King v. Epps et al

Filing 103

MEMORANDUM OPINION re 102 Order on Motion for Writ of Habeas Corpus. Signed by District Judge Sharion Aycock on 3/26/2013. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
MACK ARTHUR KING

PETITIONER

vs.

CIVIL ACTION NO.: 1:10CV7-A

CHRISTOPHER EPPS, ET AL.

RESPONDENTS

OPINION AND ORDER
Petitioner, Mack Arthur King, has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, seeking to challenge the otherwise final conviction of capital murder and sentence
of death imposed on him by the Circuit Court of Lowndes County, Mississippi, for the August
1980 murder of Lela Patterson. Respondents concede, and the Court expressly finds, that
Petitioner meets the definition for mental retardation as that term is understood by Atkins v.
Virginia, 536 U.S. 304 (2002) and Chase v. State, 873 So.2d 1013 (Miss. 2004) and is thus
ineligible for execution. Accordingly, the Court vacates Petitioner’s sentence of death.
Facts and Procedural History
Eighty-four year old Lela Patterson was found dead in her bathtub at around 10:30 a.m.
on August 3, 1980. Following an investigation by law enforcement, Petitioner was indicted in
the Circuit Court of Lowndes County, Mississippi, for capital murder committed during the
course of a burglary. At the conclusion of a jury trial in December 1981, Petitioner was
convicted of capital murder and sentenced to death. His conviction and sentence were affirmed
by the Mississippi Supreme Court on October 27, 1982, and his petition for rehearing was denied
on December 1, 1982. King v. State, 421 So.2d 1009 (Miss. 1982). The United States Supreme

1

Court denied his petition for writ of certiorari on May 2, 1983. King v. Mississippi, 461 U.S. 919
(1983). Petitioner then filed an application for leave to petition the circuit court for writ of error
coram nobis, and the Mississippi Supreme Court ordered the trial court to conduct an evidentiary
hearing on Petitioner’s claim that he was denied the effective assistance of trial counsel. See
King v. Thigpen, 446 So.2d 600 (Miss. 1984).1 The trial court subsequently held a hearing and
determined that effective assistance had been rendered by Petitioner’s trial counsel. The
Mississippi Supreme Court affirmed the decision of the trial court. See King v. State, 503 So.2d
271 (Miss. 1987).
Petitioner next sought federal habeas relief, and his petition for writ of habeas corpus was
denied by the United States District Court for the Northern District of Mississippi on July 2,
1991. See King v. Presley, No. 1:87cv126-S-D. On appeal, the Fifth Circuit vacated Petitioner’s
death sentence and instructed the Court to return the case to State court for reconsideration. See
King v. Puckett, 1 F.3d 280 (5th Cir. 1993) (vacating death sentence and remanding with
instructions to return it to the state court for reconsideration of death sentence based on unlimited
“especially heinous, atrocious or cruel” jury instruction). The Court did so, and the Mississippi
Supreme Court subsequently vacated Petitioner’s death sentence and remanded the case for a
new sentencing trial. King v. State, 656 So.2d 1168 (Miss. 1995).
Following a new sentencing trial, a jury resentenced Petitioner to death on April 9, 1998.
On appeal, the Mississippi Supreme Court again reversed the case and remanded it for
resentencing. See King v. State, 784 So.2d 884 (Miss. 2001) (reversing death sentence and
1

Petitioner had previously filed an application for leave to file a petition for writ of error
coram nobis, which was denied without prejudice. See King v. Thigpen, 441 So.2d 1365 (Miss.
1983).
2

remanding for new sentencing hearing on the ground that the trial court erred in instructing the
jury to disregard sympathy in its deliberations). At Petitioner’s March 2003 resentencing trial,
which forms the basis for the instant petition, he was again sentenced to death. The Mississippi
Supreme Court affirmed the conviction of capital murder and sentence of death on May 31, 2007.
King v. State, 960 So.2d 413 (Miss. 2007), cert. denied, 522 U.S. 1190 (2008) (“King I”).
Petitioner subsequently filed for post-conviction relief, which was denied by the Mississippi
Supreme Court. King v. State, 23 So.3d 1067 (Miss. 2009) (rehearing denied January 7, 2010)
(“King II”). Petitioner filed the instant petition for a writ of habeas corpus with the Court on
October 8, 2010, challenging his 2003 death sentence by raising eleven separate grounds for
relief. 2
Applicable Law
The instant petition is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which allows federal habeas review of a petitioner’s claims alleging a
“violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see
also Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (holding the AEDPA applies to all federal
habeas applications filed on or after April 24, 1996). The AEDPA precludes a federal court from
granting a petition for a writ of habeas corpus on any claim “adjudicated on the merits in State
court proceedings” unless that adjudication “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an

2

Petitioner initially raised twelve grounds for relief but later abandoned one claim
relating to the sufficiency of the indictment.
3

unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388,
1398 (2011).
A decision is “contrary to” the applicable law when the conclusion reached by the state
court is “opposite that reached by the Supreme Court on a question of law or if the court decides
the case differently on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). The “unreasonable application” clause allows a court to grant relief if the state
court identifies the correct legal principle but unreasonably applies it to the facts of a petitioner’s
case. Id. Whether either of the § 2254(d) clauses is met is determined by assessing the record
that was before the state court. See Holland v. Jackson, 542 U.S. 649, 652 (2004); see also 28
U.S.C. § 2254(d)(2). Factual determinations made by the state court are presumptively correct,
and a petitioner bears the burden of rebutting the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). This deference is
afforded to both the express and implicit factual findings of the state court. See, e.g., Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006).
The standards of the AEDPA are “highly deferential” and “demand[] that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1862
(2010) (internal citation and citation omitted). The federal habeas court’s inquiry is not whether
the decision of the state court is incorrect, but “whether that determination was unreasonable - a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Unless a
petitioner can demonstrate that there is no reasonable basis for the state court decision denying
relief, federal habeas relief is precluded. Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770,
4

786 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.”) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Court now turns to a consideration of Petitioner’s claims in light of the these
standards.
Petitioner’s Conviction
Throughout the pleadings filed in this case, both Petitioner and Respondents state that
Petitioner is challenging both his conviction and his death sentence. Petitioner’s 2003
resentencing proceedings form the basis for the instant petition, and the Court construes all of
Petitioner’s claims to relate to the sentence imposed in this case, with the possible exception of
his claim that trial counsel rendered ineffective assistance in failing to object to the sufficiency of
the indictment at his resentencing trial. Specifically, Petitioner maintains that, prior to 2002, his
counsel failed to challenge his1980 indictment on the ground that it did not specify the offense
underlying the burglary charge as required by Mississippi law. See State v. Berryhill, 703 So.2d
250 (Miss. 1997).3
Prior to Petitioner’s 2003 trial, defense counsel filed a motion to exclude the death
penalty as a sentencing option based on the allegedly flawed indictment. (See Trial Tr. vol. 2,

3

The indictment against Petitioner reads, in relevant part:
Mack Arthur King late of County aforesaid, on or about the 3rd day of August in the year
of our Lord, 1980, did then and there willfully, unlawfully, and feloniously and out of his malice
aforethought kill and murder a human being Lela Patterson without authority of law and not in
necessary self-defense, while he, the said Mack Arthur King was then and there engaged in the
commission of the crime of burglary in violation of Section 973-192(2)(E) of the Mississippi
Code of 1972 as amended contrary to the form of the statute in such causes made and provided
and against the peace and dignity of the State of Mississippi. (Trial Tr. vol. 1, 9).
5

188-193).4 The trial court denied the motion, and the issue was found time-barred on appeal
because Petitioner failed to raise it within the applicable statute of limitations. King I, 960 So.2d
at 431 (holding that Petitioner’s failure to raise the issue of the indictment’s sufficiency prior to
2002 barred his complaint); see also King II, 23 So.3d at 1072 (considering issue in context of
counsel’s performance and finding it res judicata). Assuming that Petitioner can properly raise a
claim as it relates to his indictment at this point in the litigation of this case, Petitioner has
nonetheless affirmatively abandoned his claim that his State court indictment was defective.
(See, e.g., Pet. at 53; Pet. Memo at 176). Given that Petitioner has conceded that the underlying,
substantive claim does not warrant federal habeas relief, he cannot demonstrate any prejudice as
a result of counsel’s failure to raise the issue prior to proceedings in Petitioner’s 2003
resentencing trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that a
defendant must demonstrate prejudice as a result of counsel’s errors or he cannot sustain a claim
of ineffective assistance); Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006) (holding that
counsel is not deficient in failing to present a meritless argument). Therefore, the Court finds
that, to the extent any claims are raised challenging Petitioner’s conviction of capital murder,
they do not warrant federal habeas relief. Petitioner’s conviction will not be discussed further
herein.

4

The record in this case consists of eighteen separately bound volumes. The first twelve
volumes contain various State court papers, while the remaining six volumes contain the trial
transcript. Inasmuch as the volumes are sequentially numbered, the Court herein uses “Trial Tr.
vol. __, ___” to cite to both.
6

Mental Retardation5
The execution of a defendant with mental retardation is proscribed by the Eighth
Amendment to the United States Constitution. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
Whether an individual is mentally retarded within the meaning of Atkins is generally determined
by the diagnostic criteria as set forth by the American Association on Mental Retardation
(“AAMR”) and the American Psychiatric Association (“APA”). See id. at 317 and n.22. Under
either of the professional standards, there are three components for a determination of mental
retardation: (1) substantial limitations in intellectual functioning; (2) significant limitations in
particular adaptive skill areas; and (3) manifestation of those limitations before age 18. See id. at
309 n.3 (noting the similarity between the professional standards); Lewis v. Quarterman, 541
F.ed 280, 283 (5th Cir. 2008); see also Clark v. Quarterman, 457 F.3d 441, 446 (5th Cir. 2006).
While the Atkins Court cited the AAMR and APA standards with approval, it adopted no
particular definition of mental retardation, leaving it to the individual states to adopt a means of
enforcing “the constitutional restriction upon its execution of sentences.” Atkins, 536 U.S. at
317; Bobby v. Bies, 556 U.S. 825, 831 (2009) (“Our opinion did not provide definitive
procedural or substantive guides for determining when a person who claims mental retardation”
will fall within the protection of Atkins).
Mississippi adopted a definitive standard for how Atkins is applied in trial courts in Chase
5

The American Association on Mental Retardation (“AAMR”) is now the American
Association on Intellectual and Developmental Disabilities (“AAIDD”), and it now uses the
terminology “intellectual disability” instead of mental retardation. Although the body of case
law informing this Court’s decision uses now outdated terminology, the Court retains use of the
term “mental retardation” and refers to the professional organization as the AAMR for purposes
of continuity throughout the opinion, except when referencing the most recent definition manual,
which it cites as “2010 AAIDD.”
7

v. State, 873 So.2d 1013, 1028-29 (Miss. 2004). The Mississippi Supreme Court held that:
[N]o defendant may be adjudged mentally retarded for purposes of the Eighth
Amendment, unless such defendant produces, at a minimum, an expert who
expresses an opinion, to a reasonable degree of certainty, that:
1. The defendant is mentally retarded, as that term is defined by the American
Association on Mental Retardation and/or The American Psychiatric Association;
2. The defendant has completed the Minnesota Multiphasic Personality InventoryII (MMPI-II) and/or other similar tests, and the defendant is not malingering.
***
Upon meeting this initial requirement to go forward the defendant may present
such other opinions and evidence as the trial court may allow pursuant to the
Mississippi Rules of Evidence.
Thereafter, the State may offer evidence, and the matter should proceed as other
evidentiary hearings on motions.
At the conclusion of the hearing, the trial court must determine whether the
defendant has established, by a preponderance of the evidence, that the defendant
is mentally retarded. The factors to be considered by the trial court are the expert
opinions offered by the parties, and other evidence [o]f limitations, or lack
thereof, in the adaptive skill areas listed in the definitions of mental retardation
approved in Atkins, and discussed above. Upon making such determination, the
trial court shall place in the record its finding and the factual basis thereof.
Id. at 1029.
The court also determined that those offenders whose trials were final prior to Chase
could obtain an evidentiary hearing by attaching to their petition an affidavit from a qualified
psychologist “who opines, to a reasonable degree of certainty, that: (1) the defendant has a
combined Intelligence Quotient (“IQ”) of 75 or below, and; (2) in the opinion of the expert, there
is a reasonable basis to believe that, upon further testing, the defendant will be found to be
mentally retarded, as defined herein.” Id. A few months later, the court “expand[ed] on the
procedure to be used in reaching a determination of mental retardation” by holding that the entire
record would be considered before “deciding whether to grant an Atkins hearing.” Wiley v. State,

8

890 So.2d 892, 897 (Miss. 2004). Shortly thereafter, the Mississippi Supreme Court noted that
in cases already pending before the procedure in Chase was handed down, it had ordered a
hearing without requiring an expert’s affidavit where the record contains “a qualified opinion”
that an offender is mentally retarded. Scott v. State, 878 So.2d 933, 948 (Miss. 2004).
In Petitioner’s petitions for writ of error coram nobis from his first death sentence, he
asserted that trial counsel were ineffective in failing to inform the jury that he suffers with mental
retardation. As part of the litigation, psychologist, Dr. Robin King,6 administered the Weschsler
Adult Intelligence Test-Revised (“WAIS-R”) to Petitioner on April 15, 1983, and found him to
have a full-scale intelligence quotient (“FSIQ”) of 69.7 (Trial Tr. vol. 17, 615). On June 23,
1983, at the State’s request, Petitioner was tested by psychologist, Dr. Michael Whelan, using the
Weschsler Adult Intelligence Test (“WAIS”), and he determined Petitioner’s FSIQ to be 71. (Id.
at 679). On review from the evidentiary hearing, the Mississippi Supreme Court accepted that
Petitioner’s intelligence was subaverage but found the facts available to his attorneys at the time
of trial insufficient to place them on notice to investigate mental retardation as a mitigating
circumstance. See King v. State, 503 So. 2d 271, 274 (Miss. 1987).
Atkins was decided on June 20, 2002. Atkins, 536 U.S. 304 (2002). On July 25, 2002, as
part of pretrial proceedings for the 2003 resentencing hearing, Petitioner’s lawyers sought funds
to obtain the assistance necessary to present Petitioner’s claim of mental retardation and/or low
intellectual functioning as a mitigating circumstance, citing the prior evidence indicating that

6

Dr. King is of no relation to Petitioner.

7

Dr. King initially concluded that Petitioner’s full-scale IQ was 71, but he testified at
Petitioner’s 2003 resentencing trial that a scoring error had been made in 1983 that erroneously
inflated the score. See also King I, 960 So.2d at 423.
9

Petitioner might be ineligible for the death penalty under Atkins. (See, e.g., Ex. vol., unsealed per
order of 4/3/2012).8 In support of his motion for funding, Petitioner attached the transcripts of
the testimonies of Drs. King and Whelan from Petitioner’s 1984 error coram nobis hearing,
along with the affidavit of Dr. Caroline Everington, the Associate Dean of Richard Riley College
of Education and expert in the fields of mental retardation and special education, who stated that
further testing was required in order to make an accurate determination of Petitioner’s capacities.
(See id.). The trial judge heard the motion ex parte in his chambers on September 25, 2002. (See
id.). On November 24, 2002, the court denied the ex parte motion for funds without explanation.
(See Trial Tr. vol. 2, 196).
On March 20, 2003, a few days before Petitioner’s resentencing trial began, defense
counsel filed “Defendant’s Motion to Determine Mental Retardation and to Preclude the
Imposition of the Death Penalty and Memorandum in Support Thereof.” (Trial Tr. vol. 2, 267300; Trial Tr. vol. 3, 301-347). In the motion, counsel noted that Petitioner’s ability to fully
present evidence of his mental retardation was prejudiced by the denial of funds to hire an expert.
Counsel otherwise requested an evidentiary hearing on the basis of the historical evidence of
Petitioner’s limited intellectual functioning, which included the transcript of the 1984 error
coram nobis hearing testimonies of Drs. King and Whelan, the affidavit of Dr. Everington,
Petitioner’s school records reflecting that Petitioner repeated each grade before apparently
dropping out in the fourth grade, and a 1980 admission note created by the Mississippi State
Hospital characterizing Petitioner as “simple, literal, concrete” and reflecting the examiner’s
initial impression that Petitioner possessed “dull” normal mental standards. (See id.; see also
8

Petitioner sought four different categories of experts in total.
10

Trial Tr. vol. 13, 25-27). Counsel argued that Dr. King testified in 1984 that Petitioner’s FSIQ
was 71, plus or minus five points, and that he could have been mentally retarded. (See Trial Tr.
vol. 13, 25).9 Counsel noted that the State’s expert, Dr. Whelan, also found Petitioner’s FSIQ to
be 71 and determined that his intellectual functioning was far below normal. (Id.).10 He also
argued that Petitioner’s school records showed failing grades and social promotions each year
before Petitioner quit school in the fourth grade. (Id. at 26). The school records also showed,
counsel argued, that Petitioner received the lowest possible score in the skill areas of “assuming
responsibility, for initiative, for leadership, for personal grooming, [and] for working well with
others.” (Id.).
The motion to find Petitioner mentally retarded and preclude the death penalty was heard
in chambers on March 25, 2003, before the second day of voir dire at Petitioner’s resentencing
trial. (Trial Tr. vol. 14, 222).11 Noting that there had not been a procedure yet established in
Mississippi for Atkins’ determinations, and that the defense’s motion for funds for expert
assistance had been denied, defense counsel requested that a determination be made by the trial
court or the jury that Petitioner was not subject to the death penalty based on the holding in

9

Dr. King later testified that he made a scoring error, and that testing results showed
Petitioner’s FSIQ was 69. (See Trial Tr. vol. 17, 615).
10

The Court notes that Dr. Whelan testified that, in his opinion, Petitioner does not meet
the clinical definition of mental retardation. (See Trial Tr. vol. 3, 305, 318).
11

The trial transcript in this case indicates that the trial began on March 23, 2003.
However, March 23, 2003, was a Sunday, and there is no indicator in the record of any activity
occurring in the case on March 24, 2003. The trial judge’s “Report of the Trial Judge Where
Death Penalty is Imposed” to the Mississippi Supreme Court indicates that the trial began on
March 24, 2003, and ended on March 28, 2003. (See DPQ vol. 1 of 1). The Court assumes that
an error was made in the transcript, and that the trial began on March 24, 2003.
11

Atkins. (See, e.g., Trial Tr. vol. 14, 222-23). In support of the motion, counsel first argued that
Dr. King testified in 1984 that Petitioner was, at least, in the borderline mentally retarded range
and quite possibly met the standard for a diagnosis of mental retardation. Counsel also noted that
while Dr. Whelan, the State’s expert, disagreed with Dr. King’s determination, Dr. Whelan
agreed that Petitioner’s FSIQ was 71. (See id. at 223). Next, counsel noted that Petitioner’s
school records, which were introduced in Petitioner’s 1998 resentencing, showed that Petitioner
received social promotions each year until he quit school in the fourth grade. (See id. at 223-24).
Counsel argued that the school records also indicated that Petitioner possessed adaptive
limitations, and that they established that his condition was present prior to the age of eighteen.
(Id. at 224-25). Counsel maintained that the court should find Petitioner mentally retarded and
remove the death penalty as a sentencing option. (Id. at 225).
In response, the prosecutor submitted the results of a Mississippi Department of
Corrections psychiatric evaluation of Petitioner on December 6, 1983, by psychiatrist, Dr.
Delores DiGaetano. (Id. at 225). The prosecutor stated that Dr. DiGaetano’s diagnostic
impression was that “she ruled out on mental retardation,” and the evaluation was introduced for
purposes of the hearing. (Id.).12 After additionally arguing that Dr. Whelan specifically testified
that it was his opinion that Petitioner is not mentally retarded, the prosecutor asked that the trial
judge determine that Petitioner is not mentally retarded as that term is understood by Atkins. (Id.
12

Actually, Dr. DiGaetano’s diagnostic impression was “[r]ule out mental retardation” –
not that mental retardation had been excluded as a diagnosis. (See Vault Ex. vol., Case No.
2005-DP-00419-SCT). The Court also notes that Dr. DiGaetano’s report contains incorrect facts
concerning Petitioner’s school performance. For instance, she notes that he was a C student who
quit school in the eighth grade. (See id.). This finding is contradictory to Petitioner’s school
records, which establish that he failed each grade once and only finished the third grade. (See,
e.g., PCR Supp. Ex. 23).
12

at 225-27). No witnesses testified at the hearing.
Preparing to rule, the trial judge stated that he had spent several days reading every
opinion and record that he could find relative to Petitioner’s case. (Id. at 229). He then stated:
From what I can find and what I see, you know, it’s an amazing thing sometimes
when you look through these records and-of course, I’m married to a retired
school teacher and these school teachers sometimes are real observant and it
amazes me what they glean sometimes. We have all this testimony from
psychologists and we have a psychiatrist report and all these things, and on one of
the reports, one of the teachers made a permanent record and said, “Mack Arthur
missed almost half of the days. I see no reason to retain. He could do the work if
he attended regularly.”13 Now, to me, that teacher was saying, and this was back
in ‘71 and is something to kind of reach down and have some meaning to me, that
what she was saying was that this child, if he were in school, he has the ability to
learn. She didn’t say, you know, that he had a high ability to learn or whatever,
but she indicates to me that she was saying if he attended school on a regular
basis, if he were here for his classes, he would be all right. I put some weight on
that. Y’all might say of all things, but that had some meaning to me.
***
So the Court being required to make a finding as to retardation before we go
forward, and I’m not saying this is the last time this could be addressed, but I
think it’s something that has conditioned precedent to us going on with the trial,
and I’m going to define that he is not mentally retarded under Atkins and we will
bore ahead. Okay?
(Trial Tr. vol. 230-31).
At trial, Dr. King testified for the defense that Petitioner’s testing scores show him to be
in the mentally retarded range. (Trial Tr. vol. 17, 616).14 On cross-examination, however, Dr.

13

The note of Petitioner’s third grade teacher also notes that Petitioner “seem to be
imbarashed [sic] of age.” (Supp. PCR Ex. 28). As Dr. Macvaugh notes in his report, the
teacher’s opinions lack credibility in light of her own limitations. (ECF no. 101, Macvaugh
Report at 47).
14

According to defense counsel, Dr. King no longer practiced in the field of mental
retardation by the time of Petitioner’s 1998 resentencing and declined to be a witness in the case
at that time. (Pet. Memo Ex. 2, Aff. of James E. Rocap, III). In Petitioner’s 2003 proceedings,
defense counsel wanted to introduce the transcript of Dr. King’s 1984 testimony, because his
testimony involved twenty year old records in an area of psychology in which Dr. King no longer
13

King was presented with documents purportedly generated by Petitioner while he was
incarcerated at the Lowndes County Jail, and he stated that it was unlikely that an individual with
mental retardation could generate such documents. (Id. at 633-34). At a recess following Dr.
King’s testimony, defense counsel moved for a mistrial or a continuance. (Id. at 653). Defense
counsel argued that the prosecution intended to call Dr. Whelan as a witness, and that because of
the court’s denial of the defense’s motion for funds for expert assistance, counsel could not
respond to the expert testimony. (Id.). The court overruled the motion, and Dr. Whelan testified
that though Petitioner is significantly below average intellectually, he is not mentally retarded.
(See id. at 677-694).
At the close of evidence, defense counsel renewed its motion to determine Petitioner
mentally retarded, which the court denied. (Trial Tr. vol. 17, 735). The court also denied a jury
instruction proposed by the defense that would have required the jury to return a sentence of life
imprisonment if they determined that Petitioner was mentally retarded. (Trial Tr. vol. 18, 771).
The jury subsequently returned a verdict of death. (Id. at 864-65).
Several months before Petitioner filed his direct appeal, Chase v. State, 873 So.2d 1013
(Miss. 2004) was decided. On appeal to the Mississippi Supreme Court, Petitioner argued that
the trial court’s denial of funds for an expert prevented him from proving his claim of mental
retardation. See King I, 960 So.2d at 423. The court concluded that Petitioner failed to show a
substantial need for funds to obtain an independent expert, and that he was not otherwise
prejudiced in his ability to present his intellectual functioning as a mitigating circumstance. Id. at

practiced. (See, e.g., Trial Tr. vol. 14, 231-33). Because he was an available witness, however,
the State subpoenaed Dr. King to give live testimony. (See id.).
14

423-24.
Also on direct appeal, Petitioner argued that the procedures used to determine his Atkins
claim were constitutionally inadequate, and that the evidence presented to the trial court was
sufficient to warrant a hearing under Chase. Id. at 424. The court noted that the trial judge and
attorneys were aware of Atkins at the time of Petitioner’s resentencing, and that the trial court
specifically made a determination that Petitioner was not mentally retarded. Id. at 426. The
Mississippi Supreme Court noted “that considerable evidence was presented to the trial court
before it made its determination as to [Petitioner]’s mental capacity. Id.15 After reciting the
evidence presented to the trial judge, the Mississippi Supreme Court found:
[At Petitioner’s hearing to determine mental retardation] both sides
presented expert testimony and other evidence regarding King’s
mental retardation claim. After hearing all the evidence, which
was substantial, the trial judge outlined the evidence that he had
considered and gave his reasons for concluding that King was not
mentally retarded.
Chase merely affords a defendant a hearing if that defendant
fulfills certain requirements. King fulfilled those requirements and
had his hearing. For these reasons, we find that King was afforded
a hearing on his mental retardation claim in satisfaction with the
procedures outlined in Chase. Therefore, we find no error with
regard to this issue.

15

The Mississippi Supreme Court additionally found that the trial court, before it made a
determination as to Petitioner’s mental capacity, considered the testimony of Officer Jessie
Brooks, a lieutenant at the Lowndes County Adult Detention Center who testified that Petitioner
read books and generated inmate complaints while housed at the detention center; the testimony
of Sammy Townsend, who testified as the custodian of Petitioner’s school records; and the
testimony of Petitioner’s sister, Ethel Conner, regarding Petitioner’s impoverished upbringing
and school attendance. See King I, 960 So2d at 426-28. The Court notes, however, that this
information was elicited during trial and was not before the trial court when it made the initial
determination as to whether Petitioner meets the standard for mental retardation as the term is
understood by Atkins.
15

King I, 960 So.2d at 428.
On post-conviction review, Petitioner again argued that he was denied due process when
the trial court denied him funds for a mental health expert, thereby depriving him of the
opportunity to fully develop his claim that his execution would violate the rule in Atkins. See
King II, 23 So.3d 1067, 1071-72. In support of his claim, he presented the affidavit of
psychologist, Dr. Marc Zimmermann, who evaluated Petitioner on May 30, 2008. (See PCR vol.
1, Supp. PCR Ex. 21, Aff. of Dr. Marc Zimmermann).16 During the course of his evaluation, Dr.
Zimmermann reviewed numerous documents and administered to Petitioner the Wechsler Adult
Intelligence Test-III (“WAIS-III”), on which Petitioner obtained a FSIQ score of 67. (See id.).
Dr. Zimmermann opined that Petitioner’s testing results were not the product of malingering, and
he opined, “to a reasonable degree of psychological certainty,” that Petitioner meets the relevant
clinical/legal definitions of mental retardation. (Id.). Also presented on post-conviction review
were the affidavits of Petitioner’s family, friends, and community members, attesting to
Petitioner’s difficulty learning and mastering skills, his poor hygiene, and the history of mental
retardation in Petitioner’s family. (See id., Exs. 21-27). Noting that it had already determined on
direct appeal that Petitioner failed to show a substantial need for the expert assistance, the court
barred consideration of the claim based on the doctrine of res judicata. Id. at 1071. The court
also determined that Petitioner had not made “a substantial threshold showing of mental

16

Dr. Zimmermann actually submitted three separate affidavits during the course of
Petitioner’s post-conviction proceedings, and he conducted two separate evaluations of Petitioner
during that time. (See, e.g., PCR Ex. 20; Supp. PCR Ex. 21; 2nd Supp. PCR Ex. 28).
16

retardation” as necessary to overcome the bar. Id. at 1071-72.17
Petitioner also presented on post-conviction review the substantive argument that he is
exempt from execution pursuant to the court’s decision in Chase. Id. at 1073. The Mississippi
Supreme Court held that Chase merely affords a defendant a hearing if he fulfills certain
requirements, and it found that Petitioner “had his hearing.” Id. at 1075. The court cited its
previous determination that there was no error with regard to the issue, and it barred
consideration of the claim. Id. at 1076.
Presented with these claims on federal habeas review, this Court ordered, over
Respondents’ objections, an evidentiary hearing. (See, e.g., ECF nos. 68, 76). Because
Petitioner’s claim was rejected on the merits in State court, AEDPA deference would ordinarily
limit the Court’s consideration of the claim to the record that was before the State court at the
time of its decision. See, e.g., Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011);
Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010). In this case, however, Petitioner presented the
trial court with evidence of his intellectual limitations and history of suspected mental retardation
and was denied funding for expert assistance. Petitioner nonetheless presented the Mississippi
Supreme Court with an expert opinion that he meets the definition for mental retardation in
accordance with the procedure as set forth in Chase v. State and its progeny and yet was denied a
full and fair hearing. Persuaded that Petitioner was denied the minimum due process required to
ensure that the constitutional restriction against executing those with mental retardation is
enforced, the Court determined to review Petitioner’s claim without the deference normally

17

Petitioner also argued that counsel rendered ineffective assistance in failing to properly
litigate his claim of mental retardation at trial and on appeal, but the court held the issue barred
from consideration. See King II, 23 So.3d at 1073.
17

afforded under the AEDPA.18 See 28 U.S.C. § 2254(d); Rivera v. Quarterman, 505 F.3d 349,
358 (5th Cir. 2007); see also Blue v. Thaler, 665 F.3d 647, 657 (5th Cir. 2011) (“But if a state
court dismisses a prima facie valid Atkins claim without having afforded the petitioner an
adequate opportunity to develop the claim, it has run afoul of the Due Process Clause, and that
due process violation constitutes an unreasonable application of clearly established federal law
that is sufficient to deprive the state court’s decision of AEDPA deference.”).
After setting an evidentiary hearing in this case, the Court granted Petitioner’s motion for
funds to obtain expert assistance, and it granted Respondents’ motion to allow Dr. Gilbert
Macvaugh, III, a clinical and forensic psychologist, to conduct an evaluation of Petitioner. (See
ECF nos. 75, 83). Dr. Macvaugh subsequently conducted an evaluation and determined that
Petitioner meets the standard for mental retardation as that term is contemplated by Atkins and
Chase. (See ECF no. 101, “Macvaugh Report”). Respondents have submitted a notice
confessing that Petitioner suffers from mental retardation and is exempt from execution. (See
ECF no. 100).
In light of Petitioner’s submitted proof and Respondents’ concession, it is unnecessary to
engage in an exhaustive discussion of Petitioner’s claim that he is exempt from execution due to
mental retardation. Rather, the Court finds that proof exists in the record to support a
determination that Petitioner has demonstrated by a preponderance of the evidence that he meets
the criteria for mental retardation as that term is contemplated by Atkins and Chase.
A. Significantly subaverage general intellectual functioning
The APA states that “[s]ignificantly subaverage intellectual functioning is defined as an

18

See ECF no. 79.
18

IQ of about 70 or below (approximately 2 standard deviations below the mean).” See Diagnostic
and Statistical Manual of Mental Disorders at 41 (4th ed. tex. rev. 2000) (“DSM-IV-TR”).
Petitioner’s intellectual functioning has been assessed on four known occasions using successive
versions of the WAIS. The United States Supreme Court has recognized the Wechsler Scales as
the “standard instrument in the United States for assessing intellectual functioning.” Atkins, 536
U.S. at 309 n.5. Taking the approximately five point standard error of measurement into
account, the typical cutoff score for the intellectual functioning prong of the definition is an IQ
between 70 and 75 or lower. Atkins, 536 U.S. at 309 n.5; see also DSM-IV TR at 39, 41.
In 1983, Petitioner obtained a FSIQ score of 69 on the WAIS-R as administered by Dr.
King, and a FSIQ score of 71 on the WAIS when he was later tested by Dr. Whelan. (See Trial
Tr. vol. 17, 615, 679). In 2008, he obtained a FSIQ score of 67 on the WAIS-III as administered
by Dr. Zimmermann. (See Supp. PCR Ex. 21). In 2013, Dr. Macvaugh administered the
Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”) to Petitioner, and he obtained a
FSIQ of 64. (See Macvaugh Report at 42, 43). As noted by Dr. Macvaugh and Dr.
Zimmermann, Petitioner has consistently, over the course of approximately thirty years, received
FSIQ scores in the range of mild mental retardation. (See Macvaugh Report at 44; Supp. PCR
Ex. 21, Aff. of Dr. Zimmermann). This Court determines that Petitioner has demonstrated that
he suffers from significantly subaverage intellectual functioning.
B. Significant limitations in adaptive functioning
Accordingly to the APA, a diagnosis of mental retardation requires significantly
subaverage general intellectual functioning “that is accompanied by significant limitations in
adaptive functioning in at least two [] skill areas.” DSM-IV-TR at 41. Significant limitations in

19

adaptive functioning “refers to how effectively individuals cope with common life demands and
how well they meet the standards of personal independence expected of someone in their
particular age group, sociocultural background, and community setting.” Id. at 40.
The definitions of the DSM-IV-TR and the 1992 manual of the AAMR (“1992 AAMR”)
use the same categories of adaptive skill areas to be considered. These are: (1) communication;
(2) self-care; (3) home living; (4) social skills; (5) community use; (6) self-direction; (7) health;
(8) safety; (9) functional academics; (10) leisure; and (11) work. See, e.g., DSM-IV-TR at 41;
Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).19
Under the AAMR’s most recent definition of mental retardation, a clinician making a diagnosis
determines whether an individual has adaptive functioning deficits defined “as performance that
is approximately two standard deviations below the mean of either (a) one of the following three
types of adaptive behavior: conceptual, social, or practical or (b) an overall score on a
standardized measure of conceptual, social, and practical skills.” AAIDD, Intellectual
Disability: Definition, Classification, and Systems of Supports 43 (11th ed. 2010) (“2010
AAIDD”).
Both Dr. Macvaugh and Dr. Zimmermann have found Petitioner to have significant
deficits in the area of functional academics. Dr. Macvaugh assessed Petitioner’s adaptive
behavior in the functional academic skills category using the Wide Range Achievement Test - 4

19

The 1992 AAMR combines “health and safety” into one category while the DSM-IVTR separates them into two categories. As such, the AAMR uses ten categories while the DSMIV-TR references eleven. In 2002, the AAMR redesignated the adaptive skill areas into three
categories: conceptual, social, and practical. 2002 AAMR at 73.

20

(“WRAT4"), a standardized measure of academic achievement. (See Macvaugh Report at 45).
He noted that Petitioner obtained several scores that fell at least two standard deviations below the
mean of 100, such as his composite scores in Reading, Word Reading, Spelling, and Math
Computation. (Id.). Noting that these scores were consistent with Petitioner’s performance on the
WRAT as administered to Petitioner by Dr. King in 1983, as well as the standardized achievement
test scores that Petitioner obtained in his school years, Dr. Macvaugh concludes that Petitioner
suffers significant limitations in functional academics.20 Similarly, Dr. Zimmermann notes that
the achievement test scores in Petitioner’s school records, which showed him consistently
functioning at a first grade level in vocabulary, reading, and language, were “essentially the same”
when his academic abilities were tested by Dr. King in 1983. (Supp. PCR Ex. 21 ¶ 20).
Additionally, both experts also conclude that Petitioner has significantly limited money
management skills, which, while not a specific category listed in either the DSM-IV-TR or the
1992 AAMR definitions, is recognized as an example of a “practical” adaptive skill by the most
recent AAIDD manual. See 2010 AAIDD at 44. (Supp. PCR Ex. 21 ¶ 22, 23; Macvaugh Report
at 45). Dr. Macvaugh notes that, during his evaluation of Petitioner, Petitioner was unable to
make simple calculations or to correctly count out specific amounts of money. (Id. at 45). He
determines that the conclusion that Petitioner’s has a significant impairment in this area is
supported with “his consistently poor scores on standardized measures of his math computation
skills[.]” (Id.).
Additionally, Dr. Macvaugh notes that there is evidence to suggest that Petitioner may

20

This conclusion correlates to a finding that Petitioner’s conceptual skills are limited, if
the 2010 AAIDD definition is used. See 2010 AAIDD at 44.
21

have significant deficits in the areas of:
social functioning (as evidenced by his history of juvenile delinquency and
multiple arrests during early adulthood leading up to the index offenses), language
and communication (as evidenced by his apparent speech impediment and related
articulation problems), as well as in the area of his practical daily living skill (as
evidenced by the reports from collateral sources regarding his poor hygiene and
personal self-care skills, including his former teachers, family members, and others
who knew him in the community).
(Macvaugh Report at 46).
Dr. Zimmermann determined that Petitioner suffers from deficits in his work and
community use skills, as evidenced by two independent reports that Petitioner could not leave his
neighborhood and could only work at manual labor jobs that favored “muscle” over those
requiring adherence to complex instruction or training. (See Supp. PCR Ex. 21 ¶¶ 21-23).
In light of these findings, the Court finds that Petitioner suffers significant limitations in at
least two adaptive skill areas identified by the DSM-IV-TR and the 1992 AAMR, and in at least
one area as identified by 2010 AAIDD, prior to the age of 18.
C. Onset “before age 18 years”
Dr. Macvaugh notes that Petitioner’s school records and the consistency of his FSIQ
scores across time - when he was 23, 24, 48, and 53 - indicate that his intellectual deficits
manifested prior to the age of eighteen. (Macvaugh Report at 44, 46). Similarly, Dr.
Zimmermann notes that Dr. King found Petitioner’s academic abilities in 1983 to be essentially
the same as they were when he was evaluated during his school years. (Supp. PCR Ex. 21 ¶ 20).
The Court finds that the record evidence is sufficient to demonstrate that the onset of Petitioner’s
intellectual and adaptive functioning deficits occurred prior to the age of eighteen.

22

D. Malingering
Both Dr. Macvaugh and Dr. Zimmermann administered to Petitioner the Test of Memory
Malingering (“TOMM”), a fifty-item visual memory recognition test that consists of two learning
trials and a retention trial, and they determined that Petitioner did not attempt to malinger
intellectual deficits. (See Macvaugh Report at 41, 43, 47; Supp. PCR Ex. 21 ¶ 19; Ex. 28 to Reply
to State’s Response for PCR, November 2008 Aff. of Dr. Zimmermann).21 The Court notes with
particular interest Dr. Macvaugh’s observation that Petitioner’s poor school performance supports
the conclusion that his post-arrest standardized intelligence testing scores were not an attempt to
malinger, as he would have had little incentive to feign intellectual limitations during his
elementary school years. (See, e.g., Macvaugh Report at 48).
Therefore, the Court finds that Petitioner has shown by a preponderance of the evidence
that he satisfies the criteria for a diagnosis of mental retardation within the meaning of Atkins v.
Virginia and Chase v. State, and he is entitled to have his sentence of death vacated.22
Conclusion
For the reasons stated herein, Petitioner is entitled to have his sentence of death vacated
pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Chase v. State, 873 So.2d 1013 (Miss.
21

The Court notes that both examiners also administered the Rey15-Item Memory Test
(“R-FIT”) during their evaluations, which screens for feigned memory impairments. (See
Macvaugh Report at 41; Supp. PCR Ex. 21 ¶ 7D). While Dr. Macvaugh determined that
Petitioner’s score was not indicative of an attempt to malinger memory deficits, Petitioner’s
score on the R-FIT as administered by Dr. Zimmermann was in the range of malingering. (Supp.
PCR Ex. 21 ¶ 12). Dr. Zimmermann concluded, however, that Petitioner’s poor performance
was “a result of his intellectual deficits and not as a result of malingering.” (Id. at ¶ 19).
22

In his federal habeas petition, Petitioner raised additional claims relating to the
sentencing phase of his trial. Because the Court vacates Petitioner’s sentence of death on the
ground of mental retardation, these issues are rendered moot.
23

2004). Accordingly, it is hereby ORDERED that:
1. Relief on Petitioner’s claim of mental retardation is GRANTED, and this Court will issue a
Writ of Habeas Corpus unless, within sixty days of the date the Judgment in this case becomes
final, the State of Mississippi vacates Petitioner’s death sentence and imposes a sentence less than
death.
2. All other federal habeas corpus relief requested by Petitioner is DENIED, and the remaining
claims in the petition are DISMISSED with prejudice.
3. All pending motions are DISMISSED as moot.
4. A separate Judgment in conformity with this Opinion and Order shall issue today.
SO ORDERED, THIS the 26th day of March, 2013.

/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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