Black v. Bell
Filing
161
MEMORANDUM signed by District Judge Todd J. Campbell on 1/22/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BYRON LEWIS BLACK
)
)
)
)
)
)
v.
RONALD COLSON, Warden
Riverbend Maximum Security Prison
NO. 3:00-0764
JUDGE CAMPBELL
DEATH PENALTY CASE
MEMORANDUM
I. Introduction
This case is before the Court on remand from the Sixth Circuit to reconsider the
Petitioner’s claim made pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002). Black v. Bell, 664 F.3d 81 (6th Cir. 2011); (Docket No. 134).1 The Court
heard oral argument on the issue on January 3, 2013. For the reasons set forth herein, the Court
concludes that the Petitioner has failed to carry his burden of demonstrating intellectual
disability2 by a preponderance of the evidence.
II. Factual and Procedural Background
In 1989, Petitioner was convicted in Davidson County Criminal Court of three counts of
first degree murder and one count of burglary in connection with the killing of his girlfriend,
Angela Clay, and her two minor daughters, Lakeisha and Latoya. (See State v. Black, 815
1
The parties indicate that Riverbend Warden Ronald Colson should be substituted for
Ricky Bell as the Respondent in this case.
2
As discussed herein, the term “intellectual disability” has now replaced the term
“mental retardation” for purposes of Petitioner’s Atkins claim. Because the evidence in this case
was obtained prior to this change, however, the Court uses the term “mental retardation” in
discussing the evidence.
S.W.2d 166 (Tenn. 1991); Addendum 12). The Petitioner received a death sentence for the
murder of Lakeisha, consecutive life sentences for the other two murder convictions, and a
fifteen-year sentence for the burglary conviction. Id. Petitioner’s convictions and sentence were
affirmed on direct appeal, and in state post conviction proceedings. Id. (Black v. State, 1999 WL
195299 (Tenn. Crim. App. April 8, 1999); (Addendum 28).
The facts surrounding Petitioner’s convictions were described by the Tennessee Supreme
Court in its opinion on direct appeal as follows:
It appears that these bizarre and tragic murders occurred in the early morning
hours of Monday, March 28, 1988. The bodies of the three victims were found
Monday evening around 9:30 p.m. At the time of the murders, the Defendant was
on weekend furlough from the Metropolitan Workhouse in Davidson County. The
Defendant was serving a two-year sentence, after pleading guilty to malicious
shooting, a felony.
. . . The Defendant was the boyfriend of Angela Clay, who had separated from her
husband, Bennie Clay, about a year before her death. Bennie Clay was the father
of Latoya and Lakeisha. Bennie Clay testified that at the time of Angela Clay's
death, he and Angela were attempting to reconcile, but the Defendant was an
obstacle to the reconciliation. He further testified that Angela began a relationship
with the Defendant after their separation and that at times she was seeing both the
Defendant and himself. In December, 1986, the Defendant and Bennie Clay had
an altercation during a dispute over Angela. As Bennie Clay was returning to his
car, the Defendant shot at him. One shot hit the car, another hit Clay in the right
foot, and another shot hit him in the back of his left arm. The bullet that went
through his left arm lodged under his collar bone. Clay testified that he started
running up the street and the Defendant chased him, continuing to shoot. Clay
was finally unable to run any farther. He fell down, and the Defendant stood over
him and had cocked the gun when Angela Clay ran up to the Defendant and
pushed him away. Angela then took Bennie Clay to the hospital, where he
remained for seven days. The Defendant pled guilty to the shooting and received
the workhouse sentence, which included weekend furloughs.
On Friday afternoon around 5:30 p.m., March 25, 1988, the Defendant was
released from the workhouse on a weekend furlough. He returned to the
workhouse on the evening of Monday, March 28, at approximately 5:15 p.m. after
the murders were committed, but before the bodies were discovered.
2
Angela and her two daughters were last seen Sunday evening around 11 p.m.
Angela's sister, Lenette Bell, had borrowed Angela's car on Sunday. Angela was
employed at Vanderbilt Hospital, where she worked from 1:30 p.m. to 10 p.m.
daily. Lenette Bell arranged to pick up Angela at the hospital at 10 p.m. When
Lenette Bell arrived at the hospital, the Defendant was also waiting there for
Angela. Angela's children, who were with Lenette Bell while their mother was
working, chose to ride with the Defendant and their mother from the hospital. The
Defendant drove Angela and her two daughters to the home of Amelia Bell, the
mother and grandmother of the victims. Ms. Bell testified that the Defendant left
her house in his car, and that her daughter and granddaughters left her house in
her daughter's car about 10:20 p.m. Angela returned about 11 p.m. to pick up an
iron she had forgotten. That was the last time Ms. Bell saw her daughter alive.
Lenette Bell testified that Angela telephoned her at approximately 11:20 p.m. that
evening. That was the last time any of the witnesses spoke to the deceased before
her untimely death.
When Ms. Bell's daughter failed to return the iron the next morning, she
telephoned her daughter but got no answer. She continued to call Angela
throughout the day but received no answer. She became concerned and asked
another daughter to drive to Angela's apartment. No one answered her knocks at
the door. Ms. Bell made other telephone calls to try to locate her daughter and
then went to her daughter's apartment with Lenette Bell, but no one responded to
their knocks on the door. All the shades were drawn and Angela's car was parked
outside of her apartment. It was then they decided to call the police.
The police arrived at approximately 9:30 p.m. on Monday evening, March 28,
1988, and found no signs of forced entry into the apartment; the door was locked.
Officer James was able to open a window after prying off a bedroom window
screen. All the lights were off. He shined a flashlight into a child's room and saw
a pool of blood on the bed and the body of a small child on the floor. He exited
the room, and officers secured the scene.
Investigation revealed the bodies of Angela and her nine year old daughter,
Latoya, in the master bedroom. Angela, who was lying in the bed, had apparently
been shot once in the top of the head as she slept and was rendered unconscious
immediately and died within minutes. Dr. Charles Harlan, Chief Medical
Examiner for Davidson County, testified that she was probably shot from a
distance of six to twelve inches and that her gunshot wound was the type usually
caused by a large caliber bullet.
Latoya's body was found partially on the bed and partially off the bed, wedged
between the bed and a chest of drawers. She had been shot once through the neck
and chest. Blood on her pillow and a bullet hole in the bedding indicated she had
been lying on the bed when shot. Dr. Harlan testified that she was shot from a
3
distance of greater than twenty-four inches from the skin surface. The bullet path
and type of shot indicated that death was not instantaneous but likely occurred
within three to ten minutes after her being shot. Bullet fragments were recovered
from her left lung. Both victims were under the bedcovers when they were shot.
The body of Lakeisha, age six, was found in the second bedroom lying facedown
on the floor next to her bed. She had been shot twice, once in the chest, once in
the pelvic area. Dr. Harlan testified that she had died from bleeding as a result of
a gunshot wound to the chest. She was shot from a distance of six to twelve
inches and died within five to thirty minutes after being shot.
Abrasions on her arm indicated a bullet had grazed her as she sought to protect
herself from the attacker. Bullet holes and blood stains on the bed indicated that
she was lying in bed when shot and had moved from the bed to the floor after
being shot. There were bloody finger marks down the rail running from the head
of the bed to the foot of the bed. The size of the wounds and the absence of bullet
casings indicated that a large caliber revolver had been used to kill the victims.
One projectile was collected from the pillow where Latoya was apparently lying
at the time she was shot. Fragments of projectiles were collected from the wall
above Angela's head; others were collected from the mattress where Lakeisha was
found.
The receiver from the kitchen telephone was found in the master bedroom. The
telephone from the master bedroom was lying in the hallway between the two
bedrooms. The Defendant's fingerprints were the only prints recovered from the
telephones. Two of his fingerprints were found on the phone in the hallway, and
one was on the kitchen telephone receiver found in the master bedroom.
815 S.W.2d at 170-72.
Pursuant to 28 U.S.C. § 2254, Petitioner filed a Petition seeking habeas relief in this case
on August 14, 2000. (Docket No. 1). After appointment of counsel, Petitioner filed an Amended
Petition For Writ Of Habeas Corpus (Docket No. 8) raising numerous grounds, including an
Eighth and Fourteenth Amendment claim that execution of the Petitioner would be cruel and
unusual punishment because he is mentally retarded. The Court subsequently granted summary
judgment to Respondent on all claims, including the mental retardation claim, on December 11,
2001. (Docket Nos. 82, 83).
4
The Petitioner filed an appeal, and while the case was pending, the United States
Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002). In Atkins, the Supreme Court held that executing a mentally retarded
person violates the Eighth Amendment’s ban on cruel and unusual punishment. The Court did
not define the term “mentally retarded,” but left to the states “the task of developing appropriate
ways to enforce the constitutional restriction” upon their execution of sentences. 122 S.Ct. at
2252.
After Atkins was issued, the Sixth Circuit Court of Appeals held its appeal in this case in
abeyance pending a decision by the Tennessee courts on whether Petitioner is mentally retarded.
(Docket No. 91). The Petitioner then moved to reopen his state post conviction proceeding to
raise the mental retardation claim. Black v. State of Tennessee, 2005 WL 2662577 (Tenn. Crim.
App. Oct. 19, 2005). After an evidentiary hearing, the state trial court held that the Petitioner
had not demonstrated mental retardation, and that decision was affirmed on appeal by the
Tennessee Court of Criminal Appeals. Id. The Tennessee Supreme Court denied Petitioner’s
application for permission to appeal. Id.
The Sixth Circuit subsequently remanded the case back to this Court for reconsideration
of Petitioner’s mental retardation claim in this case in light of Atkins. (Docket No. 97). On the
first remand, this Court applied the standard of review set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), and held that the Tennessee courts’ decisions
denying Petitioner’s Atkins claim were entitled to deference. (Docket No. 127). The Petitioner
appealed that decision to the Sixth Circuit on May 21, 2008. (Docket No. 130).
III. The Second Remand of Petitioner’s Atkins Claim
5
On December 15, 2011, the Sixth Circuit issued an opinion vacating the Court’s
judgment regarding the Atkins claim, and remanding the case for further proceedings consistent
with the opinion. Black v. Bell, 664 F.3d at 84.3
In considering the Atkins claim, the appeals court pointed out that capital defendants are
considered “mentally retarded” if they meet the criteria set forth in Tennessee Code Annotated
Section 39-13-203. That statute, which was amended while this case was on appeal to substitute
the term “intellectual disability” for “mental retardation,”4 provides as follows:
(a) As used in this section, "intellectual disability" means:
(1) Significantly subaverage general intellectual functioning as
evidenced by a functional intelligence quotient (I.Q.) of seventy
(70) or below;
(2) Deficits in adaptive behavior; and
(3) The intellectual disability must have been manifested during
the developmental period, or by eighteen (18) years of age.
The statute also provides that the defendant has the burden of demonstrating intellectual
disability by a preponderance of the evidence. Tenn. Code Ann. § 39-13-203(c). Black v. Bell,
664 F.3d at 91.
The appeals court summarized the decisions of the state courts applying this statute as
follows:
The state trial court determined that Black's post-conviction Atkins claim merited
an evidentiary hearing. At this evidentiary hearing, Black had the burden of
showing by a preponderance of the evidence that he met Tennessee's definition of
3
The appeals court affirmed the denial of Petitioner’s non-Atkins claims. 664 F.3d at
84, 106.
4
See 2010 Tenn. Pub. Acts 734.
6
mental retardation under Atkins. After the hearing concluded, the court
summarized what it viewed as the determinative evidence from the voluminous
record and, based on this evidence, denied Black's Atkins claim for
post-conviction relief.
The TCCA affirmed the trial court's rejection of Black's claim. In its ‘Analysis’
section, the TCCA mostly reviewed, without taking a stance on, the conflicting
expert assessments of the factual record. But the TCCA did recognize that,
according to Black's experts, the Flynn Effect and/or the SEM brings his middle
set of I.Q. scores into the mentally retarded range. Based on Howell v. State, 151
S.W.3d 450, 457 (Tenn.2004), however, the TCCA determined that it was
prohibited from considering these scientific concepts in assessing Black's
numerical I.Q. score.
The TCCA's assessment of the factual record also makes clear that it was
skeptical of the opinions of Drs. Globus and Gur regarding when Black's brain
damage occurred. But the TCCA did not go so far as to make a definitive factual
conclusion regarding the date of onset of Black's brain damage. The court also
discounted Dr. Grant's conclusion that Black displayed deficits in his adaptive
behavior because, although Dr. Grant observed that Black had never engaged in a
number of commonplace activities, ‘there is no proof in the record that [Black]
was unable to do these things.’ Black, 2005 WL 2662577, at *15. It also pointed
out that none of Black's childhood I.Q. scores fell in the mentally retarded range.
But the TCCA reached its ultimate conclusion that ‘the proof in the record simply
does not support that [Black's] I.Q. was below seventy or that [Black] had deficits
in his adaptive behavior prior to age eighteen’ without stating which pieces of
evidence were essential to its conclusion. Id. at *17.
664 F.3d at 89-90.
The Sixth Circuit ultimately determined that the decisions of the Tennessee courts were
not entitled to AEDPA deference because they were at odds with Coleman v. State, 341 S.W.3d
221 (Tenn. 2011), a decision issued by the Tennessee Supreme Court while this case was on
appeal, on April 11, 2011. The court determined that unlike the state court decisions in this case,
Coleman required the consideration of evidence regarding the impact of the “Flynn Effect,” the
standard error of measurement (“SEM”), and other factors used by experts in determining a
defendant’s ultimate I.Q. score. 664 F.3d at 92-97. As to the second criterion, the court
7
determined that the state courts had erred because Coleman required that they “look at his
weaknesses instead of at his strengths,” and because they failed to consider the potential
relationship between mental illness and mental retardation in assessing the Petitioner’s deficits in
adaptive behavior. 664 F.3d at 97-100. Consequently, the court concluded that an independent,
de novo review of the record is appropriate. 664 F.3d at 97, 100-01. In a dissent, Judge Boggs
determined that remand was inappropriate, and that the Petitioner should seek to re-open his
prior post conviction proceeding based on the Coleman decision. 664 F.3d at 107-08.5
This Court subsequently considered Petitioner’s request to introduce new evidence, and
denied the request based on the language of the Sixth Circuit’s opinion directing the Court to
“review the record based on the standard set out in Coleman. . .” (Docket No. 150, at 2).
IV. De Novo Review
As directed by the appeals court, this Court undertakes a de novo review of the evidence
admitted at the post conviction proceeding in state court to determine whether the Petitioner has
satisfied the three statutory criteria. That record includes the testimony of Mary SmithsonCraighead, a teacher; Melba Faye Corley, the Petitioner’s sister; Al Dennis, the Petitioner’s high
school football coach; Richard Corley, the Petitioner’s brother-in-law; Petitioner’s experts Dr.
Albert Globus, Dr. Daniel Grant, and Dr. Ruben C. Gur (by deposition); and the State’s experts
Dr. Eric S. Engum and Dr. Susan Vaught. (Docket No. 106 (Addendum 30-31)). The record also
5
In a more recent decision, Keen v. State, ___ S.W.3d ___, ___ n. 13, 2012 WL
6631245 (Tenn. Dec. 20, 2012), the Tennessee Supreme Court held that Coleman did not
establish a new constitutional right to be applied retroactively, and noted its agreement with
Judge Boggs that “‘Coleman decided how a Tennessee state statute should apply to a Tennessee
state court opinion [i.e., Van Tran] decided under the Tennessee state Constitution.’” (quoting
Black v. Bell, 644 F.3d at 107-08 (Boggs, J., dissenting)).
8
includes the affidavits of Dr. Patti van Eys, James Lawler, Ph. D. and Michael Nash, Ph. D.
(Docket No. 106 (Addendum 29, Volume 2 of 3)), and a number of other exhibits, including the
experts’ reports, the Petitioner’s school records, medical records and prison records, and
testimony from the Petitioner’s trial and first post conviction hearing. (Docket No. 106
(Addendum 30)).
As set forth above, in order to demonstrate that he is “intellectually disabled” under
Tennessee Code Annotated Section 39-13-203(a), the Petitioner has the burden of demonstrating
the following criteria by a preponderance of the evidence:
(1) Significantly subaverage general intellectual functioning as evidenced by a
functional intelligence quotient (I.Q.) of seventy (70) or below;
(2) Deficits in adaptive behavior; and
(3) The intellectual disability must have been manifested during the
developmental period, or by eighteen (18) years of age.
The statute requires that all three criteria be met in order to establish “intellectual disability.”
State v. Strode, 232 S.W.3d 1, 18, 2007 WL 2316355 (Tenn. 2007).
The record indicates that the Petitioner was born on March 23, 1956, and was 33 years
old at the time the crimes were committed in 1988. Black v. Bell, 664 F.3d at 84. The Petitioner
was approximately 48 years old when the state court proceedings on mental retardation were
held in 2004. (Docket No. 106)(Addendum 29-31)).
A. IQ of 70 or below prior to age 18
Efficiency and logic suggest that, in this case, the Court consider the first criterion in
conjunction with the third. Accordingly, the Court will first review the record to determine
whether the Petitioner has shown: “Significantly subaverage general intellectual functioning as
9
evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below, . . . manifested
during the developmental period, or by eighteen (18) years of age.” Tenn. Code Ann. § 39-13203(a)(1), (3).
In the state post conviction proceeding on the issue of mental retardation, the parties
introduced evidence of various IQ tests taken by the Petitioner over his lifetime. The Petitioner’s
school records indicate that prior to age 18, he scored as follows:
Date of test
Name of test
Score
1963
1964
1966
1967
1969
Lorge Thorndyke
Unknown
Lorge Thorndyke
Otis
Lorge Thorndyke
Petitioner’s Approximate Age
83
97
92
91
83
7
8
10
11
13
(Docket No. 106 (Addendum 30, Vol. 1, at 233 (testimony by Dr. Grant); Exhibit 1, Exhibit 36)).
Prior to his trial in 1989, the Petitioner’s attorneys retained mental health experts to
evaluate him for competency and sanity. At that time, the Petitioner scored as follows:
Date of test
Name of test
Administered by
Score Pet’s Approx. Age
1989
Shipley-Hartford
Dr. Kenneth Anchor/
Dr. Pat Jaros
76
33
(Id. (Addendum 30, Exhibit 4, at 5-7, 11; Exhibit 25, at 2308-09)).
During the first state post conviction proceeding, Petitioner’s counsel retained different
mental health experts to evaluate his mental status. At that time, the Petitioner scored as follows:
Date of test
Name of test
Administered by
Score Pet’s Approx. Age
1993
1997
WAIS-R
WAIS-R
Dr. Gillian Blair
Dr. Pamela Auble
73
76
37
41
(Id., (Addendum 30, Exhibits 15, 16, 33, 34, 36)).
During the initial habeas proceeding in this Court, still other mental health experts
10
evaluated the Petitioner. At that time, the Petitioner scored as follows:
Date of test
Name of test
Administered by
Score Pet’s Approx. Age
2001
2001
WAIS-III
Stanford-Binet-IV
Dr. Patti van Eys
Dr. Daniel Grant
69
57
45
45
(Id. (Addendum 30, Exhibits 10, 41)).
In summary, the Petitioner did not score 70 or below on an IQ test until 2001, when he
was approximately 45 years old. The Petitioner argues that the test scores prior to that date are
invalid, or the scores should be adjusted downward for various reasons. As for the IQ tests
administered during his years in school, the Petitioner argues that those tests should not be
considered at all because they were group-administered tests, which are less reliable than
individually-administered IQ tests. Indeed, the experts on both sides indicated that testing an
individual one-on-one was the preferred method for measuring IQ. (Docket No. 106 (Addendum
30, Vol. 2, at 234-236, 300, 372-73)). There is no support in the record, however, for completely
disregarding all group-administered tests. Instead, the group setting goes to the “weight” to be
given the test score. As Dr. Engum explained:
Q.
What significance, if any, do you place on the tests scores administered,
and tests scores he received when he was in school? Are those to be
considered?
A.
Oh, absolutely.
Q.
Or how much weight, if any, do you give those?
A.
I think they’re (sic) two answers to your question. Number 1, I
fully agree with Dr. Grant, that group administered IQ test[s] are
not as accurate as individually administered IQ test[s]. That is,
they have a greater standard error of measurement. On the other
hand, they’re utilized in a number of settings to determine how
children are functioning. . . You might say the standard error of
measurement on the Wechsler Adult Intelligence Skill, Third
11
Edition, is plus or minus five points, roughly. On a group
administered IQ test, it may be plus or minor (sic) eight points. So
it’s not as accurate. The place where you really get into some
question is, if you have a group administered IQ test let’s say, 73,
then I wouldn’t make a diagnosis of borderline versus mental
retardation on that score. I would send him out for further testing.
But where the test scores are substantially higher, I don’t see that
there’s any reason to suspect that he was mentally retarded; and, in
fact, the school authorities did not see him in that way.
(Id., at 372-74). Applying the eight-point SEM suggested by Dr. Engum to reduce the
Petitioner’s IQ scores prior to age 18 results in a range from 75 to 89, still comfortably above the
statutory criteria of 70 or below.
The Petitioner also argues that the school test scores should be discounted because the
Petitioner was in a low-performing school, and that the teachers were under pressure to inflate
the test scores. Petitioner bases this argument on the testimony of Mary Smithson-Craighead,
who taught at Head School in Nashville from 1953 to 1965, when she became the coordinator of
the Nashville Educational Improvement Project. (Docket No. 106 (Addendum 30, Vol. 1, at 2425)). At that time, Ms. Smithson-Craighead moved to Carter Lawrence, the Petitioner’s school,
for two years, where she supervised kindergarten through third grade, but was not one of the
Petitioner’s teachers. (Id., at 26, 31-33, 53-54). According to Ms. Smithson-Craighead, Carter
Lawrence was a segregated school and one of the schools that needed the most help. (Id.) She
made the following statement about standardized testing:
Q.
And what were your observations of the way that standard tests were
given?
A.
They were given, by the greater part, they were given exactly by
direction. But being human, teachers who had, if they’ve been
working with a child during the year, and that child was doing all
that he or she could do; the teacher, when they tested that child
may come around and say, well, take so-and-so, and give him a
12
little bit of extra help. Just because they like the child. And they
realized a child had been doing all that he or she could do. And
they’d be, well, do so-and-so, which was really against the
directions of the test. It simply, really, made the testing invalid,
but the test goes on with a group of tests. And that’s it.
(Id., at 37). Ms. Smithson-Craighead later testified that the IQ tests given at the school were
administered individually by a psychologist from the District Office, but the experts who
testified opined that she was mistaken about that. (Id., at 49-51, 234).
The Court is not persuaded that this testimony warrants the discounting of Petitioner’s
school test scores. Ms. Smithson-Craighead’s testimony does not include any time frame for the
incidents she described, nor any specific information regarding the names of the teachers
involved, the grade level of the classes involved, or whether she was referring to an achievement
test, an IQ test, or some other test. Certainly, her testimony does not support the conclusion,
apparently accepted by some of Petitioner’s experts, that the Petitioner’s scores were inflated on
each of his IQ tests because his teachers helped him choose the correct answers. As for the
performance level of the school, as Dr. Engum pointed out, the scores reflect a comparison of
children across the country and is independent of the school system. (Docket No. 106
(Addendum 30, vol. 2, at 410-11, 422-23)).
Petitioner’s experts also questioned the reliability of the school test scores by pointing
out that the Petitioner failed the second grade, and the results would be skewed upward if the
Petitioner’s answers were compared with younger children in the same grade. (Id., at 301-02;
335-37). But there is no evidence that the tests were scored by grade rather than age. (Id., at
417). Even so, Dr. Vaught testified that the results would not be dramatic because there would
only be a year’s difference in the comparison. (Docket No. 106 (Addendum 30, vol. 3, at 637,
13
639)).
Weighing against the Petitioner’s arguments for reductions of his school test scores is the
expert testimony that IQ tests tended to underestimate the intelligence of African American
children in the 1960s. (Id., vol. 1, at 309, 369; vol. 3, at 537-38). According to Dr. Vaught, this
cultural bias “was one of the reasons why that diagnostic criterion was changed back in the ‘70s,
from one standard deviations (sic) to two standard deviations below the mean.” (Id., vol. 3, at
537).
Petitioner argues that his later scores, from 1993 and 1997, should be adjusted downward
based on the “Flynn Effect.” Dr. Grant explained that the Flynn Effect recognizes that after an
IQ test is released it begins to age because the general population’s level of knowledge increases
over time, such that for every three years after the test is released, the norm IQ is inflated by one
point. (Docket No. 106 (Addendum 30, vol. 1, at 239-45)). Based on this research, Dr. Grant
deducted four points from the Petitioner’s test score of 73 in 1993 and arrived at a score of 69;
and deducted five points from Petitioner’s score of 76 in 1997 for a score of 71. (Id., at 243-44).
Dr. Grant did not use this theory to reduce the school IQ scores obtained from 1963 to 1969
before the Petitioner reached age 18. (Id., vol. 2, at 324). Dr. Grant relied on several articles to
support his conclusion. (Id., at 239-42; vol. 2, at 322-27).
To support application of the Flynn Effect, the Petitioner also filed an affidavit of
Dr. Patti van Eys, which stated that the Flynn Effect is broadly accepted by the psychological
community, but unlike Dr. Grant, she did not rely on that concept to retroactively reduce the
Petitioner’s test scores. (Docket No. 106 (Addendum 29)). Indeed, Dr. Engum and Dr. Vaught
testified that, while the Flynn Effect supports the need to re-norm an IQ test over time, and is
14
something to be considered in reviewing a person’s test scores, there is no scientific support for
retroactively reducing a particular test score based on the Flynn Effect. (Id., at 374-76, 446-49,
462-68; vol. 3, at 538-39; 599-605). As Dr. Vaught explained:
I’m aware of the Flynn Effect, and I think most people are aware of that effect.
However, it’s not standard of practice to correct for it, in terms of looking at an
IQ score. Again, you’re aware of it. What the standard of practices (sic) to deal
with the standard error of measurement on the instrument, which is the likelihood
of a person getting a score within a certain range, the next time you administer it.
That’s the correction most people are willing to use. And that’s the one in
common usage among clinicians who do this for a living.
(Id., at 538-39).
The Court notes that the experts who administered the tests in 1993 and 1997 did not
reduce the Petitioner’s scores based on the Flynn Effect in light of the age of the tests they
administered. In addition, the articles relied on by Dr. Grant describing the Flynn Effect do not
appear to suggest the reduction of individual test scores as a scientifically valid remedy. (Docket
No. 106 (Addendum 30 - Exhibit 11)).
Nevertheless, the Court will consider Dr. Grant’s reduction of individual test scores
based on the Flynn Effect. Dr. Grant applied that reduction only to test scores from 1993 and
1997, however, which were obtained when the Petitioner was 37 and 41 years old, respectively.
The six test scores obtained prior to that time were not at or below 70. Thus, application of the
Flynn Effect in this case provides weak support for the statutory requirement that the Petitioner
have scores at or below 70 before he turned age 18.
The Petitioner also argues that the standard error of measurement should be applied to
reduce Petitioner’s test scores. Indeed, there was support from the experts on both sides for
considering the SEM in reviewing test scores. (Docket No. 106 (Addendum 30, vol. 1, at 231-33;
15
vol. 3, at 538-39)). The SEM is applied in recognition of the fact that the test is not perfect, and
according to Dr. Grant, the SEM for IQ tests is from one to five points, depending on the test.
(Id., vol. 1, at 231-32). The Court notes, however, that the SEM does not require that test scores
only be reduced, nor does it require that five points be used for every test. (Id., vol. 2, at 431). In
any event, even if the Court applies an SEM of eight points to reduce all of the Petitioner’s test
scores in school, as discussed above, the lowest score would be 75. Although applying the SEM
to reduce Petitioner’s later scores may bring him closer to the statutory criteria, those scores
provide weak support for the proposition that the Petitioner had scores at or below 70 before he
turned age 18.
The Sixth Circuit criticized the state courts for failing to resolve “which set of scores
most accurately reflects Black’s level of intelligence by the time he was 18 years of age.” 664
F.3d at 87. This Court has fully reviewed the record in this case, has fully considered the “Flynn
Effect,” the SEM, and other factors weighing on the accuracy of the test scores, and for the
reasons set forth above, specifically finds that the tests taken by the Petitioner in school6 most
accurately reflect the Petitioner’s level of intelligence by the time he was 18 years of age.
Petitioner also argues that the results of his brain scans showing an abnormal brain
further support the contention that he satisfied the statutory criteria by age 18. As a result of
sophisticated imaging of the Petitioner’s brain, Dr. Gur testified that the Petitioner had
abnormally enlarged ventricles. (Docket No. 106 (Addendum 31, at 48-52, 60-61)). According
to Dr. Gur, this damage would affect a person’s ability to control aggression and to consider the
6
As set forth above, those tests were taken from 1963 to 1969, and produced scores
ranging from 83 to 97.
16
outcome of his or her actions. (Id., at 72-73). Because of that brain damage, Dr. Gur opined that
the Petitioner was mentally retarded, though he admitted that he is not an expert in mental
retardation. (Id., at 102-03, 105-06). As to the cause of the brain damage, Dr. Gur testified that
the damage would be consistent with that experienced by children whose mothers abused alcohol
during pregnancy. (Id., at 99-102). Dr. Gur also opined, however, that the damage could also be
caused by alcoholism in adults, lead poisoning, head injuries from football, and other conditions.
(Id., at 105, 113-16). In discussing possible causes, he testified:
Q.
So just looking at all these possible causes along with your probable
cause, there’s really no way to say exactly what has caused the brain
damage that you’re saying that Mr. Black has with your findings?
A.
Really, there isn’t. I –
Q.
Now, another kind of similar but – as far as timing, again your probable cause is
maybe the fetal alcohol syndrome or lead poisoning, or something, he fell down,
or ate dirt. You know, a lot of different things were mentioned in these reports
that possibly could have caused some brain damage.
A.
Uh-huh.
Q.
But again, with timing, is there any way to tell exactly what time in his life that
this happened?
A.
No. The only –
Q.
I’m sorry. Go ahead, Doctor.
A.
What you can say is that this kind of a brain doesn’t happen overnight. . .
(Id., at 116). Dr. Gur later testified that he would “absolutely agree” that he could not determine
whether someone is mentally retarded simply by looking at the brain scans alone. (Id., at 12223).
Dr. Globus also opined that Petitioner’s brain damage was possibly caused by the
17
Petitioner’s mother’s consumption of alcohol during pregnancy, playing football, or lead
poisoning. (Id., at 159-62; 259-62; 265-66). Dr. Globus admitted, however, that the brain scans
do not reveal the cause of the brain damage. (Id., at 274). In determining whether the brain
injury could have resulted from a deficiency in adulthood, Dr. Globus testified that “there’s a
rule of medicine, that you take the simplest explanation that fits the facts.” (Id., at 275).7
Although Dr. Gur and Dr. Globus relied on the “fact” that the Petitioner’s mother drank
during her pregnancy, they did not cite to the particular information upon which they relied. The
Court has reviewed the record of the post conviction hearing on the issue of mental retardation
for evidence about alcohol consumption by the Petitioner’s mother during pregnancy. That topic
was discussed by Petitioner’s aunt, Alberta Crawford, during her testimony in the first post
conviction proceeding. (Docket No. 106 (Addendum 30 - Exhibit 22)). Ms. Crawford testified
that she is 13 years younger than the Petitioner’s mother, Julia, who was 34 when she was
pregnant with the Petitioner. (Id., at 526). Ms. Crawford testified that she and Julia
“occasionally” went out and drank alcoholic beverages, specifically scotch. (Id., at 527). As for
drinking while she was pregnant, Ms. Crawford testified:
Q.
Okay. Did your sister’s drinking patterns ever change during the period of
time she was pregnant?
A.
That I can’t remember.
Q.
Did she ever stop drinking and say, I’m pregnant, I can’t drink? Do you recall
that at all?
7
Dr. Globus also testified that his opinion was based on Petitioner’s lack of exposure to
other potential causes after his arrest and incarceration. (Id., at 188-89). He did not discuss the
13 to 14-year time span between the time the Petitioner turned 18 and the time of his arrest and
incarceration.
18
A.
I can’t recall that, either. Because I wasn’t around her, you know, after I
got to be in high school and out of high school I wasn’t with her all the
time. So I really don’t know.
Q.
Well, after you were out of high school, though, you still continued to go
socialize with her, correct?
A.
Not all the time. Like I said, I wanted to go to a nightclub and I chose her to carry
me because I didn’t have anybody else to carry me. And I wanted to go to the
ball park to see my brother play ball and I would go with her. Not just by herself.
It was other people too.
(Id., at 528-29).
Petitioner’s sister, Melba Faye Corley, who was approximately seven years old when her
mother was pregnant with the Petitioner, testified about her mother’s drinking:
Q.
What do you remember about your mother and her drinking of alcoholic
beverages?
A.
Well, she was a member of like a little social club, and they would
have like little dances and things. And they would get together
and fix food, and they would have their own BYOB’s, Bring Your
Own Bottle, but it wasn’t every month like that.
Q.
Okay. Do you know if she changed this behavior during – you were in the
household when your mother was pregnant with both, your brother, Byron Black,
and also with your sister, Frieda Black correct?
A.
Correct.
Q.
Do you remember anything about your mother’s drinking when she was
pregnant?
A.
She still drank, but I don’t think it was ever stopped.
(Docket No. 106 (Addendum 30, vol. 1, at 80-81)).
Petitioner’s uncle, Finas Black, was also questioned about the subject at the state post
conviction hearing. (Docket No. 106 (Addendum 30 - Exhibit 38)). Mr. Black testified that he
was one of ten siblings of the Petitioner’s mother, Julia, and that he was twenty, twenty-five or
19
thirty years younger than Julia. (Id., at 513, 515). He also testified that he was about eight or
nine when the Petitioner was born. (Id., at 516). Mr. Black said that he recalled Julia drinking
“multiple drinks” of scotch “mostly on the weekends.” (Id., at 518-19). He went on to testify:
Q.
And when – to your recollection or do you know whether or not your sister Julia
Mae stopped drinking during when she was pregnant either with Byron or with
Frieda [Petitioner’s younger sister]?
A.
No, I wouldn’t say so.
Q.
You would say she didn’t.
A.
Right. She didn’t.
Q.
And do you know whether or not she breast-fed Byron for a while after he was
born?
A.
Yes, she did.
Q.
Did she stop drinking during that period of time?
A.
No, I wouldn’t think so.
Q.
And your sister Julia Mae was sort of known as a partier, is that a fair statement?
A.
Yes, yeah.
(Id., at 519-20).
The testimony of Petitioner’s mother, Julia Black, from the trial was admitted as an
exhibit, but the question of whether she drank while pregnant with the Petitioner was not
addressed during her testimony. (Docket No. 106 (Addendum 30 - Exhibit 15)).
To the extent Dr. Gur and Dr. Globus based their opinion of Fetal Alcohol Syndrome or
Fetal Alcohol Effects on the testimony of adults recalling events that took place when they were
seven to nine years old, their opinions regarding the cause of Petitioner’s brain damage are not
particularly persuasive. Dr. Engum’s testimony pointed to the conjecture underlying these
20
opinions:
Q.
And you believe, of course, that some of that analysis of people like Dr. Globus,
who’s a neurologist and Dr. Gur, who does brain imaging?
A.
Right. But everybody’s speculating about how much alcohol the mother drank.
And I don’t think that we really know that. I don’t know. And I understand the
mother is now deceased.
Q.
But we do have proof from witnesses that have testified, at the various parts of
this case, that she drank weekends; she didn’t stop during pregnancy.
A.
I’ve seen that testimony. Again, I will just tell you, there are some people that
tend to minimize her alcohol consumption. There are some people who seek to
maximize it. I don’t know how much she drank. It’s in the realm of conjecture.
(Docket No. 106 (Addendum 30, vol. 2, at 475-76)).
Also weighing against the opinion that Petitioner’s brain was damaged at birth is the
absence of medical records from Petitioner’s pediatricians at Vanderbilt University Hospital
revealing developmental concerns. (Docket No. 106 (Addendum 30 - Exhibits 7, 36)). Dr.
Vaught testified that the “typical developmental impairments that you would see from Fetal
Alcohol Effects or Fetal Alcohol Syndrome, apparently, were not present in this individual. He
didn’t have the milestone failures or be identified (sic) by his pediatricians as standing out like
that.” (Docket No. 106 (Addendum 30, vol. 3, at 625-26)).
Indeed, the Petitioner was not diagnosed as having mental retardation until he was 45
years of age, in 2001, as part of this litigation, though he was evaluated by numerous experts
before that time. Dr. Kenneth Anchor, who was hired by the defense before the trial in 1989,
testified that the Petitioner scored a 76 IQ, and opined that he suffered from a delusional disorder
and was not competent to stand trial. (Docket No. 106 (Addendum 30, Exhibits 4 and 5)). Dr.
Leonard Morgan and Dr. Bradley Diner testified that the Petitioner was competent, that he was
21
at the lower end or the normal intelligence range, but not mentally retarded, and that he may
have a personality disorder. (Id., at Exhibits 6-9). Dr. William Kenner, appointed by the trial
court, also testified that the Petitioner was competent, was not mentally retarded, and that he may
have a personality disorder. (Id., at Exhibit 12). At the penalty phase, the defense called Dr. Pat
Jaros, who testified that she worked with Dr. Anchor in evaluating the Petitioner, and found the
IQ score of 76 to be:
. . . just about right. I thought what came out on the I.Q. score was – there are
some factors functioning here, perhaps some level of cultural deprivation or the
people he grew up around perhaps had the same kind of grammar and syntax that
he was exhibiting. Perhaps some of those factors, just sub-cultural influences
may have been operating. But I thought the level that was obtained by the I.Q.
test seemed pretty accurate.
(Id., at Exhibit 25, at 2310; Exhibit 26). All of these experts interviewed and/or tested the
Petitioner before rendering their opinions.
Dr. Gillian Blair tested the Petitioner in 1993 and prepared a report indicating that the
Petitioner scored a 73 IQ. (Id., at Exhibit 37). Dr. Pamela Auble, who was hired by the defense
for the post conviction hearing in 1997, testified that she administered an extensive battery of
tests, and that the Petitioner scored a 76 IQ. (Docket No. 106 (Addendum 30, Exhibits 33 and
34)). Dr. Auble also expressed concerns about the Petitioner’s competence and possible brain
damage. (Id.) Also in 1997, Dr. William Bernet testified that the Petitioner had a form of
amnesia, and called for additional testing to determine the cause. (Id., at Exhibits 39 and 40).
All of these experts interviewed and/or tested the Petitioner before rendering their opinions.
As stated above, Dr. Globus, Dr. Gur, Dr. Grant and Dr. van Eys rendered their opinions
of mental retardation some time later, in 2001, when the Petitioner was 45 years old. Based on
all the evidence set forth above, and the entire record, the Court specifically finds that although
22
the Petitioner may currently have a brain injury, the testimony of Petitioner’s experts that the
Petitioner’s brain injury occurred prior to age 18 is not persuasive.
In summary, the Court concludes that the Petitioner has not shown significantly
subaverage general intellectual functioning as evidenced by a functional IQ of 70 or below
manifested by age 18. In reaching its decision, the Court makes no finding, and finds it
unnecessary to make a finding, as to why the Petitioner’s test scores have declined over time –
whether due to motivation or brain injury.8
B. Deficits in adaptive behavior prior to age 18
The second criterion, considered in conjunction with the third, requires the Court to
examine whether the Petitioner has shown: “deficits in adaptive behavior . . . manifested during
the developmental period, or by eighteen (18) years of age.” Tenn. Code Ann. § 39-13203(a)(2), (3). The Tennessee Supreme Court has described this requirement to mean “the
inability of an individual to behave so as to adapt to the surrounding circumstances.” Coleman,
341 S.W.2d at 248 (quoting State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994)). The appeals
court quoted a definition for the second criterion that has been applied by the Tennessee courts:
The second part of the definition – 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, socio-cultural background, and community setting. As discussed, a
mentally retarded person will have significant limitations in at least two of the
following basic skills: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety. Influences on adaptive functioning may include
the individual's education, motivation, personality characteristics, social and
vocational opportunities, and the mental disorders and general medical conditions
8
The Court also makes no finding as to whether the Petitioner is competent to be
executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
23
that may coexist with Mental Retardation.
Black v. Bell, 664 F.3d at 98.
Dr. Grant testified that the tests he administered in 2001 showed the Petitioner had
deficits in adaptive behavior. (Docket No. 106 (Addendum 30, vol. 1, at 221-24)). Dr. Grant
based his determination that the Petitioner had adaptive deficits prior to age 18 on the following:
Q.
. . . What can you show, from your evaluation, that establishes that Mr.
Black was in fact mentally retarded before the age 18?
A.
I think there are several things: One, there are some findings from
Dr. Globus and Dr. Gur, were that, from Dr. Globus’ testimony is
that there are some abnormalities in the brain that can best be
explained through the things that happened early in life. We have
the Coach’s testimony that he had difficulty following plays, it
took more time. We also know that he repeated a grade. That the
Differential Aptitude Test score put him with the 1 percentile.
Although, we do have other scores that put him much higher, we
have testimony that stems from that regional school: It was a very
impoverished school; no one left the school that was at grade level;
that was also a school chosen for the Ford Grant. I think that’s the
majority of what I can think of right now.
(Docket No. 106 (Addendum 30, vol. 2, at 285-86)). According to Dr. Grant, those with mental
retardation can acquire academic skills up to the sixth grade level by their late teens. (Id., at
287).9 Because he had such strong family support, Dr. Grant testified, he was able to blend into
the population in his adult years. (Id.)
In terms of family support, Petitioner’s sister, Ms. Corley, testified that she and the
Petitioner lived with their mother and three other sisters in the home of their grandparents, and
9
Dr. Engum testified, on the other hand, that only “an exceptional mentally retarded
individual” could perform at that level. (Docket No. 106 (Addendum 30, vol. 2, at 482)). Dr.
Vaught testified: “Most of my mild mentally retarded patients function between the 3rd and 5th
grades. Some, exceptional ones, achieve the 5th to 6th grade criteria.” (Docket No. 106
(Addendum 30, vol. 3, at 573)).
24
that the Petitioner and his grandfather were the only males in the household:
Q.
What type of chores did Byron have to do in the home to your observation?
A.
Well, I know he didn’t do any cooking, because that was, basically all the – my
grandmother’s job, and mine, my mother’s. He didn’t really have any particular
chores that I remember him doing in particular.
Q.
What about things like ironing his clothes or cleaning his clothes.
Did he have any responsibilities there?
A.
No. That was all done by the ladies.
Q.
What about things like washing the dishes?
A.
No.
Q.
And mowing lawns, did he ever do anything like that as a kid?
A.
Huh-huh. That was basically done by, any lawn mowing done was
done by my grandfather.
(Id., at 78, 89-90). Ms. Corley was not asked whether the Petitioner had tried to cook, do laundry
or mow the lawn, and found he was unable to do so.
Ms. Corley went on to state that the Petitioner took pride in his personal appearance as a
child. (Id., at 92-93). She recalled that the Petitioner could read and write, and “[a]s far as I
remember, he wasn’t a slow learner at that time.” (Id., at 98-99). On cross-examination, Ms.
Corley said that neither she nor her family members noticed anything odd about the Petitioner
during his childhood that made them think he may be retarded or mentally ill. (Id., at 88).
The Petitioner has also relied on the testimony of Al Dennis, who coached football at
Hume-Fogg High School while the Petitioner attended there, regarding his memory of the
Petitioner:
Well, one thing I discovered, I remembered that when he, as a senior, he
25
weighed 150 pounds, and he was 5' 8 tall. So he wasn’t very big. But he was an
outstanding defensive player of all three years that he played for me. His senior
year, he was third on the team in tackles, and assists in tackles.
Now, offense is a different story. His sophomore year, he carried the ball one
time. His junior year, he carried it twice. And the third year, we had an
outstanding team we won the Division A, Class A, Championship. And we won
several games by a fairly good margin. And we go to use back-up runners more
than we normally did. And Byron ran the ball a number of times and scored
several touchdowns. He’s a good athlete. Good athlete.
(Docket No. 106 (Addendum 30, vol. 1, at 103-04)). Mr. Dennis testified that the offense he ran
was a lot more complicated than the defense, and “I think that’s probably why Byron didn’t play
more than he did, because it was difficult for him to learn the plays.” (Id., at 104-05). Mr.
Dennis also testified that he always remembers the Petitioner as smiling all the time, even in
response to criticism. (Id., at 106).
On the other hand, Petitioner’s brother, Thomas Black, testified that the Petitioner:
. . . was a very responsible child. There was a lot of things about him, like he was
always neat. He always helped out. He always had some little job or something
like this when he was coming up. A lot of that was influence from my
grandfather.
(Docket No. 106 (Addendum 30 – Exhibit 20, at 2259)). When asked why the Petitioner did not
move out of the family home as an adult, Petitioner’s sister, Arletta Delores Black, testified: “I’d
say maybe he just didn’t want the responsibility, I guess. I really don’t know.” (Docket No. 106
(Addendum 30 – Exhibit 21, at 2265)).
Dr. Engum and Dr. Vaught considered this testimony and other information in reaching
the opinion that the Petitioner did not show deficits in adaptive behavior prior to age 18. Dr.
Engum testified that he did not find evidence of such deficits:
I could not find that there were any indications that he was not functioning like a
child within his culture, in his community. He went to school. Admittedly, he
26
was not the best student; I think I indicated that. But he did from, everything I
can determine, graduate high school. He basically, his grades fluctuated. There
was some D’s. There were some C’s. I can’t speak to the quality of the school that
he went to, but he did graduate. He played football. He appeared to be involved
in those kinds of activities. I did not see any deficits or any mention of peer
relationships, behavioral problems, problems attributable to Attention Deficit
Disorder, problems attributable to any kind of learning disability.
Again, there doesn’t appear to be any individualized assessment by school
psychologists. There’s no indication of any significant problems with juvenile
authorities when he was growing up. There don’t appear to be any unusual
behavioral problems of any type, prior to age 18.
As I look through the testimony of the individuals during mitigation: Everybody
said, as a matter of fact, teachers commented upon him as being one of her
brighter children. Apparently, people in the community recognized him as
somebody who is helpful. Always smiling. Always involved in things. There just
did not appear to be any major deficits.
Frankly, I think it’s conjecture to sit there and say, well, people compensated
for him, because there’s no evidence in the records that anybody was
compensating for, or setting limitations on him, or restricting his activities, as you
would with somebody who might be mentally retarded.
(Docket No. 106 (Addendum 30, vol. 2, at 378-80)).
Dr. Vaught testified that she applied the framework suggested by the AAMR (“American
Association on Mental Retardation”) in examining whether the Petitioner had deficits in adaptive
behavior, which focuses on three general areas: Conceptual, Social and Practical. (Docket No.
106 (Addendum 30, vol. 3, at 549-50)). Dr. Vaught explained that:
Mr. Black’s childhood history did not follow the pattern that I typically find for
a person with mild mental retardation who has escaped diagnosis. His family was
not raising the issue, and commented on him being normally developing, even
motivated, industrious.
Then he was receiving care through Vanderbilt University Medical Center
Pediatrics. They were treating him off-and-on for a skin condition. They didn’t
raise the question of the developmental impairment and they should, you know,
would. Vanderbilt is very much in the know about those things. And that, also,
got my attention that none of the physicians treating him raised that condition.
27
And he did have contact with the medical establishment. A lot of impoverished
families don’t. And so I don’t have that data point. But in his case, he had
doctor-contact, and they didn’t raise the issue.
He proceeded through school, intermittent difficulty, graduated with a normal
diploma. . . . He was not remembered by his family or his teachers as being slow.
(Id., at 571-72). Dr. Vaught also pointed out that the Petitioner experienced the stress of a
football injury, the birth of his first child and the death of one of his teachers while in high
school, and he was still able to graduate. (Id., at 573-74). Dr. Vaught testified that “I have very
rarely, if ever, seen a person with mild mental retardation make it through high school with no
assistance like that, and they’ve managed to get a regular diploma.” (Id., at 574). Dr. Vaught
testified that while the DAT (“Differential Aptitude Test”) scores, referenced by Dr. Grant, were
low, they were not at the level typically associated with mental retardation. (Id., vol. 3, at 57375).
The Petitioner attacks the validity of the findings made by Dr. Engum and Dr. Vaught
based on their failure to interview and test the Petitioner. Dr. Engum explained that he decided
not to conduct further testing because he thought the Petitioner was probably “test-wise” and
“test-weary,” and because the real inquiry is whether he met the statutory criteria at age 18, not
at his current age. (Docket No. 106 (Addendum 30, vol. 2, at 367)). Dr. Engum further
explained: “So, again, to do testing now is, in my mind, almost irrelevant and in (sic) somewhat
misleading, because of, potentially, other intervening variables.” (Id., at 510). Dr. Vaught
testified that she did not interview the Petitioner primarily because “I didn’t feel like I would add
anything, because I already had, in my review of the records, determined that his adaptive
functioning was higher than to be expected for a person with mental retardation. And that, I
28
could not find any evidence that the problems onset before age 18.” (Id., at 535).10
The Court finds that the opinions of Dr. Engum and Dr. Vaught are not undermined by
their failure to interview and/or test the Petitioner at age 45 regarding whether he was
intellectually disabled prior to age 18. As discussed above, the record indicates that the
Petitioner was interviewed and/or tested by at least eight different mental health experts prior to
the latest round of testing in 2001.
Both sides point to Petitioner’s life after age 18 to support their argument that the
Petitioner did or did not have deficits in adaptive behavior. The Respondent refers to evidence
that includes indications that the Petitioner obtained a drivers’ license, bought and maintained a
car, held a job for nine years, and made intelligent statements to police during questioning. The
evidence cited by Petitioner includes testimony that he always lived with his mother, did not pay
child support, and performed menial tasks at his job. Having fully reviewed this and all the
evidence in the record, the Court maintains its opinion that the Petitioner has not shown deficits
in adaptive behavior prior to age 18.
In considering whether the record establishes deficits in adaptive behavior, the Sixth
Circuit directed this Court to “‘focus on Defendant’s deficits, not his abilities,’” 664 F.3d at 99
(quoting United States v. Lewis, No. 1:08 CR 404, 2010 WL 5418901, at *30 (N.D. Ohio Dec.
23, 2010)), and to “look at his weaknesses instead of at his strengths.” Id. A full, independent
review of the record persuades this Court that the Petitioner has not shown weaknesses or
10
The Court notes Dr. Vaught’s testimony that “I cautioned this man [the State’s
attorney] when he came to me: If I could, you know, find that this man is mentally retarded and
keep him from being executed, I’m going to do it, you just need to understand that.” (Id., at 602).
Consequently, Dr. Vaught gave the Petitioner “the benefit of the doubt” that his current testing
showed mental retardation. (Id., at 599-602; 539-44).
29
deficits in his adaptive behavior prior to age 18 within the meaning of the statute.
The Sixth Circuit also directed the Court to consider that deficits in adaptive functioning
can be caused by both mental retardation and mental illness: “mental retardation and any number
of other factors may coexist as comorbid causes of a defendant’s deficient adaptive functioning.”
664 F.3d at 99-100.11 Because the Court does not find any deficits in adaptive function within
the meaning of the statute prior to age 18, it is unnecessary to determine whether such deficits
were caused by mental retardation, mental illness, or both.
In conclusion, the Court has fully considered the evidence in the state court record in
applying the criteria set forth in Tenn. Code Ann. § 39-13-203, and concludes that the Petitioner
has not met his burden of proving intellectual disability by a preponderance of the evidence.
V. Conclusion
For the reasons set forth above, the Court concludes that the Petitioner has not
established that he is intellectually disabled by a preponderance of the evidence.
The Court concludes that Petitioner has made a substantial showing of the denial of a
constitutional right as to his mental retardation claim, and reasonable jurists could find the
Court’s assessment of the constitutional claim debatable. See, e.g., Castro v. United States, 310
F.3d 900 (6th Cir. 2002). Accordingly, the Court will issue a certificate of appealability on
11
Dr. Vaught’s testimony that mental retardation has nothing to do with mental illness,
read in context, relates to her criticism of Dr. Grant’s statement that mental retardation is a form
of mental illness. (Docket No. 106 (Addendum 30, vol. 3, at 579-80)). In making this statement,
Dr. Vaught was not addressing the cause of any deficits in Petitioner’s adaptive behavior
because she did not find any deficits within the meaning of the statute prior to age 18. (Id., at
583). Throughout her testimony, Dr. Vaught explained that the bad choices made by the
Petitioner later in life, though they did not indicate deficits during the developmental period,
may have had to do with personality issues.
30
Petitioner’s mental retardation claim under Atkins v. Virginia, 536 U.S. 304 (2002).
It is so ORDERED.
________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
31
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