                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0203p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 HECK VAN TRAN,                                          ┐
                                Petitioner-Appellant,    │
                                                         │
                                                         │       No. 11-5867
        v.                                               │
                                                          >
                                                         │
 ROLAND COLSON, Warden,                                  │
                                Respondent-Appellee.     │
                                                         ┘
                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis
                    No. 2:00-cv-2451—Samuel H. Mays, Jr., District Judge.
                                     Argued: June 12, 2013
                              Decided and Filed: August 25, 2014

                    Before: ROGERS, COOK, and WHITE, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for
Appellant. James E. Gaylord, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN,
PLLC, Memphis, Tennessee, Brock Mehler, Nashville, Tennessee, for Appellant. James E.
Gaylord, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee. Steven J. Mulroy, CECIL C. HUMPHREYS SCHOOL OF LAW, Memphis,
Tennessee, for Amici Curiae.

                                      _________________

                                           OPINION
                                      _________________

       ROGERS, Circuit Judge. Heck Van Tran, a Tennessee prisoner under sentence of death,
appeals the district court’s judgment denying his petition for a writ of habeas corpus pursuant to




                                                1
No. 11-5867                    Van Tran v. Colson                                               Page 2

28 U.S.C. § 2254. Van Tran raised twenty-six claims in his original habeas petition. The district
court and this court have certified three claims for this appeal: (1) whether Van Tran is
intellectually disabled and his execution would therefore violate the Eighth Amendment under
Atkins v. Virginia, 536 U.S. 304 (2002);1 (2) whether, as applied to Van Tran’s crime, the
“heinous, atrocious, or cruel” aggravating circumstance of the capital jury instruction violates the
Eighth and Fourteenth Amendments; and (3) whether Van Tran’s penalty phase counsel was
ineffective, thereby violating the Sixth, Eighth, and Fourteenth Amendments. The district court
committed no error in denying the writ of habeas corpus on the second and third claims. With
respect to the first claim, however, because the Tennessee state court’s decision did not apply the
proper legal standard for assessing whether Van Tran has intellectual disability, which was
announced in a recent decision of the Tennessee Supreme Court, the district court’s judgment
must be vacated and remanded. In accordance with the Supreme Court’s command that the
procedural scheme for enforcing Atkins is within the state’s purview and because the State is
faced with a state law–imposed procedural burden it could not have anticipated at the time of the
original state-court Atkins hearing, we remand for the entry of a conditional writ of habeas
corpus to allow the state courts to consider Van Tran’s Atkins claim under the proper, now-
governing standard.

                                                          I.

         Heck Van Tran was born in 1966 in Vietnam, during the Vietnam War, the son of a
Vietnamese woman and an American serviceman. Van Tran’s father died two years after his
birth. Van Tran and his mother lived in poverty, and as a young child Van Tran suffered severe
social deprivation and inadequate support. He began speaking at a late age, although even after
beginning to speak he had difficulty articulating words and spoke infrequently and in short


         1
           The lower courts in this case, as well as the parties until now, have used the term “mental retardation” to
describe a neurological condition typified by significant limitations in both intellectual and adaptive functioning.
More recent judicial opinions and the professional community have adopted the contemporary term “intellectual
disability,” which describes the identical specific condition (despite the new term’s arguably different sense in
common parlance). See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). This semantic practice has also been adopted
by the State of Tennessee. Coleman v. State, 341 S.W.3d 221, 226 n.5 (Tenn. 2011); 2010 Tenn. Pub. Acts ch. 734
(modifying Tenn. Code Ann. § 39-13-203). In light of the practice now accepted among courts, legislatures, and the
professional community, we adopt for our present analysis the term “intellectual disability.” However, where
quoting and discussing previous opinions and reports that employed the term “mental retardation,” we will employ
the old term for clarity of reference.
No. 11-5867                    Van Tran v. Colson                                               Page 3

phrases. He and his mother were relocated to Memphis by a charitable organization in 1983. He
attended one year of school in the United States, during which he had good attendance but got
poor grades. He dropped out in 1984.

         In October 1987, Van Tran and three accomplices participated in an armed robbery of the
Jade East Restaurant in Memphis, Tennessee, where Van Tran had been employed and from
which he had been fired a month or two before. During the robbery, three people were killed. A
fourth, a seventy-five-year-old woman, was beaten and knocked unconscious. The victims were
all related and worked in the restaurant together. The robbers obtained a few jewelry cases from
the restaurant’s back office, and two diamond rings, a necklace, and a watch that were taken
from the survivor’s person. A detailed summary of the incident, including the ensuing interstate
manhunt, is found in the Tennessee Supreme Court’s statement of the facts at State v. Van Tran,
864 S.W.2d 465, 468–70 (Tenn. 1993). For the purposes of this appeal, it suffices to summarize
a few additional facts.

         During the robbery, Van Tran twice shot Kai Yin Chuey, a slight, seventy-four-year-old
woman. The first time he shot her through her windpipe, although he claims that this was an
accident. A few moments later, he placed the gun directly against the back of her skull and shot
her again, killing her instantly. During the robbery, two others were killed. Van Tran shot one
of them in the face; his accomplices shot the other while Van Tran collected the loot.

         Six months later, Van Tran was arrested in Houston, where he confessed that he
participated in the robbery. After trial, Van Tran was convicted of three counts of felony
murder; he was sentenced to death for each count on the basis of two aggravating circumstances,
one of which was that the murder was found to be “especially cruel in that it involved depravity
of mind.” Id. at 470.2 On direct appeal, the Tennessee Supreme Court affirmed Van Tran’s
convictions on the three counts of felony murder, but reversed his sentence of death for two of
the three murders, affirming the death sentence only for the murder of Kai Yin Chuey. Id. at
482. In arriving at this decision, the state supreme court disapproved of the deletion of the words


         2
          Under the Tennessee Code at the time, a defendant could be sentenced to death if the jury found that
“[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Van Tran,
864 S.W.2d at 478 (quoting Tenn. Code Ann. § 39-2-203(i)(5) (1982)).
No. 11-5867                Van Tran v. Colson                                        Page 4

“heinous” and “atrocious” from the aggravating circumstance instruction. However, the court
ultimately affirmed on the grounds that the curtailed instruction did not likely confuse the jurors,
that the jury still made the dispositive “depravity of mind” finding, and relatedly, that the failure
to include those terms in the instruction had no effect on the result. Id. at 479.

       In addition, the Tennessee Supreme Court independently determined that there was
sufficient evidence presented at trial to find that the killing of Kai Yin Chuey evinced “depravity
of mind.” Id. at 480. In making this determination, the court summarized the murder in the
following manner:

       In [Kai Yin Chuey’s] case we have a helpless 74-year-old woman, who had
       already been shot by the Defendant and was lying on the floor unable to protect
       herself when the Defendant put a gun to the back of her head and shot her a
       second time. We find the evidence of this brutal and senseless execution of a
       helpless old woman sufficient to support this aggravating circumstance in the
       murder of Kai Yin Chuey.

Id.

       Van Tran filed a state postconviction petition in March 1995, claiming, among other
things, that he received ineffective assistance of counsel and that he should not be executed
because he is mentally retarded and incompetent. After being denied relief in the postconviction
trial court, Van Tran appealed to the Tennessee Court of Criminal Appeals (TCCA), where the
trial court’s judgment was affirmed. Van Tran v. State, No. 02C01-9803-CR-00078, 1999 WL
177560, at *13 (Tenn. Ct. Crim. App. Apr. 1, 1999). Regarding Van Tran’s claim of ineffective
assistance of counsel for failure to investigate and present additional mitigating evidence during
the penalty phase, the appellate court found that trial counsel conducted a proper investigation
and that there was no prejudice. Id. at *11–12. As to whether Van Tran’s execution was
prohibited by state statute because of his mental retardation, the appeals court deferred to the
postconviction trial court’s finding that Van Tran’s I.Q. was above 70, which was based upon the
State’s expert’s testimony that Van Tran’s expert had misread the manual related to I.Q.
calculation and had arrived at an erroneously low figure. Id. at *6.

       With respect to only the issue of whether Van Tran’s execution was prohibited because of
mental retardation, Van Tran’s petition eventually reached the Tennessee Supreme Court, which
No. 11-5867                    Van Tran v. Colson                                              Page 5

took up the case “in order to clarify the procedure by which a prisoner who has been sentenced to
death may raise the issue of present mental competency to be executed.” Van Tran v. State,
6 S.W.3d 257, 260 (Tenn. 1999). The court denied Van Tran’s request for relief primarily on the
ground that the issue of his competency for the purposes of execution was not ripe for resolution,
because the execution was not imminent. Id. at 274. Van Tran filed a motion to reopen his
postconviction petition in February 2000, alleging that new evidence established that he was
mentally retarded and was therefore ineligible for the death penalty under state law. When this
petition reached the Tennessee Supreme Court, that court announced as an issue of first
impression that execution of mentally retarded persons was prohibited by the Eighth Amendment
of the U.S. Constitution and Article I, Section 16 of the Tennessee Constitution. Van Tran v.
State, 66 S.W.3d 790, 809 (Tenn. 2001).                     The state supreme court remanded to the
postconviction trial court for a hearing on the issue of whether Van Tran qualified as mentally
retarded. Id. at 812. Furthermore, the court held that mental retardation, for the purposes of the
state and federal constitutions, was defined by the Tennessee Code. The code defined mental
retardation, for the purposes of prohibiting the execution of those with mental retardation,
according to the following three necessary criteria: “(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) mental retardation manifested during the
developmental period, or by eighteen (18) years of age.” Id. (citing Tenn. Code Ann. § 39-13-
203 (1997)). Within a year, the United States Supreme Court would similarly hold that the
execution of persons with mental retardation violates the United States Constitution. Atkins v.
Virginia, 536 U.S. 304, 321 (2002).3

        On remand, the postconviction trial court held a trial to determine whether Van Tran was
mentally retarded as defined by § 39-13-203 of the Tennessee Code.                             At the trial, two
psychologists testified that Van Tran is mentally retarded under the statute’s definition. Van
Tran v. State, 2006 WL 3327828, at *2–13 (Tenn. Ct. Crim. App. Nov. 9, 2006). Both doctors
based their conclusions on tests personally administered to Van Tran, his institutional records,

        3
           Because the United States Constitution provides the legal basis for habeas relief in this court and Atkins
and Van Tran announce identical prohibitions on the execution of persons with intellectual disability, we will refer
to the claim that a capital defendant cannot be executed because of intellectual disability as an Atkins claim.
No. 11-5867                   Van Tran v. Colson                                               Page 6

and interviews with him, his mother, and others who knew him. In addition to finding that Van
Tran currently has an I.Q. of seventy or below and suffers from numerous deficits in adaptive
behavior,4 both experts concluded that Van Tran’s deficits manifested themselves during the
developmental period, before Van Tran was eighteen years old. Dr. Daniel Grant based this
conclusion on a social history that discussed Van Tran’s late language skills, his difficulties in
school, and his lack of success in living independently. Id. at *5. Dr. Pamela Auble based her
conclusion that Van Tran’s impairments appeared during the developmental period on numerous
risk factors provided in the tenth edition of the American Association on Mental Retardation’s
reference manual, including a traumatic brain injury during youth, malnutrition, poverty, lack of
social resources, and prenatal maternal smoking. Id. at *11; see also American Association on
Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 127
tbl. 8.1 (10th ed. 2002) (“AAMR 10th”).

        The State presented no testimony to contradict the findings of Van Tran’s experts,
although it did test Van Tran’s experts with some cross-examination.

        The postconviction trial court denied Van Tran’s request for relief, finding that he had
not demonstrated mental retardation under the Tennessee statute by a preponderance of the
evidence. Van Tran, 2006 WL 3327828, at *15. Although the court found that Van Tran
satisfied the first prong by proving that he has a functional I.Q. of seventy or below, the court
determined that Van Tran had failed to meet his burden of proof for the second and third prongs.
With respect to the second prong, the existence of deficits in adaptive behavior, the court found
that Van Tran had demonstrated an adaptive deficit in only one area, that of communication.
The court weighed the experts’ testimony against evidence that Van Tran had held a few jobs
and had occasionally cooked for and cared for others. The court held that, in light of the

        4
          The trial court, following some of the experts’ testimony and the typical test used by Tennessee courts,
adopted the following definition of “adaptive deficits” for the purposes of the second prong:
        The DSM-IV defines adaptive behavior using a set of ten criteria, as adopted from the Manual of
        the American Association of Mental Retardation 9th Edition. The ten criteria listed for
        consideration include: social interpersonal skills, communication, self-direction, work, leisure,
        home living, functional academics, self-care, health and safety, and use of community resources.
        In order to have significant deficits in adaptive behavior, a person must demonstrate deficits in at
        least two of these areas.
See also Van Tran, 66 S.W.3d at 795 (endorsing ten-area framework).
No. 11-5867                Van Tran v. Colson                                      Page 7

evidence of Van Tran’s at least somewhat successful social and individual functioning, he had
not demonstrated by a preponderance of the evidence that he suffered adaptive deficits in the
areas of self-direction, social interpersonal skills, personal health and safety, or functional
academics. Id. at *16. Because the court found that Van Tran suffered from a deficit in only one
area of adaptive functioning, it concluded that Van Tran did not meet the second prong.
Regarding the third prong, the trial court found that Van Tran had not presented sufficient
evidence demonstrating the manifestation of deficits before the age of eighteen. The court noted
that no test of intellectual functioning was administered prior to Van Tran’s incarceration and
that neither testifying expert “could offer any real proof to establish that the deficits occurred
prior to the age of eighteen.” Id. at *17. The court also noted that Van Tran’s current deficits,
rather than being caused by neurological deficit, could have been caused by neglect or paranoid
schizophrenia, which had not been diagnosed for many years. Id.

       On appeal, the TCCA affirmed the trial court’s denial of Van Tran’s request for relief.
Id. at *27. The appellate court agreed with the trial court that some of the adaptive functioning
tests used by Van Tran’s experts were untrustworthy because they relied on interviews with
people that either had not observed Van Tran frequently or had not observed him in a non-
institutionalized setting. Id. at *23. The appellate court emphasized Van Tran’s unique position,
suggesting that Van Tran’s limited education, history of drug and alcohol use, schizophrenia, and
lack of ordinary life experiences all negatively impacted the effectiveness of the living skills tests
that were used by the experts:

       We agree with the trial court’s assessment that the Petitioner is in a unique
       position. The Petitioner was born in Vietnam. There is no question that the
       Petitioner’s childhood was atypical. His social history reveals abuse, neglect, and
       social ostracism. He essentially “lived on the streets” until age seventeen when he
       came to this country through the assistance of Catholic Charities. The Petitioner’s
       formal schooling was limited to several years in Vietnam and about one year in
       this country. The Petitioner has spent the majority of his time in this country
       incarcerated. While the Petitioner’s experts maintained that the Petitioner was
       more proficient in the English language than in Vietnamese, proof at the
       Petitioner’s original post-conviction hearing indicated that the Petitioner had
       difficulty communicating with trial counsel until a Vietnamese interpreter was
       appointed. A social worker with Catholic Charities testified that the Petitioner
       spoke and understood the Vietnamese language. The Petitioner has a history of
       drug and alcohol use. The Petitioner has also been diagnosed with paranoid
No. 11-5867                Van Tran v. Colson                                     Page 8

       schizophrenia. The proof also corroborates the trial court’s conclusion that the
       Petitioner was in a position unique to most American adults. Dr. Grant conceded
       that the Petitioner had probably never “filled out a check, or a money order.”
       Moreover, there is no indication that the testing questions took into account the
       Petitioner’s lifestyle in Vietnam or that he has spent the majority of his adult life
       incarcerated. Accordingly, we agree with the trial court’s assessment that little
       weight should be given to the Petitioner’s below average score on the Independent
       Living Scale.

Id. at *24. The court also found:

       The circumstances of the Petitioner’s crime belie any assertion that the Petitioner
       suffered from any deficit in intellectual ability or adaptive skills. The Petitioner
       had previously been employed by the victims of his crime. He knew the layout of
       the restaurant and knew that jewelry was kept on the premises. The Petitioner did
       the talking with one of the victims at the onset of the crime. The Petitioner was
       the person that went into the office to collect the jewelry. After the crime, the
       Petitioner escaped with two of his co-defendants to Houston, Texas, where it was
       the Petitioner who arranged to sell the jewelry to a Vietnamese man for $4,000. It
       was also the Petitioner who paid this man from the proceeds and divided the
       money with his two co-defendants.

Id. at *25. Finally, the appellate court determined that Van Tran had not demonstrated that his
intellectual deficits manifested themselves prior to his reaching the age of eighteen:

       The Petitioner had not been administered any test of intellectual functioning prior
       to reaching the age of eighteen, and no testing was performed until ten years after
       his incarceration. The only proof establishing this third prong [was] reliance upon
       social factors present in the Petitioner’s childhood, including extreme poverty and
       child abuse. In this regard, we cannot conclude that the trial court’s conclusion
       that the Petitioner’s late development could have been the result of “neglect”
       rather than neurological deficit was in error or contrary to the evidence. The
       evidence of poverty, child abuse, lack of education, family dysfunction and poor
       social conditions are not enough to demonstrate that any deficits manifested
       during the developmental period. The proof established that the Petitioner
       supported himself, took care of others, and was employed. The proof also
       established that the Petitioner, with the aid of an interpreter, was able to assist and
       communicate with his trial attorneys. The occurrences of these abilities all
       occurred after the age of eighteen. Moreover, we conclude that the fact that the
       Petitioner admits to alcohol and drug abuse and the fact that he has been
       diagnosed with schizophrenia may have impaired his brain functioning. Finally,
       Dr. Auble’s litany of potential “risk factors” fail to provide sufficient facts to
       support the conclusion that any impairments were revealed during the
       developmental period. Accordingly, Petitioner cannot satisfy the third prong of
       the test for mental retardation.
No. 11-5867                Van Tran v. Colson                                    Page 9

Id. at *26.

        Tran originally filed his federal habeas petition in May 2000. In May 2001, the district
court entered an order holding the petition in abeyance while Van Tran exhausted his state-court
remedies. Tran v. Bell, 145 F. Supp. 2d 939 (W.D. Tenn. 2001). The district court took the case
out of abeyance in April 2007, after which Tran filed an amended petition raising twenty-six
claims in December 2007.

        On September 30, 2010, the district court denied Van Tran’s petition in its entirety.
Order, Van Tran v. Bell, No. 00-2451-SMH, at 140 (W.D. Tenn. Sept. 30, 201) (“District Court
Order”). Regarding Van Tran’s Atkins claim, the district court first held that the state court’s
determination that Van Tran was not limited in functional academics was an unreasonable
determination of the facts based on the evidence presented in the state court. Id. at 64. This
determination meant that Van Tran met his burden for the second prong, because the state court
had already found that he had a deficit in one other area, that of communication. However, the
district court went on to find that the state court was reasonable in its determinations that Van
Tran did not suffer from deficits in the areas of self-direction and social/interpersonal skills, on
the ground that the state court was able to base its conclusion on record evidence that
contradicted the experts’ testimony about Van Tran’s gullibility, lack of personal responsibility,
and mental rigidity. Id. at 66–68.

        Despite finding that the state court was not reasonable in finding that Van Tran did not
suffer from deficits in adaptive behavior, the district court found reasonable the state court’s
ultimate finding that Van Tran had not sufficiently demonstrated mental retardation, based solely
upon Van Tran’s failure to meet the third prong. In particular, the district court held that the
state postconviction appellate court’s finding, namely that Van Tran did not sufficiently
demonstrate that his intellectual deficits manifested themselves in the developmental stage, was
neither contrary to nor an unreasonable application of federal law, and was not based on an
unreasonable determination of the facts in light of the evidence presented. Id. at 75. The district
court reasoned that “[a]n expert’s testimony that an individual is ‘at risk’ of mental retardation
because of congenital factors, poverty, and abuse is not enough to support an Atkins claim.” Id.
at 74 (citing In re Mathis, 483 F.3d 395, 398–99 (5th Cir. 2007)). The court also reasoned that a
No. 11-5867                  Van Tran v. Colson                                 Page 10

lack of evidence does not entitle a petitioner to relief. Id. The district court went on to support
the state court’s finding:

        In the instant case, the Tennessee Court of Criminal Appeals’ determination was
        not based solely on the fact of Van Tran’s schizophrenia, but also on the lack of
        evidence available about Van Tran’s early development. The court noted Van
        Tran’s abilities in contrast to his stated deficits and the possible effects of drug
        abuse and mental illness on his cognitive abilities. Despite some possibility that
        Van Tran suffered significant adaptive deficits before age 18, the court’s
        determination that he failed to meet his burden is neither contrary to nor an
        unreasonable application of clearly established precedent, or based on an
        unreasonable determination of facts in light of the evidence presented. Van Tran
        has not satisfied the requirements to prove mental retardation and obtain habeas
        relief for his Atkins claims.

Id. at 75.

        Next, the district court held that the state supreme court’s narrowing construction of the
aggravating circumstance was constitutional, because it provided specific and detailed guidance
rendering the capital process susceptible to rational review. Id. at 96–97. The court also held
that the state supreme court’s determination that there was sufficient evidence to find that the
facts of Van Tran’s crime evinced “depravity of mind” was neither contrary to nor an
unreasonable application of clearly established federal law and was based on a reasonable
determination of the facts. Id. at 98. Regarding the ineffective-assistance-of-counsel claim, the
district court held that the state appellate court did not apply the Strickland test unreasonably and
did not rely on an unreasonable determination of the facts; the court noted that the evidence that
could have been presented at trial was not significantly different from what was actually
presented. Id. at 103–04.

        The district court granted Van Tran a certificate of appealability with respect to claim
(2), that he has mental retardation, and claim (4), that the “depravity of mind” aggravating
circumstance was unconstitutionally vague as applied. Id. at 140–42. Van Tran moved this
court to expand the scope of this appeal, and we subsequently certified claim (7), that Van Tran
received ineffective assistance of trial counsel during the penalty phase because his counsel
failed to properly investigate and present all available mitigating evidence.
No. 11-5867                Van Tran v. Colson                                   Page 11

                                                 II.

A. Standard of Review and Governing Law

       The merits of Van Tran’s habeas claims are governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA), under which a writ of habeas corpus may not be granted unless the
state court’s adjudication of the claim “(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 Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010).

       Under the “contrary to” clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if
the state court decides a case differently than the Supreme Court on a set of materially
indistinguishable facts.   Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor,
529 U.S. 362, 412–13 (2000). To obtain habeas relief, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

       State court determinations of fact are presumed to be correct, and the petitioner bears the
burden of rebutting this presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). Our review under § 2254(d)(1) is limited to the record that was before the state
court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

B. Atkins Claim

       The Eighth and Fourteenth Amendments prohibit the execution of intellectually disabled
persons. Hall v. Florida, 134 S. Ct. 1986, 1990 (2014); Atkins v. Virginia, 536 U.S. 304, 321
(2002). The Supreme Court left to the individual states “the task of developing appropriate ways
to enforce the constitutional restriction.” Atkins, 536 U.S. at 317. Accordingly, the Atkins Court
“did not provide definitive procedural or substantive guides” for enforcing the Atkins protection.
Bobby v. Bies, 556 U.S. 825, 831 (2009). The Court recently elucidated this vague command:
No. 11-5867                 Van Tran v. Colson                                  Page 12

        [T]he States play a critical role in advancing protections and providing the
        [courts] with information that contributes to an understanding of how intellectual
        disability should be measured and assessed. But Atkins did not give the States
        unfettered discretion to define the full scope of the constitutional protection.

Hall, 134 S. Ct. at 1998. Thus, the Tennessee legislature and courts have discretion, within
reason, to determine the procedures by which the Tennessee courts will ensure that persons with
intellectual disability are not executed in violation of the Eighth Amendment. The Tennessee
legislature and courts also have discretion to define intellectual disability substantively for the
purposes of Atkins, but this latter discretion is limited.

        Tennessee, in accordance with longstanding clinical practice, has adopted the standard
definition of intellectual disability with the following three elements: “(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.” State v. Pruitt, 415 S.W.3d 180, 202 (Tenn. 2013) (quoting Tenn. Code Ann. § 39-13-
203(a)); see also Hall, 134 S. Ct. at 2003.

        The first prong of the definition of intellectual disability is not at issue, which the State
concedes. The second prong was met under the reasoning of the district court, which we uphold
on de novo review. Although the state court found that Van Tran had failed to meet the third
prong, this was contrary to or an unreasonable application of federal law in light of intervening
Tennessee law in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), in which the Tennessee
Supreme Court explicated the role of expert testimony in a court’s consideration of Atkins
claims. Under Coleman’s guidance, Van Tran should be granted a conditional writ of habeas
corpus in order to allow the state postconviction court to reconsider Van Tran’s Atkins claim
under the now-governing legal standard.

First Prong: Intelligence Quotient

        With regard to the first prong, the TCCA held that Van Tran had satisfied the first prong
of the test because he had proved by a preponderance of the evidence that he had a functional
No. 11-5867                Van Tran v. Colson                                  Page 13

I.Q. of 70 or below. Van Tran, 2006 WL 3327828, at *20 (Tenn. Ct. Crim. App. Nov. 9, 2006).
The parties do not contest this issue on appeal.

Second Prong: Adaptive Deficits

       With regard to the second prong, although the issue is close, the district court correctly
found that the state court unreasonably applied the facts in arriving at the conclusion that Van
Tran demonstrated only one adaptive deficit. Overall, the TCCA reasoned in a holistic way that
departed unreasonably from the reliable expert analyses used by Van Tran’s experts, which were
in accordance with the professionally accepted definitions provided by the statute and the clinical
best practices endorsed by the Tennessee Supreme Court. The reliable and professionally vetted
methods presented by Van Tran’s experts, from which the legal standards draw their substance,
must guide the court’s inquiry. The postconviction trial and appellate courts’ ad hoc, ostensibly
commonsense reasoning, by itself, is not sufficient to reject the experts’ conclusions that Van
Tran has more than one adaptive deficit.

       The Tennessee Supreme Court has stated generally that “deficits in adaptive behavior
‘mean[s] the inability of an individual to behave so as to adapt to the surrounding
circumstances.’” Coleman, 341 S.W.3d at 248 (quoting State v. Smith, 893 S.W.2d 908, 918
(Tenn. 1994)). In order to demonstrate deficits in adaptive behavior sufficient to satisfy the
second prong of the intellectual disability test, Tennessee courts typically require the defendant
to demonstrate “significant limitations” in 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.” See Van Tran v. State, 66 S.W.3d
790, 795 (Tenn. 2001) (citing American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 39 (4th ed. 1994) (“DSM-IV”)). This approach, as clearly set out in
the Van Tran opinion of 2001 and borrowed from the DSM-IV (and its revision, the DSM-IV-
TR), was cited with approval by the state supreme court in the recent Coleman opinion.
Coleman, 341 S.W.3d at 248–49; see also American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 49 (4th rev. ed. 2000) (maintaining two-out-of-ten-area
framework). Similarly, in Howell v. State, the state supreme court intimated approval of the two-
or-more-deficits approach by stating that “the most widely recognized definitions of mental
No. 11-5867                    Van Tran v. Colson                                             Page 14

retardation include two basic characteristics: significantly subaverage intellectual functioning
accompanied by related limitations in two or more adaptive skill areas (such as self-care,
communication, or social skills), and manifestation of the condition before age 18.” 151 S.W.3d
450, 457 (Tenn. 2004) (emphasis added). Most importantly, the state postconviction courts
below appeared to use this framework in analyzing Van Tran’s adaptive deficits. For these
reasons, although other frameworks could be used,5 it is most appropriate in this case to adhere
to the two-out-of-ten framework on habeas review of the state court’s decision.

         As an initial matter, it is uncontested that Van Tran suffers from deficits in
communication, one of the ten areas of adaptive behavior. In order to satisfy the second prong,
therefore, Van Tran had to demonstrate by a preponderance of the evidence that he suffers from
a deficit in at least one of the other areas. Because we conclude, like the district court below,
that it was not reasonable for the Tennessee courts to find no adaptive deficit with respect to
functional academics, we need not address the remaining eight factors.

         The district court correctly determined that the TCCA’s “determination that Van Tran
was not limited in functional academics, especially considering the court’s finding that he had
deficits in reading proficiency and language skills, was an unreasonable determination of fact
based on the evidence presented.” District Court Order at 64. The State’s brief on this appeal
devotes little more than a page to refuting this conclusion. Appellee’s Br. at 53–54. The
evidence presented in the record demonstrates that Van Tran had significant deficits in the area
of functional academics. The state trial court, in an analysis adopted by the TCCA, reasoned as
follows in rejecting the functional academics adaptive deficit:




         5
           For example, the American Association on Mental Retardation changed the adaptive behavior analysis in
the Tenth Edition of its manual. The Ninth Edition, released in 1992, employed the two-out-of-ten framework. See
AAMR 10th at 25. However, the Tenth Edition, released in 2002, employed three broader categories that it deemed
“are more consistent with the structure of existing measures and with the body of research evidence on adaptive
behavior.” Id. at 73. Now, the requirement of “significant limitations in adaptive behavior” has been “operationally
defined as performance that is at least two standard deviations below the mean of either (a) one of the following
three types of adaptive behavior: conceptual, social, and practical, or (b) an overall score on a standardized measure
of conceptual, social, and practical skills.” Id. at 13. Although this analysis was explained by Dr. Auble and both
Drs. Grant and Auble applied tests that purport to assess adaptive behavior pursuant to the Tenth Edition, see Van
Tran, 2006 WL 3327828, at *21–23, it is sufficient for our purposes to rely solely on the two-out-of-ten test that is
used most frequently by the Tennessee courts and which appeared to be the primary guide in the analysis of the state
court in this case.
No. 11-5867               Van Tran v. Colson                                    Page 15

       Finally, the court further disagrees with the assessment that petitioner suffers
       deficits in the area of functional academics. The court does not disagree that the
       petitioner has deficits in the area of reading proficiency and language skills, but
       finds petitioner’s deficits are more in the area of communication than functional
       academics. Petitioner only attended school in the United States for one year, and
       attended school in Vietnam sporadically for a total of only two years. To the
       court’s knowledge, no records exist from the school(s) in Vietnam. Moreover, on
       the one test designed to determine petitioner’s functional academic level,
       petitioner’s score was not below average. Dr. Grant testified that he administered
       the Kaufman Functional Academic Skills Test and petitioner’s functional
       academic score was 79. In looking at the individual parts of the test, petitioner’s
       math score was much higher than his reading score. Other testing seemed to
       indicate the same pattern. Despite the fact that these tests may indicate some
       academic deficit in the area of reading, this court finds it is unable to say such
       results indicate an overall deficit in the area of functional academics. This is
       especially true in light of the court’s conclusion that petitioner does have deficits
       in communication and Dr. Grant’s testimony that all of the tests were given in
       English without the aid of an interpreter. While[] Dr. Grant maintains the
       petitioner’s English skills are better than his Vietnamese, this court finds this fact
       significant in evaluating the weight to be given to Dr. Grant’s conclusions. Given
       the fact that the petitioner’s functional academic score was 79; the fact that the
       petitioner may have had difficulty understanding the testing due to the language
       barrier; the fact that petitioner has a very limited formal education; and the fact
       that the only areas where petitioner showed deficiencies were in the areas
       involving language skills, this court finds the evidence does not establish deficits
       in the area of functional academics.

       This discounting of expert testimony was based on the trial court’s refusal to accept the
expert conclusions of Van Tran’s witnesses, in light of the district court’s disagreement with the
expert opinions as to what the tests indicated and how the test results were affected by the fact
that English was Van Tran’s second language. These conclusions, while perhaps reasonable in
appearance to a layperson, are in the context of this case too unsupported by the record to be
upheld as reasonable. The State presented no testimony to contradict the conclusions of Van
Tran’s experts, all of whom agreed that he suffered significant deficits in functional academics.

       Dr. Adler, a nationally certified school psychologist, testified that Van Tran was
“functionally illiterate” and could not, for example, comprehend a newspaper article written at a
sixth-grade level.   Dr. Grant, a board-certified forensic examiner and neuropsychologist,
administered the Kaufman Academic Skills Test, on which Van Tran scored an arithmetic
standard score of 93, a reading standard store of 66, and a functional academic score of 79. Dr.
No. 11-5867                Van Tran v. Colson                                   Page 16

Grant emphasized that the fact that Van Tran does not suffer a “significant deficit” in arithmetic
did not change his conclusions, noting that “retarded individuals are just like the rest of us, they
have strengths and they have weaknesses.” Dr. Grant testified that Van Tran was reading at a
fourth-grade level, and that it was important to note that he continued to read at a fourth-grade
level even after eight or nine years of instruction in a G.E.D. program. Similarly, Dr. Auble
concluded, based on Van Tran’s plateauing at a fourth grade–level reading skill, that Van Tran
demonstrates an adaptive deficit in functional academics, noting that “he really has not
progressed much in terms of his functional academics despite many, many[] years of schooling.”

       The expert testimony explicitly refuted the concern that the tests were affected by the fact
that the tests were conducted in English, Van Tran’s non-native language. Dr. Grant explained
in his testimony why he decided to conduct his tests on Van Tran in the English language even
though Van Tran’s native tongue is Vietnamese. Dr. Grant testified that Van Tran is seriously
deficient in Vietnamese and that he performed no better than a child in effectively
communicating in Vietnamese. Dr. Grant also noted that his colleague Dr. Wasserman, a
bilingual psychologist, had determined that Van Tran’s proficiency in English exceeded his
proficiency in Vietnamese and that he would score higher on tests in English than in Vietnamese.
A bilingual correctional officer also confirmed that Van Tran’s proficiency in Vietnamese is
“very low.” The State presented no evidence contradicting the expert evidence that Van Tran
was more proficient in English than Vietnamese.

       Because the State presented no evidence to support the theory that Van Tran’s tests
administered in English were unreliable because they were not given in his native language, the
state court unreasonably discredited the testimony of the psychologists who administered Van
Tran’s tests in English. Given that there are various considerations in the choice of which
language to use, and that the diagnostic tests were administered and interpreted by a member of
the professional group that designs and frequently applies the tests, the choice of the language in
which to administer the test is reasonably within the clinical discretion of the professional
administering the test. Without a contradictory analysis by another member of the profession, a
court is in no position to question the professional judgment used in decisions associated with the
administration of a clinical diagnostic test. This conclusion finds some support in an Atkins case
No. 11-5867                Van Tran v. Colson                                   Page 17

from the Fifth Circuit. In Rivera v. Quarterman, the Fifth Circuit considered the State of Texas’s
argument that the intelligence tests administered to a bilingual capital defendant should have
been adjusted upward to compensate for his bilingualism. 505 F.3d 349, 361 (5th Cir. 2007).
The psychiatrist who had administered the test testified that she spoke with the defendant before
administering the test and had no trouble communicating with him in English. Id. In addition,
other witnesses testified that they conversed with the defendant in English and without
communication difficulties. Id. However, the State presented the testimony of an expert who
explained that the defendant’s bilingualism negatively impacted his verbal acuity and thereby
artificially decreased the results of the I.Q. test administered by the defendant’s expert. Id. The
Fifth Circuit rejected the State’s argument that the district court erred by crediting the testimony
of the psychiatrist who administered the test, largely because, as Texas’s own expert witness
acknowledged on the stand, the ultimate decision of which language in which to administer the
intelligence tests is a clinical judgment that must be made with the clinician’s professional
judgment. Id. at 362. In the present case, the State’s argument that the tests were unreliable is
even less plausible, because the State relied neither on a general theory about bilingualism nor on
any expert testimony presented.

       Notwithstanding the TCCA’s general failure to adhere to the clinical framework, the
sophistication of the crime and Van Tran’s role in it are mostly irrelevant to the very narrow,
clinically defined question of whether Van Tran suffers a deficit in the area of functional
academics. In Hooks v. State, the Oklahoma Court of Criminal Appeals held that evidence that
the defendant ran a prostitution ring was admissible at an Atkins hearing, because a crime that
involved a continuing criminal enterprise “requires a level of abstract thought, coupled with the
ability to carry out plans, which might be beyond the capabilities of a mentally retarded person.”
126 P.3d 636, 644 (Okla. Ct. Crim. App. 2005). By contrast, the court noted that “individual
acts of violent crime, such as armed robbery or rape, require little or no abstract thought or
complex planning.” Id. Van Tran’s murder is of the latter kind; it was impulsive, committed in
the heat of a tense moment during an armed robbery performed with accomplices. Fleeing the
jurisdiction with his accomplice does not indicate forethought or planning, but rather an
impulsive response to an armed robbery gone awry. Selling the stolen goods is a fairly basic
response to the desperate situation in which Van Tran and his accomplice surely found
No. 11-5867                Van Tran v. Colson                                    Page 18

themselves. None of these actions is so sophisticated or elaborate that the intellectually disabled
could not have performed it.

       Furthermore, the overemphasis on certain perceived strengths, inferred from anecdotal
evidence, is inconsistent with the expert testimony and accepted professional analyses. Dr. Grant
testified that “retarded individuals . . . have strengths and they have weaknesses.” Indeed, one of
the “essential” assumptions of the clinical definition is: “Within an individual, limitations often
coexist with strengths.” AAMR 10th at 1, 8. In Black v. Bell, we noted expert testimony that
“someone might be mentally retarded but still be able to carry out any of a number of everyday
activities, such as maintaining a simple job or driving a car.” 664 F.3d 81, 99 (6th Cir. 2011).
Thus, we held that, in light of the expert testimony presented, “[a] full, independent review of
whether [the petitioner] showed . . . that he displayed adaptive deficits . . . must therefore look at
his weaknesses instead of at his strengths.” Id.; see also United States v. Davis, 611 F. Supp. 2d
472, 499, 501 (D. Md. 2009).

       The irrelevance of Van Tran’s criminal conduct to functional academics is consistent
with the TCCA’s decision in Howell v. State, No. W2009-02426-CCA-R3-PD, 2011 WL
2420378 (Tenn. Ct. Crim. App. June 14, 2011). In affirming the postconviction trial court’s
finding that the defendant did not exhibit at least two deficits in adaptive behavior, the appellate
court accepted that “the facts and circumstances of Petitioner’s convictions reflect that Petitioner
adapted and adjusted to his surroundings throughout the course of his three state crime spree,” id.
at *19, and upheld the trial court’s use of anecdotal evidence to contradict the expert conclusions
about “additional deficits in adaptive behavior,” id. at *18. However, the appellate court did not
use this assessment to contest the expert testimony presented to demonstrate deficits in academic
functioning. See id. Rather, the trial court had accepted the experts’ findings that there were
deficits in “academic functioning” and used the anecdotal evidence to counter “claims of
additional deficits,” for which “the testing was done retroactively and was contradicted by
Petitioner’s conduct.” Id. The most natural reading of the Howell decision supports the use of
relevant anecdotal evidence to contradict specific findings regarding individual adaptive deficits,
especially where there is a dearth of directed expert testimony regarding those deficits. Here,
although Van Tran’s crime and ensuing actions could provide useful data points in assessing
No. 11-5867                   Van Tran v. Colson                                Page 19

adaptive behavior deficits, the persuasive expert testimony that Van Tran suffered a deficit in the
area of functional academics was not contradicted by the facts of his conviction.

       The foregoing does not undermine the court’s ultimate decision-making role. As the
Supreme Court said in Kansas v. Crane, 534 U.S. 407, 413 (2002), “the science of psychiatry,
which informs but does not control ultimate legal determinations, is an ever-advancing science,
whose distinctions do not seek precisely to mirror those of the law.” However, where lawmakers
deliberately incorporate clinical standards into legal definitions, the courts strain the limits of
reasonableness by rejecting expert opinions based exclusively on the courts’ own inexpert
analysis. Although “the trial court is not required to follow the opinion of any particular expert,”
it “must give full and fair consideration to all the evidence presented.” Coleman, 341 S.W.3d at
at 242. The Tennessee Supreme Court has emphasized the importance of clinical judgment in
guiding the courts to overall more accurate and consistent decisions. See id. at 246–47.

       Because the postconviction courts performed an analysis in terms of these ten areas of
adaptive deficits, which it borrowed from the methods used by the expert witnesses, our review
utilizes the same framework. Adherence to some chosen clinical framework, even if such
adherence is not rigid, appears to be required by Tennessee law. In a comprehensive review of
the state supreme court’s previous decisions interpreting § 39-13-203, the Coleman court stated
that one of the principles guiding the application of the statute is that “[t]he Court’s application
of the statute may be guided and informed by the clinical standards, criteria, and practices
customarily used to assess and diagnose intellectual disability.” Coleman, 341 S.W.3d at 240
(citing State v. Strode, 232 S.W.3d 1, 14 (Tenn. 2007)). Although the use of the term “may”
appears permissive, the state supreme court in the same opinion communicated a strong policy in
favor of employing clinical definitions, supplied necessarily by experts in the field of intellectual
disability, when it stated that “[a]ligning the application of the statute with the clinical approach
to diagnosing and assessing intellectual disability will result in more accurate and consistent
decisions.” See id. at 247.

       Indeed, the state supreme court has consistently indicated that the clinical definitions,
although not binding, have a close semantic relationship to the statutory definition. For example,
the Van Tran opinion of 2001 stated that the Tennessee courts refer to the DSM-IV framework
No. 11-5867                Van Tran v. Colson                                   Page 20

for assessing adaptive deficits “for the purpose of providing insight and background into mental
retardation,” although not strictly “for the purpose of expanding upon or interpreting the
statutory definition in Tennessee.” 66 S.W.3d at 795 n.4. Citing this statement with approval,
the Coleman court stated: “Tennessee courts have thus relied on this [clinical] definition to better
understand what the Tennessee Code means by addressing deficits in adaptive behavior.”
341 S.W.3d at 248 n.86. The ten-area framework from the DSM-IV was cited with approval yet
again in the Tennessee Supreme Court’s most recent decision expounding § 39-13-203, which
called the DSM-IV’s ten-area framework “[t]he accepted clinical definition of adaptive
functioning.” State v. Pruitt, 415 S.W.3d 180, 204 (Tenn. 2013). The most reasonable reading
of these various propositions is that the courts should be guided, though not constricted, by the
two-out-of-ten-area clinical definition from the DSM-IV.

       More importantly, the court must assess adaptive deficits in light of the expert testimony
presented by the parties. The trial court “must give full and fair consideration to all of the
evidence presented,” especially the testimony of experts who “bring to bear and utilize reliable
practices, methods, standards, and data that are relevant in their particular fields.” Coleman,
341 S.W.3d at 242. Although not mandating any particular analysis for adaptive deficits, the
state supreme court in Coleman found that the trial court committed reversible error by
distinguishing causally between intellectual disability and mental illness where that distinction
was not supported by expert evidence, and hence there “was error in light of the evidence
presented by” the defendant’s expert witnesses. Id. at 251–52. Because “[t]he State presented
no contrary evidence,” there was “simply no sufficient basis on the present record to” make the
conceptual distinction the court made. Id. at 252 (emphasis added).

       The Tennessee Supreme Court’s recent decision in State v. Pruitt, 415 S.W.3d 180 (Tenn.
2013), reinforces the proposition that “full and fair consideration” of expert testimony requires
the trial court to treat as dispositive expert testimony establishing and utilizing methods of
analysis that is uncontradicted by other expert testimony. In that case, two of the defendant’s
experts testified that his I.Q. was below seventy. Id. at 202–03. One of the experts testified that
a raw score of of sixty-six might have been slightly below the defendant’s true level of cognitive
functioning because the defendant did not appear to take the test seriously; and the other expert
No. 11-5867                Van Tran v. Colson                                    Page 21

noted that the defendant, answering hastily, might not have thought through all of the questions.
Id. at 203. And “[a]lthough both experts stated that Mr. Pruitt may not have given his best effort
on the tests, neither testified that Mr. Pruitt’s I.Q. would have been higher than seventy if his
effort had been greater,” and “[n]either expert testified that Mr. Pruitt’s test scores were
‘unreliable.’” Id. The trial court nonetheless “found that neither [test score] was the product of
Mr. Pruitt’s best efforts and that his grades in school and [state achievement test] scores
indicated that the . . . test scores were unreliable.” Id. at 200. The Tennessee Supreme Court
reversed this finding, distinguishing between the experts’ speculative asides about the test
administration and the considerations that actually contributed to the experts’ final conclusions:

              . . . Although the scores in this case were called into question by the trial
       court, neither expert opined that Mr. Pruitt’s I.Q. was greater than seventy,
       whether through lack of effort or on some other basis for adjustment of the raw
       score. Neither expert testified that the tests had an element of unreliability in their
       administration.
               Under these circumstances, we are unwilling to uphold a finding that the
       tests are of no value in determining whether Mr. Pruitt has met his burden in
       showing that his I.Q. is seventy or below . . . . The evidence showed that Mr.
       Pruitt had I.Q. test scores below seventy. In the absence of expert testimony that
       his I.Q. was above seventy, we hold that the evidence preponderates against the
       trial court’s determination that Mr. Pruitt failed to prove that he had significantly
       subaverage general intellectual functioning as evidenced by a functional I.Q. of
       seventy or below.

Id. at 203. This analysis further supports Coleman’s implication that a trial court in Tennessee
cannot disregard reliable expert opinions on the issue of intellectual disability when those
opinions are based on clinically sound and professionally accepted methods and there is no other
expert testimony that supports an analysis leading to a contrary conclusion.

       It follows from the above discussion that Tennessee law does not permit the state trial
court to use its independent judgment to disregard uncontroverted expert analyses, consider
factors that the experts have testified are unreliable, or declare to be dispositive a factor
irrelevant to the clinical definitions employed by the experts. At one point, the Tennessee
Supreme Court declined to define in a careful and delineated form the term “adaptive deficits,”
stating that the term should be construed in a commonsense way as “the inability of an individual
to behave so as to adapt to surrounding circumstances.” State v. Smith, 893 S.W.2d 908, 918
No. 11-5867                Van Tran v. Colson                                     Page 22

(Tenn. 1994). But more recently, the court has turned toward reliance on expert analysis. With
respect to intellectual functioning, the Coleman court stated that, for example, “[a]scertaining a
person’s I.Q. is not a matter within the common knowledge of lay persons,” and concluded that
“[e]xpert testimony in some form will generally be required to assist the trial court in
determining whether a criminal defendant is a person with intellectual disability.” Coleman,
341 S.W.3d at 241 (emphasis added). Adaptive deficits are similarly outside the ken of the lay
judge.    The Coleman court, as it did with I.Q., emphasized reliance on expert analysis:
“Notwithstanding State v. Smith, Tennessee’s trial and appellate courts have repeatedly relied
upon expert analysis of adaptive behavior or functioning predicated upon definitions advanced
within the relevant medical and psychological community and authoritative texts such as the
AAIDD Manual and the DSM-IV in determining whether the second prong has been satisfied.”
Id. at 248.

         This construction of Tennessee law under Coleman is buttressed by the United States
Supreme Court’s recent opinion in Hall v. Florida, 134 S. Ct. 1986 (2014), which clarified the
minimum Atkins standard under the U.S. Constitution (whereas Coleman interpreted state
constitutional and statutory law). In Hall, the Court reasoned that the Constitution requires the
courts and legislatures to follow clinical practices in defining intellectual disability. In that case,
the Court confronted directly the question of “how intellectual disability must be defined in order
to implement the[] principles and the holding of Atkins.” Id. at 1993. The Court emphasized that
“[s]ociety relies upon medical and professional expertise to define and explain how to diagnose
the mental condition at issue,” for a variety of important legal determinations not limited to the
death penalty. Id. The Court held that Florida’s strict I.Q. cutoff of 70 was unconstitutional, in
part because it “disregard[ed] established medical practice.” See id. at 1995. This decision
supports the position of the Tennessee Supreme Court that “the courts would make these fact-
intensive and complex decisions with the assistance of experts in the field.”               Coleman,
341 S.W.3d at 244.

         In light of the methods and analyses employed by the expert witnesses, the TCCA
unreasonably determined that Van Tran was not intellectually disabled. The TCCA emphasized
too heavily in its analysis the facts of the crime, which are not relevant to the analysis of most of
No. 11-5867                Van Tran v. Colson                                  Page 23

the areas of adaptive behavior, especially that of functional academics.         The TCCA also
incorporated by reference the analysis of the state postconviction trial court, which undertook a
careful analysis within the ten-area framework. That analysis, as incorporated by the TCCA,
was reasonable except with respect to the area of functional academics.

       The district court thus properly determined, notwithstanding AEDPA deference, that Van
Tran suffers from deficits in two of the ten areas of adaptive behavior, thereby satisfying the
second prong of the statutory definition of intellectual disability.

Third Prong: Early Onset

       Because under the now-prevailing standards for adjudicating claims of intellectual
disability the TCCA used an erroneous causation analysis with respect to the third prong of early
onset, Van Tran is entitled to habeas relief conditioned on a new evidentiary hearing before the
state trial court. In particular, the postconviction hearing given to Van Tran did not meet the
retroactively applicable substantive and procedural standards set forth by the Tennessee Supreme
Court in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011).

       The state postconviction court ruled that there was no onset of intellectual disability
during the developmental period despite strong evidence of pre-age-eighteen intellectual and
adaptive deficits. Two board-certified experts in psychology, both trained and experienced in
intellectual disability, testified about Van Tran’s early developmental challenges, which
stemmed from his early childhood and continued through his arrival in the United States shortly
before he turned eighteen. Van Tran, 2006 WL 3327828, at *2–12. Dr. Grant discussed how
Van Tran was late in important developmental milestones: he was not toilet-trained until five
years of age, did not speak until the age of six, and reportedly never advanced with his
Vietnamese language skills beyond those of a five-year-old child. See id. at *4–5. Dr. Grant
testified that Van Tran’s most recent testing was consistent with prior achievement tests, and that
his neurological impairment and intellectual deficiencies would have been stable over the course
of his adult life, even despite the presence of schizophrenia in late adolescence. See id. at *6.
Dr. Auble’s testimony presented a compelling enumeration of circumstances in Van Tran’s
childhood that made it likely that Van Tran would have developed his neurological impairments
before the age of eighteen:
No. 11-5867               Van Tran v. Colson                                   Page 24

       Dr. Auble stated that the evidence indicates that the impairments appeared during
       the Petitioner's developmental period. In this regard, she stated that the
       Petitioner’s life history indicates a number of risk factors that would have
       contributed to his mental retardation. Using a table listing various potential risk
       factors for mental retardation provided in the Tenth Edition of the AAMR, Dr.
       Auble proceeded to enumerate those factors applicable to the Petitioner. First, the
       Petitioner's mother had poor prenatal care. The Petitioner’s mother suffered from
       a fall while she was pregnant resulting in “some bleeding and some other injuries
       . . . .” The Petitioner’s mother “smoked about a half a pack a day at the time she
       was pregnant with him.” The Petitioner’s mother is “probably relatively limited
       in intelligence.” The Petitioner did not have medical treatment while he lived in
       Vietnam. As a child, he had malnutrition and reportedly had seizures. The
       Petitioner had traumatic brain injuries. The Petitioner also lacked adequate
       stimulation and experienced family poverty. His living situation was essentially
       homeless. During his childhood, he only attended school for two years. The
       Petitioner suffered child abuse and neglect. The Petitioner had no consistent
       caretakers or friends. His mother was a single parent, and the Petitioner did not
       really know his father. The Petitioner did not speak until he was six years old,
       and, when he did speak, his speech was abnormal. Presently, the Petitioner has
       speech impairments in both Vietnamese and English. The Petitioner was a poor
       student, although he did have good attendance. “These findings indicate that
       there was brain dysfunction that was present in childhood as well as present now.”
       Dr. Auble summarized, “. . . he had an impaired mother. He had lack of support
       from his family. He had abuse, poverty, war, discrimination . . . , early drug and
       alcohol abuse. All of this contributed to his compromised functioning during
       childhood.”

Id. at *11. Both Drs. Grant and Auble noted that Van Tran’s early onset is corroborated by the
academic difficulty he experienced during the year he spent in the Memphis school system,
where he scored poorly on achievement tests and was slow to learn English in relation to
similarly situated peers. Id. at *4–6, 12. The State offered no expert testimony to rebut Van
Tran’s experts’ testimony establishing that Van Tran suffered from significant intellectual and
adaptive deficits from as early as his childhood in Vietnam.

       The state trial court nonetheless found that Van Tran had not met his burden with respect
to this third prong. The court relied substantially on the absence of any test of intellectual
functioning before the age of eighteen. With respect to Van Tran’s late speech development, the
court declined to attribute it to early-onset intellectual disability because “there could be a
multitude of reasons why, as a child, petitioner did not speak or only spoke in a limited fashion.”
The court similarly found that late toilet training could have been the result of a lack of
No. 11-5867               Van Tran v. Colson                                    Page 25

instruction rather than neurological deficit, and that his sporadic school attendance and life on
the streets could have caused his poor school performance. The court also found that “it is just
as likely that any deficits in intellectual functioning occurred as a result of [paranoid
schizophrenia], and thus, did not develop until after the age of eighteen.” The trial court
summed up:

               In this case there are no school records, no medical records, very little
       documented social history and the observations of the experts on this point are
       speculative at best. Additionally, there is evidence that tends to establish a
       legitimate alternative explanation for the petitioner’s below average I.Q. scores.
       Admittedly, Dr. Kenner could not say for sure how the petitioner would be
       [a]ffected. However, neither Dr. Grant nor Dr. Auble could say definitively that
       the disease had not [a]ffected petitioner’s neurological functioning.
               Having determined that, in light of the proof presented, it is not possible to
       discern when the petitioner’s deficits in intellectual functioning developed, this
       court finds petitioner has also failed to meet his burden with respect to the third
       prong of the statute.

       The TCCA affirmed. The TCCA relied on the absence of pre-age-eighteen testing and
the possibility that Van Tran’s deficits were caused by substance abuse or schizophrenia instead
of impaired brain functioning. Moreover, the court held that “[t]he evidence of poverty, child
abuse, lack of education, family dysfunction and poor social conditions are not enough to
demonstrate that any deficits manifested during the developmental period.” Van Tran, 2006 WL
3327828, at *26. The TCCA thus upheld the postconviction court’s rejection of the expert
evidence of Drs. Auble and Grant.

       This conclusion is unreasonable, but only in light of the Tennessee Supreme Court’s
intervening opinion in Coleman.

       It was unreasonable for the TCCA to conclude in this case “that the fact that the
Petitioner admits to alcohol and drug abuse and the fact that he has been diagnosed with
schizophrenia may have impaired his brain functioning.” Van Tran, 2006 WL 3327828, at *26.
Under Coleman, it is not appropriate to separate neurological deficit from mental disorder as
causes when determining whether a defendant actually suffers from cognitive and adaptive
deficits, when the petitioner presents expert testimony to the contrary and the State does not
rebut with its own experts. Coleman, 341 S.W.3d at 252; see also State v. Pruitt, 415 S.W.3d
No. 11-5867                 Van Tran v. Colson                                     Page 26

180, 203 (Tenn. 2013) (holding that lower court’s finding I.Q. tests were unreliable was
erroneous, in light of the fact that no expert testified that they were unreliable).

       Furthermore, because the TCCA did not thoroughly address its reasoning about the
impact of schizophrenia on Van Tran’s deficits, the court appears to have adopted the
postconviction    trial   court’s    erroneous    determination     that    Van    Tran’s    cognitive
functioning deteriorated as a result of suffering from untreated schizophrenia for seven years.
This conclusion appeared to rely on the determination that Van Tran’s first treatment began
when he was diagnosed by a Dr. Kenner in 1997, who also indicated at that time that Van Tran
might have begun suffering from schizophrenia as early as 1989. However, the record clearly
indicates that a Dr. Humble diagnosed Van Tran with schizophrenia in 1990, and that Van Tran
began to be treated with medication in that same month. Thus, the TCCA could not have relied
on the state trial court’s findings that Van Tran suffered from a long length of untreated
schizophrenia and that his functioning may have deteriorated during that period of no treatment.
Indeed, because Van Tran’s treatment began so early, the conclusion that Van Tran’s
schizophrenia somehow tends to disprove early onset is undermined by Dr. Auble’s testimony
that when schizophrenia is treated, “I.Q. scores do not decline and can, in fact, improve.” Van
Tran, 2006 WL 3327828, at *10. Indeed, these corrections to the state trial court’s analysis
imply the opposite of the state trial court’s conclusions.            That is, because Van Tran’s
standardized test scores may have improved with treatment, the fact that he continues to suffer
from deficits even now after a period of improvement implies that he also suffered the deficits in
the past, before the improvement. Thus, the TCCA’s causal analysis with respect to Van Tran’s
schizophrenia is unreasonable factually as well as legally.

       Similarly, regardless of whether Coleman would strictly forbid a causal analysis that
separates out permanent impairments caused by drug and alcohol abuse, such an analysis is not
reasonably supported by expert testimony in the record. There is no expert testimony regarding
how a history of drug or alcohol abuse may have contributed to post-developmental impairment.
In light of the facts and the expert testimony, the TCCA’s conclusion that alcohol and drug abuse
may have permanently caused or substantially contributed to Van Tran’s cognitive and adaptive
deficits in the three years between his eighteenth birthday and when he was incarcerated—the
No. 11-5867                Van Tran v. Colson                                     Page 27

only time that any testimony establishes he had access to drugs and alcohol in his adult life—
appears unlikely. Van Tran had begun abusing drugs and alcohol at a young age, so much of his
drug and alcohol abuse probably occurred prior to his eighteenth birthday. Indeed, Dr. Auble
suggested that early drug and alcohol abuse may have actually contributed to the manifestation
of deficits before the age of eighteen. Thus, the TCCA’s causal analysis was also flawed with
respect to Van Tran’s history with drug and alcohol abuse.

       Further, the state court committed an error under Coleman by not giving “full and fair
consideration” to the expert testimony regarding “risk factors.” See 341 S.W.3d at 242. The
TCCA misconstrued the experts’ testimony by interpreting the presence of “risk factors” as a
concession that Van Tran could not demonstrate that he actually was mentally retarded. See
2006 WL 3327828, at *26. The state court’s analysis conflated the issue of whether there are
adaptive deficits with the related but distinct issue of distinguishing their causes:

       The only proof establishing this third prong were reliance upon social factors
       present in the Petitioner’s childhood, including extreme poverty and child abuse.
       In this regard, we cannot conclude that the trial court’s conclusion that the
       Petitioner’s late development could have been the result of “neglect” rather than
       neurological deficit was in error or contrary to the evidence. The evidence of
       poverty, child abuse, lack of education, family dysfunction and poor social
       conditions are not enough to demonstrate that any deficits manifested during the
       developmental period.

Id.

       There are two critical errors with this characterization of Van Tran’s case for early onset.

       First, the state court mischaracterizes the nature of Van Tran’s proof; contrary to what the
TCCA stated, the presence of risk factors were not the “only proof” of intellectual disability
during the developmental period.        There was substantial real evidence of deficits being
manifested before Van Tran reached the age of 18: his poor achievement tests in school in the
United States, administered at the age of 17, which Dr. Adler opined “likely reflect an
overestimate of his actual abilities”; the testimony of Van Tran’s mother that he was late in
arriving at important developmental milestones, for instance, Van Tran did not speak until he
was six; and the testimony of Dr. Grant that Van Tran’s early intellectual deficits could be
inferred from his present subaverage I.Q. level because “I.Q. is usually, fairly consistent over
No. 11-5867                Van Tran v. Colson                                   Page 28

time.” These forms of evidence, which arise directly or indirectly from Van Tran’s actual pre-
age-eighteen behavior, constitute real proof of early onset rather than mere observations about
his environment.     See In re Mathis, 483 F.3d 395, 399 (5th Cir. 2007).          The state court
incorrectly interpreted the experts’ “risk factor” analysis as a foundation of proof, rather than as
an additional method of explaining, corroborating, and reinforcing their conclusion that Van
Tran started suffering deficits in intellectual functioning and adaptive behavior at a young age.

       Second, the state court committed a Coleman error by using the “risk factors” presented
by Van Tran’s experts to dismiss intellectual disability as the cause of any deficits that were
manifested during Van Tran’s childhood. That is, the state court appears to have interpreted the
presence of risk factors as proof that the cause of any deficits was “neglect” rather than
“neurological deficit.” See Van Tran, 2006 WL 3327828, at *26. This is an error under
Coleman, in which the Tennessee Supreme Court held that a court commits legal error when it
makes causal distinctions in the absence of expert testimony supporting the court’s causal
analysis. See 341 S.W.3d at 252. In Coleman, the state supreme court relied exclusively on the
expert testimony on record to support the court’s causal analysis. The experts in Coleman
“concluded that, along with organic brain disorder and environmental factors, mental illness
provided an aggravating factor joining together to limit Mr. Coleman’s adaptive functioning.”
Id. Similarly, Van Tran’s experts testified that environmental factors as well as neurological
deficits contributed to Van Tran’s adaptive and intellectual deficits. Just as in Coleman, the
State presented no expert testimony to contradict Van Tran’s experts’ causal analysis, and
therefore “[t]here is simply no sufficient basis on the present record to separate the impact of
mental illness and intellectual disability in assessing [the defendant’s] deficits in adaptive
behavior.” Id. (emphasis added). The Coleman court found that, because it could not “conclude
beyond a reasonable doubt that the lower courts’ erroneous causation analysis did not have a
substantial and injurious impact on their determination that Mr. Coleman failed to carry his
burden of establishing deficits in adaptive behavior,” the error was not harmless. Id. For the
same reasons, the TCCA’s erroneous reliance on a causal analysis unsupported by expert
testimony on the record had a substantial and injurious impact on its final determination that Van
Tran is not intellectually disabled.
No. 11-5867                Van Tran v. Colson                                   Page 29

         The district court below correctly pointed out that “[a]n expert’s testimony that an
individual is ‘at risk’ of mental retardation because of congenital factors, poverty, and abuse is
not enough to support an Atkins claim.” District Court Order at 74 (citing In re Mathis, 483 F.3d
at 398–99). But Van Tran presented more than just expert testimony that he was “at risk” of
intellectual disability at a young age. Van Tran’s experts testified that Van Tran actually was
intellectually disabled under the statutory definition, which necessarily includes a finding that his
intellectual and adaptive deficits were manifested in the developmental period. Dr. Grant stated
in his report, “It is my professional opinion that Heck Van Tran is functioning within the
mentally retarded range as defined by Tenn. Stat. Ann. § 39-13-203 in that he has subaverage
intellectual functioning as evidenced by an I.Q. of 70 or below; he has deficits in adaptive
behavior . . . and both were manifested before the age of eighteen.” Dr. Auble concluded in her
report, “It is my professional opinion that Mr. Tran met the criteria for mental retardation at the
time of the offense. There is evidence that Mr. Tran’s functioning has been impaired since
childhood, and that it continues to be impaired at present.”

         Coleman is applicable in this case notwithstanding the State’s argument that it does not
apply.    We are bound by our published decision in Black v. Bell to consider Coleman
retroactively in our review of an Atkins claim under AEDPA. 664 F.3d 81, 92 (6th Cir. 2011).
The defendant in Black claimed that his sentence of death was unconstitutional under Atkins, and
he challenged in federal habeas proceedings the decision of the TCCA denying postconviction
relief. After oral argument in the Sixth Circuit, the Tennessee Supreme Court released its
decision in Coleman, which the panel characterized as “a significant decision explaining the
Atkins standard under Tennessee law.” Id. at 91. Because “[t]he rules governing what factors
may be considered in determining whether a defendant qualifies as mentally retarded under
Atkins deal with questions of law,” the court concluded that “[t]he TCCA’s assessment of
Black’s level of intellectual and adaptive functioning was . . . contrary to Coleman under
AEDPA’s legal standard.” Id. at 100. We held that, because the state court’s analysis regarding
intellectual disability contradicted the governing law, de novo review of the issue was required.
Id. at 97 (citing Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006), and West v. Bell, 550 F.3d
542, 553 (6th Cir. 2008)). But the court “refrain[ed] from reaching any independent conclusions
. . . because no court ha[d] yet analyzed Black’s Atkins claims according to the proper legal
No. 11-5867               Van Tran v. Colson                                  Page 30

standard, which was set out by the Tennessee Supreme Court in Coleman.” Id. at 101. We
vacated and remanded to the district court “to review the record based on the standard set out in
Coleman.” Id.; see also Black v. Colson, No. 3:00-0764, 2013 WL 230664 (M.D. Tenn. Jan. 22,
2013) (conducting the independent analysis on remand).

       Contrary to the State’s argument, the Tennessee Supreme Court’s holding in Keen v.
State that “Coleman’s holding . . . was not a constitutional ruling,” 398 S.W.3d 594, 609 (Tenn.
2012), does not affect Black’s holding. First, the court in Keen was presented with a different
issue in a different procedural context. The court in that case was determining whether the
decision in Coleman could be grounds for reopening a case under Tenn. Code Ann. § 40-30-
117(a)(1), which permits a motion to reopen on the basis of “a final ruling of an appellate court
establishing a constitutional right.” See Keen, 398 S.W.3d at 608. In contrast, here we are
presented with determining what is “clearly established federal law” for the purposes of a
petition for relief under § 2254. Coleman can still change the governing applicable law even if it
does not assert a new constitutional right under Tennessee law. Second, the holding in Black
does not rely upon the constitutional status of Coleman. Rather, the court in Black characterized
Coleman merely as “a significant decision explaining the Atkins standard under Tennessee law,”
664 F.3d at 91 (emphasis added), and one that “elucidates Tennessee’s interpretation of Atkins’s
legal standard,” id. at 92 (first emphasis added). Indeed, the Tennessee Supreme Court in Keen
characterized Coleman’s relationship to Van Tran and Atkins’s constitutional right in a similar
way, stating that Coleman “concerned the interpretation of Tenn. Code Ann. § 39-13-203” and
that it “supplemented” and “clarified” previous case law. See 398 S.W.3d at 608. In this way,
Keen actually supports Black’s reading of Coleman’s effect on Tennessee law.

       Furthermore, the Tennessee Supreme Court itself has applied Coleman retroactively to
review proceedings that occurred before Coleman. In State v. Pruitt, the court relied on Coleman
to reverse a finding that the defendant did not have an I.Q. of seventy or below, even though the
trial court’s decision came out “nearly two years before [the court] clarified in Coleman the
process and criteria a trial court should use” to adjudicate an Atkins claim. 415 S.W.3d at 203.
Thus, Black’s retroactive application of Coleman is also consistent with Tennessee law, which
No. 11-5867                Van Tran v. Colson                                  Page 31

provides the procedural law that governs Van Tran’s Atkins claim. See Bobby v. Bies, 556 U.S.
825, 831 (2009).

       Black’s holding that this court may grant relief based upon Coleman applies to this case,
because this case is in relevant ways procedurally identical to Black. Both cases involve Atkins
claims in Tennessee. In both cases, the TCCA denied postconviction relief and the federal
district court denied habeas relief based on the TCCA’s decision before Coleman was decided.
In both cases, Coleman was decided before the district court was able to fully consider the case.
Thus, as in Black, we have a situation in which Coleman intervened in between the decision of
the district court and consideration by this court, changing the governing law regarding the
standards by which Atkins claims in Tennessee are decided.

       As indicated above, in Coleman, the defendant appealed the denial of postconviction
relief in the state courts. 341 S.W.3d at 224. He had presented testimony by two expert
witnesses to establish an Atkins claim under Tennessee’s statutory definition of intellectual
disability, while the State presented no contrary evidence. Id. at 227. The state supreme court
declined to decide the proper approach to determine whether a defendant has demonstrated
deficits in adaptive behavior, see id. at 251–52 & n.93, but rather held more narrowly that
“distinguishing causally between intellectual disability and mental illness in the present case was
error in light of the evidence presented” by the two experts, id. at 252. Although “the trial court
is not required to follow the opinion of any particular expert,” it “must give full and fair
consideration to all the evidence presented.” Id. at 242. Furthermore, in formulating their
opinions, “experts may bring to bear and utilize reliable practices, methods, standards, and data
that are relevant in their particular fields.” Id. The court remanded so that the State could
challenge the admissibility of the petitioner’s experts’ testimony and present additional expert
testimony to counter the petitioner’s. Id. at 253.

       In light of Coleman’s enunciation of the proper legal standard by which to evaluate
Atkins claims, the TCCA’s decision did not apply the proper legal standard and was therefore
contrary to clearly established governing law for the reasons given above. It is sufficient to draw
relevant comparisons between this case and Coleman to demonstrate how the TCCA erred here.
Like Coleman, the State presented no expert testimony to contradict the analysis of Van Tran’s
No. 11-5867                 Van Tran v. Colson                                     Page 32

experts. Like Coleman, the TCCA relied upon the presence of various factors that may have
contributed to Van Tran’s deficits in intellectual functioning and adaptive behavior in order to
cast doubt on experts’ opinion that intellectual disability caused these deficits. In both cases,
“[b]ased upon the evidence presented” by the expert testimony, these factors are “simply too
intertwined in cause and effect for such unraveling.” See Coleman, 341 S.W.3d at 252. It is
inappropriate in light of the expert testimony to treat “mental illness and intellectual disabilities
as separate dichotomous spheres rather than as interwoven causes.” See id. at 249.

       Similar to the TCCA’s decision that was under review in Black v. Bell, here “the record is
rife with conflicting testimony” regarding onset, and “[t]he TCCA’s decision is of little help
because the court made so few definitive factual determinations leading up to its ultimate
conclusion” that Van Tran did not show onset by a preponderance of the evidence. 664 F.3d at
100. Because it is at least clear that the TCCA’s decision was not entirely consistent with
Coleman, the TCCA’s assessment of Van Tran’s intellectual and adaptive functioning prior to
the age of 18 was contrary to Coleman.

The Nature of the Remand

       This case presents a unique circumstance in that the constitutional protection depends on
the content of state law that has changed retroactively since the relevant state court ruled, and the
relevant state court ruled unreasonably in light of the change. Deference to the state court’s
ability to apply its own law first, even where such application is compelled by the U.S.
Constitution, suggests that the proper course at this stage is for the district court to grant a writ of
habeas corpus prohibiting imposition of the death penalty, conditioned upon the fresh
determination by the Tennessee courts whether Van Tran is intellectually disabled under the
clarified principles set out in Coleman.

       Such relief is consistent with our “broad discretion in conditioning a judgment granting
habeas corpus relief, [to] dispose of habeas corpus cases ‘as law and justice require.’” Pickens v.
Howes, 549 F.3d 377, 382 (6th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 775
(1987)). Here, the defendant’s Atkins claim was not adjudicated under the governing legal
standard, under which the enforcement of the substantive constitutional prohibition is
inextricably intertwined with certain evidentiary and procedural considerations governed by state
No. 11-5867                Van Tran v. Colson                                     Page 33

law. When a constitutional error may be cured by further state proceedings, the common course
is to grant the writ of habeas corpus conditional upon the state court’s correcting the error. See
Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006).

       This relief is consistent with the relief provided in Coleman itself. The Coleman court
remanded to the state postconviction trial court for a new hearing under the standards enunciated
in the case, and that hearing included the more robust, adversarial consideration of expert
testimony in the final determination. See 341 S.W.3d at 253. The Coleman court permitted the
State to correct its failure to present expert testimony to challenge the clinical analyses of the
defendant’s experts.     The court stated that “[o]n remand, the State may challenge the
admissibility of [the defendant’s experts’] testimony, present expert testimony countering [those
experts’] methods or conclusions on this issue, or do both.” Coleman, 341 S.W.3d at 253. The
Coleman court appeared to believe that it was important for the State to have an opportunity to
correct a procedural mistake that the court was only then enunciating. Similarly, the State in Van
Tran’s hearing before the state postconviction court occurred before Coleman came out, and the
State did not act with the benefit of knowing the procedural implications of Coleman’s rules,
which are now retroactively applicable to that proceeding. In fashioning relief for Van Tran in
this case, we, like the Coleman court, should also take into consideration the State’s interest in
being able to correct a flaw in its case against Van Tran that it might not have been able to
foresee.

       Moreover, the procedural principles of Atkins suggest that the state postconviction trial
court would be the most appropriate venue for de novo consideration under the new governing
rules. Where a predominantly procedural mistake is made in a previous proceeding and the
constitutionally required process must start anew, it is proper to let the court that would normally
get the first crack at the issue take it up again. In Bobby v. Bies, the state court’s consideration of
the defendant’s intellectual disability in a previous proceeding did not comply with Atkins. See
556 U.S. 825, 831–32 (2009). The Supreme Court reversed the federal district court’s grant of
habeas relief pursuant to Atkins, reasoning that it was inappropriate to disrupt the state court’s
Atkins proceedings. See id. at 837. The Court stated that “[r]ecourse first to [state] courts is just
what this Court envisioned in remitting to the States responsibility for implementing the Atkins
No. 11-5867                Van Tran v. Colson                                  Page 34

decision.” Id. Like the state court in Bobby v. Bies, Tennessee is poised to offer the necessary
relief of a new Atkins hearing.

       We recognize that in Black we remanded to the district court with instructions to “review
the record based on the standard set out in Coleman and consistent with [the Black] opinion.”
664 F.3d at 101. In Black, however, the State had presented contrary expert evidence that could
be evaluated by the federal court. Id. at 89. In contrast, in this case as in Coleman itself, the
State—unaware of the as-yet-undecided Coleman case—essentially presented no expert
testimony. Because of this difference, the remedy provided in Black v. Bell, a remand to the
district court for de novo consideration of the Atkins issue, would likely not achieve the optimal
balance between Van Tran’s and the State’s separate interests in relitigating under the new
Coleman principles.

       That is, it is necessary, as it was in Coleman, to fashion a remedy that allows the State to
make the showing that Coleman now requires. A remand to the district court to consider the
Atkins claim under the Coleman standard might not allow the State to present evidence, if it were
determined that Van Tran was not independently entitled to a hearing. As a general matter, the
district court could hold some form of evidentiary hearing to allow Van Tran to present
additional evidence to support his claim. See, e.g., Jackson v. Norris, 615 F.3d 959, 962–64 (8th
Cir. 2010).   And AEDPA did not change the “basic rule” that “the decision to grant an
evidentiary hearing [is] generally left to the sound discretion of district courts.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (citing Townsend v. Sain, 372 U.S. 293, 313 (1963)).
When a court performs an independent review of a claim, like this, it may conduct an evidentiary
hearing pursuant to the AEDPA’s hearing section, 28 U.S.C. § 2254(e), in order to permit the
petitioner to present additional evidence. See Cullen v. Pinholster, 131 S. Ct. 1388, 1412 (2011)
(Breyer, J., concurring); see also Burgess v. Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1321–
22 (11th Cir. 2013) (reversing denial of request for evidentiary hearing on Atkins claim); Allen v.
Buss, 558 F.3d 657, 665 (7th Cir. 2009) (same). However, § 2254(e)(2) and prior case law
discussing the court’s basic discretion to hear new evidence do not appear to contemplate the
peculiar situation in which the State would request an evidentiary hearing to develop in federal
court its case that had not been fully developed in the state court. Tennessee, especially in light
No. 11-5867                Van Tran v. Colson                                   Page 35

of the court’s remand order in Coleman, is unquestionably capable of providing procedural relief
for both Van Tran and the State. Thus, a balanced retroactive application of Coleman logically
requires a conditional writ in the context of this case.

C. Challenge to the “Heinous, Atrocious, or Cruel” Aggravating Circumstance

       Van Tran argues that the “depravity of mind” aggravating circumstance in Tenn. Code
Ann. § 39-2-203(i)(5) (1982) (now codified in § 39-13-204(i)(5) (2011)), as applied in this case,
is unconstitutionally vague. He maintains that the state court’s decision unreasonably applied
Proffitt v. Florida, 428 U.S. 242 (1976), and was contrary to Bell v. Cone, 543 U.S. 447 (2005).
In a footnote, Van Tran argues that the evidence was insufficient to support the jury’s verdict
that Kai Yin Chuey’s murder showed depravity of mind beyond a reasonable doubt. Because
there was sufficient evidence for a reasonable factfinder to find that Van Tran evidenced
depravity of mind under the state supreme court’s constitutionally permissible narrowing
construction, the district court’s denial of Van Tran’s petition on this ground must be upheld.

       The penalty phase jury sentenced Van Tran to death based on the trial court’s
aggravating-factor instruction that the murder must be found to have been “especially cruel in
that it involved depravity of mind.” State v. Van Tran, 864 S.W.2d 465, 470 (Tenn. 1993).
Under the Tennessee Code at the time, a defendant could be sentenced to death if the jury found
that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or
depravity of mind.” Id. at 478 (quoting Tenn. Code Ann. § 39-2-203(i)(5) (1982)). On direct
appeal, the Tennessee Supreme Court disapproved of the deletion of the words “heinous” and
“atrocious” from the instruction but ultimately affirmed on the grounds that the curtailed
instruction did not likely confuse the jurors, that the jury still made the dispositive “depravity of
mind” finding, and that the omission had no effect on the result. Id. at 479.

       We must uphold the Tennessee Supreme Court’s finding that Van Tran committed
murder in an especially cruel way that evinced depravity of mind because the court did not
unreasonably apply the constitutionally permissible narrowing construction of the statute
established by previous decisions of the court. Even if the instruction given by the sentencing
court is deemed to be unconstitutionally vague, we will still uphold the sentence where the state
appellate court properly applied a narrowing construction of a possibly vague statutory
No. 11-5867                 Van Tran v. Colson                                 Page 36

enhancement. Walton v. Arizona, 497 U.S. 639, 653–54 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584 (2002). The United States Supreme Court has previously affirmed
a sentence of death under the arguably vague statutory aggravating circumstance that was
applied in this case, because the Tennessee Supreme Court “has recognized that its narrowing
construction is constitutionally compelled and has affirmatively assumed the responsibility to
ensure that the aggravating circumstance is applied constitutionally in each case.” Bell v. Cone,
543 U.S. 447, 456 (2005).

       Here, the state supreme court was guided by the constitutionally permissible narrowing
construction of the statute enunciated in State v. Williams, 690 S.W.2d 517 (Tenn. 1985).
“Torture” or “depravity of mind” must also be found in addition to cruelty, heinousness, or
atrociousness, and “depravity of mind” can be found even where there is no gratuitous infliction
of severe pain, physical or mental, that amounts to torture. Id. at 529. “Moral depravity” is
equivalent to a state of mind of “moral corruption,” which could be shown by a willingness to
torture, but could also be shown by other morally corrupt acts, such as mutilation of a dead body.
See id. at 529–30. Although the trial court omitted heinousness or atrociousness as aggravating
factors, the court gave the Williams definitions of “cruelty” and “depravity of mind” and stated
that a finding of both was sufficient to impose the death sentence on Van Tran; the Tennessee
Supreme Court relied upon this truncated instruction in affirming Van Tran’s sentence of death.
Van Tran, 864 S.W.2d 465, 479. We have previously held that the narrowing construction of
Williams, including the implication that depravity of mind or torture can be found without
torture, is constitutionally permissible. Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). In
particular, we noted that the Williams construction incorporated and expounded on previous
decisions of the state supreme court, including constructions already declared constitutional by
the United States Supreme Court. See id.

       Here, the state supreme court reasonably applied the constitutionally permissible
narrowed construction of the aggravating circumstance as interpreted and applied in the state
court’s previous decisions. See Bell v. Cone, 543 U.S. at 457. The facts of this case fit within
the narrowed definition as applied in these previous cases. The state supreme court in Van
Tran’s case followed State v. Black, in which it had previously held that the “brutal and senseless
No. 11-5867               Van Tran v. Colson                                  Page 37

execution style murder of a helpless child, who could not protect herself, evinces torture or
depravity of mind.” 815 S.W.2d 166, 181–82 (Tenn. 1991). Analogously, Van Tran’s victim
was helpless, since Kai Yin Chuey was a slight seventy-four-year-old woman whom Van Tran
had already shot through the throat and who was lying defenseless on the floor. And like Black,
when Van Tran placed his gun to her head and fatally shot her, he was committing an execution-
style murder, in which the murderer kills the victim by shooting them at close range after
rendering them helpless. The Eleventh Circuit in Hargrave v. Wainwright, in a similar situation,
explained:

       An execution-style murder, as defined by the Florida courts, is typically one in
       which the defendant, without provocation, first renders his victim helpless—for
       example, by wounding the victim, tying the victim’s hands, or ordering the victim
       to the floor—and then shoots the victim in the head at close range, often to
       eliminate the victim as a future witness.

804 F.2d 1182, 1195 (11th Cir. 1986). In State v. Dicks, 615 S.W.2d 126, 127, 132 (Tenn.
1981), the Tennessee Supreme Court held that a murder was especially heinous, atrocious, or
cruel where the defendant slashed the victim’s throat while the victim lay unconscious due to a
blow to the head. The U.S. Supreme Court has approved the narrowing construction of the
aggravating circumstance that the Tennessee Supreme Court used in Dicks, stating that an
aggravator “directed at the conscienceless or pitiless crime which is unnecessarily torturous to
the victim” meaningfully narrows the discretion of the court and thereby avoids a constitutional
vagueness problem. Bell v. Cone, 543 U.S. at 457–58 (quoting Dicks, 615 S.W.2d at 132)
(internal quotation marks omitted).

       Under these precedents and with a view of the evidence in the light most favorable to the
State, it was reasonable for the state court to conclude that a rational trier of fact could have
found beyond a reasonable doubt that Van Tran acted with depravity of mind. In the statement
Van Tran made to the police, he indicated that he shot Kai Yin Chuey once accidentally and once
intentionally. Van Tran, 864 S.W.2d at 468-69. The Tennessee Supreme Court described her as
a helpless seventy-four-year-old woman who had already been shot by Van Tran and was lying
on the floor unable to protect herself when Tran shot her in the back of her head. Id. at 480. She
was four feet, nine inches tall, and weighed only ninety pounds. The shot to the back of her head
was a contact wound, where the muzzle of the weapon was placed against the skin’s surface. Id.
No. 11-5867                Van Tran v. Colson                                   Page 38

at 470. Kai Yin Chuey was not a threat to Van Tran, and by the time he shot her the second time
Arthur Lee was no longer a threat because Van Tran had killed him. Because the Tennessee
Supreme Court’s decision that a rational trier of fact could have found Tran showed depravity of
mind was not objectively unreasonable, we cannot grant Van Tran habeas relief on the basis that
the application of the aggravating circumstance was unconstitutional.

D. Ineffective Assistance of Counsel Claim

         Van Tran argues that penalty phase counsel failed to investigate and present mitigating
evidence, failed to introduce evidence to rebut the “depravity of mind” aggravating
circumstance, failed to object to prosecutorial misconduct in closing argument, and failed to
preserve and present issues on appeal. This court certified Tran’s claim that counsel failed to
investigate and present mitigating evidence, but not his other ineffective-assistance-of-counsel
claims. This court cannot consider claims not certified for appeal, so those claims will not be
addressed. See 28 U.S.C. § 2253(c); Abdur’Rahman v. Colson, 649 F.3d 468, 473 (6th Cir.
2011).

         Because the state court did not unreasonably apply the Strickland standard that governs
ineffective-assistance-of-counsel claims, Van Tran is not entitled to relief on this ground. Under
the deferential review standards of AEDPA, the already deferential Strickland standard becomes
doubly deferential: “[t]he question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
In order to gain relief, Van Tran must satisfy both Strickland prongs: he must prove both that his
counsel was objectively deficient and that he was prejudiced by his counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The postconviction review
court found that Van Tran had neither proven that trial counsel conducted an improper
investigation or had unreasonably failed to present mitigating evidence, nor established
prejudice. Van Tran, 1999 WL 177560, at *12 (Tenn. Ct. Crim. App. Apr. 1, 1999). Van Tran
is not entitled to relief if we find that the postconviction review court was not unreasonable in its
determination regarding just one of the prongs.

         Because the state postconviction court’s determination that Van Tran suffered no
prejudice was a reasonable application of the prejudice prong of the Strickland test, and the court
No. 11-5867                Van Tran v. Colson                                   Page 39

relied on a reasonable determination of the facts, Van Tran must be denied habeas relief
according to § 2254(d).       Numerous relevant mitigating circumstances about Van Tran’s
continuous social and education deprivations throughout life were presented at the initial trial;
the additional mitigating evidence that Van Tran argues would have been presented had his
counsel pursued further investigation is similar to and cumulative to the evidence that was
actually presented. The balance of mitigating and aggravating circumstances was close and the
presentation of additional and more precise mitigating circumstances about Van Tran’s
upbringing and emotional and mental states may have made a difference in the jury’s ultimate
determination. However, we cannot say that the state postconviction court was unreasonable in
determining that because “[m]uch of this evidence is similar to that which was presented to the
jury,” Van Tran had failed to “establish[] a reasonable probability that the jury’s determination
would have been different.” Van Tran, 1999 WL 177560, at *12.

       The state court found that trial counsel had presented various forms of evidence in
mitigation that were considered in adjudicating Van Tran’s culpability, including his
“cooperation with the FBI, good employment history, lack of prior criminal involvement,
remorse for the homicides, personal history as a child of a Vietnamese mother and an American
father, difficult childhood and educational problems.” Van Tran, 1999 WL 177560, at *12
(citing Van Tran, 864 S.W.2d at 482). These mitigating circumstances were presented during the
testimony of several witnesses, including Van Tran’s mother, supervisors from Van Tran’s jobs,
and Dr. Khanna, a clinical psychologist who testified that Van Tran was below average
intelligence, depressed, and under a great deal of stress. Id. at *8, 11. For instance, Dr. Khanna
testified to horrid abuses during Van Tran’s childhood, including a time spent in an orphanage, a
time spent with his aunt in the countryside where she tied him to a tree naked and he was bit by
ants, a period in which he lived alone on the streets as a young child, and early exposure to illicit
substances. Dr. Khanna also testified that Van Tran had been abusing an inordinate amount of
drugs and alcohol in the three days preceding the robbery, such that “he had lost all judgment—
all reason—and he didn’t know probably where he was.” Van Tran’s trial counsel thus appears
to have presented a fairly thorough, if not comprehensive, social and personal history of Van
Tran that highlighted many mitigating factors.
No. 11-5867                Van Tran v. Colson                                   Page 40

       The mitigating evidence that Van Tran argues his counsel failed to present is remarkably
similar to the kind of evidence that was presented at trial. None of the evidence differs much in
substance from what was presented; it differs mostly in form. Van Tran argues that his trial
counsel should have provided the testimony of more experts: a licensed social worker fluent in
Vietnamese and English to testify about the sociocultural history of Vietnam and the plight of the
Amerasian population; a board-certified psychologist to testify about Van Tran’s post-traumatic
stress disorder and the effects of his Amerasian status on his psychological well-being; an
internist with a specialty in addiction to testify at greater length about Van Tran’s chemical
dependency issues arising out of hypervigilance related to his difficult upbringing, and how this
would have affected his perception and judgment during the murder; and, finally, a board-
certified forensic and child psychiatrist to attest to Tran’s hypersensitivity and threat perception
and explain their origins in his traumatic upbringing. Appellant’s Br. at 69–77. Van Tran argues
that this information “changes the ‘entire evidentiary picture’” by “answer[ing] the questions . . .
left unanswered about the significance of Tran’s early history, his status as an Amerasian, why
he abused drugs, and whether shooting Kai Yin Chuey was a cold-blooded act.” Appellant’s Br.
at 77–78. But the TCCA could reasonably conclude that the picture is not that different.

       The most significant difference between what evidence was presented at trial and what
was presented in the postconviction proceeding is that the latter is presented in more scientific
terms. See, e.g., Appellant’s Br. at 78 (describing the evidence that trial counsel failed to present
as a “scientifically-grounded portrait of Tran”). Although the form of the proposed additional
mitigation evidence differs in its manner of presentation, the differences are, from the jury’s
perspective of final decisionmaker, somewhat superficial.         That is, the substance of these
different analyses—whether based on Van Tran’s neurophysiology, the outcast social status of
Amerasians, or the chemical and physiological details of his substance abuse—is substantially
the same: Van Tran has suffered immense deprivation and misfortune during his life, which have
all had a great impact on his ability to reason and make decisions. Precisely this argument was
presented to the jury by the trial testimony of Dr. Khanna.

       Methodological diversity and precision are not necessarily sufficient to demonstrate that
the jury would have arrived at a different conclusion, particularly where the jury’s final
No. 11-5867                Van Tran v. Colson                                   Page 41

determination is one that is unconstrained by technical scientific jargon. Here, the jury was
asked to find simply whether Van Tran’s crime was especially cruel, in that it involved depravity
of mind. Boiled down to this purest essence of common-sense judgment, this determination
requires no specialty in psychology, psychiatry, neurophysiology, psychopharmacology, or
sociocultural anthropology.

       The superfluity of presenting the same substance in a different form is supported by our
precedent. In Clark v. Mitchell, this court held that a state court was reasonable in determining
that a petitioner had failed to demonstrate prejudice by his counsel’s failure to present mitigation
evidence in a suppression hearing in which the issue was whether the defendant had waived his
rights voluntarily and knowingly. 425 F.3d 270, 281–82 (6th Cir. 2005). At the suppression
hearing, a psychiatrist had testified in favor of the defendant, concluding that the defendant’s
mental function would be considered “borderline defective” and that he suffered from acute
brain damage that would have interfered with his decision making abilities. Id. at 274–75. On
appeal, the defendant argued that his counsel should have presented testimony from a
neuropsychologist or pharmacologist to present evidence about organic brain syndrome and
defendant’s drug addiction and related withdrawal symptoms, which arguably would have more
comprehensively explained his actions. Id. at 276. This court held that

       [t]he state court was also reasonable in determining that Clark had failed to
       demonstrate prejudice as a result of his counsel’s failure to introduce evidence
       from a neuropsychologist or pharmacologist at his suppression hearing or at trial.
       Clark’s defense team introduced evidence at Clark’s suppression hearing from a
       psychiatrist who concluded that Clark was suffering from depression, suicidal
       tendencies, and brain impairments that would have made Clark less able to
       understand his choices and to resist pressure from other individuals. It thus was
       reasonable for the state court to conclude that new information sought to be
       introduced by Clark about his drug addiction and brain disorder did not differ in
       a substantial way from the evidence actually presented at the suppression hearing
       and, accordingly, that Clark could not demonstrate that he was prejudiced by his
       counsel’s failure to present such evidence.

Id. at 282–83 (emphasis added).

       Although in the present case Van Tran presents a much more substantial argument about
the presentation of his case in mitigation, his argument still suffers from the same problem that
the Clark petitioner’s did, namely that the evidence does not differ in a substantial way from the
No. 11-5867                 Van Tran v. Colson                               Page 42

evidence actually presented at trial. Van Tran’s counsel presented substantial testimony about
Van Tran’s horrific childhood and his dependence on drugs and the impact these influences had
on his psychological state at the time of the crime. The court of criminal appeals followed this
analysis in arriving at its conclusion:

       The suggested mitigating evidence related to petitioner’s cultural and social
       background and his medical condition. Much of this evidence is similar to that
       which was presented to the jury. Furthermore, considering the nature and
       circumstances of the offense, and the applicability of the two aggravating
       circumstances of mass murder and depravity of mind, we conclude petitioner has
       not established a reasonable probability that the jury’s determination would have
       been different had this evidence been presented.

Van Tran, 1999 WL 177560, at *12. “[F]airminded jurists could disagree” on whether this is the
correct result under federal law, and therefore we must uphold the state court’s decision under
AEDPA as not an unreasonable application of established federal law. See Harrington v.
Richter, 131 S. Ct. 770, 786 (2011).

       Accordingly, Van Tran is not entitled to relief for his claim of ineffective assistance of
counsel.

                                                 III.

       Van Tran is not entitled to relief on his ineffective-assistance-of-counsel or
unconstitutional vagueness claims. The state court’s application of Tennessee law with regard to
whether Van Tran is intellectually disabled under Atkins was contrary to clearly established
federal law. Accordingly, we VACATE and REMAND to the district court so that the district
court may grant a CONDITIONAL WRIT OF HABEAS CORPUS prohibiting execution unless
the State completes a new Atkins hearing consistent with this opinion.
