William Wiley v. Christopher Epps, Commissioner

Filing

REVISED PUBLISHED OPINION FILED. [6666611-2] [09-70037]

William Wiley v. Christopher09-70037 Document: 00511296898 Case: Epps, Commissioner

Page: 1 Date Filed: 11/17/2010

Doc. 0

REVISED NOVEMBER 17, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 27, 2010 N o . 09-70037 Lyle W. Cayce Clerk

W I L L I A M WILEY, P e titio n e r-A p p e lle e v. C H R I S T O P H E R B EPPS, MISSISSIPPI DEPARTMENT OF C O R R E C T IO N S , R e s p o n d e n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Mississippi

B e fo r e KING, JOLLY, and DAVIS, Circuit Judges. K I N G , Circuit Judge: T h is is a capital case in which the district court granted habeas relief in fa v o r of Petitioner-Appellee William Wiley, holding that Wiley is ineligible for a death sentence because he is mentally retarded as contemplated by Atkins v. V ir g in ia , 536 U.S. 304 (2002). The State of Mississippi, acting through

R e s p o n d e n t -A p p e lla n t Christopher B. Epps, appeals. We conclude that the d is t r ic t court did not clearly err in finding Wiley mentally retarded. t h e r e fo r e AFFIRM the district court's judgment. We

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No. 09-70037 I . Factual and Procedural Background I n 1981, Wiley shot and killed store owner J.B. Turner during the course o f a robbery in DeSoto County, Mississippi. He also shot Turner's daughter, le a v in g her seriously injured and blind. Wiley was charged with capital murder a n d was convicted in 1982. His conviction was affirmed on direct appeal, but his d e a th sentence was vacated and the case was remanded for a new sentencing h e a r in g because of improper comments that had been made by the prosecutor. See Wiley v. State, 449 So. 2d 756, 763 (Miss. 1984). Wiley was again sentenced t o death in 1984, and the sentence was upheld on direct appeal. See Wiley v. S ta te , 484 So. 2d 339, 355 (Miss. 1986). In a subsequent federal habeas petition, w e vacated the death sentence on the ground that the state trial court had im p r o p e r ly instructed the second sentencing jury. See Wiley v. Puckett, 969 F.2d 8 6 , 91 (5th Cir. 1992). In 1995, Wiley was sentenced to death for the third time. The sentence was again affirmed on direct appeal, see Wiley v. State, 691 So. 2d 9 5 9 , 960 (Miss. 1997), and Wiley's subsequent efforts for state post-conviction r e lie f were unsuccessful. W ile y again sought federal habeas relief in a 28 U.S.C. § 2254 petition. In 2 0 0 3 , while his federal petition was pending, Wiley filed in state court a s u c c e s s iv e habeas application based on the United States Supreme Court's d e c is i o n in Atkins. Wiley claimed that he is mentally retarded and therefore in e lig ib le for a death sentence. I n support of his state habeas application, Wiley relied in part on an a ffid a v it from Dr. David Grant, who administered to Wiley in 2003 the Wechsler A d u lt Intelligence Scale-Third Edition (WAIS-III). Dr. Grant reported from this t e s t that Wiley's Verbal IQ was 73, his Performance IQ was 68, and his full-scale I Q was 68, placing Wiley within the mentally retarded range for intellectual fu n c tio n in g . Dr. Grant also indicated that Wiley had adaptive behavior deficits in at least two defined areas and that Wiley's mental retardation manifested by 2

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No. 09-70037 a g e eighteen. In addition to Dr. Grant's testing, Wiley had also been tested in 1 9 8 7 and 1994 by Dr. Billy Fox, who administered the Wechsler Adult I n t e llig e n c e Scale-Revised (WAIS-R), an earlier version of the Wechsler test. Dr. F o x 's testing had revealed full-scale IQ scores of 73 and 78, respectively. Dr. Fox in d ic a te d in a 1987 affidavit that Wiley was borderline mentally retarded. Dr. G r a n t opined that Wiley's 1987 and 1994 scores were consistent with his 2003 p e r fo r m a n c e , and that Wiley was mildly mentally retarded. In a 2004 affidavit, D r . Fox also agreed that Wiley's 2003 score on the WAIS-III was consistent with h is 1987 and 1994 WAIS-R scores. Dr. Fox explained that the consistency was d u e to the margin of error for the tests, the Flynn effect, and the practice effect.1 W ile y also submitted with his state application his school records. T h e Mississippi Supreme Court declined to grant Wiley an evidentiary hearing on his Atkins claim because it determined that he failed to present a p r im a facie case. The court examined the record and held that the evidence did n o t support Wiley's claim. See Wiley v. State, 890 So. 2d 892, 897­98 (Miss. 2 0 0 4 ). Instead, the court determined that, at best, Wiley's experts had shown o n ly borderline mental retardation. Id. at 898. The court placed particular e m p h a s is on several affidavits in the record that had been submitted by Wiley's fa m ily and friends as mitigating evidence during the earlier state court p r o c e e d in g s . In the words of the state court, those affidavits indicated that W ile y "was a good husband, father, son and grandson, that he was a good, r e lia b le worker with steady employment at various employers, that he

The so-called "Flynn effect" is a phenomenon positing that, over time, standardized IQ test scores tend to increase with the age of the test without a corresponding increase in actual intelligence in the general population. Those who follow the Flynn effect adjust for it by deducting from the IQ score a specified amount for each year since the test was normalized. See In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006). Dr. Fox opined that Wiley's score of 78 on the 1994 WAIS-R reflected thirteen years of inflation since the test was originally standardized and was "unreliably high." The "practice effect" holds that a subject who is tested more than once generally will do better on subsequent tests than on the first test.

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No. 09-70037 p e r fo r m e d household maintenance, repaired automobiles, babysat children, ran e r r a n d s , supported his family and did numerous other things." Id. at 896. The c o u r t discounted Wiley's school records as evidence of retardation because in a d d it io n to showing poor performance they also showed a poor attendance r e c o r d , and there was no indication that Wiley had ever attended special e d u c a t io n classes. Id. The court noted that Wiley had been in the Army until h e injured his leg and was honorably discharged. Id. The court further noted t h a t Wiley had not completed a test to rule out malingering. Id. at 898. It c o n c lu d e d that the "overwhelming weight of the evidence" showed Wiley was not m e n ta lly retarded. Id. W i l e y filed a motion for rehearing, submitting a supplemental affidavit fr o m Dr. Grant addressing the Mississippi Supreme Court's opinion. Dr. Grant in d ic a te d that the court was incorrect to rely on the affidavits from Wiley's fr ie n d s and family as proof that Wiley was not mentally retarded. Contrary to t h e court's holding, Dr. Grant stated that it is widely accepted in the medical c o m m u n it y that mentally retarded persons are often able to perform basic life fu n c tio n s and tasks, such as holding jobs, driving cars, and supporting their fa m ilie s . Dr. Grant reiterated his opinion that, to a reasonable degree of

p s y c h o lo g ic a l certainty, Wiley fell within the mentally retarded range, and the r e t a r d a t io n manifested before age eighteen. The state court denied the motion. W ile y then raised his Atkins claim in federal court by amending his § 2254 p e titio n . Wiley claimed that Dr. Grant's affidavits had been sufficient to

w a r r a n t an evidentiary hearing in state court, and that the Mississippi Supreme C o u r t failed to follow its own precedent and procedures by denying him a h e a r in g . Wiley maintained that the evidence showed he was mentally retarded. T h e federal district court initially denied Wiley's Atkins claim but s u b s e q u e n t ly withdrew its decision after Wiley filed a motion to alter or amend t h e judgment under Federal Rule of Civil Procedure 59. The district court 4

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No. 09-70037 o r d e r e d additional briefing and conducted an evidentiary hearing. The court a p p o in te d Dr. C. Gerald O'Brien to examine Wiley. Wiley was also examined by h is own expert, Dr. Victoria Swanson, and by an expert obtained by the State, D r . Gilbert S. Macvaugh, III. At the evidentiary hearing, Drs. O'Brien and S w a n s o n both testified that Wiley was mentally retarded, but Dr. Macvaugh r e a c h e d a contrary conclusion. The district court issued a written opinion in w h ic h it first determined that the Mississippi Supreme Court had failed to follow it s own precedent for determining whether a defendant should obtain a hearing o n an Atkins claim, and that the failure to permit a hearing had denied Wiley d u e process. The district court determined that it was therefore not bound to a ffo r d deference to the state court's resolution of Wiley's claim. The district c o u r t determined from a preponderance of the evidence that Wiley was mentally r e t a r d e d . The court held that Wiley was thus entitled to have his death sentence v a c a t e d pursuant to Atkins. T h e State now appeals.2 It contends that Wiley failed to meet the

r e q u ir e m e n t s for an evidentiary hearing in state court, and therefore the federal d is t r ic t court erroneously concluded that the state court denied Wiley due p r o c e s s . Under the State's view, the district court should not have granted W i le y 's Rule 59 motion or conducted an evidentiary hearing and should have d e fe r r e d to the Mississippi Supreme Court's holding that Wiley is not mentally r e t a r d e d . The State further argues that the district court's conclusion that Wiley is mentally retarded is incorrect because Wiley failed to show in the federal h e a r in g that he has subaverage intellectual ability and adaptive functioning

Although the district court's judgment denied Wiley federal habeas relief on numerous additional claims challenging his conviction, Wiley did not file a notice of appeal or seek a Certificate of Appealability (COA) as to those additional claims. See 28 U.S.C. § 2253(c)(1); FE D . R. APP. P. 22(b)(1). Thus, the only issue before us in the instant appeal is Wiley's Atkins claim. Because the State is the appellant on this issue, no COA is required. See DiLosa v. Cain, 279 F.3d 259, 262 n.1 (5th Cir. 2002) (citing FED. R. APP. P. 22(b)(3)).

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No. 09-70037 d e fic it s , both of which manifested before the age of eighteen. Before turning to t h e district court's conclusion on metal retardation, we first set out the standard o f review and the requirements under Atkins; we then consider the district c o u r t's grant of an evidentiary hearing and its determination that no deference w a s due to the state court. I I . Standard of review I n an appeal from the district court's grant of habeas relief, we review is s u e s of law de novo and findings of fact for clear error. Fratta v. Quarterman, 5 3 6 F.3d 485, 499 (5th Cir. 2008). Wiley's habeas petition is governed by the s t a n d a r d s of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U .S .C . § 2254, because he filed his Atkins claim well after the effective date of t h e AEDPA. See Lindh v. Murphy, 521 U.S. 320, 324­26 (1997). Under those s t a n d a r d s , a federal court may not grant a petitioner habeas relief on a claim t h a t was adjudicated on the merits by the state court unless the state court d e c is io n was (1) "contrary to, or involved an unreasonable application of, clearly e s t a b lis h e d Federal law, as determined by the Supreme Court," or (2) "was based o n an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Pierce v. Thaler, 604 F.3d 1 9 7 , 200 (5th Cir. 2010). " A state court decision is `contrary to' clearly established federal law if it a p p lie s a rule that contradicts the governing law set forth in Supreme Court c a s e s . . . or if the state court decide[s] a case differently than the United States S u p r e m e Court previously decided a case on a set of nearly identical facts." Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010) (internal quotation marks and c it a t io n s omitted). A state court's decision is an unreasonable application of c le a r ly established federal law if it "correctly identifies the governing legal rule b u t applies it unreasonably to the facts of a particular prisoner's case." Gregory v . Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (internal quotation marks and 6

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No. 09-70037 c it a t io n s omitted). An unreasonable application of federal law is different from a n incorrect or erroneous application of the law. Rogers v. Quarterman, 555 F.3d 4 8 3 , 488­89 (5th Cir. 2009) (citing Williams v. Taylor, 529 U.S. 362, 409­10 (2 0 0 0 )). I I I . Atkins and mental retardation T h e Supreme Court held in Atkins that the execution of mentally retarded p e r s o n s constitutes cruel and unusual punishment in violation of the Eighth A m e n d m e n t . See Atkins, 536 U.S. at 321. The Atkins Court did not define who i s mentally retarded for purposes of eligibility for a death sentence but it r e fe r r e d generally to two definitions of mental retardation from the American A s s o c ia t io n on Mental Retardation (AAMR) and the American Psychiatric A s s o c ia t io n (APA).3 Id. at 309 n.3. Clinical definitions of mental retardation

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The AAMR definition of mental retardation cited in the Atkins decision is as follows:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18. AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992) (AAMR 9th ed.). The APA defines mental retardation similarly: The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). AM E R I C A N PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DIS O R D E R S 41 (4th ed. 2000). This definition is often referred to as the DSM-IV-TR definition. In 2002, the AAMR modified its definition to read:

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No. 09-70037 t y p ic a lly require subaverage intellectual functioning, significant limitations in a d a p t iv e skills, and manifestation before the age of eighteen. Id. at 318. Rather t h a n adopt a definitive meaning of mental retardation, however, the Court left " `t o the State[s] the task of developing appropriate ways to enforce the c o n s t it u t io n a l restriction upon [their] execution of sentences.'" (q u o tin g Ford v. Wainwright, 477 U.S. 399, 405, 416­17 (1986)). I n accord with Atkins, the Mississippi Supreme Court set the standard for a d ju d g in g mental retardation in Mississippi in Chase v. State, 873 So. 2d 1013, 1 0 2 8 ­ 2 9 (Miss. 2004), which it decided three months before it decided Wiley's c a s e .4 Under Chase, the trial court is to make the determination about Id. at 317

r e t a r d a t io n based on a preponderance of the evidence after an evidentiary h e a r in g . Chase, 873 So. 2d at 1028­29. A defendant may not be adjudged r e t a r d e d unless he presents, at a minimum, an expert opinion, to a reasonable d e g r e e of certainty, that (1) "[t]he defendant is mentally retarded, as that term i s defined by the American Association on Mental Retardation and/or The A m e r ic a n Psychiatric Association"; and (2) "[t]he defendant has completed the M in n e s o t a Multiphasic Personality Inventory-II (MMPI-II) and/or other similar t e s t s , and the defendant is not malingering." Id. at 1029. T h e Mississippi Supreme Court also set out in Chase the standard for d e t e r m in in g whether a defendant is entitled to an evidentiary hearing on his m e n ta l retardation claim. The court held that a hearing would not be granted

Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, (10th ed. 2002) (AAMR 10 ed.).
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Because the Mississippi Legislature has not addressed the issue of mental retardation in the context of death-penalty litigation, the Chase standard is controlling. See Doss v. State, 19 So. 3d 690, 709­10 (Miss. 2009).

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No. 09-70037 u n le s s a defendant files a motion to which he attaches an affidavit from at least o n e qualified expert "who opines, to a reasonable degree of certainty, that: (1) the d e fe n d a n t has a combined Intelligence Quotient (`IQ') of 75 or below, and; (2) in t h e opinion of the expert, there is a reasonable basis to believe that, upon further t e s t in g , the defendant will be found to be mentally retarded, as defined herein." Id. The court explained that because the cutoff for the intellectual functioning p r o n g of the test for mental retardation is 75, defendants with an IQ of 76 or a b o v e do not qualify for Atkins protection. Id. at 1029 n.20. For defendants who w e r e convicted before Atkins and Chase were decided, such as Wiley, the r e q u ir e d expert affidavit may be submitted with the defendant's application for p o s t -c o n v ic t io n relief. Id. at 1029­30. A s noted above, Wiley's position is that the affidavit he submitted from Dr. G r a n t with his state application for post-conviction relief satisfied the Chase s t a n d a r d s to at least obtain an evidentiary hearing in state court. The district c o u r t agreed, and it held that the denial of a hearing in state court was a due p r o c e s s violation such that no deference was due to the state court decision. We a g r e e with the district court, as we now explain. I V . Deference and a federal hearing W h e n a petitioner has properly presented his Atkins claim in state court, a n d that court rejects it on the merits, we ordinarily apply AEDPA deference to t h e state court's judgment on legal and factual grounds. Moore v. Quarterman, 5 3 3 F.3d 338, 341 n.2 (5th Cir. 2008) (en banc); see also 28 U.S.C. § 2254(d). There is no dispute in this case that the Mississippi Supreme Court adjudicated W ile y 's Atkins claim on the merits. But the question of affording deference to t h e state court's adjudication in this case is intertwined with the alleged due p r o c e s s violation by the state court's failure to conduct a hearing. I t is axiomatic that infirmities in state habeas proceedings under state law a r e not a basis for federal relief. See Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 9

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No. 09-70037 2 0 0 4 ). Indeed, we have also held that a full and fair hearing in state court is not a prerequisite to applying the AEDPA's deferential scheme. See Valdez v.

C o c k r e ll, 274 F.3d 941, 946 (5th Cir. 2001). The Supreme Court has recognized, h o w e v e r , that a state court's unreasonable application of federal law, as a p r e d ic a t e for adjudicating a defendant's claim, may undermine the AEDPA d e fe r e n c e given to the state court adjudication. See Panetti v. Quarterman, 551 U .S . 930, 953 (2007) ("When a state court's adjudication of a claim is dependent o n an antecedent unreasonable application of federal law, the requirement set fo r t h in § 2254(d)(1) is satisfied. A federal court must then resolve the claim w it h o u t the deference AEDPA otherwise requires."). T h u s , when a petitioner makes a prima facie showing of mental r e t a r d a t io n , a state court's failure to provide him with an opportunity to develop h is claim deprives the state court decision of the deference ordinarily due under t h e AEDPA. Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007). As we e x p la in e d in Rivera, even though Atkins left to the states the job of im p l e m e n tin g procedures for determining who is mentally retarded, "it was d e c id e d against the backdrop of the Supreme Court's and lower court's due p r o c e s s jurisprudence." Id. That jurisprudence included Ford v. Wainwright, 4 7 7 U.S. 399 (1986), which required a hearing in accord with fundamental fa ir n e s s and procedural due process for defendants who make a showing of in e lig ib ilit y for a death sentence due to insanity. Id. (citing Ford, 477 U.S. at 4 2 4 (Powell, J., concurring in part and concurring in the judgment)). W e held in Rivera that the Texas Court of Criminal Appeals acted u n r e a s o n a b ly by failing to conduct a full and fair evidentiary hearing in light of t h e petitioner's prima facie case of mental retardation. Id. at 357­58. We were g u id e d by the Supreme Court's decision in Panetti, where the Court held that a ft e r a petitioner made a substantial showing of incompetency the state court's fa ilu r e to provide the procedures elaborated on in Ford constituted an 10

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No. 09-70037 u n r e a s o n a b le application of clearly established federal law. Panetti, 551 U.S. at 9 4 8 . Moreover, the state court's error deprived its decision of AEDPA deference. See id. ("As a result of this error, our review of petitioner's underlying i n c o m p e t e n c y claim is unencumbered by the deference AEDPA normally r e q u i r e s ." ) . T h e teachings of Panetti and Rivera inform our conclusion in Wiley's case. We must decide whether Wiley presented a prima facie case of retardation, and w a s therefore entitled to a hearing. If he did, but the state court denied him the o p p o r t u n it y to develop his Atkins claim, the state court decision is not entitled t o deference. In order to decide this question, we first closely examine the S t a te 's argument that Wiley was not entitled to a hearing under state law, and w e then consider the question of deference to the state court decision in light of t h e procedure the court applied in Wiley's case. A lt h o u g h Wiley was convicted before Atkins was decided, and although he file d his state post-conviction application before the Mississippi Supreme Court e s t a b lis h e d the state's requirements for obtaining an Atkins hearing in Chase,5 W ile y 's affidavit from Dr. Grant (as well as other evidence) on its face met the C h a s e requirements for an evidentiary hearing, and the State conceded as much a t oral argument.6

Wiley filed his Atkins claim in state court on June 19, 2003. The Mississippi Supreme Court decided Chase on May 20, 2004, and it adjudicated Wiley's claim on August 26, 2004. Dr. Grant stated that Wiley's IQ was below the threshold of 75 and that Wiley was mentally retarded. See Chase, 873 So. 2d at 1028. Dr. Grant specifically found that Wiley's IQ was 68. He also concluded that Wiley had adaptive behavior deficits in communication skills, functional academic skills, and health and safety skills based on numerous tests administered to Wiley. Dr. Grant further concluded that Wiley had the "ability to learn and perform simple tasks, but with significantly impaired reasoning and problem solving skills." Dr. Grant concluded from the consistent poor performance reported in Wiley's school records that Wiley's mental retardation manifested prior to age eighteen.
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No. 09-70037 T h e State contends, however, that Wiley was not entitled to a hearing u n d e r Chase because Wiley's pre-Atkins tests, which showed IQs of 73 and 78, in c lu d e d at least one score above the threshold for a mental retardation finding. It argues that under state law, as interpreted by the Mississippi Supreme Court, n o defendant may obtain an evidentiary hearing if there was any test score a b o v e 75. It asserts that Wiley was treated no differently from any other

d e fe n d a n t making an Atkins claim, and therefore he suffered no deprivation of d u e process by being denied a hearing. I n support of its argument that state law precludes an Atkins hearing w h e n any single test score is above the threshold of 75, the State relies primarily o n Branch v. State, 882 So. 2d 36 (Miss. 2004). In that case, the defendant's c h ild h o o d IQ score at age five was 68, but post-arrest testing showed an IQ of 84. After noting the absence of evidence about adaptive skills deficits, the court held t h a t Branch failed to make a prima facie showing of mental retardation. Id. at 5 1 . Wiley's case is not substantially similar to Branch. Unlike Wiley, the d e fe n d a n t in Branch relied on tests done seventeen years earlier when he was a child, while a court-ordered psychologist who tested him after arrest said he h a d an IQ well above the threshold for mental retardation. See id. The court a ls o found significant the absence of evidence concerning adaptive skills fu n c tio n in g . Id. In contrast, Wiley presented evidence of both recent and past I Q testing showing deficient intellectual functioning, as well as adaptive skills d e fic it s . Branch does not present a situation like Wiley's.7
In its brief, the State also relies on Scott v. State, 878 So. 2d 933 (Miss. 2004) (Scott I), a direct appeal, where the defendant presented evidence that his IQ score from childhood was 48 and that his post-arrest IQ score was 60. His own expert questioned the validity of the childhood score, however, and testified that he believed Scott was actually functioning at a much higher level. Id. at 948. The state court held that the evidence was insufficient to require an evidentiary hearing, but it noted that if the defendant presented the required evidence and affidavits along with an application for post-conviction relief (PCR), a hearing could be warranted. Id. Scott, like Wiley, subsequently did provide additional affidavits and evidence in a "lengthy" PCR application, and he was granted a hearing. See Scott v. State, 938
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No. 09-70037 C o n t r a r y to the State's argument that a single IQ score may deny a d e fe n d a n t an Atkins hearing under state law, the Mississippi Supreme Court's d e c is io n in Wiley's case to deny a hearing and decide the mental retardation q u e s t io n appears to be an anomaly. In Chase itself, the Mississippi Supreme C o u r t specifically recognized the due process underpinings at the core of an A tk in s hearing, and the importance of a hearing even in the face of minimal or c o n t r o v e r t e d evidence. See Chase, 873 So. 2d at 1020­21 (noting that although t h e State had raised "valid points" in contesting the defendant's mental r e t a r d a t io n claim, its task was "to determine whether Chase is entitled to a h e a r in g , rather than weigh the credibility of evidence to be presented at that h e a r in g " and that because both the Atkins decision and its guidance in Chase w e r e unavailable to the defendant, due process required it "to allow the motion t o be filed in the trial court, enabling Chase and the State to fully present to the t r ia l judge evidence as required by Atkins"). Furthermore, decisions of the state c o u r t before and after Chase undermine the State's position that a single IQ s c o r e will automatically disqualify a defendant from an Atkins hearing. F o r example, in Thorson v. State, 994 So. 2d 707, 715 (Miss. 2007), which w a s decided after Chase and is very similar to Wiley's case, the record showed t h a t the defendant's IQ around the time of the murder offense was 77--above t h e Chase threshold. At Thorson's trial, a doctor testified that a subsequent test s h o w e d the defendant's IQ to be 74. The doctor also testified that Thorson was " b o r d e r lin e mentally retarded." Id. At sentencing, the same doctor testified that T h o r s o n was "mentally handicapped" but not to the degree of the mentally r e t a r d e d . Id. Nevertheless, in connection with Thorson's Atkins claim in his

So. 2d 1233, 1238 (Miss. 2006) (Scott II). In neither Scott I nor Branch did the defendant present an affidavit consistent with Chase that established that the defendant had subaverage intellectual functioning and adaptive skills deficits, as Wiley did in this case.

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No. 09-70037 a p p lic a t io n for post-conviction relief, Thorson, like Wiley, submitted an affidavit fr o m another doctor who opined that Thorson's IQ was 70, that he had adaptive b e h a v io r deficits, and that the onset of the deficits occurred before age eighteen. Id. at 715­16. The Mississippi Supreme Court held that Thorson "met the r e q u ir e m e n t s established . . . in Chase" and remanded the matter to the trial c o u r t for an evidentiary hearing. Id. at 716. T h e sequence of IQ test scores in Thorson mirrors the sequence in Wiley's c a s e . In both instances the defendant had two reported IQ scores before Atkins, o n e above Mississippi's threshold of 75 and one below, and one post-Atkins IQ s c o r e that was below the threshold. In both cases, the defendant submitted an e x p e r t 's affidavit opining that he met the definition for a mentally retarded p e r s o n . The Mississippi Supreme Court granted Thorson a hearing on facts n e a r ly indistinguishable from Wiley's case. The court also granted a hearing in a n o t h e r case involving multiple IQ scores decided before Chase in Russell v. S ta te , 849 So. 2d 95, 148 (Miss. 2003). There the defendant received a hearing e v e n though one of his two IQ scores, which were 68 and 76, was above the t h r e s h o ld for mental retardation. In light of these cases, the State's argument t h a t Wiley was treated no differently from any other defendant with several IQ t e s t scores who makes an Atkins claim is seriously undermined.8
8

A survey of the Mississippi case law shows that the Mississippi Supreme Court has routinely granted evidentiary hearings as long as the Chase requirements are met even in the face of weak or controverted evidence. See, e.g., Doss v. State, 882 So. 2d 176, 193 & n.1 (Miss. 2004) (granting the petitioner an evidentiary hearing despite "numerous legitimate questions concerning [the petitioner's] claim" and noting in the face of inconsistencies in the evidence "that is precisely the procedure established by this Court in Chase, which allows the State, as well as Doss, to offer evidence in support of their respective arguments"); Smith v. State, 877 So. 2d 369, 398 (Miss. 2004) (where petitioner's evidence showed an IQ of 75 at age 13, but a psychologist opined that the petitioner's education records suggested only borderline mental retardation, the state supreme court held that "[n]otwithstanding the dearth of evidence," it could not "constitutionally deny [the petitioner] the opportunity to present the issue of his possible mental retardation to the trial court" in an evidentiary hearing); Carr v. State, 873 So. 2d 991, 1007 (Miss. 2004) (granting a hearing "[n]otwithstanding the evidence," which consisted of minimal testimony from a doctor at sentencing that the petitioner was mildly

14

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No. 09-70037 T h e State also argues at some length that Wiley's single IQ score of 78 in 1 9 9 4 automatically disqualified him from an evidentiary hearing unless that s c o r e is reduced by the Flynn effect. But it contends that neither the Mississippi S u p r e m e Court nor this court has ever recognized the Flynn effect as s c ie n t ific a lly valid. See In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007); S a la z a r , 443 F.3d at 433 n.1. The Mississippi Supreme Court made no mention o f the Flynn effect, and we therefore need not address what, if any, impact it has in this case. Even without considering the Flynn effect, Wiley had two IQ scores t h a t fell below the threshold established by the Mississippi Supreme Court to o b ta in an evidentiary hearing. We are not prepared to hold, as the State would h a v e it, that one IQ score, by itself, conclusively precludes an evidentiary h e a r in g when the Mississippi Supreme Court did not base its decision on that fa c t ; there were other test scores below the mental retardation threshold; the s t a t e court has otherwise followed a fairly liberal policy in granting evidentiary h e a r in g s , even in the face of minimal evidence and multiple IQ scores; and at le a s t one expert, Dr. Grant, provided a specific opinion in accord with Chase that W ile y is mentally retarded. The State's contention that Wiley was not entitled t o a hearing under Chase is therefore unavailing. T h is does not end the inquiry, however, as we must next consider whether t h e state court decision was nevertheless entitled to AEDPA deference despite W ile y 's satisfaction of the requirements for an evidentiary hearing. The state c o u r t in this case apparently decided that it should adjust the standards that it h a d established in Chase. The court stated that "evolving standards" for

d e t e r m in i n g who is mentally retarded required it "to expand on the procedure t o be used in reaching a determination of mental retardation." Wiley, 890 So. 2d

retarded and testimony from a school counselor that problems at school were likely from a lack of attendance, without any discussion of specific IQ test scores).

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No. 09-70037 a t 897. The court held that it would therefore "consider the entire record before it in deciding whether to grant an Atkins hearing." Id. W e will ordinarily defer to a state court's interpretation of its own law, see W o o d fo x v. Cain, 609 F.3d 774, 816 (5th Cir. 2010), and we find no fault in the s t a t e court's use of evolving standards to make the determination whether to g r a n t a hearing, or its consideration of the entire record. A state court's

p r e c e d e n t certainly is not set in stone, and the court must be able to change its r u le s if, in its judgment, it is advisable to do so. Indeed, state courts are granted m u c h leeway in determining when a hearing is required, but in determining w h e t h e r to give deference to the state court's decision here, we must consider w h e t h e r that court's application of its own standards and precedent resulted in a denial of due process under the federal Constitution. See Panetti, 551 U.S. at 9 5 0 ­ 5 1 ("If [the failure to provide a competency hearing] did, in fact, constitute a violation of the procedural framework Texas has mandated for the adjudication o f incompetency claims, the violation undermines any reliance the State might n o w place on Justice Powell's assertion that `the States should have substantial le e w a y to determine what process best balances the various interests at stake.'") (q u o tin g Ford, 477 U.S. at 427). We conclude from our review of the relevant c a s e law and the record before the state court that the state court's departure fr o m its own Chase standards in the face of Wiley's evidence of retardation failed t o provide Wiley with the minimum constitutional protections. I t is evident from the Mississippi case law that up until the Mississippi S u p r e m e Court decided Wiley's case, the court remanded Atkins claims to the t r ia l court for an evidentiary hearing on the retardation question when the C h a s e requirements (or what became the Chase requirements) were met. The c o u r t has continued to follow this procedure even after deciding Wiley's case. But in the instant case, the court unexpectedly proceeded to a merits-based d e t e r m in a t io n of factual questions and essentially required Wiley to prove his 16

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No. 09-70037 c la im at the prima facie stage, pretermitting the opportunity for the hearing and t h e fuller development of the evidence that Chase contemplated. B y adjudicating Wiley's mental retardation claim without telling him that it would do so, the state court implicated the "core due process concepts" of notice a n d foreseeability. See Rogers v. Tennessee, 532 U.S. 451, 459 (2001). The state c o u r t applied an unexpectedly more stringent process to Wiley without notice, c o n t r a r y to its announced procedure in numerous cases. Cf. Bouie v. City of C o lu m b ia , 378 U.S. 347, 354 (1964) ("When a state court overrules a consistent lin e of procedural decisions with the retroactive effect of denying a litigant a h e a r in g in a pending case, it thereby deprives him of due process of law . . . ."); s e e also Janecka v. Cockrell, 301 F.3d 316, 324 n.11 (5th Cir. 2002) (noting that d u e process is implicated where retroactive judicial alterations of common law d o c t r in e s are "`unexpected and indefensible by reference to the law which had b e e n expressed prior to the conduct at issue'" (quoting Rogers, 532 U.S. at 462)); T a la v e r a v. Wainwright, 468 F.2d 1013, 1015­16 (5th Cir. 1972) (holding that s t a t e supreme court's retrospective application of a state severance statute r a t h e r than its less stringent interpretation of the prior rule in effect at time of t r ia l was a violation of due process). Had the state court followed its established p r o c e d u r e s and remanded Wiley's case to the trial court for a hearing, or had it g iv e n notice to Wiley that his pleading was deficient and that it intended to a d ju d ic a t e fully the Atkins claim, Wiley could have amended his state habeas a p p lic a t io n or supplemented his claim with additional evidence. See, e.g., Bishop v . State, 882 So. 2d 135, 151 (Miss. 2004) (holding on direct appeal that d e fe n d a n t who supported his Atkins claim only with school records and family m e m b e r s ' affidavits was not entitled to a hearing but that if he filed an affidavit t h a t complied with Chase he could be entitled to a hearing). As it was, Wiley w a s left to believe that the state habeas application he filed before the Chase d e c is io n was sufficient because he had already filed an expert's affidavit in 17

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No. 09-70037 a c c o r d with Chase only to find later that the state court reached a contrary c o n c lu s io n by departing from its previously announced standards for d e t e r m in in g who gets an Atkins hearing.9 M o r e o v e r , a review of the state court's reasons for rejecting Wiley's claim o f retardation and the specific evidence presented demonstrates the disputed n a t u r e of the facts and bears out the need for a hearing to test the arguments of b o th sides. Instead of granting a hearing, the state court decided the retardation q u e s t io n itself and held that Wiley was not retarded because, in its view, Wiley's fa m ily affidavits "did not allege or establish that Wiley is mentally retarded." Wiley, 890 So. 2d at 896­97. It found compelling the State's argument based on t h e family affidavits that retarded people do not perform such functions as d r iv in g tractors, joining the Army, obtaining a driver's license, and supporting t h e ir families.1 0 Id. W ile y 's motion for rehearing cast material doubt on such an argument, h ow ever. In the supplemental affidavit in support of Wiley's motion for

r e h e a r in g , Dr. Grant opined that "mentally retarded persons do indeed `hold

Relying on its decision in Wiley's case, the Mississippi Supreme Court said in a subsequent opinion that technical compliance with the Chase requirements is insufficient to warrant a hearing if the record evidence "overwhelmingly belies" the mental retardation claim. Hughes v. State, 892 So. 2d 203, 216 (Miss. 2004). In a subsequent federal habeas petition, the federal district court held that the state court's failure to conduct a hearing in the face of a prima facie case of mental retardation denied Hughes due process. See Hughes v. Epps, 694 F. Supp. 2d 533, 543 (N.D. Miss. 2010). We note that the State did not appeal that holding. We also believe that the evidence in Wiley's case did not "overwhelming belie" his claim. In Chase, the State made a similar argument and offered evidence that the petitioner was never in special education classes, never failed a grade in school, played quarterback on the football team, completed a welding course and became a certified welder, performed yard work and washed cars, cooked for his mother, had a girlfriend, and had no deficits in social skills. Chase, 873 So. 2d at 1022. Despite the fact that this evidence "would certainly be persuasive and interesting to the trial judge at the hearing," the Mississippi Supreme Court permitted a hearing because the petitioner had "arguably demonstrated that his IQ falls within the range of possible mental retardation, and because he has presented an affidavit which asserts that he suffers from `mild mental retardation.'" Id. at 1022, 1023.
10

9

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No. 09-70037 jo b s ,' `drive cars,' and `support families.'" According to Dr. Grant, there is a " w id e ly -r e c o g n iz e d view within the medical community that mentally retarded p e r s o n s are often able to perform such tasks." Dr. Grant supported his

a s s e r t io n s with attached excerpts from psychiatric literature. See Bryan H. K in g , M.D., et al., Mental Retardation, in COMPREHENSIVE TEXTBOOK OF P SYCHIATRY VOL. II 2598 (Benjamin Sadock, M.D. & Virginia Sadock, M.D. eds., 7 t h ed. 2000) ("As adults, many [individuals with mild mental retardation] hold jo b s , marry, and raise families . . . ."); AMERICAN PSYCHIATRIC ASSOCIATION, D IAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 43 (4th ed. 2000) (D S M -IV -T R ) ("By their late teens, [persons with Mild Mental Retardation] can a c q u ir e academic skills up to approximately the sixth-grade level. During their a d u lt years, they usually achieve social and vocational skills adequate for m in im u m self-support . . . . With appropriate supports, individuals with Mild M e n ta l Retardation can usually live successfully in the community, either in d e p e n d e n t l y or in supervised settings."). In light of this evidence, Wiley's a b ility to function vel non was the type of clearly disputed fact that could benefit fr o m a hearing before the state court. See Thompson v. Bell, 580 F.3d 423, 436 (6 t h Cir. 2009) ("Regardless of whether Thompson's incompetency petition s h o u ld be granted, his evidence has at least created a genuine issue about his c o m p e t e n c y , and therefore warrants an evidentiary hearing. . . . Because the T e n n e s s e e courts unreasonably applied federal law clearly established by Ford, t h i s Court does not afford AEDPA deference to their dismissal of Thompson's p e t it io n ." ). T h is conclusion is also supported by Wiley's school records, which show t h a t Wiley attended school only from first to eighth grade, that his grades c o n s is t e d of Ds and Fs in all subjects, with the exception of a few Cs and C m in u s e s , and that he was twice socially promoted despite failing marks. Dr. G r a n t 's testing revealed that Wiley's reading and writing ability are, at best, on 19

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No. 09-70037 a fourth grade level. This evidence created at least disputed questions of fact a b o u t Wiley's abilities noted elsewhere in the record. See Wiley, 890 So. 2d 8 9 6 ­ 9 7 (noting that Wiley's family affidavits suggested Wiley "did `pretty well in school'" and spent his prison time studying the Bible, reading, and writing to p e n pals). W ile y presented a prima facie case of mental retardation in his state court h a b e a s application under the Mississippi standards for an Atkins claim, see C h a s e , 873 So. 2d at 1029, and his evidence and affidavits raised "serious q u e s t io n s about [Wiley's] possible retardation," Rivera, 505 F.3d at 357; cf. In r e Henderson, 462 F.3d 413, 415 (5th Cir. 2006) (holding, albeit in another c o n t e x t , that a prima facie case of mental retardation "`is simply a sufficient s h o w in g of possible merit to warrant a fuller [exploration] by the district court'" (c it a t io n omitted)). Therefore, faced with the threshold question of whether to a llo w Wiley's claim to proceed to a hearing, it was an unreasonable application o f clearly established federal law for the Mississippi Supreme Court to deny W ile y 's Atkins claim without a hearing, and the district court correctly concluded t h a t it was not bound to afford the state court's decision deference. See Rivera, 5 0 5 F.3d at 357; see also Panetti, 551 U.S. at 948. V . The merits of Wiley's Atkins claim W e must next consider whether the district court's determination that W ile y is mentally retarded was erroneous. As noted above, a claim of mental r e t a r d a t io n in Mississippi requires proof that the defendant has subaverage i n t e l l e c tu a l functioning, significant deficits in at least two areas of adaptive fu n c tio n in g , and manifestation prior to the age of eighteen. See Chase, 873 So. 2 d at 1027­29. A defendant must also prove through appropriate testing that h e is not malingering. Id. at 1028­29.

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No. 09-70037 1 . Subaverage intellectual functioning W h e t h e r a petitioner suffers from significantly subaverage intellectual fu n c tio n in g is a question of fact. Clark v. Quarterman, 457 F.3d 441, 444 (5th C ir . 2006). We will not disturb a district court's factual findings unless they are im p la u s ib le in light of the record considered as a whole. Rivera, 505 F.3d at 361; s e e Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573­74 (1985) ("If the d is t r ic t court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced t h a t had it been sitting as the trier of fact, it would have weighed the evidence d iffe r e n t ly ." ). "Where there are two permissible views of the evidence, the fa c t fin d e r 's choice between them cannot be clearly erroneous." Anderson, 470 U .S . at 574 (citation omitted). T h e Atkins Court recognized that IQ scores ranging from 70 to 75 are g e n e r a lly considered to be the cutoff for the intellectual functioning prong of the t e s t for mental retardation. Atkins, 536 U.S. at 309 n.5. The Mississippi

S u p r e m e Court has adopted as its cutoff for Atkins protection an IQ score of 75. Chase, 873 So. 2d at 1029 n.20. W ile y was administered an IQ test five times between 1987 and 2009. The t e s t in g was done on two versions of the Wechsler test--the WAIS-R and the W A I S -II I-- a n d on the Stanford-Binet Intelligence Scales, Fifth Edition (the S B 5 ). In addition to the testing by Dr. Fox and Dr. Grant discussed above, Wiley w a s tested by the court-appointed expert, Dr. O'Brien, and by the state's expert, D r . Macvaugh.11 W h e n the district court considered Wiley's scores, it noted that the experts' t e s t im o n y and reports indicated that they were subject to a confidence interval

Wiley's own expert, Dr. Swanson, testified that she did not administer a standardized IQ test because Wiley had already been tested several times, and she believed the results of another test could be inflated by the so-called practice effect.

11

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No. 09-70037 (C I) of 95%, meaning that due to standard errors of measurement the experts w o u ld expect with 95% confidence that Wiley's true IQ would fall within a c e r t a in range around the reported score. The district court also noted that the e x p e r t s debated the application of the Flynn effect. As noted above, the Flynn e ffe c t provides a reduction in IQ scores to account for inflation in the score based o n the number of years since the test was normalized. All three experts who t e s t ifie d at the evidentiary hearing stated that the Flynn effect is generally a c c e p t e d in the scientific community, but they did not agree as to whether an in d iv id u a l IQ score must be adjusted to reflect the phenomenon. Drs. O'Brien a n d Swanson testified that an adjustment should be considered, but Dr. M a c v a u g h disagreed. The district court noted that Wiley's full-scale IQ scores (F S IQ ), the CI interval ranges, and the Flynn adjusted IQ scores were as follows:

D a te E x a m in e r 1 9 8 7 D r . Fox 1 9 9 4 D r . Fox 2 0 0 3 D r . Grant 2 0 0 7 D r . O'Brien 2 0 0 9 D r . Macvaugh

T est W A IS -R W A IS -R W A IS -III W A IS -III SB5

F S IQ 73 78 68 70 80

9 5 % CI range 68­78 73­83 65­73 67­75 76­84

F ly n n effect 70 73 65 66 77

T h e State argues that the district court found Wiley mentally retarded b e c a u s e it erroneously applied the Flynn effect to Wiley's scores. It contends t h a t without such an adjustment only Dr. Grant's score of 68 clearly falls within t h e range for mental retardation. The State urges that the Flynn effect should n o t be employed and that even if it is considered, Wiley's adjusted score on the S B 5 was 77. T h e State is incorrect that the district court found Wiley mentally retarded o n ly because of the Flynn adjusted scores. The court explicitly stated that it was 22

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No. 09-70037 " n o t holding that the Flynn effect must be applied to properly assess an in d iv id u a l's IQ, and it is not holding that failing to apply it is unreasonable." Instead, the court indicated only that it should be considered as one factor when in t e r p r e t i n g Wiley's IQ scores in light of the unanimous opinion from the e x p e r t s .1 2 We need not resolve the weight, if any, to be given to the Flynn effect, h o w e v e r , because the district court also found that even without it the evidence s u p p o r t e d a finding that Wiley had significant subaverage intellectual fu n c tio n in g . On the record before us, that finding is not clearly erroneous. D r . O'Brien's report opined that Wiley's full scale IQ without any a d ju s tm e n t s for the Flynn effect was likely to be between 67 and 75. Dr. O'Brien t e s t ifie d that the score of 80 obtained by Dr. Macvaugh, as well as the score of 7 8 obtained by Dr. Fox in 1994, were likely "outliers" insofar as they did not fit w it h in the overall pattern of scores obtained across the range of testing. Dr. S w a n s o n testified that Wiley's scores from 1987 to 2007 were "fairly tight." Although her report made adjustments for the Flynn effect, it also reported that the four Wechsler tests had overlapping ranges between 68 and 70, which in her o p in io n was Wiley's true IQ score. T h e State argues that Dr. Macvaugh's score of 80 precludes a finding that W ile y is mentally retarded. It contends that the fact that a score may be an o u tlie r does not render it invalid. We reject the State's position that an IQ score a b o v e the cutoff for mental retardation automatically resolves a defendant's A tk in s claim when the defendant has been tested as many times as Wiley has b e e n tested and a majority of the scores fall within the mental retardation range. As discussed above, the State's contention is not found in the Mississippi S u p r e m e Court's case law. Cf. Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2 0 1 0 ) (rejecting argument that district court clearly erred in finding defendant
In its written decision the court referred to "test obsolescence," which we interpret to be the same as the Flynn effect based on the experts' testimony at the evidentiary hearing.
12

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No. 09-70037 m e n ta lly retarded where one of several IQ test scores was above the state's t h r e s h o ld : "There is no Alabama case law stating that a single IQ raw score, or e v e n multiple IQ raw scores, above 70 automatically defeats an Atkins claim w h e n the totality of the evidence (scores) indicates that a capital offender suffers s u b a v e r a g e intellectual functioning."). T o be sure, the Mississippi Supreme Court has held that a person with an I Q above 76 does not have a valid Atkins claim. Chase, 873 So. 2d 1029 n.20 (" [D ]e fe n d a n t s with an IQ of 76 or above do not qualify for Eighth Amendment A tk in s protection."). But we have found no state court authority indicating how t o assess the defendant's true IQ score in the face of multiple IQ examinations. The court has said simply that a defendant must present expert evidence that h e is mentally retarded and that he is not malingering. Id. at 1029. After h e a r in g evidence from both the State and the defendant, the trial court is then t o determine whether the defendant is mentally retarded from a preponderance o f the evidence. Id. The state court treats Atkins hearings the same as any other e v id en tia ry consideration. See id. (stating that after the defendant and the State p r e s e n t evidence as allowed by the Mississippi Rules of Evidence "the matter s h o u ld proceed as other evidentiary hearings on motions"). Therefore, the

d is t r ic t court here was not bound by a single reported IQ score, but rather was fr e e to consider all the reported scores and testimony as part of its analysis of t h e evidence. T h e hearing in this case was essentially a battle of the experts, who gave c o m p e t in g opinions as to Wiley's IQ and intellectual functioning. The calculation o f a person's IQ score is imprecise at best and may come down to a matter of the e x a m in e r 's judgment. Cf. Clark, 457 F.3d at 444 (noting that the "confidence b a n d is designed to account for the measurement error inherent in intelligence t e s t in g " ). The State's expert even testified that no test or examiner is perfect. Although Dr. Macvaugh disagreed with the opinions of Dr. Grant and Dr. 24

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No. 09-70037 O 'B r ie n , he testified that his disagreement was based on "examiner judgment" in the scoring of the IQ tests and conceded that "these things could be argued e it h e r way." A s noted by the district court, the record contains three expert a s s e s s m e n t s that explicitly found Wiley's IQ to be below 75, without any a d ju s tm e n t s for the Flynn effect or practice effect. (Dr. Fox's score of 73 in 1987; D r . Grant's score of 68 in 2003; and Dr. O'Brien's score of 70 in 2007.) The r e c o r d also contains opinions from three experts (Drs. Grant, O'Brien, and S w a n s o n ) that Wiley has subaverage general intellectual functioning, as r e q u ir e d by Atkins. Given the nature of IQ scoring and the presence of several I Q tests in the record, we do not believe it was clearly erroneous for the district c o u r t to place weight on these experts' opinions when determining Wiley's in t e lle c tu a l functioning. T h e State's argument would have us simply accept the opinion of Dr. M a c v a u g h over the opinions of Dr. O'Brien, Dr. Swanson, and Dr. Grant. We w ill not re-weigh the facts and evidence in order to reach a decision contrary to t h e district court's conclusion. See Anderson, 470 U.S. at 574; see also Rivera, 5 0 5 F.3d at 363 (the district court is in the best position to weigh the evidence). The record supports the district court's assessment of Wiley's intellectual fu n c tio n in g , and we conclude that the district court did not clearly err in its fin d in g from a preponderance of the evidence that Wiley satisfies this prong of t h e test for mental retardation. 2 . Adaptive functioning deficits A diagnosis of mental retardation requires not only subaverage intellectual a b ility but also significant deficits in adaptive functioning. See Chase, 873 So. 2d a t 1028 & n.18. "Adaptive functioning refers to how effectively individuals cope w it h common life demands and how well they meet the standards of personal in d e p e n d e n c e expected of someone in their particular age group, sociocultural 25

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No. 09-70037 b a c k g r o u n d , and community setting." DSM-IV-TR at 42. To meet this prong of t h e test, clinical definitions of mental retardation found in both the DSM-IV-TR a n d the AAMR require proof of limitations in two or more adaptive skill areas, w h ic h include communication, self-care, home living, social skills, community u s e , self-direction, health, safety, functional academics, leisure, and work.1 3 See A tk in s , 536 U.S. at 309 n.3 (quoting AAMR 9th ed. at 5, and DSM-IV-TR at 41). W ile y 's adaptive functioning skills have been assessed four times: by Dr. G r a n t in 2003, by Dr. O'Brien in 2008, by Dr. Macvaugh in 2008­09, and by Dr. S w a n s o n in 2009. Dr. Grant and Dr. Swanson used standardized measures of a d a p t iv e functioning to assist in their assessments of Wiley. Dr. Grant

a d m in is t e r e d to Wiley the Independent Living Scale. Dr. Swanson used the V in e l a n d -I I Adaptive Behavior Scales (Vineland), as well as the Adaptive B e h a v io r Assessment Scale (ABAS-II). Swanson used the standardized tests to g a t h e r information retrospectively by asking Wiley's grandmother and his fo r m e r wife to recall Wiley's behavior at age fifteen and eighteen, respectively. D r s . Grant, O'Brien, and Swanson concluded that Wiley had sufficient adaptive fu n c tio n in g deficits to be considered mildly mentally retarded, while Dr. M a c v a u g h disagreed. A fte r reviewing the experts' reports and considering the testimony at the h e a r in g , the district court held that Wiley met his burden of showing by a p r e p o n d e r a n c e of the evidence that he suffers from significant deficits in the a r e a s of functional academics, communication, and self-direction. Rather than
As noted above, the tenth edition of the AAMR revised the definition to require proof of limitations in adaptive behavior as expressed in "conceptual, social, and practical adaptive skills." The AAMR indicates that its Terminology and Classification Committee made this change because of a lack of a single standardized measure of adaptive behavior that measures all of the original skills. AAMR 10th ed. at 81. Dr. O'Brien testified that the ninth and tenth editions of the AAMR look at the same types of adaptive behavior, but the tenth edition essentially groups into three categories the individual skill areas of the ninth edition. Both Dr. O'Brien and Dr. Swanson indicated that their diagnoses of Wiley were the same under both editions.
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No. 09-70037 c h a lle n g e these findings, the State presents two arguments that concern the p r o c e s s by which the court and the experts reached their conclusions about W ile y 's adaptive behavior. T h e State first asserts that the Mississippi Supreme Court found from the a ffid a v it s of Wiley's family and friends that Wiley did not have deficits in a d a p t iv e behavior, and that the state court's decision was not unreasonable. The a ffid a v it s at issue showed that Wiley often provided money to help pay h o u s e h o ld bills, possessed skill repairing vehicles and frequently helped friends a n d neighbors with auto repairs, provided transportation for others, volunteered fo r military service, and was a reliable worker who quit school to go to work to p r o v id e for his family. B e c a u se we have determined that the district court did not err by declining to afford deference to the Mississippi Supreme Court's decision, the district court w a s not limited to consideration of this evidence at the hearing. Moreover, Drs. G r a n t , O'Brien, and Swanson all opined that mentally retarded persons could p e r fo r m the types of activities noted in the affidavits. See Thomas, 607 F.3d at 7 5 9 (rejecting State's argument that defendant was not retarded because he w o r k e d on a farm performing manual labor and driving a tractor and also held s e v e r a l other menial labor jobs where experts agreed these skills are consistent w it h mild mental retardation and State's own expert testified that mentally r e t a r d e d persons can drive cars and hold menial jobs). T h e State also contests the methodology used by Wiley's examiners, p r im a r ily Dr. Swanson. It argues that Swanson's retrospective use of the

V in e la n d and the ABAS-II to ask about Wiley's past behavior was erroneous and t h a t Dr. Swanson also incorrectly scored individual questions on the tests. We a r e unpersuaded by the State's rather cursory briefing of this issue. T h e assessment of adaptive functioning deficits is no easy task. Because its conceptualization "has proven elusive," adaptive functioning "historically has 27

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No. 09-70037 b e e n assessed on the inherently subjective bases of interviews, observations, and p r o fe s s io n a l judgment." Doss v. State, 19 So. 3d 690, 713 (Miss. 2009) (internal q u o t a t io n marks and citation omitted). The Mississippi Supreme Court has r e c o g n iz e d that "there is not one test to determine mental retardation, including t h e adaptive functioning component" and that there has been no agreement a m o n g professionals as to the proper test for assessing adaptive behavior. Id. a t 712. The district court here also recognized that there is debate among c lin ic ia n s as to whether retrospective assessments are valid for determining a d a p t iv e functioning in an Atkins-related context. Nevertheless, the district c o u r t found the testing by Dr. Swanson, which she corroborated with interviews o f others and with direct probes of Wiley, to be sufficiently reliable for c o n s id e r a t io n . We see no clear error in the district court's findings. See, e.g., id. a t 714 (holding in the face of similar expert disagreement about standardized a d a p t iv e testing and the adaptive functioning of the defendant that neither s id e 's methodology was infallible and that the ultimate issue of whether the d e fe n d a n t is mentally retarded is up to the trial court after assessing the totality o f the evidence and the credibility of the witnesses). The record and evidence b e fo r e the district court in this case supported the court's consideration of the in fo r m a t io n obtained by Dr. Swanson. A lt h o u g h Dr. Macvaugh disagreed with Dr. Swanson's use of the ABAS-II a n d Vineland tests, even he agreed that some experts believe standardized in s t r u m e n t s are necessary to assist in the assessment of adaptive behavior. The t e n t h edition of the AAMR specifically recommends the use of standardized m e a s u r e s and instruments, and it notes that the ABAS-II test "can be used to id e n tify significant limitations in adaptive behavior." See AAMR 10th ed. at 76, 8 1 , 83. Furthermore, the authors of the Vineland test expressly state that r e t r o s p e c t iv e interviews to obtain information about a subject's behavior at an e a r lie r age is permissible in certain circumstances, including when the subject 28

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No. 09-70037 is in a restricted environment, such as prison, and there is a question about the s u b je c t 's adaptive functioning before coming to that environment. See SARA S. S PENCER, ET AL., VINELAND ADAPTIVE BEHAVIOR SCALES, SECOND ED., Expanded I n te r v ie w Form Manual, 28 (emphasis added). T h e AAMR 10th edition recommends that because the adaptive fu n c tio n in g assessment typically take