Opposition Brief — Stripling v. Head, Warden

(2) Supreme Court, U.S

FILED

No. 03-1392

2004

OFFI F :

In The CE OF THE CLERK

Supreme Court of the Gnited States

42

Vv

ALPHONSO STRIPLING,

Petitioner,

v.

FREDRICK HEAD, WARDEN, GEORGIA DIAGNOSTIC

AND CLASSIFICATION PRISON,

Respondent.

2

vw

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

a

vw

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENT

y

Vv

THURBERT E. BAKER

Attorney General

MARY BETH WESTMORELAND

Deputy Attorney General

SUSAN V. BOLEYN

Senior Assistant Attorney General

KAREN A. JOHNSON

Counsel of record for Respondent

Assistant Attorney General

Please serve:

KAREN A. JOHNSON

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5734

~ WIBEST AVAILABLE COPY

BES OC DR cans OR yc Kr eae, ES ee tenes aN

i

QUESTION PRESENTED

Whether this Court should decline to grant certiorari

to examine a decision by the Georgia Supreme Court

merely involving the review of a state procedural rule that

is in accordance with the precedent of this Court and that

does not present a federal constitutional question for this

Court’s review?

TABLE OF CONTENTS

Page

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STATEMENT OF THE FACTS. ...............ccccccccsssssssseseees

REASONS FOR NOT GRANTING THE WRIT...........

I. ':dIS COURT SHOULD DECLINE TO GRANT

CERTIORARI TO EXAMINE A DECISION BY

THE GEORGIA SUPREME COURT MERELY

INVOLVING THE REVIEW OF A STATE PRO-

CEDURAL RULE THAT IS IN ACCORDANCE

WITH THE PRECEDENT OF THIS COURT

AND THAT DOES NOT PRESENT A FED-

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TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 5386 U.S. 304, 122 S.Ct. 2242

ee caaaewnpiinnmnliansneneneanens 7, 9, 10

Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373

| ne 8, 10

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595

| oi iecedccasscvvmventuciaveuvonianiaxaiessiase 10

| Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003) ...... 6, 8, 9

| Head v. Stripling, 277 Ga. 403, 590 S.E.2d 122

a ssn palabunanaspansuciunexeaes 6

Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002

oss dsbnechevainddsbaaboeananseonenen 7,9

Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997).....6, 7, 8

Partridge v. State, 256 Ga. 602, 351 S.E.2d 635

ass ss ash uusenyaaibosanniaso pion 9

Stripling v. Georgia, 502 U.S. 1124, 112 S.Ct. 1249

IN aa ia si casiens siceuaebenntnneadeuvsuredesowuns 2

Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991)...... 2,5

| STATUTES

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i

PART ONE

STATEMENT OF THE CASE

These crimes occurred on October 15, 1988. Petitioner

was indicted on October 16, 1988, by the Douglas County

grand jury for the murder of Gregory Bass, the murder of

Anthony Evans, the armed robbery of a Kentucky Fried

Chicken restaurant, the armed robbery of Jacquelyn E.

Priest, the aggravated assault of Moses Swanson, and the

aggravated assault of Ghassem Hamadany. Petitioner filed

a special plea of incompetence on June 5, 1989. A compe-

tency trial was held on June 19-20, 1989. The jury found

Petitioner competent to stand trial on June 20, 1989. The

trial of the case-in-chief began on June 21, 1989, and

ended on July i, 1989. The jury found Petitioner guilty on

all counts charged in his indictment.

At the conclusion of the sentencing phase, with regard

to count one, the murder of Gregory Bass, the jury found

the existence of the following statutory aggravating

circumstances beyond a reasonable doubt: (1) that the

murder was committed while Petitioner was engaged in

the murder of Anthony Evans, (2) that the murder was

committed while Petitioner was engaged in the armed

robbery of Moses Swanson, and (3) that the murder was

committed by a person with a prior conviction of armed

robbery. With regard to count two, the murder of Anthony

Evans, the jury found the existence of the following statu-

tory aggravating circumstances beyond a reasonable

doubt: (1) that the murder was committed while Petitioner

was engaged in the commission of the murder of Gregory

Bass, (2) that the murder was committed while Petitioner

2

was engaged in the armed robbery of Moses Swanson, and

(3) that the murder was committed by a person with a

prior conviction of armed robbery.’ The jury returned

death sentences for Petitioner on both murder counts. The

judge then sentenced Petitioner to death on both of these

counts, and further sentenced Petitioner to life imprison-

ment on count three, armed robbery, life imprisonment on

count four, armed robbery, twenty years on count five,

aggravated assault, and twenty years on count six, aggra-

vated assault, to run consecutively.

Petitioner filed a motion for new trial on August 9,

1989. This motion, as amended, was denied, after hearing,

on April 27, 1990. Petitioner filed his notice of appeal in

the Georgia Supreme Court on May 29, 1990. The Georgia

Supreme Court affirmed Petitioner’s convictions and

sentences on February 22, 1991. Stripling v. State, 261 Ga.

1, 401 S.E.2d 500 (1991). Petitioner’s motion for reconsid-

eration was denied on March 15, 1991. Petitioner filed a

Petition for Writ of Certiorari in this Court which was

denied on December 2, 1991. Stripling v. Georgia, 502 U.S.

985 (1991). Petitioner’s Petition for Rehearing was denied

on February 24, 1992. Stripling v. Georgia, 502 U.S. 1124,

112 S.Ct. 1249 (1992).

Petitioner filed a state habeas corpus petition on June

15, 1995, and amended that petition on March 5, 1998.

* Although the Georgia Supreme Court found that the murders

served as mutually supporting aggravating circumstances, the Court

found that each of Petitioner’s death sentences were adequately

supported by independent armed robbery statutory aggravating

circumstances. Stripling v. State, 261 Ga. 1, 7-8, 401 S.E.2d 500 (1991).

Accordingly, both of his death sentences were affirmed.

A RE NT

The evidentiary hearing in the state habeas case was held

on April 2-4, 2002, and evidence was presented by both

parties on Petitioner’s claims. Post-hearing briefing by the

parties followed. On October 7, 2002, the state habeas

court granted Petitioner’s petition for habeas corpus relief,

holding, inter alia, that the statutory burden of proof of

mental retardation beyond a reasonable doubt applicable

to Petitioner violated Georgia’s Constitution as well as the

United States Constitution. Respondent filed a notice of

appeal of the habeas court’s findings on November 14,

2002.

Following briefing and oral argument by the parties,

the Georgia Supreme Court on October 14, 2003, affirmed,

in part, and reversed, in part,’ the state habeas court’s

findings, reversing the portion of the state habeas court’s

order wherein the court found that the beyond a reason-

able doubt statutory burden of proof of mental retardation

violated the state and federal constitutions.

Respondent/Appellant then filed a motion for recon-

sideration of the portion of Georgia Supreme Court’s

decision affirming findings by the state habeas court,

which was denied on November 26, 2003.

Thereafter, Petitioner filed the instant petition in this

Court on April 5, 2004. The sole question presented in his

petition is whether the Georgia Supreme Court erred in

* This ruling by the Georgia Supreme Court did not impact the

finality of Petitioner’s convictions, but required that Petitioner’s case be

remanded to the trial court for a new trial on the issue of his alleged

mental retardation, as well as a new sentencing trial in the event that

the jury finds that he has failed to establish his alleged mental retarda-

tion beyond a reasonable doubt.

4

reversing the lower court’s finding as to the statutory

burden of proof for Georgia capital defendants alleging

that they are mentally retarded to avoid a death sentence

in the event of a findidg of guilt at trial.

+

DENIAL OF FACTUAL ALLEGATIONS

SET FORTH IN PETITION

Respondent denies the allegation set forth in Peti-

tioner’s petition wherein he implies that he has demon-

strated that he is mentally retarded under any standard.

Respondent further denida the implication in Peti-

tioner’s petition that the State’s only evidence presented at

trial on the issue of mental retardation consisted of evi-

dence casting doubt on Petitioner’s mother’s testimony, a

previous IQ score contrary to the IQ score reported by

Petitioner’ expert at trial, and the State expert’s “guess-

timate” that Petitioner’s IQ was in the normal range at

the time of his crimes. In fact, the expert called by the

State testified at trial, based on his clinical interview of

Petitioner and other evidence, that Petitioner did not meet

the criteria for a diagnosis of mental retardation. Tr. T.

2306-2307.

PART TWO

STATEMENT OF THE FACTS

The evidence supporting Petitioner’s convictions is

briefly summarized as follows:

On October 16, 1988, at approximately 12:15 a.m.,

Petitioner, Alphonso Stripling, a cook-trainee at a Ken-

tucky Fried Chicken restaurant (hereinafter “KFC”) in

5

Douglas County, Georgia, robbed the KFC at gunpoint

shortly after it closed for the evening. The evidence

showed that during the course of the robbery, Petitioner

shot each of his four co-workers, killing two and seriously

injuring the others. Petitioner then fled on foot with the

cash receipts from the KFC which totaled over sixteen

hundred dollars. A few moments later, Petitioner stole a

getaway car at gunpoint and began to drive toward At-

lanta, ultimately leading sheriff’s deputies on a high-

speed chase that reached one hundred and ten miles per

hour. Petitioner was arrested after deputies wrecked the

car that he was driving on a freeway exit ramp.

At the time of his arrest, Petitioner was in possession

of “the stolen car, the restaurant receipts, and the murder

weapon.” Stripling v. State, 261 Ga. 1, 401 S.E.2d 500

(1991).

PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. THIS COURT SHOULD DECLINE TO GRANT

CERTIORARI TO EXAMINE A DECISION BY

THE GEORGIA SUPREME COURT MERELY

INVOLVING THE REVIEW OF A STATE PRO-

CEDURAL RULE THAT IS IN ACCORDANCE

WITH THE PRECEDENT OF THIS COURT AND

THAT DOES NOT PRESENT A FEDERAL CON-

STITUTIONAL QUESTION FOR THIS COURT’S

REVIEW.

Petitioner has filed the instant petition for writ of:

certiorari because he disagrees with the Georgia Supreme

Court’s decision to reverse the lower court’s finding that

the state statute requiring him to prove his alleged mental

6

retardation beyond a reasonable doubt’ violates the Due

Process Clause of the United States Constitution. How-

ever, as this decision by the Georgia Supreme Court

comports with the clear precedent of this Court and does

not present a federal constitutional question for this

Court’s review, this petition for writ of certiorari should be

denied.

In reversing the state habeas court’s finding as to the

constitutionality of Georgia’s statutory burden of proof of

mental retardation applicable to Petitioner at trial, the

Georgia Supreme Court held as follows:

This issue has already been decided adversely to

Stripling. See Head v. Hill, 277 Ga. 255 (587

S.E.2d 613, 2003 Ga. LEXIS 850) (Case No.

S03A0559, decided (2003)); see also Mosher v.

State, 268 Ga. 555 (4) (491 S.E.2d 348) (1997).

O.C.G.A. § 17-7-131 is constitutional, and the

portion of the habeas court’s order to the con-

trary is reversed. On retrial, Stripling must bear

the burden of proving his alleged mental retarda-

tion beyond a reasonable doubt. See Head, supra.

Head v. Stripling, 277 Ga. 403, 590 S.E.2d 122 (2003).

In Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003), a

case decided prior to the decision by the Georgia Supreme

Court in the instant case, the Georgia Supreme Court set

out its rationale for adhering to its prior ruling affirming

Georgia’s statutory burden of proof applicable to mental

* O.C.G.A. § 17-7-131 states, in part, “The defendant may be found

‘guilty but mentally retarded’ if the jury, or the court acting as trier of

facts, finds beyond a reasonable doubt that the defendant is guilty of

the crime charged and is mentally retarded.”

retardation claims following this Court’s decision in Atkins

‘ v. Virginia, 536 U.S. 304 (2002), by stating the following:

Now that the Georgia exemption from death sen-

tences for mentally retarded persons is paral-

leled by a new federal exemption, we must

determine whether, under the authority of fed-

eral constitutional law, the beyond a reasonable

doubt standard continues to be an acceptable

standard of proof to apply to mental retardation

claims.

As we noted above, Atkins specifically left “‘to

the States the task of developing appropriate

ways to enforce the [federal] constitutional re-

striction’” on executing the mentally retarded.

Atkins v. Virginia, supra at 317 (III). Further-

more, nothing in Atkins instructs the states to

apply any particular standard of proof to mental

retardation claims. ... Therefore, we must apply

Georgia law, which was the first in the nation to

prohibit the execution of the mentally retarded,

in a manner which is consistent with established

federal constitutional principles as they have

been announced with respect to other, compara-

ble rights.

As we reasoned in Mosher, a mental retardation

claim is comparable to a claim of insanity at the

time of the crime in that both relieve a guilty

person of at least some of the statutory penalty

to which he would otherwise be subject. Accord-

ingly, we took guidance from Leland v. Oregon,

343 U.S. 790 (72 S.Ct. 1002) (1952), which ap-

proved application of the beyond a reasonable

doubt standard to insanity claims, and we con-

cluded that the same standard could be applied

constitutionally to mental retardation claims.

Mosher v. State, supra at 559-560 (4). We again

cs a

8

find the comparison between claims of insanity

and of mental retardation to warrant a conclu-

sion that the beyond a reasonable doubt stan-

dard may be applied constitutionally to mental

retardation claims.

Furthermore, as expressed in Mosher, supra at

560 (4),.we again distinguish the fundamental

right not to stand trial implicated in Cooper uv.

Oklahoma, 517 U.S. 348 (116 S.Ct. 1373) (1996)

from the procedural burden of proving mental

retardation. Contrary to the dissent’s obviously

inaccurate reading of Mosher, this Court specifi-

cally applied federal precedent and did not hold

that such “precedent had no bearing on what

burden of proof could be imposed. ... ” Dissent-

ing opinion, p. 271, fn. 13. Indeed, we have re-

peatedly rejected the application of Cooper’s

preponderance of the evidence standard to cases

involving retardation even as the number of

other jurisdictions requiring proof by a higher

standard has increased from two to five.

* * *

Since the reasonable doubt standard is clearly

constitutionally permissible for insanity deter-

minations, and we have already applied Cooper

and other federal authority to the choice of a

standard of proof in mental retardation cases,

and the General Assembly has selected the rea-

sonable doubt standard, we believe that Cooper

should not be extended to retardation decisions

unless the Supreme Court of the United States

so requires at some future date.

Head v. Hill, 277 Ga. at 260-261.

The Georgia Supreme Court further explained its

rationale for adhering to its prior decision to affirm the

9

validity of this state procedural rule in light of state and

fideral constitutional principles as follows:

. .. [W]e conclude that the special risks and limi-

tations suffered by truly mentally retarded per-

sons at trial are sufficiently counterbalanced by

the joint safeguards of Georgia’s procedure for

demonstrating incompetency to stand trial under

the preponderance of the evidence standard and

mental retardation under the beyond a reason-

able doubt standard. See O.C.G.A. §§ 17-7-130,

17-7-131 (c) (3), Q); Partridge v. State, 256 Ga.

602, 603 (1) (351 S.E.2d 635) (1987) (“the defen-

dant has the burden to prove incompetency by a

- preponderance of the evidence”).

We also conclude that a higher standard of proof

serves to enforce the General Assembly’s chosen

definition of what degree of impairment qualifies

as mentally retarded under Georgia law for the

purpose of fixing the appropriate criminal pen-

alty that persons of varying mental impairment

should bear for their capital crimes, in light of

their individual “diminished ... personal culpa-

bilities” and the varying degrees of deterrence

possible. Atkins v. Virginia, supra at 318-320

IV).

Head v. Hill, 277 Ga. at 262.

The Georgia Supreme Court correctly concluded that

its decision to affirm the validity of this state procedural

rule comports with the holding of Leland v. Oregon

wherein this Court affirmed Oregon’s burden of proof of

insanity despite the fact that all other states that had

addressed that issue had state statutes containing lower

burdens of proof.

10

The Supreme Court of Georgia also correctly con-

cluded that its decision to affirm this state procedural rule

did not conflict with the holding of Cooper v. Oklahoma

which rested upon this Court’s determination that the

right not to be tried while incompetent was a long-

standing, deep-rooted fundamental principle of common

law to which common law had traditionally and consis-

tently applied a preponderance of the evidence burden of

proof. By contrast, the instant federal prohibition, which

was only recently announced, clearly has no such attached

deep-rooted, fundamental standard of proof. Accordingly,

the Georgia Supreme Court properly held that this state

procedural rule did not violate the requirements of Cooper.

Finally, the Supreme Court of Georgia likewise cor-

rectly held that its decision to affirm this state procedural

rule comports with the clear and explicit directive of this

Court in Atkins leaving “to the States the task of develop-

ing appropriate ways to enforce the constitutional restric-

tion upon its execution of sentences,” 536 U.S. at 317, just

as it did in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct.

2595 (1986), with regard to the determination of the issue

of competency to be executed.

Thus, as the Georgia Supreme Court’s decision to

reaffirm this state procedural rule presents no federal

constitutional question warranting this Court’s considera-

tion, this Court should deny this petition in its entirety.

+

CONCLUSION

WHEREFORE, because the Georgia Supreme Court’s

determination as to this issue does not conflict with the

clear precedent of this Court and does not present a

11

federal constitutional question for this Court’s review,

Respondent prays that the petition for writ of certiorari

filed on behalf of Alphonso Stripling be denied.

Respectfully submitted,

THURBERT E. BAKER

Attorney General

Mary BETH WESTMORELAND

Deputy Attorney General

SUSAN V. BOLEYN

Senior Assistant Attorney General

KAREN A. JOHNSON

Counsel of record for Respondent

Assistant Attorney General

Please serve:

KAREN A. JOHNSON

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5734

—

Supreme Court, U.S

(¥) MAY - 3 2074

,

;

OFFICE OF THT ULE |

No. 03-1392

Jn the Supreme Court of the Gnited States

ALPHONSO STRIPLING,

Petitioner,

V.

FREDRICK HEAD, WARDEN,

GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of Georgia

REPLY BRIEF FOR PETITIONER

DIANE GREEN-KELLY MITCHELL D. RAUP

Mayer, Brown, Rowe & Counsel of Record

Maw LLP DAVID M. GOSSETT

190 S. LaSalle Street CARL J. SUMMERS

Chicago, IL 60603 Mayer, Brown, Rowe &

(312) 782-0600 Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Petitioner

REPLY BRIEF FOR THE PETITIONER

This Court observed in Atkins v. Virginia that “some

characteristics of mental retardation undermine the strength

of the procedural protections that our capital jurisprudence

steadfastly guards.” 536 U.S. 304, 317 (2002) (emphasis

added). For example, mentally retarded defendants are more

likely to give false confessions, less able “to make a persua-

sive showing of mitigation,” and “less able to give meaning-

ful assistance to their counsel.” Jd. at 320-321. Because of

their reduced abilities, “|mJentally retarded defendants in the

aggregate face a special risk of wrongful execution” (id. at

321), and that is a “justification for a categorical rule making

such offenders ineligible for the death penalty” (id. at 320).

But mentally retarded defendants may be put to death as

easily by procedural rules as by the substantive laws that the

Court condemned in 4tkins. This case shows how. The ha-

beas court found that the evidence Mr. Stripling presented at

his criminal trial probably “was sufficient to prove his mental

retardation by at Jeast a preponderance of the evidence.” Pet.

App. 94a (emphasis added). However, under Georgia’s

statutory procedure, a defendant may be executed although

he has proven that he is mentally retarded by a preponder-

ance of the evidence — or even by clear and convincing evi-

dence. Respondent does not dispute that Georgia’s

procedure will cause wrongful executions of mentally re-

tarded defendants.

In Cooper v. Oklahoma, this Court held that “[b]ecause

Oklahoma’s procedural rule allows the State to put to trial a

defendant who is more likely than not incompetent, the rule

is incompatible with the dictates of due process.” 517 U.S.

348, 369 (1996). Georgia’s rule is even worse than the rule

in Cooper because (1) it requires proof by a higher standard,

and therefore allocates more of the risk of error to the defen-

dant; and (2) the consequences of error are far more pro-

2

found: death by unconstitutional execution. The Georgia

statute denies defendants due process by requiring them to

prove their mental retardation beyond a reasonable doubt be-

fore they may invoke their substantive nights under Atkins.

See Cooper, 517 U.S. at 362-367.

As we demonstrated in the petition, this Court should

grant certiorari to review the Georgia Supreme Court’s deci-

sion upholding the constitutionality of the Georgia statute.

That decision (1) conflicts with the decisions of several other

state courts of last resort, (2) cannot be reconciled with Coo-

per, and (3) is based on a flawed understanding of the federal

due process limitations on state procedural rules. Respon-

dent’s arguments to the contrary are entirely unpersuasive.

1. Respondent does not even attempt to deny that state

courts of last resort are split on the question presented. See

Pet. 10-12. Nor does he deny that this split will only get

deeper until this Court resolves the question (id. at 14-15), or

that review will provide necessary guidance to state legisla-

tures and courts (ibid.). Instead of addressing these reasons

why certiorari should be granted, respondent dwells on the

entirely irrelevant facts of the crime (Br. in Opp. 1-5) and

three pages of quotes from the Georgia Supreme Court’s de-

cision in Head v. Hill, 587 S.E.2d 613 (Ga. 2003) (see Br. in

Opp. 7-9), which is reproduced in full in the Appendix to the

Petition (at 106a-135a).

2. Respondent’s assertion that the petition “does not

present a federal constitutional question for this Court’s re-

view” (Br. in Opp. 6; see id. at i, 10-11) is completely frivo-

lous. Respondent does not deny that petitioner raised the

federal due process issue in both the habeas court and the

Georgia Supreme Court, and in fact quotes the Georgia Su-

preme Court’s explicit holding that the challenged statute “‘is

constitutional’” (Br. in Opp. 6 (quoting Pet. App. 12a)). Re-

spondent confuses the jurisdictional question whether peti-

tioner’s coustitutional claim was presented to and resolved

3

by the lower court with the entirely distinct issue of whether

the lower court found a constitutional violation. There can

be no dispute that petitioner raised, and the Georgia Supreme

Court resolved, a federal constitutional challenge to Geor-

gia’s mental retardation statute. Thus, review by this Court

is entirely appropriate.

3. Respondent’s claim that the decision below is correct

(Br. in Opp. 9, 10) entirely ignores our explanation of why

the decision cannot be reconciled with Cooper. See Pet. 16-

21. Respondent does not deny (a) that mentally retarded

criminals have a federal constitutional right not to be exe-

cuted, (b) that Georgia is the only state to require defendants

to prove their own mental retardation beyond a reasonable

doubt, or (c) that because of Georgia’s procedural rule, men-

tally retarded defendants wil] be executed despite their men-

tal retardation. That cannot possibly be called fair, directly

subverts Atkins, and is barred by federal due process under

Cooper. But even if the Georgia Supreme Court’s resolution

of the question presented were correct, the split among state

courts of last resort on that question would nonetheless war-

rant this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DIANE GREEN-KELLY MITCHELL D. RAUP

Mayer, Brown, Rowe & Counsel of Record

Maw LLP DAVID M. GOSSETT

190 S. LaSalle Street CARL J. SUMMERS

Chicago, IL 60603 Mayer, Brown, Rowe &

(312) 782-0600 Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Petitioner

May 2004

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