                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 15a0138p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 ANDRE WILLIAMS,                                       ┐
                               Petitioner-Appellant,   │
                                                       │
                                                       │       Nos. 03-3626/12-4269
        v.                                             │
                                                        >
                                                       │
 BETTY MITCHELL, Warden,                               │
                              Respondent-Appellee.     │
                                                       ┘
                        Appeal from the United States District Court
                       for the Northern District of Ohio at Cleveland.
                     No. 09-02246—Donald C. Nugent, District Judge;
                No. 99-02399—Kathleen McDonald O’Malley, District Judge.
                                 Argued: January 21, 2015
                              Decided and Filed: July 7, 2015

                 Before: MOORE, GIBBONS, and ROGERS, Circuit Judges.

                                    _________________

                                        COUNSEL
ARGUED: Alan C. Rossman, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL
HABEAS UNIT, Cleveland, Ohio, for Appellant. Stephen E. Maher, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Alan C. Rossman,
VICKI Ruth Adams Werneke, Jillian S. Davis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, for Appellant. Stephen E. Maher,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

        MOORE, J., delivered the opinion of the court in which ROGERS, J., joined, and
GIBBSON, J., joined in part. GIBBONS, J. (pp. 24–27), delivered a separate opinion concurring
in part and in the judgment.




                                              1
Nos. 03-3626/12-4269                    Williams v. Mitchell                       Page 2

                                       _________________

                                             OPINION
                                       _________________

        KAREN NELSON MOORE, Circuit Judge. An Ohio jury convicted Petitioner-Appellant
Andre Williams of aggravated murder and sentenced him to death. After filing direct appeals
and seeking post-conviction relief in state and federal courts, Williams filed a post-conviction
petition in Ohio state court pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), arguing that he is
ineligible for the death penalty because he is intellectually disabled. The Ohio courts rejected
Williams’s Atkins petition, and the district court denied Williams’s federal habeas petition. On
appeal, Williams argues that his trial counsel provided ineffective assistance at the penalty phase
for failing to obtain a mitigation specialist to explain his intellectual limitations to the jury, and
he argues that his Atkins petition was improperly denied because he is intellectually disabled.
For the following reasons, the state court’s application of law with regard to whether Williams is
intellectually disabled under Atkins was contrary to clearly established Federal law.
Accordingly, we VACATE and REMAND so that the district court may grant a
CONDITIONAL WRIT OF HABEAS CORPUS prohibiting Williams’s execution unless the
State reassesses Williams’s Atkins petition consistent with this opinion.

                                       I. BACKGROUND

        In 1989, Williams was convicted and sentenced to death for murder. Williams filed
direct appeals to the Ohio Eleventh District Court of Appeals and the Ohio Supreme Court, both
of which affirmed imposition of the death penalty. Williams filed his first petition for post-
conviction relief, raising seven claims, but the trial court denied the petition without conducting
an evidentiary hearing. On post-conviction appeal, the appellate court affirmed dismissal of
Williams’s post-conviction petition, and the Ohio Supreme Court declined to exercise
jurisdiction.

        In his first federal habeas petition, Williams raised thirty-one claims for relief. On March
28, 2003, the district court denied Williams’s petition. No. 1:99-cv-2399, R. 45 (D. Ct. Mem.
and Order) (Page ID #68). Relevant here, the court found that Williams’s claim that his trial
Nos. 03-3626/12-4269                         Williams v. Mitchell                             Page 3

counsel was ineffective for failing to obtain a mitigation specialist or other mental health
professional who could have explained his IQ scores and intellectual functioning to the jury was
procedurally defaulted. Id. at 82 (Page ID #149). But the court noted that Williams may be
entitled to relief pursuant to Atkins, which was decided after Williams filed his federal habeas
petition and which held that execution of mentally retarded individuals violates the Eighth
Amendment’s ban on cruel and unusual punishments.1 Id. at 84‒85 (Page ID #151‒52). The
district court declined to issue a certificate of appealability as to any of Williams’s claims. Id. at
117 (Page ID #184). Williams filed a notice of appeal, and we granted Williams’s motion to stay
and hold the case in abeyance to allow him to pursue his Atkins claim in state court. See No. 03-
3626, R. 16 (6/27/03 Letter); No. 09-3898, R. 8 (9/28/09 Order).

        Williams then filed a post-conviction petition in Trumbull County, Ohio, Court of
Common Pleas on June 9, 2003 asserting that his death sentence should be nullified because he
is intellectually disabled pursuant to Atkins and the Ohio Supreme Court’s decision State v. Lott,
779 N.E.2d 1011 (Ohio 2002), which set forth Ohio’s standards for determining intellectual
disability pursuant to Atkins. Appendix to Appellant Br. (“Appx.”) at A-1 (Atkins Petition at 1).
In his five-page petition, Williams asserted that the state trial court should find him intellectually
disabled based on collateral estoppel on the grounds that the Ohio Supreme Court and this court
have already determined him intellectually disabled, or by taking judicial notice of the trial
proceedings. Id. at A-1‒4 (Atkins Petition at 1‒4). In the alternative, Williams requested an
evidentiary hearing and sought leave to conduct discovery and funds for an expert. Id. at A-4
(Atkins Petition at 4). Williams attached to his petition an affidavit from his cousin, Stacey Vail,
who noted Williams’s deficiencies in mental capacity and adaptive skills up until his
incarceration in 1989 when Williams was twenty-one years old. Appx. at A-6 (Ex. A to Atkins
Petition).

        In response to Williams’s petition, the State of Ohio filed a motion to dismiss the petition
and/or motion for summary judgment. Appx. at A-14 (State’s Mot. to Dismiss and/or SJ). The
state attached over 170 pages of exhibits to its motion. Id. at A-50‒221 (Exs. to State’s Mot. to

        1
           Recent judicial opinions and the professional community have adopted the contemporary term
“intellectual disability” rather than “mental retardation.” We adopt for our present analysis the term “intellectual
disability.” But where quoting and discussing previous opinions and reports that employed the term “mental
retardation,” we will employ the old term for clarity of reference.
Nos. 03-3626/12-4269                   Williams v. Mitchell                     Page 4

Dismiss and/or SJ). In response to the state’s motion, Williams filed a “Motion Opposing
Judgment” in which he again argued that a hearing was necessary to adjudicate fairly his
petition. Appx. at A-241 (Williams Mot. Opp. Judgment). Along with his motion, Williams
filed school records and psychological reports, which indicated, among other things, that at the
age of fifteen Williams had a full-scale IQ score of 67 and the “social age” of a “nine year old
with deficiencies in communication, locomotion, occupation and self-direction,” Appx. at A-
271‒72 (8/31/83 Psychologist Rep. at 2‒3), along with his full prison record. Williams also
attached a three-page “Preliminary Psychological Evaluation” dated December 9, 2003 from Dr.
James Eisenberg, in which Dr. Eisenberg gave his “preliminary opinion” that Williams “d[id] not
currently meet the criteria for a diagnosis of mental retardation based on the Lott definition”
given his full-scale IQ of 75 per the Wechsler Adult Scale of Intelligence. Appx. at A-253‒55
(Eisenberg Prelim. Rep. at 1‒3).

       Based on this record, the state trial court granted the state’s motion for summary
judgment without a holding an evidentiary hearing, finding Williams failed to present sufficient
evidence to meet the three-factor “Atkins/Lott test.” Appx. at A-284‒291 (10/19/04 Tr. Ct. Op.
at 6‒13).   The Ohio Court of Appeals reversed this decision, holding that the trial court
impermissibly weighed conflicting evidence, made findings of fact, and relied on
“unauthenticated documents submitted by the state that were allegedly handwritten or typed by
Williams,” and remanded to the trial court. State v. Williams, 847 N.E.2d 495, 499‒500 (Ohio
Ct. App. 2006). On remand, the trial court again granted summary judgment without holding an
evidentiary hearing, again finding Williams failed to present sufficient evidence to meet any of
the three factors under the Atkins/Lott test. Appx. at A-309 (9/11/07 Tr. Ct. Op.). In doing so,
the trial court relied largely on the same grounds as in its prior opinion—it gave little weight to
or disregarded evidence favoring Williams, while crediting evidence presented by the state. See
id. at A-322‒33 (9/11/07 Tr. Ct. Op. at 14‒25).

       This time, the Ohio Court of Appeals affirmed the dismissal of Williams’s petition,
though it did not accept the trial court’s reasoning. State v. Williams, No. 2007-T-0105, 2008
WL 2582849 (Ohio Ct. App. June 27, 2008). Relying on evidence that the trial court gave little
weight or disregarded (e.g., IQ score of 67 and Vail Affidavit, see Appx. at A-322‒25 (9/11/07
Nos. 03-3626/12-4269                          Williams v. Mitchell                              Page 5

Tr. Ct. Op. at 14‒17)), the court held that Williams met his burden under the third Lott factor—
onset of intellectual disability before the age of eighteen. Williams, 2008 WL 2582849, at *5‒6.
But the appellate court determined that Williams failed to meet the first two Lott factors—
“(1) significantly subaverage intellectual functioning[] [and] (2) significant limitations in two or
more adaptive skills.” Id. at *5 (quoting Lott, 779 N.E.2d at 1014). The court rested on the fact
that these two criteria apply only to Williams’s “present functioning,” and evidence of
Williams’s intellectual functioning and adaptive skills earlier in his life “do not constitute
competent evidence from which inferences may be made regarding his present mental capacity.”
Id. at *6. After rejecting this evidence, the court held that the sole remaining evidence put forth
by Williams—the IQ of 75 in Eisenberg’s preliminary report—failed to show that Williams is
mentally retarded, and so summary judgment for the state was proper. Id. The court also held
that evidence of the underlying crimes and prison records indicated that Williams did not have
current limitations in adaptive skills. Id.2

         The Ohio Supreme Court declined jurisdiction. Appx. at A-352 (Ohio Sup. Ct. Entry).
Williams then filed a second federal habeas petition, arguing that he is ineligible for the death
penalty because he is mentally retarded under Atkins. No. 1:09-cv-2246, R. 6 (Pet. for Writ of
Habeas Corpus) (Page ID #177). The federal district court denied Williams’s petition under
28 U.S.C. § 2254. No. 1:09-cv-2246, R. 36 (D. Ct. Opinion) (Page ID #741). In doing so, the
district court held that “it was not unreasonable” for the state appellate court to exclude the pre-
1989 evidence from its analysis of the first two Lott factors. Id. at 58 (Page ID #798). The
district court also denied Williams’s request for discovery and an evidentiary hearing. See No.
1:09-cv-2246, R. 27 (D. Ct. Opinion) (Page ID #614). This appeal followed.




         2
           No other member of the three-judge court of appeals panel joined the lead opinion’s analysis. Judge
Trapp concurred in judgment only and wrote a separate opinion asserting that abuse of discretion is the correct
standard of review, rather than the de novo standard applied by the lead opinion’s author, Judge Grendell. Judge
O’Toole filed a dissenting opinion in which she found that “it is clear that Atkins, Lott, and White and their progeny
as well as the U.S. and Ohio constitutions require an evidentiary hearing to determine the issue of [Williams’s]
retardation.” Williams, 2008 WL 2582849, at *9. We treat Judge Grendell’s lead opinion as operative, given that it
is the only opinion offering substantive analysis to support the court of appeals’s decision. Because our resolution
of this appeal does not turn on the proper standard of review, we do not address this issue.
Nos. 03-3626/12-4269                   Williams v. Mitchell                      Page 6

                                 II. STANDARD OF REVIEW

       In a federal habeas corpus proceeding, “we review the district court’s legal conclusions
de novo and its factual findings for clear error.” Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir.
2012). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ of habeas
corpus may not be granted unless the state court’s adjudication of the claim on the merits
“(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). A state court’s
decision is “contrary to” clearly established Federal law if it “applies a rule that contradicts the
governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a
result different from [this] precedent.” Williams v. Taylor, 529 U.S. 362, 405‒06 (2000). A state
court’s decision is an “unreasonable application” of clearly established Federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.”   Id. at 407–08.     Under § 2254(d)(1)’s unreasonable-application
clause, the critical point is whether “it is so obvious that a clearly established rule applies to a
given set of facts that there could be no ‘fairminded disagreement’ on the question.” White v.
Woodall, 134 S. Ct. 1697, 1706‒07 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)).

       The phrase “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412. But “because Atkins reserved for the states the task of
developing appropriate ways to enforce the constitutional restriction” prohibiting the execution
of the intellectually disabled, “federal courts conducting habeas review routinely look to state
law that has been issued after the defendant’s state conviction has become final in order to
determine how Atkins applies to the specific case at hand.” Black v. Bell, 664 F.3d 81, 92
(6th Cir. 2011) (internal quotation marks omitted). This means that where a state-court decision
is “contrary to” clearly established state supreme court precedent applying Atkins, the decision is
Nos. 03-3626/12-4269                    Williams v. Mitchell                      Page 7

“contrary to Atkins” for purposes of habeas review. Id. at 96‒97. Thus, in the Atkins context,
“clearly established governing law” refers to the Supreme Court decisions and controlling state
law decisions applying Atkins. See Van Tran v. Colson, 764 F.3d 594, 617‒19 (6th Cir. 2014)
(holding that the Tennessee state court’s Atkins determination was “contrary to clearly
established governing law” as set forth in Tennessee Supreme Court precedent applying Atkins).
In determining whether to grant a petitioner habeas relief, a federal court must “review the last
state court decision adjudicated on the merits.” Gagne v. Booker, 680 F.3d 493, 511‒12 (6th
Cir.), cert. denied, 133 S. Ct. 481 (2012).

                                          III. ANALYSIS

       On appeal, Williams raises three issues for review. First, Williams argues that his trial
counsel was ineffective at the penalty phase for failing to obtain a mitigation specialist to explain
his intellectual limitations. Second, Williams claims that the Ohio state court’s dismissal of his
Atkins petition was contrary to and/or an unreasonable application of clearly established Federal
law or an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1)‒(2). Finally,
Williams argues that the federal district court improperly denied discovery and an evidentiary
hearing. We address each issue in turn.

A.     Williams’s Claim of Ineffective Assistance of Trial Counsel Is Procedurally
       Defaulted

       We first address Williams’s claim that his trial counsel provided constitutionally
ineffective assistance at the penalty phase by filing to obtain a mitigation specialist to explain to
the jury the significance of his intellectual deficiencies. The district court found this claim
procedurally defaulted. We agree.

       We review a district court’s determination that a claim is procedurally defaulted de novo.
Carter v. Mitchell, 693 F.3d 555, 563 (6th Cir. 2012). “[A] petitioner may procedurally default a
claim by failing to raise a claim in state court, and pursue that claim through the state’s ‘ordinary
appellate review procedures.’” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)). To avoid procedural default, the petitioner
must “exhaust” all state-court remedies. Carter, 693 F.3d at 563‒64. Exhaustion requires “fair
presentation” of the federal claim “to the state courts, including the state court of appeals and the
Nos. 03-3626/12-4269                    Williams v. Mitchell                       Page 8

state supreme court.” Bray v. Andrews, 640 F.3d 731, 734‒35 (6th Cir. 2011) (brackets omitted);
see O’Sullivan, 526 U.S. at 845 (“[S]tate prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.”). To fairly present a federal claim, a state prisoner is required to
present the state courts with “both the legal and factual basis” for the claim. Anderson, 460 F.3d
at 806 (emphasis in original). “If a prisoner failed to exhaust his or her state court remedies and
state law would no longer permit the petitioner to raise the claim when he or she files a petition
for habeas relief in federal court, the claim is procedurally defaulted.” Carter, 693 F.3d at 564.
A petitioner may overcome default by showing “cause” and “prejudice” for failing to exhaust.
Id.

       Williams argues on appeal that his trial counsel was ineffective at the penalty phase for
“fail[ing] to obtain a mitigation specialist or other mental health professional who could have
explained his borderline mental retardation and learning disabilities to the jury.” Appellant Br. at
68. On direct appeal to the Ohio Court of Appeals, Williams fairly presented this claim—in his
Thirteenth Assignment of Error, he argued that he was denied effective assistance of counsel at
the penalty phase in violation of the United States Constitution because his counsel failed to
offer expert testimony to explain the significance of his low IQ scores and mental defects.
Supplemental Appendix to Appellee Br. (“Supp. Appx.”) at 915‒18 (Williams 9/16/91 Ohio Ct.
App. Br. at 52‒55). But after the Ohio Court of Appeals rejected this argument on the merits,
Supp. Appx. at 1032‒33 (3/27/95 Ohio Ct. App. Op. at 63‒64), Williams failed to raise the claim
to the Ohio Supreme Court on direct appeal. See Supp. Appx. at 1088 (Williams 6/26/95 Ohio
Sup. Ct. Br.).

       Williams also failed to present this claim throughout his state post-conviction appeal. In
his initial post-conviction petition, Williams argued that he received ineffective assistance of
counsel under federal law because, among other things: his counsel failed to investigate his
medical history and the reasons for a drop in his IQ from 1978 to 1983, Supp. Appx. at 1198‒99
(Williams Post-Conv. Pet. at 29‒30); his counsel failed to begin preparing for the penalty phase
until after the verdict in the guilt phase of the trial, id.; the trial court denied Williams the funds
to present an expert to testify about his intellectual capabilities, id. at 1199‒1203 (Williams Post-
Nos. 03-3626/12-4269                    Williams v. Mitchell                      Page 9

Conv. Pet. at 30‒34); and his “trial counsel failed to investigate or raise these matters” in
violation of federal law, id. at 1209 (Williams Post-Conv. Pet. at 40). In support, Williams
attached to his petition affidavits from criminal defense attorneys with experience trying capital
murder cases who attested that an expert was necessary to effectively gather mitigating evidence
during the penalty phase, and Williams was prejudiced by his counsel’s failure to present
evidence from a psychologist or psychiatrist at trial. Id. at 1240, 1244 (Ex. E to Williams Post-
Conv. Pet.; Ex. G to Williams Post-Conv. Pet.); see also Supp. Appx. at 1248 (Williams Mem. in
Supp. of Mot. for Expert Funds at 1) (asserting in a subsequent motion for funds to hire an expert
for post-conviction proceedings that Williams’s trial counsel was ineffective under federal law
for “fail[ure] to secure a neuropsychologist to determine the effect of head injuries and repeated
blackouts on the Petitioner’s neurological functioning.”).

       The post-conviction trial court rejected these claims. In doing so, the court noted that
Williams raised the same ineffective-assistance claims on direct appeal in his Thirteenth
Assignment of Error. Supp. Appx. at 1271 (Find. of Fact and Concl. of Law). The court further
noted that Williams supported his claim of ineffective assistance of counsel through affidavits,
one of which argued that Williams’s trial counsel was ineffective for failing to obtain an expert
to assist in the preparation and presentation of mitigating evidence at the penalty phase of trial.
Id. at 1272 (Find. of Fact and Concl. of Law). But the court rejected this affidavit as a
“statement[] of opinion” rather than a “statement[] of operative ‘facts’” and, consequently, found
that Williams failed to raise sufficient facts to demonstrate lack of effective counsel and resultant
prejudice. Id. at 1273 (Find. of Fact and Concl. of Law). Based on this, the claim of ineffective
assistance of counsel that Williams asserts here—that his trial counsel was ineffective for failing
to present a mitigation expert at the penalty phase—was fairly presented to the state post-
conviction trial court.

       But then Williams failed to present this claim throughout “the State’s established
appellate review process.” O’Sullivan, 526 U.S. at 845. In his initial post-conviction appeal,
Williams argued that the jury should have heard all mitigation evidence and that his trial counsel
was ineffective under federal law for failing to “investigate possible mitigating factors by
making a thorough review of the Petitioner’s background,” citing his history of blackouts and
Nos. 03-3626/12-4269                    Williams v. Mitchell                     Page 10

low IQ scores and his counsel’s failure to prepare adequately for the penalty phase of trial as
support. Supp. Appx. at 1297‒99 (Williams 10/27/97 Ohio Ct. App. Br. at 12‒14). The court of
appeals rejected his ineffective-assistance claim based on res judicata on the grounds that the
affidavits supporting the claim were based on opinion and evidence of Williams’s declining IQ
was introduced at the penalty phase of trial. Supp. Appx. at 1331‒32 (10/19/98 Ohio Ct. App.
Op. at 6‒7). Then, Williams’s post-conviction brief to the Ohio Supreme Court stated flatly,
without citation to legal authority: “[t]he petition also alleged that Appellant experienced a
10 point IQ drop in a few short years, that trial counsel did nothing about this potential
mitigation evidence except to call a school counselor at trial; that the drop was indicative of the
possibility of organic brain damage; and that it was ineffective assistance of counsel to fail to
pursue such a matter.” Id. at 1348 (Williams 11/30/98 Ohio Sup. Ct. Br. at 9) (footnote omitted).
The Ohio Supreme Court declined jurisdiction. State v. Williams, 706 N.E.2d 788 (Ohio Mar. 3,
1999).

         Nowhere does Williams even suggest in his post-conviction appellate filings that his trial
counsel was ineffective at the penalty phase for failing to present a mitigation specialist to
explain his low IQ scores. Williams’s general reference to his trial counsel’s failure to “pursue”
his intellectual limitations at trial, as asserted in his brief to the Ohio Supreme Court, is not the
same as setting forth the factual and legal underpinnings for the claim he advances now—that his
trial counsel should have presented expert assistance at the penalty phase to explain his low
intellectual functioning to the jury, and that his counsel’s failure to do so caused him prejudice
under the United States Constitution. Indeed, Williams makes no reference whatsoever in his
Ohio Supreme Court briefing to his counsel’s ineffectiveness for failing to present an expert at
trial. The Ohio Supreme Court was thus unable to assess the facts and the law bearing on his
constitutional claim, and, consequently, Williams failed to exhaust the claim.

         Nor does Williams show “cause” for his failure to exhaust. Carter, 693 F.3d at 564.
Williams’s sole argument on this score is that under Martinez v. Ryan, 132 S. Ct. 1309 (2012),
his post-conviction counsel’s ineffectiveness serves as cause for Williams’s failure to raise his
claim that his trial counsel was ineffective for failing to present an expert at the penalty phase.
In Martinez, the Court created an exception to the general rule that ineffective assistance in a
Nos. 03-3626/12-4269                     Williams v. Mitchell                    Page 11

post-conviction proceeding does not establish cause for a procedural default. As the Court
explained in Trevino v. Thaler, Martinez held that procedural default can be excused for cause
where:

         (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;
         (2) the “cause” consisted of there being “no counsel” or only “ineffective”
         counsel during the state collateral review proceeding; (3) the state collateral
         review proceeding was the “initial” review proceeding in respect to the
         “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an
         “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review
         collateral proceeding.”

Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (emphasis in original) (quoting Martinez, 132 S.
Ct. at 1318–19, 1320‒21). In Trevino, the Court modified the fourth element to apply to
situations where state law makes it “highly unlikely” that a defendant will have a “meaningful
opportunity” to raise ineffective-assistance claims on direct appeal. Id. at 1921.

         We have held that Martinez does not apply in Ohio because Ohio permits ineffective-
assistance-of-trial-counsel claims on direct appeal—making the exception inapplicable under the
fourth prong of the Martinez framework—and have questioned whether Trevino applies in Ohio
based on that prong. See Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014) (mentioning
issue) (citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir. 2013),
cert. denied, McGuire v. Robinson, 134 S. Ct. 998 (2014)). But we again need not decide the
applicability of Trevino in Ohio based on the fourth prong because Williams fails to satisfy the
third prong of the Martinez/Trevino framework—as set forth above, his counsel did raise the
claim of ineffective assistance of trial counsel that he pursues here at the initial-review post-
conviction proceedings, yet failed to raise it on post-conviction appeal through to the Ohio
Supreme Court. The Martinez/Trevino exception is thus inapplicable because it “does not extend
to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise
a claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1320; Wallace v. Sexton, 570 F.
App’x 443, 453 (6th Cir. 2014) (holding “ineffective assistance of [the petitioner’s] post-
conviction appellate counsel is not cause to excuse the procedural default” under Martinez).

         As a result, Williams has failed to establish cause for failing to exhaust the claim of
ineffective assistance of trial counsel that he pursues here, and because he can no longer raise
Nos. 03-3626/12-4269                    Williams v. Mitchell                    Page 12

this claim in Ohio state court, see OHIO REV. CODE § 2953.23(A)(1), it is procedurally defaulted.
Carter, 693 F.3d at 563‒64.

B.     The Operative Ohio Court Decision Dismissing Williams’s Atkins Petition Is
       Contrary to Clearly Established Federal Law

       Williams next claims that the Ohio state court’s dismissal of his Atkins petition was
contrary to and/or an unreasonable application of clearly established Federal law or an
unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1)‒(2).            In Atkins, the
Supreme Court held that execution of intellectually disabled individuals violates the Eighth
Amendment’s ban on cruel and unusual punishments. 536 U.S. 304. In doing so, the Court left
to the states “‘the task of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.’” Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399,
416‒17 (1986)). The Court did, however, cite with approval clinical definitions of intellectual
disability from the American Association on Mental Retardation (“AAMR”) and the American
Psychiatric Association (“APA”). See id. at 308 n.3, 318. Relevant here, the AAMR’s definition
stated that: “Mental retardation refers to substantial limitations in present functioning. It is
characterized by significantly subaverage intellectual functioning, existing concurrently with
related limitations in two or more . . . applicable adaptive skill areas . . . . Mental retardation
manifests before age 18.” Id. at 308 n.3.

       In response to Atkins, the Ohio Supreme Court set forth in State v. Lott the Ohio
standards for determining intellectual disability. 779 N.E.2d 1011, 1014 (Ohio 2002). Adopting
the clinical definitions cited with approval in Atkins, the Lott court defined mental retardation as:
“(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more
adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age
of 18.” Lott, 779 N.E.2d at 1014. The Lott court did not limit the evidence that a party could
submit to establish mental retardation under the three-factor test. To the contrary, in applying
this definition to the facts, the Lott court held that an IQ score of 72 (but within the “five-point
margin of error on any IQ test score”) from 1986 and affidavits from family members and friends
regarding “personality problems and behavioral indicators of early-life trauma,” which indicated
that he is mentally retarded; and IQ scores of 77‒81 and 83‒91, an IQ score of 87‒97 from when
the petitioner was in the sixth grade, and an IQ score of 86 from 1984, which indicated that he is
Nos. 03-3626/12-4269                         Williams v. Mitchell                          Page 13

not mentally retarded, created questions of fact as to whether the petitioner met the Ohio
definition of mental retardation. Id. at 1013‒14. The Lott court thus determined that twenty-
year-old evidence of the petitioner’s intellectual capabilities and adaptive skills was relevant to
whether the petitioner met the newly created three-part test for intellectual disability in Ohio and
remanded the case so that the trial court could resolve the factual dispute. Id.

        Here, the last state-court decision adjudicated on the merits—the June 27, 2008 Ohio
Court of Appeals opinion—assessed whether Williams offered sufficient factual support for his
Atkins petition under the three Lott factors. Williams, 2008 WL 2582849, at *5 (quoting Lott,
779 N.E.2d at 1014). The Ohio Court of Appeals ruled that Williams satisfied the third Lott
factor because the evidence indicated that he was intellectually disabled before turning eighteen
years of age. In doing so, unlike the trial court, the court of appeals credited Williams’s full
scale IQ score of 67 from the age of fifteen, school and psychological records, and an affidavit
from his cousin as competent evidence of intellectual disability under the third Lott factor. Id. at
*5‒6. But the court categorically rejected this evidence in assessing whether Williams satisfied
the first two Lott factors. The court held that because “the definition of retardation adopted by
Lott contemplates ‘substantial limitations in present functioning,’” evidence of Williams’s
adaptive skills and functioning prior to 1989 “d[id] not constitute competent evidence from
which inferences may be made regarding his present mental capacity.” Id. at *6 (emphasis in
original). Essentially, the court of appeals held that, based on Lott, it could not consider
evidence of Williams’s intellectual functioning and adaptive skills from before 1989 as
competent evidence of his “present functioning” as a matter of law. Based on this, the court
affirmed summary judgment for the state on Williams’s Atkins petition.3

        We hold that the court of appeals’s decision was contrary to clearly established Federal
law for a number of reasons. First, the Ohio Court of Appeals’s refusal to consider past
evidence of intellectual disability in determining whether Williams has significantly subaverage
mental functioning and adaptive skills limitations is directly contrary to the clearly established
governing law set forth in Atkins/Lott. Here, the court of appeals was faced with an evidentiary
record materially similar to Lott—an almost twenty-year-old IQ score of 67 from when Williams

        3
         Again, the description of the Ohio Court of Appeals’s rationale applies only to Judge Grendell’s opinion;
Judge Trapp concurred in the judgment only, and Judge O’Toole dissented. See supra n.2.
Nos. 03-3626/12-4269                    Williams v. Mitchell                     Page 14

was fifteen years old, evidence of limitations in adaptive skills from school and psychological
records, and an affidavit setting forth Williams’s intellectual limitations up to his incarceration at
the age of twenty-one in 1989 (among others), on the one hand; and a more recent IQ score of
75 from Dr. Eisenberg’s preliminary report and fifteen years of prison records, on the other.
Yet, notwithstanding the Lott court holding that past evidence of intellectual functioning (e.g.,
past IQ scores, evidence of adaptive limitations from “early-life”) was relevant to the three
Atkins factors, the court of appeals rejected outright any pre-1989 evidence from its analysis of
Williams’s intellectual functioning and adaptive skills, despite finding this same evidence
showed that Williams was intellectually disabled before he turned eighteen. The Ohio Court of
Appeals thus refused even to consider—as a matter of law—the exact same type of evidence that
created a factual dispute in Lott. Had the Lott court applied the court of appeals’s analysis, it
would have found no factual dispute because the only evidence suggesting present intellectual
disability was Lott’s 1986 IQ score and affidavits from family and friends that presumably
depended on observation of Lott’s pre-incarceration functioning. 779 N.E.2d at 1013. By
rejecting past evidence of intellectual deficiencies wholesale, the Ohio Court of Appeals reached
a decision opposite to the clearly established Federal law set forth in Atkins/Lott. See Williams,
529 U.S. at 405; see also Van Tran, 764 F.3d at 617‒18 (looking to governing state law in
determining that the state court’s decision at issue was “contrary to clearly established Federal
law” in the Atkins context); Black, 664 F.3d at 96‒97 (holding the Tennessee court’s failure to
consider evidence supporting a finding of mental retardation “contrary to the latest Tennessee
Supreme Court’s decision on this subject” and thus “contrary to Atkins”).

       That Williams’s low IQ scores date from when he was a minor does not adequately
distinguish this case from Lott, in which there is no indication of Lott’s age in 1986, when his IQ
was measured as 72. In support of its decision that evidence of Williams’s childhood intellectual
disability is not competent evidence for Williams’s present intellectual capacity, the Ohio Court
of Appeals cited the Florida Supreme Court’s report of an expert’s testimony regarding
developmental delays. That expert testified that “‘because mental retardation is lifelong, a child
may meet the criteria for the diagnosis because of developmental delays without being mentally
retarded. . . . Thus, diagnosis of mental retardation in an adult must be based on present or
current intellectual functioning and adaptive skills and information that the condition also existed
Nos. 03-3626/12-4269                    Williams v. Mitchell                  Page 15

in childhood.’” Williams, 2008 WL 2582849, at *6 (quoting Jones v. State, 966 So.2d 319, 327
(Fla. 2007)). But the expert’s testimony focused on limitations in adaptive skills, not IQ scores.
See Jones, 966 So.2d at 327 (noting that expert’s testimony was based on clinical authority
stating that in some circumstances young children who show signs of mild mental retardation
based on “failure in academic learning tasks” may no longer meet the clinical definition as they
mature because they “develop good adaptive skills in other domains” through training)
(emphasis added). Moreover, contrary to the Ohio Court of Appeals’s decision here, the Jones
court held that the expert properly considered evidence from throughout the appellant’s life in
assessing his adaptive functioning, reviewing the appellant’s records from childhood up until the
hearing to determine his current functioning. Id. at 327‒28. In any event, even when applied to
IQ scores, the expert testimony quoted above merely suggests that an IQ score obtained when an
individual is a minor may in some circumstances be given less weight than an adult IQ score, but
not no weight. A determination that an individual either suffered from developmental delays or
is intellectually disabled excludes the possibility that the individual is neither intellectually
disabled nor suffered from developmental delays and thus tends to increase the likelihood (albeit
perhaps only somewhat) that the individual is intellectually disabled. Further, the probative
force of such evidence depends on whether the low childhood IQ scores are the result of lifelong
intellectual disability rather than developmental delays. Jones is silent on this question, and
there is no basis for the Ohio Court of Appeals to have assumed, as it apparently did, that most
low childhood IQ scores (or, to be precise, age-fifteen IQ scores) are the result of developmental
delays. The Ohio Court of Appeals’s determination that Williams’s age-fifteen IQ score was not
competent evidence to show present intellectual limitations was thus an unreasonable application
of Lott.

           The Ohio Court of Appeals also cited State v. White, 885 N.E.2d 905 (Ohio 2008), and
State v. Lorraine, No. 2006-T-0100, 2007 WL 4376250 (Ohio Ct. App. Dec. 14, 2007), to
support its decision to exclude this evidence from its analysis—but neither case supports its
holding. In White, the Ohio Supreme Court simply quoted the “present functioning” language in
the AAMR’s definition of mental retardation (quoted above) from Atkins in setting forth the
background that led to Lott’s definition of intellectual disability.     885 N.E.2d at 907‒08.
Nowhere did it suggest that the “present functioning” language controlled or in any way limited
Nos. 03-3626/12-4269                    Williams v. Mitchell                    Page 16

the evidence that could be presented to support the first two Lott factors. To the contrary, the
White court recognized that intellectual disability must “manifest before age 18” and credited
evidence establishing that “a person’s mental-retardation status does not change over his
lifetime.” Id. at 908, 917. For these reasons, the White court held that the trial court abused its
discretion in denying the petitioner’s Atkins petition because “if an adult is found to have
intellectual and adaptive deficits not caused by a brain injury or illness, it can be inferred that
those deficits have existed since childhood.” Id. (emphasis added). The White court thus
recognized that because intellectual disability manifests itself during childhood and remains
static throughout life, evidence of intellectual disability from one point in life is relevant to an
examination of intellectual disability in another. That developmental delays may account for
some low IQ scores in juveniles does not automatically eliminate the relevance of juvenile IQ
scores to a determination of adult intellectual capacity.

       Similarly, Lorraine expressly rejected the Ohio Court of Appeals’s reading of “present
functioning” in this case—it explained that “[t]he trial court should not have couched the inquiry
in terms of ‘present mental status,’” yet it recognized that “the question of a relevant ‘time-
frame[]’ is ‘more seman[t]ical than real . . . [s]ince mental retardation is a developmental
disability that becomes apparent before adulthood.” 2007 WL 4376250, at *4 (emphasis added)
(internal quotation marks omitted). Indeed, the court explained, any “reference to appellant’s
‘present status’ and ‘present condition of mental retardation’ is actually a misnomer . . .
[because] manifestation of mental retardation must occur before age eighteen.” Id. The court
then affirmed the trial court’s decision to unseal the appellant’s prison mental-health records
because the trial court “d[id] not restrict its review solely to a consideration of appellant’s
present mental state.” Id. (emphasis added); see also id. at *6 (“In the interest of fairness to both
the State and the offender, an examination of the offender’s past and present mental status would
serve the interest of justice.”) (internal quotation marks omitted).

       So, far from supporting the Ohio Court of Appeals’s opinion, these cases further establish
that the court’s wholesale exclusion of past evidence of intellectual disability from its Atkins
analysis was contrary to clearly established Federal law. See Van Tran, 764 F.3d at 617; Black,
664 F.3d at 96‒97.
Nos. 03-3626/12-4269                         Williams v. Mitchell                           Page 17

        Second, the Ohio Court of Appeals’s ruling is contrary to the established definition of
intellectual disability as set forth in clearly established Supreme Court precedent. As expressed
in Atkins, “clinical definitions of mental retardation require not only subaverage intellectual
functioning, but also significant limitations in adaptive skills such as communication, self-care,
and self-direction that became manifest before age 18.” 536 U.S. at 318. More precisely, the
AAMR definition in Atkins made clear: “Mental Retardation manifests before 18.” Id. at 308
n.3. Importantly, the clinical definitions cited with approval by Atkins and adopted by Lott do
not treat present functioning and early onset as unrelated parts of a disconnected three-part test.
To the contrary, a plain reading of these clinical definitions makes clear that if an individual is
indeed presently intellectually disabled, as the term is understood, the disability would have
manifested itself before the individual turned eighteen. Thus, pursuant to the clinical definitions
in Atkins, past evidence of intellectual disability—including evidence of intellectual disability
from an individual’s childhood—is relevant to an analysis of an individual’s present intellectual
functioning. See Hall v. Florida, 134 S. Ct. 1986, 1999 (2014) (rejecting Florida’s Atkins test
where it “[ran] counter to the clinical definition cited throughout Atkins”).

        This is consistent with the Supreme Court’s holding in Heller v. Doe by Doe, 509 U.S.
312 (1993). In Heller, the Court examined the constitutionality of a statute governing the
involuntary civil commitment of the mentally retarded. Relying on clinical definitions of mental
retardation from the AAMR and others, the Court held that committing the mentally retarded
based on clear and convincing evidence of future dangerousness was constitutional because these
definitions indicated that intellectual disability “becomes apparent before adulthood” and “is a
permanent, relatively static condition, so a determination of dangerousness may be made with
some accuracy based on previous behavior.” Id. at 321‒23 (emphasis added) (citations omitted).
This was particularly true for adults because “[b]y the time the person reaches 18 years of age
the documentation and other evidence of the condition have been accumulated for years.” Id. at
322. Thus, “almost by definition in the case of the retarded [adult] there is an 18-year record
upon which to rely” when assessing the individual’s future intellectual functioning. Id. at 323.4


        4
           Indeed, based on the clinical definitions adopted by Heller, courts have overwhelmingly held that
intellectual capabilities remain stable throughout life and, consequently, evidence of intellectual disability from
earlier in life is directly relevant to present-day intellectual disability determinations. See Talavera v. Astrue,
Nos. 03-3626/12-4269                           Williams v. Mitchell                             Page 18

         The Supreme Court’s recent decision in Hall v. Florida also applied medical and clinical
definitions of intellectual disability—definitions inconsistent with the Ohio Court of Appeals’s
decision here—in holding Florida’s post-Atkins test unconstitutional.                          The Court in Hall
addressed “how intellectual disability must be defined” in order to implement Atkins. 134 S. Ct.
at 1993; see Van Tran, 764 F.3d at 612 (“[Hall] clarified the minimum Atkins standard under the
U.S. Constitution”).         As in Atkins and Heller, the Court in Hall recognized that, “[i]n
determining who qualifies as intellectually disabled, it is proper to consult the medical
community’s opinions.” Hall, 134 S. Ct. 1993; see Van Tran, 764 F.3d at 612 (“In Hall, the
Court reasoned that the Constitution requires the courts and legislatures to follow clinical
practices in defining intellectual disability.”). Based on these clinical definitions, the Court in
Hall held that the Florida post-Atkins test was unconstitutional because it failed to take into
account an IQ test’s five-point Standard Error of Measurement (“SEM”) and it set a strict IQ
cutoff of 70, both of which were contrary to “unanimous professional consensus” and “counter to
the clinical definition cited throughout Atkins.” 134 S. Ct. at 1999‒2000. The Court also
recognized that, “[f]or professionals to diagnose—and for the law then to determine—whether an
intellectual disability exists,” courts must analyze all factors bearing on the individual’s
functioning, such as “past performance, environment, and upbringing.” Id. at 1996. Indeed, the
Court rejected Florida’s post-Atkins test because, under certain circumstances, its scheme did not
permit consideration of “substantial and weighty evidence” the medical community accepts as
“probative of intellectual disability,” like “medical histories, behavioral records, school tests and
reports, and testimony regarding past behavior and family circumstances.” Id. at 1994; see id. at
2001 (holding that Florida’s post-Atkins test failed because the petitioner must be able to present



697 F.3d 145, 152 (2d Cir. 2012) (“We agree with the majority of our sister Circuits that it is reasonable to presume,
in the absence of evidence indicating otherwise, that claimants will experience a fairly constant IQ throughout their
lives.”) (internal quotation marks and brackets omitted); Ochoa v. Workman, 669 F.3d 1130, 1137-38 (10th Cir.),
cert. denied, 133 S. Ct. 321 (2012) (citing Heller for the proposition that because mental retardation is a static
condition, any “temporal focus is more semantical than real”) (internal quotation marks omitted); Moormann v.
Schriro, 672 F.3d 644, 649 (9th Cir.), cert. denied, 132 S. Ct. 1656 (2012) (“The law . . . does not indicate
retardation is a product of changing circumstances.”); Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001) (“Mental
retardation is not normally a condition that improves as an affected person ages. . . . Rather, a person’s IQ is
presumed to remain stable over time.”); Hodges v. Barnhart, 276 F.3d 1265, 1268 (11th Cir. 2001) (“IQ tests create
a rebuttable presumption of a fairly constant IQ throughout her life.”); United States v. Smith, 790 F. Supp. 2d 482,
503‒04 (E.D. La. 2011) (“[T]he AAMR/AAIDD has been clear that a person’s current strengths and weaknesses are
not the best evidence of the relevant facts in an Atkins hearing” because IQ “is a relatively stable, immutable trait.”).
Nos. 03-3626/12-4269                           Williams v. Mitchell                             Page 19

evidence regarding “deficits in adaptive functioning over his lifetime”) (emphasis added)5; see
also Brumfield v. Cain, --- S. Ct. ----, No. 13-1433, 2015 WL 2473376, at *9 (June 18, 2015)
(“low birth weight,” placement in special education classes at an “early age,” and “commitment
to mental health facilities at a young age,” among other evidence, “provided substantial grounds
to question [the petitioner’s] adaptive functioning”).

         The Ohio Court of Appeals here categorically excluded this “substantial and weighty
evidence” from its analysis. It also ignored the medical community’s determination, as adopted
by the Supreme Court, that intellectual disability manifests itself before eighteen and remains
consistent throughout a person’s life. Consequently, the Ohio Court of Appeals’s treatment of
intellectual disability as evolving—such that Williams’s intellectual disability pre-eighteen has
no bearing on his current intellectual functioning—relies on a fundamental misunderstanding of
governing law. In fact, consistent with these clinical authorities and governing law, the State
Attorney General’s Office argued repeatedly at oral argument before us in this case that
intellectual disability does not change over a person’s life. The State’s point was that Williams’s
more recent IQ score of 75 is thus determinative. While that may ultimately be the case when
the evidence is weighed (an issue we do not decide here), the State’s position ignores the fact
that, because intellectual functioning does not generally change throughout a person’s life, past
evidence of intellectual disability (as the Ohio Court of Appeals found in this case) is also
relevant to an analysis of present functioning.

         This is particularly important because “[i]ntellectual disability is a condition, not a
number. Courts must recognize, as does the medical community, that the IQ test is imprecise.”
Hall, 134 S. Ct. at 2001 (citation omitted). Because of this, courts must consider all evidence
bearing on an individual’s intellectual functioning in determining whether an intellectual
disability exists—both past and present. Indeed, the Ohio Court of Appeals’s exclusion of this
evidence was especially troubling here because the only post-1989 evidence of Williams’s
intellectual functioning—the preliminary IQ score of 75 from Dr. Eisenberg—placed Williams,
at worst, on the borderline of being intellectually disabled. See Atkins, 536 U.S. at 309 n.5
(“[A]n IQ between 70 and 75 or lower . . . is typically considered the cutoff IQ score for the

         5
          Notably, the Court’s analysis regarding the relevance of past evidence of intellectual disability was
relevant only to the first two Atkins factors because the “age of onset” factor was “not at issue” in Hall. Id. at 1994.
Nos. 03-3626/12-4269                          Williams v. Mitchell                            Page 20

intellectual function prong of the mental retardation definition.”); Hall, 134 S. Ct. at 1995, 2001
(“[A]n individual’s [IQ] score is best understood as a range of scores on either side of the
recorded score,” and courts must consider the five-point SEM margin of error.); Brumfield, --- S.
Ct. at ----, 2015 WL 2473376, at *7 (“Accounting for this margin of error, [the petitioner’s]
reported IQ test result of 75 was squarely in the range of potential intellectual disability.”). Of
course, how the fact-finder eventually weighs the evidence is beside the point. But weight of the
evidence was not the issue here—the Ohio Court of Appeals credited this pre-1989 evidence for
purposes of the early-onset factor, but then improperly found the evidence not “competent” as a
matter of law for determining present intellectual functioning.6                       The court should have
recognized instead that the same evidence indicating that Williams was intellectually disabled in
childhood is directly relevant to whether Williams is intellectually disabled today under the first
two Lott factors.

         Based on the above authorities, the Ohio Court of Appeals’s holding that pre-1989
manifestations of intellectual disability have no bearing on an individual’s “present functioning”
is “substantially different from the relevant precedent of th[e] Court” and “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405.
As a result, the court’s categorical exclusion of the relevant evidence was contrary to clearly
established Federal law.

         Finally, the Ohio Court of Appeals’s decision was contrary to clearly established Federal
law because it applied an arbitrary and disproportionate evidentiary rule to exclude the pre-1989
evidence at issue. The Supreme Court has clearly established that evidentiary rulings abridge a
defendant’s due-process right to present evidence when a state court’s exclusion of evidence is
“arbitrary or disproportionate to the purposes [it is] designed to serve.” United States v. Scheffer,
523 U.S. 303, 308 (1998) (internal quotation marks omitted); Holmes v. S. Carolina, 547 U.S.
319, 326 (2006) (“[T]he Constitution . . . prohibits the exclusion of defense evidence under rules
that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to

         6
           The State suggested at oral argument before us that the Ohio Court of Appeals did not categorically
exclude the evidence, but instead, the court rejected the evidence because it was not properly presented. But
nowhere did the court suggest that the evidence was improperly presented; again, to the contrary, it credited the pre-
1989 evidence in finding that Williams satisfied the third Lott factor. The court clearly excluded the evidence from
“prior to 1989” because the court held this evidence “d[id] not constitute competent evidence from which inferences
may be made regarding [Williams’s] present mental capacity.” Williams, 2008 WL 2582849, at *6.
Nos. 03-3626/12-4269                            Williams v. Mitchell                             Page 21

promote.”). The Court has defined “arbitrary” evidentiary rules as rules that exclude important
evidence “but that d[o] not serve any legitimate interests.” Holmes, 547 U.S. at 325. “[T]he
exclusion of evidence [is] unconstitutionally arbitrary or disproportionate only where it has
infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308; Holmes, 547 U.S.
at 324‒25; see also Loza v. Mitchell, 766 F.3d 466, 485 (6th Cir. 2014) (“The ‘clearly
established Federal law,’ § 2254(d)(1), at issue is that a defendant’s right to present a complete
defense is violated when a state court excludes important evidence on the basis of an arbitrary,
mechanistic, or per se rule, or one that is disproportionate to the purposes it is designed to
serve.”) (internal quotation marks omitted).7

         Here, the Ohio Court of Appeals’s decision to exclude categorically pre-1989 evidence of
Williams’s intellectual disability was arbitrary and disproportionate.                         The Ohio Court of
Appeals’s “mechanistic, per se rule” rejected evidence from “prior to 1989” offered by Williams
as not “competent evidence” of “present mental capacity” under the first two Lott factors. But
the court appears to have credited Williams’s prison records—which span fifteen years—along
with evidence of the underlying crimes—which occurred in 1988—as “considerable evidence”
of Williams’s “current” limitations in adaptive skills. How the latter evidence (i.e., prison
records, the underlying crimes) was “current” when the trial court analyzed the evidence in 2004
and the Ohio Court of Appeals affirmed in 2008 is unclear. Moreover, the court failed to explain
why 1989 was the magical line between past and present functioning. Williams was a twenty-
one-year-old adult in 1989, so the court’s distinction was not between juvenile and adult records
(though, for the reasons noted above, categorically excluding the evidence for this reason would
have been improper, too). Instead, the court’s pre-1989 cutoff appears unmoored to reason or
principle—despite purporting to exclude all “past” evidence from its analysis of the first two Lott
factors, essentially, the court applied its categorical exclusion only to evidence submitted by
Williams.      The court’s per se exclusionary rule was thus unconstitutionally arbitrary and


         7
           Although these principles are generally applied to a criminal defendant’s ability to present a defense
during a criminal trial, they apply with equal force in the Atkins context. In Atkins, the Court held that intellectual
disabilities diminish an individual’s “personal culpability” and, as a result, people with intellectual disability must be
“categorically excluded from execution.” Atkins, 536 U.S. at 319. It would be anomalous to hold that these due-
process principles of fundamental fairness do not apply to evidentiary determinations in proceedings to determine
whether the death penalty should be imposed. See Hall, 134 S. Ct. at 2001 (“The death penalty is the gravest
sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show
that the Constitution prohibits their execution.”).
Nos. 03-3626/12-4269                   Williams v. Mitchell                    Page 22

disproportionate. And, of course, the decision infringed upon a weighty interest: the court’s
decision to exclude this important evidence indicating that Williams was intellectually disabled
before age eighteen (a finding that the parties agree would normally hold static throughout
Williams’s lifetime) was directly relevant to the obviously extremely important issue of whether
Williams should live or die based on his intellectual functioning. Thus, for this reason too, the
court’s blanket exclusion of the evidence was contrary to clearly established Federal law.

C. Remand

       Finally, Williams argues that because the state court wrongly found that he failed to
demonstrate a prima facie case of intellectual disability, the federal district court should have
granted Williams discovery and held an evidentiary hearing. But we need not reach that issue
here. The Ohio Court of Appeals’s decision was contrary to clearly established Federal law
under § 2254(d) for improperly excluding evidence relevant to Williams’s Atkins claim. As set
forth above, the Ohio Court of Appeals rejected relevant facts that were necessary to rule on
Williams’s Atkins claim; and it did so based on a misreading of United States Supreme Court
jurisprudence and the Ohio Supreme Court’s implementing decisions in Lott and White. Because
of this error, the operative state-court decision did not definitively resolve the merits of
Williams’s Atkins claim under a correct reading of the facts and law. We thus do not reach the
merits of Williams’s Atkins claim. See Black, 664 F.3d at 101 (“[W]e will refrain from reaching
any independent conclusions ourselves because no court has yet analyzed Black’s Atkins claim
according to the proper legal standard.”).

       Instead, the proper course is to grant a writ of habeas corpus prohibiting imposition of the
death penalty, conditioned upon a fresh analysis by the Ohio courts as to whether Williams is
intellectually disabled pursuant to governing law. Indeed, this is the course we took in Van Tran,
where the state court decision “did not apply the proper legal standard and was therefore contrary
to clearly established governing law” because it improperly disregarded relevant evidence in its
analysis. Van Tran, 764 F.3d at 619‒20 (“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)
Nos. 03-3626/12-4269                        Williams v. Mitchell                          Page 23

(“[C]onditional grants [of habeas writs] . . . provide states with an opportunity to cure their
constitutional errors, out of a proper concern for comity among the co-equal sovereigns.”).

        In remanding, we note that clearly established Federal law, as set forth above, requires
courts to consider all relevant evidence bearing on an individual’s intellectual functioning and to
apply clinical principles of intellectual disability adopted by federal precedent. See, e.g., Hall,
134 S. Ct. at 2001 (remanding so petitioner could present evidence of his intellectual deficits
“over his lifetime”); Heller, 509 U.S. at 323 (recognizing that an intellectual disability “is a
permanent, relatively static condition”). Indeed, the most recent evidence in the record is well
over ten years old, so this could include presentation of new evidence from both Williams and
the State relevant to Williams’s functioning. See Hall, 134 S. Ct. at 2001 (“Intellectual disability
is a condition, not a number. Courts must recognize, as does the medical community, that the IQ
test is imprecise.”) (citation omitted).          But whether to grant an evidentiary hearing after
considering all relevant evidence and applying the applicable law is for the state court to decide
in the first instance. See OHIO REV. CODE § 2953.21(E) (“Unless the petition and the files and
records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt
hearing on the issues.”); see also Brumfield, --- S. Ct. at ----, 2015 WL 2473376, at *10 (holding
state court erred by failing to hold evidentiary hearing before adjudicating Atkins petition based,
in part, on evidence of intellectual disability from the petitioner’s childhood).

                                           IV. CONCLUSION

        For the foregoing reasons, Williams is not entitled to relief on his claim of ineffective
assistance of counsel. But the Ohio state court’s application of law with regard to whether
Williams is intellectually disabled under Atkins was contrary to clearly established Federal law.
Accordingly, we VACATE and REMAND so that the district court may grant a
CONDITIONAL WRIT OF HABEAS CORPUS prohibiting Williams’s execution unless the
State reassesses Williams’s Atkins petition consistent with this opinion.8




        8
         We leave it to the district court to impose any necessary procedures and time limits for conducting this
reassessment.
Nos. 03-3626/12-4269                           Williams v. Mitchell                           Page 24

                     ___________________________________________________

                        CONCURRING IN PART AND IN THE JUDGMENT
                     ___________________________________________________

       JULIA SMITH GIBBONS, Circuit Judge, concurring.                               I agree that our precedents
compel reversal for the reasons explained in the majority opinion and concur in all of it except
the two paragraphs concluding that the Ohio Court of Appeals decision was contrary to clearly
established Federal law because it applied an arbitrary and disproportionate evidentiary ruling to
exclude the pre-1989 evidence at issue. I elaborate slightly on the analysis that provides for me
the most obvious and straightforward basis for resolution of this appeal.1

       AEDPA’s limited grounds for relief include a state court’s decision on the merits that
unreasonably applied clearly established Federal law. 28 U.S.C. § 2254(d). A state court
unreasonably applies the law if “there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [the Supreme] Court’s precedents.” Harrington v. Richter,
131 S. Ct. 770, 786 (2011).

       Here, no fairminded jurist could disagree that the Ohio Court of Appeals violated the
clearly established law set out in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida,
134 S. Ct. 1986 (2014). Under this theory—unlike the theory upon which the majority opinion
principally relies—we need not decide whether the state faithfully applied its own precedent,
State v. Lott, 779 N.E.2d 1011 (Ohio 2002), in this instance. Instead, we proceed to the heart of
the issue and ask simply whether the state court decision involved an unreasonable application of
the clearly established law that the Supreme Court announced in Atkins and Hall.

       The clearly established mandate of those cases, for present purposes, is twofold. First,
states may take different routes but must reach the same end point: ensuring that no intellectually
disabled individual is subjected to the state’s death penalty. Atkins, 536 U.S. at 317; Hall, 134 S.
Ct. at 2001 (“The States are laboratories for experimentation, but those experiments may not
deny the basic dignity the Constitution protects.”). Second, in deciding which individuals are
intellectually disabled, states do not operate in a vacuum. Their tests must be tethered to the

       1
           Discussion of this issue is found at pp. 17–20 of the majority opinion.
Nos. 03-3626/12-4269                   Williams v. Mitchell                     Page 25

definition of intellectual disability that the Supreme Court has recognized, a definition that is
itself heavily influenced by the medical understanding of that condition. Hall, 134 S. Ct. at 2000
(“The legal determination of intellectual disability is distinct from a medical diagnosis, but it is
informed by the medical community’s diagnostic framework.              Atkins itself points to the
diagnostic criteria employed by psychiatric professionals.”); Kansas v. Crane, 534 U.S. 407, 413
(2002) (“[T]he science of psychiatry . . . informs but does not control ultimate legal
determinations . . . .”).

        The Court applied this standard in Hall in holding that Florida’s scheme for assessing
intellectual disability was incompatible with Atkins. Florida courts imposed a rigid rule requiring
a defendant to demonstrate an IQ of seventy or below as a threshold matter. Id. at 1992.
Without such a showing, a defendant would be unable to prove intellectual disability, no matter
the other circumstances. See id. Of the two IQ tests that were admissible in Hall’s trial, neither
showed an IQ of seventy or below. Id. The Florida Supreme Court therefore concluded that he
was unable to demonstrate intellectual disability, and that the Eighth and Fourteenth
Amendments did not bar his execution.          Id.   Drawing on the medical understanding of
intellectual disability set forth in Atkins, the U.S. Supreme Court reversed. Id. at 2001. It
emphasized that IQ test scores are mere “approximations of conceptual functioning,” subject to a
standard error of measurement. Id. at 2000 (internal quotation marks omitted). As a result, “an
individual with an IQ test score ‘between 70 and 75 or lower’ . . . may show intellectual
disability by presenting additional evidence regarding difficulties in adaptive functioning.” Id. at
2000 (quoting Atkins, 536 U.S. at 309 n.5). Florida’s test “contradict[ed] the [IQ] test’s own
design,” by failing to account for the standard error of measurement and eliminating “an
essential part of a sentencing court’s inquiry into adaptive functioning.” Id. at 2001. The state
law therefore contradicted “the unanimous professional consensus.”           Id. at 2000 (internal
quotation marks omitted).

        No fairminded jurist could disagree that the Ohio Court of Appeals went similarly awry
in Williams. The U.S. Supreme Court, adopting the consensus of the medical community,
understands intellectual disability as a permanent condition, affecting a defendant not only at the
time of the offense, but also at the times of trial and execution. Atkins, 536 U.S. at 319–21; see
Nos. 03-3626/12-4269                         Williams v. Mitchell                          Page 26

also Heller v. Doe, 509 U.S. 312, 323 (1993) (noting, in a different context, that intellectual
disability “is a permanent, relatively static condition” (citing S. Brakel et al., The Mentally
Disabled and the Law 37 (3d ed. 1985))). This is why intellectual disability makes an individual
permanently ineligible for execution, unlike an individual deemed incompetent for execution,
who may later regain competency and be executed. See, e.g., Singleton v. Norris, 319 F.3d 1018,
1027 (8th Cir. 2003) (en banc) (citing Ford v. Wainwright, 477 U.S. 399 (1986)). The Atkins
Court further noted that intellectual disability “‘may be seen as a final common pathway of
various pathological processes that affect the functioning of the central nervous system,’” Atkins,
536 U.S. at 308 n.3 (quoting Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.
2000)), and discussed the deficiencies in cognitive and adaptive functioning that characterize an
intellectually disabled person, id. at 308 n.4, 309 n.5.2 It is clear from the entire thrust of the
Atkins decision—along with the medical literature that it cites in support—that intellectual
disability is a permanent condition.

        The Ohio Court of Appeals—by contrast—approached the evidence of Williams’s
alleged intellectual disability as if it were a transient condition. That court held that pre-1989
evidence of Williams’s subaverage intellectual functioning and deficits in adaptive functioning
“only attest his intellectual functioning prior to 1989” and therefore “do not constitute competent
evidence from which inferences may be made regarding his present mental capacity.” State v.
Williams, No. 2007-T-0105, 2008 WL 2582849, at *6 (Ohio Ct. App. June 27, 2008).3 Given the
enduring nature of intellectual disability, there is no basis for excluding evidence from earlier in
Williams’s life.     If Williams was intellectually disabled in 1989, he remains intellectually
disabled now. By excluding the pre-1989 evidence, the state court severely limited its own
ability to make a reasoned assessment of Williams’s condition according to the legal and medical
standard that Atkins and Hall plainly require. Andre Williams “may or may not be intellectually
disabled, but the law requires that he have the opportunity to present evidence of his intellectual
disability.” See Hall, 134 S. Ct. at 2001. That includes the evidence that the state court excluded
here.


        2
           The Atkins decision and the material it cites refer to the condition as “mental retardation.” In modern
lexicon, the preferred term is “intellectual disability.” See Hall, 134 S. Ct. at 1990.
        3
         Williams turned 22 in 1989. See Williams, 2008 WL 2582849, at *2.
Nos. 03-3626/12-4269                    Williams v. Mitchell                     Page 27

          Regardless of whether the Ohio Court of Appeals followed its own state’s law, no
fairminded jurist could disagree that its decision conflicts with the clearly established law
enunciated in Atkins and Hall. This provides an alternative basis for relief under AEDPA.

          I also touch briefly on my quibble with the portion of the majority opinion in which I do
not concur. This third rationale is not necessary and I question whether it is appropriate here.
The Ohio Court of Appeals did not explicitly invoke any evidentiary rule when it excluded the
pre-1989 evidence. The court stated that that evidence was not “competent” to prove present
intellectual deficits. In the context of the opinion, this appears to mean that the pre-1999
evidence is not relevant to the Atkins/Lott test (other than the “onset before 18” prong).

          This evidentiary ruling was not arbitrary or disproportionate. The state court excluded
the evidence simply because it misunderstood and misapplied Atkins and Lott. If it had been
correct that intellectual disability can fluctuate and that present functioning was a separate fact to
be proven, it would have been correct to exclude the pre-1989 evidence as irrelevant. In reality,
the court’s erroneous exclusion of the evidence was due to a misapplication of the substantive
law (an issue the opinion already analyzes), not an arbitrary or disproportionate evidentiary
ruling.
