       United States Court of Appeals
                     For the Eighth Circuit
                 ___________________________

                         No. 02-3103
                 ___________________________

                              Andrew Sasser
  llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
                  lllllllllllllllPetitioner - Appellant
  llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
                                        v.
  llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
Ray Hobbs, Director, Arkansas Department of Corrections
  llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
                 lllllllllllllllRespondent - Appellee

                 ___________________________

                         No. 11-3346
                 ___________________________

                              Andrew Sasser

               lllllllllllllllllllllPetitioner - Appellant

                                       v.

Ray Hobbs, Director, Arkansas Department of Corrections

               lllllllllllllllllllllRespondent - Appellee

                              ____________

            Appeal from United States District Court
       for the Western District of Arkansas - Texarkana
                        ____________
                           Submitted: November 14, 2012
                             Filed: November 15, 2013
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
                             ____________
RILEY, Chief Judge.

       We consider Andrew Sasser’s death penalty appeal for the third time. After an
Arkansas jury sentenced Sasser to death in 1994 for capital murder, he lost his
Arkansas direct appeal in 1995 and his effort to obtain postconviction relief in
Arkansas state court in 1999. See Sasser v. State, 993 S.W.2d 901, 903 (Ark. 1999)
(per curiam) (Sasser 1999); Sasser v. State, 902 S.W.2d 773, 774, 779 (Ark. 1995)
(Sasser 1995). In 2000, Sasser filed the federal habeas petition from which this
appeal arises. The district court dismissed the petition, but granted Sasser a
certificate of appealability on several issues.

       While Sasser’s initial appeal to our court was pending, the Supreme Court
decided in Atkins v. Virginia, 536 U.S. 304, 321 (2002), that the Eighth Amendment
prohibits the execution of mentally retarded individuals. Retaining jurisdiction over
the bulk of Sasser’s case, we ordered the district court to determine in the first
instance whether Atkins made Sasser ineligible for the death penalty. Without an
evidentiary hearing, the district court denied Sasser relief, finding he had procedurally
defaulted on his Eighth Amendment mental retardation claim. Considering Sasser’s
case for the second time, we reversed and remanded “for an Atkins evidentiary
hearing to adjudicate the merits of Sasser’s mental retardation claim.” Sasser v.
Norris, 553 F.3d 1121, 1122 (8th Cir. 2009) (Sasser I), abrogated on other grounds
by Wood v. Milyard, 566 U.S. ___, ___, 132 S. Ct. 1826, 1834 (2012). The district
court held a two-day evidentiary hearing and found Sasser was not mentally retarded
under Arkansas law and Atkins. Sasser again appeals and, resolving all outstanding



                                          -2-
issues presented by Sasser’s original and subsequent habeas appeals, we affirm in
part, dismiss in part, reverse in part, vacate in part, and remand.

I.    BACKGROUND
      A.    Arkansas Proceedings
      Shortly after midnight on July 12, 1993, Sasser brutally murdered Jo Ann
Kennedy while she worked as a clerk at a Garland City, Arkansas, E-Z Mart
convenience store. See Sasser 1995, 902 S.W.2d at 774-75. The State of Arkansas
charged Sasser with capital felony murder. See id. at 774. In an effort to avoid the
death penalty, Sasser’s counsel attempted to plead Sasser guilty. See id. at 775.
Because the State had not waived capital punishment—a predicate in Arkansas to
acceptance of a guilty plea in a capital case—the trial court refused to accept the plea.
See id. Proceeding to trial, Sasser stipulated to the following facts:

      1.     Sasser “caused the death of the victim while in the possession of and
             while driving his brother’s pickup truck”;
      2.     Sasser “stopped at the E-Z Mart in Garland City two or three times to
             buy chips and to use the telephone between the hours of 3:00 p.m. on
             July 11, 1993 and approximately 12:00 a.m. on July 12, 1993”;
      3.     “[T]he victim was discovered nude from the waist down”; and
      4.     “[T]he pants and panties found in the E-Z Mart’s men’s bathroom were
             hers.”

Id. At trial, in addition to evidence which overwhelmingly established Sasser’s guilt,
the State presented testimony from another E-Z Mart clerk, Jackie Carter, whom
Sasser had attacked and raped on April 22, 1988. See id. at 776. The trial court
admitted the testimony under the Arkansas equivalent of Federal Rule of Evidence
404(b). See id. at 777. After the State rested, Sasser’s counsel presented no
witnesses. See id. at 776. Without specifying which underlying felony or felonies



                                          -3-
Sasser committed, the jury found Sasser guilty of capital felony murder. See id. at
776-77.

        One aspect of the trial judge’s instructions to the jury was concededly
erroneous. See Sasser 1999, 993 S.W.2d at 905. The prosecution based its felony
murder charge on “four possible underlying felonies: kidnapping, attempted
kidnapping, rape, or attempted rape.” Id. The trial judge correctly instructed the
jurors that to reach a guilty verdict, they had to find Sasser committed at least one of
the underlying felonies. See id. But the trial judge incorrectly defined the elements
of attempted kidnapping and attempted rape, instructing the jury that either attempt
crime was completed when Sasser formed the mental state to commit the
corresponding offense. See id. at 905-06. The trial judge thus omitted the actus reus
(i.e., the requirement that Sasser take a “substantial step” toward completing the
crime) from the instructions related to the attempt felonies. Id. at 906.

      In the penalty phase, the State introduced a certified copy of Sasser’s 1988
conviction for the second-degree battery, kidnapping, and rape of Ms. Carter. See
Sasser 1995, 902 S.W.2d at 777. Sasser’s counsel called two witnesses during the
penalty phase: a licensed professional counselor (LPC) and Sasser’s older brother,
Hollis. The LPC testified, “Sasser, in all probability, will always be a very dangerous
man,” but he “could probably function in the penitentiary.” Hollis expressed his
“sorrow and . . . deepest, deepest sympathy for” the victim’s family, and testified
Sasser “was a hard worker.” Hollis had received reports from prison about Sasser
that “were good.” The State called a psychologist and a psychiatrist to rebut the
LPC’s testimony. The psychologist testified Sasser’s IQ was “dull normal.”

      The jury imposed the death penalty, finding a single aggravating circumstance
outweighed three mitigating circumstances. See id. The aggravating circumstance
was Sasser’s previous felony involving “the use or threat of violence to another
person or creating a substantial risk of death or serious physical injury to another

                                          -4-
person.” Id. The three mitigating circumstances were that Sasser (1) “would be a
productive inmate, [(2)] had a supporting family of him as an inmate, and [(3)] had
stipulated he caused the victim’s death.” Id.

       Sasser’s trial counsel appealed, challenging only the admission of Ms. Carter’s
testimony. See id. at 774. On July 17, 1995, the Arkansas Supreme Court, with three
justices dissenting, rejected this claim and affirmed the judgment and penalty. See
id. at 779. Sasser next sought postconviction relief in Arkansas state court under
Arkansas Rule of Criminal Procedure 37. See Sasser 1999, 993 S.W.2d at 903. In
his Arkansas Rule 37 petition, Sasser raised five ineffective assistance claims and
argued the incorrect jury instruction violated his Sixth Amendment right to a trial by
jury. See id. at 905, 909-12. On July 8, 1999, the Arkansas Supreme Court affirmed
the Arkansas circuit court’s denial of relief on all claims. See id. at 912.

       B.     Federal Habeas Proceedings
       On July 7, 2000, Sasser petitioned for a writ of habeas corpus in the Western
District of Arkansas. Sasser amended his petition on July 17, 2001. In all, Sasser
raised eight grounds for relief. The district court determined seven of Sasser’s
grounds were procedurally barred because he had not raised them in state court.
Sasser had raised the eighth ground in the Arkansas Rule 37 proceeding—alleging
Sasser’s trial counsel provided ineffective assistance by failing to request a limiting
instruction as to Ms. Carter’s testimony. The district court found neither an
evidentiary hearing nor relief were warranted because the decision “not to seek a
limiting instruction was a plausible trial strategy” and the Arkansas court did not
misapply clearly established federal law. The district court dismissed the petition on
May 23, 2002. Sasser requested a certificate of appealability.

       On August 14, 2002, the district court certified appealability on four of the
eight grounds raised in Sasser’s amended petition for writ of habeas corpus:



                                         -5-
      1.    Petitioner was deprived of his rights under the U.S. Constitution . . .
            by the improper jury instructions given in both the guilt and penalty
            phases of the trial.

           ....
      [2.] Sasser’s conviction should be set aside because he was deprived of
           his right to effective assistance of counsel as guaranteed by the U.S.
           Constitution.

           ....
      [3.] The additional oath administered to jurors who were questioned
           about their attitudes toward the death penalty [is unconstitutional].

      [4.] The Arkansas death penalty is unconstitutional.

Sasser filed his first appeal to our court.

              1.     First and Second Appeals
        On August 15, 2003, in light of the Supreme Court’s decision in Atkins, 536
U.S. at 321, we granted Sasser’s motion to remand on “the question of whether [he]
is mentally retarded and whether pursuant to Atkins . . . the Eighth Amendment
prohibits his execution.” In that judgment, we also granted Sasser permission “to file
. . . a successive petition” “[t]o the extent the request for remand is the functional
equivalent to an application to file a successive habeas petition.” The State petitioned
for rehearing, and on March 9, 2004, our court

      issued an amended judgment directing the district court to first
      determine whether Sasser had exhausted his claim in Arkansas state
      court and, if the district court determined Sasser had a viable state court
      remedy, to consider holding the remanded petition in abeyance pending
      resolution of the claim by the Arkansas state courts.

Sasser I, 553 F.3d at 1123.



                                              -6-
       On remand, after the district court ordered Sasser to file an amended petition
setting forth his mental retardation claim, the district court dismissed the petition
without a hearing, finding that Sasser procedurally defaulted on the Atkins claim by
not raising a mental retardation claim under the Arkansas statute that predated Atkins.
See Ark. Code Ann. § 5-4-618. For the second time, Sasser appealed.

       On January 23, 2009, we reversed and remanded for an evidentiary hearing on
Sasser’s Atkins claim based on our decision in Simpson v. Norris, 490 F.3d 1029,
1035 (8th Cir. 2007), that Atkins created a new federal constitutional right and this
right was “separate and distinct” from any preexisting Arkansas statutory right. See
Sasser I, 553 F.3d at 1125-27.

             2.     Mental Retardation Hearing
       Beginning on June 15, 2010, the district court held a two-day evidentiary
hearing on Sasser’s Atkins claim. Sasser first called three witnesses: his brother,
Hollis; Dr. Jethro Toomer, a psychologist; and Professor Tom Smith, a special
education expert. The State, in turn, called four witnesses: Dr. Roger Moore, a
psychologist; Grant Harris; Sergeant John Cartwright; and Brian Hollinger. Sasser
called one witness in rebuttal: Dr. Kevin McGrew, a psychologist. We recount only
the evidence relevant to this appeal.

                    a.     Dr. Toomer’s Testimony
       Dr. Toomer evaluated Sasser in person, conducting an intelligence quotient
(IQ) test: the Wechsler Adult Intelligence Scale, fourth edition (WAIS-IV). Dr.
Toomer also administered several other psychological tests and interviewed numerous
individuals about Sasser’s background. Dr. Toomer concluded Sasser “met the
criteria for mental retardation [in 1994].” He based his conclusion on qualitative
factors in addition to evidence of Sasser’s IQ scores, which were 79 in 1994,
according to an earlier test, and 83 in 2010, according to Dr. Toomer’s test.



                                         -7-
       Dr. Toomer testified the IQ score of 79 Sasser obtained in 1994 was based on
an outdated set of scoring norms, resulting in an inaccurately high result.
Specifically, the 1994 score was from the WAIS-R, a test whose scoring norms were
developed in 1980. IQ scoring norms rapidly become outdated because an IQ score
is a relative rather than an absolute measure: IQ tests including the WAIS-R and
WAIS-IV are normed such that 100 is the mean score, meaning approximately 68%
of the U.S. population would score between 115 and 85, one standard deviation (15
points) above and below the mean. Approximately 2% of the U.S. population would
score 70 (i.e., two standard deviations from the mean) or below. For several decades,
however, the U.S. population’s average raw IQ score has risen each year.1 See, e.g.,
James R. Flynn, Massive IQ Gains In 14 Nations: What IQ Tests Really Measure, 101
Psychol. Bull. 171 (1987). Thus, an IQ score of 100 under current scoring norms
would likely have been close to 110 under scoring norms in effect thirty years ago.
This change in IQ scoring norms over time is referred to as the “Flynn effect.” See,
e.g., Richard E. Nisbett et al., Intelligence: New Findings and Theoretical
Developments, 67 Am. Psychologist 130, 148 (2012).

      To correct for the Flynn effect, Dr. Toomer testified Sasser’s IQ score from
1994 should be reduced by four points to 75, a score falling within the 70-75 outer
range consistent with mental retardation. Cf., e.g., Jack M. Fletcher et al., IQ Scores
Should Be Corrected For the Flynn Effect in High-Stakes Decisions, 28 J.
Psychoeducational Assessment 469, 472 (2010) (finding IQ scores should be adjusted
by a mean of 3 points per decade from the date scoring norms are developed). Dr.


      1
       Although this rise in raw IQ scores is persistent and widely recognized,
psychologists heavily debate its causes. See, e.g., Ted Nettelbeck & Carlene Wilson,
The Flynn Effect: Smarter Not Faster, 32 Intelligence 85 (2004); Joseph L. Rodgers,
A Critique of the Flynn Effect: Massive IQ Gains, Methodological Artifacts, or
Both?, 26 Intelligence 337, 354 (1999) (“Even with a healthy dose of skepticism, the
[Flynn] effect rises above purely methodological interpretation, and appears to have
substantive import.”).

                                         -8-
Toomer testified that because of the measurement error inherent in IQ tests, a score
of 75 indicated that Sasser’s actual IQ almost certainly fell between 70 and 80 (i.e.,
an error of +/- 5 points). Dr. Toomer testified that Sasser’s 2010 IQ score was likely
higher because he had been in a structured prison environment for an extended period
of time. Dr. Toomer explained, “research shows that what tends to be enhanced . . .
is the area of verbal reasoning on people who have been incarcerated.”

       Dr. Toomer’s diagnosis also relied on qualitative factors. Notably, Sasser had
a long history of intellectual and academic difficulties. In high school, he was placed
with students in the bottom performance level, indicating that he was a “special
education” student despite the fact Arkansas, at the time, did not offer dedicated
programs for “special education” students. His grades were consistently poor despite
the simplicity of his classes. He was unable to graduate from high school; instead,
the school gave him, like all students who failed to meet the minimum graduation
requirements, a “certificate of attendance.” Apart from time in prison, Sasser lived
with his mother virtually his entire life, and he was unable to live independently.
After high school, he attempted to join the army, but his dismal performance on the
Armed Services Vocational Aptitude Battery (ASVAB) disqualified him. Apparently
ashamed of telling his family of this failure, he spent several weeks pretending to be
in the Army, hiding in an abandoned cabin in the woods near his mother’s home and
sneaking into her house to get food.

       Sasser never had a checking account or a credit card, did not obtain a driver’s
license until he was twenty-eight years old, and had extraordinary difficulties
performing even the simplest manual labor jobs. For example, he worked for a time
at a chicken processing facility, where his supervisor rotated him through several jobs
of decreasing difficulty, trying to find one Sasser could perform. In the end, the only
job he was able to perform was the simplest task in the facility: pushing a button to
dispense ice. Even a slightly more difficult task—color coding pallets—was too
difficult because Sasser often mixed up the colors.

                                         -9-
                     b.    Dr. Moore’s Testimony
       Dr. Moore evaluated Sasser in person and conducted several psychological
tests, but did not reassess his IQ.2 Dr. Moore concluded Sasser was not “mentally
retarded as defined by Arkansas law.” Dr. Moore admitted Sasser had “borderline
mental retardation or impaired cognitive functioning that falls into the upper 70s to
low 80s.” But in Dr. Moore’s view, “as th[e] term is statutorily and clinically defined,
. . . [Sasser] does not suffer from mental retardation.” Dr. Moore based his
conclusions primarily on the 1994 and 2010 IQ scores, but he also considered several
qualitative factors.

       As to Sasser’s IQ, Dr. Moore agreed with Dr. Toomer that (1) the Flynn effect
is “a genuine and real observation,” and (2) norm obsolescence was a justified
concern, but he opined that it was not appropriate to adjust the 1994 score for the
Flynn effect. Dr. Moore admitted, however, that the American Association on
Intellectual and Developmental Disabilities (AAIDD)—the primary organization in
the United States dealing with “the assessment and diagnosis of mental
retardation”—considered it a “best practice[] in the diagnosis of mental retardation”
to recognize the Flynn effect. Dr. Moore disagreed with Dr. Toomer’s scoring of the
2010 IQ test, contending that the score should have been 84 rather than 83. Stating
no supportive research exists, Dr. Moore denied that spending time in a structured
prison environment could raise IQ scores. Dr. Moore testified that the “cutoff of
mental retardation” was a score of 70.

       As to qualitative factors, Dr. Moore opined that Sasser “appears to have
adequate skills to cook for himself as needed, travel independently in the community,
hold a job, take care of his personal needs and communicate effectively.” Dr. Moore
noted that Sasser had maintained over time two significant relationships and fathered


      2
      Because there are substanial “practice effects,” Dr. Moore explained, it is not
appropriate to administer multiple IQ tests in short succession.

                                         -10-
a child. Dr. Moore pointed to a small bank loan obtained in Sasser’s name as positive
evidence of Sasser’s adaptive functioning, but Sasser’s brother actually procured the
loan, completing all the necessary paperwork on Sasser’s behalf.

                     c.    Other Qualitative Evidence
       Both psychologists considered firsthand accounts of Sasser’s behavior by
people who knew him before he turned eighteen years old. For example, one of
Sasser’s high school classmates, Janice Washington Briggs, described Sasser’s
limited interpersonal skills. “[I]f someone did or said something funny, [Sasser]
laughed longer than everyone else in an inappropriate way [and] slobbered when he
laughed,” Briggs said. She said Sasser “was in Group III,” and “[t]he students in
Group III were Special Education students.” After high school, Briggs remembered
that Sasser entered into his first relationship, with a woman who “[l]ike [Sasser], . . .
did not fit in.” Dr. Toomer reported Sasser’s “social interaction and communication
skills” at age 45 “equate[d] with that of an average person age 7 years, 6 months.”

             3.     District Court’s Mental Retardation Decision
       Noting Atkins left it to the states to define mental retardation, the district court
weighed the evidence presented at the hearing pursuant to the Arkansas mental
retardation statute. See Ark. Code Ann. § 5-4-618. The district court interpreted
Arkansas’s mental retardation standard as follows:

       First, Sasser must have significantly subaverage general intellectual
       functioning. Second, the significantly subaverage general intellectual
       functioning must be accompanied by a significant deficit or impairment
       in adaptive functioning. Third, the significant deficit or impairment in
       adaptive functioning must manifest in the developmental period, but no
       later than age eighteen (18) years of age. Fourth and finally, Sasser
       must also suffer from a deficit in adaptive behavior.




                                           -11-
Believing that Arkansas law strictly requires an IQ score of 70 or below, the district
court concluded Sasser did not meet the first prong. As to the second prong, the
district court found “the data underling [sic] the reports is simply inconclusive to
show Sasser suffered significant deficits in adaptive behavior to the extent reported
by Dr. Toomer.”

       Having decided Sasser did not meet the first two prongs, the district court saw
no reason to consider the remaining prongs and concluded Atkins does not preclude
Sasser’s execution. Asserting the district court misconstrued Arkansas’s mental
retardation standard, Sasser moved to alter the judgment. The district court denied
the motion, and Sasser again appeals.3

II.   DISCUSSION
      Recognizing the gravity of our task, we have carefully scrutinized the vast
record and the voluminous filings in this case. We first set out the applicable
standards of review and then address each of Sasser’s arguments in turn.

      A.    Standards of Review
      The legal standard applicable to an Atkins claim presents a pure question of
law, which we review de novo. See Atkins, 536 U.S. at 317; Raymond v. Weber, 552


      3
       Fewer than two weeks before oral argument on appeal, the State filed a letter
allegedly authorized by Fed. R. App. P. 28(j). The letter consisted entirely of
argument that could have been included in the State’s brief. The most recent case
cited was more than a decade old, although the State incorrectly said the case was
more recent. Sasser moves to strike the letter, and we grant his motion. The letter
violates our Rule 28(j), which authorizes only “setting forth the citations” of
“pertinent and significant authorities [which] come to a party’s attention after the
party’s brief has been filed . . . but before decision.” Fed. R. App. P. 28(j) (emphasis
added). Rule 28(j) is not a vehicle for parties to say what they could and should have
argued in their briefs. See, e.g., United States v. Thompson, 560 F.3d 745, 751 (8th
Cir. 2009).

                                         -12-
F.3d 680, 683 (8th Cir. 2009); see also Inwood Labs., Inc. v. Ives Labs., Inc., 456
U.S. 844, 855 n.15 (1982). Whether an individual is mentally retarded under the
applicable legal standard, however, is a pure question of fact, which we review for
clear error. See Ortiz v. United States, 664 F.3d 1151, 1164 (8th Cir. 2011);
Raymond, 552 F.3d at 683. A district court’s finding is clearly erroneous when
“‘although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’”
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

      An ineffective assistance of counsel claim “presents a mixed question of fact
and law,” which we review de novo. United States v. White, 341 F.3d 673, 677 (8th
Cir. 2003); see also Ortiz, 664 F.3d at 1164; Raymond, 522 F.3d at 683. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d), precludes federal courts from granting habeas relief on claims adjudicated
on the merits in state court unless the state court 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 unreasonable
          determination of the facts in light of the evidence presented in the
          State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Roper, 695 F.3d 825, 830 (8th Cir. 2012).
AEDPA also bars federal courts from granting habeas relief if the petitioner has failed
to exhaust available state remedies, unless the state remedies are ineffectual or non-
existent. See 28 U.S.C. § 2254(b)(1).




                                         -13-
       B.     Atkins Claim
       The Constitution does not require each person legally condemned to die to
approach death with the metaphysical awareness of Socrates, but does require a
minimum capacity to reflect on the somber nature of the sentence. In Atkins, the
Supreme Court first fully recognized that “the Constitution ‘places a substantive
restriction on the State’s power to take the life’ of a mentally retarded offender.”
Atkins, 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
While referencing several clinical definitions of mental retardation, the Atkins court
“‘le[ft] to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.’” Id. at 317 (last two
alterations in original) (quoting Ford, 477 U.S. at 416-17). Accordingly, subject to
constitutional limits, we look to Arkansas law for the legal standard applicable to
Sasser’s mental retardation claim.

              1.    Arkansas Mental Retardation Standard
       Well before the Supreme Court decided Atkins, Arkansas provided a statutory
right against execution for persons “with mental retardation at the time of committing
capital murder.” Ark. Code Ann. § 5-4-618. Since Atkins, the Arkansas Supreme
Court has consistently construed its state’s statutory right to be concurrent with the
federal constitutional right established in Atkins. See Anderson v. State, 163 S.W.3d
333, 354-55 (Ark. 2004) (“We believe that the court in Atkins merely reaffirmed this
State’s preexisting prohibition against executing the mentally retarded.”). Arkansas
law defines mental retardation as follows:

      (A)    Significantly subaverage general intellectual functioning
      accompanied by a significant deficit or impairment in adaptive
      functioning manifest in the developmental period, but no later than age
      eighteen (18) years of age; and

      (B)    A deficit in adaptive behavior.



                                        -14-
Ark. Code Ann. § 5-4-618(a)(1).

       Arkansas places the burden of proving mental retardation “by a preponderance
of the evidence” on the defendant. Id. § 5-4-618(c). To meet this burden, Sasser had
to prove four factors by a preponderance of the evidence:

      1.     “Significantly subaverage general intellectual functioning”;
      2.     “[A] significant deficit or impairment in adaptive functioning”;
      3.     That both of the above “manifest[ed] . . . no later than age
             eighteen”; and
      4.     “A deficit in adaptive behavior.”

Ark. Code Ann. § 5-4-618(a).

                     a.    Significantly Subaverage Intellectual Functioning
       The first prong of Arkansas’s mental retardation standard is consistent with
clinical definitions of mental retardation. See, e.g., American Psychiatric Association
(APA), Diagnostic and Statistical Manual of Mental Disorders 39, 41-43 (4th ed.,
Text Revision 2000) (DSM-IV-TR).

       The psychiatric and psychological communities, including those specializing
in the treatment of mental retardation, agree “[a] fixed point cutoff score for [mental
retardation] is not psychometrically justifiable.” AAIDD, Intellectual Disability:
Definition, Classification, and Systems of Support 40 (11th ed. 2010). The DSM-IV-
TR includes “an IQ of approximately 70 or below” in its definition of mental
retardation.4 DSM-IV-TR, supra, at 39. As we recognized in Jackson v. Norris, 615

      4
        The APA’s recently released Diagnostic and Statistical Manual of Mental
Disorders 33, 37 (5th ed. 2013) (DSM-V), replaces the term “mental retardation” with
“intellectual disability” and removes IQ score from the diagnostic criteria, explaining
“IQ test scores are approximations of conceptual functioning but may be insufficient

                                         -15-
F.3d 959 (8th Cir. 2010), “‘it is possible to diagnose Mental Retardation in
individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive
behavior’” because there is “‘a measurement error of approximately 5 points’ [in
assessing IQ], depending on the testing instrument.” Id. at 965 n.7 (quoting DSM-IV-
TR, supra, at 41-42); see also DSM-V, supra, at 37 (“Individuals with intellectual
disability have [IQ] scores of approximately two standard deviations or more below
the population mean, including a margin for measurement error . . . . [generally
equivalent to] a score of 65-75.”). In Atkins itself, the Supreme Court noted “an IQ
between 70 and 75 or lower . . . is typically considered the cutoff IQ score for the
intellectual function prong of the mental retardation definition.” Atkins, 536 U.S. at
309 n.5.

       If Arkansas’s definition of mental retardation categorically excluded
individuals who fell within the nationally accepted clinical definition of mental
retardation, we might need to confront the difficult constitutional question whether
Arkansas sufficiently protects “the range of mentally retarded offenders about whom
there is a national consensus.”5 Id. at 317. Compare, e.g., id. (“As was our approach
in Ford[] with regard to insanity, ‘we leave to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon [their] execution of
sentences.’” (quoting Ford, 477 U.S. at 416-17)), with Panetti v. Quarterman, 551
U.S. 930, 950 (2007) (holding state procedures for preventing the execution of insane
individuals “failed to provide . . . the minimum process required by Ford”). Out of


to assess reasoning in real-life situations and mastery of practical tasks.” In this case,
however, we continue to rely primarily on the earlier version (the DSM-IV-TR) and
refer to the diagnosis as “mental retardation,” in accordance with the record and
expert testimony before us.
      5
        Indeed, the Supreme Court recently granted the petition for certiorari in Hall
v. Florida, No. 12-10882, 2013 WL 3153535 (U.S. Oct. 21, 2013), which presents the
precise constitutional question whether a state violates the Eighth Amendment Atkins
right by imposing a strict IQ cutoff score of 70.

                                          -16-
respect for the states’ role in our federalist system, we will not assume—without a
clear indication from the state’s legislators or courts—that a state intends to stretch
constitutional limits. See, e.g., Arizona v. United States, 567 U.S. ___, ___, 132 S.
Ct. 2492, 2510 (2012) (“‘So far as statutes fairly may be construed in such a way as
to avoid doubtful constitutional questions they should be so construed; and it is to be
presumed that state laws will be construed in that way by the state courts.’” (quoting
Fox v. Washington, 236 U.S. 273, 277 (1915)); N.J. Payphone Ass’n v. Town of
W.N.Y., 299 F.3d 235, 249 (3d Cir. 2002) (Alito, J., concurring) (explaining that
“resolving [a] case on state-law grounds does less violence to principles of federalism
and dual sovereignty” than does “invo[king] . . . federal supremacy over local laws”).


       Fortunately, there is no reason to interpret Arkansas law in a constitutionally
questionable manner because post-Atkins cases decided by the Arkansas Supreme
Court indicate that it has carefully avoided such a reading. Under Arkansas law,
mental retardation is not bounded by a fixed upper IQ limit, nor is the first prong a
mechanical “IQ score requirement.” See, e.g., Anderson, 163 S.W.3d at 355-56
(finding that a mental health assessment relying on “achievement scores consistent
with average intelligence” and “reading performance . . . on the high school level”
potentially outweighed an IQ test score of 65). Neither does Arkansas law compel
a finding of mental retardation below a certain IQ limit, although it establishes a
“rebuttable presumption of mental retardation when a defendant has an intelligence
quotient of sixty-five (65) or below.” Ark. Code Ann. § 5-4-618(a)(2).

       Simply put, an IQ test score alone is inconclusive of “significantly subaverage
general intellectual functioning,” Ark. Code Ann. § 5-4-618. See, e.g., Miller v.
State, 362 S.W.3d 264, 277-78 (Ark. 2010) (reviewing a range of evidence other than
IQ scores); Weston v. State, 234 S.W.3d 848, 857 (Ark. 2006) (concluding the trial
judge properly considered not only the defendant’s IQ score but also “the records and
. . . mental evaluations, including the evidence suggesting that appellant was
malingering”); Sanford v. State, 25 S.W.3d 414, 419 (Ark. 2000) (referring to an IQ

                                         -17-
score of 75 as “in the borderline range”); Arkansas Model Jury Instructions –
Criminal 1009-EXP (2d ed. 2012) (not definitively linking “significantly subaverage
general intellectual functioning” to any IQ test score or range, but allowing, while not
requiring, a finding of mental retardation upon a finding of an IQ of 65 or below).

                   b.      Significant Deficit or Impairment
       The second prong of the Arkansas standard is identical to the “adaptive
functioning” prong of the DSM-IV-TR’s diagnostic definition of mental retardation.
See Jackson, 615 F.3d at 961-62, 965-66; DSM-IV-TR, supra, at 41-42. As we said
before, “[t]he second prong is met if an individual has ‘significant limitations in at
least two of the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.’” Jackson, 615 F.3d at 962
(emphasis added) (quoting DSM-IV-TR, supra, at 41).

       Consistent with nationally accepted clinical definitions of mental retardation,
the Arkansas standard does not ask whether an individual has adaptive strengths to
offset the individual’s adaptive limitations. See, e.g., id. at 962, 965-66; Miller, 362
S.W.3d at 277-78; cf. DSM-IV-TR, supra, at 39. Instead, like the DSM-IV-TR
diagnostic criteria, the Arkansas standard asks only whether an individual has at least
two “significant limitations in adaptive functioning.” DSM-IV-TR, supra, at 39, 41.
In Miller, for example, the Arkansas Supreme Court found “conflicting opinions and
evidence” of defendant’s adaptive behavior where almost all evidence indicated
reasonably average functioning (e.g., defendant had “held a steady job for fourteen
years” and had “kept up with financial transactions”), but there was evidence of two
adaptive limitations (i.e., defendant had been in “special education classes from the
third grade on” and had discipline-related difficulties on the job). Miller, 362 S.W.3d
at 277-78; see also Jackson, 615 F.3d at 966 (explaining the second prong could be
satisfied by “significant limitations in two skill areas prior to age 18”).



                                         -18-
                    c.    Manifestation of Symptoms Before Age Eighteen
       The third prong of Arkansas’s mental retardation standard, like the first two,
mimics nationally accepted diagnostic criteria. See, e.g., DSM-IV-TR, supra, at 41.
Arkansas requires proof that both “[s]ignificantly subaverage general intellectual
functioning” and “significant deficit or impairment in adaptive functioning”
“manifest[ed] . . . no later than age eighteen.” Ark. Code Ann. § 5-4-618(a)(1)
(emphasis added); see also Jackson, 615 F.3d at 961. The DSM-IV-TR explains
“[t]he onset must occur before age 18 years.” DSM-IV-TR, supra, at 41 (emphasis
added).

                    d.     Deficit in Adaptive Behavior
       Although the fourth prong of Arkansas’s mental retardation standard “does not
appear in the DSM-IV-TR’s criteria for mental retardation,” the prong is fully
consistent with nationally accepted diagnostic criteria. Jackson, 615 F.3d at 966. The
fourth prong largely duplicates the second prong, but places “no age requirement on
the evidence used to establish limitations in adaptive behavior.” Id. at 967.6

                   e.      Timing of Proof
       Timing affects a defendant’s ability to prove all four prongs. The Arkansas
Supreme Court has consistently described the federal Atkins and state statutory rights
as concurrent despite the fact that a plain reading of the Arkansas statute, Ark. Code
Ann. § 5-4-618, and Atkins indicates a temporal inconsistency between the two
rights. The Arkansas statute bars the execution of those mentally retarded “at the
time of committing capital murder,” Ark. Code Ann. § 5-4-618(b) (emphasis added),


      6
       To “avoid[] surplusage,” Freeman v. Quicken Loans, Inc., 566 U.S. ___, ___,
132 S. Ct. 2034, 2043 (2012) (emphasis omitted), the fourth prong could be read to
require a concurrent showing of an adaptive deficit, as opposed to before the age of
eighteen. But the Arkansas Supreme Court has not interpreted Ark. Code Ann. § 5-4-
618(a)(1)(B) in this manner. See Miller, 362 S.W.3d at 278 (considering evidence
“from about age twelve to fourteen years” under the fourth prong).

                                        -19-
while Atkins decided the Eighth Amendment bars “the execution of a mentally
retarded person,” Roper v. Simmons, 543 U.S. 551, 559 (2005) (emphasis added)
(citing Atkins, 536 U.S. at 304). At first glance, one might read the federal and state
rights differently, interpreting Arkansas’s statute to protect only those mentally
retarded at the time of the offense and the Eighth Amendment to protect only those
mentally retarded at the expected time of execution. But Arkansas courts have
consistently avoided such a reading of their state’s statute:

      It is a violation of the Eighth Amendment’s protection from cruel and
      unusual punishment to execute a person who is mentally retarded.
      [Atkins, 536 U.S. at 304.] Arkansas law likewise prohibits a death
      sentence for anyone who is mentally retarded at the time of an offense.
      Ark. Code Ann. § 5-4-618(b).

Miller, 362 S.W.3d at 276 (emphasis added). As interpreted by the Arkansas
Supreme Court, the Arkansas statute thus overlaps with the Eighth Amendment,
precluding the execution of an individual who can prove mental retardation either
(a) at the time of committing the crime or (b) at the presumptive time of execution.7

      From a medical perspective, this temporal distinction might matter because
“Mental Retardation is not necessarily a lifelong disorder.” DSM-IV-TR, supra, at
47. There is emerging evidence, based on genetic research, that certain forms of
mental retardation may be treatable. See, e.g., Aileen Healy et al., Fragile X
Syndrome: An Update on Developing Treatment Modalities, 2 ACS Chem. Neurosci.
402 (2011). Furthermore, “appropriate training and opportunities” may enable certain
individuals with mild mental retardation to develop sufficient “adaptive skills” to “no


      7
       This is not to say the Eighth Amendment requires Arkansas to give defendants
an opportunity to prove mental retardation using evidence from the time of
commission. We merely recognize Arkansas has elected to define “mental
retardation” for the purpose of proving mental retardation under Atkins in this
manner. See Ark. Code Ann. § 5-4-618(b); cf. Roper, 543 U.S. at 559.

                                         -20-
longer have the level of impairment required for a diagnosis of Mental Retardation.”
DSM-IV-TR, supra, at 47.

        In most cases, timing will be more important as a legal matter because a
mentally retarded individual may have better evidence of his condition at one point
in life than another. Certain environments may artificially affect the scores obtained
on common IQ tests just as practice effects may unmoor an individual’s IQ score from
his underlying intellectual capacity. Under Atkins and Ark. Code Ann. § 5-4-618(b),
Arkansas may not execute an individual who sufficiently proves he met all four
prongs of the Arkansas mental retardation standard at either relevant time, even if the
individual lacks proof he satisfied the standard at both relevant times. See Miller,
362 S.W.3d at 276.

              2.    District Court’s Legal Analysis
       Having set out the applicable standard, we now turn to Sasser’s case.
Challenging the district court’s finding that he was not mentally retarded, Sasser
claims the district court erred as a matter of law by using an incorrect mental
retardation standard. We must agree. Though looking to the right source—Arkansas
law—the district court misconstrued the standard.

                     a.     Significantly Subaverage Intellectual Functioning
        First, without any basis in Arkansas or federal law, the district court read a
strict upper IQ limit into the Arkansas statute: “the Arkansas statute requires . . . a
score of 70 or below.” (Emphasis added). The district court even referred to the first
prong of the Arkansas statute as an “IQ score requirement.” Having adopted this
interpretation, the district court confined its factual analysis to Sasser’s 1994 and
2010 IQ test scores, concluding “[t]he only evidence before the Court to establish th[e
first] prong is Sasser’s 1994 IQ score, once the Flynn effect is applied to discount the
score and a[n] assumption is made that Sasser’s actual ability is at the lowest point
in the confidence interval range [(i.e., 70)].” Arkansas law, the district court

                                         -21-
believed, would not allow Sasser’s “then-scored IQ range of 70 to 80 to demonstrate
mental retardation, as suggested by the DSM-IV.” Because Sasser had not obtained
an IQ test score of 70 or lower on either the 1994 or 2010 intelligence tests, the
district court found Sasser had not proved the first prong of the Arkansas standard by
a preponderance of the evidence.

       It was legal error to read a strict “IQ score requirement” into the Arkansas
statute defining mental retardation.8 As we have emphasized, IQ “test scores are
imprecise and standing alone cannot support a diagnosis.” Ortiz, 664 F.3d at 1168.
As the Arkansas Supreme Court showed in case after case, the first prong
encompasses more than mere IQ test scores. See, e.g., Weston, 234 S.W.3d at 857;
Anderson, 163 S.W.3d at 355-56; Sanford, 25 S.W.3d at 419. In evaluating whether
Sasser proved the first prong, the district court should have considered all evidence
of Sasser’s intellectual functioning rather than relying solely on his IQ test scores.


      8
        The district court’s error is understandable to the extent some Arkansas
Supreme Court cases seem to blur the distinction between the rebuttable presumption
of mental retardation, which hinges solely on IQ score, and the first prong of the
mental retardation standard, which does not. See Miller, 362 S.W.3d at 278
(“[A]lthough there was no consensus among the expert opinions as to exactly what
Miller’s intelligence quotient was, all experts agreed that it was above 65.”). A
careful reading of Miller and the statute reveals the rebuttable presumption cuts
across all four prongs, meaning a defendant with an undisputed IQ of 65 or below is
not required to prove any of the four prongs to prevent execution. See Ark. Code
Ann. § 5-4-618(a)(2); Miller, 362 S.W.3d at 278. This presumption, which in some
cases offers a laxer alternative to the nationally accepted diagnostic criteria for mental
retardation, is entirely consistent with, but not mandated by, Atkins. See Atkins, 536
U.S. at 317; Miller, 362 S.W.3d at 276-78; cf. DSM-IV-TR, supra, at 42 (“Mental
Retardation would not be diagnosed in an individual with an IQ lower than 70 if there
are no significant deficits or impairments in adaptive functioning.”). The Arkansas
Supreme Court’s view that Atkins does not require Arkansas to adopt a rebuttable
presumption of mental retardation when a defendant scores 75, rather than 65, is thus
entirely correct. See Engram v. State, 200 S.W.3d 367, 373 & n.3 (Ark. 2004).

                                          -22-
                    b.      Significant Deficit or Impairment
       Second, the district court misunderstood the relationship between “a significant
deficit or impairment in adaptive functioning” under Arkansas law, Ark. Code Ann.
§ 5-4-618(a)(1)(A), and the DSM-IV-TR diagnostic criteria (i.e., “significant
limitations in adaptive functioning in at least two of [several] skill areas”), DSM-IV-
TR, supra, at 41. As our decision in Jackson made clear, the Arkansas standard
required the district court to recognize that if Sasser had more than one significant
adaptive limitation, as defined by the DSM-IV-TR, then he had a “significant deficit
or impairment in adaptive functioning” under Arkansas law, Ark. Code Ann. § 5-4-
618(a)(1)(A). See Jackson, 615 F.3d at 961-62.

       The district court looked for evidence of more than one significant deficit in
adaptive behavior and concluded “Sasser has not shown significant adaptive deficits
by a preponderance of the evidence.” (Emphasis added). The district court found
“Sasser had limitations, but no significant deficits in adaptive functioning.”
(Emphasis added). The question Arkansas law required the district court to answer
was not whether Sasser had more than one significant deficit but whether Sasser had
more than one significant limitation, as defined by the DSM-IV-TR. See Jackson,
615 F.3d at 962. Thus, the factual finding that Sasser had “limitations”—without
specifying whether these limitations were significant under the diagnostic
criteria—“but no significant deficits” misunderstands the issue.

       The district court also held Sasser to the wrong legal standard by improperly
offsetting limitations against abilities, even across skill areas. For example, the
district court found it “clear Sasser struggled with job duties which involved labeling
and grouping” (i.e., work skills), but balanced this limitation against Sasser’s ability
to “get along with co-workers” and be at work on time (i.e., social/interpersonal
skills). Although Sasser has lived in prison or with his mother virtually his entire life,
the district court found Sasser “was able to live on his own for a period of time” based



                                          -23-
on the few weeks after Sasser failed the ASVAB and hid in an abandoned shed
without electricity or running water.

       This balancing approach was inconsistent with Arkansas law, which required
Sasser to prove only two significant limitations in the DSM-IV-TR adaptive skill
areas. See Jackson, 615 F.3d at 962. Under the district court’s approach, even an
individual with a prototypical case of mild mental retardation could not prove it. For
example, although Sasser “was described as ‘slow’ by some,” the district court
emphasized that “no person who knew Sasser in the developmental period, even those
trained in special education, regarded Sasser as mentally retarded.” Yet as the DSM-
IV-TR explains, individuals with mild mental retardation “often are not
distinguishable from children without Mental Retardation until a later age,” supra, at
43. As another example, the district court highlighted Sasser’s ability to perform a
job “within his abilities . . . reliably well.” Again, the DSM-IV-TR explains that
“[d]uring their adult years, [mildly mentally retarded individuals] usually achieve
social and vocational skills adequate for minimum self-support.” Id.

       These legal errors mean the district court has not answered the question Atkins
required it to answer: under Arkansas law, did Sasser prove by a preponderance of
the evidence that he had “significant limitations in adaptive functioning in at least two
of the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety”? DSM-IV-TR, supra, at 41; see
Jackson, 615 F.3d at 961-62. Answering this question does not involve balancing
strengths against limitations. It simply requires deciding whether the evidence




                                          -24-
establishes significant limitations in two of the listed skill areas.9 See DSM-IV-TR,
supra, at 41.

                     c.    Manifestation of Symptoms by Age Eighteen
       Third, the district court thought the age prong applied only to the adaptive
functioning prong of the Arkansas standard. In this respect, the district court held
Sasser to a lower standard than Arkansas law—and the DSM-IV-TR diagnostic
criteria. See Jackson, 615 F.3d at 961; DSM-IV-TR, supra, at 47. The Arkansas
standard actually required Sasser to prove the onset of his mental retardation, both the
intellectual and the adaptive functioning prongs, occurred “no later than . . . eighteen
years of age.” Jackson, 615 F.3d at 961.

                    d.      Timing of Proof
       Fourth, the district court’s successive orders seem to rely on the clinical reality
that mental retardation is normally a lifelong disorder to mix proof of Sasser’s mental
condition at the time he committed murder with proof from other periods. Denying
Sasser’s motion for reconsideration, the district court said that it “never limited
Atkins or the Arkansas statute . . . to mental retardation as it may have existed at a
single point in time—be it contemporaneous with execution or with the offense.”
(Emphasis added). In evaluating Sasser’s adaptive functioning, the district court
mixed and matched evidence of Sasser’s capacities from different points in his life,
creating a composite portrait of Sasser at a peak he never actually experienced rather
than a distinct snapshot of Sasser’s actual mental capacity at a single relevant point



      9
        For example, the finding that “once a job was given to [Sasser] within his
abilities, he was able to perform the job reliably well,” misses the point: the question
is not whether Sasser could perform a job “within his abilities,” but whether “his
abilities” significantly limited his performance of normal job-related tasks. See
Jackson, 615 F.3d at 962; DSM-IV-TR, supra, at 41.

                                          -25-
in time.10 It was error to ignore the temporal distinction underlying the Arkansas
standard. See Ark. Code Ann. § 5-4-618(b); Miller, 362 S.W.3d at 276.

       This timing mistake compounded the erroneous balancing approach to the
second prong of the Arkansas standard. Mixing strengths and limitations from
different periods of Sasser’s life, the district court found “[t]here [wa]s simply not
enough consistent information in the data to make any sort of reliable conclusion
about [Sasser]’s actual performance of adaptive behaviors.” The real question is
whether Sasser proved “a significant deficit or impairment in adaptive functioning,”
Ark. Code Ann. § 5-4-618(a)(1)(A), at a relevant point in time, not whether the record
provided a full picture of Sasser’s mental condition at all times throughout his life.
See, e.g., Miller, 362 S.W.3d at 276.

              3.    Effect of the Legal Errors
       Although the district court judged Sasser’s mental retardation claim by a legal
standard that deviated from Arkansas law in several critical respects, even
constitutional errors do not always require automatic reversal. See Fry v. Pliler, 551
U.S. 112, 120 (2007); Chapman v. California, 386 U.S. 18, 22 (1967); Fed. R.
Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”). The errors were certainly not structural, so
we must decide whether “the error[s] w[ere] harmless.” Neder v. United States, 527
U.S. 1, 8 (1999). We easily conclude the district court’s error with respect to the third
prong, holding Sasser to a lower standard than required by Arkansas law, was
harmless. The other errors present closer questions. “Recognizing ‘[o]ur duty to
search for constitutional error with painstaking care is never more exacting than it is




      10
        The relevant points in time were (1) the time of the murder or the time of the
hearing, and (2) for the purposes of the age prong, the period through age eighteen.
See Miller, 362 S.W.3d at 276 (citing Ark. Code Ann. § 5-4-618(b)).

                                          -26-
in a capital case,’ we cannot say the[se] error[s] w[ere] harmless.” Ortiz, 664 F.3d at
1166 (quoting Kyles v. Whitley, 514 U.S. 419, 422 (1995)).

       The district court carefully summarized the evidence, and, recognizing the
district court’s “unique opportunity . . . to evaluate the credibility of witnesses and to
weigh the evidence,” Inwood, 456 U.S. at 855, we give deference to the district
court’s factual findings. See, e.g., Story v. Norwood, 659 F.3d 680, 685 (8th Cir.
2011). Yet misconceptions about the Arkansas legal standard led the district court
to answer the wrong factual questions, leaving the pertinent questions unanswered.

       As a result, we cannot say the legal errors were harmless unless no reasonable
factfinder, applying the correct standard, could find Sasser mentally retarded. In light
of Dr. Toomer’s testimony about Sasser’s intellectual functioning and evidence that
Sasser had the communication and social skills of a seven-year-old, struggled with
basic tasks like color-coding, failed to graduate from high school, never had a
checking account, and did not obtain a driver’s license until the age of 28, we cannot
safely say it would be unreasonable to find Sasser mentally retarded. Cf., e.g., Ortiz,
664 F.3d at 1166 (concluding a district court’s mistaken belief that a defendant
obtained a driver’s license was not harmless even though “the driver’s license was but
one of many facts upon which the district court relied”).

       The proper course, then, is to vacate the district court’s finding that Sasser is
not mentally retarded and remand so that the district court may answer the critical
factual questions in the first instance according to the correct legal standard. See,
e.g., Waldau v. Merit Sys. Prot. Bd., 19 F.3d 1395, 1402 (Fed. Cir. 1994) (“We
therefore vacate the . . . decision . . . and remand for application of the correct legal
standard to the facts of this case in light of this decision.”); Bigge v. Albertsons, Inc.,
894 F.2d 1497, 1503 (11th Cir. 1990) (“[W]e believe that the district court should
reconsider the evidence in light of the correct legal standard.”).



                                           -27-
       C.    Ineffective Assistance of Counsel Claims
       At every turn in these proceedings, Sasser has raised new ineffective assistance
of counsel claims or recast old claims in new ways. Having carefully scrutinized
Sasser’s numerous filings, we count no fewer than sixteen ineffective assistance of
counsel claims raised under the umbrella of the second ground certified for appeal.
All but four of these claims are procedurally barred, meritless, or both. See, e.g.,
Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 784 (2011) (holding
28 U.S.C. § 2254(d) bars federal relief on a claim adjudicated in state court unless
“there was no reasonable basis for the state court to deny relief”); Kennedy v. Delo,
959 F.2d 112, 117 (8th Cir. 1992) (holding claims raised for the first time on appeal
are procedurally barred and constitute abuses of the writ).11

      The four remaining claims, all related to the sentencing phase, assert that
Sasser’s trial counsel ineffectively failed to:



      11
        We reject Sasser’s contention his initial habeas counsel’s purported
ineffectiveness excuses his failure to raise claims in the district court. The case
Sasser cites in support of this contention, Maples v. Thomas, 565 U.S. ___, ___-___,
132 S. Ct. 912, 922-24 (2012), is inapposite because (1) it applied to counsel’s failure
in state postconviction proceedings, and (2) it involved counsel who literally
abandoned the client. The overwhelming evidence of Sasser’s guilt renders harmless
any purported ineffectiveness during the guilt phase.

        We also reject Sasser’s unusual exhaustion argument, which he raises for the
first time in this appeal. Although a “State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the requirement unless the
State, through counsel, expressly waives the requirement,” 28 U.S.C. § 2254(b)(3)
(emphasis added), a habeas petitioner is not similarly protected by AEDPA. By
failing to raise exhaustion below, Sasser waived whatever exhaustion argument he
might have had. See Granberry v. Greer, 481 U.S. 129, 131 (1987) (“[F]ailure to
exhaust state remedies does not deprive an appellate court of jurisdiction to consider
the merits of a habeas corpus application.”).

                                         -28-
      1.     Prepare for the sentencing phase of the trial;
      2.     Obtain a timely psychological evaluation of Sasser;
      3.     Meaningfully consult with a mental health professional; and
      4.     Object “when the prosecutor misconstrued the mitigating evidence that
             the defense had presented concerning [Sasser’s] mental impairment and
             lessened culpability” or to rebut that argument.

On these four potentially meritorious claims, Sasser is entitled to an evidentiary
hearing in light of the Supreme Court’s recent decision in Trevino v. Thaler, 569 U.S.
___, 133 S. Ct. 1911 (2013).

              1.    Trevino
       In Martinez v. Ryan, 566 U.S. ___, ___, 132 S. Ct. 1309, 1315 (2012), the
Supreme Court created a “narrow exception” to the Coleman rule that ineffective
assistance of counsel in a state postconviction proceeding does not provide cause to
excuse procedural default. Cf. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991).
The Supreme Court expanded this exception in Trevino, reasoning “a distinction
between (1) a State that denies permission to raise [an ineffective assistance of
counsel] claim on direct appeal and (2) a State that in theory grants permission but,
as a matter of procedural design and systematic operation, denies a meaningful
opportunity to do so is a distinction without a difference.” Trevino, 569 U.S. at ___,
133 S. Ct. at 1921.

      At issue in Trevino was Texas’s procedural system, which the Supreme Court
concluded “as a matter of its structure, design, and operation[] does not offer most
defendants a meaningful opportunity to present a claim of ineffective assistance of
counsel on direct appeal.” Id. For practical reasons, Texas courts have “discouraged”
defendants from bringing ineffective assistance of counsel claims on direct review,
and the Supreme Court emphasized that Texas procedures make it “difficult, perhaps
impossible,” to develop the factual record required for an ineffective assistance claim

                                         -29-
on direct appeal. Id. at ___, 133 S. Ct. at 1919. “What the Arizona law [considered
in Martinez] prohibited by its explicit terms, Texas law precludes as a matter of
course.” Id. at ___ , 133 S. Ct. at 1921.

       Decisively for this case, Arkansas does not provide capital defendants with new
counsel on direct appeal as a matter of course. See Ark. R. App. P.-Crim. 16(a)(i)
(“Trial counsel, whether retained or court-appointed, shall continue to represent a
convicted defendant throughout any appeal to the Arkansas Supreme Court or
Arkansas Court of Appeals, unless permitted by the trial court or the appellate court
to withdraw in the interest of justice or for other sufficient cause.”). Indeed, the same
allegedly ineffective lawyer represented Sasser, unsuccessfully, throughout his trial
and direct appeal. Texas, by contrast, provides new appellate counsel as a matter of
course and did so in the Trevino case, yet the Supreme Court still found Texas’s
procedure insufficient.

       Although new appellate counsel is not, by itself, sufficient to guarantee capital
defendants a meaningful opportunity to challenge their trial counsel’s effectiveness
on direct appeal, it is a necessary part of such a guarantee. Otherwise, appointed trial
counsel must question his own effectiveness—a conceptually difficult task for several
reasons, including trial counsel typically must be a witness in any ineffectiveness
hearing. As the Arkansas Supreme Court recognized in Rounsaville v. State, 282
S.W.3d 759, 760 (Ark. 2008) (per curiam), “it is unrealistic to expect trial counsel,
who is also appellate counsel, to call into question his own competence.”

        In Rounsaville, the Arkansas Supreme Court remedied this problem by
appointing new counsel. See id. But the problem came to the attention of the court
and trial counsel because the defendant himself “filed . . . a pro se motion for new
trial based upon his claims of ineffectiveness of his current counsel.” Id. at 759. The
few reported cases in which an Arkansas defendant successfully obtained an
ineffective assistance hearing on direct appeal all involved defendants who raised the

                                          -30-
claims pro se or who had the means to hire new counsel. See Rounsaville v. State,
288 S.W.3d 213, 215, 220 (Ark. 2008); Missildine v. State, 863 S.W.2d 813, 817-18
(Ark. 1993); id. at 819 (Brown, J., concurring) (questioning “the wisdom of
considering the issue of ineffective counsel on direct appeal” because it would
incentivize “defendants to shuck trial counsel after trial and either proceed pro se or
retain new counsel to pursue an ineffectiveness claim as part of post trial relief prior
to direct appeal”); Halfacre v. State, 578 S.W.2d 237, 239 (Ark. 1979) (“After the
appellants were convicted and sentenced, they wrote directly to the trial judge asking
for a hearing on the question of effectiveness of their court-appointed counsel.”). In
most reported cases, the Arkansas Supreme Court has simply refused to consider
ineffectiveness claims on direct appeal. See, e.g., Maxwell v. State, 197 S.W.3d 442,
445 (Ark. 2004); Ratchford v. State, 159 S.W.3d 304, 309 (Ark. 2004); Anderson v.
State, 108 S.W.3d 592, 606 (Ark. 2003); Willis v. State, 977 S.W.2d 890, 894 (Ark.
1998).

        Rounsaville and Halfacre indicate that if Sasser, acting pro se, had moved for
a new trial based on his trial counsel’s ineffectiveness, the trial court could and
probably would have appointed new counsel. But a procedure to assure adequate
representation cannot depend on a defendant’s acting without representation. At best
(i.e., according to the State’s expert) Sasser has “borderline mental retardation or
impaired cognitive functioning that falls into the upper 70s to low 80s.” At worst, he
is mentally retarded and has the communication and interpersonal skills of a seven-
year-old. Either way, the State could not expect Sasser to understand the need and
file a pro se motion for a new trial and appointment of new counsel.

       As the facts of this case demonstrate, it is only possible for an indigent capital
defendant to bring an ineffective assistance claim on direct appeal in Arkansas if
(1) the defendant raises the claim pro se in the trial court or (2) the defendant’s trial
counsel “falls on his own sword” by moving for a new trial based on his own
ineffectiveness and also moving for appointment of new counsel. Neither alternative

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is sufficient in light of Trevino, and the latter alternative is especially troubling as a
matter of professional ethics, potentially requiring trial counsel to choose between
accurately asserting he was effective or inaccurately asserting that he was not. The
first option would violate the lawyer’s duty of zealous representation to his client and
the second his duty of candor to the court. A direct appeal procedure predicated on
such a conflict of interest does not present indigent capital defendants a viable
opportunity to challenge their appointed trial counsel’s effectiveness.

       For these reasons, we conclude Arkansas did not “as a systematic matter”
afford Sasser “meaningful review of a claim of ineffective assistance of trial counsel”
on direct appeal. Trevino, 569 U.S. at ___, 133 S. Ct. at 1919.

              2.     This Case
       Trevino creates a two-part question: (1) did Sasser’s state postconviction
counsel fail to raise these four ineffectiveness claims, and (2) do these claims merit
relief? Answering this question, Sasser says, requires an evidentiary hearing.
Applying the law as it stood at the time, the district court deemed these claims
procedurally barred and denied Sasser’s request for a hearing. In the new light of
Trevino, that denial was erroneous.

       Sasser asserts that if given an opportunity to present new evidence, he could
show his trial counsel failed to prepare for the sentencing phase by not (1) developing
mitigating evidence of Sasser’s limited mental capacities, and (2) interviewing
Sasser’s first victim, Ms. Carter, whose dramatic testimony during the guilt phase was
an important factor supporting the jury’s decision to impose the death penalty.
According to Sasser’s district court filings, Ms. Carter would have been prepared to
testify during the sentencing phase that despite her ordeal, she did not believe Sasser
deserved execution. Yet Sasser’s trial counsel apparently never interviewed Ms.
Carter and thus never learned what a compelling mitigation witness she might have
been. Sasser also asserts that his trial counsel’s general lack of preparation, including

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a failure to obtain a timely psychological analysis and meaningfully consult with a
mental health expert,12 led to an inexcusable failure to present evidence of Sasser’s
intellectual difficulties and potential mental retardation.

       Under Trevino, Sasser’s postconviction counsel’s alleged ineffectiveness, if
proved, establishes “cause for any procedural default [Sasser] may have committed
in not presenting these claims to the [Arkansas] courts in the first instance.” Williams
v. Taylor, 529 U.S. 420, 444 (2000); see Trevino, 569 U.S. at ___, 133 S. Ct. at 1921
(“[F]ailure to consider a lawyer’s ‘ineffectiveness’ during an initial-review collateral
proceeding as a potential ‘cause’ for excusing a procedural default will deprive the
defendant of any opportunity at all for review of an ineffective-assistance-of-trial-
counsel claim.”). Thus, the district court is authorized under 28 U.S.C. § 2254(e)(2)
and required under Trevino to “hold an evidentiary hearing on the claim[s].” See
Williams, 529 U.S. at 437 (explaining § 2254(e)(2) does not preclude district courts
from holding an evidentiary hearing if the petitioner “was unable to develop his claim
in state court despite diligent effort”).

       As in Sinisterra v. United States, 600 F.3d 900, 912 (8th Cir. 2010), we must
reverse the district court’s denial of Sasser’s request for an evidentiary hearing and
vacate the district court’s determination that these four claims are procedurally
barred. On remand, after giving Sasser an opportunity to present evidence related to
these four claims, the district court should determine whether any of these claims
merits relief.




      12
         Sasser’s trial counsel called a witness whose testimony (“Sasser, in all
probability, will always be a very dangerous man”) could hardly have caused more
self-inflicted damage to Sasser’s mitigation case.

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       D.    Incomplete Jury Instruction Claim
       Pointing to the trial court’s admittedly incomplete definition of the elements
of attempted rape and kidnapping, Sasser contends the error was structural or, at least,
prejudicial. The State counters that the “independent and adequate state ground
doctrine” precludes us from considering this claim. Coleman, 501 U.S. at 730.
Assuming the State is wrong, Sasser’s claim still merits no relief because the error
was neither structural nor prejudicial.

       Reviewing the trial court’s jury instruction error, the Arkansas Supreme Court
concluded the error was not structural. See Sasser 1999, 993 S.W.2d at 907. We
agree. “[T]he omission of an element is an error that is subject to harmless-error
analysis.” Neder, 527 U.S. at 16; see also Sullivan v. Louisiana, 508 U.S. 275, 279
(1993). Given the overwhelming weight of evidence supporting Sasser’s conviction,
we “conclude beyond a reasonable doubt that the jury verdict would have been the
same absent the error.” Neder, 527 U.S. at 19; cf. Sasser 1999, 993 S.W.2d at 908
(“[T]here is ample evidence in the record to support a finding of either kidnapping,
attempted kidnapping, or attempted rape as the underlying felony for the capital
murder charge.”). Sasser “has presented no plausible argument,” Johnson v. United
States, 520 U.S. 461, 470 (1997), that his actions did not constitute kidnapping,
attempted kidnapping, or attempted rape under Arkansas law. Even if the error were
serious enough to preclude finding Sasser guilty of felony murder based on either of
the attempt crimes, the error would still be harmless. Overwhelming evidence
supported a conviction for felony murder based on the underlying felony of
completed kidnapping, as to which the trial court correctly instructed the jury. Sasser
is not entitled to habeas relief on this claim.

III.  CONCLUSION
      We dismiss the claims Sasser attempts to raise for the first time on appeal. We
affirm the district court’s dismissal of all of Sasser’s remaining claims with the
exception of his Atkins claim and the four ineffective assistance claims meriting a

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hearing under Trevino.13 We vacate (1) the district court’s denial of relief on these
four claims, and (2) the district court’s finding that Sasser is not mentally retarded
under Atkins. We reverse the district court’s denial of a hearing on the four
potentially meritorious ineffective assistance claims. We remand for further
proceedings consistent with this opinion, including (1) a hearing on the four
ineffective assistance claims, and (2) a new Atkins finding under the appropriate
standard.
                       ______________________________




      13
       In a conclusory manner, Sasser claims (1) the Arkansas death penalty statute
is unconstitutional, and (2) requiring prospective jurors to take an additional oath
before being questioned about their attitudes toward the death penalty is
unconstitutional. Both claims are meritless under current, well-settled law. See, e.g.,
Lockhart v. McCree, 476 U.S. 162 (1986); Gregg v. Georgia, 428 U.S. 153 (1976).

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