Hill v. Anderson, Case No. 99-4317, Sixth Circuit Court of Appeals.

i. Sixth Circuit held appeal in abeyance and remanded case to the state court

for exhaustion of issues under Atkins v. Virginia.

ii. Case citation: Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002)

5. Atkins Proceedings in State court:

a. Petition to Vacate the Death Sentence under Atkins filed on November 27, 2002

b. Atkins Petition denied on February 15, 2006

c. Denial affirmed on appeal by 11th District Court of Appeals on July 11, 2008, with

one judge dissenting. State of Ohio v. Danny Lee Hill, Case No. 2006-T-0039, 894

N.E.2d 108 (Ohio Ct. App. 2008).

d. Ohio Supreme Court declined to accept jurisdiction on August 26, 2009. State of

Ohio v. Danny Lee Hill, Case No. 2008-1686, 912 N.E.2d 107 (Ohio 2009 table).

6. Atkins Proceedings in federal district court, Hill v. Anderson, Case No. 96-CV-795:

a. Atkins Habeas Petition filed March 15, 2010.

b. Habeas Petition denied by the federal district court on June 25, 2014.

7. Habeas Appeal reopened in Sixth Circuit Court of Appeals

a. Previous habeas appeal and Atkins appeal were combined, Hill v. Anderson, Case

No. 99-4317/14-3718

b. February 2, 2018: Panel decision granting Atkins relief, Hill v. Anderson, 881 F.3d

483 (6th Cir. 2018).

8. United States Supreme Court review of Sixth Circuit Court of Appeals decision

a. Case No. 18-56

b. Certiorari granted by per curium opinion and remanded to the Sixth Circuit Court

of Appeals for further review on January 7, 2019. Shoop v. Hill, 586 U.S. ___, 139

S.Ct. 504 (2019).

9. Return to the Sixth Circuit Court of Appeals, Hill v. Anderson, Case No. 99-4317/14-3718

a. Supplemental Briefs filed on April 11, 2019, June 11, 2019, July 2, 2019

b. Oral argument held December 5, 2019.

c. Supplemental Brief filed on December 12, 2019.

d. May 20, 2020: District Court denial of habeas relief regards to Atkins is reversed

and remanded Hill v. Anderson, 960 F.3d 260 (6th Cir. 2020).

e. Supplemental brief filed on August 24, 2020.

f. Amicus Brief filed by the Kentucky Protection and Advocacy, Disability Rights

Ohio, The Arc of Ohio, Disability Rights Tennessee, and Disability Rights

Michigan on October 14, 2020.

g. En Banc Argument on December 2, 2020.

h. August 20, 2021: Denial of Writ of Habeas Corpus is affirmed. Hill v. Shoop, No.

99-4317/14-3718, 2021 U.S. App. (6th Cir. Aug. 20, 2021).

TABLE OF CONTENTS

Pages

Question Presented for Review ....................................................................................................ii

List of All Parties to the Proceedings ..........................................................................................iii

Corporate Disclosure ...................................................................................................................iv

List of Proceedings ......................................................................................................................v

Table of Contents .........................................................................................................................vii

Appendix ......................................................................................................................................viii

Table of Authorities .....................................................................................................................ix

Citations to the Official and Unofficial Reports ..........................................................................xi

Jurisdictional Statement ...............................................................................................................1

Constitutional and Statutory Provisions ......................................................................................2

Introduction and Procedural History ................................................................................3

II.

Statement of Facts ............................................................................................................4

III.

Mr. Hill Was Repeatedly Identified As Intellectually Disabled In Multiple

Evaluations And Conducted By Qualified Psychologists Prior To The Supreme

Court’s Decision Atkins V. Virginia.....................................................................4

The State Court Rejected Mr. Hill’s Atkins Claim ..............................................11

The Atkins Hearing ..................................................................................11

The Trial Court’s Decision ......................................................................14

The Ohio Court Of Appeals Decision ......................................................17

Why It Should Be Granted...............................................................................................19

28 U.S.C. § 2254(d)(2) Is Satisfied ......................................................................19

The State Court Unreasonably Determined The Record Was A “Thin

Reed” Because Of Mr. Hill’s Failure To Cooperate. ...............................21

vii

IV.

The State Court Focused On Irrelevant Information And Mischaracterized

The Record ...............................................................................................25

Public School Records .................................................................25

ii.

Mr. Hill’s Trial For The Murder Or Raymond Fife .....................27

iii.

Death Row Records .....................................................................28

iv.

Mr. Hill’s Appearances In Court. ................................................30

The State Court Unreasonably Concluded That Mr. Hill Failed To

Establish Onset By Age Eighteen ............................................................31

Section 2254(D)(2) Is Satisfied. ..............................................................32

The Evidence Overwhelmingly Shows Danny Hill Is A Person With Intellectually

Disability. .............................................................................................................34

28 U.S.C. § 2254(d)(2) Is Satisfied .....................................................................35

Failure To Vacate Mr. Hills’ Death Sentence Is A Fundamental Miscarriage Of

Justice...................................................................................................................36

Conclusion .......................................................................................................................37

APPENDIX

Volume I................................................................................................................................. 1-122

A-1 2006 Trial Court Opinion .......................................................................................................1

A-2 11th District Court of Appeals Opinion.................................................................................86

Volume II ............................................................................................................................ 123-264

A-3 2014 District Court Opinion .................................................................................................123

A-4 2018 Sixth Circuit Court of Appeals Opinion ......................................................................224

Volume III........................................................................................................................... 265-390

A-5 2020 Sixth Circuit Court of Appeals Opinion ......................................................................265

A-6 2021 Sixth Circuit Court of Appeals Opinion ......................................................................310

viii

TABLE OF AUTHORITIES

Cases

Pages

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

Brumfield v. Cain, 576 U.S. 305 S. Ct. 2269 (2015) .................................................................... 30

Burgess v. Commissioner, Alabama Dept. of Corr., 723 F.3d 1308 (11th Cir. 2013) ................. 31

Ex Parte Briseno, 135 S.W. 3d 1 (2004) ...................................................................................... 13

Ford v. Wainwright, 477 U.S. 399 (1986) ...................................................................................... 2

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

Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018) ...................................................................... passim

Hill v. Anderson, 960 F.3d 260 (6th Cir. 2020) .................................................................... passim

Hill v. Anderson, 964 F.3d 590 (6th Cir. 2020) ..................................................................... passim

Hill v. Anderson, 2014 WL 2890416 (N.D. Ohio June 25, 2014) ......................................... passim

Hill v. Shoop, 11 F.4th 374 (6th Cir. 2021) ............................................................................ passim

Jones v. Murphy, 694 F.3d 225 (2d Cir. 2012) ............................................................................. 31

Julian v. Bartley, 495 F.3d 487 (7th Cir. 2007) ............................................................................ 31

Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) ................................................................................ 31

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................................. 31

Miller-El v. Dretke, 545 U.S. 231 (2005) ..................................................................................... 31

Moore v. Texas, 581 U.S. ___, 137 S. Ct. 1986 (2017) .................................................................. 1

Sawyer v. Whitley, 505 U.S. 333 (1992) ....................................................................................... 34

Shoop v. Hill, 139 S.Ct. 504 (2019) ................................................................................................ 1

State v. Ford, 140 N.E.3d 616, 654 (Ohio 2019) ............................................................................ 2

State v. Hill, 1989 WL 142761 (Ohio App. 11 Dist. 1989) ................................................... passim

State v. Hill, 595 N.E.2d 884 (Ohio 1992)............................................................................. passim

State v. Hill, 894 N.E.2d 108 (Ohio App. 11 Dist. 2008) ...................................................... passim

State v. Lott, 779 N.E. 2d 1011 (Ohio 2002) ......................................................................... passim

Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015) ................................................................. 2, 33

Statutes

28 U.S.C. § 2254(a). ..................................................................................................................... 30

28 U.S.C. § 2254(d)(1) ...................................................................................................... 33, 34, 35

28 U.S.C. § 2254(d)(2) .......................................................................................................... passim

O.R.C. §2953.21(C). ..................................................................................................................... 10

Other Authorities

1992 AAMR Manual ............................................................................................................. passim

AAMR User’s Guide ............................................................................................................. passim

DSM-IV-TR 44 ............................................................................................................................. 25

Constitutional Provisions

U.S. CONST. amend. V .................................................................................................................... 2

U.S. CONST. amend. VI ................................................................................................................... 2

U.S. CONST. amend. VIII .................................................................................................................2

U.S. CONST. amend. XI ....................................................................................................................2

CITATIONS TO THE OFFICIAL AND UNOFFICIAL REPORTS

The trial court denied the Petition for Post Conviction Relief on February 15, 2006, in an

unreported decision. State of Ohio v. Danny Lee Hill, Case No. 85-CR-317 Judgment Entry

(Appendix A-1).

The Ohio Eleventh District Court of Appeals affirmed in part, revere in part and remand

the matter for resentencing. State of Ohio v. Danny Lee Hill, Case No. 2006-T-0039, 894 N.E.2d

108 (Ohio Ct. App. 2008). (Appendix A-2).

The District Court of the Northern District of Ohio denied the Writ of Habeas Corpus on

June 25, 2014. Hill v. Anderson, Case No. 96-CV-795 (Appendix A-3).

The Sixth Circuit Court of Appeals reversed the district court’s denial of habeas relief and

remand the petition on February 2, 2018. Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018). (Appendix

A-4)

The Sixth Circuit Court of Appeals reverse the district’s court denial of habeas relief with

regards to Atkins and remand to grant the petition on May 20, 2020. Hill v. Anderson, 960 F.3d

260 (6th Cir. 2020). (Appendix A-5).

The Sixth Circuit Court of Appeals affirm the district court’s denial of habeas relief on

August 20, 2021. Hill v. Shoop, 11 F.4th 374 (6th Cir. 2021). (Appendix A-6).

JURISDICTIONAL STATEMENT

Petitioner Danny Lee Hill timely filed a Petition for Writ of Habeas Corpus in the United

States District Court for the Northern District of Ohio on November 27, 1996. Hill v. Anderson,

Case No. 96-CV-795. The district court denied that petition on September 29, 1999.

Petitioner Hill appealed that decision to the Sixth Circuit Court of Appeals. After this Court

issued Atkins v. Virginia, 536 U.S. 304 (2002), the circuit remanded the case to state court. Hill v.

Anderson, 300 F.3d 679 (6th Cir. 2002).

After exhausting the Atkins claim in state court, Petitioner Danny Lee Hill filed an

Amended Petition for Writ of Habeas Corpus on March 15, 2010, raising the Atkins v. Virginia,

related claims. The district court denied that petition on June 25, 2014.

Petitioner Hill appealed to the Sixth Circuit Court of Appeals. A panel of Sixth Circuit

Court of Appeals reversed the district court’s denial of habeas relief and remanded on February 2,

2018. Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018).

This Court granted the Warden’s petition for writ of certiorari and remanded to the Sixth

Circuit for reconsideration. Shoop v. Hill, 139 S.Ct. 504 (2019).

The panel again reversed the district’s court denial of habeas relief with regards to Atkins

and remand to grant the petition on May 20, 2020. Hill v. Anderson, 960 F.3d 260 (6th Cir. 2020).

The Sixth Circuit Court of Appeals sitting en banc, vacated the panel decisioin, and affirm

the district court’s denial of habeas relief on August 20, 2021. Hill v. Shoop, 11 F.4th 374 (6th Cir.

Aug. 20, 2021.

This Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, Fifth Amendment

“No person shall ... be deprived of life, liberty, or property, without due process of law ...”

U.S. CONST. amend. V.

United States Constitution, Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury….” U.S. CONST. amend. VI.

United States Constitution, Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. CONST. amend. VIII.

United States Constitution, Fourteenth Amendment

“No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection of

the laws.” U.S. CONST. amend. XI.

INTRODUCTION AND PROCEDURAL HISTORY

In Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018), a panel of the Sixth Circuit Court of

Appeals held the Ohio court’s decision rejecting Danny Hill’s claim of intellectual disability under

Atkins v. Virginia, 536 U.S. 304 (2002), involved an unreasonable application of clearly

established federal law under 28 U.S.C. § 2254(d)(1). Although this Court did not opine on Mr.

Hill’s intellectual disability, the Court held the panel’s analysis under section (d)(1) must be

vacated because it rested so “heavily” on Moore v. Texas, 581 U.S. ___, 137 S. Ct. 1986 (2017),

an opinion that indisputably came “years after the decisions of the Ohio courts.” Shoop v. Hill, 139

S.Ct. 504, 507 (2019). The Court instructed the panel on remand to consider whether its conclusion

could be sustained “based strictly on legal rules that were clearly established in the decisions of

this Court at the relevant time.” Id. at 509.

On remand, the panel faithfully followed those instructions and properly concluded that

the Ohio court’s decision was based on multiple unreasonable determinations of the facts in light

of the evidence presented in the State court proceeding. Because section (d)(2) was satisfied, the

panel correctly conducted de novo review and concluded “[t]he evidence that Hill is intellectually

disabled is overwhelming,” and “[n]o person looking at this record could reasonably deny that Hill

is intellectually disabled under Atkins.” Hill v. Anderson, 960 F.3d 260, 265, 281 (6th Cir. 2020).

However, that panel decision was vacated when rehearing en banc was granted. Hill v. Anderson,

964 F.3d 590 (6th Cir. 2020). A divided en banc Sixth Circuit decision (9-7) subsequently affirmed

the denial of habeas relief. Hill v. Shoop, 11 F.4th 374 (6th Cir. 2021).

The Warden, as represented by the Ohio Solicitor General, conceded at oral argument

before the Sixth Circuit that Mr. Hill is intellectually disabled, but still argued that habeas relief

was not warranted.

II.

STATEMENT OF FACTS

Atkins held that the Eighth Amendment “‘places a substantive restriction on the State’s

power to take the life’ of a mentally retarded offender,” but left it to the states to “develop[]

appropriate ways to enforce” this constitutional restriction. 536 U.S. at 321, 317 (quoting Ford v.

Wainwright, 477 U.S. 399, 405 (1986)). 1 The Ohio Supreme Court took up the task of

implementing Atkins’ mandate in State v. Lott, 779 N.E.2d 101, 1014 (Ohio 2002), 2 which

explicitly “adopt[ed] the clinical definitions cited with approval in Atkins.” Williams v. Mitchell,

792 F.3d 606, 616 (6th Cir. 2015). These clinical guidelines provide, among other things, that

intellectual disability consists of three prongs: (1) subaverage intellectual functioning; (2)

significant limitations in adaptive skills; and (3) onset during the developmental period. Lott, 799

N.E.2d at 1014. Thus, when Danny Hill’s Atkins case came before the trial court for adjudication,

the trial court indicated it would, under Lott, follow the substantive standards articulated by the

American Association on Mental Retardation (“AAMR”) and the American Psychiatric

Association (“APA”). But that did not happen.

MR. HILL WAS REPEATEDLY IDENTIFIED AS INTELLECTUALLY DISABLED IN

MULTIPLE EVALUATIONS CONDUCTED BY QUALIFIED PSYCHOLOGISTS PRIOR

TO THE SUPREME COURT’S DECISION IN ATKINS V. VIRGINIA.

Danny Hill was first identified as mentally retarded in kindergarten after his teacher

referred him for testing because he was intellectually slow, immature, and bullied by classmates.

Supplemental Atkins Appendix, RE 97-1, at 61 (hereinafter Supp APX). Karen Weiselberg, a

school psychologist for the Warren City Schools, conducted an evaluation revealing that Danny

The term “intellectual disability” is now the preferred term for (and has the same meaning as)

the Court’s term “mental retardation.” See, e.g., Hall v. Florida, 572 U.S. 701, 704 (2014).

The Ohio Supreme Court overruled State v. Lott, in State v. Ford, 140 N.E.3d 616, 654 (Ohio

2019) because it was “an improper standard for assessing intellectual disability.”

was “a boy whose ability falls within the EMR [Educable Mentally handicapped] classification.”

Supp APX 62. As a result of Weiselberg’s findings, Danny was placed in the special education

class for EMR children the following year.

She again evaluated Danny when he was eight years old and had been in the EMR program

for three years. Supp APX 63. Testing then revealed Danny’s full-scale IQ to be 62, first grade

equivalent reading, kindergarten equivalent spelling and arithmetic, and perceptual age of 5 years,

4 months. Weiselberg noted weaknesses in verbal reasoning and abstract thinking skills concluding

that he had not advanced in his functioning beyond the kindergarten level. Supp APX 63-64. She

cautioned his teachers to “[r]emember Danny will be limited in his ability to generalize, to transfer

learning from one situation to another, to do abstract reasoning, or to do much self-evaluation.”

Supp APX 65. Weiselberg advised that because “Danny is a slower learning child, we will have

to make his work as concrete as possible. Be very specific when you give Danny any directions as

to what he is to do. Make use of concrete objects to manipulate rather than talking about abstract

ideas.” Supp APX 65.

Danny continued to struggle in the adjusted curriculum program. Supp APX 554. As his

academic struggles continued, Danny became frustrated with school (as do many children with

intellectual disability), and he developed behavior problems. Supp APX 67. Annette Campbell,

another school psychologist with the Warren City Schools, evaluated Danny when he was thirteen

years old. Campbell concluded, “Danny’s assessed learning abilities fall into the mentally retarded

range.” Supp APX 69. She noted weaknesses in, among other things, Danny’s ability to recall

everyday information, do abstract thinking, perform mental arithmetic, perceive a total social

situation, and reproduce symbols using psychomotor speed and coordination. Supp APX 69.

Campbell found Danny to be very impulsive, which she noted was “typical of mentally retarded

children,” and stated he was “extremely immature and easily led by others into trouble around

school. In this milieu of difficulties Danny is finding school frustrating and nonrewarding.” Supp

APX 69.

Based on Campbell’s report and recommendations, Danny was placed in a smaller, selfcontained special education class to provide him with more individualized help academically and

socially. His short-term goals in this new class included basic tasks such as “to improve his ability

to tell time.” Supp APX 557. Danny’s teachers in the self-contained class noted poor hygiene and

difficulty completing his work in a self-directed manner. See e.g., Supp APX 543, 547. When he

could not complete his work, Danny responded by acting out. See e.g., Supp APX 544, 545, 546,

APX 547, 548.

Campbell evaluated Danny again after he had been in self-contained classes for four

months and recommended that Danny be moved to the Fairhaven Program for the Mentally

Retarded. Supp APX 514-15. Shortly thereafter, Danny’s teacher, Mrs. Tincher, reported his

academic and social skills (at age 13) were at a first-grade level. Supp APX 568. Danny could not

keep track of his school supplies or complete his lessons without assistance: “If Danny is left

unattended, he strays from his task and begins to display immature behaviors, or falls asleep.”

Supp APX 568. Danny’s IEP goals at Fairhaven included working on telling time, learning his

address and phone number, and interacting appropriately with peers. Supp APX 573.

The next year, when Danny was 14, his reading remained at a first-grade level and his math

skills were at a third-grade level. Supp APX 578. Regarding Danny’s social functioning, the

special education teacher who completed the IEP stated: “Danny is a bright, perceptive boy with

high reasoning ability, but his defiant attitude and refusal to obey any known authority hinders his

learning.” Supp APX 578. 3 Danny’s goals for this year included blending letter sounds to say

words as a unit when reading; telling time to five-minute intervals; and counting change up to

$1.00. Supp APX 578.

Campbell again evaluated Danny at age 15. His academic skills remained at a second-grade

level in all areas with noted weaknesses in “communication, self-direction, socialization and

occupation.” Supp APX 71. That same year, a five-person multidisciplinary team with a qualified

psychologist evaluated Danny, administering IQ, academic achievement, and adaptive functioning

tests, and concluded that Danny continued to qualify for the EMR program. Supp APX 592-93.

The team found that Danny suffered from deficits in the following areas of adaptive behavior:

occupation, communication, self-direction, and socialization. Supp APX 593. As a result, Danny

was assigned to the Developmental Handicap program at Harding High School. Supp APX 596.

About two months later Danny was admitted to Brinkhaven Enterprises after he was

charged with several felonies. At Brinkhaven, Danny received individualized support and tutoring.

Supp APX 2638. In this structured environment, Danny improved. E.g., Supp APX 524, 525,

2640-41. Danny was released from Brinkhaven after seven months because of a “lack of funds

within the county,” Supp APX 2643, even though people who worked with Danny believed he

needed a more structured environment than he could get at home. See e.g., Supp APX 2647. After

Danny returned home from Brinkhaven, his behavior problems continued; he rarely went to school,

and he was expelled. Supp APX 527, 617.

At age 17, Danny was charged with two counts of rape. As part of the adjudication, Dr.

Douglas Darnall, a consulting psychologist with the Juvenile Justice Center, performed a full

The state court of appeals decision took that statement “bright, perspective boy” totally out of

context which renders that decision an unreasonable application of the facts.

psychological evaluation for the Trumbull County Juvenile Court. Dr. Darnall concluded “Danny’s

overall functioning is within the mildly retarded range.” Supp APX 527. Dr. Darnall described

Danny’s improvement in the structured environment of Brinkhaven, and concluded, “it is apparent

that Danny needs a highly structured environment. Unfortunately, the record shows that his family

cannot provide such an environment.” Supp APX 528. Dr. Darnall diagnosed Danny with Mild

Mental Retardation under Axis I according to the then-existing DSM criteria. Supp APX 528.

Based on Dr. Darnell’s recommendation against bindover, Danny was adjudicated as a

juvenile. Danny pled guilty in juvenile court to sexually assaulting two women and he was sent to

the Training Center for Youth (TCY). The TCY placement committee evaluated Danny,

administering a battery of achievement tests that confirmed he was intellectually disabled. Supp

APX 608.

R.W. Jackson, Chief Psychologist at TCY, described Danny at age 17 as an

“[i]ntellectually limited, socially constricted youth with very few interpersonal skills.” Supp APX

530.

At age 18, Danny was sent home again – against the recommendations of multiple people

involved in youth services who worked with him and believed he needed a structured environment.

See e.g., Supp APX 2668, 2687, 2733. Danny did not want to leave TCY. See e.g., Supp APX

2733, 2602. Nevertheless, Danny was released. Supp APX 2629. Danny moved back in with his

mother and enrolled in a tenth-grade special needs program. Supp APX 533, 540.

Approximately six months after Danny’s release, 12-year-old Raymond Fife was attacked

while he was riding his bike. Fife died two days later. Because of a flawed law enforcement

investigation, Danny was charged with capital murder.

In preparation for his capital sentencing hearing, Danny was evaluated by Dr. Nancy

Schmidtgoessling. Supp APX 630-33. She reviewed extensive social history records, including

Danny’s medical, school, and juvenile records, Supp APX 626, and the school records of his

siblings. Supp APX 844. Dr. Schmidtgoessling learned that Danny’s mother was also intellectually

disabled and his brothers. Supp APX. 845, 875. Using appropriate diagnostic criteria, Dr.

Schmidtgoessling diagnosed Danny Hill with mild mental retardation. Supp APX 630, 835.

Dr. Douglas W. Crush evaluated Mr. Hill four months after Dr. Schmidtgoessling and

concluded: “Neuropsychological testing indicates intellectual functioning within the mildly

retarded range.” Supp APX 76.

Besides Dr. Schmidtgoessling, several witnesses testified about Danny’s low intellectual

functioning and adaptive deficits: Mary Robinson, Danny’s grandmother, Supp APX 2600; Vera

Williams, Danny’s mother, Supp APX 2750; and multiple witnesses from the Department of Youth

Services & Probation, Supp APX 2633 (Poindexter); Supp APX 2646 (Brink); Supp APX 2687

(Ayers).

Thus, before Atkins was ever decided, ten evaluations conducted by seven qualified

psychologists over the course of Danny’s life reached the same bottom line: Danny Hill is a person

who meets the criteria for a diagnosis of intellectual disability. These evaluations are summarized

in the chart below.

Examiner

Karen Weiselberg, Warren City Schools

Psychologist

Weiselberg (again)

Annette Campbell, Warren City Schools

Psychologist

Campbell (again)

Warren City Schools Multidisciplinary Team

(including a qualified psychologist)

Dr. Douglas Darnall, Juvenile Justice Center

Consulting Psychologist

Date (Danny’s Age)

3/20/1973 (6 yrs., 2 mos.)

Supp APX

9/10/1975 (8 yrs., 8 mos.)

1/31/1980 (13 yrs., 0 mos.)

5/19/1980 (13 yrs., 4 mos.)

4/19/1982 (15 yrs., 3 mos.)

5/12/1982 (15 yrs., 4 mos.)

515

593

1/10/1984 (17 yrs., 0 mos.)

527

R.W. Jackson, TCY Chief Psychologist

4/25/1984 (17 yrs., 3 mos.)

Dr. Nancy Schmidtgoessling, Hamilton County 10/25/1985 (18 yrs., 10 mos.)

Court Psychologist

Dr. Douglas W. Crush, Psychologist

2/25/1986 (19 yrs., 1 mo.)

(private practice)

530

622

Based on this body of evidence, Danny’s intellectual disability was undisputed in the Ohio

courts before this Court’s decision in Atkins. Danny appealed his conviction and sentence to the

Eleventh District Court of Appeals and the Ohio Supreme Court, both of which acknowledged his

intellectual disability. The Ohio Supreme Court noted that the trial court issued an order denying

Danny’s motion to suppress his statements to police as involuntary, explaining:

“Though this court believes that the defendant could not have effectively read the

rights or waiver forms, the Court relies on the fact that at any time he was given a

piece of paper to sign acknowledging receipt of the Miranda Warnings and waiving

his rights, the paper was always read to him before he affixed any signatures. . . .

Though defendant is retarded, he is not so seriously impaired as to have been

incapable of voluntarily and knowingly given statements which the defendant now

seeks to suppress.”

State v. Hill, 595 N.E.2d 884, 888 (Ohio 1992). The trial court also considered Danny’s intellectual

disability as a mitigating factor but determined the mitigating factors were outweighed by the

aggravating factors. The Court of Appeals stated:

The record is replete with competent, credible evidence which states that appellant

has a diminished mental capacity. He is essentially illiterate, displays poor word

and concept recognition and, allegedly, has deficient motor skills. Appellant is

characterized as being mildly to moderately retarded. There is some suggestion that

appellant’s “mental age” is that of a seven to nine year old boy.

State v. Hill, 1989 WL 142761, * 32 (Ohio App. 11 Dist. 1989). The court of appeals also noted

that Danny presented “considerable evidence as to his passive nature. This evidence suggests that

appellant is a ‘follower,’ easily led (because of his handicap) and influenced by any person with a

dominant personality.” Id., at * 35.

Mr. Hill was recognized as intellectually disabled by the state of Ohio until Atkins was

decided. Then Ohio bent over backwards and twisted the evidence and the criteria to justify

denying his Atkins claim.

THE STATE COURT REJECTED MR. HILL’S ATKINS CLAIM.

THE ATKINS HEARING.

Six months after Atkins was decided, the Ohio Supreme Court decided State v. Lott, setting

forth substantive and procedural rules for state court adjudications of Atkins claims, including a

holding that, in Ohio, “there is a rebuttable presumption that a defendant is not [intellectually

disabled] if his or her IQ is above 70.” 779 N.E.2d 1011, 1014 (Ohio 2002). Faced with Danny’s

long, well-documented history of assessments finding he was a person with intellectual disability,

which included acknowledgements to the effect in prior state court opinions, the State sought to

limit the Atkins court’s review of the available evidence to solely whether Danny was “currently”

intellectually disabled (at the time of the Atkins hearing), rather than at the time of the crime or

some other previous point in time. 4 The Atkins court ultimately agreed with the State’s position

and issued an order stating “this Court, in deciding Petitioner’s claim, will determine whether

Petitioner is presently mentally retarded and therefore death penalty ineligible.” Supp APX. 247.

The court found that “[n]either Atkins nor Lott are instructive as to when the so-called Atkins

exclusion should apply,” id., and stated “it would be virtually impossible to apply standards

articulated as recently as 2002 to retroactively determine Petitioner’s mental status in 1986.

The State asserted that Danny had been tested with the WAIS-III at age 33 (while incarcerated

at the Mansfield Correctional Institution) where he received full-scale IQ score of 71 which,

pursuant to Lott, created “a rebuttable presumption that Petitioner is not now mentally retarded.”

Supp APX 176. The circumstances surrounding that testing proved to be suspect. There was no

purpose for Danny to be tested then and it is not clear who ordered the testing. The State claimed

they were not aware of whom administered the test, which is patently false.

Therefore, this Court will evaluate Petitioner’s Atkins claim based on his current mental status.”

Supp APX. 249. The Atkins court noted that it would not preclude Danny from offering evidence

concerning his childhood and adolescent years, “[h]owever, the Court’s final determination, based

on the evidence presented, will be whether or not Petitioner is presently mentally retarded and

therefore ineligible for the death penalty as an Atkins excludable.” Supp APX. 250 (emphasis

added). The Atkins court instructed the expert witnesses to do the same.

Three experts conducted new evaluations in anticipation of the Atkins hearing: Dr. David

Hammer, for the defense; Dr. Greg Olley, for the prosecution; and, Dr. Nancy Huntsman, for the

court. The Atkins court ordered them to conduct their evaluation jointly at the prison. 5 All three

experts found significantly sub-average intellectual functioning. See Supplemental Atkins

Appendix, RE 97-1 Atkins Transcripts (hereafter Atkins Transcripts) at 156 (Hammer); id. at 839

(Olley); id. at 1123–24 (Huntsman). However, the experts disagreed on whether Danny had

established the existence of deficits in adaptive functioning and onset before age 18.

The defense expert, Dr. David Hammer, found both. Id. at 173. After reviewing the entire

record, id. at 680, he identified deficits in social-emotional functioning, self-care, and work habits,

Supp APX 1117. 6 Dr. Hammer described Danny’s record in detail in his testimony, Atkins

Transcripts at 193-210, and created a list of all of the historical evidence supporting Danny’s

diagnosis of intellectual disability. Supp APX 1106-10. He explained how special education

teachers deemed Danny “immature in comparison to other students,” Atkins Transcripts at 223–

24, how a juvenile court psychologist concluded that Danny was “highly suggestable” and “d[id]

not think of consequences,” id. at 341, how correctional officials “constantly ha[d] to remind [Hill]

5 It appears this procedure was not utilized in any other Atkins case in Ohio.

6 By statute, the entire trial court record and evidence was part of the post-conviction record for

the court to review. O.R.C. §2953.21(C).

to take showers [and] brush his teeth,” id. at 232, and how Danny needed color-coded aids to

complete his job in prison, id. at 363. Based on this evidence, Dr. Hammer described Danny as

“highly suggestible” and a “follower.” Id. at 233–34, and concluded that his deficits manifested

before age 18, id. at 377. Thus, Danny had an intellectual disability. Id. at 156.

The state’s expert, Dr. Gregory Olley, focused on Danny’s current functioning, see e.g.,

Atkins Transcripts at 674 (“Judge Curran’s order, as I understood it to us was to demonstrate

mental retardation at the present time.”); Supp APX 1124 (“The current evaluation was carried out

to determine whether Mr. Hill is functioning at the level of mental retardation today… The

available information on Mr. Hill’s current functioning does not allow a diagnosis of mental

retardation…” (emphasis added)). In his view, the record contained “inadequate information about

adaptive behavior,” id. at 780, even though it “tend[ed] to suggest deficits.” Id. at 940. Focusing

on Danny’s vocabulary, which is not a recognized area of adaptive functioning, Olley opined that

Danny made “sophisticated requests” using “legal language.” Id. at 727. However, Olley

acknowledged he never tested whether Danny actually understood these words. Id. at 926. Olley

also focused on the police interrogation, indicating that he believed Danny “stood his ground . . .

very, very strongly,” id. at 726, “only modified his story a little bit when he was faced with

evidence that he couldn’t possibly have avoided,” id. at 725, and “clearly was not a person who

was being manipulated or pressured.” Id. at 737–38. Olley also found no onset before age 18, id.

at 934, though he did not interview anyone who knew Danny before he turned 18. See Supp APX

1118.

The court’s expert, Dr. Nancy Huntsman, agreed with Olley. Id. at 1044. She “didn’t do a

really detailed analysis” of the record because she “didn’t want to contaminate [her] perspective.”

Id. at 1079. Accordingly, she did not interview anyone who knew Danny in the developmental

period. See Supp APX 1127–30. She instead relied upon correctional officers, id. at 1140, despite

admitting that “the environment on death row is hardly one in which one would expect to acquire

many of the skills [associated with adaptive functioning].” Id. Dr. Huntsman also focused on

vocabulary, Atkins Transcripts at 1029, arguing that Danny’s “complex sentences” contained

“incredible detail,” id. at 1025, even though they left the listener in “utter confusion.” Id. at 1131.

She thus dismissed Danny’s extensive history in special education, arguing that the school

“reward[ed]” students for “doing more poorly.” Id. at 1047. Based on this view of the evidence,

she found no adaptive deficits, no onset before 18, and thus no intellectual disability. Supp APX

1141.

THE TRIAL COURT’S DECISION.

The state court judge that presided over Danny’s post-conviction proceedings (Atkins

court) concluded – not surprisingly – that the evidence presented “satisfied Prong 1 of the forensic

definition of MR.” Supp APX 3452. Given that Danny had been administered full scale IQ tests

on at least nine occasions and every single one of his scores was in the intellectual disability range,

and the unanimity of expert opinion among those who testified at the state court hearing, a finding

that Danny met his burden of proof in regard to significantly sub-average intellectual functioning

was a given.

The court then turned to the second (adaptive deficits) prong. The court’s assessment was

skewed by its belief that by failing to fully cooperate with the three examiners during their

evaluation, Danny had “intentionally corrupted the process” and “rendered impossible the task of

the three psychologists in conducting an adaptive behavior assessment.” Supp APX 3457. This is

puzzling given that clinical standards at the time of the hearing were clear that the person being

evaluated for intellectual disability is not the best, and certainly not the most reliable, source for

an assessment of their own deficits. Nevertheless, the Atkins court deemed Danny’s “lack of

cooperation” to be “critical” to its analysis of prong two because that left the examiners (and the

court) with only “Vineland testing scores from [Hill’s] school days” and “selective anecdotal

evidence of isolated conduct reports.” Supp APX 3457. Although the record contained hundreds

of pages, including multiple evaluations of Danny by disinterested professionals assessing his

functioning during the developmental period, the Atkins court stated the available evidence was a

“thin reed” to determine whether Danny had met his burden of proof. Id. 7

Then, turning to what the Atkins court labeled “anecdotal evidence” of Danny’s adaptive

deficits, the court, cited the Texas Court of Criminal Appeals’ now discredited decision in Ex Parte

Briseno, 135 S.W. 3d 1, 8 (2004) for the proposition that the prong 2 inquiry was “exceedingly

subjective.” When addressing what it referred to as Danny’s “early years,” Supp APX 3466, the

Atkins court ignored or minimized the voluminous evidence of Danny’s academic failure,

gullibility, and difficulties communicating. Instead, the Atkins court selectively picked instances

of “disruptive” behavior and classified Danny as a “loner” who was not “easily led,” “lazy,” and

a known liar. Supp APX 3467-68.

Next, the Atkins court focused on Danny’s criminal history and the murder of Raymond

Fife, concluding that his criminal behavior did not constitute the “profile of a docile or tractable

The State’s expert (Olley) and Court’s expert (Huntsman) did not attempt to interview anyone

who knew Danny during the developmental period. Moreover, as for the multiple Vineland scales

administered during some of Danny’s educational evaluations, all three experts concluded that the

scores were not reliable and/or particularly informative for their assessment of prong 2. Dr.

Hammer testified that the SIB-R is preferred in modern psychology over the Vineland. Atkins

Transcript at 434. Dr. Huntsman stated the Vineland was a “bad instrument” and “was illregarded… was not a very reliable measure for anybody.” Atkins Transcript at 944, 948. Dr. Olley

testified the Vineland was “not a very good test,” and acknowledged that the majority of the

Vineland scores likely overstated Danny’s functioning because his mother was the informant, and

she also has significant intellectual limitations. Atkins Transcript at 392.

individual.” Supp APX 3469. The Atkins court reasoned that Danny demonstrated “self-direction”

by going to the police department and claiming to have information about Fife’s murder. The

Atkins court opined further that Danny possessed “at least average communication skills” based

on his interrogation by law enforcement because, for example, he knew basic details such his

name, address, the time-of-day certain events transpired, and because he did not “capitulate”

during the interrogation and was able to “interact with his interrogators.” Supp APX 3470.

Turning to Danny’s years on death row the court concluded he “demonstrated maturity

inconsistent with a mentally retarded individual.” Supp APX 3471. The basis for this conclusion

was the judge’s again highly selective reliance on aspects of Danny’s interactions with reporter

Andrew Gray, and unwarranted projection that Danny had a sophisticated understanding of the

Supreme Court’s discretionary review system and the state and federal court systems. Supp APX

3473. The Atkins court also focused on statements made by several employees at Mansfield

Correctional Institution, which indicated that Danny could perform certain work tasks, use the

commissary, read and talk – again ignoring or discounting overwhelming evidence of Danny’s

sub-standard functioning even in the highly restrictive environment of a maximum-security prison,

which is not suitable for an adaptive deficits assessment. Supp APX 3475-76.

In referring to Danny’s personal appearance at the Atkins hearing, the court also concluded

there was “nothing about his general appearance—facial expressions or conduct—suggesting (at

least to a layman) that the Petitioner is mentally retarded.” Supp APX 3474. 8

For essentially the same reasons the court concluded Danny also had failed to establish the age

of onset prong. Supp APX 3479-81.

The Atkins court also ignored the extensive prison records filed by the State that reflected

Danny’s adaptive deficits even in the highly structured environment of death row. Supp APX

1304-1851. The review of the prison records revealed:

•

The prison long recognized Danny as illiterate. Supp APX 1485, 1486, 1511, 1512,

1553, 1579, 1784, 1788, 1824.

The prison recognized Danny as mentally retarded when first arrived on death row and

thereafter. Supp APX 1789, 1815, 1817, 1819-20. 9

Danny has had problems with his hygiene throughout his incarceration. Supp APX

1396, 1568, 1573, 1645, 1646.

Danny asked frequently for his account balance with the cashier’s office and had

frequent problems with his account. Supp APX 1484, 1485, 1486, 1556, 1557, 1560,

1565, 1568, 1571, 1574, 1575, 1576, 1577.

The prison knew that other inmates wrote for him, and one case manager had to write

a letter to his mother for him. Supp APX 1484, 1510, 1784, 1788.

Danny often had to ask for his mother’s and other family members’ telephone numbers.

Supp APX 1483, 1484, 1571, 1818.

One work evaluation indicated Danny lacked the skills for the job cleaning the range.

Supp APX 1325.

The Atkins court finding that Danny was an “average” death row inmate and therefore not suffering

from any “current” deficits in functioning was not just an unreasonable application of the facts,

but a blind eye to the record before the court.

THE OHIO COURT OF APPEALS DECISION.

The state court of appeals decision parroted the decision of the Atkins court. State v. Hill,

894 N.E.2d 108 (Ohio App. 11 Dist. 2008). After accepting the determination that Danny met the

significantly sub-average intellectual functioning prong, 894 N.E.2d at 121, it repeated that the

prong 2 deficits could not be obtained from Danny due to his “lack of effort.” 894 N.E.2d at 122.

This purportedly forced the Atkins court to rely on “collateral, largely anecdotal evidence to

determine the level of Hill’s adaptive functioning” that it repeated (erroneously) was a “‘thin reed’”

The prison currently identifies Mr. Hill as intellectually disabled with significant deficits in daily

functioning.

on which to determine whether Danny had satisfied prong 2 of the criterion for intellectual

disability. Id.

The court of appeals described the “anecdotal evidence” in virtually the exact terms as the

Atkins court, focusing on: (1) Danny’s school records which detailed a history of “academic

underachievement” but also statements that Danny knew how to write and was described by one

teacher as a “bright perceptive boy with high reasoning ability.” 894 N.E. 2d at 124; (2) the trial

for the murder of Raymond Fife where according to the court of appeals, Danny demonstrated

“initiative” in approaching the police and attempting to present a false alibi, and his interrogation

where he was, again according to the court of appeals, able to stand his ground and modify his

story when faced with contrary evidence; (3) interviews with a newspaper reporter (Andrew Gray)

which “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” 894 N.E.2d at 126; (4) testimony of death row prison guards who, although

acknowledging Danny’s poor hygiene, described him as an “average” prisoner who interacted with

other inmates, obeyed prison rules and kept track of his commissary account; (5) Danny’s

appearance in court, which led the Atkins court to conclude that he did not observe “anything about

Hill’s conduct or demeanor suggesting the he suffers from [intellectual disability]” Id.; and, (6)

the expert opinions of Dr. Olley and Dr. Huntsman that, in their view, Danny’s “adaptive skill

deficiencies” did not meet the “second criterion.” Id. Thus, the court of appeals concluded there

was “abundant, competent and credible evidence to support the trial court’s conclusion that Hill

does not meet the second criterion for [intellectual disability].” Id. 10

Like the trial court, the state court of appeals relied upon the same evidence in concluding that

Danny failed to establish that he met the third (onset before age 18) criterion. Id.

III.

WHY THE WRIT SHOULD BE GRANTED

Danny Hill is clearly a person with intellectual disability as even the Warden conceded

during the en banc briefing and argument. The state court’s decision to the contrary turns on

unreasonable factual determinations and an unreasonable application of Atkins, warranting de novo

review, and habeas relief. Any reasonable review of the record demonstrates Mr. Hill’s entitlement

to relief under Atkins, and a denial of that claim is indefensible.

28 U.S.C. § 2254(d)(2) IS SATISFIED.

The Ohio Court of Appeals’ decision was based on multiple “unreasonable

determination[s] of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2). The state court’s critical factual determinations fall into three broad

categories: (1) the state court unreasonably concluded that the experts were forced to rely on a

“thin,” “largely anecdotal” record because Mr. Hill was not cooperative; (2) the state court

purported to evaluate the historical record but focused almost entirely on irrelevant information

and grossly mischaracterized the factors it did discuss; and, (3) the court unreasonably concluded

Mr. Hill failed to establish onset of his disability before the age of eighteen.

As the majority noted, the Warden “admits that any adaptive deficits that Hill does have

arose before he turned 18,” therefore the only issue in dispute is whether the state court decision

on the adaptive function prong was unreasonable. Hill, 11 F.4th at 387. While the majority opinion

ultimately found the state court decision was not unreasonable and habeas relief was not warranted,

“[a]dmittedly, there is evidence in the record that shows Hill has limitations in some adaptive skills

such as self-care, functional academics, and self-direction.” Id., at 394. The majority recognized

the state court decision was flawed in several significant areas.

First, the majority noted “Hill’s school records suggest that he struggled academically as a

child.” Id., at 388. The majority noted the state court summary of Mr. Hill’s school records in its

decision did not include all the evidence that “may be relevant to determining whether Hill had

significant limitations in two or more adaptive skills.” Id., at 389.

Second, the majority questioned the accuracy of the finding of “self-direction” by the state

court by using Mr. Hill’s conduct during questioning by the police for the murder. “In looking at

the evidence, it is unclear that Hill’s conduct demonstrated self-direction or self-preservation.” Id.,

at 389. It is remarkable that a salient fact such as this can be both “unclear,” yet reasonable for

purposes of a §2254(d)(2) analysis. The state court’s assessment of Mr. Hill’s conduct during

police questioning was not reasonable as it was a totally bastardization of the meaning of the

adaptive skill of self-direction. Self-preservation has nothing to do with that area of adaptive

functioning. In addition, a fact not addressed by the state court of appeals decision, nor by the

majority, was Mr. Hill’s statements to the police were not voluntary and knowing, and he did not

have the capacity to fully understand his rights when he was being questioned by the police. Id.,

at 430-31.

The majority was troubled that the state court of appeals’ decision failed to mention the

testimony of the three experts – Dr. Douglas Darnall, Dr. Nancy Schmidtgoessling, and Dr.

Douglas Crush – who testified at Mr. Hill’s mitigation trial in 1986. All three experts testified at

the mitigation trial that Mr. Hill was intellectually disabled. “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.” Id, at 390 (emphasis added) (internal citation omitted). But still the

majority did not find the state court decision unreasonable.

Finally, the majority noted that the state court of appeals decision relied quite heavily on

Mr. Hill’s prison records and time on death row. Mr. Hill had been on death row over twenty years

at the time of the Atkins hearing. As the majority admitted, “his time incarcerated may be an

imperfect indicator of his functional abilities.” Id., at 390. Even so, there is abundant evidence in

the prison records supporting a finding of intellectual disability, and the prison has identified Mr.

Hill in the past and now presently as a person with intellectual disabilities. But still the majority

did not find the state court of appeals decision unreasonable.

The majority opinion recognizes the rich factual record that was presented at the Atkins

hearing in support of a finding of intellectual disability and noted serious flaws in the state court

decision. The state court of appeals decision does not deserve the deference the majority opinion

bestows upon it.

THE STATE COURT UNREASONABLY DETERMINED THE RECORD WAS A

“THIN REED” BECAUSE OF MR. HILL’S FAILURE TO COOPERATE.

After acknowledging that Mr. Hill’s subaverage intellectual functioning was undisputed,

the state court began its analysis of adaptive behavior by stating that no reliable standardized test

results could be obtained due to “Hill’s lack of effort.” Hill, 894 N.E.2d at 189. The experts

conducted a joint evaluation of Mr. Hill at the prison during three days in April of 2004. On the

second full day of testing, Mr. Hill got upset and cried, causing them to abandon their testing plans.

Supp APX 1112. Mr. Hill’s school records contained four administrations of the Vineland Social

Maturity Scale, which is a measure of adaptive behavior, but the experts felt most of these results

were not reliable, in part because Mr. Hill’s intellectually disabled mother served as the informant

and the test administrators reported that she overstated Mr. Hill’s abilities. Supp APX 527, 845.

The state court concluded:

Apart from the problematic standardized measurements of Hill’s adaptive skills,

the trial court and the expert witnesses had to rely on collateral, largely anecdotal

evidence to determine the level of Hill’s adaptive functioning. The trial court

acknowledged that such evidence constituted a ‘thin reed’ on which to make

conclusions about Hill’s diagnosis, but also recognized that this situation was the

result of Hill’s failure to cooperate with the experts retained to evaluate him.

Hill, 894 N.E.2d at 191. This conclusion was unreasonable because: (1) the available record was

not “largely anecdotal”; (2) the evidence was not “thin” by any stretch of the imagination; and (3)

the experts were not forced to rely on insufficient information because of Mr. Hill’s failure to

cooperate with testing.

First, the overwhelming majority of the record was not “anecdotal” at all. The record

contains six professional psychological assessments ordered by the Warren City Schools (Supp

APX 62, 64, 69, 515, 71, 593), three expert evaluations ordered by the courts (Supp APX 527,

622, 76) and one expert evaluation performed by the Chief Psychologist at the Training Center for

Youth (Supp APX 530), all of whom had no reason to offer anything other than their best

professional judgment and unanimously agreed that Mr. Hill is intellectually disabled. The record

also contains extensive school records, juvenile justice and prison records (Supp APX 61-72, 489513, 524-621, 980-1012, 1310-1985, 2769-2812), and sworn testimony from three expert

evaluators (Supp APX 622-87, 782-918), multiple school and youth services officials (Supp APX

77-96, 688-728, 923-42, 2611-2741), and Mr. Hill’s mother and grandmother (Supp APX 252740, 2593-2605, 2742-68). There is nothing scientifically wrong with considering collateral

information. Direct observations from people who have had an opportunity to observe a

defendant’s typical behavior in the community during the developmental period are precisely the

kind of evidence required for a reliable assessment of intellectual disability. AAMR User’s Guide

17-23. To the extent the court was expressing a concern that “anecdotal” information could be

subjective, the clinical guidelines specifically address this issue by instructing evaluators to collect

and consider as much information as possible and rest their conclusions soundly on a convergence

of data, not to limit their review of the evidence to a narrow band of “present functioning” in the

confines of a highly structured prison setting, as the trial court did here. AAMR Manual 86 (“The

addition of different sources of data provides a basis for more informed professional judgment.”

This approach “emphasizes the importance of convergent validity, or the consistency of

information obtained from different sources and settings.”).

Second, no one could reasonably categorize the record as “thin.” The experts agreed that

the historical documents in this case were more extensive than they were used to encountering “by

a fairly large measure.” Atkins Transcript 1196, see also id. at 833-34. As Dr. Hammer explained:

Most people who we see at the clinic . . . I will get maybe something that is about,

maybe an inch or at most an inch and a half. Right now I have a portable brief case

that is jammed full of materials that is probably at least eight to ten inches thick.

Id. at 606. If the record here was “thin,” it was only because the trial court, contrary to then existing

clinical guidelines, ensured it would be by ignoring the historical evidence and instructing the

experts to do the same. As the district court noted, “the state-court record was hardly a ‘thin reed.’

At well over 6,000 pages, it was voluminous. . . . [T]he true ‘thin reed’ in this case was the

information that was available concerning Mr. Hill’s adaptive functioning at the time he filed his

Atkins claim [i.e., his ‘present functioning’], the focus of the evaluation.” Hill v. Anderson, No.

4:96-cv-00795, 2014 WL 2890416, at *24 (N.D. Ohio June 25, 2014).

Third, the experts were not forced to rely on inadequate information because of Mr. Hill’s

failure to cooperate during the joint evaluation. Even had Mr. Hill been cooperative, the clinical

guidelines in place at the time clearly prohibited an assessment based on Mr. Hill’s behavior in a

prison setting. All three experts explained the problems with assessing behavior in prison:

•

“Since a large portion of the items on this and most other standardized measures of adaptive

behavior are not possible to be observed in a prison environment and because no

independent, reliable informant of Mr. Hill’s adaptive behavior prior to his incarceration

was available, all three psychologists agreed that an independent, valid standardized

adaptive behavior instrument could not be completed for Mr. Hill.” Supp APX 1112

(Hammer).

•

Assessing prison behavior is “not what an assessment of adaptive behavior asks us to do.

It asks us to assess the person relative to their typical community.” Atkins Transcript 868

(Olley).

•

“[T]he formal assessments of adaptive behavior for someone Mr. Hill’s age are really

designed for people who are not living in the confined and confining environment of death

row.” The tests are “just not relevant” to the prison setting. Id. at 1130 (Huntsman).

In addition, the clinical guidelines instruct practitioners not to rely solely on self-reported

information from the person being assessed and never to rely solely on a standardized measure of

adaptive behavior even if one can be obtained. 11 AAMR Manual 85, 74-75. Instead, the assessment

should rely on information collected from “multiple informants and multiple contexts,” including

a “thorough review” of the subject’s social history and school records. AAMR User’s Guide 14,

18-19; AAMR Manual 95. Drs. Olley and Huntsman did not adhere to the clinical guidelines.

Instead, as instructed by the trial court, they focused heavily on Mr. Hill’s present functioning,

including prison behavior, criminal behavior and verbal behavior. See, e.g., Atkins Transcript 743

(Dr. Olley stating that he relied on verbal behavior because “Judge Curran’s directions to us was

to determine mental retardation currently. And this was a current piece of information”); id. at 862

(“we were aware of [the judge’s] order to look at Mr. Hill’s present function. And that is why we

conducted the evaluation at that time, and why we interviewed six people at the prison, and why

we toured the prison facilities.”). It was therefore the trial court’s erroneous decision—not Mr.

Hill’s lack of effort—that left these experts with a faulty basis for their opinions.

As the State’s expert, Dr. Olley acknowledged, the results of any self-reported answers would

be suspect because it is assumed “the individual is not a good reporter of his own behavior.” Atkins

Transcript 759; see also, AAMR User’s Guide 21 (“Recognize that self-ratings have a high risk of

error in determining ‘significant limitations in adaptive behavior.’”).

THE STATE COURT FOCUSED ON IRRELEVANT INFORMATION AND

MISCHARACTERIZED THE RECORD.

After erroneously concluding that the available record was but a mere “thin reed” of

“anecdotal evidence,” the Ohio Court of Appeals then purported to analyze the record, but

discussed only a small, selective handful of details that are largely irrelevant to the issue of

intellectual disability. The court grossly mischaracterized the record to reach several of its highly

selective conclusions. The court divided its comments into four sections, which it labeled: (1)

Public School Records; (2) Mr. Hill’s Trial for the Murder of Raymond Fife; (3) Death Row

Records; and (4) Mr. Hill’s Appearances in Court.

Public School Records.

Regarding Mr. Hill’s extensively documented school history, the Ohio court concluded:

(1) the records “amply demonstrate academic underachievement and behavioral problems”; (2)

“[a]lthough there are references to Hill being easily led or influenced by others,” the trial court

noted that he committed crimes while apparently acting on his own; and (3) “Hill knew how to

write” and was described by at least one teacher as “‘a bright, perceptive boy with high reasoning

ability.’” State v. Hill, 894 N.E.2d 108, 192 (Ohio Ct. App. 2008). As the district court observed,

a finding that Mr. Hill “‘underachieved’ academically or in any other adaptive skill as a child is

squarely contradicted by the record.” Hill, 2014 WL 2890416 at *26. A careful review of the record

shows not a single “reference in Hill’s school records by a teacher, school administrator,

psychologist, psychiatrist, or anyone else suggesting Mr. Hill was capable of performing at a

substantially higher level but chose not to.” Id. The state court’s conclusion also ignored the

experts’ unanimous testimony that evidence of behavioral problems does not undermine a

diagnosis of intellectual disability (Atkins Transcript 612, 713, 1102-03), and it did not address

the fact that school officials explicitly related Mr. Hill’s behavior problems to his intellectual

disability. 12 Indeed, the state court made absolutely no mention of the six professional evaluations

reported in Mr. Hill’s school records, nor did it address the numerous letters, reports and

documents generated by teachers, counselors, principals and special education aids who all

recorded data and personal observations relevant to multiple areas of Mr. Hill’s adaptive behavior

throughout his developmental period. The state court’s opinion also contained no discussion or

analysis of Dr. Hammer’s opinions based on the underlying record.

The state court dismissed the overwhelming large number of references in the school

records to Mr. Hill being easily led by noting he committed two rapes on his own. This conclusion

grossly undervalues the sheer number of people (virtually every person who has ever encountered

Danny Hill) and their uniform descriptions of him as “suggestible,” “easily led,” and a “follower.”

It likewise gives undue weight to evidence of criminal behavior which, according to the clinical

guidelines, should not be considered when determining adaptive skills. AAMR User’s Guide 22

(“Do not use past criminal behavior or verbal behavior to infer a level of adaptive behavior or

about having MR/ID. First, there is not enough available information; second, there is a lack of

normative information.”). The fact that Mr. Hill “knew how to write” is also irrelevant under the

clinical definitions as it is well-accepted that people with intellectual disability can learn to read,

write and achieve academically up to about a sixth-grade level (although Mr. Hill never scored

For example, a school evaluation at age 13 states, “Danny’s assessed learning abilities fall into

the mentally retarded range.” He read at a second-grade level. His math skills were at a first-grade

level. His handwriting was “immature for his chronological age.” School was “extremely

frustrating to Danny. . .. The fighting he has been in in school is usually cases where he is led into

it by others.” He was “extremely immature and is easily led by others into trouble around school.

In this milieu of difficulties Danny is finding school frustrating and nonrewarding.” Supp APX 69.

That same year, Danny’s teacher reported “[h]is academic ability seems to be at a first-grade level,

as do his social skills. . .. Danny is unable to complete his lessons, which are on a first-grade level,

without assistance. If Danny is left unattended, he strays from his task and begins to display

immature behaviors, or falls asleep.” Supp APX 568.

above a third-grade level on any standardized measure of academic achievement). DSM-IV-TR

44.

Finally, the state court’s conclusion that “at least” one teacher described Mr. Hill as a

“bright, perceptive boy with high reasoning ability” was especially sinister in its selectivity. The

state court did not mention this teacher worked with Mr. Hill at the Fairhaven Program for The

Mentally Retarded, failed to note that the teacher reported that her fifteen-year-old student was

reading at a first-grade level, and ignored that the teacher’s stated goals for Mr. Hill included,

among others, “blend letter sounds to say word as a unit,” “perform addition and subtraction facts

to 100,” “use correct sentence structure in conversation,” “follow class rules,” “work without being

disruptive,” “shower regularly” and “use deodorant.” Supp APX 578. These facts are evident on

the very same page from which the state court quoted the “bright, perceptive boy” language—one

does not even have to examine the rest of the record to see this comment does not mean Mr. Hill’s

adaptive behavior was on par with his peers. Mr. Hill’s school records contain no other references,

by any person, to him being “bright,” “perceptive” or anything similar. Such willful ignorance of

the record by the state court can constitute nothing other than an unreasonable determination of

fact, given the evidence.

ii.

Mr. Hill’s Trial for the Murder of Raymond Fife.

Next, the state court found Mr. Hill demonstrated skill in “self-direction and selfpreservation” by approaching the police to implicate others in Fife’s murder, and an “ability to

adapt his alibi to changing circumstances in the course of police interrogation” when he “‘stood

his ground . . . very, very strongly.’” Hill, 894 N.E.2d at 192. “Self-preservation” is not an area of

adaptive behavior. AAMR Manual 82. Moreover, “self-direction” does not simply mean an ability

to appear at a given place. Rather, this area involves “skills related to making choices,” “resolving

problems confronted in familiar and novel situations,” and “demonstrating appropriate

assertiveness and self-advocacy skills.” 1992 AAMR Manual at 40. Mr. Hill’s decision to

implicate himself in a crime in which he was not a suspect was hardly good self-advocacy. The

state court’s conclusion that Mr. Hill was able to “hold his own” during the interrogation is simply

incorrect. A review of the interrogation transcript reveals Mr. Hill offered rambling, confusing

answers to even short, concrete questions and readily accepted the police’s version of events. Even

the officers interrogating told Mr. Hill “[e]verytime [sic] we suggest something to you, you have

a tendency to agree with us.” ECF No. 96, PageID 2105. Regardless, verbal behavior does not

affect adaptive behavior, and the state court’s use of verbal behavior as a proxy for a thorough,

careful assessment of adaptive behavior was contrary to the clinical guidelines. AAMR User’s

Guide 22.

iii.

Death Row Records.

At the time of Mr. Hill’s Atkins hearing, he had been incarcerated for twenty years. The

state court drew four critical conclusions from this time period: (1) recorded interviews between

Mr. Hill and Andrew Gray, a newspaper reporter, showed “a high level of functional ability with

respect to Mr. Hill’s use of language and vocabulary, understanding of the legal processes, ability

to read and write, and ability to reason independently”; (2) various prison employees testified that

Mr. Hill was, in their opinion, an “average” prisoner; (3) “Hill interacted with other inmates,

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

obeyed prison rules”; and (4) “Hill’s self-care was ‘poor but not terrible,’” and “Hill had to be

reminded sometimes about his hygiene.” Hill, 894 N.E.2d at 192. Essentially all of these findings

are irrelevant to intellectual disability because a person’s functioning in the highly structured

setting of a prison environment bears no relationship to the clinical guidelines for assessing

adaptive behavior. AAMR Manual 198. People with intellectual disability often adapt well to the

prison setting. Laypeople, including prison guards, are not properly trained to determine whether

an individual suffers from intellectual disability. Atkins Transcript 423, 1206. They may also be

biased against inmates; they are not comparing an inmate’s adaptive skills to the general

population; and they do not have the same opportunity to observe adaptive behaviors in the

community that teachers, parents, friends, and similar collateral witnesses typically can observe.

The state court’s conclusions in this section once again rely heavily on verbal behavior, which is

clinically inappropriate. Thus, the court’s findings here are useless for determining the actual

question. Many of the state court’s factual findings from this time period are flatly contradicted by

the record.

The state court’s conclusion that the Gray tapes showed Mr. Hill’s skill at reading is

directly contradicted by Gray himself, who stated “[w]hen he reads his court documents and legal

briefs, he stumbles over and mispronounces the larger words, revealing a grade school reading

level.” Atkins Transcript 1286. Mr. Hill struggled so much that Gray eventually took the

documents and read them aloud himself. Id. at 1288. The state court’s conclusion that Mr. Hill was

intimately familiar with sophisticated legal processes is not supported by the record either. During

the interview, Mr. Hill stated, “[t]he U.S. Supreme Court, they ain’t hearing nothing.” (July 13

Taped Interview at 1:08:38). To claim this statement shows Mr. Hill “is well aware of the U.S.

Supreme Court’s discretionary power to grant or deny the issuance of the writ of certiorari,” as the

trial court did, stretches the record beyond any reasonable interpretation. Supp APX 3473.

In addition, although the state court purported to rely on Mr. Hill’s prison behavior, it did

not mention the many prison records submitted for the court’s review. These records directly

contradict the court’s conclusions that Mr. Hill maintained a prison job, kept track of his

commissary account, and obeyed prison rules seemingly without difficulty. They also undermine

the state court’s ultimate conclusion that Mr. Hill is not a person with intellectual disability. For

example, the prison records demonstrate:

•

The prison long recognized that Mr. Hill was illiterate. Supp APX 1485, 1486, 1511, 1512,

1553, 1579, 1784, 1788, 1824.

The prison identified Mr. Hill as mentally retarded when he first arrived on death row and

thereafter. Supp APX 1789, 1815, 1817, 1819-20.

Mr. Hill has had problems with his hygiene throughout his incarceration. Supp APX 1396,

1568, 1573, 1645, 1646.

Mr. Hill asked frequently for his account balance with the cashier’s office and had frequent

problems with his account. Supp APX 1484, 1485, 1486, 1556, 1557, 1560, 1565, 1568,

1571, 1574, 1575, 1576, 1577.

Other inmates and staff wrote for letters and grievances for him. Supp APX 1484, 1510,

1784, 1788.

Mr. Hill had to ask for family phone numbers. Supp APX 1483, 1484, 1571, 1818.

Mr. Hill lacked the skills for the job cleaning the range. Supp APX 1325.

Mr. Hill’s prison job as a porter involved distributing cleaning supplies that were sorted by

color, so Mr. Hill did not have to read the supplies’ instructions. Atkins Transcript 363,

1381.

Finally, the state court’s conclusion that Mr. Hill’s self-care was “poor but not terrible,”

bears disturbing resemblance to the court’s reliance on the “bright, perceptive boy” comment from

Mr. Hill’s special education teacher. The state court’s citation to this one comment, as if it singlehandedly resolves this issue, is alarming because it so unreasonably dismisses the weight of the

prison records themselves (which contradict this sole, cherry-picked testimony) and Mr. Hill’s

extensive school records, which likewise document a persistent theme of difficulty with personal

hygiene. See, e.g., Atkins Transcript 233 (“the theme of hygiene is all the way throughout”).

iv.

Mr. Hill’s Appearances in Court.

The state court concluded its analysis by relying on the trial court’s “‘many opportunities’

to observe Mr. Hill over an extended period of time,” during which it “did not perceive anything

about Hill’s conduct or demeanor suggesting that he suffers from mental retardation.” Hill, 894

N.E.2d at 193. This conclusion is simply rank stereotyping at its worst. There are “[n]o specific

personality or behavioral features,” nor are there any “specific physical features” associated with

intellectual disability. DSM-IV-TR 44. No one can tell by simply looking whether an individual

suffers from mild intellectual disability. The state court’s belief to the contrary has no scientific

grounding in the clinical literature, which defines intellectual disability as a multi-dimensional

concept that demands holistic consideration. AAMR Manual 8. The Ohio Court of Appeals’

decision to rely on the trial judge (who had never adjudicated an Atkins claim) and his lay

misconceptions of how people with intellectual disability should look and act was objectively

unreasonable.

THE STATE COURT UNREASONABLY CONCLUDED THAT MR. HILL

FAILED TO ESTABLISH ONSET BY AGE EIGHTEEN.

The Ohio Court of Appeals dispensed with prong three in two short sentences, finding

“[t]he trial court’s conclusion [on prong 3] mirrors its findings under the first two criteria” and that

evidence had been “discussed above.” Hill, 894 N.E.2d at 194. According to the clinical

guidelines, the only appropriate way to assess prong three is to: (1) conduct “a thorough social

history” that includes “the investigation and organization of all relevant information about the

person’s life status, trajectory, development, functioning, relationships, and family”; (2) undertake

a “thorough review of school records”; and (3) perform “a longitudinal evaluation of adaptive

behavior that involves multiple rater, very specific observations across community environments

(especially in regard to social competence), school records, and ratings by peers during the

developmental process.” AAMR User’s Guide 18-22. There was no way the experts could follow

these guidelines while simultaneously adhering to the trial court’s instruction to focus only on Mr.

Hill’s “present functioning.” The trial court effectively gutted Mr. Hill’s ability to meet the

requirements of prong three and then blamed him for the inevitable outcome. The state court’s

approval of this flawed logic was unreasonable beyond any objective measure.

SECTION 2254(D)(2) IS SATISFIED.

28 U.S.C. § 2254(d)(2) authorizes federal habeas relief for an otherwise meritorious

constitutional claim if the state court’s adjudication of the claim 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. Id. 13

This Court has found even a single unreasonable factual determination sufficient to satisfy

section 2254(d)(2). In Wiggins v. Smith, the Court held that the Maryland state court that rejected

Wiggins’ ineffective assistance of counsel claim “based its conclusion, in part, on a clear factual

error,” which led the state court to “assum[e]” counsel’s purportedly strategic decision not to

present certain mitigating evidence was adequately informed. 539 U.S. 510, 528 (2003). The

record did not support the state court’s assumption and it was therefore “incorrect.” Id. The Court

declared the state court’s mistake “unreasonable” under § 2254(d)(2) and held “[t]his partial

reliance on an erroneous factual finding further highlights the unreasonableness of the state court’s

decision.” Id.

In Brumfield v. Cain, the Court pointed to two of the state court’s “critical factual

determinations” as unreasonable within the meaning of section 2254(d)(2). 576 U.S. 305, 313

(2015). The Louisiana state court denied Brumfield’s request for an evidentiary hearing to pursue

an Atkins claim, finding Brumfield failed to offer sufficient evidence to raise a “reasonable doubt”

about his intellectual disability. In evaluating this decision, this Court focused on “two underlying

factual determinations on which the trial court’s decision was premised—that Brumfield’s IQ

score was inconsistent with a diagnosis of intellectual disability and that he had presented no

Unlike subpart (d)(1), subpart (d)(2) has no “clearly established federal law” requirement; its

focus is exclusively on the state court’s performance as a determiner of the facts, and proof of a

defect in that area alone is enough to authorize de novo review of a claim under § 2254(a).

evidence of adaptive impairment.” Id. Finding the record inconsistent with both of these factual

conclusions, the Court declared them unreasonable, explaining:

[a]s we have observed . . . ‘[e]ven in the context of federal habeas, deference does

not imply abandonment or abdication of judicial review,’ and ‘does not by

definition preclude relief.’ Here, our examination of the record before the state

court compels us to conclude that both of its critical factual determinations were

unreasonable.

Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Miller-El v. Dretke, 545 U.S.

231 (2005) (finding the state court’s conclusion that juror strikes were not race-based was

unreasonable where the state court ignored evidence of the prosecutor’s failure to strike similarly

situated jurors who would have been ideal for the prosecution).

Consistent with this Court’s guidance, the circuit courts have found section 2254(d)(2)

satisfied where the state court’s factual findings result from the court’s misrepresentation,

ignorance and discounting of the evidence. See, e.g., Burgess v. Commissioner, Alabama Dept. of

Corr., 723 F.3d 1308, 1313 (11th Cir. 2013) (finding the state court’s determination that petitioner

had not shown deficits in adaptive behavior “impossible to reconcile with the record”); Milke v.

Ryan, 711 F.3d 998, 1007 (9th Cir. 2013) (holding state court’s determination was unreasonable

because the court ignored evidence of misconduct by a key witness and “fail[ed] to consider all

the evidence that was presented to it”); Jones v. Murphy, 694 F.3d 225, 237-38 (2d Cir. 2012)

(holding that the state court’s decision was based on a misconstruction of the record regarding

petitioner’s request to represent himself); Julian v. Bartley, 495 F.3d 487, 494 (7th Cir. 2007)

(finding state court’s factual determination unreasonable because it acknowledged trial counsel’s

initial advice to petitioner that his maximum sentence was sixty years, but ignored the record

evidence that counsel later revised this advice and told petitioner he faced only thirty years).

Here, the state court’s factual finding was unreasonable at every turn. The trial court told

the experts to ignore the rich historical evidence of Mr. Hill’s intellectual disability. The Ohio

Court of Appeals relied on those opinions and ignored the vast majority of the record clearly

establishing adaptive deficits to affirm the trial court’s decision. By narrowing the focus to Mr.

Hill’s present functioning (in the environment of the prison setting), the Ohio courts effectively

eliminated the very facts that form the core of any reliable intellectual disability assessment. The

appellate court justified its reliance on clinically irrelevant factors such as prison behavior,

criminal behavior and verbal behavior based on the false notion there was little else to consider.

The court also misrepresented the overall weight of the available record, ignored key information,

and misconstrued critical facts to come to its unreasonable decision that Danny Hill is not a person

with intellectual disability. Under these circumstances, § 2254(d)(2) is satisfied, de novo review is

appropriate, and Mr. Hill is entitled to relief.

THE EVIDENCE OVERWHELMINGLY SHOWS DANNY HILL IS A PERSON WITH

INTELLECTUAL DISABILITY.

There is no dispute that prong one is satisfied. The Warden has conceded the dispute is

whether the state court of appeals decision concerning Mr. Hill’s adaptive functioning was

reasonable or not. Hill, 11 F.4th at 387. All three experts agreed he had significant deficits in

functional academics. Supp APX 23, 69 (Hammer); 783 (Olley); 1112 (Huntsman). There can be

no doubt that Mr. Hill has significant deficits in several additional adaptive skill areas. The record

establishes he had poor personal hygiene; he was immature, passive, highly suggestible and easily

led and exploited by others; he behaved in socially inappropriate ways and had difficulty making

friends; he had difficulties with communication; he has never lived independently outside a

structured environment, and numerous experts and lay witnesses testified that he needed a rigid

structure and additional support to function in everyday life. At a minimum, the record establishes

that Mr. Hill suffers from significant deficits in social skills, communication, self-direction, selfcare, and work.

Virtually all the social history records (literally thousands of pages) were collected before

Mr. Hill’s eighteenth birthday. In addition, the original trial testimony related directly to the

developmental period, since Mr. Hill was arrested and charged with the capital crime only shortly

after his eighteenth birthday. Thus, the record also clearly establishes Mr. Hill’s deficits in both

intellectual functioning and adaptive behavior manifested before the age of eighteen. The Sixth

Circuit was incorrect in affirming the denial of habeas relief.

28 U.S.C. § 2254(d)(1) IS SATISFIED.

In Atkins, this Court instructed the states to “develop[] appropriate ways to enforce” Atkins’

mandate prohibiting the execution of offenders who, like Mr. Hill, are intellectually disabled. 536

U.S. at 321. The Ohio Supreme Court decided that Ohio would implement that instruction by

following the clinical framework set out by then-existing clinical guidelines of the AAMR and

APA. See Lott, 779 N.E.2d at 1014. But the state court decision rejecting Mr. Hill’s Atkins claim

deviated significantly from the clinical guidelines the Ohio Supreme Court instructed it to follow.

The most fundamental deviation was the trial court’s mandate, made at the State’s request, that the

evaluators limit their review to Mr. Hill’s “present functioning,” thereby excluding the vast

majority of information necessary for a reliable assessment of intellectual disability. The state

court used its narrow focus on present functioning to justify the broad and misplaced weight it

gave to Mr. Hill’s prison behavior, verbal behavior, and demeanor – analytical errors that likewise

contravene the clinical standards in place at the time. “Atkins supports the conclusion that

intellectual disability is not a transient condition.” Hill, 11 F.4th at 386 (citing Williams v. Mitchell,

792 F.3d 606, 619 (6th Cir 2019) (“past evidence of intellectual disability is relevant to an analysis

of an individual’s present intellectual functioning.”). Past evidence of intellectual disability was

therefore highly relevant to the issue before the state court. And, more importantly, by improperly

narrowing the focus of its legal inquiry, the state court gave short shrift to and ignored the large

body of evidence that typically forms the heart of a reliable clinical assessment. As a result, the

state court’s adjudication of Mr. Hill’s intellectual disability claim “resulted in a decision that was

contrary to or involved an unreasonable application of” Atkins, 28 U.S.C. §2254(d)(1).

FAILURE TO VACATE MR. HILL’S DEATH SENTENCE IS A FUNDAMENTAL

MISCARRIAGE OF JUSTICE

Despite the procedural barriers created by AEDPA, the failure to vacate Mr. Hill’s death

sentence is a “fundamental miscarriage of justice.” Sawyer v. Whitley, 505 U.S. 333 (1992). The

Warden, as represented by the Ohio Solicitor General, conceded at the en banc oral argument and

in the circuit briefing that Mr. Hill is intellectually disabled, but still argued that his death sentence

should be affirmed because of AEDPA deference. The majority decision agreed on several points

that the state court of appeals decision was misleading, incorrect, unclear, and incomplete on

several aspects of its review of Mr. Hill’s record. But the majority found the state court decision

was not unreasonable for purposes of §2254(d)(2).

The Ohio courts found Mr. Hill to be intellectually disabled before Atkins v. Virginia, after

a review of his school records and psychological reports. But when his condition meant he was no

longer death eligible under Atkins, the state courts determined Mr. Hill was therefore no longer

intellectually disabled on the same record, with the addition of his prison records. 14 Mr. Hill is

innocent of the death penalty because of his intellectual disability. That at its most fundamental

As the majority noted, prison records are discounted as “they provide little insight into how the

defendant would function in the general community.” Hill, 11 F.4th at 390.

level must be a miscarriage of justice that this Court needs to remedy. To allow the execution of

an intellectually disabled man should not be tolerated.

IV.

CONCLUSION

Habeas relief is warranted and appropriate under 28 U.S.C. §2254(d)(1) and (2). This Court

should find that Mr. Hill is entitled to relief on the Atkins claim and grant the petition for writ of

certiorari.

Respectfully submitted,

STEPHEN C. NEWMAN

Federal Public Defender

Ohio Bar No. 0051928

/s/ Vicki Ruth Adams Werneke

VICKI RUTH ADAMS WERNEKE

Ohio Bar No. 0088560

Assistant Federal Public Defender

Office of the Federal Public Defender

Capital Habeas Unit

Skylight Office Tower

1660 West Second St., Suite 750

Cleveland, OH 44113

(216) 522-4856 (o); (216) 522-1951 (f)

e-mail: vicki_werneke@fd.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.