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Jackson v. Kelley

United States Court of Appeals, Eighth Circuit

August 7, 2018

Alvin Bernal Jackson Plaintiff- Appellant
v.
Wendy Kelley, 1 Director, Arkansas Department of Correction Defendant-Appellee

          Submitted: January 11, 2018 [1]

          Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         Once more our Court faces the task of deciding whether Petitioner Alvin Bernal Jackson was improperly denied habeas corpus relief. This is Jackson's third appeal to this Court seeking a finding that he is intellectually disabled under Ark. Code Ann. § 5-4-618(a)(1), which, in accordance with the Supreme Court's decision in Atkins v. Virginia, would exempt him from the death penalty. Atkins, 536 U.S. 304, 321 (2002) (finding "that death is not a suitable punishment for a mentally retarded criminal"). Jackson argues that the district court erred by creating and applying an additional intellectual disability test not present in either § 5-4-618(a) or Atkins and by applying the diagnostic criteria from the DSM-V[2] rather than the DSM-IV.[3] When the district court conducted its evidentiary hearing and issued its order, it did not have the benefit of the Supreme Court's decision in Moore v. Texas, 137 S.Ct. 1039 (2017). Because the Court in Moore gave significant instructions on how to analyze Atkins claims, we reverse and remand for the district court to consider Jackson's claims in light of that decision.

         I. Background

         In 1990, Jackson was convicted for the capital murder of Charles Colclasure and sentenced to life in prison. While serving his sentence, Jackson killed Scott Grimes, a prison guard with the Arkansas Department of Correction. In 1996, he was convicted for the capital murder of Grimes and sentenced to death.

         In 2003, Jackson filed a petition pursuant to 28 U.S.C. § 2254 raising an Atkins claim and asking that the court find him intellectually disabled and thus ineligible for the death penalty. Larry Norris, the former Director of the Arkansas Department of Correction, filed a motion for summary judgment claiming that Jackson's claim was procedurally defaulted and without merit. In 2007, the district court dismissed Jackson's claim as procedurally defaulted and denied Jackson's motion for a certificate of appealability. We granted Jackson a certificate of appealability on his Atkins claim and reversed and remanded the matter to the district court. Jackson v. Norris, 256 Fed.Appx. 12 (8th Cir. 2007) (per curiam) (unpublished).

         On remand, the district court ordered Jackson to respond to Norris's pre-appeal summary judgment motion. Jackson responded and filed a motion for discovery and funds to retain experts. In 2009, the district court granted Norris's motion for summary judgment and dismissed Jackson's Atkins claim on the merits. Jackson again appealed, and we reversed and remanded, finding that Jackson was entitled to an Atkins hearing. Jackson v. Norris, 615 F.3d 959 (8th Cir. 2010).

         Upon remand, the district court granted Jackson's motion for discovery and funds to retain experts. The court conducted an evidentiary hearing and heard from two experts: Dr. James Moneypenny, Jackson's expert, and Dr. Gilbert S. Macvaugh, III, Kelly's expert. The district court issued a detailed opinion, walking through the several tests administered to Jackson throughout his lifetime and the facts surrounding Jackson's crimes and incarceration. The court decided that the DSM-V definition of intellectual disability was the appropriate standard to use to determine whether Jackson was intellectually disabled. After parsing the DSM-V standard and the evidence presented at the hearing, the district court decided to credit Dr. Macvaugh's clinical opinion and found that Jackson was not intellectually disabled. Jackson now appeals.

         II. Discussion

         Jackson essentially makes two arguments on appeal. First, he argues the district court erred in analyzing § 5-4-618(a) when it determined that he is not intellectually disabled. Second, he contends the district court erred in applying the DSM-V's intellectual disability standard rather than the DSM-IV's because the DSM-V was not published at the time of his hearing.

         A. Intellectual Disability

         Jackson argues that the district court erred in finding that he was not intellectually disabled and is therefore eligible for the death penalty. "The legal standard applicable to an Atkins claim presents a pure question of law, which we review de novo. Whether an individual is mentally retarded under the applicable legal standard, however, is a pure question of fact, which we review for clear error." Sasser v. Hobbs, 735 F.3d 833, 841-42 (8th Cir. 2013) (internal citations omitted).

         The Arkansas statute barring the execution of persons with an intellectual disability defines intellectual disability as follows:

(A) Significantly subaverage general intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the developmental period, but no later than age eighteen (18) years of age; and (B)A deficit in adaptive behavior.

§ 5-4-618(a)(1). "[T]he Arkansas Supreme Court has consistently construed [this statute] to be concurrent with the federal constitutional right established in Atkins." Sasser, 735 F.3d at 842. Jackson bears the burden of proving his intellectual disability "by a preponderance of the evidence." ...


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