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Stay of execution lifted for Ga. man
Warren Lee Hill will be put to death despite mental disability claim
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   ATLANTA — A federal appeals court that stepped in at the last minute to halt the execution of a Georgia man in February has lifted its stay, clearing the way for a new execution date — though the state doesn't currently have any lethal injection drugs.
    In a 2-1 opinion published Monday, a three-judge panel of the 11th U.S. Circuit Court of Appeals said Warren Lee Hill cannot submit his case to a federal court for reconsideration. The opinion says Hill's claim of mental disability was presented in an earlier petition and can't be presented again. The circuit judges also say Hill's claim only challenges his eligibility for the death sentence, not his underlying guilt, making him ineligible for reconsideration.
    Brian Kammer, a lawyer for Hill, said Tuesday he is pondering their next step.
    "We are deeply disappointed that the 11th Circuit United States Court of Appeals found that procedural barriers prevent them from considering the compelling new evidence in Warren Hill's case," he said in a statement. "The new evidence shows that every mental health expert ever to examine him finds that Mr. Hill has mental retardation and he is thus ineligible for execution according to the constitution of the United States."
    The Georgia attorney general's office declined to comment on the decision.
    The 11th Circuit decision means a new execution date could be set at any time. But the state's supply of execution drug pentobarbital expired last month, and the drug has become increasingly difficult to obtain since its manufacturer has banned its use for executions. The Department of Corrections is trying to obtain more, said spokeswoman Gwendolyn Hogan.
    Hill was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike. Hill used a board studded with nails and bludgeoned Handspike while he slept, authorities said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
    Like many death penalty cases, Hill's has had a long and complicated journey through the legal system, including two last-minute stays of execution.
    The 11th Circuit panel granted a stay in February after Hill's lawyers argued he was eligible for reconsideration in federal court because three doctors who had testified in 2000 that Hill was not mentally disabled provided statements in February saying they had changed their opinions and now believe he is.
    Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death-row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt. The state of Georgia has long argued that Hill's lawyers have failed to do that.
    In filings with the 11th Circuit, the state said the doctors' new statements were not credible and also argued Hill was procedurally barred from asking a federal court to reconsider his case.
    In the majority opinion, Circuit Judge Frank Hull writes that the court recognizes Hill has submitted new evidence to support his claims but says the core argument — that Hill is mentally disabled and therefore shouldn't be executed — remain the same. The 11th Circuit and other courts have repeatedly held that new evidence and new legal arguments in support of a prior claim aren't enough to overcome the statutory bar on repeat petitions.
    "If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony," Hull writes.
    Hill's claim also doesn't meet exceptions to the requirements that would allow reconsideration by a federal court, Hull writes.
    In the dissenting opinion, Circuit Judge Rosemary Barkett, writes that Hill has offered "uncontroverted evidence" of his mental disability and said she doesn't believe there is no choice but to allow the execution to go forward simply because his claim doesn't meet narrow procedural standards.
    "The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness," Barkett wrote, adding later that the law's "requirements should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands."

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