                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 14-4


ALFREDO PRIETO,

                  Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cv-00849-HEH)


Argued:   May 13, 2015                      Decided:   June 30, 2015


Before MOTZ, SHEDD, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Shedd and Judge Diaz joined.


ARGUED: Miriam Bamberger Airington, BOWEN, CHAMPLIN, FOREMAN &
ROCKECHARLIE PLLC, Richmond, Virginia, for Appellant.     Alice
Theresa Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.     ON BRIEF: Cary B. Bowen,
BOWEN,   CHAMPLIN,  FOREMAN   &  ROCKECHARLIE  PLLC,  Richmond,
Virginia, for Appellant.    Mark R. Herring, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

     Alfredo Rolando Prieto appeals the district court’s denial

of his petition for a writ of habeas corpus pursuant to 28

U.S.C.    §     2254.       He   contends      that    the    Eighth      Amendment

prohibition on the execution of intellectually disabled persons,

as set forth in Atkins v. Virginia, 536 U.S. 304 (2002), and

Hall v. Florida, 134 S. Ct. 1986 (2014), renders his two death

sentences unconstitutional.          We affirm.



                                        I.

     In 2007, a Virginia jury convicted Prieto of two counts of

capital murder, two counts of use of a firearm in the commission

of murder, grand larceny, and rape.                Prieto v. Commonwealth, 682

S.E.2d 910, 914 (Va. 2009) (“Prieto I”). 1                   Discovery of juror

misconduct at the sentencing phase of the 2007 trial led to a

mistrial, but in 2008, a second jury convicted Prieto on all

counts.       Id. at 913.     During the sentencing phase of his second

trial, Prieto argued that he was intellectually disabled and

therefore ineligible for the death penalty under Atkins.                     Prieto

introduced      substantial      evidence     in   support    of   his    claim    of

intellectual      disability,     but   the    jury   found   that   he    was    not

     1 The crimes for which Prieto was convicted occurred in
1988, but Prieto was not linked to the murders until 2005, when
DNA testing led police to identify him as a suspect. Prieto I,
682 S.E.2d at 915-16.


                                         2
intellectually disabled and imposed the death penalty on the two

murder counts.      Id. at 914, 916-17.

      On direct appeal, the Supreme Court of Virginia affirmed

Prieto’s    convictions         but    vacated       his     death   sentences       due   to

defects in the jury verdict forms at the penalty phase.                              Id. at

935-36.       In 2010, on remand for resentencing of the capital

murder    convictions,      a     third    jury          unanimously   recommended         the

death    penalty    for    both       murder       convictions.        (Prieto    did      not

argue that he was intellectually disabled at the resentencing.)

The   state    trial      court       entered       an    order   imposing     the      death

penalty on both capital murder counts, and the Supreme Court of

Virginia affirmed both sentences.                        Prieto v. Commonwealth, 721

S.E.2d 484, 489 (Va.) (“Prieto II”), cert. denied, Prieto v.

Virginia, 133 S. Ct. 244 (2012).

      Prieto next filed a habeas petition with the Supreme Court

of Virginia, raising several claims, including contentions that

his     counsel    was    constitutionally               ineffective     and     that      his

execution was barred by Atkins.                    See Prieto v. Warden of Sussex

I State Prison, 748 S.E.2d 94, 105 (Va. 2013) (“Prieto III”).

As relevant here, that court held that Prieto could not raise

his Atkins claim in his state habeas petition because he had

failed to raise the claim on direct appeal of the 2010 order

imposing the death sentences.                      Id.     Under Virginia law, that

failure meant his Atkins claim had been procedurally defaulted.

                                               3
Id.   The state habeas court dismissed the remainder of Prieto’s

claims.     Id. at 98.

      Pursuant to 28 U.S.C. § 2254, Prieto then filed the present

habeas application in federal court, again raising a number of

claims.     The district court dismissed most of Prieto’s claims as

meritless;       it   dismissed     his       Atkins     claim        as     procedurally

defaulted.       We granted a certificate of appealability as to the

Atkins claim.



                                          II.

      “Construing and applying the Eighth Amendment in the light

of our ‘evolving standards of decency,’” the Supreme Court in

Atkins    held    that    “death   is   not     a     suitable   punishment         for    a

mentally     retarded 2    criminal.”           536     U.S.     at        321   (citation

omitted).     However, acknowledging the difficulty “in determining

which offenders are in fact retarded,” the Court “le[ft] to the

State[s] the task of developing appropriate ways to enforce the

constitutional        restriction”      on      the     death    penalty         that     it

announced in Atkins.         Id. at 317 (second alteration in original)

(internal quotation marks and citation omitted).


      2  Later,  the   Supreme   Court   substituted the   term
“intellectual disability” for “mental retardation.”   Hall, 134
S. Ct. at 1990. We do the same, except when quoting from cases,
statutes, and testimony that use the term “mentally retarded”
and pre-date the Court’s guidance in Hall.


                                          4
      Responding to this directive, Virginia enacted a statute

defining “mentally retarded” as

      a disability, originating before the age of 18 years,
      characterized concurrently by

      (i) significantly subaverage intellectual functioning
      as demonstrated by performance on a standardized
      measure of intellectual functioning administered in
      conformity with accepted professional practice, that
      is at least two standard deviations below the mean and

      (ii) significant limitations in adaptive behavior as
      expressed in conceptual, social and practical adaptive
      skills.

Va. Code Ann. § 19.2-264.3:1.1(A).

      Virginia’s highest court interpreted this “two-fold test”

to require, under the first prong, an IQ score of 70, “below

which   one     may     be       classified        as    being    mentally       retarded.”

Johnson v. Commonwealth, 591 S.E.2d 47, 59 (Va. 2004), vacated

and remanded on other grounds sub. nom., Johnson v. Virginia,

544 U.S. 901 (2005).              In other words, the state court held that

a   defendant    with       an    IQ   score    of      71   or   higher   could    not   be

“mentally retarded” under Virginia law.

      Last year, however, the Supreme Court clarified in Hall

that a state that “seeks to execute a man because he scored a 71

instead of 70 on an IQ test. . . . misconstrues the Court’s

statements in Atkins.”                 134 S. Ct. at 2001.            The Court deemed

unconstitutional        a    Florida      statute        containing    a   “rigid     rule”

imposing IQ cutoffs for intellectual disability.                           Id.     The Hall


                                               5
Court   explained         that    a     state’s     assessment     of     a    defendant’s

intellectual disability should focus on whether he evidenced,

beginning     “during            the     developmental          period,”           both    (1)

“significantly       subaverage          intellectual        functioning,”          and    (2)

“deficits in adaptive functioning (the inability to learn basic

skills and adjust behavior to changing circumstances).”                               Id. at

1994.       The    Court        emphasized         that    these   two     criteria        are

“interrelated”       and    that        no   “single      factor   [is]    dispositive.”

Id. at 2001.        Accordingly, “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 (internal quotation marks

and citation omitted).

     After    Hall,        it     is     clear      that    the    Supreme         Court    of

Virginia’s    prior        interpretation           of    the   first     prong      of    the

Virginia statute violates the Eighth Amendment.                           The Hall Court

said as much, identifying Virginia as one of only two states to

“have adopted a fixed [IQ] score cutoff identical to Florida’s.”

Id. at 1996.         Hall established that a state may not deny a

defendant     the     opportunity             to     establish      his       intellectual

disability        based     on         evidence      of     “deficits         in     adaptive

functioning over his lifetime,” simply because that defendant

has an IQ score above 70.                     Id. at 2001.         But the fact that

Virginia     operated       under        an    unconstitutional           definition        of

                                               6
“intellectual      disability”     at        the   time        of    Prieto’s       sentencing

does not resolve the Atkins inquiry if, as the state habeas

court    and    the   district    court          held,      Prieto      has      procedurally

defaulted that claim.          We therefore turn first to that question.



                                         III.

                                             A.

       Federal courts “will not review a question of federal law

decided by a state court” if the state court’s decision rests on

an    independent     and     adequate       state       law    ground.            Coleman      v.

Thompson, 501 U.S. 722, 729-30 (1991).                              When a state habeas

court declines to address a prisoner’s federal constitutional

claims    “because      the    prisoner          had     failed       to     meet     a    state

procedural     requirement[,]      .     .    .    the      state     judgment       rests      on

independent and adequate state procedural grounds.”                                Id. at 730.

In    these    circumstances,     “concerns            of    comity        and     federalism”

dictate against a federal court’s review of that judgment.                                Id.

       In reviewing Prieto’s state habeas petition, the Supreme

Court of Virginia determined that he had procedurally defaulted

his   Atkins    claim   because     he       could     have         raised    it    on    direct

review of his 2010 sentence but had failed to do so.                                See Prieto

III, 748 S.E.2d at 105.             The court explained that, under the

procedural rule established by Slayton v. Parrigan, 205 S.E.2d

680, 682 (Va. 1974), a “non-jurisdictional issue [that] could

                                             7
have been raised during the direct appeal process . . . is not

cognizable in a petition for a writ of habeas corpus.”                           Prieto

III, 748 S.E.2d at 105.                   We previously have held that this

precise         Virginia     procedural         default        rule   constitutes       an

independent and adequate state ground for a denial of a state

habeas petition.            See Mu’Min v. Pruett, 125 F.3d 192, 196-97

(4th Cir. 1997).

       In this appeal, Prieto does not challenge the Supreme Court

of Virginia’s determination that he defaulted his Atkins claim.

That is, he does not argue that he actually did raise his Atkins

claim      on   direct     review.        As    such,    Prieto’s     Atkins   claim    is

procedurally defaulted, and he is ineligible for relief unless

one of the two exceptions to procedural default applies.                               See

Hedrick v. True, 443 F.3d 342, 366 (4th Cir. 2006).                              Prieto

asserts that an exception to procedural default saves his Atkins

claim.

                                               B.

       A    habeas   petitioner      can       rescue    his    constitutional    claim

from    procedural       default     if    he       establishes   either   “cause      and

prejudice” for the default or that the default would yield a

“fundamental miscarriage of justice.”                     Mackall v. Angelone, 131

F.3d 442, 445 (4th Cir. 1997) (citing Harris v. Reed, 489 U.S.

255, 262 (1989)).            In his § 2254 petition before the district

court, Prieto argued that both exceptions applied to his case.

                                               8
      Because constitutionally ineffective assistance of counsel

may provide “cause” for a procedural default, Prieto argued that

his counsel’s failure to present evidence of his intellectual

disability at his 2010 resentencing constituted such ineffective

assistance.        See Murray v. Carrier, 477 U.S. 478, 488 (1986).

The   district       court,       however,          found    Prieto’s        ineffective

assistance claim meritless, and so held that Prieto had failed

to show “cause and prejudice” excusing the procedural default.

Prieto does not challenge that ruling in this appeal.                                  As a

result,     the    only    way     Prieto’s         Atkins     claim       survives     his

procedural    default      is     through       a   showing    that        enforcing    the

default would result in a “fundamental miscarriage of justice.”

See Smith v. Murray, 477 U.S. 527, 537-38 (1986).

      The    Supreme      Court     has     explained         that     a    “fundamental

miscarriage of justice” occurs “where a constitutional violation

has probably resulted in the conviction of one who is actually

innocent.”    Carrier, 477 U.S. at 496.                 The Court later clarified

in Sawyer v. Whitley, 505 U.S. 333, 341 (1992), that “actual

innocence” may also mean “innocent of death” in the sentencing

context.     This means that in a capital case, a habeas petitioner

can make a showing of “actual innocence,” and qualify for the

exception,    by    proving      through    “clear      and    convincing       evidence

that, but for a constitutional error, no reasonable juror would



                                            9
have found the petitioner eligible for the death penalty under

the applicable state law.”         Id. at 336.

     Prieto does not argue that he is actually innocent of the

crimes for which he was convicted.             Rather, he argues only that

he   is   “innocent    of    death.”        Thus,   for   us   to    excuse   his

procedural    default,       Prieto    must    show   that,    if    instructed

properly under Hall and Atkins, “no reasonable juror” could have

found him eligible for the death penalty under Virginia law.

This presents an extremely high bar. 3



                                       IV.

     Prieto rests his claim of actual innocence on the Supreme

Court’s decision in Hall.          Neither we nor the Supreme Court has

determined    whether       Hall   applies    retroactively     to    cases    on

collateral review. 4        For purposes of Prieto’s “actual innocence”

inquiry we will assume without deciding, as the district court

     3 Indeed, the “clear and convincing evidence” standard for
establishing “actual innocence” in the capital sentencing
context is “more stringent” than the standard for establishing
“actual innocence” of the conviction itself.     Schlup v. Delo,
513 U.S. 298, 326-27 (1995). The latter requires only a showing
that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent.”         Id. at 327
(internal quotation marks and citation omitted).

     4 The two federal appellate courts that have ruled on this
question to date have held, over dissents, that Hall does not
apply retroactively on collateral review. See In re: Henry, 757
F.3d 1151, 1161 (11th Cir. 2014); Goodwin v. Steele, 2014 U.S.
App. LEXIS 23149 (8th Cir. 2014) (per curiam).


                                       10
did, that Hall does apply retroactively on collateral review.

Under this assumption, the district court concluded that “Prieto

has   not    shown    by    clear     and       convincing       evidence      that    no

reasonable juror would have sentenced him to death because he is

intellectually       disabled.”       We    review       the    denial    of   Prieto’s

habeas application de novo.           Hedrick, 443 F.3d at 349.

      The only evidence that Prieto points to in support of his

“actual     innocence”     claim    is     the       evidence    introduced      at   the

sentencing    hearing      following       his    2008    conviction. 5        At     that

hearing, both Prieto and the Commonwealth offered a good deal of

evidence as to both prongs of Virginia’s statute:                         intellectual

functioning and adaptive functioning.                    In his § 2254 petition,

Prieto focuses on the adaptive functioning evidence.

      That   evidence      included      the     testimony      of    multiple   expert

witnesses.      Prieto’s chief witness, Dr. Ricardo Weinstein, a

forensic neuropsychologist with expertise in brain development,

conducted      “a     comprehensive         evaluation          of      Mr.    Prieto’s

neuropsychological       functioning”          and    adaptive       functioning.      He

explained     that     adaptive       functioning          includes       occupational




      5Prieto and the Commonwealth                    filed a joint appendix in
Prieto’s direct appeal of his 2008                    conviction and sentencing,
Prieto I. We quote from and rely on                   the materials in that joint
appendix in discussing the evidence                   presented at Prieto’s 2008
sentencing.


                                           11
skills, activities of daily living, self-esteem, interpersonal

abilities, self-direction, language, and academic abilities.

       Dr. Weinstein’s evaluation of Prieto’s adaptive functioning

included interviews with Prieto’s relatives in California and El

Salvador.          He   also       interviewed        individuals       from    the     El

Salvadorian government “to understand more about what was going

on    in   the    country”     when   Prieto     was    a   child.        Prieto      “was

described as a shy and withdrawn child in adolescence,” and “as

having     problems     learning      simple      tasks.”         Interviewees        told

Dr. Weinstein that Prieto “was easily manipulated by relatives

and   friends”;      kids    his    age   “did    not    like    to    play    with    him

because . . . he couldn’t understand the rules”; and he had

“problems acquiring academic skills” and “problems controlling

his emotions.”          Dr. Weinstein also spent “between twenty and

thirty hours” over a number of visits with Prieto, administered

tests to assess Prieto’s behavioral skills, and examined the

records kept by California prisons on Prieto.

       Dr. Weinstein stated that his research uncovered many risk

factors     for   adaptive     functioning       deficits       throughout      Prieto’s

childhood.        In El Salvador, Prieto grew up in extreme poverty,

characterized by poor nutrition, a lack of running water, and

little     cognitive     stimulation.            He    suffered       abuse    from    his

alcoholic father and abandonment by his mother, and he had to

contend with uncertainty as a result of wars in El Salvador, as

                                          12
well    as    witnessing       his   grandfather’s         shooting   death.          After

Prieto moved to California as a teenager, he began abusing drugs

and alcohol, was often in trouble with the law, and married his

pregnant girlfriend at a young age.                      Ultimately, Dr. Weinstein

opined that Prieto “had adaptive behavior deficits . . . during

his     developmental       years.”          He     also    opined     that     Prieto’s

neurological        testing     revealed     “a    brain    dysfunction”       affecting

areas of the brain “that deal with judgment, deal with being

able to foresee consequences of behaviors, control sexuality,

control aggression, . . . [and] are responsible[] for . . .

empathy.”

        Other      witnesses     for      Prieto    offered      similar      testimony.

Psychiatrist Dr. Pablo Stewart testified that after meeting with

Prieto,      he    concluded      that    Prieto     “suffers     from      post     trauma

stress disorder[,] . . . has impaired cognitive functioning, and

.   .   .    has    a   history      of   chronic       polysubstance       dependence.”

Neuropsychiatrist Dr. James Merikangas testified that Prieto’s

brain    scans      revealed    damage      to    the    areas   of   the     brain    that

“control one’s emotions, [and] control one’s impulses.”                            Members

of Prieto’s family, including his mother and siblings, testified

about the harsh conditions of Prieto’s childhood and about his

early       development.          Hence,     Prieto’s       defense      at    his     2008

sentencing included testimony from a wide array of sources about

the limits of his adaptive functioning.

                                             13
      At the same time, however, the Commonwealth also presented

extensive evidence that Prieto’s adaptive functioning was not

deficient.           The    jury    heard      from     the    prosecution          that     three

prison       psychologists          had        evaluated        Prieto        when      he     was

incarcerated in California and that each had concluded that he

was not intellectually disabled.                        One of these psychologists

reported       that      Prieto’s     “cognitive           functions         were    adequately

developed,         and     that    his     level      of      conceptual       thinking        and

reasoning      were      adequate        for   the    formation         of    good     judgement

[sic].”      The jury learned that Prieto had written his own prison

grievances challenging his lack of access to recreation and had

filed    a     pro    se    legal        challenge      to     the      conditions      of     his

confinement on Virginia’s death row.                       In these documents, Prieto

employed      accurate       legal       terminology         and   to    prepare       them,    he

conducted       self-directed         legal      research.              The    jury    received

copies    of    Prieto’s          elementary      and      high      school     report       cards

indicating that he mostly received grades of “good” and ”very

good.”       The jury was reminded that Prieto acted alone in his

crimes,      and     that   he     had    exhibited        leadership         abilities       when

committing prior crimes.

      The prosecution offered its own key witness, clinical and

forensic psychologist Dr. Leigh Hagan, who interviewed Prieto

and     reviewed         past      reports      on      him     by      prison        officials,

Dr. Weinstein, and Dr. Merikangas.                           Dr. Hagan testified that

                                                14
Prieto    understood      the      structure    of    jail,        had    a        fairly

sophisticated vocabulary, could cogently discuss foreign policy

and political issues, could speak both English and Spanish, and

did not exhibit significant limitations in his conceptual or

social    skills.    The    doctor    cited     evidence     that    Prieto         could

engage    respectfully      with    others,     could       work    within         social

networks,     had    been       involved       in    intimate        interpersonal

relationships,      and     could     perform       daily     mathematical            and

analytical tasks without difficulty.

     Dr. Hagan further highlighted evidence that Prieto had been

able to obtain driver’s licenses in Virginia and California,

secure employment, operate power equipment, fly cross-country,

arrange his own housing, negotiate the purchase of a car, and

employ aliases to avoid detection.              He noted that Prieto could

explain “why it was important to have his hair cut for court,”

because “he understood the value of creating a good impression,”

reflecting    his    social      awareness.          Ultimately,         Dr.       Hagan

concluded that Prieto’s “adaptive functioning falls above the

threshold     of    significant        limitations,”          because         of     his

“conceptual reasoning, [his] social capacity, and his practical

skill.”

     In short, although Prieto offered evidence of poor adaptive

functioning, the Commonwealth also offered compelling evidence

refuting the existence of any adaptive deficits.                         Prieto does

                                        15
not contend that, were he resentenced, he would seek to present

additional evidence of deficits in his adaptive functioning that

he did not present at his 2008 sentencing.                    As a result, we are

left to conclude that a jury at resentencing would face much of

the same evidence.        Absent some new “smoking gun,” evidence of

Prieto’s adaptive functioning deficits is at best inconclusive.

Consequently, Prieto cannot clear the high “actual innocence”

threshold.       Prieto simply cannot establish that no reasonable

juror,   faced    with    all    of    this    evidence       as    to   his    adaptive

functioning, would find him eligible for the death penalty –-

even if the jury were instructed properly under Hall.

      Perhaps because of this, Prieto argues that the evidence he

has already presented is similar to the evidence Hall offered to

prove his intellectual disability.                   But that comparison fails.

First,    the     Hall    Court        never     concluded          that       Hall     was

intellectually disabled, so it is unclear how any similarities

aid   Prieto     in   establishing       his    own     disability.            In     fact,

instructing that, on remand, Hall should be permitted to present

evidence of defects in his adaptive functioning, the Supreme

Court    expressly       noted    that        Hall     “may        or    may     not     be

intellectually disabled.”             Hall, 134 S. Ct. at 2001.                Moreover,

even were Prieto’s case like Hall’s, Prieto is subject to a much

higher burden of proof because of his procedural default.                              Hall

did not have to prove he was “actually innocent” of the death

                                         16
penalty before the Court could consider the merits of his Eighth

Amendment claim; Prieto does.

     On    the   record   before    us,    we   cannot   conclude   that    after

Hall, no reasonable juror would find Prieto eligible for the

death penalty.      For, “[t]o say that no reasonable juror” would

have found Prieto eligible for a death sentence, “we would have

to ignore the totality of evidence,” which included significant

evidence    that    his   adaptive        functioning    is   not    deficient.

Calderon v. Thompson, 523 U.S. 538, 565 (1998).                    And absent a

showing that he is “actually innocent” of the death penalty,

Prieto     cannot   overcome       the    procedural     default     that   bars

consideration on the merits of his Atkins claim. 6




     6 Brumfield v. Cain, No. 13-1433, 576 U.S. –- (June 18,
2015), issued after oral argument in this case, does not affect
our holding. The Supreme Court limited its holding in Brumfield
to an application of Louisiana law to the evidence presented in
that case.    The Court did not purport to alter its prior
teachings about intellectual disability, procedural default, or
the actual innocence exception.   Rather, the Court simply held
that the state habeas court’s refusal to grant Brumfield an
evidentiary hearing on his intellectual disability claim, as
permitted by Louisiana law, was based on “an unreasonable
determination of the facts” within the meaning of 28 U.S.C.
§ 2254(d)(2).     Brumfield,  however,   had  not   procedurally
defaulted his claim of intellectual disability under Atkins.
Thus, unlike Prieto, he did not have to prove that he was
actually innocent of the death penalty before a federal habeas
court could consider the merits of that claim.          Prieto’s
procedural default forces him to satisfy this high standard of
proof, and Brumfield in no way disturbs our conclusion that he
has failed to do so.


                                         17
                                      V.

       The   “fundamental   miscarriage       of   justice”   exception   to

procedural    default   imposes   a        “demanding”   burden   on   habeas

petitioners challenging their death sentences.             Id. at 559.    It

provides a basis for relief only in “extraordinary instances.”

McCleskey v. Zant, 499 U.S. 467, 494 (1991).             Prieto has failed

to establish that this path around procedural default is open to

him.    Accordingly, the judgment of the district court is

                                                                   AFFIRMED.




                                      18
