Ferguson v. Allen

Filing 51

MEMORANDUM OPINION: Petitioner having failed to establish that he suffers from significantly subaverage intellectual functioning or that he has significant or substantial deficits in adaptive behavior, his Atkins claim and his petition for writ of habeas corpus are due to be DENIED as more fully set out in this opinion. Signed by Judge C Lynwood Smith, Jr on 5/21/2020. (AHI )

FILED
2020 May-21 AM 11:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
THOMAS DALE FERGUSON,

)
)
Petitioner,
)
)
vs.
)
)
RICHARD F. ALLEN, Commissioner,)
Alabama Department of Corrections, )
)
Respondent.
)

Case No. 3:09-cv-0138-CLS-JEO

MEMORANDUM OPINION
The question addressed in this opinion is whether petitioner, Thomas Dale
Ferguson, is categorically excluded from execution by the Supreme Court’s opinion
in Atkins v. Virginia, 536 U.S. 304 (2002), holding that death is not a permissible
punishment for an intellectually disabled convict. Id. at 321;1 see also, e.g., Moore
v. Texas, 137 S. Ct. 1039, 1053 (2017); Hall v. Florida, 572 U.S. 701, 713, 722
(2014); Bobby v. Bies, 556 U.S. 825, 831 (2009). The issue was presented as a result
1

When Atkins was decided, the condition at issue was referred to as “mental retardation.”
Within five years, however, the diagnostic terminology employed by mental health professionals was
changed to “intellectual disability.” See, e.g., Robert A. Schalock et al., The Renaming of Mental
Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual &
Developmental Disabilities 116, 120 (2007) (recognizing that “every individual who is or was
eligible for a diagnosis of mental retardation is eligible for a diagnosis of intellectual disability”).
Congress also enacted “Rosa’s Law” in 2010, which required that all references in federal laws to
“mental retardation” be replaced with “intellectual disability.” Pub. L. No. 111-256, 124 Stat. 2643,
codified as amended at 20 U.S.C. §§ 1140, 1400-01, 7512, and 29 U.S.C. §§ 705, 764, 791 (2010).
See also, e.g., Hall v. Florida, 572 U.S. 701, 704-05 (2014) (adopting the change in terminology).
Thus, the terms “mental retardation” and “mentally retarded” are used in this opinion only when
quoting or discussing older authorities.

of granting Ferguson’s Rule 59(e) motion and vacating Part “V.F.” of this court’s
prior memorandum opinion, which addressed Ferguson’s claim that he had been
improperly denied a hearing on his mental capacity claim.2 An evidentiary hearing
was held on August 27, 2019. Following consideration of the evidence, pleadings,
post-hearing briefs, and additional research, the court enters the following opinion.
I. LEGAL CRITERIA
The Supreme Court’s seminal holding in Atkins v. Virginia was based, at least
in part, upon the majority’s belief that deficits in the areas of “reasoning, judgment,
and control of their impulses” did not allow intellectually disabled criminals to act
with the same degree of “moral culpability that characterizes the most serious adult
criminal conduct.” 536 U.S. at 306. The Court majority also was not persuaded that
the execution of intellectually disabled criminals would advance the deterrent or
retributive purposes of the death penalty.3 Consequently, the majority concluded that
2

See doc. no. 16 (Memorandum Opinion on Petitioner’s 28 U.S.C. § 2254 Claims for Habeas
Corpus Relief), at 146-89; doc. no. 17 (Final Judgment on Petitioner’s 28 U.S.C. § 2254 Claims for
Habeas Corpus Relief); doc. no. 18 (Motion to Alter or Amend Judgment); doc. no. 19
(Memorandum Opinion on Petitioner’s Rule 59(e) Motion).
3

The Court elaborated those purposes in, Hall, 572 U.S. at 708-09, where the Court observed

that:
“[P]unishment is justified under one or more of three principal rationales:
rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, 554 U.S. 407, 420
(2008). Rehabilitation, it is evident, is not an applicable rationale for the death
penalty. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.). As for deterrence, those with intellectual disability are,
by reason of their condition, likely unable to make the calculated judgments that are
2

the execution of such persons was “excessive,” and that the Eighth and Fourteenth
Amendments placed “a substantive restriction” upon a state’s power to take the life
of an intellectually disabled offender. Id. at 321.4
Notably, the Atkins opinion did not provide definitive procedural or substantive
guides for determining when a state prisoner claiming an intellectual disability fell
within the protection of the Eighth and Fourteenth Amendments’ prohibition against
the imposition of cruel and unusual punishments. Instead, the Court left to the states
“the task of developing appropriate ways to enforce the constitutional restriction.”
Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17
(1986) (addressing the execution of insane persons)).
the premise for the deterrence rationale. They have a “diminished ability” to “
process information, to learn from experience, to engage in logical reasoning, or to
control impulses . . . [which] make[s] it less likely that they can process the
information of the possibility of execution as a penalty and, as a result, control their
conduct based upon that information.” Atkins, 536 U.S., at 320. Retributive values
are also ill-served by executing those with intellectual disability. The diminished
capacity of the intellectually disabled lessens moral culpability and hence the
retributive value of the punishment. See id., at 319 (“If the culpability of the average
murderer is insufficient to justify the most extreme sanction available to the State, the
lesser culpability of the mentally retarded offender surely does not merit that form of
retribution”). [Alterations in original, boldface emphasis supplied.]
4

The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII (1791). The
prohibition against cruel and unusual punishments was “incorporated” into the Due Process Clause
of the Fourteenth Amendment and, thereby, made applicable to the various states by the Supreme
Court’s decision in Robinson v. California, 370 U.S. 660, 667 (1962). See also, e.g., Hall, 572 U.S.,
at 708 (holding that “No legitimate penological purpose is served by executing a person with
intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of
punishments on an intellectually disabled person violates his or her inherent dignity as a human
being.”) (citing Atkins, 536 U.S. at 317).
3

The Alabama Supreme Court first addressed the criteria for enforcing the
constitutional restriction in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), holding
that, in order to be classified as mentally retarded (now described as “intellectually
disabled”), a defendant “must have significantly subaverage intellectual functioning
(an IQ of 70 or below), and significant or substantial deficits in adaptive behavior.
Additionally, these problems must have manifested themselves during the
developmental period (i.e., before the defendant reached age 18).” Id. at 456.
The Alabama Supreme Court’s subsequent opinion in Smith v. State, 213 So.
3d 239 (Ala. 2007), layered a gloss on the Perkins standard, and held that a defendant
must exhibit both significantly subaverage intellectual functioning and significant
deficits in adaptive behavior during three periods of his or her life: (i) before the age
of eighteen; (ii) on the date of the capital offense; and (iii) currently. Id. at 248
(citing Perkins, 851 So. 2d at 456). See also Holladay v. Allen, 555 F.3d 1346, 1353
(11th Cir. 2009) (same).5
5

The “Defendant with Intellectual Disability Act” was enacted by the Alabama Legislature
in August 2009, two years after the decision in Smith v. State, and defined the phrase “person with
an intellectual disability” as meaning: “A person with [i] significant subaverage general intellectual
functioning [ii] resulting in or associated with concurrent impairments in adaptive behavior and [iii]
manifested during the developmental period, [iv] as measured by appropriate standardized testing
instruments.” Ala. Code § 15-24-2(3) (1975) (2018 Replacement Vol.) (alterations supplied). Note
that the statutory definition differs from the Alabama Supreme Court’s criteria in two respects: first,
it omits the evidentiary requirement for a defendant’s significantly subaverage intellectual
functioning abilities and substantial deficits in adaptive behavior to be proven as manifest not just
before the age of eighteen (i.e., “during the developmental period”), but also on the date of the
capital offense, as well as currently; and second, it adds the evidentiary requirement for all deficits
4

II. DISCUSSION
Ferguson bears the burden of proving, by a preponderance of the evidence, that
he is intellectually disabled. See, e.g., Ex parte Carroll, No. 1170575, 2019 WL
1499322, at *1 (Ala. Apr. 5, 2019). “Intellectual disability is characterized by
significant limitations both in [a] intellectual functioning and in [b] adaptive
behavior as expressed in conceptual, social, and practical adaptive skills. This
disability [c] originates before age 18.” American Association on Intellectual &
Developmental Disabilities, Intellectual Disability: Definition, Classification, and
Systems of Support 5 (11th ed. 2010) (emphasis and alterations supplied).6
to be “measured by appropriate standardized testing instruments.” That diagnostic requirement is
the subject of the following section.
6

See also American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) (“DSM-5”), providing that:
Intellectual disability (intellectual developmental disorder) is a disorder with
onset during the developmental period that includes both intellectual and adaptive
functioning deficits in conceptual, social, and practical domains. The following three
criteria must be met:
A.

Deficits in intellectual functions, such as reasoning, problem solving, planning,
abstract thinking, judgement, academic learning, and learning from experience,
confirmed by both clinical assessment and individualized standardized
intelligence testing. [Emphasis supplied.]

B.

Deficits in adaptive functioning that result in failure to meet developmental and
sociocultural standards for personal independence and social responsibility.
Without ongoing support, the adaptive deficits limit functioning in one or more
activities of daily life, such as communication, social participation, and
independent living, across multiple environments, such as home, school, work,
and community.
5

A.

Proof of Significant Limitations in Intellectual Functioning
Proof of the first element of an alleged intellectual disability is best represented

by intelligence quotient (“IQ”) scores obtained by the administration of standardized
assessment instruments,7 such as the “Wechsler Intelligence Scale for Children,” the
“Wechsler Adult Intelligence Scale,” or the “Stanford-Binet Intelligence Scales.”
Even though each of the assessment instruments used to measure Ferguson’s
IQ at various stages of his life was, on the date of its administration to him, generally
considered to be a reliable test, and capable of producing valid scores,8 each

C.

Onset of intellectual and adaptive deficits during the developmental period.

7

The term “assessment instrument” refers to a specific method of acquiring data in the
psychological and intellectual assessment of individuals, such as a questionnaire or behavioral
observation coding system. See, e.g., Raymond J. Corsini, The Dictionary of Psychology 69 (2002)
(hereafter, “Dictionary of Psychology”). When the adjective “standardized” modifies that term, the
combined phrase means that: during the design phase, each instrument was administered to a large,
representative sample of the population for which the test was intended to provide reliable,
normative data; the validity and reliability of each instrument was established over time by
cumulative empirical applications and analyses; and, each individual questionnaire is administered,
scored, and interpreted by trained examiners in strict accordance with instructions issued by the test
developers. See, e.g., David Wechsler, WAIS-III Administration and Scoring Manual (1997); Gale
H. Roid, Stanford-Binet Intelligence Scales, Fifth Edition, Examiner’s Manual (2003).
8

See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 n.9 (1993) (“We note
that scientists typically distinguish between ‘validity’ (does the principle support what it purports
to show?) and ‘reliability’ (does application of the principle produce consistent results?). . . . [O]ur
reference here is to evidentiary reliability — that is, trustworthiness. . . . In a case involving
scientific evidence, evidentiary reliability will be based upon scientific validity.”) (emphasis in
original, internal citations omitted).
6

instrument also contained potential for measurement error.9 The Supreme Court’s
opinion in Hall v. Florida recognized that:
The professionals who design, administer, and interpret IQ tests
have agreed, for years now, that IQ test scores should be read not as a
single fixed number but as a range. . . . Each IQ test has a “standard
error of measurement,” . . . often referred to by the abbreviation “SEM.”
A test’s SEM is a statistical fact, a reflection of the inherent imprecision
of the test itself. . . . An individual’s IQ test score on any given exam
may fluctuate for a variety of reasons. These include the test-taker’s
health; practice from earlier tests; the environment or location of the
test; the examiner’s demeanor; the subjective judgment involved in
scoring certain questions on the exam; and simple lucky guessing. . . .
The SEM reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score. For
purposes of most IQ tests, the SEM means that an individual’s score is
best understood as a range of scores on either side of the recorded
score. The SEM allows clinicians to calculate a range within which one
may say an individual’s true IQ score lies. See APA Brief 23 (“SEM is
a unit of measurement: 1 SEM equates to a confidence of 68% that the
measured score falls within a given score range, while 2 SEM provides
a 95% confidence level that the measured score is within a broader
range”). A score of 71, for instance, is generally considered to reflect
a range between 66 and 76 with 95% confidence and a range of 68.5
and 73.5 with a 68% confidence. See DSM–5, at 37 (“Individuals with
intellectual disability have scores of approximately two standard
deviations or more below the population mean, including a margin for
measurement error (generally +5 points). . . . [T]his involves a score of
65-75 (70 ± 5)”). . . . . Even when a person has taken multiple tests,
each separate score must be assessed using the SEM, and the analysis
of multiple IQ scores jointly is a complicated endeavor. . . .
9

See, e.g., American Association of Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Supports 59 (9th ed. 1992) (hereafter, AAMR, Mental Retardation)
(“Any trained examiner is aware that all tests contain measurement error; [consequently,] many
present scores as confidence bands rather than finite scores.”) (alteration supplied).
7

Hall, 572 U.S. at 713-14 (citations omitted, emphasis supplied). Thus, the Standard
Error of Measurement (“SEM”) accounts for a margin of error of five points, both
below and above the test-taker’s IQ score on the standardized assessment instrument
at issue. Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d
600, 640 (11th Cir. 2016).10
1.

IQ scores found in Ferguson’s public school records

During November of 1979, when Ferguson was six years of age, he obtained
a Full-Scale IQ score of 77 on the Stanford-Binet Intelligence Scale.11
Six years later, when Ferguson was on the threshold of the 1985-86 school
year, he was evaluated at the request of his mother for special educational services
because of a noted “lack of academic progress, suspected learning disability, deficient
reading skills, and deficient handwriting skills.” Doc. no. 39-5 (Petitioner’s Exhibit
5), at 21 (Morgan County School System Confidential Student Evaluation). The
“Wechsler Intelligence Scale for Children–Revised (WISC-R)” assessment
instrument was administered on August 6, 1985, and he achieved a Verbal IQ score
10

See also, e.g., Walker v. True, 399 F.3d 315, 322 (4th Cir. 2005) (“IQ tests have a
measurement error of plus or minus five points.”).
11

See doc. no. 39-5 (Petitioner’s Exhibit 5), at 35, 37. Note well: The page numbers of all
documents filed in this court will be those imprinted at the top of each page by the CM/ECF
automated filing system, and not necessarily those of counsel. This can be confusing when citing
such pleadings as doc. no. 47 (Petitioner’s Brief), which begins with an unnumbered cover page,
followed by a “Table of Contents” page numbered with a lower-case Roman numeral. As a result,
the first page bearing Arabic numeral “1” was numbered “Page 3” by the CM/ECF filing system.
8

of 74, a Performance IQ score of 71, and a Full-Scale IQ score of 71. Id. at 22.12
Significantly, however, even though Ferguson “did not appear to be challenged by the
more difficult items on the test,” the test administrator noted that he “gave up easily
on both verbal and non-verbal items.”13 After reviewing the test scores, the school
system concluded that Ferguson was eligible for special services as an “educationally
mentally handicapped” student.14 Such children typically were segregated from the
main student body and placed in “a self-contained classroom with about six or seven
other students.”15
During March of 1988, when Ferguson was fifteen and in the second semester
of his 8th Grade, 1987-88 school year, school system policy required that he be re-

12

See also doc. no. 39-5 (Petitioner’s Exhibit 5), at 37 (August 12, 1985 Morgan County
Board of Education “Eligibility Justification” stating that Ferguson “continues to be eligible for
special services as Educationally Mentally Handicapped. . . . . Dale’s re-evaluation indicates that
his overall functioning is within the EMH range. A previous Binet (11/15/79) yielded an IQ score
of 77 which is considered to be consistent with his current WISC-R score of 71.” (ellipsis supplied)).
13

Id. at 22. This court rejects Ferguson’s contention that the comments of the examiner that
are quoted in text cannot be used to conclude that his low score on this test was due to malingering,
because the examiner also stated that Ferguson was “cooperative during the entire session,” and that
his scores were “considered to be valid.” Doc. no. 47 (Petitioner’s Brief), at 17 (citing doc. no. 39-5
(Petitioner’s Exhibit 5), at 22).
14

Doc. no. 39-5 (Petitioner’s Exhibit 5), at 36-37 (August 12, 1985 justification for providing
Ferguson special services as an educationally mentally handicapped student). Terms such as
“Educationally Mentally Handicapped,” “Educable Mentally Impaired,” “Trainable Mentally
Handicapped,” and “Educable Mentally Retarded” were virtually sonorous descriptions of similar
conditions. See, e.g., Dictionary of Psychology 312.
15

See doc. no. 46 (Hearing Transcript), at 127 (where the State’s expert, Dr. Glen King,
testified that: “Typically in Alabama if you’re in an [educable mentally retarded] class, you’re in a
self-contained classroom with about six or seven other students and you stay there all day”).
9

evaluated for continued receipt of the special services provided to educationally
mentally handicapped students.16 The WISC-R was re-administered on March 1,
1988, and Ferguson achieved a Verbal IQ score of 87, a Performance IQ score of 88,
and a Full-Scale IQ score of 87 — a decided, sixteen-point improvement over his
performance on the same assessment instrument nearly three years before.17 (During
the hearing held in this court, Ferguson’s own expert, Dr. Robert D. Shaffer,
confirmed that Ferguson’s scores on six of the ten subtests comprising the WISC-R
improved on the 1988 re-test, and that he did not score two standard deviations below
the mean on any subtest.18) The test administrator recorded that Ferguson’s full-scale
score fell “within the low average range of intellectual functioning.”19 Consequently,
he was moved into classes for students classified as “learning disabled.”20 Such
students were not segregated from the larger student body, but received additional
assistance with certain subjects.21
16

See doc. no. 39-5 (Petitioner’s Exhibit 5), at 51 (“Dale [Ferguson] is currently enrolled in
the special education program and is due the required three year re-evaluation for continued
placement in that program.”) (alteration and emphasis supplied).
17

Id. at 52.

18

Doc. no. 46 (Hearing Transcript), at 56-57.

19

See doc. no. 39-5 (Petitioner’s Exhibit 5), at 52.

20

Id. at 60.

21

See doc. no. 46 (Hearing Transcript), at 127-28 (where the State’s expert, Dr. Glen King,
testified that students classified as “learning disabled” are “mainstreamed,” meaning that they are
“in regular classes all day,” but receive “special resources” (e.g., “additional help with reading,
writing”), and typically are provided an “Individualized Education Program” which allows “extra
time to take tests, or you have [test] items . . . read to you, or things of that nature”) (alteration
10

2.

State court IQ assessments

While awaiting trial in state court, Ferguson was referred by the court to Dr.
C. Van Rosen for a psychological evaluation to assist in determining his competency
to stand trial, as well as his mental state at the time of the offense.22 Dr. Rosen
administered a “Wechsler Adult Intelligence Scale–Revised (WAIS-R)” assessment
instrument during December of 1997, and recorded that Ferguson achieved a Verbal
IQ score of 76, a Performance IQ score of 66, and a Full-Scale IQ score of 69, which
Dr. Rosen characterized as
technically plac[ing] him in the very high range of the mildly retarded
level. However, it was considered quite apparent that he did not
attempt to make a good effort in this test, giving up readily on many
items and seemingly not trying as hard as possible. The defendant’s
intellectual functioning is consequently considered to be within the
higher portion of the borderline range of abilities.
Doc. no. 41-9 (Respondent’s Exhibit 5), at 7 (Rosen Report) (alteration and emphasis
supplied). Dr. Rosen subsequently testified during the state-court trial that: he had
seen no signs of mental retardation during his evaluation of Ferguson; he was certain
that Ferguson did not put forth his full effort during administration of the WAIS-R;

supplied).
22

See doc. no. 41-9 (Respondent’s Exhibit 5), at 1 (Rosen Report).
11

and that, if Ferguson “had really tried[,] he would have scored probably in the middle
70’s . . . perhaps a little higher.”23
Ferguson was referred by his defense attorneys to Dr. James F. Chudy for an
independent psychological evaluation prior to trial. Dr. Chudy performed his
examination in June of 1998. Although he did not include a specific IQ score in his
written report of evaluation,24 he concluded, after administering a battery of
standardized personality tests, that none of the tests revealed “organic problems,”25
but all in combination demonstrated that Ferguson was “functioning in the borderline
range” of intelligence, in “the area between low average intelligence and mental
retardation.”26
3.

Recent IQ assessments

Ferguson’s most recent IQ scores were derived from testing performed in
preparation for the evidentiary hearing in this court.
a.

Ferguson’s psychologist — Dr. Robert D. Shaffer

23

Doc. no. 41-9 (Respondent’s Exhibit 6), at 25 (Rosen Trial Testimony).

24

See doc. no. 41-9 (Respondent’s Exhibit 7), at 43-51 (Chudy Written Report).

25

See doc. no. 41-9 (Respondent’s Exhibit 8), at 57-58 (Chudy Trial Testimony: “I found
some memory problems. They were fairly consistent with his low intelligence, but no significant
organic problems.”).
26

Id. at 58 (Chudy Trial Testimony).
12

Robert Daniel Shaffer, who holds a Ph. D. in clinical psychology and has
specialized training in neuropsychology and forensic psychology, was retained by
Ferguson’s attorneys to evaluate his “cognitive and intellectual functions, and his
adaptive behavior in light of current court rulings pertaining to Intellectual Disability
and death penalty eligibility.”27 He met with Ferguson for a total of 13.8 hours over
three days.28 He also interviewed Ferguson’s mother, Mrs. Betty Ferguson, for an
additional 4.2 hours.29 He concluded that Ferguson demonstrated “significantly subaverage intellectual ability,”30 and recorded that his condition was
most evident in the profile of neuropsychological functions. The DSMV states that this profile of abilities is to be more strongly weighed than
single IQ numerical scores, owing to the imprecision of IQ tests
themselves. This profile of neurocognitive abilities reveals significant
sub-average deficits in intellectual ability. IQ scores obtained in this
evaluation are consistent with this finding.
Doc. no. 39-1 (Petitioner’s Exhibit 1), at 16.
Dr. Shaffer’s opinion relied, at least in part, upon the Full-Scale IQ score of 77
achieved by Ferguson during the September 18, 2017 administration of a “Wechsler

27

Doc. no. 39-1 (Petitioner’s Exhibit 1), at 1.

28

Dr. Shaffer’s evaluations of Ferguson occurred on September 18 and 19, 2017, and March
22, 2018. Id. Notably, Shaffer’s last evaluation was conducted the month after Ferguson was
examined by the State’s psychologist.
29

Dr. Shaffer interviewed Mrs. Betty Ferguson on January 29, 2018 (id.) in an attempt to
assess Ferguson’s adaptive functions “from her reference point” during the periods she and Ferguson
lived together. See doc. no. 46 (Hearing Transcript), at 12.
30

Doc. no. 39-1 (Petitioner’s Exhibit 1), at 9.
13

Adult Intelligence Scale–Fourth Edition (WAIS-IV)” assessment instrument.
Adjustment of that score for the “Flynn effect”31 reduced it to 73.4.32 After applying
the standard error of measurement to the Flynn-effect-adjusted score, Dr. Shaffer
testified that there was a 95% probability that Ferguson’s “true IQ” lay in a range
between 69.4 and 78.4, and a 99% probability that his true IQ lay somewhere in a
range between 67.9 and 78.9.33

Thus, according to Dr. Shaffer, Ferguson’s

intellectual functioning is significantly substandard, because his true IQ could be less
than 70.
Dr. Shaffer also administered several neuropsychological tests in an attempt
to assess Ferguson’s executive, verbal, visual-processing, organizational, memory,
and fine-motor functions. Not all of the tests demonstrated substantial impairments,
but Dr. Shaffer concluded that the totality of all test results were consistent with his

31

The “Flynn effect” is a term that refers to the finding that average IQ scores have increased
steadily in the United States and European nations for many decades. The concept is discussed more
thoroughly in Part II.A.4.a of this opinion, infra.
32

See doc. no. 46 (Hearing Transcript), at 26-27. Dr. Shaffer said that, when adjusting
Ferguson’s Full-Scale IQ score for the “Flynn effect,” he began by calculating the number of years
that had elapsed between the date on which the WAIS-IV assessment instrument had been
standardized, or “normed,” and the date on which he administered the test to Ferguson (September
18, 2017). He testified that difference was 10.2 years. Id. at 27. (10.2 x 0.3 = -3.6 deducted from
77 = IQ score of 73.4 following adjustment for the Flynn effect). However, as discussed in the
textual paragraph accompanying notes 64 and 65, infra, this court concludes that Dr. Shaffer’s
adjustment calculations require revision because he miscalculated the number of years that elapsed
between the date on which the WAIS-IV assessment instrument was published and the date on which
he administered it to Ferguson.
33

See id. at 27-28.
14

opinion that Ferguson has significant limitations in his ability to function
intellectually.34
b.

The State’s psychologist — Dr. Glen D. King

Glen David King, who holds a J.D. degree and Ph. D. in clinical and forensic
psychology, was retained by the Alabama Attorney General’s office “to primarily
determine the intellectual ability of Mr. Ferguson.”35 Dr. King met with him for fiveand-a-half hours on February 13, 2018 — five months after Dr. Shaffer had
completed the second of his three meetings with Ferguson — and administered six
tests, “just to make sure” that he employed at least one assessment instrument that had
not previously been administered by Dr. Shaffer.36 Even so, Dr. King’s opinions were
principally grounded upon the results obtained from his re-administration of the

34

See id. at 29-32. See also doc. no. 39-1 (Petitioner’s Exhibit 1), at 5-6 & 7-13 (where
Shaffer summarizes the neuropsychological tests administered to Ferguson and the results obtained
from each).
35

Doc. no. 41-1 (Respondent’s Exhibit 1), at 1.

36

Id. at 3; Doc. no. 46 (Hearing Transcript), at 122. The assessment instruments
administered by Dr. King were: the “Wechsler Adult Intelligence Scale–Fourth Edition
(WAIS-IV)”; the “Stanford Binet Intelligence Scale–Fifth Edition (SB-5)”; the “Wide Range
Achievement Test–Fifth Edition (WRAT-5)”; the “Adaptive Behavior Assessment System–Third
Edition (ABAS-3)”; the “Independent Living Scales (ILS)”; and, a test he referred to as the
“Shipley-2.” Doc. no. 41-1 (Respondent’s Exhibit 1), at 2, 5-7. (“Shipley-2” is an abbreviation of
the “Shipley-Institute for Living Scale for Measuring Intellectual Impairment–Second Edition
(Shipley-2).” See https://www.stoeltingco.com/shipley-institute-of-living-scale-second-editionshipley-2.html (last visited Apr. 6, 2020). The test is “used for determining pathological
deterioration of intelligence. A conceptual quotient is obtained and scores below 100 are purported
to indicate mental impairment due to age, disease or injury.” Dictionary of Psychology 899.
15

“Wechsler Adult Intelligence Scale–Fourth Edition (WAIS-IV)” test,37 as well as his
unique administration of a “Stanford Binet Intelligence Scale–Fifth Edition (SB-5)”
assessment instrument.38 Ferguson obtained Full-Scale IQ scores of 85 on the
WAIS-IV, and 84 on the SB-5.39
Dr. King testified that Ferguson’s Full-Scale IQ score of 85 on the WAIS-IV
placed him on the boundary between two categories of intellectual ability: that is, his
IQ score could be classified as lying either at the high end of the “borderline range”
of intellectual ability (i.e., IQ scores between 70 and 84), or at the low end of the
“average range” of intellectual ability (i.e., IQ scores from 85 to 115).40 After
adjusting Ferguson’s 85 score for the standard error of measurement, Dr. King stated
that an evaluator could be 99% confident that Ferguson’s Full-Scale IQ score on the

37

Dr. King described the WAIS-IV as a test that had “ten subtests associated with it. Those
ten subtests are divided into four different domains: verbal comprehension index, perceptual
reasoning index, working memory index, and processing speed index. We get a score on each one
of those indices, and then they’re all combined to give us a full scale IQ score.” Doc. no. 46
(Hearing Transcript), at 117-18. Scores on the WAIS-IV subtests, as well as the full-scale score,
average 100 (the mean), with a standard deviation of 15, which means that a Full-Scale IQ score of
85 would be “one standard deviation below the mean.” Id. at 118.
38

Dr. King described the “Stanford Binet Intelligence Scale–Fifth Edition (SB-5)” as being
“an individually administered intelligence test. It has no items that overlap with the Wechsler Adult
Intelligence Scale, but [it] is also considered to be one of the two gold standard IQ tests for
measuring IQ and school placement. It is – it has also an average of a hundred and a standard
deviation of 15.” Id. at 120 (alteration supplied).
39

See doc. no. 41-1 (Respondent’s Exhibit 1), at 5-6 & 8.

40

See doc. no. 46 (Hearing Transcript), at 119, lines 12-14 (testifying that IQ scores between
70 to 84 are classified in “the borderline range,” while IQ scores from 85 to 115 are classified as
“average” intelligence).
16

WAIS-IV would lie somewhere between 81 and 89,41 a span that straddled both the
“borderline” and “average” ranges of intellectual functioning.
Ferguson’s Full-Scale IQ score of 84 on the “Stanford Binet Intelligence
Scale–Fifth Edition (SB-5)” assessment instrument placed him “at the high end of the
borderline range” of intellectual functioning.42 The closeness of Ferguson’s scores
on the WAIS-IV and SB-5 — Dr. King characterized them as being in “absolute
agreement with each other”43 — indicated that the tests had accurately measured
Ferguson’s intellectual abilities. Dr. King added that, while a test subject can “always
malinger, or not put forth good effort and have a reduced score” on an IQ test, it is not
possible to “fake good,” and “the highest score . . . would be an indication of your
best performance.”44
Dr. King also reviewed the IQ scores found in Ferguson’s public school
records,45 and testified that the full-scale score of 87 attained on the “Wechsler
Intelligence Scale for Children–Revised (WISC-R)” in March of 1988, when he was
fifteen, was “in good agreement with what I found on all of the tests I gave him.”46
41

Id. at 119-20.

42

Id. at 120-21.

43

Id. at 122.

44

Id. at 123.

45

Those scores were summarized in Section II.A.1 of this opinion, supra.

46

Doc. no. 46 (Hearing Transcript), at 125. King did not believe that the low, Full-Scale IQ
score of 71 obtained by Ferguson on the WISC-R administered in July 1985, when he was twelve
17

Based upon such considerations, Dr. King testified that Ferguson’s intellectual
functioning abilities were not “significantly subaverage.” Instead, in Dr. King’s
opinion, Ferguson’s IQ scores placed him either at the high end of the borderline
range, or at the low end of the average range, of intellectual functioning.47
4.

The parties’ contentions:
a.

Adjustment for the Flynn effect

Ferguson contends that, “contrary to established procedures in the authoritative
texts, Dr. King failed to quantitatively or qualitatively account for the shifting norms”
of his IQ tests by adjusting his scores for the “Flynn effect”48 — a term that refers to
the discovery in 1984 by political scientist James R. Flynn that average IQ scores had
years old (and indicating that he was in the borderline range of intellectual functioning), cast doubt
upon the accuracy of the IQ scores obtained in February 2018, because the notation of the 1985
examiner indicated that Ferguson “gave up easily, [and] was not necessarily putting forth his best
effort”: in other words, he could have done better. Id. at 124 (alteration supplied). King added that
Ferguson’s school records indicated that he suffered from a “learning disability,” as opposed to an
intellectual disability. See id. at 125-26.
47

Id. at 129 (“Based on all the tests together, he’s somewhere right at the high borderline to
below average.”). King also noted that, with but one exception — that being the WISC-R test
administered in July 1985 that is addressed in the preceding footnote — Ferguson scored somewhere
between 70 and 85 or 86 on every IQ test administered over the course of his life. Id. at 130.
Dr. King also reviewed Ferguson’s prison records, spanning an eighteen year period from
1998 to 2016, and found that he “was in segregation on multiple occasions and had to be reviewed.
In every one of those occasions the rating was again normal intelligence [even though] there were
boxes to check off for borderline or disabled. So there were no indications [of intellectual
disabilities] from that.” Id. at 128 (emphasis and alterations supplied). Finally, King found a letter
written by Ferguson in his prison files, requesting a transfer to another penal facility closer to family,
and King described it as notable in several respects: i.e., it was divided into “paragraphs,” “neatly
written,” “punctuated and spelled correctly,” and demonstrated “good handwriting.” Id. at 129.
48

Doc. no 47 (Petitioner’s Brief), at 16.
18

increased steadily in the United States and Europe for more than forty years at an
average rate of 3.0 points a decade, or 0.3 points annually.49
Dr. King based his failure to make such an adjustment on his opinion that the
Flynn effect is only “a theory” that has “not been completely validated.”50 Moreover,
Dr King stated that, when standardized assessment instruments are administered to
the same subject over a long period of time, and the IQ scores generally
agree with each other, it actually increases your expectation that the
score that you’re getting is accurate. So the idea is that if you keep
getting scores in the 70s and 80s, the scores are in the 70s and 80s. You
don’t need to alter them from that point.
Doc. no. 46 (Hearing Transcript), at 137-38.
The disagreement between Drs. Shaffer and King reflects the Eleventh
Circuit’s observation that there is “no consensus about the Flynn effect among experts
or among the courts.” Raulerson v. Warden, 928 F.3d 987, 1008 (11th Cir. 2019); see
also Thomas v. Allen, 607 F.3d 749, 757-58 (11th Cir. 2010) (same); Ledford, 818
49

James R. Flynn, The Mean IQ of Americans: Massive Gains 1932 to 1978, 95 Psychol.
Bull. 29 (1984); see also James R. Flynn, Massive IQ Gains in 14 Nations: What IQ Tests Really
Measure, 101 Psychol. Bull. 171 (1987). Flynn’s studies revealed a 13.8-point increase in IQ scores
in the standardization samples of successive versions of Stanford-Binet and Wechsler intelligence
tests between 1932 and 1978, amounting to a 0.3-point increase per year, or approximately 3 points
per decade. More recently, the Flynn effect was supported by calculations of IQ score gains between
1972 and 2006 for different normative versions of the Stanford-Binet (SB), Wechsler Adult
Intelligence Scale (WAIS), and Wechsler Intelligence Scale for Children (WISC). The average
increase in IQ scores per year was 0.31, which was consistent with Flynn’s earlier findings. James
R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psycho. Pub. Pol’y
& L. 170, 177-78 (2006).
50

See doc. no. 46 (Hearing Transcript), at 130-31.
19

F.3d at 635-37 (explaining the divergent approaches to the Flynn effect taken by other
circuits).
Any attempt at reconciliation of that disagreement must begin with recognition
of the fact that intelligence assessment instruments are rarely revised, sometimes no
more frequently than every fifteen or twenty years. For example, the Wechsler Adult
Intelligence Scale was developed in 1955,51 but only updated in 1981,52 1997,53 and,
most recently, 2008.54 Each version had to be “standardized,” meaning that during
the design phase, each test instrument was administered to a large, representative
sample of the population for whom the test was intended to provide reliable,
normative data. To promote accuracy and avoid bias, the standardization sample of
individuals had to be representative of all potential test subjects, which meant that test
developers first had to identify and track key census data variables, such as age,
gender, race, socio-economic status, educational attainments, and geographic
51

The WAIS was released by David Wechsler in February 1955, as a revision of the
“Wechsler–Bellevue Intelligence Scale (WBIS)”: a battery of tests published by Wechsler in 1939.
See Wechsler Adult Intelligence Scale, Wikipedia, https://enwikipedia.org/wiki/Wechsler_Adult_
Intelligence_Scale (last visited Apr. 20, 2020).
52

The “Wechsler Adult Intelligence Scale–Revised (WAIS-R),” a revised form of the WAIS,
was released in 1981. It consisted of six verbal and five performance subtests, from which Verbal
IQ, Performance IQ, and Full-Scale IQ scores were obtained. Id.
53

The “Wechsler Adult Intelligence Scale–III (WAIS-III),” a subsequent revision of the
WAIS and the WAIS-R, was released in 1997. It provided scores for Verbal IQ, Performance IQ,
and Full-Scale IQ, along with four secondary indices (Verbal Comprehension, Working Memory,
Perceptual Organization, and Processing Speed). Id.
54

The current version of the test, the “Wechsler Adult Intelligence Scale–IV (WAIS-IV),”
was released in 2008. Id.
20

residence. Test developers then selected a “standardization,” or “normative,” sample
of individual test subjects matching the census proportions. For example, the current,
fourth edition of the Wechsler Adult Intelligence Scale was standardized on a
normative sample of 2,200 U.S. citizens ranging in age from 16 to 90, and stratified
by gender, education level, ethnicity, and geographic region of residence.55 In like
manner, the current “Wechsler Intelligence Scale for Children–Fifth Edition
(WISC-V),” was released in 2014, and had been standardized on a normative sample
of 2,200 children between the ages of 6 and 16 years & 11 months.56 Following
administration of the test to each member of the standardization sample, a graph was
created from the scores achieved by the test subjects. The graph is in the form of a
normal distribution, and the mean or median raw score of the normative sample:57
55

Id.

56

See Wechsler Intelligence Scale for Children, Wikipedia, https://en.wikipedia.org/wiki/
Wechsler_Intelligence_Scale_for_ Children (last visited Apr. 20, 2020).
57

The terms “average,” “mean,” and “median” can be confusing. The average and
arithmetic mean are calculated by adding together all numerical values in a data set, and dividing
that sum by the number of terms in the set. For example, if there were nine numerical values in a
data set (e.g., 30, 56, 65, 70, 84, 90, 95, 110, 130), the sum of all added together would be 730, and
730 divided by 9 yields 81.11, which is the “average,” or “arithmetic mean.” In contrast, the median
is the middle numerical value in an ordered set of data. If the set has an odd number of data points,
then regardless of whether the numerical values are ranked from lowest to highest (e.g., 30, 56, 65,
70, 84, 90, 95, 110, 130), or from highest to lowest (e.g., 130, 110, 95, 90, 84, 70, 65, 56, 30), the
“median” is the numerical value in the middle: here, 84. On the other hand, if the ordered set
contains an even number of data points, then the “median” is the “arithmetic mean” (or average) of
the two data points in the middle: e.g., in an ordered data set of ten numbers ranked from lowest to
highest (30, 56, 65, 70, 75, 84, 90, 95, 110, 130), the sum of the middle numbers 75 + 84 is 159,
which when divided by 2 yields the “median” of 79.5. The same would be true if the ordered set
were ranked from highest to lowest: e.g., 130, 110, 95, 90, 84, 75, 70, 65, 56, 30.
21

always is arbitrarily defined as the number “100”; always is located at the apex of the
symmetric, “bell-shaped” curve; and always means that a score of 100 represents
average performance on the IQ test. The standard deviation is defined as fifteen
points above and below the median. Figure 1 displays a normal distribution of IQ
scores, illustrating how scores are distributed based on standard deviations:58

On any of the Wechsler IQ assessment instruments, with a mean or median of
100, and a fifteen-point standard deviation, one standard deviation from the mean,
encompassing about two-thirds of all test takers, results in a range of scores between
85 and 115 (fifteen points below and above the mean score of 100). Two standard
58

The following Figure was copied from an excellent student note authored by Geraldine W.
Young, and published in the March 2012 edition of the Vanderbilt University Law Review: i.e.,
Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital
Determinations of Mental Retardation or Intellectual Disability, 65 Vand. L. Rev. 615, 622 (2012).
22

deviations from the mean, encompassing about ninety-five percent of all test takers,
results in a range of scores between 70 and 130 (thirty points below and above the
mean score). A score of 130 on Wechsler tests often operates as the lower threshold
for a classification of “giftedness,” while a score of 70 to 75 often marks the upper
threshold for “intellectual disability” (or, as it formerly was called, “mental
retardation”).59
The foregoing description of the process for standardizing an IQ assessment
instrument underscores that it is a lengthy and expensive process. For such reasons,
test publishers do not frequently re-standardize tests. Moreover, given the effort and
expense required to replace aging assessment instruments, administrators often
continue to use tests standardized many years before — a fact that results in the
administration of IQ tests a decade or more after the publishers originally normed the
standardization sample.60

59

See, e.g., Atkins, 536 U.S. at 309 n.5 (“It is estimated that between 1 and 3 percent of the
population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score
for the intellectual function prong of the mental retardation definition.”) (citing 2 Kaplan & Sadock’s
Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds., 7th ed.2000)).
60

The foregoing discussion of the manner of creating IQ assessment instruments is based
upon Young, A More Intelligent and Just Atkins, 65 Vand. L. Rev. at 621-23. See also Alan S.
Kaufman, IQ Testing 101 107, 125, 130 (2009); William E. Benet, Genius: An Overview,
Assessment Psychol. Online (Jan. 2005), http://www.assessmentpsychology.com/genuis2.htm; IQ
Classifications, Assessment Psychol. Online, https://www.assessmentpsychology.com/
iqclassifications.htm (last visited May 1, 2020).
23

Dr. Flynn’s original, 1984 study documented IQ gains among American
citizens over a period of more than forty years, from 1932 through 1978.61 He used
data collected from seventy-three previous studies, with a combined total of almost
7,500 subjects to whom various Stanford-Binet and Wechsler IQ assessment
instruments had been administered. He discovered that, on average, the subjects
scored higher on earlier-normed IQ tests than on later-normed IQ tests.62
Flynn then calculated IQ gains by (1) measuring the difference between
the subjects’ mean scores on the two tests — the earlier and later tests,
normed at different times but taken around the same time — and (2)
dividing that difference by the number of years that had passed between
the norming of the earlier test and the norming of the later test, resulting
in a figure around 0.3 points per year.
From his findings, Flynn concluded that the IQ gains reflected the
obsolete, outdated norms of the earlier IQ tests, as compared to later,
more recently normed tests. Flynn defined obsolete norms as “simply
ones that are earlier and easier than later norms.” Given the relative
nature of IQ scores and the observed IQ gains over time, when a person
takes an IQ test in 2010 and that test’s norms are based on a
standardization sample from 1980, the person receives an inflated score
because the score is based on the weaker performance of the 1980
sample, rather than the performance of the person’s peers in 2010. In
other words, a person’s IQ score on an earlier test with obsolete norms
may be above average, while the same performance may be average or
below average on a later test with updated norms. Psychologist and
IQ-test developer Alan S. Kaufman explains this phenomenon with an
analogy: while a runner’s time may have won a track meet twenty years
ago, the same time may not even qualify for a meet today.
61

James R. Flynn, The Mean IQ of Americans: Massive Gains 1932 to 1978, 95 Psychol.
Bull. 29 (1984).
62

Id. at 32.
24

Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn
Effect in Capital Determinations of Mental Retardation or Intellectual Disability, 65
Vand. L. Rev. 615, 624-25 (2012) (footnotes omitted, emphasis supplied).
For such reasons, this court adjusted the IQ scores of a habeas petitioner in
accordance with the Flynn effect in a previous Atkins appeal. Thomas v. Allen, 614
F. Supp. 2d 1257, 1275-81 (N.D. Ala. 2009), affirmed 607 F.3d 749, 753 (11th Cir.
2010) (holding that an evaluator “may also consider the ‘Flynn effect,’ a method that
recognizes the fact that IQ test scores have been increasing over time”). Nothing that
has been presented in this case by either Dr. King or the State’s attorneys persuades
this court that it should not do so again.63
63

The User’s Guide to the tenth edition of the American Association on Intellectual and
Development Disabilities’ treatise on Mental Retardation Definition, Classification and Systems of
Supports recommends that clinicians take the Flynn effect into account when performing evaluations
in less than optimal circumstances (e.g., the legal and physical constraints of a maximum-security
prison environment). Specifically, the Guide directs diagnosticians to:
Recognize the “Flynn Effect.” In his study of IQ tests across populations,
Flynn (1984, 1987, 1989) discovered that IQ scores have been increasing from one
generation to the next in all 14 nations for which IQ data existed. This increase in
IQ scores over time has been dubbed the Flynn Effect. Flynn reported a greater
increase in the Wechsler Performance IQ, which is more heavily loaded on fluid
abilities than on the Wechsler Verbal IQs. On average, the Full-Scale IQ increases
by approximately 0.33 points for every year elapsed since the test was normed
(Flynn, 1999). The main recommendation resulting from this work is that all
intellectual assessments must use a reliable and appropriate individually administered
intelligence test. In cases of tests with multiple versions, the most recent version
with the most current norms should be used at all times. In cases where a test with
aging norms is used, a correction for the age of the norms is warranted. For example,
if the Wechsler Adult Intelligence Scale (WAIS-III, 1997) was used to assess an
individual’s IQ in July 2005, the population mean on the WAIS-III was set at 100
when it was originally normed in 1995 (published in 1997). However, based on
25

Having said that, however, does not mean that this court unequivocally
endorses Dr. Shaffer’s conclusions. His adjustment calculations require revision
because he miscalculated the number of years that elapsed between the date on which
the WAIS-IV assessment instrument was published and the date on which he
administered it to Ferguson. He computed that difference as 10.2 years, which he
then multiplied by the factor 0.3, the rate at which Flynn predicted outdated IQ norms
increase each year. However, the WAIS-IV was released in August 2008,64 and the
difference between that date and the September 18, 2017 date on which Dr. Shaffer
administered the test to Ferguson was nine years and one-and-a-half months, or 9.08
Flynn’s data, the population mean on the Full-Scale IQ raises roughly 0.33 points per
year; thus, the population mean on the WAIS–III Full–Scale IQ corrected for the
Flynn Effect would be 103 in 2005 (9 years x 0.33 = 2.9). Hence, using the “at least
two standard deviations below the mean” (Luckasson et al., 2002), the approximate
Full-Scale IQ cutoff would be approximately 73 (plus or minus the standard error of
measurement). Thus the clinician needs to use the most current version of an
individually administered test of intelligence and take into consideration the Flynn
Effect as well as the standard error of measurement when estimating an individual’s
true IQ score.
American Association on Intellectual and Development Disabilities, User’s Guide: Mental
Retardation Definition, Classification and Systems of Supports 20-21 (10th ed. 2006) (hereafter,
AAIDD, User’s Guide). See also, e.g., American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 37 (5th ed. 2013) (hereafter “DSM-5”) (“Factors that may affect
[intelligence] test scores include practice effects and the ‘Flynn effect’ (i.e., overly high scores due
to out-of-date test norms)”) (emphasis and alteration supplied); Marc J. Tassé et al., The Relation
Between Intellectual Functioning and Adaptive Behavior in the Diagnosis of Intellectual Disability,
54 Intell. & Developmental Disabilities 381, 382 (2016) (“All other sources of measurement error,
such as the Flynn effect and practice effects, should also be considered when interpreting test
results.”) (emphasis supplied).
64

David Wechsler, Wechsler Adult Intelligence Scale: Technical and Interpretative Manual
22 (4th ed. 2008).
26

years. Multiplying 9.08 by the Flynn factor of 0.3 produces a product of 2.7 which,
when subtracted from Ferguson’s Full-Scale IQ score of 77, yields an adjusted IQ
score of 74.3 — not, as Dr. Shaffer testified, 73.4.65
b.

Adjustment for the standard error of measurement

Ferguson also accuses Dr. King of ignoring proper diagnostic practices by
reporting his IQ scores as a single fixed number, as opposed to a range of numbers
accounting for the statistical error of measurement.66 That criticism is not entirely
fair, however, in view of King’s testimony that, after adjusting Ferguson’s Full-Scale
IQ score of 85 on the WAIS-IV for the standard error of measurement, an evaluator
could be 99% confident that his “true IQ” would lie somewhere between 81 and 89:67
a range that straddled both the “borderline” and “average” ranges of intellectual
functioning. The more pertinent criticism is addressed in the following section.
c.

Adjustment for the “practice effect”

65

The only calculations that come close to Dr. Shaffer’s testimony must begin with March
2007: the date during which data began to be collected from individuals who ultimately comprised
the normative sample for the WAIS-IV that was published in August 2008. The difference between
March 2007 and Shaffer’s September 18, 2017 administration was ten years and seven months, or
10.583 years, which — when multiplied by the Flynn factor of 0.3 — produces a product of 3.1749.
Subtracting that product from Ferguson’s Full-Scale IQ score of 77 yields an adjusted score of
73.8251, but not the product of 73.4 to which Dr. Shaffer testified.
66

See doc. no 47 (Petitioner’s Brief), at 15 (“At the hearing, Dr. King agreed that ‘reporting
an IQ score with an associated confidence interval is a critical consideration [sic: King actually said
‘I think it’s important’] underlying the appropriate use of intelligence tests and best practices.’”
(citing doc. no. 46 (Hearing Transcript), at 180, lines 7-10).
67

Doc. no. 46 (Hearing Transcript), at 119-20.
27

Dr. Shaffer administered the WAIS-IV assessment instrument to Ferguson on
September 18, 2017. Dr. King re-administered the same test just five months later,
on February 13, 2018, but made no adjustment for the “practice effect,” even though
he acknowledged that an IQ test score can be inflated “when a test is given twice
within a fairly short period of time,” ordinarily no more than six months apart,
because the individual “can remember some of the items and perhaps have an
increased performance on the subsequent administration of that test.”68 Dr. King
explained his failure to make any adjustment to Ferguson’s IQ score on the WAIS-IV
by pointing to the fact that his Wechsler and Stanford Binet test scores were so close
to one another.69 He characterized them as in “absolute agreement.”70
Even so, a 2012 study of the effect on IQ scores achieved by fifty-four persons
to whom the WAIS-IV was re-administered at three or six months intervals after the
initial, baseline administration of that test found that their Full-Scale IQ scores
increased an average of 7 points. Such an increase occurred regardless of whether the
re-administration occurred at three or six month intervals after the baseline test.71 In
68

Id. at 138. See also doc. no. 47 (Petitioner’s Brief), at 15 (“Intelligence tests are made up
of certain tasks, and a tester’s score is determined based on how well they perform the tasks”; and,
“with practice, any task becomes easier, resulting in an upward skew known as the ‘practice
effect.’”) (emphasis supplied).
69

Doc. no. 46 (Hearing Transcript), at 139.

70

Id. at 122.

71

Eduardo Estevis, Michael R. Basso, & Dennis Combs, Effects of Practice on the Wechsler
Adult Intelligence Scale Across 3- and 6-Month Intervals, 26 Clinical Neuropsychologist 239 (Feb.
28

fairness, therefore, the Full-Scale IQ score achieved by Ferguson on Dr. King’s readministration of the WAIS-IV will be reduced by 7 points.
d.

The majority of Ferguson’s IQ scores are above 70

Ferguson concedes that “a few” of his “IQ test result ranges are above 70, even
when accounting for the Flynn effect and the SEM,” but he contends that “the
majority of [his] tests have ranges that place his IQ scores below 70, which is strong
evidence of significantly subaverage intelligence.”72 He argues that, because “most”
of his IQ scores “fall ‘within the clinically established range for intellectualfunctioning deficits,’ the Court must ‘continue the inquiry and consider other
evidence of intellectual disability.’”73 He contends that he has satisfied the first prong
of the Atkins test for intellectual disability, because the “neurocognitive tests and the
totality of [his] IQ test results show that his intelligence is significantly subaverage.”74
The following chart sets out the dates on which IQ assessment instruments
were administered to Ferguson, the standardized tests administered on each occasion,

2012). The participants’ Verbal Comprehension, Working Memory, Perceptual Reasoning,
Processing Speed, and General Ability IQ sub-test indices also increased 5, 4, 5, 9, and 6 points,
respectively.
72

Doc. no. 47 (Petitioner’s Brief), at 18.

73

Id. at 19 (citing Moore v. Texas, 137 S. Ct. 1039, 1050 (2017)). Nota bene: Moore v.
Texas is not retroactive to cases on collateral review. See In re Bowles, 935 F.3d 1210, 1220 (11th
Cir. 2019); Smith v. Comm., Ala. Dep’t of Corr., 924 F.3d 1330, 1337-40 (11th Cir. 2019).
74

Doc. no. 47 (Petitioner’s Brief), at 25.
29

the Full-Scale IQ score he achieved on each, followed by his scores after adjustment
for the Flynn effect, and then the standard error of measurement.
Date of
Test

IQ Test
Given

Test
Normed

Full-Scale
Score

Adjusted for
Flynn effect

SEM
Range

1979

SB-3

1973

77

75.2

70.2 - 80.2

1985

WISC-R

1974

71

67.7

62.7 - 72.7

1988

WISC-R

1974

87

82.2

77.2 - 87.2

1997
(Dr. Rosen)

WAIS-R

1981

69

64.2

59.2 - 69.2

2017
(Dr. Shaffer)

WAIS-IV

2006

77

74.375

69.3 - 79.376

2018
(Dr. King)

WAIS-IV
SB-5

2006
2003

7877
7778

75.1579
72.680

70.15 - 80.15
67.6 - 77.6

75

See the discussion in the textual paragraph accompanying notes 64 and 65, supra.

76

Dr. Shaffer testified to a bidirectional SEM range of 69.4 to 78.4 (see doc. no. 46 (Hearing
Transcript), at 28), but adjustment of the Full-Scale IQ score of 77 achieved by Ferguson on the
WAIS-IV for the Flynn effect reduced that number to 74.3 (see the discussion in the textual
paragraph accompanying notes 64 and 65, supra), and required a re-computation of the SEM’s
bidirectional range.
77

Dr. King’s score of 85 reduced by 7 as an adjustment for the “practice effect”: see the
discussion in Part II.A.4.c of this opinion, supra.
78

Dr. King’s score of 84 reduced by 7 for the “practice effect”: see id.

79

The difference between August 2008 (WAIS-IV published) and February 18, 2018 (readministration of that test by Dr. King) was nine-and-a-half years. Multiplying 9.5 by the Flynn
factor of 0.3 produces a product of 2.85 which, when subtracted from 78 (Ferguson’s Full-Scale IQ
score adjusted for the “practice effect”) yields an IQ score adjusted for the Flynn effect of 75.15.
80

The “Stanford Binet Intelligence Scales-Fifth Edition (SB-5),” as revised by Gale H. Roid,
Ph.D., was released by Riverside Publishing Co. on May 20, 2003. See https://www.businesswire.
com/news/home/20030520005137/en/Riverside-Publishing-Announces-Edition-Stanford-Binet-I
ntelligence-Scales (last visited Apr. 25, 2020). The difference between May 20, 2003 and February
18, 2018, when the SB-5 was administered to Ferguson by Dr. King, is 14.75 years (14 years and 9
months); and 14.75 multiplied by the Flynn factor of 0.3 produces 4.425 which, when subtracted
from 77 (Ferguson’s Full-Scale IQ score on the SB-5 adjusted for the “practice effect”) yields an IQ
score adjusted for the Flynn effect of 72.575, or 72.6 rounded.
30

The preceding chart graphically demonstrates that only two of the seven
standardized tests administered between 1979 and 2018 resulted in IQ scores below
70, when adjusted for the Flynn effect: i.e., the 1985 WISC-R and the 1997 WAIS-R.
The record also reflects, however, that the persons who administered both of those
tests remarked that Ferguson did not put forth his best effort. For example, the person
who administered the 1985 WISC-R noted that, even though Ferguson “did not
appear to be challenged by the more difficult items on the test,” he “gave up easily
on both verbal and non-verbal items.”81 The 1997 WAIS-R was administered by Dr.
C. Van Rosen while Ferguson was awaiting trial for capital murder in state court, and
Dr. Rosen stated in his written report of evaluation that he considered it “quite
apparent that [Ferguson] did not attempt to make a good effort in this test, giving up
readily on many items and seemingly not trying as hard as possible. [Ferguson’s]
intellectual functioning is consequently considered to be within the higher portion of
the borderline range of abilities.”82 (As noted earlier, Dr. Rosen also testified at trial

81

Doc. no. 39-5 (Petitioner’s Exhibit 5), at 22. As recorded in note 13, supra, Ferguson
argues that this court cannot use the comments of the examiner on the 1985 WISC-R test to conclude
that his low score was due to malingering, because the examiner also stated that Ferguson was
“cooperative during the entire session,” and that his scores were “considered to be valid.” Doc. no.
47 (Petitioner’s Brief), at 17. This court rejects that argument because Ferguson’s Full-Scale IQ
scores before and after that test were so much higher.
82

Doc. no. 41-9 (Respondent’s Exhibit 5), at 7 (Rosen Report) (alterations supplied). (The
Bates Number stamped in the lower, right-hand corner of this page of Respondent’s Exhibit 7 is
623.)
31

and reiterated that it was clear to him that Ferguson did not put forth full effort during
administration of the WAIS-R, and that, if he had “really tried[,] he would have
scored probably in the middle 70’s . . . perhaps a little higher.”83)
Ferguson argues that it would be illogical and unfair to discredit his IQ test
scores on the basis of such a rationale because, “[o]utside of Dr. Rosen’s speculative
statements, there are no objective facts in the record to show that [he] malingered on
this IQ test.”84 He claims that it is “eminently possible” that he gave up easily
because the tasks and questions were beyond his intellectual ability. He also notes
that Dr. Shaffer administered a “Memory Malingering test” to determine whether he
“was putting forth his best effort on the various tests as part of his examination.”85
Based upon the results of that test, Dr. Shaffer “assumed” that the results of the
WAIS-IV he administered to Ferguson were valid.86
The State contends that a review of Dr. Rosen’s credentials from his penaltyphase testimony in the trial court shows that he was highly qualified on the basis of
education and clinical experience to form an opinion about whether Ferguson was

83

Doc. no. 41-9 (Respondent’s Exhibit 6), at 25 (Rosen Trial Testimony). (The Bates
Number stamped in the lower, right-hand corner of this page of Respondent’s Exhibit 8 is 641.)
84

Doc. no. 47 (Petitioner’s Brief), at 18 (alterations and emphasis supplied).

85

Id. at 17.

86

Doc. no. 46 (Hearing Transcript), at 41.
32

malingering, and that Ferguson has presented no evidence to the contrary.87 The State
adds that the results of the Memory Malingering test administered by Dr. Shaffer
“have nothing to do with whether Ferguson malingered during Dr. Rosen’s evaluation
in 1997 before his capital murder trial.”88
This court is not persuaded by Ferguson’s argument. He has offered nothing
to indicate that Dr. Rosen, an experienced clinical psychologist, was not qualified to
state an opinion that Ferguson did not devote his full and best intellectual effort
during administration of the WAIS-R prior to trial in state court, based upon Dr.
Rosen’s personal observations of Ferguson, and the specific inconsistencies he
observed during the testing processes. This court accepts Dr. Rosen’s subjective
opinion that Ferguson’s IQ scores on that 1997 assessment instrument were not
accurate representations of his intellectual abilities.89
Ferguson next argues that “the majority” of his test scores, as adjusted by the
standard error of measurement, yield “ranges that place his IQ scores below 70, which
is strong evidence of significantly subaverage intelligence.”90 That assertion is not

87

Doc. no. 50 (Respondent’s Brief), at 37 (citing doc. no. 41-9 (Respondent’s Exhibit 8), at
13-16 (Rosen’s Trial Testimony)).
88

Id. at 37-38.

89

For the same reason stated in note 81, supra, this court could also reject Ferguson’s
argument about Dr. Rosen’s observations, because Ferguson’s Full-Scale IQ scores before and after
the 1997 WAIS-R test were consistently higher.
90

Doc. no. 47 (Petitioner’s Brief), at 18.
33

accurate. Half of his Full-Scale IQ test scores — i.e., the 1979 SB-3, 1988 WISC-R,
and 2018 WAIS-IV — even when adjusted for the Flynn effect and the Standard
Error of Measurement, have IQ ranges completely above 70. Three of his tests —
i.e., the 1985 WISC-R, 2017 WAIS-IV, and 2018 SB-5 — even when adjusted for the
Flynn effect and the Standard Error of Measurement, have IQ ranges only partially
below 70. The WISC-R test administered during August of 1985, when Ferguson
was twelve years old and on the threshold of the 1985-86 school year, resulted in a
SEM range of 62.7 to to 72.7. However, the test administrator noted that, even
though Ferguson “did not appear to be challenged by the more difficult items on the
test,” he “gave up easily on both verbal and non-verbal items.”91 Further, the standard
error of measurement for the test administered by Dr. Shaffer in 2017 results in a
range from 69.3 to 79.3, and the lower end of that range barely dipped below 70.92
Only the WAIS-R test administered by Dr. Rosen in 1997, prior to trial in state
court, has an adjusted range totally below 70 — and the court previously discounted
that score based upon Dr. Rosen’s opinion that the low scores were the result of
Ferguson’s malingering, rather than an accurate measure of his intellectual ability.
91

Doc. no. 39-5 (Petitioner’s Exhibit 5), at 22.

92

As discussed in note 76, supra, Dr. Shaffer testified to a bidirectional SEM range of 69.4
to 78.4 (see doc. no. 46 (Hearing Transcript), at 28), but adjustment of the Full-Scale IQ score of 77
achieved by Ferguson on the WAIS-IV for the Flynn effect reduced that number to 74.3 (see the
discussion in the textual paragraph accompanying notes 64 and 65, supra), and required the recomputation of the SEM’s bidirectional range that is stated in text.
34

Thus, the court finds that the majority of Ferguson’s IQ scores — even when adjusted
for both the Flynn effect and the Standard Error of Measurement — are in a range
above 70.
However, Ferguson’s scores on those three tests — when adjusted for the Flynn
effect and the Standard Error of Measurement — indicate that it is possible his IQ
falls within the range of intellectual disability.
Dr. Shaffer’s opinion that Ferguson suffers from significantly subaverage
intellectual functioning is based on the results of Ferguson’s 1985, 1997, and 2017
tests, which exhibit adjusted IQ ranges that include scores below 70. However, Dr.
Shaffer did not consider the possibility that the 1985 and 1997 ranges are artificially
low because Ferguson malingered, and did not fully apply himself in taking those
tests.93 Moreover, Shaffer’s inclusion of the 2017 test, on which Ferguson had an
adjusted IQ range of 69.3 to 79.3,94 requires a presumption that Ferguson’s true IQ
score falls at the very bottom of that range. But, the standard error of measurement
“does not carry with it a presumption that an individual’s IQ falls to the bottom of his
IQ range.” Ledford, 818 F.3d at 641.95 Rather, in the case of the 2017 test, it is more
93

Ferguson’s 1985 and 1997 IQ scores could place him in the range of intellectual disability.
But, the fact that there is evidence that Ferguson was malingering on those tests makes that chance
less likely.
94

See note 76, supra.

95

As the Eleventh Circuit noted, however, the standard error of measurement is a “bidirectional concept.” Raulerson, 928 F.3d at 1008 (citing Ledford, 818 F.3d at 641). “The standard
35

likely that Ferguson’s true IQ score is above 70. Further, the results of all the other
IQ tests Ferguson has taken place his range of scores above 70.
In light of the three scores placing him above the range of intellectual
disability, the three scores placing him within the range of intellectual disability do
not establish that Ferguson suffers from significantly subaverage intellectual
functioning.
B.

Proof of Significant Limitations in Adaptive Behavior
The clinical authorities all agree that an individual may achieve an IQ score

greater than 70, but still “‘have such severe adaptive behavior problems . . . that the
person’s actual functioning is comparable to that of individuals with a lower IQ
score.’” Hall, 572 U.S. at 712 (quoting DSM-5, at 37). Thus, this court must
determine whether Ferguson established, by a preponderance of the evidence, that he
has significant limitations in at least two of the skills deemed by psychologists to be
necessary for independent living: i.e., “communication, self-care, home living, social
skills, community use, self-direction, health and safety, functional academics, leisure,
and work.” Atkins, 536 U.S. at 308 n.3 (citation omitted); see also, e.g., Perkins, 851
So. 2d at 456(same); Jenkins v. Commissioner, Alabama Department of Corrections,
936 F.3d 1252, 1278 (11th Cir. 2019) (same).
error of measurement accounts for a margin of error both below and above the IQ test-taker’s score.”
Id. (quoting Ledford, 818 F.3d at 640).
36

Such skills are generally referred to as “adaptive behaviors” — “functions that
enable individuals to adjust to the environment appropriately and effectively,”96 and
they often are grouped into three categories for analytical purposes:

i.e.,

communication skills; daily living skills; and socialization skills. Communication
skills refers to the “process by which one person transmits an idea to another person
by means of spoken or written words, pictures, sign language, gestures, and
non-verbal communications such as body language.”97 Daily living skills refers to the
typical, routine actions of daily living, such as “getting in and out of bed, dressing,
eating, toileting.”98 Socialization skills refers to the manner in which a person
interacts with other people in the family and larger community. The label also
includes “recreational activities and what we call coping skills, which has to do with
how [the subject] handles stress and . . . manages difficult situations.”99
1.

Ferguson’s psychologist — Dr. Robert D. Shaffer

Dr. Shaffer utilized an assessment instrument known as the “Vineland Adaptive
Behavior Scales” to evaluate Ferguson’s adaptive behaviors.100 That test comes in
96

Dictionary of Psychology 17.

97

Id. at 191.

98

Id. at 14.

99

Doc. no. 46 (Hearing Transcript), at 35-36 (Shaffer Testimony) (alterations supplied). See
also doc. no. 47 (Petitioner’s Brief), at 27 (defining the three domains).
100

Dr. Shaffer said that he selected the Vineland Scales because he considered the assessment
instrument to be “the gold standard, in terms of assessing adaptive behaviors.” Doc. no. 46 (Hearing
Transcript), at 32.
37

three versions: “Two are administered through parents or care-givers, and the third
is to be filled out by a classroom teacher.”101 In other words, all versions are designed
to be administered by “an informant who was very familiar with the behavior of the
person” to be evaluated.102 Dr. Shaffer administered the Vineland to petitioner’s
mother, Mrs. Betty Ferguson, because she “was able to provide observations of [her
son] at the time of his developmental period at age 18.”103
The scaled Vineland scores assigned to Ferguson as a result of his mother’s
responses to questions in each domain were: communication 67; daily living skills
67; and, socialization 68. His composite score was 63, which placed him in the first

101

Dictionary of Psychology 1052. Dr. Shaffer testified that the “Vineland Adaptive
Behavior Scales” is an extension of the “Vineland Social Maturity Scale,” which the foregoing
Dictionary of Psychology defines on the same page as:
A test used in assessing the development of individuals, including possible
mental deficiency, from infancy to 30 years of age. Persons acquainted with
participants rate them on self-help, locomotion, communication, self-direction,
socialization, and occupation. Named after the Vineland Training School for the
mentally retarded by Edgar A. Doll, the author of the scale.
Id. (emphasis supplied); see also doc. no. 46 (Hearing Transcript), at 32-33 (Shaffer Testimony).
102

Id. at 33. Dr. Shaffer testified on the same page that:

It’s not standard procedure with the Vineland to interview the person that’s
being rated. Instead, it is intended to be a process of observing actual behaviors; that
is, someone who’s watched the person, can talk about very specific concrete actions,
and report those actions. Then those behaviors are subject to a very specific scoring
rubric that’s identified in the Vineland manual that then results in a comparison with
the U.S. population.
103

Id.
38

percentile of the population,104 meaning that he was “exceeded by 99 out of a hundred
comparable individuals at age 18 in the development or in the demonstration of these
independent living skills, behaviors that are necessary to perform daily routines.”105
Dr. Shaffer testified that the description of Ferguson’s “prior work behavior,
the behaviors described related to his marriage that were made available . . . through
prior testimony, and the results of the Vineland Adaptive Behavior Scales” test, all
combined to reinforce his conclusion that Ferguson suffered from significant deficits
in adaptive behavior skills.106
2.

The State’s psychologist — Dr. Glen D. King

Dr. King testified that the American Association for Intellectual and
Developmental Disabilities recommends the administration of either the “Vineland
Adaptive Behavior Scales” or the “Adaptive Behavior Assessment System (ABAS)”
test instrument for formal assessment of an individual’s adaptive behavior skills.107
104

Id. at 34-36.

105

Id. at 37.

106

Id. (alteration supplied). Dr. Shaffer added that he had also reviewed Ferguson’s special
education records from the Morgan County and Hartselle City School Systems. Id. at 38.
107

Doc. no. 46 (Hearing Transcript), at 146. Capital murder cases present special problems
in assessing a defendant’s adaptive functioning abilities, as noted by Dr. King:
One problem is that when we use standardized instruments, like the Vineland
or the Adaptive Behavior Assessment System, we’re basically asking somebody to
try to fill out those devices based on their interaction with the person now. We have
to try to do some kind of retro grade evaluation to the time of the offense or before
then. We sometimes – [as] in this case, [the retrograde evaluation] can be 25, 26,
years later.
39

Dr. King preferred to use the “Adaptive Behavior Assessment System – Third
Edition (ABAS-3)”108 and “Independent Living Scales (ILS)”109 assessment
instruments, because both allowed “self-report norms,” meaning that the test subject
is allowed to “answer the questions based on his own knowledge of what he was
capable of doing.”110 Ferguson’s scores on the ABAS-3 ranged from 7 to 13 in all of
his adaptive skill areas. “His general adaptive composite, again based on an average
of a hundred[,] was 98. His conceptual, social, and practical domains were 96, 111

The Vineland [Adaptive Behavior Scale] has a problem[,] in that it does not
allow for self-report norms, meaning there’s no way for an individual to rate himself.
You have to use an individual who has regular contact with that person on almost a
daily basis for the previous six months. That’s the way the Vineland was normed.
There is no . . . provision for asking somebody to fill out the Vineland for 27
years ago. That violates standardization procedures.
Doc. no. 46 (Hearing Transcript), at 145-46 (alterations and emphasis supplied). Dr. Shaffer voiced
the opposite criticism, saying: “It’s very easy for a person to have bias about their own specific
abilities. And they can upgrade them or downgrade them depending on their particular bias. Most
people tend to view their own capabilities as stronger than they actually are.” Id. at 34.
108

The third edition of the Adaptive Behavior Assessment System was released in 2015 and,
according to its publisher, the test includes five rating forms, each for a specific age range and
evaluator: i.e., Parent/Primary Caregiver Form (ages 0–5); Teacher/Daycare Provider Form (ages
2–5); Parent Form (ages 5–21); Teacher Form (ages 5–21); and Adult Form (ages 16–89). See
(ABASTM-3) Adaptive Behavior Assessment SystemTM, Third Edition – Product Page, WPS, https://
www.wpspublish.com/abas-3-adapative-behavior-assessment-system-third-edition (last visited Apr.
10, 2020).
109

For a description of the Independent Living Scales, see the website for “The Center for
Outcome Measurement in Brain Injury,” Introduction to the Independent Living Scale, https://www.
tbims.org/ils/index.html (last visited May 4, 2020).
110

Doc. no. 46 (Hearing Transcript), at 146.
40

and 96 respectively.”111
Dr. King used the Independent Living Scales assessment instrument as an
additional means of testing Ferguson’s adaptive functioning abilities, because “it has
a number of questions and tasks . . . that have to do with everyday behavior,” and “it
is normed and has standardization scores associated with an age range.”112 He
explained that the ILS assessment instrument
has items on it, for example, [like] showing him a bill and giving him a
simulated check and asking him to fill out the check to pay the bill to see
if he can do that. And . . . all of these [individual] items are scored on
a [scale running from Zero to Two, with a] zero, meaning no points, one
point meaning they get partial credit, or two points meaning they get to
full criteria.
And so we get a score on these various domains for this test, as
well. The subscales include things — include memory and orientation,
managing money, managing home and transportation, health and safety,
and social adjustment. And there are two factors on this test, as well,
that have to do with problem solving and performance. Again, we
combine all of these subscores and we kind of come up with a full scale
standard score that indicates the ability to actually function
independently.
Id. at 148 (alterations supplied). Ferguson performed well on the ILS. His full scale
score, based on an average of 100, with a standard deviation of 15, was 98.113
Ferguson’s scores in all of the subparts of the ILS indicated good functioning, with
111

Dr. King stated that a “significantly low” score “would be a score of three or below.” Id.

112

Id. at 147-48.

113

Id. at 148.

at 147.

41

the exception of social adjustment, which was not surprising in view of the number
of years he had spent on death row on the date of testing.114
Dr. King’s overall impression, based upon the results obtained from
administration of the ABAS and ILS, on both of which Ferguson scored in the
average, or non-impaired range, is that he does not meet the criteria for the adaptive
functioning prong of the Atkins intellectual disability definition.115
3.

The parties’ arguments

Ferguson contends that Dr. Shaffer employed appropriate assessment
instruments for assessing his adaptive behavior, and that Dr. Shaffer established that
he suffers from significant or substantial deficits in his adaptive functioning
abilities.116 He argues that, when an objective person takes into account the fact that
he has been incarcerated for many years, with little regular contact with any persons
other than prison guards, Dr. Shaffer’s administration of the Vineland Adaptive
Behavior Scales to Mrs. Betty Ferguson was the best means for determining his
adaptive functioning abilities during his developmental period.117
Dr. King acknowledged the difficulty of obtaining out-of-prison observational

114

Id. at 148-49, 153.

115

Id. at 153.

116

See doc. no. 47 (Petitioner’s Brief), at 25-26.

117

See id. at 29.
42

data for a death row inmate,118 but he still insisted there were “significant problems”
with Dr. Shaffer’s administration of the Vineland Scales to Ferguson’s mother: e.g.,
(1) the Vineland is normed for people who have regular contact with the
individual for the previous six months which did not occur in
Ferguson’s case; (2) Ferguson’s mother was assessing his behavior for
27 years ago; and (3) Ferguson’s mother was not around Ferguson for
the [entire] time she was evaluating him (when he was 18) because he
was not living with her during this time and, in fact, was estranged from
her.
Doc. no. 50 (Respondent’s Brief), at 49 (citing the testimony of Dr. King found at
doc. no. 46 (Hearing Transcript), at 154). The State argues that, due to such
problems, the results obtained from Dr. Shaffer’s administration of the Vineland
Adaptive Behavior Scales to Ferguson’s mother is “suspect and should not be
considered by this Court.” Id.
In response, Ferguson’s brief contends that Dr. Shaffer’s personal observations
of Ferguson’s adaptive functioning abilities during the many hours that Dr. Shaffer
spent with him supports the results obtained from administration of the Vineland test
to his mother:
Over the course of his examination, Dr. Shaffer met with Mr. Ferguson
on three separate occasions and interacted with him for nearly fourteen
hours. [See doc. no. 46 (Hearing Transcript), at] 11. Mr. Ferguson is a
death row inmate who has been in segregated confinement since 1998
and Dr. Shaffer is likely among a handful of individuals with the most,
118

See doc. no. 46 (Hearing Transcript), at 184 (“The problem . . . is that the only people who
might know him well are guards, and I’m not going to ask them about him.”).
43

and may be the person with the most, significant social interaction with
Mr. Ferguson in the past two decades.[119] See [doc. no. 41-4 (Part 2 of
Respondent’s Exhibit 4), at 33 (noting, in a report dated February 16,
2019], that Mr. Ferguson had been in segregation since September 8,
1998). In his extensive observations of Mr. Ferguson, Dr. Shaffer
observed behavior that was entirely consistent with the Vineland
results.[120] [See doc. no. 46 (Hearing Transcript), at] 37.
Doc. no. 47 (Petitioner’s Brief), at 28-29 (italicized emphasis in original, citation
alterations and footnotes supplied).
Ferguson also claims that the results obtained by Dr. Shaffer’s administration
of the Vineland to his mother were “amply supported” by evidence from his 1985
public school records which show that he was eligible for special services as an
“educationally mentally handicapped” student and, therefore, could not function
independently.121 That was “a restrictive and structured educational setting,” with
students staying in the same room all day with only six or seven others.122 Even
within that close setting, one of Ferguson’s teachers noted that he lacked “the

119

Petitioner’s brief includes a footnote at the end of this sentence stating: “To contrast, Dr.
King spent approximately five hours with Mr. Ferguson for his evaluation. [See doc. no. 41-1
(Respondent’s Exhibit 1),] at 3.”
120

Contrary to Ferguson’s representation in the last sentence of this quotation from his Brief,
Dr. Shaffer did not describe “observed behavior that was entirely consistent with the Vineland
results.” Instead, he testified that, when he met with Ferguson, he did not observe anything that
appeared to him to be “inconsistent with the results of the Vineland-2 test” administered to Mrs.
Betty Ferguson. Doc. no. 46 (Hearing Transcript), at 37, lines 9-11 (emphasis supplied).
121

See doc. no. 47 (Petitioner’s Brief), at 28.

122

Id. (citing doc. no. 46 (Hearing Transcript), at 127).
44

motivation to . . . work on his own” and required “individual attention.”123
The State contends that Ferguson fails to acknowledge that, when he achieved
a Full-Scale IQ score of 87 on the WISC-R in March of 1988, he was removed from
classes for “educationally mentally handicapped” students and reassigned to the less
restrictive environment of classes for “learning disabled” students.124 The examiner
who administered the assessment instrument commented that Ferguson’s score placed
him in the “low average range of intellectual functioning.”125 Ferguson admits the
reclassification, but argues the fact that he
struggled with school after being moved to a less structured setting is
further evidence of his deficits in adaptive functioning. According to
Dr. Chudy, once Mr. Ferguson was reclassified as learning disabled, Mr.
Ferguson “found it increasingly difficult to do the work.” [Doc. no. 419 (Respondent’s Exhibit 7), at 45 (Chudy Written Report)]. Mr.
Ferguson failed most of his classes, “particularly those in which he was
placed in a regular classroom setting.” Id. In the classes with a lot of
special education support, Mr. Ferguson earned “average to above
average scores.” Id. In other words, Mr. Ferguson could not
independently function in a general-setting classroom like typical
students. After he was removed from the EMR classroom, Mr. Ferguson
“found the work to be progressively more difficult” and dropped out of
123

Doc. no. 39-5 (Petitioner’s Exhibit 5), at 48 (April 16, 1987 letter handwritten by Ms.
Mary Beth Henry, who apparently was Ferguson’s Home Economics teacher. The relevant portion
read as follows: “Dale’s frequent absences have put him behind on several occasions and Dale lacks
the motivation to make up his work on his own. Dale works best when I give him individual
attention.”).
124

Doc. no. 50 (Respondent’s Brief), at 47-48. The test was required by public policy: “Dale
is currently enrolled in the special education program and is due the required three year
re-evaluation for continued placement in that program.” Doc. no. 39-5 (Petitioner’s Exhibit 5), at
51 (emphasis supplied).
125

Doc. no. 39-5 (Petitioner’s Exhibit 5), at 52.
45

school. Id.
Doc. no. 47 (Petitioner’s Brief), at 28.126 The State contends that the foregoing
argument is a misrepresentation of the record, and argues that Ferguson “was
successful in school” after reassignment to the less restrictive environment of classes
for learning disabled students.127
Unless this court has misread the documentary evidence, however, neither
Ferguson nor the State is entirely correct.
To begin, Ferguson was re-tested with the “Wechsler Intelligence Scale for
Children–Revised (WISC-R)” on March 1, 1988, which would have been during the
second semester of his 8th Grade, 1987-88 school year. During that semester, while
still enrolled in the restrictive, small-group classroom environment for educationally
mentally handicapped students, Ferguson’s academic performance was acceptable,
but not outstanding: that is, in January 1988 (i.e., the first month of the second

126

Dr. James F. Chudy included the following observations in his 1998 state-court report:

Mr. Ferguson continued in school until he was nearly 17 years-old and was
approaching the 10th grade. At that time they had placed him in learning disabilities
class and he was finding it increasingly difficult to do the work. As his school work
reveals he was failing most of his classes, particularly those in which he was placed
in a regular classroom setting. In those classes where he got a-lot [sic] of special
educational help he was earning average to above average scores. In any case he
found the work to be progressively more difficult, so he quit school.
Doc. no. 41-9 (Respondent’s Exhibit 7), at 45 (Chudy Written Report).
127

Doc. no. 50 (Respondent’s Brief), at 48.
46

semester of the 1987-88 school year, and prior to the March 1, 1988 WISC-R re-test),
Ferguson achieved passing grades of “C” or better in Reading, Math, Language
Arts/English, Social Studies, Science, Spelling, and Handwriting. Physical Education
was the only class in which Ferguson did not achieve a grade of “C” or better.128
However, following his transfer to the less structured classes for “learning
disabled” students at the beginning of the following, 1988-89 school year, Ferguson
faltered. His grades for the first semester of that 9th Grade school year were three D’s
(Special Reading, Physical Education, and Agricultural Business I) and three F’s
(Special Math, Special Social Studies, and Special Science).129 His grades for the
second semester of the 9th Grade, 1988-89 school year improved, but only somewhat.
He earned one “B+” (Reading 9-12), one “D” (Science 9/L), two “D-minuses” (Math
9/L and Physical Education), and two “F’s” (Social Studies and Agricultural Business
I).130
Then, inexplicably, Ferguson’s academic performance in both semesters of the
following 1989-90, 10th Grade school year improved significantly. During the first
semester, he earned two “A’s” (Math GED and History T/L), two “B’s” (English T/L

128

Id. (citing doc. no. 39-5 (Petitioner’s Exhibit 5), at 84).

129

See doc. no. 39-5 (Petitioner’s Exhibit 5), at 86 (“Grade 9, 89 Year, 1 Sem.”); see also id.
at 87 (a second, but less legible, copy of the same page from Ferguson’s school records).
130

Id. (“SM: 2 YR: 88-89”).
47

and Science T/L), one “C- minus” (Physical Ed/B), and one “F” (Health Occ I).131
During the second semester, he earned three “A’s” (English T/L, History T/L, and
Science T/L), one “C- minus” (Physical Ed), one “D” (Math GED), and one “F”
(Health Occ I).132 It only was during the first semester of the 1990-91, 11th Grade
school year that Ferguson stumbled badly, yet again, and received three “F’s” in
English TL, Math TL, and Apartment Living, and three “Incompletes” in Math TE
& TL, History TL, and Health/Science.133 He thereafter withdrew from school and
his “Incompletes” were changed to “F’s.”
The bottom line is: the official Hartselle City Schools’ record of Ferguson’s
academic performance following his removal from classes for “educationally
mentally handicapped” students and reassignment to the less restrictive environment
of classes for “learning disabled” students is a mixed bag into which both parties can
reach to find support for their respective arguments. Even so, there is more support
for the State’s position than for Ferguson’s.
The State also argues that the school records relied upon by Ferguson are not
consistent with the results obtained from Dr. King’s administration of the “Wide
Range Achievement Test – Fourth Edition (WRAT-4).” When Ferguson was tested

131

Id. (“SM: 1 YR: 89-90”).

132

Id. (“SM: 2 YR: 89-90”).

133

Id. (“SM: 1 YR: 90-91”).
48

by Dr. King in 2018, he was reading at a 9.5 grade level, spelling at a 7.5 grade level,
and performing math calculations at a 6.1 grade level.134 Dr. King believes that the
ability to read and spell at those levels is not consistent with a contention that
Ferguson is intellectually disabled.135 This court agrees.
Shifting focus, Ferguson argues that neither of the assessment instruments
administered by Dr. King — i.e., the “Adaptive Behavior Assessment System” and
“Independent Living Scales” — returned accurate or reliable data because,
“[c]ontrary to best practices outlined in the authoritative texts,” both of those tests
relied on Ferguson’s “self-reporting about whether he believed he was able to do reallife tasks,” and Dr. King did not consider how the “results may be inconsistent with
the record.”136 Ferguson criticizes the Adaptive Behavior Assessment System, “in
which Dr. King asked Mr. Ferguson to rate his own abilities on whether he could
perform a number of tasks,” because most of the questions pertained to tasks
Ferguson would never have an opportunity to perform in his prison environment,
such as: making appointments by telephone, mobile device, or internet; using paper
or digital maps to find his way to desired locations; calling a repairman when needed;
showing responsibility for personal finances; or walking or riding a bike alone to

134

Doc. no. 46 (Hearing Transcript), at 142-43.

135

Id. at 144-45.

136

Doc. no. 47 (Petitioner’s Brief), at 29-30.
49

locations within a mile of home or work.137 The State responds by arguing that all of
those questions addressed activities that Ferguson could have performed prior to his
incarceration.138 (The State’s response requires more credulity of this judicial officer
than he is inclined to grant, however, especially when one considers that mobile
telephone devices, computers, “the internet,” and “digital maps” (which are
dependent upon Global Positioning Satellites) were technological innovations that
either had not been perfected, or were not in widespread use, on the date Ferguson
was arrested and incarcerated for the underlying capital offenses.)
Ferguson also faults Dr. King for allowing him to read the instructions for the
Adaptive Behavior Assessment System test, without making any “further attempt to
check [his] understanding of the test instructions beyond generally asking if [he] had
any questions.”139 He argues that the results of that test indicate its self-reporting
bias.
On the ABAS-3, Mr. Ferguson gave himself the highest score on
almost every single question, indicating that he “always (or almost
always) when needed” could complete the tasks. See generally Pet’r Ex.
10 [sic]. Among the things that Mr. Ferguson indicated he could always
do when needed were: use electrical sockets safely; check bank or other
financial statements to make sure they are correct; pay bills on time;
plan ahead for fun activities on free days or afternoons; and invite others
to join him in playing games and other fun activities. See generally id.
137

Id. at 30.

138

See doc. no. 50 (Respondent’s Brief), at 46.

139

Doc. no. 47 (Petitioner’s Brief), at 30 (alterations supplied).
50

The absurdity of these answers, considering Mr. Ferguson’s highly
restrictive incarceration, shows that Dr. King’s administration of the
ABAS-3 was plagued with self-reporting bias. See [doc. no. 46
(Hearing Transcript), at] 34 (“It’s very easy for a person to have bias
about their own specific abilities.”); id. at 42 (Dr. Shaffer’s testimony
that the ABAS-3, when “applied directly to the person themselves” is
“very subject to their personal bias”); [United States v.] Lewis, [No. 1:08
CR 404,] 2010 WL 5418901, at *23 [(N.D. Ohio Dec. 23, 2010)]
(“[T]he use of Defendant as an informant to his own adaptive behavioral
capabilities, known as ‘self-reporting,’ without any corrobor-ating
sources, is disfavored by the AAIDD.”). The potential for self-reporting
bias was only magnified when the test asked Mr. Ferguson to self-report
on whether he could do an activity that has had no connection to his life
in prison for over twenty years.
Doc. no. 47 (Petitioner’s Brief), at 30-31 (alterations supplied). Ferguson contends
that the mere fact he “filled out the ABAS-3 in such a manner without asking for
clarification is indicative of his lack of adaptive functioning skills.”140 He argues that
his limitations in his adaptive functioning abilities are self-evident: otherwise, he
“would certainly have asked some clarifying questions to ensure that [he was]
providing accurate results,” and his failure to “raise any concerns” about the test
questions underscores the inaccuracy of its results.141
The State responds by noting that there is no evidence in the record indicating
that Ferguson did not understand the instructions for taking the ABAS-3, and
contends that he “would have understood when he was rating himself that the

140

Id. at 31.

141

Id.
51

questions involved activities that he had done before he was incarcerated — such as
riding a bike or calling a repairman.”142
The State also disputes Ferguson’s contention that Dr. King did not conduct
a meaningful assessment of his adaptive functioning abilities by pointing to Dr.
King’s uncontradicted testimony that the Adaptive Behavior Assessment System is
one of two instruments recognized by the American Association on Intellectual and
Developmental Disabilities for assessing a person’s adaptive functioning abilities.143
Dr. King explained his reasons for using the ABAS as follows:
Well, again, the American Association for Intellectual and
Developmental Disabilities recommends for formal assessment of
adaptive behavior that either the Vineland or the ABAS [be] used.
Those are acceptable instruments to determine adaptive functioning
when you’re trying to come up with some standardized scoring.
I prefer the Adaptive Behavior Assessment System for the reasons
I’ve already mentioned because it has self-report norms so the individual
can take it now and answer the questions based on his own knowledge
of what he was capable of doing.
Doc. no. 46 (Hearing Transcript), at 146 (alteration supplied).
Additionally, the State disputes Ferguson’s contention that the ABAS and
Independent Living Scales are contrary to the so-called “best practices” outlined in
“authoritative texts,” because each test relies upon self-reporting. As the State notes,

142

Doc. no. 50 (Respondent’s Brief), at 46-47.

143

Id. at 46 (citing doc. no. 46 (Hearing Transcript), at 146).
52

Ferguson did not “identify these authoritative texts or cite this Court to where these
authoritative texts state that self-reporting is improper.”144
Ferguson also contends that, even though Dr. King was “aware of the
possibility that the ABAS-3 results were skewed and invalid,” he made no attempt to
“follow up,” to determine whether Ferguson “could actually do the activities he said
he could.”145
Ferguson also questions the validity and usefulness of the Independent Living
Scales test, which was administered by Dr. King to obtain “a measure of [his]
practical abilities in Managing Money, Managing Home and Transportation, Health
and Safety, Social Adjustment, and Problem Solving.”146 Ferguson contends that: the
assessment instrument has not been updated since 1998; it has never been approved
by the AAIDD to diagnose intellectual disabilities; and the tasks and questions on the
test had very little applicability to the everyday-life of a death row inmate.147
The State replies to that argument by saying that, even though the Independent
144

Id. at 46.

145

Doc. no. 47 (Petitioner’s Brief), at 31-32. The petitioner’s attorneys conclude that the
results of the ABAS-3 were not valid because Ferguson was required to “do an enormous amount
of guesswork on whether he could perform certain tasks.” Id. at 32.
146

Doc. no. 41-1 (Respondent’s Exhibit 1), at 9.

147

Doc. no. 47 (Petitioner’s Brief), at 32. Even so, Ferguson points out that the test tasks he
successfully performed (such as filling out a check and counting change) “are not even dispositive
for a finding of intellectual disability,” and Dr. King conceded that intellectually disabled individuals
do not need to be “completely unable to do ordinary living tasks.” Id. (quoting doc. no. 46 (Hearing
Transcript), at 199)).
53

Living Scales is not an assessment instrument approved by the AAIDD, “there was
no testimony that Dr. King’s use of the ILS was not appropriate”; instead, Dr. Shaffer
testified that he did not administer the ILS to Ferguson “because it is his preference
to use the Vineland.”148 The State adds that, even though Ferguson is critical of the
ILS because individuals who may be intellectually disabled can count change and
complete bank checks, “Ferguson was able to do much more than fill out a check on
his administration of the ILS.”149
Ferguson also contends that Dr. King’s opinion that his adaptive functioning
was “well within the average range” was contradicted by other evidence. He argues
that he
struggled significantly in school with learning in a non-structured
setting, and ultimately dropped out after he was moved to a regular
classroom. See [doc. no. 41-9 (Respondent’s Exhibit 7)], at 45 (Dr.
148

Doc. no. 50 (Respondent’s Brief), at 47; see also doc. no. 46 (Hearing Transcript), at 44.

149

Doc. no. 50 (Respondent’s Brief), at 47. Dr. King testified that Ferguson was

shown a card that has a social security check amount on it. He [was] asked to record
the amount on a piece of paper. He did that.
And he was shown a bill from a gas company and was asked to fill out a
check to pay that bill. He filled out the check accurately with the date, the amount,
signing it. And he did that for two separate bills.
He then was asked to take the amounts of those two bills and subtract them
from the social security check that he was supposedly given. And he came up with
exactly the right amount.
Doc. no. 46 (Hearing Transcript), at 151 (alteration supplied).
54

Chudy’s testimony pertaining to [sic: actually, it was Chudy’s 1998
state-court written report summarizing] Mr. Ferguson’s school
performance after being reclassified). Mr. Ferguson’s ex-wife testified
at trial that during their marriage, “Dale did not understand things well
and . . . I would make all of our decisions.” Id. at 80. Dr. Chudy’s
expert report also noted Mr. Ferguson’s significant social limitations:
Being intellectually slow with poor social skills he seems
peculiar among others. This sets him up to be taken
advantage of. . . . When he does develop friendships, his
naïve and limited thinking allows him to be easily
influenced. Family members confirm that in relationships
where he has come to trust the other person, he is easily led
and becomes a follower. . . .
Doc. no. 47 (Petitioner’s Brief), at 32-33 (quoting doc. no. 41-9 (Respondent’s
Exhibit 7), at 48-49 (Chudy Written Report)) (footnote omitted).150 Ferguson
contends that the “clear inconsistencies” between the results of the assessment
instruments administered by Dr. King and the record should have led Dr. King to
make additional inquiries into his adaptive functioning abilities.151
In summary, Ferguson contends that “the adaptive functioning evidence as a
whole” weighs in favor of a conclusion that he has significant and substantial
limitations in his adaptive functioning abilities.
150

The omitted footnote was at the end of the extract from Dr. Chudy’s 1998 state-court
report, and argues that his quoted description of Ferguson was “entirely in line with the Supreme
Court’s characterization of individuals with intellectual disability in Atkins. See 536 U.S. at 317
(‘[T]here is abundant evidence that [individuals with intellectual disability] often act on impulse
rather than pursuant to a premeditated plan, and that in group settings they are followers rather than
leaders.’).” Doc. no. 47 (Petitioner’s Brief), at 33 n.12.
151

Id. at 33.
55

Dr. Shaffer used observer evidence on the Vineland test, which was
consistent with his own observations and the record as a whole, to
determine that Mr. Ferguson was significantly limited in adaptive
functioning. On the other hand, Dr. King relied on two tests that he
knew to be error-prone and invalid to form his opinion that Mr.
Ferguson had average adaptive functioning skills and did not confirm
his findings with any other corroborative evidence. Even a cursory
glance through the record shows that Mr. Ferguson was not an
“average” person when it came to adaptive functioning.
Doc. no. 47 (Petitioner’s Brief), at 34.
4.

Analysis

The adaptive behavior component of an intellectual disability determination
requires proof of, among other things, “substantial present limitation in at least two
of the following areas:

‘communication, self-care, home living, social skills,

community use, self-direction, health and safety, functional academics, leisure, and
work.’” Jenkins, 936 F.3d at 1278 (quoting Atkins, 536 U.S. at 308 n.3) (emphasis
supplied). This court is not persuaded by a preponderance of the evidence that
Ferguson has made such a showing.
Although the State contends that “Ferguson has not shown that he suffers now,
or has ever suffered, from substantial or significant deficits in adaptive
functioning,”152 the parties’ arguments focus only upon Ferguson’s adaptive
functioning abilities or deficits prior to his conviction in 1998. Ferguson’s expert, Dr.

152

Doc. no. 50 (Respondent’s Brief), at 45.
56

Shaffer, administered the Vineland Adaptive Behavior Scales assessment instrument
to Ferguson’s mother, saying that Mrs. Betty Ferguson would be able to “provide
observations of [her son’s adaptive functioning abilities] at the time of his
developmental period at age 18.”153

Although Dr. Shaffer testified that his

observations of Ferguson on the three dates that he evaluated him in preparation for
testifying in this court were “not inconsistent” with the results obtained by his
administration of the Vineland Scales assessment instrument to Ms. Ferguson, he
offered little evidence to support a finding that Ferguson presently suffers from
substantial deficits in any area of adaptive functioning. Further, the school records
relied upon by Ferguson address only his adaptive functioning abilities decades ago,
and not presently.
III. CONCLUSION
After consideration of the testimony and documentary exhibits presented at the
August 27, 2019 hearing and the parties’ post-hearing briefs, this court concludes that
petitioner, Thomas Dale Ferguson, has failed to establish by a preponderance of the
evidence that he suffers from significantly subaverage intellectual functioning, or that
he has significant or substantial deficits in adaptive behavior. Therefore, Ferguson’s
Atkins claim and his petition for writ of habeas corpus are due to be denied. A

153

Doc. no. 46 (Hearing Transcript), at 33.
57

separate final judgment will be entered contemporaneously herewith.
DONE this 21st day of May, 2020.

______________________________
Senior United States District Judge

58