Sunday, March 29, 2015

Habeas, Death Penalty Argument Preview

The Supreme Court will hear oral arguments tomorrow in Brumfield v. Cain, the case testing how state courts must consider evidence of mental retardation in death penalty sentencing proceedings. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:


1. Is a state post-conviction court’s decision “based on an unreasonable determination of the facts,” when the court relied only on evidence that the petitioner submitted at his sentencing hearing (and refused to allow the petitioner to submit additional evidence of his intellectual disability)?

2. Did a state post-conviction court violate a clearly established constitutional right when it declined to provide funds to the petitioner to help him establish his intellectual disability?


On January 7, 1993, at about 12:10 a.m., Corporal Betty Smothers, a 36-year-old off-duty police officer, escorted Kimen Lee, assistant manager of a Piggly Wiggly grocery store in Baton Rouge, Louisiana, to a bank to make the store’s nightly deposit. As the police car pulled into the night depository lane at the bank, two individuals appeared on opposite sides of the car and fired shots at Smothers and Lee. Smothers was pronounced dead at 12:42 a.m. (Despite being hit four times, Lee managed to drive the car half a mile to a convenience store. She survived.)

Kevan Brumfield initially denied any involvement in the crime. But later, after police interrogation, he confessed to driving the car, and later still, to shooting the victims. A jury convicted Brumfield of first-degree murder, and the state sought the death penalty.

At the sentencing hearing, Brumfield’s mitigation case focused on his abusive childhood and the mental and emotional difficulties he had throughout his life. In addition to family members and Brumfield’s fourth-grade teacher, Brumfield produced two experts. One of those, Dr. Cecile Guin, testified to Brumfield’s developmental issues, literally from birth. She testified that Brumfield weighed only 3.5 pounds at birth, that he “was born with slower responses than normal babies,” and that “there is definitely a[n] indication that when he was born they knew that something was wrong at that point.” She also explained that by the third grade Brumfield’s teachers “knew that there were problems,” and that they referred him for a special education evaluation. Dr. Guin described Brumfield as having “intellectual problems,” and testified that he appeared to have “learning problems” that were misdiagnosed as behavioral problems. She said that “Kevan’s basic problem is that he – he could not process information.”

The other expert, Dr. John Bolter, gave similar testimony about Brumfield’s developmental issues starting at birth. Dr. Bolter also testified that he administered a Wechsler IQ test to Brumfield, and that Brumfield scored 75, which Dr. Bolter described as “borderline general intelligence” and “on the low end of intelligence.” Dr. Bolter explained that Brumfield was “reading at about the fourth grade level, and that’s simple word recognition. That’s not even comprehension . . . .” Dr. Bolter testified that Brumfield’s math and spelling skills were at about a sixth-grade level.

Despite the expert testimony, Brumfield is adamant that “[h]e did not put on a case that he was clinically intellectually disabled.”

The sentencing hearing lasted just one day, and the jury recommended a death sentence. The Louisiana Supreme Court affirmed Brumfield’s conviction on direct appeal, and the United States Supreme Court denied review. On March 25, 2000, Brumfield filed a post-conviction petition in state court. While that petition was pending, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits the execution of intellectually disabled individuals. Soon thereafter, the Louisiana Supreme Court adopted the clinical definition of intellectual disability in Atkins. State v. Williams, 831 So. 2d 835 (La. 2002). Brumfield then amended his state petition to assert that he is intellectually disabled and that his execution would violate the Eighth Amendment. Brumfield submitted the evidence he produced at his sentencing hearing in support of his amended petition. But because he argued that the court could not determine his intellectual disability on this evidence alone, Brumfield also asked for an opportunity to present additional evidence of his intellectual disability and funding to obtain expert assistance in producing this additional evidence.

The state court declined Brumfield’s request for an opportunity to present additional evidence and dismissed Brumfield’s petition. (The court did not specifically address Brumfield’s request for funding.) The court explained that

Dr. Bolter in particular found he [Brumfield] had an IQ of over – or 75. Dr. Jordan [whose report was referenced by Dr. Guin] actually came up with a little bit higher IQ. I do not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified that he did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant hadn’t carried the burden placing the claim of mental retardation at issue. Therefore, I find he is not entitled to that hearing based on all of those things that I just set out.

Brumfield filed an application for supervisory writs with the Louisiana Supreme Court, but the court denied the application without an opinion.

On November 4, 2004, Brumfield filed a petition for a writ of habeas corpus in federal district court. He argued, among other things, that the state court’s dismissal of his Atkins claim without a hearing and without funding violated federal law. The district court appointed counsel, and the Federal Public Defender Board provided expert funding. In 2007, Brumfield amended his petition to incorporate the expert findings.

A magistrate judge issued a Report and Recommendation, which found that the state court’s refusal to grant an Atkins hearing based only on the evidence that Brumfield submitted to the state court was “reasonable and in accordance with clearly established law.” But the Report also concluded that the state court should consider the additional evidence that Brumfield presented in his amended habeas petition. The magistrate judge concluded that Brumfield had established a prima facie case of intellectual disability such that he was entitled to an Atkins hearing. The district court adopted the magistrate’s Report and Recommendation and held an Atkins evidentiary hearing. On February 22, 2012, the district court granted Brumfield’s petition for a writ of habeas corpus on the ground that he is intellectually disabled and therefore ineligible for execution. The district court issued a permanent injunction, prohibiting the state from executing Brumfield. The state appealed, and the United States Court of Appeals for the Fifth Circuit reversed. The appeals court ruled that the state court did not violate federal law denying Brumfield a hearing and funding to establish his intellectual disability. This appeal followed.


The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits a federal court from granting a prisoner’s writ of habeas corpus unless the state court’s ruling:

(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2)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.

28 U.S.C. Sec. 2254(d). In this case, the parties dispute two independent issues. First, the parties dispute whether the state court, in denying Brumfield’s request for an opportunity to present additional evidence of his intellectual disability, and relying only on evidence that Brumfield produced at his sentencing hearing, based its decision on “an unreasonable determination of the facts” in violation of Section 2254(d)(2). Second, they dispute whether the state court’s denial of funding was an “unreasonable application” of federal law, as “determined by the Supreme Court,” in violation of Section 2254(d)(1).

I. State Post-Conviction Court Process and Section 2254(d)(2).

Brumfield argues that the state post-conviction court’s ruling denying him an opportunity to present additional evidence of his intellectual disability was “patently unreasonable” in violation of Section 2254(d)(2). Brumfield says that the state court’s refusal to grant him a hearing was based solely on the court’s review of his sentencing record, which was developed well before Atkins held that the Eighth Amendment prohibits the execution of an intellectually disabled person, and well before the Louisiana Supreme Court adopted its own definition of intellectual disability. In other words, Brumfield claims that he made his mitigation case at sentencing before the Court rejected the death penalty for intellectually disabled persons and before the Louisiana courts defined the clinical standards for intellectual disability—without an eye to his intellectual disability (because his intellectual disability wasn’t determinative at the time). He contends that the state post-conviction court, in relying only on his sentencing record alone, therefore could not have considered whether he was intellectually disabled, because the sentencing record contained no evidence of it.

But even so, Brumfield argues that his sentencing record nevertheless supports a finding of intellectual disability. That’s because the record reflects an IQ score of 75, a score consistent with intellectual disability. He says that other evidence, too, supports a finding of intellectual disability: the expert’s testimony that “something was wrong” with Brumfield at birth, that he was recommended for special education programs, that he could not process information, and that he could read only at a fourth-grade level and do math and spell at only a sixth-grade level. Brumfield argues that this “evidence presented in the State court proceeding” (in the language of Section 2254(d)(2)) should have prompted the state post-conviction court to conduct a hearing. He says that its determination otherwise was “patently unreasonable,” and that the federal district court was justified in conducting such a hearing.

The state argues that the federal courts (the district court and the Fifth Circuit) were right to find that the state post-conviction court reasonably denied Brumfield’s Atkins claim based on the record before it. That evidence, presented by expert witnesses, said that Brumfield had an IQ of at least 75, had adaptive skills inconsistent with intellectual disability (as evidenced by his orchestration of this crime and other crimes), and had not manifested any signs of neuropsychological disorder before the age of 18. The state contends that this evidence was sufficient for the state post-conviction court to reasonably conclude that Brumfield was not intellectually disabled.

The state argues further that Brumfield’s claim that the state post-conviction court should have given him an opportunity to present additional evidence lacks merit. The state points to the plain language of Section 2254(d)(2), which limits the judicial inquiry to the “evidence” that was “presented in the State Court proceeding”—exactly the evidence that the state post-conviction court considered. The state says that the Court’s ruling in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), confirms its reading. The state contends that the Court in Pinholster ruled that a Section 2254(d)(1) challenge is strictly limited to “the record that was before the state court,” and that both the majority and dissent agreed in that case that this reading applies even more forcefully to Section 2254(d)(2) challenges. The state concludes that Brumfield’s argument that the state post-conviction court violated Section 2254(d)(2) by failing to give him an opportunity to develop his claim of intellectual disability simply lacks merit.

II. Denial of Funding and Section 2254(d)(1).

Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim was contrary to, and an unreasonable application of, the Court’s clearly established law in violation of Section 2254(d)(1). Brumfield points to two cases. In the first, Ake v. Oklahoma, 470 U.S. 68 (1986), the Court held that, when an indigent capital defendant shows that his mental condition will be a “significant factor” at trial or sentencing, the state must assure access to a mental health expert, given the importance of expert evaluation in evaluating insanity. Brumfield argues that the Ake principle applies here. (Ake itself is not squarely on point. Brumfield relies instead on its animating principle.) He says that because his post-conviction proceeding was his first opportunity to raise his Atkins claim (because Atkins came down only after his sentencing), the Ake principle required the court to assure access to an expert to assess his intellectual disability. Brumfield contends that the state post-conviction court failed this test.

In the second case, Ford v. Wainwright, 477 U.S. 399 (1986), the Court held that capital defendants asserting an insanity defense had a due process right to present expert testimony in opposition to the state’s evidence on insanity. Without that right, he says, the state denies the defendant his constitutionally guaranteed “opportunity to be heard” and “invites arbitrariness and error.” Brumfield contends that the Ford principle applies here, too. He says that the state post-conviction court denied his claim for funding only after it denied his Atkins claim altogether. Brumfield contends that this deprived him of any opportunity to obtain an expert any other way, and thus deprived him of his rights under Ford.

Finally, Brumfield appeals to language in the Court’s latest ruling on the death penalty, Hall v. Florida. 134 S. Ct. 1986 (2014). Brumfield quotes the Hall Court: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim violates that principle.

The state argues that Brumfield’s claim for funding under federal law must fail, because he neglected to exhaust that claim. The state says that Brumfield never actually sought funding from the state post-conviction court or asked for time to find pro bono expert assistance under federal law; his request came only under state law. The state claims that Brumfield’s failure to assert a claim for funding under federal law means that the Court can either decline to reach this question or to reject his claim on the merits.

The state argues next that Brumfield’s Section 2254(d)(1) claim must fail on the merits. The state claims that no decision of the Court clearly establishes a due process right to state-funded expert assistance on state post-conviction review. The state says that Atkins itself did not establish such a right (and instead left it to the states to develop their own procedures); Ake has not been extended to state post-conviction review (Ake applies only at trial); and Ford does not guarantee a right to funding. Without clear support from the Court, the state contends that Brumfield cannot show that the state post-conviction court violated a “clearly established” right.

The state argues that Brumfield’s contention that the state post-conviction court’s simultaneous denial of his funding request and his request for a hearing violated due process is without merit. The state says that this argument presumes that Brumfield had a clearly established right to submit expert testimony “at the threshold stage of his Atkins claim.” But the state contends that Brumfield had no such clearly established right. The state says that neither Atkins nor Ford established such a right. (The state says that the due process rights in Ford arose only after a threshold showing had been made.) In any event, the state argues that this claim is not properly before the Court. The state says such a claim must be decided on direct review, and that Brumfield forfeited that chance when he declined to seek an appeal to the Supreme Court after the Louisiana Supreme Court declined review.

Finally, the state argues that if Brumfield wins on either claim (Section 2254(d)(2) or Section 2254(d)(1)), the Court should remand the case to the Fifth Circuit (and not decide it itself). According to the state, that’s because the Fifth Circuit “has not issued a decision as to whether the district court correctly granted the writ.” But whichever court makes the final decision, the state claims that Brumfield cannot establish that he is intellectually disabled, even with additional evidence.


This case will fill some of the gaps left open by the Court’s two recent principal decisions on the death penalty and intellectual disability. That is, the case will tell us more about how state courts must go about determining whether a person is intellectually disabled and thus exempt from the death penalty.

The Court’s seminal ruling on the issue came in Atkins v. Virginia. As described above, the Court in that case ruled that the Eighth Amendment prohibited the execution of an intellectually disabled person. But Atkins left significant questions open, especially about process. In particular, Atkins left the states to “develop [an] appropriate way[] to enforce the constitutional restriction upon its execution of [death] sentences” against intellectually disabled persons.

The Court partially answered one of those questions last Term in Hall v. Florida. The Court ruled in that case that a state’s practice of requiring a person to show an IQ score of 70 or below before being able to present additional evidence of an intellectual disability was unconstitutional.

Still, the Court left open significant procedural questions, including the questions in this case. This case may answer some of those procedural questions and may give clues as to how the Court will view others.

But the answers we get might not be entirely clear. That’s because the underlying substantive issues in this case (how a person can show that he is intellectually disabled, and the assistance from the court that he is entitled to) are complicated by the AEDPA standard of deference. In other words, the Court need only determine whether the state post-conviction court’s rulings were reasonable or consistent with clearly established law—and not (necessarily) the precise metes and bounds of Brumfield’s underlying claims (whether the law required that he receive an opportunity to present additional evidence and receive funding).

One final point. Brumfield’s case is highly unusual, in that he apparently fell through the cracks during the time after Atkins came down but when Louisiana was still crafting its Atkins procedures and simultaneously dealing with a crisis in indigent defense. As explained by a retired Chief Justice of Louisiana, the Louisiana Association of Criminal Defense Lawyers, and the Promise of Justice Institute, together as amicus curiae,

In each of the [other eighteen cases of defendants prosecuted prior to Atkins], it is shown that the Atkins claimants were provided an opportunity to present and litigate their claims via [state-funded capital defender offices]. In Louisiana’s chaotic effort to enforce the protections of Atkins, Petitioner Brumfield appears to be the only condemned prisoner who did not receive state resources to develop his claim.

Amicus states further that “[i]t is unquestionable, that if tried today, or even any period after 2004 . . . [Brumfield] would have had access to state funded resources to prepare and present a claim of intellectual disability.”

While this doesn’t necessarily alter the legal landscape of the case, it could be a factor in the Court’s ruling.

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