Wake Forest Law Review

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By Daniel Stratton

On June 30, 2015, the Fourth Circuit issued a published opinion in the criminal case Prieto v. Zook. The appellant, Alfredo Rolando Prieto appealed the district court’s denial of his writ of habeas corpus under 28 U.S.C. § 2254. Prieto argued that his two death sentences were unconstitutional under the Eight Amendment’s prohibition on the execution of intellectually disabled individuals, in light of the U.S. Supreme Court’s opinions in Atkins v. Virginia , and Hall v. Florida. The Fourth Circuit, after reviewing the impact of Atkins and Hall, affirmed the district court’s denial, holding that Prieto failed to prove the “fundamental miscarriage of justice” exception necessary to overcome his procedural default.

Prieto’s Conviction and Sentencing

In 2007, Prieto was convicted of two counts of capital murder, two counts of use of a firearm in committing murder, grand larceny, and rape, stemming from a 1988 crime, which he was linked to in 2005 through DNA testing. Juror misconduct ultimately caused a mistrial, and Prieto was again convicted on the same counts in 2008. During his sentencing, Prieto argued that he was ineligible for the death penalty due to an intellectual disability. Despite substantial evidence to support his claim, the jury imposed the death penalty on Prieto.

The Virginia Supreme Court, upon hearing his appeal, affirmed Prieto’s conviction but vacated his death sentence due to problems with the jury verdict forms during the sentencing phase of the trial. The sentencing was remanded to a new jury, and in 2010, he was again sentenced to the death penalty. The trial court again imposed the death penalty and Prieto again appealed. The Virginia Supreme Court affirmed.

Prieto filed a habeas petition with the Virginia Supreme Court, arguing that his counsel was constitutionally ineffective and that his execution was barred by the precedent of Atkins. The Virginia Supreme Court denied the petition, holding that because Prieto had failed to raise his Atkins claim on his 2010 direct appeal, he was now procedurally barred from raising it in his state habeas petition.

Prieto then filed his habeas application in federal court, again asserting a claim under Atkins. The district court dismissed that claim, among others. The Fourth Circuit granted a certificate of appealability as to the Atkins claim.

Atkins, Hall, and the Evolving Standards of Decency

In Atkins, a 2002 case, the Supreme Court held that punishing individuals with an intellectual disability is prohibited under the Eighth Amendment in light of “evolving standards of decency.” In order to determine which offenders fell into the category of intellectually disabled, Virginia enacted a statute which its state Supreme Court interpreted as requiring an IQ score of 70 or below. Thus a defendant with an IQ of 71 could theoretically be sentenced to death, while the Eighth Amendment would protect a defendant with an IQ of 70.

In 2014, the Supreme Court clarified this prohibition, holding in Hall that a mechanical rule with rigid cutoffs for IQ scores to determine intellectual disability is unconstitutional, and that no single factor is dispositive in making a determination. The Supreme Court instead established that states should focus on (1) significantly below average intellectual functioning and (2) inability to engage in adaptive functioning (i.e. learning basic skills).

In light of this decision, Virginia’s interpretation of its statute, which imposed a rigid cutoff at an IQ score of 70 or below was clearly unconstitutional. However, because Prieto had procedurally defaulted on his claim, the constitutionality of the cutoff system was not enough to resolve his Atkins claim.

Virginia and Prieto’s Procedural Default

Under Virginia state law, a claim procedurally defaults when “a non-jurisdictional issue could have been raised during the direct appeal process” but was not. Afterwards, it cannot be used in a petition for a writ of habeas corpus. A habeas petitioner can, however, overcome the procedural default if she can establish either “cause and prejudice” for the default or that it would result in “a fundamental miscarriage of justice.” One way to establish cause is by demonstrating constitutionally ineffective assistance of counsel. To establish a fundamental miscarriage of justice, according to the Supreme Court, a defendant must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” This can also be applied in a death penalty case, where a defendant can show “actual innocence,” meaning that she can prove through “clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found” the defendant eligible for the death penalty.

Prieto argued at the district court level that he had constitutionally ineffective assistance in his 2010 sentencing and appeal, which resulted in his intellectual disability not being raised. The district court found this claim to be meritless, and on this appeal, Prieto did not challenge that finding. For that reason, Pietro was only able to argue that his Atkins claim could survive procedural default because of a fundamental miscarriage of justice. To prove this, Prieto did not argue that he was actually innocent, instead opting to argue that he is “innocent of death.”

The Fourth Circuit, following the Supreme Court, declined to decide if Hall applied retroactively, instead choosing to assume without deciding that it did. The Fourth Circuit then reviewed the district court’s decision de novo. Prieto argued that the evidence he offered during the 2008 sentencing hearing proved his actual innocence claim. Despite the substantial volume of evidence produce by Prieto, which included multiple expert witnesses, numerous interviews with relatives, and “a comprehensive evaluation of his neuropsychological functioning,” the state offered strong evidence to counter his claim. The State’s evidence included testimony from three prison psychologists, evidence that Prieto had written his own list of prison grievances, and had filed a pro se legal challenge relating to his confinement. Because Prieto did not argue that if he were re-sentenced he would introduce additional evidence, the Fourth Circuit ultimately concluded that a jury at a new sentencing would view largely the same evidence as before.

Prieto finally attempted to draw comparisons in his case to the Supreme Court’s Hall case. The Fourth Circuit found this unpersuasive, in part because the Supreme Court did not rule on Hall’s intellectual disability; it simply remanded the case back so Hall could attempt to prove such disability.

The Fourth Circuit Affirms Prieto’s Sentence

Ultimately, the Fourth Circuit, when looking at the entirety of the record, held that it could not conclude that “no reasonable jury would find Prieto eligible for the death penalty.” Because of the high burden required of establishing a “fundamental miscarriage of justice” exception, the Fourth Circuit concluded that Prieto failed to prove his Atkins claim and the judgment was affirmed.

 

By Carson Smith

Today, in the unpublished opinion United States v. Zachery, the Fourth Circuit affirmed the district court’s 300-month sentence of the defendant, Anrique Zachery. Zachery’s counsel questioned whether the sentence was unconstitutionally excessive. Additionally, Zachery filed a pro se brief, claiming that the district court failed to consider necessary sentencing factors under § 18 U.S.C. 3553(a). In affirming, the Fourth Circuit held that the sentence did not violate the Eighth Amendment and that the district court adequately explained the basis for the sentence.

Background of the Case

Zachery pled guilty to two counts: (1) conspiring to distribute and possess with intent to distribute 500 grams or more of cocaine and 280 grams or more of cocaine base under 21 U.S.C. § 846; and (2) possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). Zachery was sentenced to a 300-month minimum sentence.

Zachery Failed to Establish That the Sentence Was Grossly Disproportionate Under the Eighth Amendment

On appeal, Zachery argued that the sentence constituted cruel and unusual punishment in violation of the Eight Amendment. In reviewing this claim de novo, the Fourth Circuit applied the two part test from Graham v. Florida, first looking at whether the gravity of the offense and the severity of the sentence led to an inference of gross disproportionality.

The Court noted that the 300-month sentence was the minimum possible sentence that a defendant could receive for this combination of charges. Noting that this penalty might be considered “cruel,” it could not be considered “unusual” given the congressional sentencing guidelines. Because the punishment did not lead to an inference of gross disproportionality, it was unnecessary to analyze the second factor. Accordingly, the Fourth Circuit held that the sentence did not violate the Eighth Amendment.

Sentence Was Procedurally and Substantively Reasonable 

Zachery claimed that the district court failed to consider the 18 U.S.C. § 3353(a) sentencing factors and that failure to do so was not reasonable. The Court reviewed the reasonableness of the sentence for abuse of discretion. In order to find an abuse of discretion, a court must find that the sentence was not procedurally reasonable or substantively reasonable. The defendant bears the burden of providing evidence that the sentence was not reasonable.

In holding that the sentence was procedurally reasonable, the Court focused on the district court’s explanation for the basis of the sentence. The Court found that the district court provided a sufficient basis of explanation, specifically referencing § 3353(a) factors and properly calculating the sentence according to the guidelines. Furthermore, the Court emphasized that every § 3353(a) factor need not be explicitly discussed when calculating a proper sentence.

Additionally, Zachery failed to provide any evidence to rebut the presumption of substantive reasonableness. Therefore, the Court held that the district court did not abuse its discretion.

Sentence Was Constitutional and Reasonable

Accordingly, the Fourth Circuit held that the 300-month sentence did not constitute cruel and unusual punishment under the Eighth Amendment and the district court was reasonable in explaining the basis of the sentence and properly applying the sentencing guidelines.