WILLIE B. SMITH, III, Petitioner - Appellant,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent - Appellee.
from the United States District Court for the Northern
District of Alabama D.C. Docket No. 2:13-cv-00557-RDP
WILSON, MARTIN, and JORDAN, Circuit Judges.
WILSON, CIRCUIT JUDGE
B. Smith III, a death row inmate, appeals the district
court's denial of his 28 U.S.C. § 2254 habeas corpus
petition. The district court granted Smith a certificate of
appealability (COA) on whether he is intellectually disabled
and thus ineligible for the death penalty under Atkins v.
Virginia, 536 U.S. 304 (2002). We granted Smith's
request to expand the COA to include whether the prosecutor
at Smith's state trial struck jurors on the basis of
gender, race, and national origin in violation of the Sixth
and Fourteenth Amendments under Batson v. Kentucky,
476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S.
127 (1994). After careful review of the record and with the
benefit of oral argument, we affirm the district court's
denial of habeas relief.
Factual and Procedural Background
1992, an Alabama jury found Smith guilty of capital murder.
By a 10-2 vote, the jury recommended that Smith be sentenced
to death, which the court imposed.
Jury Selection and Batson Hearing
jury selection in Smith's trial, the state prosecutor
used 14 of his 15 peremptory strikes on women. The prosecutor
also struck several black venire members and the sole
Hispanic venire member. Smith's counsel objected, arguing
that the prosecutor was discriminating on the basis of
gender, race, and national origin. The state trial court held
that Smith failed to make a prima facie showing of
discrimination, and the trial proceeded. The ultimate jury
was comprised of five women and seven men.
direct appeal, the Alabama Court of Criminal Appeals (Alabama
CCA) found that Smith had provided sufficient evidence for a
prima facie showing of gender-based discrimination under
J.E.B. v. Alabama, 511 U.S. 127 (1994). See
Smith v. State, 698 So.2d 1166, 1169
(Ala.Crim.App.1997). The Alabama CCA remanded the case for a
hearing so that the prosecutor could present his reasons for
remand, the prosecutor offered explanations for each strike;
those explanations included employment, marital status, age,
knowledge of criminal law, and work with various churches and
religious groups. At the hearing, the prosecutor explained:
I struck a lot of these [venire members] because they worked
in the church; Sunday School teachers and Sunday School
leaders, and things of that nature, and . . . I knew the
defense counsel, if it came to the second phase of the
sentencing hearing, would be asking the jurors to show mercy.
And, it was my opinion that this argument would be receptive
to someone who worked in the church and was well versed in
the Bible more than someone who was not; be a female or male
juror that was a strong worker in the church. No male jurors
that was [sic] left seated on the jury worked in the church.
response, Smith's counsel argued that the prosecution did
not strike everyone who had religious
affiliations and questioned why the prosecution had not
asked any follow-up questions about the venire members'
religious beliefs. Next, the prosecutor explained that he
eliminated the sole Hispanic venire member because she was
young and did not respond to questions during voir dire;
Smith's counsel argued this explanation was insufficient.
state trial court ultimately found that the prosecutor's
reasons for striking the female venire members were gender
neutral, that those reasons were credible, and that Smith had
failed to prove that the prosecutor had acted in a
discriminatory manner. On appeal after remand, the Alabama
CCA affirmed. Smith v. State, 838 So.2d 413
(Ala.Crim.App.2002) (hereinafter Smith II). The
Supreme Court denied Smith's petition for writ of
certiorari. Smith v. Alabama, 537 U.S. 1090 (2002).
Smith's Post-Conviction Hearings
then filed a petition for state post-conviction relief under
Alabama Rule of Criminal Procedure 32. The petition included
a claim of intellectual disability, and the Rule 32 court
conducted an evidentiary hearing on this claim.
hearing, Dr. Salekin, Smith's expert, testified that
Smith scored a 64 on a full IQ test and exhibited adaptive
deficits in several areas. Dr. Salekin also testified,
however, that Smith scored relatively well on a separate test
that assessed Smith's language, reading, and mathematics
skills, and that these particular results were inconsistent
with a diagnosis of intellectual disability. Dr.
Salekin's final opinion was that Smith was not
intellectually disabled. Dr. Salekin also testified that
there was no national medical consensus on using the
"Flynn Effect" to adjust IQ scores.
state called Dr. King, who testified that Smith scored a 72
on a full IQ test, including verbal score of 75 and nonverbal
score of 74. Smith's score on the verbal portion of
Dr. King's IQ test matched a previous score he achieved
on the verbal portion of a partial IQ test administered by
Dr. Blotcky, a court-appointed psychologist. Like Dr. Salekin,
Dr. King's final opinion was that Smith was not
intellectually disabled, and he agreed that there was no
national medical consensus on using the Flynn Effect to
adjust IQ scores.
Rule 32 court denied Smith's Rule 32 petition, and the
Alabama CCA affirmed. Smith v. State, 112 So.3d 1108
(Ala.Crim.App.2012) (Smith III), cert.
denied, Ex parte Smith, 112 So.3d 1152 (Ala.
Further Procedural History
filed his original federal habeas petition in the Northern
District of Alabama, which the district court denied. One day
after denying Smith's petition, the district court
reopened the action for the sole purpose of considering the
effect, if any, of Moore v. Texas, 137 S.Ct. 1039
(2017), on Smith's Atkins claim. After
supplemental briefing, the district court concluded that
Moore did not apply retroactively and reaffirmed the
denial of Smith's petition. The district court granted
Smith a COA on his Atkins claim, and we granted him
a COA on his Batson claim.
Standard of Review
review de novo the district court's denial of a 28 U.S.C.
§ 2254 petition. Ward v. Hall, 592 F.3d 1144,
1155 (11th Cir. 2010). Because Smith filed his petition after
April 24, 1996, this appeal is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). AEDPA
"establishes a highly deferential standard for reviewing
state court judgments." Parker v. Sec'y,
Dep't. of Corr., 331 F.3d 764, 768 (11th Cir. 2003).
Under AEDPA, a federal court may only grant a writ of habeas
corpus if the state court's determination of a federal
claim was (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law" or (2)
"was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).
phrase "clearly established Federal law"
encompasses only the holdings of the Supreme Court of the
United States "as of the time of the relevant
state-court decision." Williams v. Taylor, 529
U.S. 362, 412 (2000). Section 2254(d) provides two separate
bases for reviewing state court decisions-"the
'contrary to' and 'unreasonable application'
clauses articulate independent considerations a federal court
must consider." Maharaj v. Sec'y, Dep't of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
court's determination is "contrary to" clearly
established federal law "if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on
a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts." Williams,
529 U.S. at 413. A state court's determination is
"an unreasonable application" of clearly
established federal law "if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case."
Id. Reasonableness is objective, and a federal court
may not issue a writ of habeas corpus simply because it
concludes in its independent judgment that the state court
was incorrect. Id. at 410.
under § 2254(d)(2), we presume that the state
court's findings of fact are correct unless rebutted by
clear and convincing evidence. See 28 U.S.C. §
2254(e)(1). "This deference requires that a federal
habeas court more than simply disagree with the state court
before rejecting its factual determinations. Instead, it must
conclude that the state court's findings lacked even fair
support in the record." Rose v. McNeil, 634
F.3d 1224, 1241 (11th Cir. 2011) (citations omitted).
first argues that the district court erred in holding that
the Supreme Court's recent holding in Moore v.
Texas did not apply retroactively to his intellectual
disability claim. We agree with the district court that
Moore is not retroactive. Smith also argues that the
Alabama state courts unreasonably applied Atkins v.
Virginia in evaluating his intellectual disability
claim. After careful review of the state court record and its
order, we hold that the state court's denial of his
intellectual disability claim was not an unreasonable
application of clearly established federal law.
The Non-Retroactivity of Moore v. Texas
Atkins v. Virginia, the predecessor to
Moore, the Supreme Court held that the execution of
individuals with intellectual disabilities violated the
Eighth Amendment. 536 U.S. 304 (2002). But the Court did not
define what it means to be intellectually disabled, leaving
that task to individual state legislatures and courts.
Id. at 317. In the years following Atkins,
states developed different criteria for assessing
intellectual disability. Some states delineated a bright line
threshold for IQ scores, while others did not.
Hall v. Florida, the Court clarified that a state
court's intellectual disability determination should be
"informed by the medical community's diagnostic
framework." 572 U.S. 701, 721 (2014). This meant, among
other things, that courts must consider the standard error
inherent in IQ tests when a defendant's test scores put
him "within the clinically established range for
intellectual-functioning deficits." Moore, 137
S.Ct. at 1050; see also Hall, 572 U.S. at 723. In
those cases, defendants must be allowed to present additional
evidence of intellectual disability, including testimony on
adaptive deficits. Hall, 572 U.S. at 723.
Moore, the Court expanded on Hall,
reiterating that state courts do not have "unfettered
discretion" in their determination of whether a capital
defendant is intellectually disabled. 137 S.Ct. at 1052.
Specifically, Moore established that states cannot
disregard current clinical and medical standards in assessing
whether a capital defendant is intellectually disabled. In
addition, the Court clarified that under prevailing clinical
standards, the focus of the adaptive functioning inquiry
should be an individual's adaptive deficits-not adaptive
strengths. Id. at 1050-51. After Moore,
states cannot "weigh" an individual's adaptive
strengths against his adaptive deficits.
Moore was decided five years after the Alabama state
courts decided Smith's Atkins claim, he concedes
that Moore could not have been "clearly
established Federal law" at that time. Smith instead
argues that Moore announced a new rule of
constitutional law that ...