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                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 14-10721
                        ________________________

                   D.C. Docket No. 1:05-cv-00474-CG-M



JOSEPH CLIFTON SMITH,

                                                            Petitioner-Appellant,

                                   versus

DONAL CAMPBELL,
COMMISSIONER KIM TOBIAS THOMAS,

                                                        Respondents-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                        ________________________

                              (August 3, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

HULL, Circuit Judge:
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       Petitioner Joseph Clifton Smith, a death-row inmate, appeals the district

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves

only Smith’s Atkins claim—that he is intellectually disabled and cannot be

executed under the Eighth and Fourteenth Amendments to the United States

Constitution.1 See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). The

Alabama state courts denied Smith’s Atkins claim without an evidentiary hearing,

as did the district court. We review the history of Smith’s case and then the narrow

issue in this appeal.

                             I. FACTUAL BACKGROUND

A.     Murder of Durk Van Dam

       On Friday, November 21, 1997, Smith was released from a state prison and

transferred to a community-custody program to complete the remainder of his 10-

year sentence for his burglary and theft convictions. Smith v. State (“Smith I”),

795 So. 2d 788, 796, 797 n.1 (Ala. Crim. App. 2000). Two days after his release

from prison, Smith murdered the victim Durk Van Dam on November 23, 1997.

       Police discovered Van Dam’s body near his pick-up truck in an isolated area

in southern Mobile County. Van Dam suffered approximately 35 separate, distinct

exterior injuries. His head, face, and torso were beaten; his corpse revealed a
       1
         Although courts formerly employed the term “mental retardation,” we now use the term
“intellectual disability” to describe the same condition. Accord Brumfield v. Cain, 576 U.S. ___,
___ n.1, 135 S. Ct. 2269, 2274 n.1 (2015). However, we sometimes use the terms “mental
retardation” and “mentally retarded” when quoting or discussing earlier judicial opinions, court
orders, trial testimony, or other items that used those terms at the time.

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number of blunt force injuries; and his body was mutilated by a saw or a saw-like

device. Van Dam was robbed of $150 in cash and the boots off his feet. His tools

were stolen from his pickup truck, which was mired in mud.

B.    Smith’s Statements to Police

      On the day Van Dam’s body was discovered, two police officers interviewed

Smith, who confessed. In his first statement to the police, Smith admitted that he

was at the scene when Van Dam was beaten and robbed but claimed that he was

merely a bystander as Larry Reid beat Van Dam. See id. at 796.

      When police questioned Reid, Smith repeatedly knocked on the

interrogation-room door and requested to speak with the officer who took his first

statement. Id. Smith gave a second statement, admitting he participated in the

homicide but denying an intent to kill Van Dam. See id.

      In his second statement, Smith said that he, Reid, and Van Dam left a motel

in Van Dam’s red pick-up truck on the evening of November 23, 1997. Id. Van

Dam was drinking and driving the truck, and Reid directed Van Dam to an isolated

location. Id. Smith asserted that, once they arrived at the location, Reid began

hitting Van Dam. Reid kicked Van Dam in the face, at which point Smith thought

Van Dam was dead. Id. However, Van Dam got up, and Smith hit him on the

head with his fist, kicked him in the ribs several times, threw a handsaw at him,




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and might have hit him with a hammer. Id. Smith wasn’t entirely sure if he hit

Van Dam with a hammer because he suffers from blackouts. Id.

      Smith stated that Reid got a power saw from Van Dam’s truck and ran the

saw against Van Dam’s neck. Id. Smith said he held down Van Dam while Reid

took money from Van Dam’s pockets. Id. Reid kept $100, and Smith kept $40.

Id. Toward the end, Smith kicked Van Dam in the ribs several times. Van Dam

was alive at that point, Smith said, but Reid subsequently hit the victim in the head

several times with boards and sticks and dragged a mattress on top of him. Smith

and Reid left, and Smith thought Van Dam was alive as they walked away.

      Smith and Reid attempted to steal Van Dam’s truck, but it was stuck in the

mud. Id. Smith admitted to taking Van Dam’s boots and tools. Id. Smith and

Reid discussed what to do with Van Dam’s body. Id. Smith suggested taking it to

a nearby lake, but they left the body under a mattress near Van Dam’s truck. Id.

                      II. SMITH’S TRIAL AND VERDICT

      On May 22, 1998, a Mobile County grand jury indicted Smith for capital

murder, charging that Smith intentionally killed Van Dam during a first-degree

robbery. The case went to trial.

      At trial, Dr. Julia Goodin, a forensic pathologist, testified that Van Dam died

as a result of 35 different blunt-force injuries to his body. Id. Dr. Goodin found

marks on Van Dam’s neck, shoulder, and back that were consistent with Van Dam


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being cut by a saw. Id. Van Dam had a large hemorrhage beneath his scalp, brain

swelling, multiple rib fractures, a collapsed lung, abrasions to his head and knees,

and defensive wounds on his hands. Id. The most immediate cause of death was

probably Van Dam’s multiple rib fractures, which caused one lung to collapse. Id.

      The prosecution introduced Smith’s two statements to police and called

Russell Harmon, who saw Smith on the day of the murder at a motel in Mobile

County. See id. at 796–97. Harmon testified that Smith told him that Smith and

Reid were going to rob Van Dam, and Smith asked if Harmon wanted to join them.

See id. at 797. Harmon declined. Id. When Smith returned to the motel later that

night, Smith admitted to Harmon that he participated in the beating of Van Dam

and cut Van Dam with a saw before fleeing the crime scene—and leaving Van

Dam for dead. Id. Smith told Harmon that he hid Van Dam’s tools on the side of a

road, and Smith asked Harmon to retrieve them. Harmon did. Smith sold the tools

for $200. Id.

      Joey Warner, an employee of a pawnshop, testified that (1) on November 23,

1997, Smith pawned several tools, including saws, drills, and a router; (2) Smith

was given $200 for the tools; and (3) Smith showed his Alabama Department of

Corrections identification card to complete the transaction. Id.

      Another witness, Melissa Arthurs, testified that she saw Smith on the night

Van Dam disappeared and noticed blood on Smith’s shirt. Id. Smith told Arthurs


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that he hit, cut, and stabbed Van Dam in the back; he and Reid robbed Van Dam;

and Smith would have taken Van Dam’s truck had it not been stuck in the mud.2

See id.

      On September 16, 1998, the jury found Smith guilty of capital murder. The

penalty phase began the next day.

                     III. PENALTY PHASE BEFORE THE JURY

A.    The State’s Evidence

      In the penalty phase, the State presented evidence that established three

statutory aggravating factors: (1) Smith committed the capital offense while under

a sentence of imprisonment, see Ala. Code § 13A-5-49(1); (2) Smith committed

the capital offense while engaged in the commission of a robbery, see id. § 13A-5-

49(4); and (3) the murder of Van Dam was especially heinous, atrocious, or cruel,

see id. § 13A-5-49(8).

      As to the first aggravating factor, the State called Betty Teague, the director

of the Alabama Department of Corrections’ central records office. Teague testified

that Smith was in the custody of the Alabama Department of Corrections and

placed on “prediscretionary leave” on November 21, 1997—two days before Van

Dam’s murder. Smith was still under a sentence of imprisonment during that

leave, including the date of Van Dam’s murder.


      2
          Smith chose not to testify, and the defense rested without calling any witnesses.

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      As to the second aggravating factor, the trial judge noted the jury’s verdict

established that the capital offense was committed during the course of a robbery.

      As to the third aggravating factor of a heinous murder, the State recounted

the trial evidence, including (1) Smith’s own statements to the police; (2) Smith’s

actions kicking and beating the victim; and (3) Dr. Goodin’s testimony about the

victim’s injuries, including eight broken ribs and many internal and external

injuries caused by 35 to 45 blows. The State then rested.

B.    Defense Evidence

      As part of his penalty-phase defense, Smith called a number of witnesses to

establish mitigating circumstances, including that the “offense was committed

while the defendant was under the influence of extreme mental or emotional

disturbance.” See id. § 13A-5-51(2).

      Smith first called his mother, Glenda Kay Smith (“Glenda Kay”). Glenda

Kay testified that Smith’s father, Leo Charles Smith (“Leo Charles”) got drunk

almost every day and verbally and physically abused Smith. Leo Charles would

“try to whoop” Smith and his brothers “with fan belts or water hoses.”

      When Smith was about 10 years old, Glenda Kay divorced Leo Charles, and

she subsequently married Hollis Luker (“Luker”). Luker got drunk three or four

times a week and drank with Smith when Smith was about 16 years old. Smith and




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Luker would fight, and Luker once injured Smith’s ear by hitting him in the head

with a bat-like object.

       According to Glenda Kay, Smith had educational problems, including

dyslexia. Smith was in special education classes and classes for students with

“emotional conflicts.”3

       Smith next called Dr. James F. Chudy (“Dr. Chudy”), a clinical psychologist

who met with Smith three times, reviewed his school and jail records, and

evaluated Smith. Dr. Chudy described Smith’s childhood as “at the least, . . . very

abusive, probably tormenting at times, [and] extremely unstable.”

       After administering a Wechsler Adult Intelligence Scale–Revised (WAIS-R)

test,4 Dr. Chudy found Smith had a “full scale IQ of 72, which placed him at the

third percentile in comparison to the general population.” Dr. Chudy testified that

“there actually is what we call a standard error of measurement of about three or

four points. So, you know, taking that into account you could -- on the one hand

he could be as high as maybe a 75. On the other hand[, Smith] could be as low as

a 69. [Sixty-nine] is considered clearly mentally retarded.” Dr. Chudy testified

that his findings about Smith’s intellect were consistent with the school records Dr.

       3
           The State did not cross-examine Glenda Kay.
       4
        Dr. Chudy also assessed Smith using these diagnostic tools: (1) the Wide Range
Achievement Test–Revised 3; (2) the Bender Gestalt Visual-Motor Integration Test; (3) a
Rorschach test; (4) the Mooney Problem Checklist; (5) the Minnesota Multiphasic Personality
Inventory–2; (6) the Millon Clinical MultiAxial Inventory–III; (7) the Subtle Alcohol Screening
Survey Inventory–2; and (8) the Jesness Inventory.

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Chudy examined and that “all the scores are very much the same.” The defense

introduced school records, which indicated Smith at age 12 obtained IQ scores of

74 and 75.

       Dr. Chudy also testified that “almost all the time people at this level of IQ,

and with [Smith] in particular, what I saw in this testing, he does not look like

much of a planner. He’s more of a reactor. And I would see him more as a

follower than a leader.”

       As to his learning disorder diagnosis, Dr. Chudy testified that, “in spite of

his IQ of 72,” Smith “did arithmetic at the kindergarten level, which is a standard

score of 45. And in the State of Alabama what meets the criteria for a learning

disability is a fifteen point difference between your IQ and your standard score.”

Accordingly, Smith was “even more limited in math than you would expect,”

given his IQ score of 72.

       Based on Smith’s full-scale IQ score of 72, Dr. Chudy diagnosed Smith as

having “borderline intellectual functioning.” Dr. Chudy stated that an individual

functioning in this borderline range has the ability to appreciate the consequences

of his actions, though the functioning limitation would “minimize” the appreciation

“considerably.”5


       5
        Dr. Chudy testified that Smith was not “insane” and that his level of intellectual
functioning did not prevent Smith from knowing “right from wrong.” Rather, Smith’s level of
functioning resulted in Smith not “learn[ing] very well or profit[ing] much from experience.”

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      Dr. Chudy testified that the “emotionally conflicted” classes in which Smith

enrolled were special education classes “for kids that are not adjusting to regular

classroom[s].”

      Based on his evaluation, Dr. Chudy made these six diagnoses of Smith: (1)

major depression, severe without psychotic features; (2) post-traumatic stress

disorder; (3) alcohol dependence; (4) learning disorder; (5) schizotypal or anti-

social personality disorder; and (6) borderline intellectual function.

      On cross-examination, Dr. Chudy testified that Smith did not “think things

through” and was “impulsive.” When the State’s prosecutor asked whether “there

are a lot of folks who have higher IQ’s [sic] and don’t have all this so-called

baggage who are impulsive,” Dr. Chudy said there were. Dr. Chudy testified that

his evaluation “did not find a pattern that would show that he had major

neurological problems that would be inconsistent with a 72 IQ.” When asked

whether “[t]here are people with low IQ’s [sic] who are what we call ‘streetwise,’”

Dr. Chudy assented.

      Smith called three more witnesses: two sisters and a neighbor. His sister,

Rebecca Charlene Smith (“Rebecca Charlene”), testified that their step-father

Luker drank “all the time” and getting drunk “was an everyday routine for him.”

Luker treated the members of her family “[l]ike dirt.” Luker hit Smith on the side




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of the head with a baseball bat, beat Smith’s brother Jason with a 2-by-4 piece of

wood, and physically abused their mother Glenda Kay.

       Shirley Stacey (“Stacey”) was a former neighbor of the Smith family during

Glenda Kay’s marriage to Luker. Stacey testified that Luker was drunk “just about

every day.” Stacey saw Luker beat the Smith children “with water hoses or

whatever he could grab.” On multiple occasions, Glenda Kay brought the Smith

children to Stacey’s house to escape or avoid Luker. On one occasion, Glenda Kay

ran to Stacey’s house with the Smith children because Luker “had beat [Glenda

Kay] and ripped her clothes and she . . . had to get away from him.”

       Another sister, Lynn Harrison, testified that their father Leo Charles got

drunk “a lot” and was physically abusive toward her brothers. Leo Charles once

chased Smith with a garden hose and, on another occasion, tried to hit Smith with a

fan belt. Harrison saw Luker abuse Smith in ways similar to those that Leo

Charles abused Smith. The Smith children had to “run several times just to get

away” from Luker’s beatings of Glenda Kay.6

C.     The Jury’s Advisory Sentence of Death

       The jury returned an advisory verdict recommending that Smith be

sentenced to death by electrocution. Eleven jurors voted for a death sentence; one

voted for life imprisonment without the possibility of parole.

       6
        Smith’s two sisters and neighbor Stacey did not testify about Smith’s intellectual
functioning, adaptive abilities, or performance in school. The State did not cross-examine them.

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          IV. PENALTY HEARING BEFORE THE TRIAL COURT

A.    Evidence in Penalty Hearing

      On October 16, 1998, the trial court held a penalty hearing. The trial court

admitted evidence of: (1) Smith’s 1990 convictions for burglary and theft, (2) a

pre-sentence report from the Alabama Board of Pardons and Paroles (the

“Alabama Report”), and (3) Dr. Chudy’s 1998 report, labeled a “psychological

evaluation” of Smith.

      For his 1990 convictions, Smith was sentenced to 10 years in prison,

released on parole in 1996, and sent back to prison in 1997 when he violated his

parole terms. According to the Alabama Report, Smith was arrested nine times

between 1986 and 1997 for suspicion of minor crimes, including harassment (three

times), menacing (twice), and disorderly conduct (once).

      As to Smith’s personal and social history, the Alabama Report stated that

Smith “dropped out of school in the eighth grade” when Glenda Kay “withdrew

him from school on the recommendation of his teachers who described [Smith] as

being disrespectful and disruptive in class.” According to the Alabama Report,

Smith “was a slow learner and was placed in special education classes.” Smith

“failed both the seventh and eighth grades[,] and all of his grades, with the




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exception of physical education, were below average.” Smith “has had no further

education or training since that time.”7

       Dr. Chudy’s 1998 report included the following conclusions about Smith’s

mental health.

       Evidence of Competency.8 The report stated that, during Dr. Chudy’s

interviews, Smith “was alert and oriented,” was “able to recount the charges

against him and ultimately what could happen to him if he were found guilty,” and

“accurately define[d] the role and purposes of all the parties involved in the trial

proceedings.” Dr. Chudy concluded Smith was mentally competent and capable of

assisting his defense attorney.

       Evidence of Subaverage Intellectual Functioning. The report stated that

Smith took the WAIS-R IQ test, and that he earned a verbal IQ score of 73, a

performance IQ score of 72, and a full-scale IQ score of 72. According to Dr.

Chudy’s report, those full-scale scores “place[d Smith] at the 3rd percentile in

comparison to the general population.” These scores placed him “in the Borderline

range of intelligence[,] which means that he operates between the Low Average

and Mentally Retarded range.” According to Dr. Chudy, “[a]ctually[,] these scores

       7
        In a section titled “Evaluation of Offender,” the Alabama Report stated that several
people at the motel, where Smith stayed prior to Van Dam’s murder, “stated they believe [Smith]
has a mental problem.” According to the Alabama Report, in early 1997, Smith got into a fight
with an elderly man and bit off the tip of one of the elderly man’s fingers.
       8
        These subheadings are not included in Dr. Chudy’s report itself but are created to
organize the information in his report.

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place him at a level closer to those individuals who would be considered mentally

retarded.”

      Evidence of Communication Limitations. Dr. Chudy’s report indicated that

Smith had some communication problems, but was generally coherent. The report

stated that (1) at times, it “was necessary to re-state questions in more elementary

forms so that [Smith] could understand them,” (2) Smith’s “comprehension is

limited,” and (3) Smith “lacks much insight or awareness into his behavior.”

      Evidence of Limitations in Daily Functioning. Dr. Chudy’s report noted that

Smith had “emotional problems, which seem to be largely due to an extremely

dysfunctional life . . . [and] compounded by his mental dullness.” The report

stated that Smith’s emotional problems limit his “ability to deal with everyday

stresses and demands.” Dr. Chudy characterized Smith’s state of mind as

“indifferent and ineffectual,” and concluded that Smith’s “thinking [was] not real

clear” and that Smith “lacks any direction or goal in life.” Dr. Chudy concluded

that Smith generally “takes little notice of things around him” and “does not think

through things.”

      Evidence of Deficits in Learning from Experience. Dr. Chudy concluded

that Smith’s “indifferent and ineffectual” mindset “provides little basis for [Smith]

[to act] in a consistently sensible manner or learn[ ] from experience . . . even when

it involves bringing on pain to himself or those closest to him.” Smith’s “thinking


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is vague” and “easily confused,” and he “is often overwhelmed with

incomprehensible feelings or impulses that he does not understand.” Smith

“possesses extremely limited insight and judgment.”

      Evidence of Social Deficits. Dr. Chudy’s report indicated that Smith’s

“personality functioning is equally dysfunctional.” As a result of his emotional

problems, Dr. Chudy found, Smith often “withdraws from others” and only

“[o]casionally . . . will become desperate enough that he will set out to find people

to be with.” But “poor judgment causes [Smith] to end up with the wrong people.”

Dr. Chudy found that Smith had “anger about being rejected and ‘getting a raw

deal in life.’” “Fortunately, [Smith] has been successful at repressing his anger[,]

but there is a down side to that. Sooner or later when his anger builds up, it will

come out and it will probably come out explosively.” Dr. Chudy concluded that

Smith “fails to use good judgment because he never learned how to incorporate

successfully into societies [sic] norms.”

      Evidence of Varied Deficits. Dr. Chudy’s report examined the particulars of

Smith’s WAIS-R test results. The report stated that (1) “Smith displayed major

deficiencies in areas related to academic skills”; (2) he “functioned well below

average in his recall of learned and acquired information (Information)”; and (3) he

“was also quite weak in word knowledge and usage (Vocabulary) and mental

mathematical computation (Arithmetic).”


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           Other areas of weakness noted by Dr. Chudy had to do with Smith’s social

skills. Smith “scored well below average in skills having to do with social

reasoning and learning how to respond effectively in social situations

(Comprehension).” Smith “also showed a major deficiency in his ability to predict

social sequences of action (Picture Arrangement).” Dr. Chudy stated that Smith is

“ineffective in problem-solving.”

B.     Imposition of a Death Sentence

       After considering the evidence and arguments, the state trial judge found

that the aggravating circumstances outweighed the mitigating circumstances in this

case, accepted the jury’s advisory death sentence, and ordered that Smith be put to

death by electrocution.9

       The state trial court found these three aggravating circumstances: (1) Smith

committed the capital offense while under a sentence of imprisonment at the time

of the offense, Ala. Code § 13A-5-49(1); (2) Smith committed the murder while

engaged in the commission of a robbery, id. § 13A-5-49(4); and (3) the capital

offense was especially heinous, atrocious, or cruel compared to other capital

offenses, id. § 13A-5-49(8).



       9
         In 2002, the Alabama Legislature changed the State’s standard method of execution
from electrocution to lethal injection. See Ala. Code § 15-18-82.1 (2006 Cumulative Supp.).
Those inmates who were sentenced to death and whose certificates of judgment were issued after
July 1, 2002, had a time-limited option to elect electrocution instead of death by lethal injection.
Id. § 15-18-82.1(b). At oral argument, it was confirmed that Smith did not so choose.

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      The state trial court found that no statutory or non-statutory mitigating

circumstances existed. Specifically, the trial court found (1) the capital offense

was not committed while Smith was under the influence of extreme mental or

emotional disturbance and (2) Smith “was not mentally or emotionally disturbed”

to an “extreme extent” or “to the extent that this mitigating circumstance exists.”

See id. § 13A-5-51(2). The trial court reached this conclusion after “carefully

review[ing] and weigh[ing] both the report and testimony of Doctor James Chudy,

a clinical psychologist, in the context of the facts underlying the offense charged

and proven.”

C.    Smith’s Direct Appeal

      The Alabama Court of Criminal Appeals affirmed Smith’s conviction and

death sentence. Smith I, 795 So. 2d at 842. The Alabama Supreme Court denied

Smith’s petition for a writ of certiorari. Ex parte Joseph Clifton Smith, 795 So. 2d

842 (Ala. 2001) (mem.). The United States Supreme Court denied Smith’s petition

for a writ of certiorari. Smith v. Alabama, 534 U.S. 872, 122 S. Ct. 166 (2001).

        V. POST-CONVICTION PROCEEDINGS IN STATE COURT

A.    2002 Rule 32 Petition

      In 2002, Smith filed a pro se petition in the state trial court, seeking post-

conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.

After the State objected on timeliness grounds, the state trial court dismissed


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Smith’s Rule 32 petition as untimely. The Alabama Court of Criminal Appeals

affirmed, Smith v. State, 897 So. 2d 1246 (Ala. Crim. App. 2003) (table), and

denied rehearing, Smith v. State, 910 So. 2d 831 (Ala. Crim. App. 2004) (table).

      In 2004, the Alabama Supreme Court reversed and remanded, holding that

Smith’s Rule 32 petition was timely. Ex Parte Joseph Clifton Smith, 891 So. 2d

286 (Ala. 2004). The Alabama Court of Criminal Appeals remanded the case to

the state trial court for further proceedings. Smith v. State, 891 So. 2d 287 (Ala.

Crim. App. 2004).

B.    2004 Second Amended Rule 32 Petition

      In 2004, Smith filed an amended Rule 32 petition for post-conviction relief.

After the State moved to dismiss, Smith filed a second amended Rule 32 petition.

Both petitions alleged that Smith was intellectually disabled and his death sentence

violated the Eighth and Fourteenth Amendments. Smith requested “a full

evidentiary hearing” and funds to present witnesses, experts, and other evidence.

C.    2005 Dismissal of Second Amended Rule 32 Petition

      The State moved to dismiss again. In 2005, the state trial court dismissed

Smith’s second amended Rule 32 petition. The court rejected Smith’s Atkins

claim without an evidentiary hearing. The court reviewed the Alabama Supreme

Court’s decision in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), which identified

three requirements to establish mental retardation “under the broadest definition”


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of that term: (1) “significantly subaverage intellectual functioning (an IQ of 70 or

below),” (2) “significant or substantial deficits in adaptive behavior,” and (3)

manifestation of the first two elements “during the developmental period (i.e.,

before the defendant reached age 18).” Id. at 456.

      As to Smith’s intellectual functioning, the state trial court concluded that (1)

“[t]he evidence admitted at Smith’s trial refutes any assertion that Smith’s

intellectual functioning is significantly subaverage,” and (2) “Smith proffer[ed] no

facts in his second amended Rule 32 petition that would in any way dispute the

facts contained in the record.” As to Smith’s adaptive behavior, the state trial court

concluded that the record “indicates [few], if any, deficits in Smith’s adaptive

functioning.”

      The state trial court found that Smith was not mentally retarded, rejected his

Atkins and other claims, and denied his second amended Rule 32 petition in full.

D.    Appeal of Dismissal of Second Amended Rule 32 Petition

      In 2008, the Alabama Court of Criminal Appeals affirmed the dismissal of

Smith’s second amended Rule 32 petition, including his Atkins claim. Smith v.

State (“Smith II”), 71 So. 3d 12 (Ala. Crim. App. 2008). As to mental retardation,

the Alabama appellate court discussed Atkins; how Atkins left it to the states to

define “mental retardation”; and Alabama’s three requirements for “mental

retardation,” identified in Perkins. Id. at 17.


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         Turning to Smith’s Atkins claim, the Alabama Court of Criminal Appeals

concluded that Smith failed to meet his burden of pleading the facts relied upon in

seeking relief, as required by Rule 32.6(b) of the Alabama Rules of Criminal

Procedure. See id. at 18–19. The Alabama appellate court found that “[t]he only

grounds offered in support” of Smith’s claim were his conclusory allegations that

he met the three requirements of mental retardation under Atkins and Perkins. Id.

at 19.

         Alternatively, the Alabama appellate court turned to the merits of Smith’s

Atkins claim based on the trial evidence. The Alabama appellate court concluded

that Smith’s mental retardation claim failed on the merits because the trial record

shows “Smith does not meet the broadest definition of mentally retarded adopted

by the Alabama Supreme Court.” Id. The Alabama appellate court reviewed the

evidence of Smith’s full-scale IQ scores of 74 at age 12 and 72 before trial. Id. at

19–20. The Alabama appellate court noted that Dr. Chudy testified “that[,]

because of the margin of error in IQ testing[,] Smith’s IQ score could be as high as

75 or as low as 69.”10 Id. at 19. The Alabama appellate court did not apply a

“margin of error” to Smith’s above-70 IQ scores. Id. at 20.

         As to Smith’s adaptive behavior, the Alabama appellate court concluded that

there was “no indication that Smith had significant defects in adaptive behavior.”

         10
         The Alabama Court of Criminal Appeals referred to the standard error of measurement
as a “margin of error.”

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Id. at 20. The Alabama appellate court recounted evidence of Smith’s participation

in the murder and other evidence relevant to Smith’s adaptive behavior, including

his ability to communicate with police and his having a girlfriend.11 Id.

       The Alabama Supreme Court denied Smith’s petition for a writ of

certiorari.12

                VI. SECTION 2254 PETITION IN FEDERAL COURT

A.     2005 Petition

       In 2005, Smith filed this petition for a writ of habeas corpus in the United

States District Court for the Southern District of Alabama, pursuant to 28 U.S.C.

§ 2254. In 2006, the district court stayed the § 2254 proceedings pending the

Alabama state courts’ resolution of Smith’s Rule 32 petitions. In 2011, the district

court lifted the stay and granted Smith’s motion to amend his § 2254 petition.

Smith filed an amended petition on July 25, 2011.

B.     2011 Amended Petition

       Smith’s amended § 2254 petition alleged, inter alia, that he is intellectually

disabled and his execution would violate the Eighth and Fourteenth Amendments.

Smith requested discovery and an evidentiary hearing.



       11
            In 2009, the Alabama appellate court also denied Smith’s application for rehearing.
       12
         The Alabama Supreme Court initially granted the writ as to Smith’s ineffective-counsel
claims, but it denied the writ as to all other claims. Following more briefing, the Alabama
Supreme Court quashed the writ.

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      In the district court, Smith argued that the Alabama Court of Criminal

Appeals’ decision—rejecting his Atkins claim—was both an unreasonable

application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and an

unreasonable determination of the facts, see id. § 2254(d)(2).

C.    2013 Order Denying Amended § 2254 Petition

      On September 30, 2013, the district court denied Smith’s amended § 2254

petition without discovery or an evidentiary hearing. Smith v. Thomas (“Smith

III”), No. CIV.A.05-0474-CG-M, 2013 WL 5446032, at *38 (S.D. Ala. Sept. 30,

2013). The district court concluded that Smith’s Atkins claim was not

procedurally defaulted and was properly before the federal habeas court because

Smith raised it in his second amended Rule 32 petition. Id. at *27. The district

court examined the reasonableness of the Alabama appellate court’s rejection of

Smith’s Atkins claim based upon Smith’s allegations in his first and second

amended Rule 32 petitions and the trial record considered by the state courts. Id. at

*27–29.

      The district court concluded that the only evidence of Smith’s IQ presented

to the state trial court was Dr. Chudy’s testimony that Smith’s full-scale IQ score

was 72 in 1998, and the school records indicating that Smith’s IQ scores were 74

and 75 in grade school. Id. at *28. The district court agreed with the State’s

position that Dr. Chudy’s finding—that Smith is “in the Borderline range of


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intelligence[,] which means that he operates between the Low Average and

Mentally Retarded range”—establishes that Smith is not mentally retarded and not

exempt from the death penalty. Id.

       The district court acknowledged (1) that Dr. Chudy’s testified “that, in

Smith’s case, ‘a standard error of measurement of about three or four points’ could

result in an IQ ‘as high as maybe a 75 [or] . . . as low as a 69,’” and (2) the “Flynn

effect,” which artificially inflates IQ scores.13 Id. The district court, however,

observed that the Alabama appellate court had refused to downwardly modify

Smith’s most recent IQ score of 72 to produce an adjusted score within the mental

retardation range of 70 or below. Id. at *28–29. The district court concluded that

the Alabama appellate court did not unreasonably refuse to apply a “margin of

error” to Smith’s IQ score of 72 such that his score would be reduced and fall

within the “mental retardation range.” Id. at *29.

       Because the district court concluded Smith “failed to prove that his

intellectual functioning was or is significantly subaverage,” it did “not explore

whether Smith suffers from deficits in adaptive behavior and whether any such

deficits manifested themselves before Smith reached the age of 18.” Id. at *29

n.26. The district court denied Smith’s § 2254 petition as to all claims, id. at *6–

       13
         The “Flynn effect” is the phenomenon by which “IQ test scores have been increasing
over time” because, “as an intelligence test ages, or moves farther from the date on which it was
standardized, or normed, the mean score of the population as a whole on that assessment
instrument increases.” Thomas v. Allen, 607 F.3d 749, 753 (11th Cir. 2010).

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26, *29–38, denied Smith a certificate of appealability, id. at *38, and later denied

Smith’s motion to reconsider, Smith v. Thomas (“Smith IV”), No. CIV.A.05-0474-

CG-M, 2014 WL 217771, at *5 (S.D. Ala. Jan. 21, 2014).

D.     Smith’s Certificate of Appealability

       In 2014, this Court granted Smith a certificate of appealability as to these

three issues:

       1. Whether the Alabama state courts’ procedural ruling—that in his
       Rule 32 post-conviction pleadings as to his mental retardation claim,
       Smith failed to comply with the specificity pleading requirements in
       Rule 32.6(b) of the Alabama Rules of Criminal Procedure—was
       contrary to or an unreasonable application of Atkins v. Virginia, 536
       U.S. 304 (2002)?

       2. Whether the Alabama state courts’ merits determination—that
       Smith did not show significant deficits in adaptive behavior
       manifested before age 18—is an unreasonable determination of the
       facts or an unreasonable application of Atkins?

       3. Whether the Alabama state courts’ merits determination—that
       Smith did not show subaverage intellectual functioning—is an
       unreasonable determination of the facts or an unreasonable application
       of Atkins?14

       14
          With the benefit of the parties’ briefs, oral argument, and our examination of the record,
it has become clear that the first issue is also properly a question of whether the Alabama Court
of Criminal Appeals’ procedural ruling is an unreasonable determination of the facts or an
unreasonable application of Atkins. Accordingly, we sua sponte expand the certificate of
appealability (“COA”) to address whether the Alabama appellate court’s decision, including its
Rule 32.6(b) ruling, was based on an unreasonable determination of the facts under 28
U.S.C. § 2254(d)(2). See Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013), cert.
denied, 134 S. Ct. 1508 (2014) (noting this Court has “expanded a COA sua sponte on
exceptional occasions, even after oral argument”); see also 11th Cir. R. 27-1(g) (“A ruling on a
motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding
upon the panel to which the appeal is assigned on the merits, and the merits panel may alter,
amend, or vacate it.”).

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                         VII. STANDARD OF REVIEW

      We review de novo a district court’s ultimate decision to deny a habeas

corpus petition brought by a state prisoner. McNair v. Campbell, 416 F.3d 1291,

1297 (11th Cir. 2005). As part of that task, we review the district court’s factual

findings for clear error, and we review mixed questions of fact and law de novo.

Id.

                                   VIII. AEDPA

A.    AEDPA Deference

      A state prisoner’s habeas petition is governed by 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). “AEDPA recognizes a foundational principle of our federal system:

State courts are adequate forums for the vindication of federal rights.” Burt v.

Titlow, 571 U.S. ___, ___, 134 S. Ct. 10, 15 (2013). AEDPA thus “erects a

formidable barrier to federal habeas relief for prisoners whose claims have been

adjudicated in state court.” Id. at ___, 134 S. Ct. at 16. Indeed, the purpose of

AEDPA’s amendments to § 2254 “is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems, and

not as a means of error correction.” Greene v. Fisher, 565 U.S. ___, ___, 132 S.

Ct. 38, 43 (2011) (quotation marks omitted).




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      Accordingly, federal review of final state court decisions under § 2254 is

“greatly circumscribed” and “highly deferential.” Hill v. Humphrey, 662 F.3d

1335, 1343 (11th Cir. 2011) (en banc) (quotation marks omitted). Where a state

court denied a petitioner relief on alternative grounds, AEDPA precludes the

petitioner from obtaining federal habeas relief unless he establishes that each and

every ground upon which the state courts relied is not entitled to AEDPA

deference. See Wetzel v. Lambert, 565 U.S. ___, ___, 132 S. Ct. 1195, 1199

(2012) (stating § 2254 petition at issue should not be granted “unless each ground

supporting the state court decision is examined and found to be unreasonable under

AEDPA”).

B.    Section 2254(d)(1) & (2)

      As a general rule, a § 2254 state petitioner may not obtain federal habeas

relief “with respect to any claim that was adjudicated on the merits” by a state

court. 28 U.S.C. § 2254(d). However, a petitioner may avoid that general rule if

one of two conditions exist: either (1) that the state court’s adjudication “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,” id. § 2254(d)(1); or (2) that the state court’s adjudication “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,” id. § 2254(d)(2). The


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petitioner carries the burden of proof under § 2254(d)(1) & (2), and our review is

limited to the record before the state court. Cullen v. Pinholster, 563 U.S. ___,

___, 131 S. Ct. 1388, 1398 (2011).

      Pursuant to § 2254(d)(1), the phrase “clearly established Federal law” means

“the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the

time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71,

123 S. Ct. 1166, 1172 (2003) (quotation marks omitted). A state court’s

application of federal law is not unreasonable under § 2254(d)(1) “so long as

fairminded jurists could disagree on the correctness of the state court’s decision.”

Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (quotation

marks omitted).

      As to § 2254(d)(2), “a factual determination will not be overturned on

factual grounds unless objectively unreasonable in light of the evidence presented

in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct.

1029, 1041 (2003). “We may not characterize . . . state-court factual

determinations as unreasonable merely because we would have reached a different

conclusion in the first instance.” Brumfield v. Cain, 576 U.S. ___, ___, 135 S. Ct.

2269, 2277 (2015) (quotation marks omitted). The Supreme Court has found a

state court’s factual finding to be unreasonable where the record before the state




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court did not support the factual finding. See Wiggins v. Smith, 539 U.S. 510,

528–29, 123 S. Ct. 2527, 2539 (2003).

                  IX. ALABAMA’S APPLICATION OF ATKINS

       In 2002, the United States Supreme Court held in Atkins that the execution

of “mentally retarded” individuals violates the Eighth Amendment of the

Constitution. 536 U.S. at 321, 122 S. Ct. at 2252.15 The Supreme Court pointed

out that, “[t]o the extent there is serious disagreement about the execution of

mentally retarded offenders, it is in determining which offenders are in fact

retarded.” Id. at 317, 122 S. Ct. at 2250. The Atkins Court, however, left “to the

States the task of developing appropriate ways to enforce the constitutional

restriction upon their execution of sentences.” Id. (quotation marks omitted and

alterations adopted).

       As recounted above, the Alabama Supreme Court in Perkins identified three

requirements to establish intellectual disability “under the broadest definition” of

mental retardation: (1) “significantly subaverage intellectual functioning (an IQ of

70 or below),” (2) “significant or substantial deficits in adaptive behavior,” and (3)




       15
          Prior to Atkins, Alabama, along with most other states, had not outlawed the execution
of intellectually disabled individuals. See Atkins, 536 U.S. at 314–15 & n.20, 122 S. Ct. at
2248-49 & n.20; id. at 342, 122 S. Ct. at 2261–62 (Scalia, J., dissenting).

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manifestation of “these problems . . . during the developmental period (i.e., before

the defendant reached age 18).” Perkins, 851 So. 2d at 456.16

       Neither the Alabama legislature nor the Alabama Supreme Court has defined

what constitutes “significant or substantial deficits in adaptive behavior.” See id.

But the Alabama Supreme Court has applied generally the “most common” or

“broadest” definition of mental retardation, which reflects “the clinical definitions

considered in Atkins.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL

1519869, at *7 (Ala. May 25, 2007). And “significant or substantial deficits in

adaptive behavior” means, under the clinical definitions considered in Atkins, a

petitioner must show limitations in two or more of the following applicable

adaptive-skill areas: communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, health and safety, functional

academics, leisure, and work.” Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3

(citing the American Association on Mental Retardation and American Psychiatric




       16
          In Perkins, decided shortly after Atkins, the Alabama Supreme Court noted that
Alabama lacked statutorily-prescribed procedures for identifying intellectually disabled
individuals and “urge[d] the Legislature to expeditiously develop procedures for determining
whether a capital defendant is mentally retarded and thus ineligible for execution.” Perkins, 851
So. 2d at 457 n.1. In the absence of a legislative definition, the Alabama Supreme Court
continued to apply “the ‘most common’ or ‘broadest’ definition of mental retardation, as
represented by the clinical definitions considered in Atkins and the definitions set forth in the
statutes of other states that prohibit the imposition of the death sentence when the defendant is
mentally retarded.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL 1519869, at *7
(Ala. May 25, 2007).

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Association’s definitions of mental retardation).17 Thus, we use that common

clinical definition in considering this case. Cf. Lane v. State, ___ So.3d ___, ___

No. CR-10-1343, 2013 WL 5966905, at *5 (Ala. Crim. App. Nov. 8, 2013) (“In

order for an individual to have significant or substantial deficits in adaptive

behavior, he must have concurrent deficits or impairments in . . . at least two of the

following skill areas: communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, functional academic skills,

work, leisure, health and safety.” (quotation marks omitted)).

                       X. ANALYSIS OF SMITH’S CLAIMS

A.     Rule 32.6(b) Determination

       Our first task is to review the Alabama Court of Criminal Appeals’

procedural ruling—that Smith failed to meet the pleading requirements of Rule

32.6(b).18 The Alabama Court of Criminal Appeals’ Rule 32.6(b) ruling was based

on its underlying factual determination that “[t]he only grounds offered in support”

of Smith’s claim were his conclusory allegations that he met the three requirements

of intellectual disability under Atkins and Perkins. See Smith II, 71 So. 3d at 19.




       17
         The American Association on Mental Retardation is now known as the American
Association on Intellectual and Developmental Disabilities.
       18
        The parties agree that we should review the decision of the Alabama Court of Criminal
Appeals on Smith’s Atkins claim.

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       Here, we do not examine whether the petition was sufficient to meet

Alabama’s pleading requirement.19 Rather, our narrow review is only the

underlying factual determination about whether Smith’s second amended petition

recounted any facts at all or only conclusory allegations.

       Smith’s second amended Rule 32 petition included at least seven factual

grounds that support his Atkins claim: (1) there “was testimony at trial that Mr.

Smith functioned intellectually at the bottom 3rd percentile of all adults”; (2)

“[s]chool records indicate that Mr. Smith never progressed beyond the 5th grade”;

(3) when Smith enrolled in a junior high school in Monroe County, “the county

board of education classified Mr. Smith as ‘Educable Mentally Retarded’ (EMR),

based on his ‘psychological and educational evaluations, academic history, and

other pertinent information’”; (4) “even though he was in EMR classes while in the

Monroe County school system, [Smith] either failed or performed at the ‘D’ level

in all subjects”; and “testimony at sentencing . . . showed [Smith’s] inability to

adapt because” (5) “he often acts out impulsively,” (6) he “lacks the ability to

formulate a pre-meditated plan,” and (7) he “acts as a follower in groups”

(alterations adopted). These factual allegations relate to the three requirements of

intellectual disability under Perkins: significantly subaverage intellectual
       19
          Under Rule 32.6(b), each claim in a petition for post-conviction relief “must contain a
clear and specific statement of the grounds upon which relief is sought, including full disclosure
of the factual basis of those grounds.” Ala. R. Crim. P. 32.6(b). “A bare allegation that a
constitutional right has been violated and mere conclusions of law shall not be sufficient to
warrant any further proceedings.” Id.

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functioning, significant or substantial deficits in adaptive behavior, and

manifestation before age 18.

       In short, the Alabama appellate court’s factual determination—that the “only

grounds” Smith pled were conclusory allegations that he met each of the three

requirements—is unsupported by the record and therefore unreasonable.20 See

Wiggins, 539 U.S. at 528–29, 123 S. Ct. at 2539; cf. Brumfield, 576 U.S. at ___,

135 S. Ct. at 2276–77 (reviewing under § 2254(d)(2) a state court’s factual

determination that the record included “no evidence” of adaptive impairment).21



       20
          We reach this conclusion based on our review of the state court’s factual determination
about what was alleged in Smith’s second amended Rule 32 petition; by contrast, where a state
court accurately identifies what allegations were included in a petition and concludes that those
allegations failed to meet a pleading requirement, that is a legal conclusion, which is subject to
review under § 2254(d)(1). See Brumfield, 576 U.S. at ___ n.3, 135 S. Ct. at 2277 n.3 (“[W]e
subject these determinations to review under § 2254(d)(2) instead of § 2254(d)(1) because we are
concerned here not with the adequacy of the procedures and standards the state court applied in
rejecting [the petitioner’s] Atkins claim, but with the underlying factual conclusions. . . .”).
       21
          Although not squarely on point, Brumfield is instructive. Following Atkins, the death-
sentenced Brumfield amended his state post-conviction petition to raise a mental-retardation
claim. 576 U.S. at ___, 135 S. Ct. at 2274. Brumfield alleged that he read at a fourth-grade level
and obtained an IQ score of 75. Id. at ___, 135 S. Ct. at 2274–75. The state court dismissed his
petition. Id. at ___, 135 S. Ct. at 2275.
        Later, the district court granted Brumfield’s § 2254 petition, holding, inter alia, the state
court’s dismissal was based on an unreasonable determination of the facts. Id. Reversing, the
Fifth Circuit held that the state court’s dismissal decision did not rest on an unreasonable
determination of the facts. Id. at ___, 135 S. Ct. at 2276.
        The United States Supreme Court vacated the Fifth Circuit’s opinion and concluded that
the state court’s dismissal decision was based on two separate factual determinations that were
unreasonable. Id. at ___, 135 S. Ct. at 2276–77. First, the state court unreasonably determined
that Brumfield’s evidence of intellectual functioning precluded him from obtaining an Atkins
hearing under Louisiana law. Id. at ___, 135 S. Ct. at 2277–79. Contrary to the state court’s
decision, Brumfield’s proffered IQ score of 75 “was squarely in the range of potential
intellectual disability” after accounting for the standard error of measurement. Id. at ___, 135 S.
Ct. at 2278.

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Thus, the Alabama Court of Criminal Appeals’ conclusion that Smith failed to

meet Rule 32.6(b) was based on an unreasonable determination of the facts. See

28 U.S.C. § 2254(d)(2).

B.     Merits Determination

       We must also consider the alternative basis the Alabama appellate court used

for its affirmance of the dismissal of Smith’s Rule 32 petition: its merits

determination that the trial evidence conclusively showed that Smith is not

“mentally retarded” and thus his Atkins claim fails. 22 See Crawford, 311 F.3d at

1326. That merits determination was a finding of fact. See Fults v. GDCP

Warden, 764 F.3d 1311, 1319 (11th Cir. 2014) (“A determination as to whether a

person is mentally retarded is a finding of fact.”). We review the Alabama

appellate court’s merits ruling first on Smith’s intellectual functioning and then on

Smith’s adaptive behavior.

       As to Smith’s intellectual functioning, we agree with the State that Alabama

law generally does not contain a strict IQ cut-off of 70 to establish intellectual


        Second, the state court unreasonably concluded that Brumfield “presented no evidence of
adaptive impairment.” Id. at ___, 135 S. Ct. at 2277, 2279. The Supreme Court concluded that
the state court’s factual determination—that the record failed to raise any question as to
Brumfield’s impairment in adaptive skills—was unreasonable because “the evidence in the state-
court record provided substantial grounds to question Brumfield’s adaptive functioning.” Id. at
___, 135 S. Ct. at 2280.
       22
         In reviewing Smith’s intellectual functioning and adaptive behavior, the Alabama Court
of Criminal Appeals considered both Smith’s first and second amended Rule 32 petitions and the
evidentiary record from Smith’s trial. Accordingly, we do the same. See Pinholster, 563 U.S. at
___, 131 S. Ct. at 1398.

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disability. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010) (“There is no

Alabama case law stating that a single IQ raw score, or even multiple IQ raw

scores, above 70 automatically defeats an Atkins claim when the totality of the

evidence (scores) indicates that a capital offender suffers subaverage intellectual

functioning.”).

       But the problem for the State here is that the trial evidence showed that

Smith’s IQ score could be as low as 69 given a standard error of measurement of

plus-or-minus three points. There was also other trial evidence of deficits in

intellectual functioning, including that Smith (1) did arithmetic at a kindergarten

level, which was consistent with an IQ of 45; (2) suffered from dyslexia; (3) failed

seventh grade and dropped out of school in the eighth grade;23 (4) struggled to

recall learned and acquired information; and (5) was “quite weak in word

knowledge and usage.”

        Despite this trial evidence pointing to significant deficits in Smith’s

intellectual functioning, and even though the state trial court had not conducted an

evidentiary hearing, the Alabama Court of Criminal Appeals held that the record

conclusively established Smith was not mentally retarded and could never meet

Perkins’s intellectual-functioning requirement. Considering the record evidence

before the Alabama Court of Criminal Appeals and the fact that Alabama does not

       23
         In Smith’s second amended Rule 32 petition, he also alleged that school records show
he never successfully completed any grade beyond the fifth grade.

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employ a strict IQ cut-off score of 70, the factual determination that Smith

conclusively did not possess significantly subaverage intellectual functioning was

an unreasonable determination of the facts. See Burgess v. Comm’r, Alabama

Dep’t of Corr., 723 F.3d 1308, 1319 (11th Cir. 2013) (“We hold that the state

court’s determination that [the petitioner] is not mentally retarded is an

unreasonable determination of fact because it was based upon a combination of

erroneous factual findings directly contradicted by the record and a record that was

insufficient to support its conclusions.”); cf. Brumfield, 576 U.S. at ___, 135 S. Ct.

at 2278 (“To conclude, as the state trial court did, that [the petitioner’s] reported IQ

score of 75 somehow demonstrated that he could not possess subaverage

intelligence . . . reflected an unreasonable determination of the facts.”).

      The Alabama Court of Criminal Appeals also determined conclusively that

Smith did not suffer from significant or substantial deficits in adaptive behavior.

See Smith II, 71 So. 3d at 20. This conclusion was similarly based wholly on the

Alabama appellate court’s factual determination that there was “no indication”

from the trial record “that Smith had significant defects in adaptive behavior.” See

id.; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2276–77 (reviewing under

§ 2254(d)(2) a state court’s factual determination that the record included “no

evidence” of adaptive impairment). In other words, there was no record evidence

at all of adaptive-behavior impairment.


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      Even assuming that a petitioner must show deficits areas that are identified

in both of the clinical definitions in Atkins, the Alabama Court of Criminal

Appeals’ conclusion that the record provided “no indication” that Smith had

significant deficits in adaptive behavior was an objectively unreasonable

determination of the facts. See Miller-El, 537 U.S. at 340, 123 S. Ct. at 1041.

Indeed, the record affirmatively contradicts this conclusion that there was “no

indication” of significant deficits in Smith’s adaptive behavior. There was

evidence in the record before the Alabama Court of Criminal Appeals that would

support a fact finding that Smith had significant limitations in at least two of the

adaptive skills identified by both clinical definitions: (1) social/interpersonal skills

and (2) self-direction.

      First, as to social/interpersonal skills, Dr. Chudy concluded that Smith

“never learned how to incorporate successfully into [society’s] norms.” Dr. Chudy

classified Smith’s “personality functioning” as “dysfunctional,” noted that Smith

“scored well below average in skills having to do with social reasoning and

learning how to respond effectively in social situations,” and stated that Smith

“showed a major deficiency in his ability to predict social sequences of action.”

Also relevant to this social-skills inquiry, Dr. Chudy found that Smith’s emotional

problems limited his “ability to deal with everyday stresses and demands” and

caused him to “withdraw[ ] from others.” Furthermore, Dr. Chudy concluded that


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Smith “takes little notice of things around him” and “does not think through

things.”

      Second, as to self-direction, Dr. Chudy concluded that Smith “lacks any

direction or goal in life.” Dr. Chudy found that Smith’s “indifferent and

ineffectual” mindset provided “little basis for [Smith] acting in a consistently

sensible manner or learning from experience . . . even when it involves bringing on

pain to himself or those closest to him.” Dr. Chudy also concluded that Smith “is

often overwhelmed with incomprehensible feelings or impulses that he does not

understand” and “possesses extremely limited insight and judgment.” In addition,

Smith’s Rule 32 petition alleged that Smith (1) is prone to impulsive behaviors, (2)

lacks the ability to formulate premeditated plans, and (3) acts as a follower in

groups.

      Considering all the foregoing, the Alabama Court of Criminal Appeals’

finding that there was “no indication that Smith had significant defects in adaptive

behavior,” Smith II, 71 So. 3d at 20, is unsupported (and, in fact, contradicted) by

the record and therefore unreasonable, see Wiggins, 539 U.S. at 528–29, 123 S. Ct.

at 2539; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2279–82 (holding a state

court’s “conclusion that the [trial] record failed to raise any question” as to the

petitioner’s adaptive behavior was an unreasonable determination of the facts).

Accordingly, its merits determination (at the early dismissal stage) as to Smith’s


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adaptive behavior functioning was based on an unreasonable determination of the

facts.

C.       Evidentiary Hearing

         Smith requests that we reverse and remand this case to allow Smith on his

own to present an expert witness on his behalf. Smith should be allowed to do

that.

         Smith also included in his prayer for relief a request for discovery and an

evidentiary hearing. Neither he nor the State has fully briefed the propriety or

usefulness of discovery or of an evidentiary hearing at this stage of the litigation.

Accordingly, we do not decide whether the district court should order discovery or

an evidentiary hearing, and we leave that issue for the district court to decide in the

first instance.

         However, in considering whether to grant Smith discovery or an evidentiary

hearing, the district court should note that Dr. Chudy’s diagnosis of “borderline

intellectual functioning” does not ipso facto preclude Smith from attempting to

establish that he is intellectually disabled, especially given Dr. Chudy’s testimony

about the standard error of measurement applicable to Smith’s IQ score of 72. See

Burgess, 723 F.3d at 1313, 1322 (ordering the district court to conduct an

evidentiary hearing to determine whether the petitioner, who had been diagnosed

as “borderline mentally retarded,” was intellectually disabled under Alabama law).


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             Case: 14-10721     Date Filed: 08/03/2015   Page: 39 of 39


                                XI. CONCLUSION

      In conclusion, we reverse and remand for further proceedings consistent

with this opinion. In doing so, we express no opinion as to whether Smith is

intellectually disabled. Upon remand, the district court should consider in the first

instance Smith’s requests for discovery and an evidentiary hearing.

      REVERSED AND REMANDED.




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