Alfredo Prieto v. David Zook ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4
ALFREDO PRIETO,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cv-00849-HEH)
Argued: May 13, 2015 Decided: June 30, 2015
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Shedd and Judge Diaz joined.
ARGUED: Miriam Bamberger Airington, BOWEN, CHAMPLIN, FOREMAN &
ROCKECHARLIE PLLC, Richmond, Virginia, for Appellant. Alice
Theresa Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee. ON BRIEF: Cary B. Bowen,
BOWEN, CHAMPLIN, FOREMAN & ROCKECHARLIE PLLC, Richmond,
Virginia, for Appellant. Mark R. Herring, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Alfredo Rolando Prieto appeals the district court’s denial
of his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He contends that the Eighth Amendment
prohibition on the execution of intellectually disabled persons,
as set forth in Atkins v. Virginia, 536 U.S. 304 (2002), and
Hall v. Florida, 134 S. Ct. 1986 (2014), renders his two death
sentences unconstitutional. We affirm.
I.
In 2007, a Virginia jury convicted Prieto of two counts of
capital murder, two counts of use of a firearm in the commission
of murder, grand larceny, and rape. Prieto v. Commonwealth, 682
S.E.2d 910, 914 (Va. 2009) (“Prieto I”). 1 Discovery of juror
misconduct at the sentencing phase of the 2007 trial led to a
mistrial, but in 2008, a second jury convicted Prieto on all
counts. Id. at 913. During the sentencing phase of his second
trial, Prieto argued that he was intellectually disabled and
therefore ineligible for the death penalty under Atkins. Prieto
introduced substantial evidence in support of his claim of
intellectual disability, but the jury found that he was not
1 The crimes for which Prieto was convicted occurred in
1988, but Prieto was not linked to the murders until 2005, when
DNA testing led police to identify him as a suspect. Prieto I,
682 S.E.2d at 915-16.
2
intellectually disabled and imposed the death penalty on the two
murder counts. Id. at 914, 916-17.
On direct appeal, the Supreme Court of Virginia affirmed
Prieto’s convictions but vacated his death sentences due to
defects in the jury verdict forms at the penalty phase. Id. at
935-36. In 2010, on remand for resentencing of the capital
murder convictions, a third jury unanimously recommended the
death penalty for both murder convictions. (Prieto did not
argue that he was intellectually disabled at the resentencing.)
The state trial court entered an order imposing the death
penalty on both capital murder counts, and the Supreme Court of
Virginia affirmed both sentences. Prieto v. Commonwealth, 721
S.E.2d 484, 489 (Va.) (“Prieto II”), cert. denied, Prieto v.
Virginia, 133 S. Ct. 244 (2012).
Prieto next filed a habeas petition with the Supreme Court
of Virginia, raising several claims, including contentions that
his counsel was constitutionally ineffective and that his
execution was barred by Atkins. See Prieto v. Warden of Sussex
I State Prison, 748 S.E.2d 94, 105 (Va. 2013) (“Prieto III”).
As relevant here, that court held that Prieto could not raise
his Atkins claim in his state habeas petition because he had
failed to raise the claim on direct appeal of the 2010 order
imposing the death sentences. Id. Under Virginia law, that
failure meant his Atkins claim had been procedurally defaulted.
3
Id. The state habeas court dismissed the remainder of Prieto’s
claims. Id. at 98.
Pursuant to 28 U.S.C. § 2254, Prieto then filed the present
habeas application in federal court, again raising a number of
claims. The district court dismissed most of Prieto’s claims as
meritless; it dismissed his Atkins claim as procedurally
defaulted. We granted a certificate of appealability as to the
Atkins claim.
II.
“Construing and applying the Eighth Amendment in the light
of our ‘evolving standards of decency,’” the Supreme Court in
Atkins held that “death is not a suitable punishment for a
mentally retarded 2 criminal.” 536 U.S. at 321 (citation
omitted). However, acknowledging the difficulty “in determining
which offenders are in fact retarded,” the Court “le[ft] to the
State[s] the task of developing appropriate ways to enforce the
constitutional restriction” on the death penalty that it
announced in Atkins. Id. at 317 (second alteration in original)
(internal quotation marks and citation omitted).
2 Later, the Supreme Court substituted the term
“intellectual disability” for “mental retardation.” Hall, 134
S. Ct. at 1990. We do the same, except when quoting from cases,
statutes, and testimony that use the term “mentally retarded”
and pre-date the Court’s guidance in Hall.
4
Responding to this directive, Virginia enacted a statute
defining “mentally retarded” as
a disability, originating before the age of 18 years,
characterized concurrently by
(i) significantly subaverage intellectual functioning
as demonstrated by performance on a standardized
measure of intellectual functioning administered in
conformity with accepted professional practice, that
is at least two standard deviations below the mean and
(ii) significant limitations in adaptive behavior as
expressed in conceptual, social and practical adaptive
skills.
Va. Code Ann. § 19.2-264.3:1.1(A).
Virginia’s highest court interpreted this “two-fold test”
to require, under the first prong, an IQ score of 70, “below
which one may be classified as being mentally retarded.”
Johnson v. Commonwealth, 591 S.E.2d 47, 59 (Va. 2004), vacated
and remanded on other grounds sub. nom., Johnson v. Virginia,
544 U.S. 901 (2005). In other words, the state court held that
a defendant with an IQ score of 71 or higher could not be
“mentally retarded” under Virginia law.
Last year, however, the Supreme Court clarified in Hall
that a state that “seeks to execute a man because he scored a 71
instead of 70 on an IQ test. . . . misconstrues the Court’s
statements in Atkins.” 134 S. Ct. at 2001. The Court deemed
unconstitutional a Florida statute containing a “rigid rule”
imposing IQ cutoffs for intellectual disability. Id. The Hall
5
Court explained that a state’s assessment of a defendant’s
intellectual disability should focus on whether he evidenced,
beginning “during the developmental period,” both (1)
“significantly subaverage intellectual functioning,” and (2)
“deficits in adaptive functioning (the inability to learn basic
skills and adjust behavior to changing circumstances).” Id. at
1994. The Court emphasized that these two criteria are
“interrelated” and that no “single factor [is] dispositive.”
Id. at 2001. Accordingly, “an individual with an IQ test score
between 70 and 75 or lower may show intellectual disability by
presenting additional evidence regarding difficulties in
adaptive functioning.” Id. at 2000 (internal quotation marks
and citation omitted).
After Hall, it is clear that the Supreme Court of
Virginia’s prior interpretation of the first prong of the
Virginia statute violates the Eighth Amendment. The Hall Court
said as much, identifying Virginia as one of only two states to
“have adopted a fixed [IQ] score cutoff identical to Florida’s.”
Id. at 1996. Hall established that a state may not deny a
defendant the opportunity to establish his intellectual
disability based on evidence of “deficits in adaptive
functioning over his lifetime,” simply because that defendant
has an IQ score above 70. Id. at 2001. But the fact that
Virginia operated under an unconstitutional definition of
6
“intellectual disability” at the time of Prieto’s sentencing
does not resolve the Atkins inquiry if, as the state habeas
court and the district court held, Prieto has procedurally
defaulted that claim. We therefore turn first to that question.
III.
A.
Federal courts “will not review a question of federal law
decided by a state court” if the state court’s decision rests on
an independent and adequate state law ground. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). When a state habeas
court declines to address a prisoner’s federal constitutional
claims “because the prisoner had failed to meet a state
procedural requirement[,] . . . the state judgment rests on
independent and adequate state procedural grounds.” Id. at 730.
In these circumstances, “concerns of comity and federalism”
dictate against a federal court’s review of that judgment. Id.In reviewing Prieto’s state habeas petition, the Supreme
Court of Virginia determined that he had procedurally defaulted
his Atkins claim because he could have raised it on direct
review of his 2010 sentence but had failed to do so. See Prieto
III, 748 S.E.2d at 105. The court explained that, under the
procedural rule established by Slayton v. Parrigan, 205 S.E.2d
680, 682 (Va. 1974), a “non-jurisdictional issue [that] could
7
have been raised during the direct appeal process . . . is not
cognizable in a petition for a writ of habeas corpus.” Prieto
III, 748 S.E.2d at 105. We previously have held that this
precise Virginia procedural default rule constitutes an
independent and adequate state ground for a denial of a state
habeas petition. See Mu’Min v. Pruett, 125 F.3d 192, 196-97
(4th Cir. 1997).
In this appeal, Prieto does not challenge the Supreme Court
of Virginia’s determination that he defaulted his Atkins claim.
That is, he does not argue that he actually did raise his Atkins
claim on direct review. As such, Prieto’s Atkins claim is
procedurally defaulted, and he is ineligible for relief unless
one of the two exceptions to procedural default applies. See
Hedrick v. True, 443 F.3d 342, 366 (4th Cir. 2006). Prieto
asserts that an exception to procedural default saves his Atkins
claim.
B.
A habeas petitioner can rescue his constitutional claim
from procedural default if he establishes either “cause and
prejudice” for the default or that the default would yield a
“fundamental miscarriage of justice.” Mackall v. Angelone, 131
F.3d 442, 445 (4th Cir. 1997) (citing Harris v. Reed, 489 U.S.
255, 262 (1989)). In his § 2254 petition before the district
court, Prieto argued that both exceptions applied to his case.
8
Because constitutionally ineffective assistance of counsel
may provide “cause” for a procedural default, Prieto argued that
his counsel’s failure to present evidence of his intellectual
disability at his 2010 resentencing constituted such ineffective
assistance. See Murray v. Carrier, 477 U.S. 478, 488 (1986).
The district court, however, found Prieto’s ineffective
assistance claim meritless, and so held that Prieto had failed
to show “cause and prejudice” excusing the procedural default.
Prieto does not challenge that ruling in this appeal. As a
result, the only way Prieto’s Atkins claim survives his
procedural default is through a showing that enforcing the
default would result in a “fundamental miscarriage of justice.”
See Smith v. Murray, 477 U.S. 527, 537-38 (1986).
The Supreme Court has explained that a “fundamental
miscarriage of justice” occurs “where a constitutional violation
has probably resulted in the conviction of one who is actually
innocent.” Carrier, 477 U.S. at 496. The Court later clarified
in Sawyer v. Whitley, 505 U.S. 333, 341 (1992), that “actual
innocence” may also mean “innocent of death” in the sentencing
context. This means that in a capital case, a habeas petitioner
can make a showing of “actual innocence,” and qualify for the
exception, by proving through “clear and convincing evidence
that, but for a constitutional error, no reasonable juror would
9
have found the petitioner eligible for the death penalty under
the applicable state law.” Id. at 336.
Prieto does not argue that he is actually innocent of the
crimes for which he was convicted. Rather, he argues only that
he is “innocent of death.” Thus, for us to excuse his
procedural default, Prieto must show that, if instructed
properly under Hall and Atkins, “no reasonable juror” could have
found him eligible for the death penalty under Virginia law.
This presents an extremely high bar. 3
IV.
Prieto rests his claim of actual innocence on the Supreme
Court’s decision in Hall. Neither we nor the Supreme Court has
determined whether Hall applies retroactively to cases on
collateral review. 4 For purposes of Prieto’s “actual innocence”
inquiry we will assume without deciding, as the district court
3 Indeed, the “clear and convincing evidence” standard for
establishing “actual innocence” in the capital sentencing
context is “more stringent” than the standard for establishing
“actual innocence” of the conviction itself. Schlup v. Delo,
513 U.S. 298, 326-27 (1995). The latter requires only a showing
that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Id. at 327(internal quotation marks and citation omitted).
4 The two federal appellate courts that have ruled on this
question to date have held, over dissents, that Hall does not
apply retroactively on collateral review. See In re: Henry, 757
F.3d 1151, 1161 (11th Cir. 2014); Goodwin v. Steele, 2014 U.S.
App. LEXIS 23149 (8th Cir. 2014) (per curiam).
10
did, that Hall does apply retroactively on collateral review.
Under this assumption, the district court concluded that “Prieto
has not shown by clear and convincing evidence that no
reasonable juror would have sentenced him to death because he is
intellectually disabled.” We review the denial of Prieto’s
habeas application de novo. Hedrick, 443 F.3d at 349.
The only evidence that Prieto points to in support of his
“actual innocence” claim is the evidence introduced at the
sentencing hearing following his 2008 conviction. 5 At that
hearing, both Prieto and the Commonwealth offered a good deal of
evidence as to both prongs of Virginia’s statute: intellectual
functioning and adaptive functioning. In his § 2254 petition,
Prieto focuses on the adaptive functioning evidence.
That evidence included the testimony of multiple expert
witnesses. Prieto’s chief witness, Dr. Ricardo Weinstein, a
forensic neuropsychologist with expertise in brain development,
conducted “a comprehensive evaluation of Mr. Prieto’s
neuropsychological functioning” and adaptive functioning. He
explained that adaptive functioning includes occupational
5Prieto and the Commonwealth filed a joint appendix in
Prieto’s direct appeal of his 2008 conviction and sentencing,
Prieto I. We quote from and rely on the materials in that joint
appendix in discussing the evidence presented at Prieto’s 2008
sentencing.
11
skills, activities of daily living, self-esteem, interpersonal
abilities, self-direction, language, and academic abilities.
Dr. Weinstein’s evaluation of Prieto’s adaptive functioning
included interviews with Prieto’s relatives in California and El
Salvador. He also interviewed individuals from the El
Salvadorian government “to understand more about what was going
on in the country” when Prieto was a child. Prieto “was
described as a shy and withdrawn child in adolescence,” and “as
having problems learning simple tasks.” Interviewees told
Dr. Weinstein that Prieto “was easily manipulated by relatives
and friends”; kids his age “did not like to play with him
because . . . he couldn’t understand the rules”; and he had
“problems acquiring academic skills” and “problems controlling
his emotions.” Dr. Weinstein also spent “between twenty and
thirty hours” over a number of visits with Prieto, administered
tests to assess Prieto’s behavioral skills, and examined the
records kept by California prisons on Prieto.
Dr. Weinstein stated that his research uncovered many risk
factors for adaptive functioning deficits throughout Prieto’s
childhood. In El Salvador, Prieto grew up in extreme poverty,
characterized by poor nutrition, a lack of running water, and
little cognitive stimulation. He suffered abuse from his
alcoholic father and abandonment by his mother, and he had to
contend with uncertainty as a result of wars in El Salvador, as
12
well as witnessing his grandfather’s shooting death. After
Prieto moved to California as a teenager, he began abusing drugs
and alcohol, was often in trouble with the law, and married his
pregnant girlfriend at a young age. Ultimately, Dr. Weinstein
opined that Prieto “had adaptive behavior deficits . . . during
his developmental years.” He also opined that Prieto’s
neurological testing revealed “a brain dysfunction” affecting
areas of the brain “that deal with judgment, deal with being
able to foresee consequences of behaviors, control sexuality,
control aggression, . . . [and] are responsible[] for . . .
empathy.”
Other witnesses for Prieto offered similar testimony.
Psychiatrist Dr. Pablo Stewart testified that after meeting with
Prieto, he concluded that Prieto “suffers from post trauma
stress disorder[,] . . . has impaired cognitive functioning, and
. . . has a history of chronic polysubstance dependence.”
Neuropsychiatrist Dr. James Merikangas testified that Prieto’s
brain scans revealed damage to the areas of the brain that
“control one’s emotions, [and] control one’s impulses.” Members
of Prieto’s family, including his mother and siblings, testified
about the harsh conditions of Prieto’s childhood and about his
early development. Hence, Prieto’s defense at his 2008
sentencing included testimony from a wide array of sources about
the limits of his adaptive functioning.
13
At the same time, however, the Commonwealth also presented
extensive evidence that Prieto’s adaptive functioning was not
deficient. The jury heard from the prosecution that three
prison psychologists had evaluated Prieto when he was
incarcerated in California and that each had concluded that he
was not intellectually disabled. One of these psychologists
reported that Prieto’s “cognitive functions were adequately
developed, and that his level of conceptual thinking and
reasoning were adequate for the formation of good judgement
[sic].” The jury learned that Prieto had written his own prison
grievances challenging his lack of access to recreation and had
filed a pro se legal challenge to the conditions of his
confinement on Virginia’s death row. In these documents, Prieto
employed accurate legal terminology and to prepare them, he
conducted self-directed legal research. The jury received
copies of Prieto’s elementary and high school report cards
indicating that he mostly received grades of “good” and ”very
good.” The jury was reminded that Prieto acted alone in his
crimes, and that he had exhibited leadership abilities when
committing prior crimes.
The prosecution offered its own key witness, clinical and
forensic psychologist Dr. Leigh Hagan, who interviewed Prieto
and reviewed past reports on him by prison officials,
Dr. Weinstein, and Dr. Merikangas. Dr. Hagan testified that
14
Prieto understood the structure of jail, had a fairly
sophisticated vocabulary, could cogently discuss foreign policy
and political issues, could speak both English and Spanish, and
did not exhibit significant limitations in his conceptual or
social skills. The doctor cited evidence that Prieto could
engage respectfully with others, could work within social
networks, had been involved in intimate interpersonal
relationships, and could perform daily mathematical and
analytical tasks without difficulty.
Dr. Hagan further highlighted evidence that Prieto had been
able to obtain driver’s licenses in Virginia and California,
secure employment, operate power equipment, fly cross-country,
arrange his own housing, negotiate the purchase of a car, and
employ aliases to avoid detection. He noted that Prieto could
explain “why it was important to have his hair cut for court,”
because “he understood the value of creating a good impression,”
reflecting his social awareness. Ultimately, Dr. Hagan
concluded that Prieto’s “adaptive functioning falls above the
threshold of significant limitations,” because of his
“conceptual reasoning, [his] social capacity, and his practical
skill.”
In short, although Prieto offered evidence of poor adaptive
functioning, the Commonwealth also offered compelling evidence
refuting the existence of any adaptive deficits. Prieto does
15
not contend that, were he resentenced, he would seek to present
additional evidence of deficits in his adaptive functioning that
he did not present at his 2008 sentencing. As a result, we are
left to conclude that a jury at resentencing would face much of
the same evidence. Absent some new “smoking gun,” evidence of
Prieto’s adaptive functioning deficits is at best inconclusive.
Consequently, Prieto cannot clear the high “actual innocence”
threshold. Prieto simply cannot establish that no reasonable
juror, faced with all of this evidence as to his adaptive
functioning, would find him eligible for the death penalty –-
even if the jury were instructed properly under Hall.
Perhaps because of this, Prieto argues that the evidence he
has already presented is similar to the evidence Hall offered to
prove his intellectual disability. But that comparison fails.
First, the Hall Court never concluded that Hall was
intellectually disabled, so it is unclear how any similarities
aid Prieto in establishing his own disability. In fact,
instructing that, on remand, Hall should be permitted to present
evidence of defects in his adaptive functioning, the Supreme
Court expressly noted that Hall “may or may not be
intellectually disabled.” Hall, 134 S. Ct. at 2001. Moreover,
even were Prieto’s case like Hall’s, Prieto is subject to a much
higher burden of proof because of his procedural default. Hall
did not have to prove he was “actually innocent” of the death
16
penalty before the Court could consider the merits of his Eighth
Amendment claim; Prieto does.
On the record before us, we cannot conclude that after
Hall, no reasonable juror would find Prieto eligible for the
death penalty. For, “[t]o say that no reasonable juror” would
have found Prieto eligible for a death sentence, “we would have
to ignore the totality of evidence,” which included significant
evidence that his adaptive functioning is not deficient.
Calderon v. Thompson, 523 U.S. 538, 565 (1998). And absent a
showing that he is “actually innocent” of the death penalty,
Prieto cannot overcome the procedural default that bars
consideration on the merits of his Atkins claim. 6
6 Brumfield v. Cain, No. 13-1433, 576 U.S. –- (June 18,
2015), issued after oral argument in this case, does not affect
our holding. The Supreme Court limited its holding in Brumfield
to an application of Louisiana law to the evidence presented in
that case. The Court did not purport to alter its prior
teachings about intellectual disability, procedural default, or
the actual innocence exception. Rather, the Court simply held
that the state habeas court’s refusal to grant Brumfield an
evidentiary hearing on his intellectual disability claim, as
permitted by Louisiana law, was based on “an unreasonable
determination of the facts” within the meaning of 28 U.S.C.
§ 2254(d)(2). Brumfield, however, had not procedurally
defaulted his claim of intellectual disability under Atkins.
Thus, unlike Prieto, he did not have to prove that he was
actually innocent of the death penalty before a federal habeas
court could consider the merits of that claim. Prieto’s
procedural default forces him to satisfy this high standard of
proof, and Brumfield in no way disturbs our conclusion that he
has failed to do so.
17
V.
The “fundamental miscarriage of justice” exception to
procedural default imposes a “demanding” burden on habeas
petitioners challenging their death sentences. Id. at 559. It
provides a basis for relief only in “extraordinary instances.”
McCleskey v. Zant, 499 U.S. 467, 494 (1991). Prieto has failed
to establish that this path around procedural default is open to
him. Accordingly, the judgment of the district court is
AFFIRMED.
18