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Pruitt v. Neal

United States Court of Appeals, Seventh Circuit

June 2, 2015

TOMMY R. PRUITT, Petitioner-Appellant,
v.
RON NEAL, Superintendent, Indiana State Prison, Respondent-Appellee

Argued: April 9, 2014.

Page 249

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:09-cv-00380-RLM -- Robert L. Miller, Jr., Judge.

For Tommy R. Pruitt, Petitioner - Appellant: Marie F. Donnelly, Attorney, Evanston, IL; Laurence E. Komp, Attorney, Manchester, MO.

For RON NEAL, Respondent - Appellee: James Blaine Martin, Attorney, Office of The Attorney General, Indianapolis, IN.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

OPINION

Page 250

Tinder, Circuit Judge.

Tommy R. Pruitt appeals the district court's denial of his petition for a writ of habeas corpus. A jury in Indiana state court convicted Pruitt of murdering a deputy sheriff and he was sentenced to death. His petition under 28 U.S.C. § 2254 raises four claims: (1) he is intellectually disabled and therefore categorically and constitutionally ineligible for the death penalty; (2) his trial counsel rendered ineffective assistance in violation of his Sixth Amendment rights by failing to present evidence to support his claim of intellectual disability; (3) his trial counsel rendered ineffective assistance by failing to investigate and present at the penalty phase mitigating evidence regarding his schizophrenia and its effects; and (4) the prosecutor violated Pruitt's right to due process by reciting a poem about the death of a police officer and comparing Pruitt to notorious murderers in the closing argument of the penalty phase of trial, and appellate counsel was ineffective in failing to raise this as an error on appeal. With regard to the second ineffective-assistance-of-counsel claim ((3) above), Pruitt challenges only counsel's presentation of evidence at the penalty phase of trial; he is not asserting ineffectiveness in failing to seek a determination of guilty but mentally ill or in otherwise presenting mental health evidence at the guilt phase of trial.

We conclude that Pruitt has established that he is intellectually disabled and categorically ineligible for the death penalty and that trial counsel were ineffective in their investigation and presentation of evidence that Pruitt suffered from schizophrenia. We therefore reverse the district court's judgment and remand for further proceedings not inconsistent with this opinion.

I. BACKGROUND

A. Underlying Crime

These facts are taken from the Indiana Supreme Court decision affirming Pruitt's conviction and sentence. Pruitt v. State, 834 N.E.2d 90 (Ind. 2005) ( Pruitt I), cert. denied, Pruitt v. Indiana, 548 U.S. 910, 126 S.Ct. 2936, 165 L.Ed.2d 962 (2006).

On June 14, 2001, Morgan County Deputy Sheriff Daniel Starnes stopped Pruitt's vehicle. Starnes obtained Pruitt's driver's license and registration, called that information in, and was told that a recent robbery report suggested Pruitt might be in possession of stolen weapons. When Starnes approached Pruitt's vehicle a second time, Pruitt emerged with a handgun, and the two exchanged gunfire. Starnes was struck by five shots. He was taken to the hospital and underwent surgery. He later developed an infection and died.

The state ultimately charged Pruitt with murder, attempted murder (Pruitt also shot Ryan Starnes, Deputy Starnes's son, who was accompanying his father as part of a college internship), and related offenses. The state sought the death penalty because Starnes was a law enforcement officer killed in the line of duty.

B. State and Post-Conviction Proceedings

The trial court appointed attorneys William Van Der Pol, Jr. and Douglas Garner to represent Pruitt. Before trial Pruitt sought a determination of intellectual disability in a death sentence case, requesting that the court order an evaluation and dismiss the death penalty. The court ordered

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an evaluation of Pruitt and appointed forensic psychologist Dr. George W. Schmedlen, Ph.D., J.D., for that purpose.

The trial court conducted a week-long evidentiary hearing at which Pruitt presented two expert witnesses, clinical neuropsychologist Dr. Bryan A. Hudson, and clinical neuropsychologist and professor of psychology Dr. Charles J. Golden, Ph.D., as well as non-expert testimony and other evidence in an effort to establish his intellectual disability. Pruitt's experts testified that Pruitt is intellectually disabled based on his IQ test scores and their assessment of his adaptive functioning. However, Dr. Schmedlen and the state's expert, psychologist Dr. Martin G. Groff, Ph.D., testified that Pruitt was not intellectually disabled. The trial court found that Pruitt " does not have significantly subaverage intellectual functioning," Pruitt I, 834 N.E.2d at 103, noting that at most, " Pruitt's functioning would be considered borderline--not [intellectually disabled]," id. at 104. The trial court also found " that the defense has failed to prove by clear and convincing evidence that Mr. Pruitt has substantial impairment of adaptive behavior." Id. at 108. The trial court was " particularly impressed with Mr. Pruitt's ability to function as a carpenter, obtain a commercial driver's license, perform duties of an over the road truck driver and fill out applications for employment." Id. at 108-09. Therefore, the court denied Pruitt's motion to dismiss the death penalty.

At the guilt phase of the trial, the jury convicted Pruitt of murder, attempted murder, and related offenses. At the penalty phase, the defense presented evidence of Pruitt's background and intellectual disability. Drs. Hudson and Golden again testified that Pruitt is intellectually disabled, and Dr. Golden also testified about Pruitt's mental illness. The jury found that Deputy Starnes was a law enforcement officer acting in the course of his duty at the time he was murdered and that this aggravating circumstance outweighed any and all mitigating circumstances, and recommended a sentence of death. In imposing sentence for the convictions other than murder, the trial judge considered the " possible mitigating factors as presented in the[] proceedings" and found that none of them " constitute a mitigating circumstance." Trial Tr. 6455. The judge also concluded that " Pruitt does not have a mental condition which would justify his actions or in any way mitigate for purposes of sentencing" and that the " aggravating factors outweigh any possible mitigating factors." Id. at 6455-56. The judge sentenced Pruitt to a total of 115 years on the other offenses. In imposing sentence for murder, the judge found that the jury determined that the State had proven beyond a reasonable doubt the aggravating circumstance that Starnes was a law enforcement officer acting in the course of his duty, that this aggravating circumstance outweighed any and all mitigating circumstances, and that a sentence of death should be imposed. The judge accordingly sentenced Pruitt to death.

Pruitt appealed his murder conviction and sentence directly to the Indiana Supreme Court; the court affirmed. Pruitt I, 834 N.E.2d 90. Although that court concluded that the trial court's standard for assessing adaptive behavior was too restrictive and that the record did not support the trial court's conclusion with respect to adaptive behavior, id. at 109-110, it decided that the evidence supported the trial court's conclusion with respect to the intellectual functioning. The court explained:

While some of Pruitt's scores suggest significantly subaverage intellectual functioning, others do not. In addition to this data, the trial court found that

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Pruitt was able to fill out applications for employment and to have the capacity, if not the will at all times, to support himself. In light of the inconsistent IQ scores and the other evidence cited by the trial court, the trial court's finding that Pruitt did not meet the statutory test is consistent with this record.

Id. at 106. The Indiana Supreme Court therefore upheld the trial court's conclusion that Pruitt was not intellectually disabled. Id. at 106, 110. Justice Rucker dissented, concluding that Pruitt had shown that he is intellectually disabled and therefore a death sentence was unconstitutional and statutorily impermissible. Id. at 123-26.

Next, Pruitt petitioned for post-conviction relief. At the hearing on his petition, he presented testimony from newly retained experts as well as from psychologist Dr. Dennis Olvera, Ph.D., who had been retained by trial counsel to conduct IQ testing of Pruitt but had not testified at trial. Pruitt also presented evidence from his trial attorneys and appellate attorney, family, and educators. The postconviction court denied Pruitt's petition and motion to correct errors, finding as to the intellectual disability claim that Pruitt's " additional evidence ... presented at the postconviction hearing was largely cumulative of the evidence developed before and [during] trial and is entirely unpersuasive." PCR App. 688. (The court also found the claim barred by res judicata. Id.)

The Indiana Supreme Court affirmed. State v. Pruitt, 903 N.E.2d 899 (Ind. 2009) ( Pruitt II), reh'g denied, 907 N.E.2d 973 (Ind. 2009). The court found that " Pruitt has offered no evidence undermining the correctness of the trial court's and this Court's findings that he is not [intellectually disabled]" and therefore concluded that his death sentence was not unconstitutional under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Pruitt II, 903 N.E.2d at 938 (quotation omitted). Justice Rucker again dissented on the basis of Pruitt's intellectual disability. Id. at 940.

Pruitt petitioned for writ of habeas corpus under § 2254 in the United States District Court for the Northern District of Indiana. The district court heard oral argument and then denied the petition. Pruitt v. Wilson, No. 3:09cv380RLM, 2012 WL 4513961 (N.D. Ind. Oct. 2, 2012). Pruitt moved the court to alter or amend its decision; the motion was denied. The district court granted Pruitt a certificate of appealability.

C. Pretrial and Guilt-Phase Evidence

1. Intellectual Functioning

Before he turned 18, Pruitt took two Lorge-Thorndike group-administered IQ tests. In March 1973, he scored a verbal IQ of 64, and a non-verbal IQ of 65. In December 1976, he scored a verbal IQ of 64 and a non-verbal IQ of 63. These scores fall within the intellectually disabled range. However, the state's expert Dr. Groff testified that he would give little weight to these scores; Dr. Hudson agreed that individually administered tests are better indicators of an individual's ability. Nonetheless, the Lorge-Thorndike test is designed to measure general intelligence, and Dr. Hudson explained that the research demonstrates an " extremely high correlation" between the Lorge-Thorndike and Weschler series of intelligence tests. Both Drs. Groff and Golden agreed that since Pruitt obtained essentially the same scores on the two tests, he gave his best effort. Dr. Golden indicated that these scores suggested that Pruitt's IQ was " fairly stable" at that point in time. Trial Tr. 1550. Both Drs. Hudson and Golden stated that the IQ scores obtained as a child would most accurately measure

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Pruitt's intelligence before age 18. Id. at 1355-56 (Hudson stating that " IQ is meant to be diagnosed in childhood." ); id. at 1551 (Golden stating that in assessing IQ, scores obtained before age 18 are " absolutely" more important than scores obtained after that age).

Pruitt took two academic achievement tests while in school. In March of 1975, he took the Otis-Lennon School Ability Test and scored 81. Dr. Schmedlen testified that this score was inconsistent with intellectual disability. However, Dr. Schmedlen was unaware that the Otis-Lennon was known as the " Otis-Lennon School Ability Test" and that the Otis-Lennon score was not given as an IQ score. He also acknowledged that the Otis-Lennon test was not of the same quality as a Weschler or Stanford-Binet intelligence test. Dr. Hudson stated that the Otis-Lennon test was an achievement test normed by grade rather than age. He explained that Pruitt's score was compared to the scores of children two years younger than Pruitt because he had been held back in school twice by the time he took the test. Dr. Golden similarly testified that an academic achievement test is not an appropriate substitute for an IQ test: although an achievement test " roughly correlate[s] somewhat with IQ, it is not an IQ test at all." Trial Tr. 1546. He stated that the Otis-Lennon score overestimated Pruitt's IQ score by 15 to 25 points because the test was an achievement test comparing scores among students in the same grade. See id. at 1518-19. In April 1975, Pruitt took the Iowa Basic Test, another academic achievement test. His score on that test was consistent with his Otis-Lennon score; but again, his scores were normed by grade rather than age. Had his achievement test scores been adjusted for his age, Dr. Golden testified that they would fall within the range for intellectual disability.

At the age of 19 while incarcerated on another matter, Pruitt took a Revised Beta intelligence test and scored 93. The test is group-administered in fifteen minutes. Trial Tr. 672. Dr. Schmedlen testified that such a score was inconsistent with having significantly subaverage intellectual functioning; instead, the score fell within the average intellectual functioning range. However, Dr. Schmedlen acknowledged that individually administered tests are considered more reliable than group administered tests. Trial Tr. 659-60. While Dr. Schmedlen testified that he believed the test was reliable, he did not actually determine whether the Revised Beta was a reliable test. Id. at 672. And he acknowledged that the test was not as reliable as the Weschler series or Stanford-Binet intelligence tests. Furthermore, Drs. Hudson and Golden testified that the Revised Beta is a non-verbal test developed by the Army in World War II for testing non-English speaking persons. It was normed on prisoners, not on the average population. Thus, Dr. Golden stated that the Revised Beta " is not an accurate test, it is not well regarded in the field, and it is not well accepted in the field as a general test of intelligence." Id. at 1541. According to Dr. Golden, a Revised Beta score " severely overestimates" an individual's IQ; if a Revised Beta is the only score available in a forensic file, Dr. Golden subtracts 20 to 30 points from the score to obtain what he would consider to reflect actual intellectual functioning. Id. at 1543.

In April 2002, Pruitt obtained a full-scale IQ score of 76 on the Weschler Adult Intelligence Scale, Third Edition (WAIS) administered by his own expert Dr. Olvera. Trial counsel had sought Dr. Olvera's evaluation because they intended to pursue a determination that Pruitt is intellectually disabled and not eligible for a death sentence. The WAIS has a standard error of

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measurement (SEM) of five points that placed Pruitt's score within the range of 71 to 81. However, Dr. Olvera advised trial counsel that Pruitt's full-scale IQ score of 76 did not meet the intelligence functioning prong of intellectual disability. Dr. Schmedlen stated that this score placed Pruitt in the " borderline range." Dr. Hudson said there was a one-point error in scoring the test and that Pruitt was taking an antipsychotic medication (Trilafon) that Hudson believed enhanced Pruitt's abilities. Dr. Golden agreed, stating that if a person with a psychiatric disorder is given antipsychotic medication, his IQ scores " may go up significantly." Trial Tr. 1500. In addition, the medical literature supports the conclusion that an antipsychotic drug could enhance Pruitt's performance on an IQ test because of improvements in attention and focusing. The trial court found that the 76 on the WAIS placed Pruitt above the intellectually disabled level of intellectual functioning. The Indiana Supreme Court noted that the trial court had found insufficient evidence to show what, if any, effect the Trilafon may have had on Pruitt's performance on the test. Pruitt I, 834 N.E.2d at 105.

In February 2003, Dr. Golden administered a Stanford-Binet (4th ed.) individually administered IQ test to Pruitt; he obtained a full-scale IQ score of 65. The test has an SEM of six points, placing Pruitt's IQ score within the 59-71 range. Subaverage intelligence is measured by the Stanford-Binet as a score below 69. Dr. Schmedlen testified that Pruitt's score indicated that he is intellectually disabled. Trial Tr. 668. Dr. Golden testified that alternative scoring methods for the test could have produced scores of 67 or 69. Both Drs. Golden and Hudson stated that the Stanford-Binet was more sensitive and accurate than the WAIS in assessing individuals with very high or very low IQs.

In July 2003, Dr. Schmedlen administered the WAIS to Pruitt; Pruitt scored a full-scale IQ of 52. That score, Dr. Schmedlen testified, was not an accurate measure of Pruitt's intellectual functioning because he did not believe that Pruitt gave his full effort on the test. Drs. Golden and Hudson agreed that the score likely underestimated Pruitt's IQ because of malingering. They also noted that Pruitt was no longer being administered antipsychotic medication and had been in solitary confinement just before taking the test, both of which could have increased the likelihood of psychotic symptoms that would lower his performance on the test. As support, they indicated that Pruitt's scores varied from the prior WAIS on subtests that were particularly sensitive to anxiety, depression, or psychosis, but showed little variance on those subtests that were more stable.

Dr. Schmedlen testified at the pretrial hearing that Pruitt was not intellectually disabled, relying on IQ tests, achievement tests, an assessment of his adaptive functioning, and Pruitt's ability to hold jobs and perform other tasks. Dr. Schmedlen believed that at most Pruitt would be in the borderline range of intellectual functioning. He took into account Pruitt's 93 on the Revised Beta, a score that Dr. Schmedlen thought was inconsistent with intellectual disability. He also thought that Pruitt's 81 on the Otis-Lennon test should be interpreted as an IQ score.

Dr. Groff also testified at the pre-trial hearing that Pruitt was not intellectually disabled. However, Dr. Groff did not meet or test Pruitt; nor did he interview anyone about Pruitt. Based only on his review of records in the case, Dr. Groff stated that his impression was that Pruitt was " probably within the borderline intellectual functioning range." Tr. 1463. Yet Dr. Groff conceded that he could not address

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Pruitt's intellectual functioning " with certainty." Id.

2. Adaptive Functioning

The American Association on Mental Retardation (AAMR) (now the American Association on Intellectual and Developmental Disabilities) defined a " substantial impairment in adaptive functioning" as limitations in two or more of the adaptive skill areas: communication, self-care, home living, social, community use, self-direction, health and safety, functional academics, leisure, and work. Dr. Schmedlen administered an objective test of adaptive functioning and concluded that Pruitt met the adaptive behavior prong under the AAMR definition. Specifically, Dr. Schmedlen stated that Pruitt qualified under two adaptive skill areas: work and self-direction. According to Dr. Golden, because the test was normed against individuals with intellectual disability, it made Pruitt appear higher functioning then he actually was. Dr. Hudson testified based on his review of Pruitt's social, educational, and work history as well as two clinical evaluations that Pruitt showed significant deficits in six adaptive skills areas: communication, home living, social skills, functional academics, health and safety, and work.

In addition to the expert testimony, Pruitt presented lay testimony that supported the experts' opinions as to his adaptive functioning. Pruitt was slow to develop as a child in terms of such abilities as walking, talking, and potty-training. He had difficulty following instructions, playing board games and participating in sports because he had trouble understanding the rules. Pruitt encountered difficulty in school beginning in the second grade. He was held back twice in the first three grades of elementary school; he was placed in special education classes; and he was socially promoted. He dropped out of school at the age of 16 while in the eighth grade. He was described as mentally slow. Other children made fun of him, calling him retarded and dumb, but he did not seem to understand that he was being teased. As an adult, he was unable to live on his own; his parents and family members took care of him. For example, they took care of his money and made doctor and dental appointments for him.

The evidence established that Pruitt has held many jobs, but none of them required high intellectual functioning. In the 1980s, he worked at a fast food restaurant, a truck stop, and in construction. In 1990, Pruitt received a union carpenter's card; he was a member of the union for almost eight years. During the 1990s, he worked briefly as a carpenter's pre-apprentice for Carlino Construction and he worked a few years as a long-distance truck driver. Pruitt also worked for several different construction companies. His father got him a job in construction, but he was hired only because the employer considered his father a valued employee. Pruitt worked primarily in demolition and clean-up work. He had obtained a journeyman's card but he did not go through an apprenticeship program. The employer, Pete Carlino, testified that Pruitt " really didn't have carpentry skills," did not learn carpentry skills, and needed to " have his dad right there ... to tell him what to do continually." Trial Tr. at 951. Pruitt did not do a good job. When Pruitt's father retired, Pruitt was fired because he was unable to do basic work without constant supervision, and he could not communicate well with other workers.

As noted, Pruitt also worked as a truck driver. In order to do so, he obtained a commercial driver's license with several endorsements that required him to score at least an 80% on several written tests.

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He was discharged from his first trucking job after he left one of the company's trucks on the scales at a weigh station and walked home. Pruitt's employment at another trucking job was terminated when he was caught selling a load of copper wire to a scrap dealer rather than delivering it to the intended destination. While working as a truck driver on another occasion, Pruitt drove his semi-truck to California and visited his cousin. He parked the semi in the middle of the street. When his cousin told Pruitt he could not park there because he was blocking the street, Pruitt responded that there were no signs saying that he could not park there. Pruitt also complained that his vehicle was a piece of junk, but it was brand new; and according to his cousin, an experienced truck driver who had ridden in the vehicle, there was nothing wrong with it.

D. Penalty Phase Evidence

The guilt-phase evidence was incorporated for the jury's consideration at the penalty phase. The state's only witness was the former Morgan County Sheriff who testified as to Deputy Starnes' duties as a warrant officer.

At the penalty phase, Pruitt's counsel presented the expert testimony of Dr. Golden, who testified about Pruitt's intellectual disability and neuropsychological problems. Dr. Golden had interviewed Pruitt only once, when he administered his intellectual disability testing. Counsel asked Dr. Golden to go through Pruitt's prison records and discuss Pruitt's prior diagnoses. Dr. Golden stated that in 1996 while Pruitt was incarcerated for another crime, the federal Bureau of Prisons (BOP) had diagnosed him with " schizotypal personality disorder . . . an Axis II mental illness." Trial Tr. 6042-43. Dr. Golden testified that " psychotic episodes should be the exception rather than the rule" for persons suffering from schizotypal ...


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