                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 11a0313p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                               X
                                                -
 BYRON LEWIS BLACK,
                                                -
                            Petitioner-Appellant,
                                                -
                                                -
                                                    Nos. 02-5032; 08-5644
          v.
                                                ,
                                                 >
                                                -
                       Respondent-Appellee. -
 RICKY BELL, Warden,
                                                -
                                               N
                  Appeal from the United States District Court
               for the Middle District of Tennessee at Nashville.
             No. 00-00764—Todd J. Campbell, Chief District Judge.
                               Argued: December 8, 2010
                        Decided and Filed: December 15, 2011
             Before: MARTIN, BOGGS, and GILMAN, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Kelley J. Henry, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Joseph F. Whalen, III, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J.
Henry, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Joseph F. Whalen, III, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
    GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined.
BOGGS, J. (pp. 38–41), delivered a separate dissenting opinion.
                                  _________________

                                        OPINION
                                  _________________

        RONALD LEE GILMAN, Circuit Judge. Byron Black, who was tried in state
court and sentenced to death in 1989 for committing three murders, appeals the district
court’s denial of his petition for a writ of habeas corpus. He raises various issues related

                                             1
Nos. 02-5032; 08-5644         Black v. Bell                                         Page 2


to the court’s 2001 denial of his original habeas petition as well as the court’s 2008
denial of his amended petition based on Atkins v. Virginia, 536 U.S. 304 (2002). For the
reasons set forth below, we AFFIRM the district court’s denial of Black’s habeas
petition regarding his non-Atkins claims, VACATE the court’s judgment regarding his
Atkins claim, and REMAND the case for further proceedings consistent with this
opinion.

                                 I. BACKGROUND

       Black was convicted on three counts of first-degree murder for the killing of his
girlfriend Angela Clay and her two minor daughters, Latoya, age nine, and Lakeisha, age
six. He was also convicted on one count of burglary arising out of the same incident.
Black received a death sentence for the murder of Lakeisha, consecutive life sentences
for the other two murders, and fifteen years of imprisonment for the burglary.

A.     Factual background

       Black was born on March 23, 1956. He was 33 years old when the murders were
committed in 1988. The Tennessee Supreme Court, in deciding Black’s claims on direct
appeal, summarized the facts of this case, in part, as follows:

               It appears that these bizarre and tragic murders occurred in the
       early morning hours of Monday, March 28, 1988. The bodies of the
       three victims were found Monday evening around 9:30 p.m. At the time
       of the murders, the Defendant was on [a] weekend furlough from the
       Metropolitan Workhouse in Davidson County. . . .
                The Defendant was the boyfriend of Angela Clay, who had
       separated from her husband, Bennie Clay, about a year before her death.
       Bennie Clay was the father of Latoya and Lakeisha. Bennie Clay
       testified that at the time of Angela Clay’s death, he and Angela were
       attempting to reconcile, but the Defendant was an obstacle to the
       reconciliation. He further testified that Angela began a relationship with
       the Defendant after their separation and that at times she was seeing both
       the Defendant and himself. In December, 1986, the Defendant and
       Bennie Clay had an altercation during a dispute over Angela. . . . The
       Defendant pled guilty to the shooting [of Bennie Clay] and received the
       workhouse sentence, which included weekend furloughs.
Nos. 02-5032; 08-5644         Black v. Bell                                         Page 3


State v. Black, 815 S.W.2d 166, 170-71 (Tenn. 1991).

       On the night of the murders, Black drove the victims to the home of Angela’s
mother. Angela and her two daughters were last seen that evening by her mother at
around 11 p.m. Angela’s mother testified that Angela telephoned her at approximately
11:20 p.m. that evening after Angela returned home. That phone call was the last time
that any of the witnesses spoke to Angela before her death. The police arrived at
Angela’s apartment at approximately 9:30 p.m. the following night. They did not find
any signs of forced entry into the apartment, but they found a pool of blood on the bed
and the body of a small child on the floor. Id. The Tennessee Supreme Court continued
its summary of the relevant facts, citing the testimony of Dr. Charles Harlan, Chief
Medical Examiner for Davidson County:

              Investigation revealed the bodies of Angela and her nine year old
       daughter, Latoya, in the master bedroom. Angela, who was lying in the
       bed, had apparently been shot once in the top of the head as she slept and
       was rendered unconscious immediately and died within minutes. . . .
              Latoya’s body was found partially on the bed and partially off the
       bed, wedged between the bed and a chest of drawers. She had been shot
       once through the neck and chest. . . .
               The body of Lakeisha, age six, was found in the second bedroom
       lying facedown on the floor next to her bed. She had been shot twice,
       once in the chest, once in the pelvic area. . . .
              The receiver from the kitchen telephone was found in the master
       bedroom. The telephone from the master bedroom was lying in the
       hallway between the two bedrooms. The Defendant’s fingerprints were
       the only prints recovered from the telephones. Two of his fingerprints
       were found on the phone in the hallway, and one was on the kitchen
       telephone receiver found in the master bedroom.

Id. at 171-72. A substantial amount of additional circumstantial evidence connected
Black to the killings. Id. at 172-73.
Nos. 02-5032; 08-5644          Black v. Bell                                           Page 4


B.      Procedural history

        In 1991, the Tennessee Supreme Court denied Black’s numerous claims on his
direct appeal. Black then filed a petition for post-conviction relief in the Davidson
County Criminal Court. The trial court denied the petition after an evidentiary hearing,
and the Tennessee Court of Criminal Appeals (TCCA) affirmed. Black’s petition to
appeal the denial of his post-conviction claims to the Tennessee Supreme Court was
denied. The United States Supreme Court subsequently denied his petition for a writ of
certiorari.

        Black then filed a petition for a writ of habeas corpus in the district court, based
on 28 U.S.C. § 2254, seeking relief on a number of evidentiary, procedural, and
substantive grounds relating to both the guilt and penalty phases of his trial, as well as
to issues that arose in his various state-court appeals. The district court denied all 34 of
Black’s habeas claims, including several subclaims, in December 2001. Black v. Bell,
181 F. Supp. 2d 832 (M.D. Tenn. 2001). It then issued Black a Certificate of
Appealability (COA) for all of the claims that it decided on the merits and denied a COA
regarding the claims that it dismissed as procedurally defaulted. Black timely appealed
the court’s decision.

        After the Supreme Court decided Atkins in 2002, this court granted Black’s
motion to hold his case in abeyance so that Black could exhaust his Atkins claim in the
state courts. Black then filed a motion in 2002 to reopen his post-conviction proceedings
in the state trial court. That court determined that Black had made a sufficient showing
for his case to be reopened based on his Atkins claim. It held an evidentiary hearing, but
ultimately determined that Black is not mentally retarded under the Atkins standard. The
TCCA affirmed this decision in 2006, and the Tennessee Supreme Court denied Black’s
application for permission to appeal. The United States Supreme Court again denied
Black’s petition for a writ of certiorari. This court then remanded Black’s pending
appeal of the district court’s denial of his § 2254 petition back to the district court so that
it could reconsider Black’s mental-retardation claim (which was one of Black’s original
34 claims that the district court denied) in light of Atkins.
Nos. 02-5032; 08-5644            Black v. Bell                                        Page 5


        The district court did so in 2008, ultimately dismissing Black’s Atkins claim on
the basis that “the state court was not unreasonable in stating that the proof in the record
did not support the conclusion, under a preponderance of the evidence standard, that
[Black’s] I.Q. was below seventy before age 18.” It also dismissed Black’s additional
claim that the issue of his mental retardation should have been submitted to the jury,
ruling that the claim was beyond the scope of this court’s remand order, and also because
the claim failed on the merits. But the district court granted Black a COA on his Atkins
claim, and Black timely filed an appeal. We then granted Black’s motion to expand his
COA to include the issue of whether he had cause to excuse the procedural default of his
claim that the jury improperly weighed an unconstitutional felony-murder aggravating
circumstance. But we denied Black’s motion to have two additional issues included in
his COA.

        Black’s appeal of the district court’s original dismissal of his habeas claims in
2001 and his appeal of that court’s denial of his Atkins claim in 2008 have been
consolidated in the present appeal. We thus have before us the issues that are within his
COAs from both decisions. Although Black’s COAs cover many issues, he has limited
his appeal to a total of five.

        In addition to Black’s Atkins claim, the other four district-court determinations
that Black now challenges are (1) whether he was competent to stand trial and whether
he was entitled to an evidentiary hearing on that issue, (2) whether his trial counsel was
constitutionally ineffective in failing to fully investigate, present, and argue mitigating
factors against the death penalty, (3) whether his trial counsel was constitutionally
ineffective in failing to object to the prosecution’s comment during closing argument at
the penalty phase of the trial that giving Black a life sentence for all three of the murders
would “reward” him, and (4) whether the trial court erred by declining to clarify for the
jury, upon its request, the effect of a life sentence.
Nos. 02-5032; 08-5644         Black v. Bell                                          Page 6


C.      Atkins background

        Under Tennessee law, capital defendants are considered mentally retarded if
(1) they have “[s]ignificantly subaverage general intellectual functioning as evidenced
by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) [they have
d]eficits in adaptive behavior; and (3) [t]he intellectual disability must have been
manifested during the developmental period, or by eighteen (18) years of age.” Tenn.
Code Ann. § 39-13-203(a).

        Each side presented conflicting evidence concerning whether Black qualifies as
mentally retarded. At Black’s post-conviction proceedings on his Atkins claim, he
presented four lay and three expert witnesses, the affidavit of another expert, and
numerous exhibits in support of his claim. The State presented two expert witnesses in
opposition. In addition, the state court considered the testimony of numerous lay and
expert witnesses who testified during the course of Black’s pre-Atkins proceedings.

        1.      Black’s numerical I.Q. scores

        One major category of evidence dealt with Black’s numerical I.Q. scores. In its
post-conviction opinion on Black’s Atkins claim, the TCCA observed that Black’s
intelligence has been tested numerous times, from his grade-school years through 2001.
Black v. State, No. M2004-01345-CCA-R3-PD, 2005 WL 2662577, at *13 (Tenn. Ct.
Crim. App. Oct. 19, 2005). These scores can be grouped into the following three
categories: (1) tests that were administered while Black was in elementary school, with
the scores ranging from 83 to 97; (2) tests that were taken in preparation for Black’s trial
and during his first round of post-conviction proceedings, from 1988 to 1997, which
ranged from 73 to 76; and (3) tests that were administered in 2001 by Black’s experts
who testified at his Atkins hearing, which ranged from 57 to 69. In addition, Black took
achievement tests in high school. Dr. Daniel Grant, a psychologist and one of Black’s
expert witnesses, explained that Black’s scores on the Differential Aptitude Test in the
ninth grade placed his level of intelligence in the mentally retarded range.
Nos. 02-5032; 08-5644          Black v. Bell                                        Page 7


          A major point of contention in the present case, and an issue that the TCCA did
not resolve, is which set of scores most accurately reflects Black’s level of intelligence
by the time he was 18 years of age. Although Black’s first set of I.Q. scores were taken
during this key period of his life and are above 70, his experts challenge the accuracy of
these scores based on the sparse information concerning the testing details as well as the
questionable supervision of Black’s academic progress at his segregated elementary
school.

          Black’s I.Q. scores from 1988 through 1997 were also above 70, but Dr. Grant
opined that, when adjusted for the “Flynn Effect” and/or the standard error of
measurement (SEM) that applies to these tests, these scores should be considered 70 or
below. As Dr. Grant explained, the Flynn Effect calls for adjusting downward the score
that a subject receives on an older I.Q. test based on the idea that the general
population’s level of knowledge increases over time, thereby raising the average score
obtained on older tests. Dr. Patti van Eys, a clinical psychologist who submitted an
affidavit regarding her evaluation of Black, noted that the Flynn Effect is “broadly
accepted by the psychological community and recognized by the American Association
on Mental Retardation (AAMR).”

          On the other hand, State witness Dr. Susan Vaught, a clinical psychologist,
testified that although the Flynn Effect is a recognized issue that a clinician might
consider when interpreting an I.Q. test, she did not think that it should be used to adjust
the numerical score that a subject received on his or her test. She explained that “[y]ou
don’t apply a numerical correction to a score that you get based on the Flynn Effect. It’s
not in that kind of use amongst clinicians who test[].” Dr. Eric Engum, the other clinical
psychologist for the State, also rejected the practice of correcting for the Flynn Effect
because “[o]ne cannot arbitrarily . . . go back in time and ‘correct’ or ‘recalculate’ a
previously obtained IQ based on [subsequent] changes in standardization.”

          As for the SEM, Dr. Grant testified that because the I.Q. score achieved on any
particular test is fallible, the scores generally involve a SEM of five points up or down
from the given score. Dr. Vaught similarly stated in her report that it is “typical and
Nos. 02-5032; 08-5644           Black v. Bell                                         Page 8


expected” under the prevailing standard of practice “to consider the [SEM] for any given
test in order to determine if a patient’s score could fall below 70.”

          The experts also disagree about the relevance of Black’s 2001 I.Q. scores. Dr.
Vaught conceded that, based on these most recent I.Q. scores, Black “currently meets
the first criterion for mental retardation.” Black, 2005 WL 2662577, at *14. But she and
Dr. Engum were suspicious of the scores’ validity based on comparisons to other
indications of Black’s level of intelligence. They suspected that Black was malingering
(i.e., artificially deflating his scores) during these later tests. Black’s experts, on the
other hand, specifically determined that he was not malingering, and they were highly
critical of the opinion of the State’s experts that Black was malingering based solely on
the written record, without having personally interviewed him.

          Black’s experts determined that his I.Q. fell in the mentally retarded range by the
time he was age 18, but the State’s experts disagreed. Dr. Vaught, in particular, noted
that although Black’s poor academic performance was “highly suggestive of learning
disability or borderline intellectual capacity,” she found “no compelling evidence that
the lower-functioning picture I see now in Mr. Black’s intellectual testing emerged prior
to 18.”

          2.     Black’s brain damage

          Another key point of contention is whether Black suffered from brain damage
at an early age. Dr. Albert Globus, an expert in psychiatry and neurology who examined
Black in 2001 in order to assess his competency to stand trial, reexamined him just
before the state court’s post-conviction hearing. In addition, Dr. Ruben Gur, an expert
in neuropsychology, testified in a video deposition taken after the hearing regarding the
cause of Black’s brain damage. Both Drs. Globus and Gur concluded, based on MRI
and PET-scan images of Black’s brain, that Black has extensive brain damage that was
likely caused by his mother’s drinking alcohol while pregnant, but might also have been
caused by other occurrences during his childhood.
Nos. 02-5032; 08-5644          Black v. Bell                                          Page 9


        The State does not contest that Black currently has brain damage. But the source
of his condition is highly disputed. This point is important to the assessment of Black’s
level of intelligence by the time he was age 18. If his current brain damage existed at
an earlier stage of his life, then his current level of intelligence is all the more probative
of his intellectual capacity at that earlier stage because any symptoms resulting from his
brain damage would have also been present earlier on. Moreover, if Black’s brain was
damaged earlier in his life, that determination would impact the credibility of the
conclusion by the State’s experts—who never personally met with Black—that he was
malingering on his recent I.Q. tests. Rather than offer an alternative explanation for his
brain damage, the State argues that Black did not sufficiently prove that his brain
damage was caused by the time he was age 18.

        3.      Expert assessments of Black’s adaptive deficits

        In addition to assessing Black’s numerical I.Q. level, the various expert witnesses
at his state post-conviction Atkins hearing testified regarding his level of adaptive
functioning. These experts explained how Black functions in society and when his
relevant characteristics manifested themselves. They dispute whether Black displays
adaptive deficits and, if so, when these problems arose.

        Black’s experts explained that he has difficulty interacting according to ordinary
social conventions and that he is paranoid, delusional, naive, and inappropriately happy.
They also determined that he has deficits in his communication and functional academic
skills and that he displays symptoms of various psychiatric disorders. Based on Black’s
childhood experiences, as well as the alleged early onset of his brain damage, Black’s
experts concluded that he had adaptive deficits by the age of 18.

        But the State’s experts determined that Black displayed adequate skills across a
variety of practical, social, and intellectual categories of behavior. Although they
thought that Black had various personality problems and that he might suffer from
various mental disorders, they did not think that Black qualified as mentally retarded.
The State’s experts also determined that to the extent Black displayed adaptive deficits,
he either strategically presented himself in that way (according to Dr. Engum) or had
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 10


deteriorated more recently and therefore did not display these characteristics by the age
of 18 (according to Dr. Vaught). After recounting some of the expert testimony on these
issues, the TCCA concluded that Black did not meet his burden of proof to show that he
had sufficient deficits in his adaptive behavior by the age of 18.

       4.      Lay witnesses

       Black presented four lay witnesses at his Atkins post-conviction hearing to testify
regarding various aspects of his social and educational history.                    Mary
Smithson-Craighead, who started working as an administrator at Black’s elementary
school in 1965 and was in charge of Black’s grade level for, at most, a year and a half,
testified regarding the conditions at Black’s school. Black’s sister, Melba Corley, talked
about Black’s upbringing. Al Dennis, Black’s high school football coach, discussed
Black’s experience on the football team.            Finally, Richard Corley, Black’s
brother-in-law, testified about Black’s job as a courier at an insurance company. Both
sides draw on various aspects of these witnesses’ testimony to support their respective
positions concerning Black’s level of intellectual functioning and his adaptive behavior
by the age of 18.

       5.      Prior decisions on Black’s Atkins claim

       The state trial court determined that Black’s post-conviction Atkins claim merited
an evidentiary hearing. At this evidentiary hearing, Black had the burden of showing by
a preponderance of the evidence that he met Tennessee’s definition of mental retardation
under Atkins. After the hearing concluded, the court summarized what it viewed as the
determinative evidence from the voluminous record and, based on this evidence, denied
Black’s Atkins claim for post-conviction relief.

       The TCCA affirmed the trial court’s rejection of Black’s claim. In its “Analysis”
section, the TCCA mostly reviewed, without taking a stance on, the conflicting expert
assessments of the factual record. But the TCCA did recognize that, according to
Black’s experts, the Flynn Effect and/or the SEM brings his middle set of I.Q. scores
into the mentally retarded range. Based on Howell v. State, 151 S.W.3d 450, 457 (Tenn.
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 11


2004), however, the TCCA determined that it was prohibited from considering these
scientific concepts in assessing Black’s numerical I.Q. score.

        The TCCA’s assessment of the factual record also makes clear that it was
skeptical of the opinions of Drs. Globus and Gur regarding when Black’s brain damage
occurred. But the TCCA did not go so far as to make a definitive factual conclusion
regarding the date of onset of Black’s brain damage. The court also discounted Dr.
Grant’s conclusion that Black displayed deficits in his adaptive behavior because,
although Dr. Grant observed that Black had never engaged in a number of commonplace
activities, “there is no proof in the record that [Black] was unable to do these things.”
Black, 2005 WL 2662577, at *15. It also pointed out that none of Black’s childhood I.Q.
scores fell in the mentally retarded range. But the TCCA reached its ultimate conclusion
that “the proof in the record simply does not support that [Black’s] I.Q. was below
seventy or that [Black] had deficits in his adaptive behavior prior to age eighteen”
without stating which pieces of evidence were essential to its conclusion. Id. at *17.

        In denying habeas relief to Black on his Atkins claim, the district court
approvingly referenced the TCCA’s rejection of the application of the Flynn Effect and
the SEM based on Howell. It also concluded, based on a review of how other
jurisdictions have dealt with the Flynn Effect, that the TCCA’s rejection of these
concepts did not render the state process arbitrary, unreasonable, or less than full and
fair.

        The district court further rejected Black’s three remaining arguments in support
of his Atkins claim. First, the court determined that the TCCA’s discounting of Dr.
Grant’s adaptive-deficits assessment did not render the state court’s decision
unreasonable. It found no basis to question the TCCA’s ruling that, although the record
indicated that Black had not performed the commonplace daily tasks mentioned by Dr.
Grant, there was no showing that Black could not perform these tasks. Second, the court
concluded that because Black had not shown that an aptitude test is equivalent to an I.Q.
test, his low ninth-grade Differential Aptitude Test scores did not mean that his I.Q. was
70 or below by age 18.
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 12


       Finally, the district court noted that “the evidence before the state court . . . may
or may not indicate that [Black’s brain damage] existed and caused mental retardation”
by the time Black was 18 years of age. The court based this observation on its
determination that Drs. Globus and Gur were unable to point definitively to the cause
of Black’s brain damage or establish that this injury was the cause of Black’s mental
retardation. It also quoted the TCCA’s reference to “Dr. Vaught’s testimony explaining
the difference between mental illness and mental retardation, and her conclusion that
[Black’s] early difficulties were likely caused by mental health issues or learning
disabilities, rather than mental retardation.”

                                    II. ANALYSIS

A.     Standard of review

       Because Black filed his habeas petition after the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), AEDPA’s provisions apply to his
case. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). This court in Murphy set out
the standard of review under AEDPA as follows:

               Under AEDPA, a federal court may grant a writ of habeas corpus
       with respect to a “claim that was adjudicated on the merits in state court
       proceedings” if the state court’s decision “was contrary to, or involved
       an unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States.” 28 U.S.C.
       § 2254(d)(1). A habeas petition may also be granted if the state court’s
       decision “was based on an unreasonable determination of the facts in
       light of the evidence presented in the State court proceeding.” Id.
       § 2254(d)(2). A state-court decision is contrary to clearly established
       federal law “if the state court applies a rule that contradicts the governing
       law set forth in [the Supreme Court’s] cases” or “if the state court
       confronts a set of facts that are materially indistinguishable from a
       decision of [the Supreme] Court and nevertheless arrives at a result
       different from [that] precedent.” Williams [v. Taylor, 529 U.S. 362, 405
       (2000)]. A state-court 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, 120 S. Ct. 1495, or if it “either unreasonably extends or
       unreasonably refuses to extend a legal principle from Supreme Court
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 13


       precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th
       Cir.2000).

Id. at 493-94.    And, as the Supreme Court recently explained, our review under
§ 2254(d)(1) is “limited to the record that was before the state court.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011).

B.     Atkins claim

       Black claims that he is not subject to the death penalty because he is mentally
retarded, so that his execution would violate Atkins v. Virginia, 536 U.S. 304 (2002).
A few months before Atkins was decided, the Tennessee Supreme Court also held as a
matter of first impression in Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001), that the
Eighth Amendment to the United States Constitution and Article I, Section 16 of the
Tennessee Constitution prohibit the execution of mentally retarded individuals. Id. at
794, 812. Van Tran further held that its newly announced rule applied retroactively to
cases on collateral review. Id. at 811.

       The Supreme Court held in Atkins that, in light of “our evolving standards of
decency,” the Eighth Amendment prohibits the execution of mentally retarded offenders.
Id. at 321. But the Court in Atkins did not define what it means to be “mentally
retarded,” instead “leav[ing] to the States the task of developing appropriate ways to
enforce the constitutional restriction upon their execution of sentences.” Id. at 317
(brackets omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986)
(dealing with the issue of insanity)).

       Under Tennessee law, capital defendants are considered mentally retarded for the
purposes of an Atkins claim if they have an “intellectual disability” under
§ 39-13-203(a) of the Tennessee Code. Howell v. State, 151 S.W.3d 450, 457 (Tenn.
2004). Defendants will meet this standard if (1) they have “[s]ignificantly subaverage
general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.)
of seventy or below; and (2) [they have d]eficits in adaptive behavior; and (3) [t]he
mental retardation must have been manifested during the developmental period, or by
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 14


eighteen (18) years of age.” Tenn. Code Ann. § 39-13-203(a). Under Tennessee law,
defendants have the burden of showing, by a preponderance of the evidence, that they
qualify under this statutory definition. See Tenn.Code Ann. § 39–13–203(c).

       In Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), the Tennessee Supreme
Court recently issued a significant decision explaining the Atkins standard under
Tennessee law. The State argues that this “recent state-law decision can have no impact
on the reasonableness of the state courts’ application of federal law or on the
reasonableness of the state courts’ factual determinations in light of the evidence
presented in state court.”    This argument raises three distinct objections to our
consideration of Coleman, all of which we find have no merit.

       1.      Application of Coleman in the present case

       First, citing Cullen v. Pinholster, 131 S. Ct. 1388 (2011), the State argues that,
under AEDPA, Black is limited to the record that was before the state court at the time
the latter rendered its decision. But Cullen explicitly dealt with the parameters of the
factual record that the district court may consider on habeas review. Id. at 1399-1400.
Coleman, however, elucidates Tennessee’s interpretation of Atkins’s legal standard.
Cullen therefore does not prevent us from considering Coleman’s interpretation of Atkins
under Tennessee law.

       The state also focuses on the fact that Coleman is a “recent state-law decision.”
But the date of the Coleman decision does not prevent us from considering its impact on
the present case because Atkins “has been made retroactive to cases on collateral
review.” In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005).

       And because “Atkins reserved for the states ‘the task of developing appropriate
ways to enforce the constitutional restriction,’” id. at 436-37 (quoting Atkins, 536 U.S.
at 317), 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. See Hill v. Anderson, 300 F.3d 679, 682 (6th
Cir. 2002) (remanding Hill’s Atkins habeas claim to the Ohio state courts to “develop
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 15


[their] own procedures for determining whether a particular claimant is retarded and
ineligible for death”); Wiley v. Epps, 625 F.3d 199, 208 (5th Cir. 2010) (assessing
whether the defendant qualified for an evidentiary hearing on his Atkins claim based on
the Mississippi Supreme Court’s standard even though “Wiley was convicted before
Atkins was decided, and although he filed his state post-conviction application before the
Mississippi Supreme Court established the state’s requirements for obtaining an Atkins
hearing”). We will therefore consider Coleman in our review of Black’s Atkins claim
under AEDPA. See Fulcher v. Motley, 444 F.3d 791, 822 (6th Cir. 2006) (Clay, J.,
concurring) (explaining that even where a Supreme Court precedent applies
retroactively, a federal court conducting habeas review of a state-court decision must
still determine whether the decision was “contrary to” the retroactively applicable
Supreme Court precedent).

       2.      Significantly subaverage intellectual functioning

       Under the Tennessee Code, the first requirement that a defendant must meet in
order to be considered mentally retarded under Atkins is that he or she must have
“[s]ignificantly subaverage general intellectual functioning as evidenced by a functional
intelligence quotient (I.Q.) of seventy (70) or below.” Tenn. Code Ann. § 39-13-203(a).
The Tennessee Supreme Court has determined that the statute’s incorporation of an I.Q.
score of 70 is a “bright-line cutoff” that does not account for “a standard error of
measurement in the test scores nor consideration of any range of scores above the score
of seventy.” Howell v. State, 151 S.W.3d 450, 458-59 (Tenn. 2004). But even this
bright-line cutoff allows for the consideration of more than one single source in
determining a defendant’s I.Q. Because the Tennessee statute “does not provide a clear
directive regarding which particular test or testing method is to be used” to determine
whether an individual is mentally retarded for purposes of death-penalty eligibility, “[a]
court may certainly give more weight to one test, but should do so only after fully
analyzing and considering all evidence presented.” Id. at 459.

       One of the defendant’s full-scale I.Q. scores in Howell was a 73 on the WAIS–III
test. Id. at 453. In support of his Atkins claim, the defendant presented the testimony
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 16


of Dr. Daniel Grant (who also testified on Black’s behalf in the present case) that a score
on an I.Q. test represents a ten-point range of possible scores based on a five-point SEM
in either direction. Id. When the SEM was considered, according to Dr. Grant, the
defendant’s I.Q. score of 73 in Howell fell in the mentally retarded range. Id. at 453-54.
But the Tennessee Supreme Court determined that Tennessee law provides a “bright-line
cutoff” for determining whether a defendant’s I.Q. is 70 or below. Id. at 458-59. The
Court therefore agreed with the trial court’s refusal to interpret “the requirement of an
I.Q. of seventy or below, as contained in the Tennessee statute, . . . as representing a
range of scores between sixty-five and seventy-five or below.” Id. at 457. Based on this
reasoning, the defendant’s score of 73 was not in the mentally retarded range. (But the
Court in Howell remanded the case for an evidentiary because the lower court imposed
an overly demanding burden of proof on the defendant. Id. at 465, 467.)

       Turning now to the case at hand, Black argues that the Flynn Effect and the SEM
should be considered in determining his functional I.Q. level. Black’s experts, as
explained above, applied the Flynn Effect to correct for the outdated nature of the I.Q.
test that was taken. I.Q. scores are scaled so that the average score on any test should
be 100, but the Flynn Effect postulates that the longer that an I.Q. test has been in
existence, the higher the average score will be. See United States v. Davis, 611 F. Supp.
2d 472, 486 (D. Md. 2009) (explaining that “the Flynn Effect means . . . that over time,
the test norms become outdated, such that the average score is no longer 100, but
something higher”). This increase in the general level of factual information that leads
to higher average scores on older tests explains why I.Q. test scores would increase with
the age of the test “without a corresponding increase in actual intelligence in the general
population.” Wiley v. Epps, 625 F.3d 199, 203 n.1 (5th Cir. 2010). According to the
Flynn Effect, scores on outdated tests thus need to be corrected for this upward deviation
in the average score. Id. The SEM, on the other hand, “is an index of the variability of
test scores produced by persons forming the normative sample” that “allows the
evaluator to know the amount of error that could be present in any test.” Thomas v.
Allen, 607 F.3d 749, 753 (11th Cir. 2010).
Nos. 02-5032; 08-5644            Black v. Bell                                    Page 17


       As the TCCA noted, Black’s experts testified that his adult I.Q. scores, including
pre-Atkins scores, “fell within the mentally retarded range when adjusted by the [SEM]
and/or the Flynn Effect.” Black, 2005 WL 2662577, at *14. But the court refused to
consider this testimony because it concluded that Howell’s bright-line cutoff prohibited
accounting for these adjustments under Tennessee law. Id. Coleman directly addresses
this interpretation of Howell.

               a.       The Coleman decision

       The defendant in Coleman brought an Atkins claim to challenge his death
sentence. As part of his proof that his I.Q. score was in the mentally retarded range
under Tennessee law, Coleman offered evidence regarding the impact of the Flynn
Effect and the SEM in determining his ultimate I.Q. score. But the TCCA in Coleman
determined, based on Howell, that Tennessee law does not provide “for the application
of any standard error of measurement, including the ‘Flynn effect,’ to establish an IQ
range rather than the bright-line cutoff of 70.”              Coleman v. State, No.
W2007-02767-CCA-R3-PD, 2010 WL 118696, at *18 (Tenn. Crim. App. Jan. 13, 2010).

       The Tennessee Supreme Court in Coleman acknowledged that Howell correctly
interpreted the Tennessee statute in holding that “an expert’s opinion regarding a
criminal defendant’s I.Q. cannot be expressed within a range (i.e., that the defendant’s
I.Q. falls somewhere between 65 to 75) but must be expressed specifically (i.e., that the
defendant’s I.Q. is 75 or is ‘seventy (70) or below’ or is above 70).” Coleman, 341
S.W.3d at 242. But the lower state courts had misinterpreted Howell by extending its
reasoning too far. As the Tennessee Supreme Court explained,

       following Howell v. State, some trial courts and the Court of Criminal
       Appeals have construed our holding that Tenn. Code Ann.
       § 39–13–203(a)(1) provided a “clear and objective guideline” for
       determining whether a criminal defendant is a person with intellectual
       disability to have established a mandatory requirement that only raw I.Q.
       test scores may be used to determine whether a criminal defendant has
       “significantly impaired general intellectual functioning” and that a raw
       I.Q. test score above seventy (70) may be sufficient, by itself, to disprove
Nos. 02-5032; 08-5644          Black v. Bell                                        Page 18


        a criminal defendant’s claim that he or she is a person with intellectual
        disability.

Id. at 240.

        The Tennessee Supreme Court noted in Coleman that the Tennessee Code “does
not provide clear direction regarding how a person’s I.Q. should be determined and does
not specify any particular test or testing method that should be used. In fact, the statute
does not even employ the words ‘test’ or ‘score.’” Id. at 241 (citation omitted). The
statute’s purpose is for the courts to arrive at the defendant’s true functional I.Q. score.
Id. But “[b]ecause the statute does not specify how a criminal defendant’s functional
I.Q. should be determined, we have concluded that the trial courts may receive and
consider any relevant and admissible evidence regarding whether the defendant’s
functional I.Q. at the time of the offense was seventy (70) or below.” Id. The practical
import of this reasoning is that

        if the trial court determines that professionals who assess a person’s I.Q.
        customarily consider a particular test’s standard error of measurement,
        the Flynn Effect, the practice effect [which refers to increasing test scores
        based on an individual being retested with the same or a similar test], or
        other factors affecting the accuracy, reliability, or fairness of the
        instrument or instruments used to assess or measure the defendant’s I.Q.,
        an expert should be permitted to base his or her assessment of the
        defendant’s “functional intelligence quotient” on a consideration of those
        factors.

Id. at 242 n.55.

        Allowing for the consideration of these factors was also found by the Court to
be “consistent with current clinical practice,” which may “require information from
multiple sources.” Id. at 244. Intelligence tests are just one of these sources. And
because intelligence tests “are indirect rather than direct measures of intelligence,
experts in the field recognize that they, like other measures of human functioning, are
not actuarial determinations, that these tests cannot measure intelligence with absolute
precision and that these tests contain a potential for error.” Id. at 245 (citations,
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 19


brackets, and internal quotation marks omitted). Moreover, recent practice in the
Tennessee courts

       reflect[s] the parties’ and the courts’ existing awareness that, as a
       practical matter, a criminal defendant’s “functional intelligence quotient”
       cannot be ascertained based only on raw I.Q. test scores. More
       importantly, they also reflect the parties’ conclusion that Tenn. Code
       Ann. § 39–13–203(a) does not prevent them from presenting relevant and
       competent evidence, other than the defendant’s raw I.Q. test scores,
       either to prove or to disprove that the defendant’s “functional intelligence
       quotient” when the crime was committed was “seventy (70) or below.”

Id. at 247-48.

       The Coleman decision also recognized that “[a]scertaining a person’s I.Q. is not
a matter within the common knowledge of lay persons. Expert testimony in some form
will generally be required to assist the trial court in determining whether a criminal
defendant is a person with intellectual disability for the purpose of Tenn. Code Ann.
§ 39–13–203(a).” Id. at 241. “In formulating an opinion regarding a criminal
defendant’s I.Q. at the time of the offense, experts may bring to bear and utilize reliable
practices, methods, standards, and data that are relevant in their particular fields.” Id.
at 242. These expert opinions are subject to cross-examination, and the trial court is not
bound to follow any particular expert. Id. But the trial court “must give full and fair
consideration to all the evidence presented.” Id.

                 b.     Applying Coleman to the present case

       The Tennessee Supreme Court went to great lengths in Coleman to explain why
its decision comported with its own prior precedent, Tennessee statutory law, other
states’ statutes, current clinical practice (which Atkins itself noted is generally
incorporated in the various statutory definitions), and current litigation practice. Id. at
240-48. Even absent the Court’s guidance in Coleman, the TCCA in the present case
clearly misinterpreted the Flynn Effect’s relevance under Howell. Although Howell
emphasized the need to reach a single functional I.Q. score under Tennessee law, the
decision made no mention whatsoever of the Flynn Effect. The purpose of adjusting for
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 20


the Flynn Effect, after all, is to determine the single specific score that most accurately
reflects the subject’s I.Q. And unlike the SEM, adjusting for the Flynn Effect yields
only one score. See United States v. Davis, 611 F. Supp. 2d 472, 488 (D. Md. 2009)
(correcting for the Flynn Effect was found appropriate in order to more accurately
determine whether the defendant met the “strict numerical cutoff”). Considering the
Flynn Effect in determining a defendant’s I.Q. score is therefore entirely consistent with
Howell’s stated goal of assessing whether a defendant’s single I.Q. score, rather than a
range of scores, meets the statute’s “bright-line cutoff.”

       Whether Coleman’s holding regarding the SEM clarifies Howell or deviates from
Howell is more ambiguous. On the one hand, Coleman affirmed Howell’s holding that
the Tennessee statute requires that an expert’s assessment must be expressed in terms
of a specific I.Q. score rather than a range of scores. Coleman, 341 S.W.3d at 242. On
the other hand, the Court held that an expert should be permitted to consider “a particular
test’s standard error of measurement [the SEM], the Flynn Effect, the practice effect,”
or other “reliable practices, methods, standards, and data” in assessing the defendant’s
I.Q. Id. at 242 & n.55. Coleman might therefore best be read as clarifying that although
Howell prohibits interpreting the Tennessee statute “as representing a range of scores,”
Howell, 151 S.W. 3d at 457, it does not prevent the SEM, as well as all other relevant
scientific evidence, from being used by an expert in determining a defendant’s single
most accurate functional I.Q. score. See Duncan v. United States, 552 F.3d 442, 444-45
(6th Cir. 2009) (explaining that “a decision does not announce a new rule when it is
merely an application of the principle that governed a prior Supreme Court case”
(internal quotation marks omitted)). In any event, regardless of whether Coleman
clarified Howell’s holding or changed it regarding the SEM, the Tennessee Supreme
Court’s recent elucidation of the Atkins standard under Tennessee law must be applied
in the present case in light of our earlier conclusion regarding Coleman’s retroactive
applicability.

       Coleman is particularly applicable because the TCCA’s decision in the present
case was cited to support the TCCA’s conclusion in Coleman (before Coleman reached
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 21


the Tennessee Supreme Court) that although evidence concerning the Flynn Effect or the
SEM may be introduced into the record, neither of these factors may impact the court’s
ultimate determination of the defendant’s specific I.Q. score. Coleman v. State, No.
W2007-02767-CCA-R3-PD, 2010 WL 118696, at *18 (Tenn. Crim. App. Jan. 13, 2010).
The TCCA in Coleman explained that “both in Black and the present case, a challenge
is made to the veracity of the bright-line cutoff of 70 in establishing whether a defendant
is not subject to the death penalty.” Id. It then held that because Coleman, like Black,
was allowed to present evidence regarding the Flynn Effect and the SEM, the
defendant’s due process rights were not violated. Id. But as the Tennessee Supreme
Court explained in Coleman, allowing defendants to present evidence regarding the
Flynn Effect and the SEM is not enough. Tennessee courts must also consider this
evidence in assessing a defendant’s ultimate functional I.Q. Coleman, 341 S.W.3d at
241-42.

       3.      Onset by the age of 18

       In addition to having an I.Q. of 70 or below, this low level of intellectual capacity
must have manifested itself by age 18 in order for the defendant to qualify as
intellectually disabled under Tenn. Code Ann. § 39-13-203(a). Based on this rule, the
TCCA in the present case denied Black’s Atkins claim because it concluded that “the
proof in the record simply does not support that [Black’s] I.Q. was below seventy
. . . prior to age eighteen.” Black, 2005 WL 2662577, at *17. But the TCCA did not
explain the extent to which this conclusion relied on any of Black’s various I.Q. scores.
Nor did it consider the potential impact of the Flynn Effect and the SEM, despite the
court’s consideration of the expert testimony that discussed the impact of these factors
on Black’s middle set of I.Q. scores.

       Just as the TCCA misinterpreted Howell in its Coleman decision, it made the
same error here in deciding whether Black had demonstrated by a preponderance of the
evidence that he had an I.Q. of 70 or below by the time he was 18 years of age.
Although Black’s experts testified regarding the value of the Flynn Effect and the SEM,
the TCCA refused to consider these factors as a matter of law based on Howell rather
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 22


than based on whether “professionals who assess a person’s I.Q. customarily consider
a particular test’s standard error of measurement [or] the Flynn Effect.” See Coleman,
341 S.W.3d at 242 n.55. The TCCA’s decision is therefore contrary to the latest
Tennessee Supreme Court’s decision on this subject. See Williams v. Taylor, 529 U.S.
362, 405 (2000) (holding that “[a] state-court decision will certainly be contrary to our
clearly established precedent if the state court applies a rule that contradicts the
governing law”). And because Atkins defers to the individual states to set out the
standard for a defendant to qualify as mentally retarded, the TCCA’s misinterpretation
of Howell is contrary to Atkins.

        Where a state court’s analysis contradicts the governing law, we must conduct
an independent review of that issue, unconstrained by 28 U.S.C. § 2254(d)(1) (which
mandates deference to state-court proceedings unless they “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”). Fulcher v. Motley, 444
F.3d 791, 799 (6th Cir. 2006) (holding that after a federal court conducting habeas
review determines that the state court’s decision was contrary to clearly established
Supreme Court precedent, the “federal court is unconstrained by § 2254(d)(1) and de
novo review is appropriate” (brackets, citation, and internal quotation marks omitted)).
We conduct this independent review because “we cannot grant habeas unless [the
defendant] is ‘in custody in violation of the Constitution or laws or treaties of the United
States.’” West v. Bell, 550 F.3d 542, 553 (6th Cir. 2008) (quoting 28 U.S.C. § 2254(a)).

        Because the TCCA reached its ultimate conclusion that Black did not show by
a preponderance of the evidence that his I.Q. was below 70 or that he had adaptive
deficits by the time he was age 18, without specifying which I.Q. scores it relied on and
why, “[i]t is impossible to determine . . . the extent to which the [TCCA’s] error with
respect to its reading of [Howell] affected its ultimate finding” that Black did not meet
his burden of proof. See Williams, 529 U.S. at 414; see also Mask v. McGinnis, 233 F.3d
132, 140 (2d Cir. 2000) (holding under AEDPA that the “state court’s determination of
factual issues . . . were so closely intertwined with the state court’s articulation of an
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 23


erroneous legal standard, to which we owe no deference, that we can discern no
independent factual issues to which we should defer”); State v. Strode, 232 S.W.3d 1,
16 (Tenn. 2007) (holding that “the question of whether an individual is mentally retarded
for purposes of eligibility [for] the death penalty is a mixed question of law and fact”).

       4.      Black’s adaptive behavior

       Even if Black’s I.Q. was 70 or below by the time he was age 18, we recognize
that he must also have had deficits in adaptive behavior by the time he was 18 in order
to be considered mentally retarded under Tennessee’s Atkins standard. Tenn. Code
Ann. § 39-13-203(a). We therefore now turn to the issue of Black’s adaptive behavior.

       In addition to explaining Tennessee’s standard for determining a defendant’s
level of intellectual functioning, Coleman clarified the adaptive-deficits element of
Tennessee’s Atkins standard.       The Tennessee legislature did not define what
characteristics constitute “deficits in adaptive behavior,” but the Tennessee Supreme
Court explained that “deficits in adaptive behavior ‘means the inability of an individual
to behave so as to adapt to the surrounding circumstances.’” Coleman, 341 S.W.3d at
248 (brackets omitted) (quoting State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994)).

       Although Smith did not adopt the clinical definition of deficits in adaptive
behavior, “Tennessee’s trial and appellate courts have repeatedly relied upon expert
analysis of adaptive behavior or functioning predicated upon definitions advanced within
the relevant medical and psychological community and authoritative texts such as the
AAIDD Manual and the DSM–IV.” Id. These documents are, respectively, the Manual
of the American Association of Intellectual and Developmental Disabilities and the
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders. As in Coleman, the TCCA in the present case looked to the definition of
deficits in adaptive behavior that the Tennessee Supreme Court adopted in Van Tran v.
State, 66 S.W.3d 790, 795 (Tenn. 2001), which in turn based its standard on the
DSM–IV.
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 24


       The TCCA quoted the following passage from Van Tran that it had previously
quoted in Coleman:

       The second part of the definition—adaptive functioning—refers to how
       effectively individuals cope with common life demands and how well
       they meet the standards of personal independence expected of someone
       in their particular age group, socio-cultural background, and community
       setting. As discussed, a mentally retarded person will have significant
       limitations in at least two of the following basic skills: communication,
       self-care, home living, social/interpersonal skills, use of community
       resources, self-direction, functional academic skills, work, leisure, health,
       and safety. Influences on adaptive functioning may include the
       individual’s education, motivation, personality characteristics, social and
       vocational opportunities, and the mental disorders and general medical
       conditions that may coexist with Mental Retardation.

Black, 2005 WL 2662577, at *15 (quoting Van Tran, 66 S.W. 2d at 795 (internal
quotation marks omitted)).

       The TCCA in Coleman determined that although “[Coleman] has established that
he has deficits in academic performance, he has not established that he suffers
substantial limitations in at least two adaptive behavioral skill areas. Accordingly, he
has failed to establish that he has adaptive deficits by a preponderance of the evidence.”
Coleman v. State, No. W2007-02767-CCA-R3-PD, 2010 WL 118696, at *29 (Tenn.
Crim. App. Jan. 13, 2010). The Tennessee Supreme Court disagreed with the analysis
of both the TCCA and the trial court. It determined that their erroneous interpretation
of Howell led them to assess the possible causes of Coleman’s apparent deficiencies in
adaptive behavior without the benefit of “testimony indicating that Mr. Coleman’s
intellectual capacities rendered him intellectually disabled.” Coleman, 341 S.W.3d at
249.

       The lower courts’ failure to properly consider this evidence concerning
Coleman’s intellectual capacities might have had “a substantial and injurious impact on
the trial court and the Court of Criminal Appeals’ decision-making in weighing the
relative strengths of the causes of the seeming deficits in Mr. Coleman’s adaptive
behavior.” Id. Notably, the Tennessee Supreme Court found that the lower courts’
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 25


assessment of Coleman’s adaptive deficits was flawed, even though they acknowledged
that he had various personality problems, because they did not think that these
personality problems could be characterized as deficits in adaptive behavior under
Tennessee’s Atkins standard. See id.

       This problem is equally present in the TCCA’s decision in the present case. Just
as in Coleman, the TCCA here cited a number of expert assessments indicating that
Black had various personality problems, but it concluded that these issues did not
amount to deficits in his adaptive behavior. Black, 2005 WL 2662577, at *6-7, 10,
15-16. Even the State’s experts acknowledged that Black has serious personality
problems. Coleman’s conclusion that the erroneous exclusion of expert testimony
concerning adjustments to Coleman’s I.Q. score might have had “a substantial and
injurious impact on the [lower courts’] decision-making in weighing the relative
strengths of the causes of the seeming deficits in Mr. Coleman’s adaptive behavior” is
therefore equally applicable in the present case. See Coleman, 341 S.W.3d at 249.

       The relevant question, however, is whether Black displayed the requisite deficits
in his adaptive behavior by the time he was 18 years of age. See Tenn. Code Ann.
§ 39-13-203(a).     As with the TCCA’s analysis of Black’s level of intellectual
functioning, its conclusory reliance on the record as a whole and the ambiguity of the
conflicting evidence make the TCCA’s errors in assessing Black’s adaptive deficits
extend to the determination of whether these adaptive deficits manifested themselves by
the time Black was age 18. The TCCA’s analysis of the adaptive-deficits issue in the
present case is thus contrary to Coleman.

       In addition to connecting the analysis of adaptive deficits to the proper
assessment of intellectual capacities, Coleman contains several legal principles regarding
adaptive deficits that are relevant to the analysis in the present case. The Tennessee
Supreme Court held that “the definition of ‘intellectual disability’ embraces a
heterogeneous population ranging from persons who are totally dependent to persons
who are nearly independent.” Id. at 231. This position supports the idea that a court
reviewing whether a defendant is mentally retarded “must focus on Defendant’s deficits,
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 26


not his abilities.” United States v. Lewis, No. 1:08 CR 404, 2010 WL 5418901, at *30
(N.D. Ohio Dec. 23, 2010). Various experts from both sides in the present case also
testified that someone might be mentally retarded but still be able to carry out any of a
number of everyday activities, such as maintaining a simple job or driving a car. A full,
independent review of whether Black showed by a preponderance of the evidence that
he displayed adaptive deficits by the time he was age 18 must therefore look at his
weaknesses instead of at his strengths.

       The Tennessee Supreme Court in Coleman also determined that the lower courts
erred in

       their decision to distinguish between Mr. Coleman’s mental illness and
       his intellectual disability as separate causes of his adaptive limitations.
       By concluding that Mr. Coleman’s adaptive deficiencies were caused by
       his mental illness alone, the lower courts treated Mr. Coleman’s mental
       illness and intellectual disabilities as separate dichotomous spheres rather
       than as interwoven causes.

Coleman, 341 SW3d at 249.

       In making this point, the Tennessee Supreme Court explained that there is no
consensus among the various state courts around the country, nor in the scientific
literature, regarding “the role of causation with regard to assessing deficits in adaptive
behavior.” Id. at 250. The Tennessee Supreme Court in Coleman did not resolve this
conflict because it determined that the matter should be addressed only after the record
was more complete. Id. at 252. But even with the less-than-complete record before it,
the Court noted that the expert testimony in the record established that mental retardation
and other mental disorders are not mutually exclusive. See id. at 252-53. Rather, mental
retardation and any number of other factors may coexist as comorbid causes of a
defendant’s deficient adaptive functioning. See id.

       The Tennessee Supreme Court thus concluded that the TCCA had erred in
holding that Coleman’s adaptive deficits were caused solely by his mental illness,
without considering evidence that “intellectual disability and mental illness were
inter-related and served to aggravate each other, combining to limit Mr. Coleman’s
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 27


adaptive functionality.” Id. at 252. Moreover, although the Tennessee Supreme Court
did not make a conclusive legal determination concerning the causal relationship
between mental retardation and mental illness, the legal precedents and scientific
literature that it cited explain that, at a minimum, courts must consider the possibility
that a defendant’s mental retardation and other mental illnesses might be comorbid
causes of a defendant’s personality problems. See id. at 251-53; Lewis, 2010 WL
5418901, at *32 (“Indeed, individuals with intellectual disability are three to four times
more likely to have comorbid mental disorders than the general population.”). Coleman
thus establishes that even where a defendant suffers from mental illness, that finding
does not preclude a concomitant determination that the defendant’s personality problems
constitute adaptive deficits under Tennessee’s Atkins standard.

       The TCCA in the present case repeatedly cited evidence that it interpreted as
supporting the existence of Black’s mental illness but not of his mental retardation. For
example, the TCCA explained that Dr. Engum “believed that Petitioner suffered from
personality problems, delusional problems, or psychological difficulties, [but that] those
issues are separate and apart from the issue of whether Petitioner was mentally retarded.”
Black, 2005 WL 2662577, at *16. The TCCA also concluded, based on Dr. Vaught’s
testimony, that mental retardation “has nothing, however, to do with mental illness.” Id.
at *10. This reasoning is similar to the TCCA’s error in Coleman of treating “Mr.
Coleman’s mental illness and intellectual disabilities as separate dichotomous spheres
rather than as interwoven causes.” Coleman, 341 S.W.3d at 249. On remand, a proper
analysis of Black’s case under Coleman must consider the potential relationship between
mental retardation and mental illness.

       5.      Conclusion on Black’s Atkins claim

       Overall, the record is rife with conflicting testimony regarding Black’s level of
intelligence and adaptive deficits by the time he was age 18. The TCCA’s decision is
of little help because the court made so few definitive factual determinations leading up
to its ultimate conclusion that Black did not show by a preponderance of the evidence
that he qualifies as mentally retarded. Moreover, the TCCA did not have the benefit of
Nos. 02-5032; 08-5644          Black v. Bell                                        Page 28


Coleman’s guidance when it refused to consider either the Flynn Effect or the SEM in
evaluating the mental-retardation issue. Habeas review by the district court was
similarly constrained.

        The rules governing what factors may be considered in determining whether a
defendant qualifies as mentally retarded under Atkins deal with questions of law. See
Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006) (holding that the rules
regulating the factors involved in the ultimate determination of whether a defendant
qualifies as mentally retarded under Atkins raise questions of law); see also Murphy v.
Ohio, 551 F.3d 485, 510 (6th Cir. 2009) (reviewing the state court’s resolution of the
defendant’s Atkins claim under AEDPA’s standard for questions of law). The TCCA’s
assessment of Black’s level of intellectual and adaptive functioning was therefore
contrary to Coleman under AEDPA’s legal standard.

        Ordinarily, where the state court’s decision is contrary to clearly established law
under AEDPA, we will conduct an independent review of the record in order to
determine whether the defendant is “in custody in violation of the Constitution or laws
or treaties of the United States.” West v. Bell, 550 F.3d 542, 553 (6th Cir. 2008)
(quoting 28 U.S.C. § 2254(a)); Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006)
(holding that when we determine that the state court contradicted the governing law, we
must conduct an independent review, unconstrained by 28 U.S.C. § 2254(d)(1)). But we
will refrain from reaching any independent conclusions ourselves because no court has
yet analyzed Black’s Atkins claim according to the proper legal standard, which was set
out by the Tennessee Supreme Court in Coleman. See Alley v. Bell, 405 F.3d 371, 372
(6th Cir. 2005) (en banc) (granting rehearing en banc and remanding the case for the
district court to determine in the first instance whether it had jurisdiction to consider the
death-row inmate’s motion for relief from judgment in light of an intervening case that
the district court did not originally consider); see also Thaddeus-X v. Blatter, 175 F.3d
378, 399 (6th Cir. 1999) (vacating the district court’s grant of summary judgment on the
plaintiff’s retaliation claim and remanding the case for the district court to apply the
correct legal standard in the first instance).
Nos. 02-5032; 08-5644          Black v. Bell                                      Page 29


        A complete review must apply the correct legal standard to all of the relevant
evidence in the record. We therefore VACATE the district court’s denial of Black’s
Atkins claim and REMAND the case for it to review the record based on the standard
set out in Coleman and consistent with this opinion.

        6. Response to Dissent

        We note that our dissenting colleague vigorously argues that Coleman “does
nothing to implicate [Black’s] Atkins claim,” that “AEDPA forecloses consideration of
this state court precedent as a ground for relief,” and that a “[r]emand is unnecessary,
inappropriate, and flatly contrary to federal law.” For all of the reasons set forth above
in this Part II. B., we respectfully disagree.

        Moreover, we believe that the dissent fails to recognize that this case raises a
unique set of circumstances. Retroactively applicable new rules under AEDPA and
under Teague v. Lane, 489 U.S. 288 (1989), are exceedingly rare occurrences. See
Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007) (explaining that “Atkins reflects
one of the rare instances in which the Supreme Court has announced a new rule of
constitutional law that it has also expressly made retroactively applicable to cases on
collateral review”). For the Supreme Court to explicitly leave to the states the task of
defining the contours of such rules is even more out of the ordinary. But these are the
unique circumstances that we face in this case, which is why we are convinced that a
remand to the district court for reconsideration of Black’s Atkins claim in light of
Coleman is the proper resolution of this issue.

C.      Competency to stand trial

        Black also challenges the state court’s determination that he was competent to
stand trial. He argues that, at the very least, the district court should have granted him
an evidentiary hearing on this issue. To be competent to stand trial, a defendant must
have “‘sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding’ and ‘a rational as well as factual understanding of the
proceedings against him.’” Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006)
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 30


(quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). “[E]vidence
of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion
on competence to stand trial are all relevant in determining whether further inquiry is
required, but . . . even one of these factors standing alone may, in some circumstances,
be sufficient.” Drope v. Missouri, 420 U.S. 162, 180 (1975).

       A defendant’s competence to stand trial is a question of fact. Filiaggi, 445 F.3d
at 858. Under AEDPA, assuming that the state court’s legal standard for determining
whether a defendant is competent is not contrary to or an unreasonable application of
clearly established Supreme Court precedent, the court’s factual competency
determination “must be upheld unless there is clear and convincing evidence to the
contrary.” Id. (internal quotation marks omitted).

       Black argues that neither his experts nor the State’s experts conducted a thorough
evaluation of either his social history or his psychological and neurological impairments
in assessing his competency to stand trial. But Black relies on evidence from his
post-conviction proceedings, which was produced long after his trial, in order to support
this claim.    Although such after-the-fact evidence is relevant to competency
determinations, “[t]he critical question is whether the evidence relied upon for
determining a defendant’s competence at an earlier time of trial was evidence derived
from knowledge contemporaneous to trial.” Bowers v. Battles, 568 F.2d 1, 4 (6th Cir.
1977) (internal quotation marks omitted). Psychiatric opinions offered years after a
habeas petitioner’s trial are therefore not nearly as relevant as those issued at the time
of trial. Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005).

       Black received a competency hearing shortly before his trial. At this hearing, a
psychologist and one of Black’s attorneys testified on Black’s behalf that he was unable
to understand the judicial process, did not understand his attorneys’ role, did not
understand the consequences of the trial, and that he was unable to assist his attorneys.
But the prosecution’s three mental-health experts all interviewed Black and testified that
although his intelligence was at the lower end of the normal range and that he probably
had a personality disorder, he was not delusional and was competent to stand trial.
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 31


       The trial court then appointed another expert, a psychiatrist, to evaluate Black.
This expert concluded that Black was “clearly competent.” The court adopted this
conclusion. When Black’s attorneys raised the competency issue again after voir dire,
this same expert reinterviewed Black and once more found that he was competent. The
trial court then reaffirmed its ruling that Black was competent to stand trial. In
reviewing Black’s competency claim on direct appeal, the Tennessee Supreme Court
determined that Black “understood the nature and object of the proceedings against him
and was able to consult with and assist counsel in preparing his defense.” State v. Black,
815 S.W.2d 166, 174-75 (Tenn. 1991).

       Our earlier review of the TCCA’s assessment concerning whether Black is
mentally retarded under Atkins does not compel a similar result concerning his
competency to stand trial because Atkins explicitly held that “[m]entally retarded persons
frequently know the difference between right and wrong” and can be competent to stand
trial. See Atkins v. Virginia, 536 U.S. 304, 318 (2002). The district court determined,
and Black does not offer any evidence to the contrary, that Black’s competency
argument relies primarily on evidence from his post-conviction proceedings. “None of
these experts state an opinion as to whether Petitioner met the standard for competence
at the time of trial.” Black v. Bell, 181 F. Supp. 2d 832, 843 (M.D. Tenn. 2001). The
district court thus correctly determined that Black’s evidence did not amount to “the
clear and convincing proof required for this Court to disregard the state court’s
findings.” Id. And the state court’s decision was not “contrary to, [nor did it] involve[]
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

       Black further argues that the procedures used by the state trial court to determine
whether he was competent were inadequate under the Due Process Clause. Due process
in a competency hearing requires “that only the most basic procedural safeguards be
observed.” Medina v. California, 505 U.S. 437, 453 (1992) (internal quotation marks
omitted). The court allowed both Black and the prosecution to present their expert
testimony at Black’s competency hearing. Then, rather than base its determination on
Nos. 02-5032; 08-5644         Black v. Bell                                       Page 32


either of these experts, the court appointed its own independent expert to evaluate Black.
The court further afforded Black a reevaluation at his attorneys’ request after the voir
dire. Black has not pointed to any required process that he was denied. The process that
was undertaken in Black’s state-court competency hearing was therefore not contrary
to, nor did it involve an unreasonable application of, the process that was required to
determine Black’s competence. In rejecting Black’s challenge to the state court’s
determination of his competency to stand trial, we specifically note that we make no
determination regarding his claim of incompetence to be executed, which the district
court dismissed without prejudice because the claim was not yet ripe. Black, 181 F.
Supp. 2d at 882-83.

D.     Ineffective assistance of counsel regarding mitigation evidence

       Black next challenges the state court’s rejection of his claim that his trial
attorneys were ineffective in investigating and presenting mitigation evidence at the
penalty phase of his trial. He contends that his attorneys failed to investigate his social
history and failed to hire a psychiatrist regarding his mental-health issues.

       To establish the ineffective assistance of trial counsel, Black must show that his
counsel’s performance (1) was deficient (i.e., that it was objectively unreasonable under
prevailing professional norms), and (2) prejudiced the defense. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).            “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.” Id.
at 689 (internal quotation marks omitted).

       The test for prejudice is whether there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been different.
Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. The Strickland prejudice component “focuses on the question
whether counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Nos. 02-5032; 08-5644          Black v. Bell                                        Page 33


          Defense counsel’s failure to reasonably investigate a defendant’s background and
present mitigating evidence to the jury at sentencing can constitute ineffective assistance.
Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). In assessing the reasonableness of an
attorney’s mitigation investigation, the court considers “not only the quantum of
evidence already known to counsel,” but also whether that evidence should have led “a
reasonable attorney to investigate further.” Id. at 257.

          Counsel has a duty to conduct an independent investigation regarding mitigating
evidence regardless of the defendant’s reluctance to investigate and disclose such
evidence. Harries v. Bell, 417 F.3d 631, 638 (6th Cir. 2005). Because of this obligation,
counsel cannot rely solely on information provided by the defendant and his family in
determining the extent of a proper mitigation investigation. Rompilla v. Beard, 545 U.S.
374, 388-89 (2005). But a “reasonably diligent counsel may draw a line when they have
good reason to think further investigation would be a waste.” Id. at 383.

          As for demonstrating prejudice under Strickland, Black was required to show that
his new evidence differs “in a substantial way—in strength and subject matter—from the
evidence actually presented at sentencing.” See Fautenberry v. Mitchell, 515 F.3d 614,
626 (6th Cir. 2008) (internal quotation marks omitted). “[T]he failure to present
additional mitigating evidence that is merely cumulative of that already presented does
not rise to the level of a constitutional violation.” Nields v. Bradshaw, 482 F.3d 442,
454 (6th Cir. 2007) (internal quotation marks omitted).

          Black claims that the TCCA’s analysis was contrary to Strickland because the
court concluded that he was required to establish that “but for his counsel’s deficient
performance, the result of his trial would likely have been different.” As Black correctly
argues, Strickland requires only a “reasonable probability” that the result would have
been different but for his counsel’s deficient performance. He thus argues that the
TCCA’s requirement that his attorneys’ deficient performance would “likely” have
resulted in a different result, see Black, 1999 WL 195299, at *13, overstated the level
of prejudice necessary for relief. The Supreme Court has in fact held that if a state court
rejects    a   defendant’s    ineffective-assistance-of-counsel    claim    based    on   a
Nos. 02-5032; 08-5644        Black v. Bell                                       Page 34


preponderance-of-the-evidence standard for prejudice rather than asking whether there
was a “reasonable probability that . . . the result of the proceeding would have been
different,” then that decision would be contrary to clearly established federal law.
Williams v. Taylor, 529 U.S. 362, 406 (2000) (quoting Strickland, 466 U.S. at 694).

       But the district court emphasized that “[i]n discussing the Strickland prejudice
standard, courts frequently use the term ‘likely’ interchangeably with the phrase
‘reasonable probability.’” Black, 181 F. Supp. 2d at 861 (citing Stanford v. Parker, 266
F.3d 442, 455 (6th Cir. 2001)). The court reasoned that, in using the term “likely,” the
TCCA “focused on the same analysis as required by the ‘reasonable probability’
standard.” Id. Our review of the record supports the district court’s conclusion.

       Moreover, Black’s mitigation argument would fail even de novo review. He
summarily argues that, had his trial counsel hired a psychiatrist, the psychiatrist would
have easily discovered that he “suffers serious mental illness, has neurological
impairments, and severe memory deficits,” which would have led to a diagnosis of brain
damage. But Black was in fact evaluated by various mental-health experts during the
competency evaluation for his trial. Black now presents additional mental-health
evidence that was obtained during his post-conviction process that he contends should
have been uncovered by his penalty-phase attorneys. But Black’s claim fails because
there is no evidence in the record to support the conclusion that Black’s trial attorneys
should have been aware at the time of Black’s trial (including the penalty phase) that
any further investigation into his social history would have produced more evidence
beyond that already obtained by the competency experts. See Wilson v. Parker, 515 F.3d
682, 698 (6th Cir. 2008) (assessing the effectiveness of defense counsel’s mitigation
efforts by requiring a look at counsel’s conduct “at the time of its occurrence (or when
it should have occurred in the case of omissions)” (emphasis added)).
Nos. 02-5032; 08-5644         Black v. Bell                                      Page 35


E.     Ineffective assistance of counsel regarding the prosecutor’s “reward”
       argument
       Black further claims that his trial counsel performed ineffectively by failing to
object to the prosecution’s penalty-phase closing argument that giving Black a life
sentence rather than the death penalty would reward him for the additional killings of
Latoya and Lekeisha Clay because Black was already subject to a life sentence for the
murder of Angela Clay. This claim is based on two Tennessee Supreme Court cases,
State v. Smith, 755 S.W.2d 757 (Tenn. 1988), and State v. Bigbee, 885 S.W.2d 797
(Tenn. 1994), in which the prosecutor made similar arguments to the jury. The TCCA
in the present case incorrectly accepted the lower court’s distinction that whereas the
defendants in those cases “had previously received life sentences for unrelated
murders . . . , [Black] was facing the death penalty in the same trial for three related
killings. Accordingly, as the [TCCA] noted, the jury [in the present case] could not help
but have full knowledge of all three sentences it was considering for the three murders.”
Black, 181 F. Supp. 2d at 857 (quoting the TCCA’s opinion).

       The defendant in Smith was in fact tried for multiple murders in the same trial,
just as Black was here. Although the Tennessee Supreme Court in Smith determined that
the two separate murders should have been tried separately, it also concluded that the
prosecution’s “reward” argument was highly prejudicial specifically because the jury
knew about the other murders. Smith, 755 S.W.2d at 767-68. In other words, Smith held
that telling the jury that a life sentence will be “no additional punishment” because of
the defendant’s life sentence for a different murder is inherently prejudicial to the
defendant even where the jury properly knows about the defendant’s life sentence for
another murder.

       But, like the trial court, the TCCA ultimately did not decide whether counsel’s
performance was deficient because it agreed with the trial court that even if defense
counsel did make a mistake and “should have objected to the argument,” this error was
not prejudicial because “it is unlikely that the objection would have had any effect on
the jury’s decision.” Id. Black, however, claims that the prosecutor’s argument was
prejudicial because the jury sent a note asking the trial judge whether multiple terms for
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 36


the murders would be served concurrently or consecutively, and it deliberated for 13
hours, allegedly showing that the jury was considering a life sentence. But, as the TCCA
noted, the prosecutor made his “reward” argument about both of Angela’s daughters, yet
the jury sentenced Black to death for only Lakeisha’s murder. Moreover, Black’s death
sentence was supported by six aggravating factors. We therefore agree that Black has
not shown a reasonable probability that, but for the prosecutor’s reward argument, the
result of his penalty phase would have been different.

F.     Instructing the jury regarding Black’s parole eligibility

       Finally, Black argues that the trial court violated his due process rights by failing
to answer the jury’s questions regarding how long a life sentence actually was in
Tennessee, and whether he could be paroled from a life sentence. Black contends that
he had a due process right to have the jury receive instructions in response to these
questions so that he could rebut the prosecution’s improper argument that a life sentence
would reward Black for the murders of Latoya and Lakeisha.

       In support of this argument, Black cites Gardner v. Florida, 430 U.S. 349 (1977),
Skipper v. South Carolina, 476 U.S. 1 (1986), Simmons v. South Carolina, 512 U.S. 154
(1994), and Shafer v. South Carolina, 532 U.S. 36 (2001). But none of these cases dealt
with the type of prosecutorial-misconduct argument that Black raises here. Gardner
involved a defendant’s right to rebut information contained in a presentence report. And
Skipper concerned a defendant’s right to offer evidence of his good behavior in prison
in order to rebut the prosecution’s arguments regarding the defendant’s future
dangerousness.

       Simmons and Shafer provide the closest analogy to the present case. In Simmons,
the Court held that “where a defendant’s future dangerousness is at issue, and state law
prohibits the defendant’s release on parole, due process requires that the sentencing jury
be informed that the defendant is not eligible for parole.” Black, 181 F. Supp. 2d at 870.
But if “parole is an option for a defendant sentenced to life imprisonment, . . . the
Simmons Court emphasized that it will not second-guess the refusal of a State to allow
proof, instruction, or argument to the jury on the availability of parole.” State v. Bush,
Nos. 02-5032; 08-5644         Black v. Bell                                         Page 37


942 S.W.2d 489, 503 (Tenn. 1997) (emphasis in original). And, as the district court
explained, “[b]ecause Tennessee is a state in which defendants sentenced to life
imprisonment are eligible for parole, . . . Simmons does not require that the jury be given
information about parole availability.” Black, 181 F. Supp. 2d at 870 (citing Bush, 942
S.W. 2d at 503).

       In fact, Shafer itself explains that Simmons does not apply where, as here, the
defendant might be eligible for parole based on the jury’s decision. Shafer, 532 U.S. at
51 (“Simmons applies where[,] as a legal matter, there is no possibility of parole if the
jury decides the appropriate sentence is life in prison.” (emphasis and internal quotation
marks omitted)). Moreover, Black does not contend that the prosecutor’s reward
argument put his dangerousness at issue. We therefore agree with the district court’s
denial of Black’s claim that he had a due process right to have the trial court answer the
jury’s questions regarding his parole eligibility and the length of his sentence.

                                  III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the district court’s denial of
Black’s habeas petition regarding his non-Atkins claims, VACATE the court’s judgment
regarding the denial of Black’s petition concerning his Atkins claim, and REMAND the
case for further proceedings consistent with this opinion.
Nos. 02-5032; 08-5644          Black v. Bell                                         Page 38


                                   ________________

                                       DISSENT
                                   ________________

        BOGGS, Circuit Judge, dissenting. In Coleman v. State, 341 S.W.3d 221 (Tenn.
2011)—decided after oral argument in this case—the Tennessee Supreme Court
construed a Tennessee statute prohibiting the execution of mentally retarded defendants
under Tennessee law. The panel remands Black’s case to the district court in light of
Coleman, reasoning that Coleman “elucidates Tennessee’s interpretation of Atkins’s
legal standard.” See Maj. Op. at p. 14. A thorough reading of Coleman reveals no such
elucidation. Coleman is purely a construction of a state statute that makes only fleeting
references to Atkins. For this reason, I cannot join the panel, and respectfully dissent.

                                               A

        There are three major flaws with the panel’s opinion.

        First, the panel contends that it is appropriate to “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.” This position, while correct in the abstract,
is not supported by the two precedents cited. In Hill v. Anderson, this court remanded
Hill’s Atkins habeas claim to the Ohio state courts—in which Hill had not yet exhausted
his “retardation claim”—to allow the courts to “develop [their] own procedures for
determining whether a particular claimant is retarded and ineligible for death.” 300 F.3d
679, 682 (6th Cir. 2002). Hill, decided in the uncertain aftermath of Atkins, has no
bearing on this case. Black has had ample opportunity to exhaust and has exhausted his
Atkins claim in state courts, and in federal courts. To the extent that Coleman has any
bearing on Black’s case, the appropriate forum to relitigate such a claim is in state court,
not on remand to a federal district court.

        The other case cited, Wiley v. Epps, is readily distinguishable, in light of the Fifth
Circuit’s finding that AEDPA deference was unwarranted where the “case was
intertwined with the alleged due process violation by the state court's failure to conduct
Nos. 02-5032; 08-5644         Black v. Bell                                        Page 39


a hearing.” 625 F.3d 199, 208 (5th Cir. 2010). “Wiley was convicted before Atkins was
decided” and on collateral review was not offered an evidentiary hearing to develop his
claim of mental retardation. Ibid. As such, a remand was appropriate to afford Wiley an
opportunity to state his Atkins claim. Id. at 213 (“[I]t was an unreasonable application
of clearly established federal law for the Mississippi Supreme Court to deny Wiley’s
Atkins claim without a hearing, and the district court correctly concluded that it was not
bound to afford the state court's decision deference.”). In contrast, as the majority notes,
the state trial court “held an evidentiary hearing, but ultimately determined that Black
[was] not mentally retarded under the Atkins standard.” See Maj. Op. at p. 4. Black has
had numerous opportunities to argue his Atkins claim, and the state court’s determination
is entitled to deference. Coleman, a creature of state law, does nothing to implicate his
Atkins claim.

                                              B

        Second, the state law in question, enacted in 1990, has nothing to do with Atkins
and its resulting jurisprudence, other than the fact that it relates to the execution of
mentally retarded individuals. Tenn. Code Ann. § 39-13-203(a) prohibits the execution
of an individual with an “intellectual disability” specifically defined as “[s]ignificantly
subaverage general intellectual functioning as evidenced by a functional intelligence
quotient (I.Q.) of seventy (70) or below.” The Tennessee Supreme Court announced in
Van Tran v. State that the execution of mentally retarded individuals also violated the
Tennessee Constitution. 66 S.W.3d 790, 812 (Tenn. 2001). Noteworthy for our purposes,
Van Tran was decided seven months before the Supreme Court’s opinion in Atkins v.
Virginia, but after certiorari was granted. Id. at 800. The Coleman opinion itself
discusses Atkins only in the background section. The Tennessee Supreme Court’s
analysis in Coleman—which contains only fleeting references to journal articles about
Atkins—focuses on “construing [the state] statute,” Coleman, at 241. Coleman offers
no “elucidation” of Atkins.
Nos. 02-5032; 08-5644        Black v. Bell                                       Page 40


                                             C

       Third, and perhaps most importantly, even assuming that Coleman explicated
Atkins, such analysis would be of no moment for purposes of AEDPA. Although “Atkins
reserved for the states the task of developing appropriate ways to enforce the
constitutional restriction,” In re Bowling, 422 F.3d 434, 436-37 (6th Cir. 2005), the
majority is incorrect in reasoning that Coleman “enforce[s] the constitutional
restriction.” The Tennessee Supreme Court in Van Tran went out of its way to stress that
its opinion—issued seven months before Atkins—was grounded on state, and not federal
constitutional law. 66 S.W.3d at 801 (“Accordingly, although we will refer to relevant
analysis under the Eighth Amendment, all of our opinions and conclusions with respect
to the execution of mentally retarded individuals—an issue of first impression for this
Court—are separately and independently based upon article I, § 16 of the Tennessee
Constitution.”). Indeed, even if the Tennessee Supreme Court did rely on an
interpretation of Atkins, it could not alter or elucidate the relevant AEDPA
inquiry—which is what was “clearly established federal law” as of 2006, when the
“TCCA affirmed” the state trial court’s decision that “Black is not mentally retarded
under the Atkins standard.” See Maj. Op. at p. 4.

       The majority’s remand cannot be reconciled with this court’s limited role under
AEDPA to grant relief only for an “unreasonable applications of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1)(emphasis added). See Bobby v. Dixon, 132 S.Ct. 26 (2011) (per curiam).
Coleman decided how a Tennessee state statute should apply to a Tennessee state court
opinion decided under the Tennessee state Constitution. This case was not decided based
on the Federal Constitution, and does not implicate Black’s federal habeas challenge.
AEDPA forecloses consideration of this state court precedent as a ground for relief.

                                      *      *   *

       I find no possibility that a federal court’s consideration of Coleman could afford
Black any remedy. Remand is unnecessary, inappropriate, and flatly contrary to federal
law. Just as Coleman did, Black can seek relief under this new precedent in Tennessee
Nos. 02-5032; 08-5644        Black v. Bell                                      Page 41


state courts “in the form of a motion to re-open his prior post-conviction petition.”
Coleman, 341 S.W.3d.at 226.

       Because Black’s remedy does not lie in the federal courts, I respectfully dissent.
