     Case: 12-30256    Document: 00513375522    Page: 1   Date Filed: 02/10/2016




                      REVISED February 10, 2016

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                 No. 12-30256                  December 16, 2015
                                                                  Lyle W. Cayce
KEVAN BRUMFIELD,                                                       Clerk


             Petitioner - Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

             Respondent – Appellant



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before KING, CLEMENT, and ELROD, Circuit Judges.
KING, Circuit Judge:
      Petitioner–Appellee Kevan Brumfield was convicted of first degree
murder and sentenced to death in 1995. Following state court proceedings,
Brumfield filed a petition for a writ of habeas corpus in the district court,
arguing that he is ineligible for the death penalty under Atkins v. Virginia, 536
U.S. 304 (2002), because he is intellectually disabled. The district court found
that the state court erred by not holding an Atkins hearing on whether
Brumfield was intellectually disabled. Following a multi-day hearing in 2010,
the district court granted Brumfield a writ of habeas corpus, finding that he
was intellectually disabled under Louisiana’s statutory definition of
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                                  No. 12-30256
intellectual disability. Without reaching the merits of Brumfield’s claim that
he is intellectually disabled, this court reversed the district court’s judgment.
This court held that because Brumfield had failed to satisfy the requirements
of 28 U.S.C. § 2254(d), the district court should not have reached the merits of
his Atkins claim. The Supreme Court reversed and remanded, holding that
Brumfield had indeed satisfied the requirements of 28 U.S.C. § 2254(d) and
that he was thus entitled to have his claim of intellectual disability under
Atkins evaluated on the merits. On remand, we review for clear error the
district court’s determination that Brumfield is, in fact, intellectually disabled.
Because the district court’s determination that Brumfield is intellectually
disabled is plausible in light of the record as a whole, its determination is not
clearly erroneous. Accordingly, we AFFIRM the ruling of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The facts and procedural history of this case are recounted exhaustively
in prior opinions. See Brumfield v. Cain, 135 S. Ct. 2269 (2015) [hereinafter
Brumfield (S. Ct.)]; Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014) [hereinafter
Brumfield (5th Cir.)]; Brumfield v. Cain (Brumfield II), 854 F. Supp. 2d 366
(M.D. La. 2012); Brumfield v. Cain (Brumfield I), No. CIV.A.04-787JJB-CN,
2008 WL 2600140 (M.D. La. June 30, 2008); State v. Brumfield, 737 So. 2d 660
(La. 1998) [hereinafter Brumfield (La.)]. We recount the facts and procedural
history as relevant to the limited question before us today.
   A. The Original Crime and State Court Proceedings
      On January 7, 1993, Petitioner–Appellee Kevan Brumfield and an
accomplice, Henri Broadway, opened fire on a Baton Rouge Police Department
vehicle driven by Corporal Betty Smothers. Smothers was escorting Kimen
Lee, an assistant manager at the grocery store where Smothers worked part
time as a security guard, as Lee made the grocery store’s nightly bank deposit.
Brumfield fired seven rounds from the left side of the police cruiser, and
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                                       No. 12-30256
Broadway fired five rounds from the right side. Lee survived, but Smothers
did not. Baton Rouge police officers arrested Brumfield for Smothers’ murder
on January 11, 1993. When police interrogated Brumfield, he initially denied
any involvement in Smothers’ murder and claimed that he had been with his
brother at the time. After Brumfield’s brother denied that claim, Brumfield
gave a videotaped statement admitting that he drove the getaway car but
denying that he murdered Smothers.                    Later, Brumfield gave another
videotaped statement where he admitted to being in the bank parking lot and
firing shots at the police car.
      Following a multi-week trial in June and July of 1995, a jury found
Brumfield guilty of first degree murder. He was subsequently sentenced to
death on July 3, 1995. Brumfield appealed his conviction, but the Supreme
Court of Louisiana affirmed the state trial court. Brumfield (La.), 737 So. 2d
at 662, 671. And the Supreme Court of the United States denied his petition
for certiorari thereafter. Brumfield v. Louisiana, 526 U.S. 1025 (1999).
      In March 2000, Brumfield filed for postconviction relief with a state trial
court before the Supreme Court of the United States issued its decision in
Atkins, 536 U.S. at 321, prohibiting the execution of intellectually disabled
criminals. 1 Brumfield later amended his state petition to assert an Atkins
claim and argued that he was entitled to an evidentiary hearing on his
intellectual disability claim. 2 Brumfield requested funds to develop his claim,


      1  Consistent with the Supreme Court’s guidance, we use the term “intellectually
disabled” instead of “mentally retarded.” The two terms describe “identical phenomen[a].”
Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
       2 Brumfield provided the following evidence of his intellectual disability:



      1) his IQ score, obtained prior to trial, of 75; 2) his slow progress in school; 3)
      his premature birth; 4) his treatment at multiple psychiatric hospitals; 5)
      various medications he was prescribed; and 6) testimony that he exhibited
      slower responses than “normal babies,” suffered from seizures, and was
      hospitalized for months after his birth.
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but the state trial court denied his petition in its entirety on October 23, 2003.
Brumfield then filed a writ with the Supreme Court of Louisiana, alleging,
inter alia, that the trial court erred by failing to hold an Atkins hearing. That
court denied the writ without explanation. Brumfield v. State, 885 So. 2d 580,
580 (La. 2004).
   B. Federal District Court Proceedings
      Following the Supreme Court of Louisiana’s dismissal of his appeal,
Brumfield petitioned the United States District Court for the Middle District
of Louisiana for a writ of habeas corpus, asking the court “to declare him
[intellectually disabled] and ineligible for the death penalty under Atkins.”
Brumfield II, 854 F. Supp. 2d at 370. Brumfield filed an amended petition in
2007 re-raising his Atkins claim, supported by expert findings developed with
federal funding. A magistrate judge recommended that, although the state
court’s refusal to grant an Atkins hearing was “reasonable and in accordance
with clearly established federal law,” the district court should consider the
additional evidence Brumfield presented in his amended habeas petition. The
magistrate judge explained that Brumfield had demonstrated cause for failing
to provide the state court with expert evidence because the state court denied
him funding to develop this evidence. The magistrate judge further reviewed
the additional evidence submitted by Brumfield and concluded that he had
established a prima facie case of intellectual disability and was thus entitled
to an Atkins hearing. The district court adopted the magistrate judge’s report
and recommendation and held an Atkins hearing July 12–16 and August 3–4,
2010, discussed in detail below. Brumfield II, 854 F. Supp. 2d at 370.




Brumfield (5th Cir.), 744 F.3d at 921 (footnotes omitted).

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      In its opinion granting Brumfield a writ of habeas corpus, the district
court first addressed the legal prerequisites to a federal habeas hearing before
addressing the substance of Brumfield’s Atkins claim. Brumfield II, 854 F.
Supp. 2d at 373, 384. Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Brumfield could obtain federal habeas relief only if, in
rejecting his claim, the state court’s decision “was either ‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,’ or was ‘based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.’” Brumfield (S. Ct.), 135 S. Ct. at 2275 (quoting 28
U.S.C. § 2254(d)(1), (2)). The district court found that denying Brumfield an
evidentiary hearing without providing him with the funds to develop his Atkins
claim “represented an unreasonable application of then-existing due process
law as determined by the Supreme Court” and therefore satisfied § 2254(d)(1).
Brumfield II, 854 F. Supp. 2d at 383–84. The district court also concluded that
the state trial court’s denial of an Atkins hearing “suffered from an
unreasonable determination of the facts in light of the evidence presented . . .
in violation of § 2254(d)(2).” Id. at 379.
      The district court then analyzed the merits of Brumfield’s Atkins claim.
In determining whether Brumfield is intellectually disabled—and therefore
barred from being sentenced to death under Louisiana law, La. Code Crim.
Proc. Ann. art. 905.5.1(A)—the district court relied heavily on the American
Association on Intellectual and Developmental Disabilities’ (AAIDD’s) 3 Mental
Retardation: Definition, Classification, and Systems of Support (10th ed. 2002)
[hereinafter Red Book], which “contains the current, consensus definition of



      The AAIDD was formerly known as the American Association on Mental Retardation
      3

(AAMR).
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[intellectual disability],” as “Louisiana law tracks the clinical definition
provided by the [Red Book].”        Brumfield II, 854 F. Supp. 2d at 385–86.            To
establish an intellectual disability, the district court explained, “Brumfield
bears the burden of proving by a preponderance of the evidence that he meets
the statutory definition.” Id. at 385 (citing La. Code Crim. Proc. Ann. art.
905.5.1(C)(1)).
       All of the experts who testified in this case agreed on the relevant criteria
for diagnosing intellectual disability. 4 Consistent with the guidance from the
United States Supreme Court and the Louisiana Supreme Court and La. Code
Crim. Proc. Art. 905.5.1, the experts agreed that an intellectual disability
diagnosis requires satisfying a three part test: “(1) subaverage intelligence, as
measured by objective standardized IQ tests; (2) significant impairment in
several areas of adaptive skills; and (3) manifestations of this neuro-
psychological disorder in the developmental stage.” Brumfield (S. Ct.), 135 S.
Ct. at 2274 (quoting State v. Williams, 831 So. 2d 835, 854 (La. 2002)). Each
expert also agreed that the diagnosis of intellectual disability is guided by the
same relevant psychological and medical texts authored by the American
Psychiatric Association (APA) and AAIDD. See generally AAIDD, Intellectual
Disability: Definition, Classification, and Systems of Supports (11th ed. 2010)
[hereinafter Green Book]; Red Book; AAMR, User’s Guide: Mental Retardation:
Definition, Classification, and Systems of Supports (10th ed. 2002) [hereinafter
User’s Guide]; APA, Diagnostic and Statistical Manual of Mental Disorders
(rev. 4th ed. 2000) [hereinafter DSM-IV-TR]. While the experts agreed on the
criteria for diagnosing intellectual disability, they disagreed on whether
Brumfield met those criteria.



       4At the Atkins hearing, the district court heard testimony from six expert witnesses—
three each for Brumfield and the State—and several other witnesses.
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                                      No. 12-30256
       1. Brumfield’s Three Expert Witnesses
       The asserted role of Brumfield’s first expert, Stephen Greenspan, Ph.D., 5
was to educate the court on intellectual disability. While Greenspan did not
evaluate whether Brumfield was intellectually disabled, the district court held
that Greenspan “is one of the foremost [intellectual disability] experts in the
country.” Brumfield II, 854 F. Supp. 2d at 386. Greenspan testified generally
as to the “proper use of the AAIDD’s clinical standards in making diagnoses of
[intellectual disability].” Id.
       Beginning with the subaverage intelligence prong of the intellectual
disability test, Greenspan explained that psychologists originally used an IQ
score of 70 as the cutoff for determining whether an individual had an
intellectual disability, but because of advances in scientific and statistical
methods, the AAIDD uses “75 as the upper ceiling now” for a diagnosis of
intellectual disability. Commenting on potential factors that may affect the
validity of an individual’s IQ score, Greenspan explained that if an individual
is “malingering,” which refers to intentionally performing poorly on a test, an
IQ test score may not be valid. He further explained that consistently receiving
the same IQ score across multiple tests generally rules out malingering by an
individual.     When Greenspan examined the IQ scores from Brumfield’s
previous tests, the scores “[told him] that [the test subject] here . . . clearly
me[t] prong one because all of these scores [we]re in the mild [intellectual
disability] range.” Greenspan also noted that an individual’s IQ tends to
remain stable over time, implying that Brumfield, absent some incident that
lowered his IQ, has always had an IQ in the intellectually disabled range.



       5Greenspan is a licensed psychologist, obtained his Ph.D. in 1976, and (at the time of
the hearing), was employed as a visiting professor at the University of Colorado Medical
School. The district court accepted him as an expert in intellectual disability and adaptive
behavior. Brumfield II, 854 F. Supp. 2d at 386.
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         When discussing the second prong of the intellectual disability test—
whether an individual has impairments in adaptive behavior 6—Greenspan
explained that “adaptive functioning usually would determine whether
somebody is really [intellectually disabled]” when a person’s IQ is close to the
cutoff for an intellectual disability diagnosis. “Adaptive behavior has to do
with how one functions in the real world . . . outside of the testing situation.”
Adaptive behavior includes three domains: the practical domain, the social
domain, and the conceptual domain. The practical domain concerns daily
living skills, the social domain concerns whether an individual can conform to
the rules of society, and the conceptual domain concerns quasi-academic skills
applicable to the real world, such as telling time. A diagnosis of intellectual
disability requires “at least one . . . major domain of a relative impairment.”
However, Greenspan was careful to note that an impairment in one domain of
adaptive behavior does not require the complete absence of adaptive behaviors
in that domain and that it does not preclude the possibility that an individual
possesses some strengths in particular areas.
         To measure adaptive behavior in an individual, psychologists administer
tests,       such   as   the   Adaptive   Behavior      Assessment       System     (ABAS)
questionnaires, to people who know or knew the individual being evaluated for
an intellectual disability. Greenspan emphasized that “the more people you
can talk to, the better picture you get of an individual.” He also noted the
importance of interviewing the subject himself. Greenspan testified that when
sufficient records are available, reviewing all of the available information can
shed light on whether an individual has deficits in adaptive functioning. He
further noted that reviewing records is important when evaluating whether an


         “Adaptive behavior,” “adaptive functioning,” and “adaptive skills” are used
         6

interchangeably in both professional psychology circles and during the district court’s Atkins
hearing.
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                                       No. 12-30256
individual satisfies the third prong of an intellectual disability diagnosis—
manifestations prior to the age of 18. Additionally, Greenspan explained that
the presence or absence of “maladaptive behavior” is not relevant to the
diagnosis of intellectual disability. Maladaptive behavior involves a “person
act[ing] out” by, for example, “attack[ing] other people” and is “not used
diagnostically.”
       Brumfield’s second expert, Ricardo Weinstein, Ph.D., 7 evaluated
Brumfield for intellectual disability.            During the course of his evaluation,
Weinstein met with Brumfield on at least three separate occasions for between
five and seven hours each time, administered psychological tests, and
performed a clinical interview with Brumfield. Weinstein also reviewed school
records, medical records, and other records relevant to Brumfield’s past.
Finally, Weinstein interviewed at least 14 different individuals who knew
Brumfield.      Based on his evaluation, Weinstein diagnosed Brumfield as
intellectually disabled.
       Focusing on the first criterion for intellectual disability, Weinstein
administered two IQ tests to Brumfield in 2007. Id. at 389. Brumfield scored
a 72 (95% confidence interval of 69–77) on the Stanford-Binet V and a 70 (95%
confidence interval of 65–75) on the C-TONI. Both of these scores fall within
the intellectually disabled range and thus meet the first prong of the
intellectual disability test. Weinstein also noted that Brumfield’s scores on
previous IQ tests were consistent with an intellectual disability diagnosis. 8



       7  Weinstein received his Ph.D. in 1971, and at the time of the hearing, he practiced
forensic psychology. The district court accepted him as an expert in intellectual disability
and forensic neuropsychology. Id. Although the State questioned his credentials, correctly
pointing out that he received his Ph.D. from a non-traditional school that is no longer in
operation, we note that he is licensed by the State of California and completed a post-doctoral
certificate at the Fielding Institute.
        8 Based on other psychological testing, Weinstein ruled out malingering as a possible

explanation for Brumfield’s IQ scores.
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Specifically, a 1995 administration of the WAIS-R by then-defense expert Dr.
Bolter resulted in a score of 75 (95% confidence interval of 70–80), and a 2009
administration of the WAIS-IV by State’s expert Dr. Hoppe yielded a score of
70 (95% confidence interval of 67–75). Because all four of Brumfield’s full-scale
IQ scores fell within the intellectually disabled range, Weinstein concluded
that Brumfield had satisfied the first requirement for an intellectual disability
diagnosis.
       With respect to his evaluation of Brumfield’s adaptive functioning,
Weinstein explained that his job as a psychologist “is to identify deficits,” and
not to identify strengths in adaptive behavior, as “the issue . . . of . . . strengths
is not relevant.” His evaluation of Brumfield’s adaptive functioning included
his interviews with Brumfield and his review of relevant records. Additionally,
Weinstein administered ABAS questionnaires to six people who knew
Brumfield during his developmental years.               However, because Weinstein
admitted that the results of the ABAS questionnaires were “not very reliable,” 9
the district court “f[ound] these tests to be of little or no value,” and did not
rely on them in reaching its conclusion on Brumfield’s intellectual disability.
Id. at 393. The court did, however, consider Weinstein’s interviews with the
people to whom he administered the ABAS questionnaires and at least eight
other individuals, as well as his review of the records.
       Based on these interviews and his review of school, hospital, and group
home records, Weinstein “identif[ied] very significant deficits in all three
domains” of adaptive behavior. First, Weinstein noted that Brumfield was



       9 As Weinstein explained, the ABAS was designed to be used contemporaneously while
he was “trying to see how Mr. Brumfield functioned prior to the age of 18,” which required
him to “ask[] people to remember how [Brumfield] functioned” in the past. Because “these
backward-looking questions rely principally upon the memories of the test-takers regarding
Brumfield’s abilities dating back 15–20 years,” id. at 393, the scores derived from the ABAS
are not, in Weinstein’s opinion, very reliable.
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                                   No. 12-30256
developmentally delayed. For example, Brumfield was “two years behind his
chronological age in terms of achievement or even grade levels.” Weinstein
also noted impairment in Brumfield’s “visual motor coordination.”                 In
particular, “Brumfield’s writing abilities are severely limited.” According to
Weinstein, to write a letter Brumfield “needs to have a guide” and “uses a piece
of cardboard that he puts underneath the line” in order to write in a straight
line. Brumfield “takes . . . a very long time to write a letter”; in fact, a one page
letter “take[s him] several days to write.” When writing, Weinstein noted,
Brumfield “gets assistance from people in death row.”
      With respect to Brumfield’s behavior in the community, Weinstein
testified that after “look[ing] at the records [and] talk[ing] to people,” he
concluded that Brumfield “had problems with attention” and “with language
comprehension.” Weinstein also concluded that Brumfield never learned any
skills that could lead to gainful employment. Although Brumfield quit his job
in order to sell drugs so that he could make more money, Weinstein stated that
this did not suggest that Brumfield was able to obtain or maintain gainful
employment.
      Commenting on the third prong of the intellectual disability inquiry,
Weinstein noted that many of the adaptive behavior deficits, such as
Brumfield’s academic progress lagging two years behind his age, were present
during Brumfield’s developmental years. Although not part of the intellectual
disability diagnosis, Weinstein pointed to several risk factors present in
Brumfield’s history that support the conclusion that Brumfield manifested
symptoms of an intellectual disability before he turned 18.           For example,
Brumfield’s mother “had psychiatric problems and was being medicated” and
did not have “access to prenatal care . . . until she was about six months
pregnant.”


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                                        No. 12-30256
       Brumfield’s third expert, Victoria Swanson, Ph.D., also evaluated him
for intellectual disability. 10 Swanson initially reviewed Brumfield’s records,
particularly his school records, and the reports of other experts. Based on this
review, she confirmed the earlier diagnosis of intellectual disability. Although
she did not meet with Brumfield prior to confirming his intellectual disability
diagnosis, she later met with him for five hours, interviewed people familiar
with Brumfield during his developmental years, and broadened her review of
the records. Swanson stated that nothing she reviewed or learned after writing
her report changed her opinion or diagnosis.
       After reviewing all of the full-scale IQ scores Brumfield had received,
Swanson opined that all of his scores fell within the range of intellectual
disability and therefore concluded that Brumfield had satisfied the first prong
of the intellectual disability test.         Turning to the second prong—adaptive
behavior—Swanson discussed Brumfield’s educational history extensively. In
1983, two teachers referred Brumfield for an evaluation within the school
system. As part of this evaluation, Brumfield took a number of psychological
tests, which indicated that Brumfield was functioning academically between
20 and 41 months behind his chronological age. 11 Based on the results of this
evaluation, Brumfield was given the “exceptionality of behavior disorder” and




       10  Swanson is a licensed psychologist in the State of Louisiana, and received her Ph.D.
from Louisiana State University (LSU) in 1999. She has over 20 years of experience working
with intellectually disabled patients. She also assisted the Louisiana legislature in drafting
the bill that eventually became the statute governing intellectual disability at issue in this
case. The district court accepted Swanson as an expert in intellectual disability and
psychology.
        11 The Illinois Test for Polylinguistic Abilities indicated that he was functioning at an

age level 41 months behind his chronological age, the Peabody Picture Vocabulary Test
indicated Brumfield was 20 months below his chronological age level, and the Woodcock
Language Proficiency Battery indicated Brumfield lagged approximately 24 months behind
his chronological age. As measured by the Woodcock-Johnson Psychoeducational Battery in
1983, Brumfield’s reading level fell into the seventh percentile.
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                                       No. 12-30256
placed into a classroom setting appropriate for students with this disorder. 12
After spending three years in the special education classroom, Brumfield again
took a number of psychological tests. Explaining these tests, Swanson noted
that “there hasn’t been any progress academically over the three years that
[Brumfield] continued to be in [the behavior disorder] class, and he seems to
have plateaued at about the same grade level.”                  She further opined that
Brumfield did not make any progress in the behavior disorder classroom
because he, in fact, suffered from an intellectual disability. Explaining that
students with behavior disorder typically catch up to their peers once their
behavioral needs are met, Swanson stated that Brumfield simply plateaued
between a fourth and sixth grade level, which was “consistent with a person
with [an intellectual disability] more so than with a person who is just
behaviorally disordered.”
       Swanson also discussed Brumfield’s reading and writing skills at length.
She noted that, while in prison, Brumfield possessed both elementary-school-
level and collegiate dictionaries, but he was only able to effectively use the
elementary-school-level dictionary.            Discussing his reading ability more
generally based on her interview with Brumfield, she said “he was able to read
60 words a minute, which is extremely low for someone his age, but would be
consistent for someone with a fourth grade reading level trying to read at the
tenth.”     Based on her evaluation of Brumfield, Swanson opined that “a
diagnosis of [intellectual disability] would be appropriate for [Brumfield]. He




       12 Swanson explained that individuals can have both a behavior disorder and an
intellectual disability. Moreover, “[t]here is a high instance of aggression amongst students
with [intellectual disability]” because they “are being asked to do things that they can’t do,”
which leads to frustration and aggression. When a student has both a behavior disorder and
an intellectual disability, she explained, schools often place the student into the behavior
disorder classroom.
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                                      No. 12-30256
meets criteria one; he meets criteria two, and . . . there’s evidence of deficits in
at least two areas prior to the age of 18.”
        2. The State’s Three Expert Witnesses
        The State’s first expert was Donald Hoppe, Psy.D. 13 Hoppe explained
that his primary role in evaluating Brumfield “was the administration of IQ
testing in determining an IQ range.” Hoppe administered the WAIS–IV, which
is one of the “gold standard” IQ tests, to Brumfield on March 13, 2009. On this
test, Brumfield obtained a full-scale IQ score of 70 with a 95% confidence
interval of 67 to 75. Hoppe explained that these “results are not that different
from the results of Dr. Weinstein’s testing,” suggesting that the IQ scores
obtained by both Hoppe and Weinstein are credible. Hoppe noted that he
believed “that these scores represent the low end of what Mr. Brumfield’s
intellectual range is” because “with more effort, his scores would have been
higher.” However, Hoppe explicitly agreed that Brumfield meets the first
requirement of an intellectual disability diagnosis based on the IQ test he
administered and the previous scores that were consistently between 70 and
75.
        Although his primary role was to administer IQ testing to Brumfield,
Hoppe also reviewed the available records from Brumfield’s past and
commented generally on whether Brumfield is intellectually disabled. 14 Hoppe
noted that Brumfield had taken an IQ test in 1984, and although no actual
score was included in the records concerning the test, a report indicated that
Brumfield scored in the “dull normal” range which implied a score between 80



        13 Hoppe received his doctorate from Baylor University in 1981 and is a licensed
psychologist in the State of Louisiana. He estimated that he has performed “hundreds, if not
thousands” of IQ tests over his career. The district court accepted Hoppe as an expert in
“clinical and forensic psychology.”
        14 Hoppe did not interview anyone familiar with Brumfield. He only reviewed written

records.
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                                      No. 12-30256
and 89. Hoppe further noted that although Brumfield had been evaluated
previously by psychologists and psychiatrists, he was only diagnosed with
conduct disorder, 15 never with an intellectual disability.
       Hoppe also discussed Brumfield’s past as it related to the adaptive
functioning prong of the intellectual disability test. Discussing Brumfield’s
two videotaped confessions to the police following the murder of Corporal
Smothers, Hoppe stated that these were “good snapshot[s] of what . . .
[Brumfield] was functioning like at the time of the crime.” Hoppe noted that
Brumfield appeared to be quick-thinking and gave a “detailed description of
the streets in Baton Rouge,” which was not consistent with his having an
intellectual disability. With respect to the crime itself, Hoppe agreed that it
was fairly complicated, requiring planning and coordination.                   Hoppe also
explained that Brumfield’s previous criminal behavior was important to his
conclusion that Brumfield has no intellectual disability. Brumfield appeared
to pick “weak victims” in several successive crimes, suggesting that he has the
capacity to plan and organize.
       Discussing earlier details of Brumfield’s life, Hoppe opined that
Brumfield’s lack of long-term employment, his lack of a checking account, and
the fact that he never entered into a contract, could result from Brumfield
being lazy or the fact that he was only 20 years old when he was arrested. He
stated that these factors did not necessarily suggest that Brumfield has an
intellectual disability.     Hoppe also stated that drug dealing is “a form of
employment” and that selling drugs requires a skill set that is not necessarily
compatible with an intellectual disability diagnosis.



       15Conduct disorder is, essentially, the childhood version of antisocial personality
disorder. “The essential feature of conduct disorder is a repetitive pattern of behavior in
which the basic rights of others or major age-appropriate norms or rules are violated,” i.e.,
conduct disorder is characterized by aggressive behavior.
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                                      No. 12-30256
       The State’s second expert, Robert V. Blanche, M.D., 16 testified primarily
as to whether Brumfield had deficits in adaptive functioning.                   Although
Blanche evaluated Brumfield for intellectual disability, he had never heard of
the AAMR/AAIDD, Red Book, Green Book, or User’s Guide before his deposition
in this case and “was thus unfamiliar with [the AAIDD’s] diagnostic
definitions.” 17 Id. at 388. He stated that instead of the AAIDD’s materials and
definitions, psychiatrists rely on the DSM-IV instead.                In explaining his
evaluation of Brumfield, Blanche noted that he was not familiar with the
standard adaptive behavior scales used by psychologists and had received no
formal training in administering psychological testing.
       In conducting his evaluation, Blanche did not interview anyone other
than Brumfield himself, noting that he did not “feel that [he] would get reliable
information” from such interviews.           Therefore, beyond his interview with
Brumfield, Blanche’s inquiry into Brumfield’s adaptive functioning was
limited to the available written records. In the records Blanche reviewed, there
was no diagnosis of intellectual disability prior to the Atkins hearing despite
multiple evaluations by psychologists and psychiatrists in the past. Blanche
explained that Brumfield’s case was “a classic case of conduct disorder” and
noted that, while many of the psychologists and psychiatrists who had
previously evaluated Brumfield had diagnosed him with some form of conduct
disorder, none of them had diagnosed him with an intellectual disability.
       Reviewing Brumfield’s records from the several group homes where he
resided over the years, Blanche recalled a number of reports that Brumfield
participated in sports and other group activities. Assessing the two videotaped


       16  Blanche received his M.D. from LSU Medical School in 1981 and, at the time of the
hearing, worked part time as a psychiatrist in the East Baton Rouge Parish jail, where he
identified prisoners in need of mental health care. The district court accepted him as an
expert in forensic psychiatry.
        17 Blanche admitted this in a deposition that took place in January 2010.

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                                    No. 12-30256
confessions Brumfield gave to the police following Corporal Smothers’ murder,
Blanche noted that Brumfield had no problems explaining himself to the police
even in the face of complex questions. Based on Brumfield’s description of the
events leading up to Smothers’ murder, Blanche concluded that the crime
clearly involved planning, as Brumfield “scoped out [the] situation.”
Additionally, Blanche explained that Brumfield’s other behaviors in the
community, though often illegal, also demonstrated his adaptive behavior. For
example, Brumfield chose to deal drugs instead of working a typical job not
because he was unable to work a typical job but because dealing drugs was
more lucrative. Similarly, Brumfield was able to “rent” a car by offering its
owner drugs in exchange for the use of the car. Based on his review of the
available records, Blanche concluded that, “to a reasonable medical certainty,
[Brumfield] is not [intellectually disabled].”
      Despite this conclusion, Blanche admitted, on cross-examination, that
“[Y]eah. I think he has some weaknesses. And in adaptive functioning that
there are some—there are some, I will call it deficient. But to how significant
they are, is, I think, a question.” He further agreed that Brumfield possesses
weaknesses in several domains of adaptive functioning. Identifying specific
weaknesses, Blanche stated that Brumfield’s impulsivity fits into the social
domain of adaptive behavior and his inability to follow rules fits into the
practical domain of adaptive behavior.
      The State’s final expert, John Bolter, Ph.D., 18 had previously evaluated
Brumfield in 1995, written a report based on that evaluation, and testified in
the penalty phase of Brumfield’s original trial. However, all of Bolter’s original
records and raw data from his 1995 evaluation were destroyed. Bolter stated



      18 Bolter received his Ph.D. from the University of Memphis, and at the time of the
hearing was a practicing clinical neuropsychologist.
                                           17
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                                  No. 12-30256
he remembered little about Brumfield’s 1995 evaluation and did not
independently recall which materials he reviewed as part of that evaluation.
Over Brumfield’s objection, the court accepted Bolter as an expert but
restricted his testimony to the scope of his 1995 report. Id. at 388.
      In   preparing     his   report,    Bolter    administered     “a   standard
neuropsychological battery of tests to explore . . . brain function, assessing
things such as visual spatial skills, language functioning, memory abilities,
conceptual or executive functions, motor functions, and basic sensory
perception functions.” Based on the tests he ran, Bolter “didn’t see any clear
evidence of organic brain dysfunction.” He “saw that [Brumfield] had what
[Bolter] thought was an attention deficit hyperactivity disorder and . . .
nonspecific learning difficulties . . . borderline intellectual functioning, and . .
. an antisocial personality.” Bolter also administered the WAIS-R to Brumfield
to measure his IQ. His full-scale IQ score was “in the range of 75” which put
Brumfield in the “borderline mentally defective range.” Based on this test and
all of the information available to him in 1995, Bolter did not diagnose
Brumfield with an intellectual disability.
      3. Other Witnesses and Expert Materials
      In addition to its three experts, the State called five other witnesses to
testify at Brumfield’s Atkins hearing. Warrick Dunn was Corporal Smothers’
oldest son. Dunn met with Brumfield on October 23, 2007. Commenting on
Brumfield’s verbal abilities, Dunn stated that the two of them “had a
conversation like two adults” and agreed that Brumfield was able to express
himself well.    Jerry Callahan, a retired Baton Rouge Police Department
lieutenant, was the lead investigator of Corporal Smothers’ murder. Callahan
interrogated Brumfield and was responsible for videotaping Brumfield’s two
confessions. Callahan stated that during the five hours he spent with
Brumfield, Brumfield never had any problems communicating and, in fact,
                                         18
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                                       No. 12-30256
“communicated easily.” None of the State’s final three witnesses testified
substantively on Brumfield’s intellectual disability.
      In addition to his three testifying experts, Brumfield also relied on a
report compiled by James Merikangas, M.D. 19                 In his report, Merikangas
stated that a neurological examination of Brumfield revealed no acquired brain
damage or ongoing disease. The district court recognized that the implication
of this report is that Brumfield’s cognitive deficiencies stem from an underlying
disability, as no physical damage to Brumfield’s brain explains his problems.
Additionally, the report implies that these deficiencies have been present for
the entirety of Brumfield’s life, as no physical damage occurring after his
developmental years explains his problems.
      4. The District Court’s Conclusion on Intellectual Disability
      Beginning with the first prong of the intellectual disability test, the
district court found that, based on its analysis of Louisiana law and the mental
health literature, “an IQ score of 75 or below does not preclude a finding of mild
[intellectual disability] for Atkins purposes.” Brumfield II, 854 F. Supp. 2d at
389. After listing Brumfield’s scores on previous IQ tests, the court explained
that his “scores consistently show him scoring between 70 and 75 on various
IQ tests, a range which falls squarely within the upper bounds of mild
[intellectual disability] according to the AAIDD's clinical definition.” Id. at
389–90. Further, the court noted that “[e]very expert that has testified in this
matter has admitted that Brumfield meets the intellectual functioning prong
of the [intellectual disability] test as set forth in La.C.Cr.P. art. 905.5.1(H)(1).”
Id. at 390.
      Turning to the second prong and relying on the Red Book, the court
explained that “Prong Two involves an assessment of Brumfield's adaptive


      19   Merikangas received his M.D. in 1969 and is board certified in neuropsychiatry.
                                             19
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                                  No. 12-30256
skills in the areas of conceptual, social, and practical skills” and that “[h]e must
show a significant limitation in at least one of those three domains to satisfy
the adaptive skills prong.” Id. at 392 (citing Red Book, supra, at 14). “Without
reliable standardized measures available, the [district c]ourt [relied] on the
testimony of the expert witnesses and their reports, the [c]ourt’s independent
evaluation of Brumfield’s social, educational, medical, and criminal histories,
and a common sense appraisal of Brumfield’s actions and abilities.” Id. at 393.
In doing so, the district court remained cognizant that an intellectual disability
“is ruled in by areas of impairment but is not ruled out by areas of competence”
and that “‘people with [intellectual disabilities] are complex human beings’
who may have ‘strengths in one aspect of an adaptive skill in which they
otherwise show an overall limitation.’” Id. (quoting Red Book, supra, at 8). The
court further noted that it “must take into account the retrospective diagnostic
guideline admonishing practitioners to ‘not use past criminal behavior or
verbal behavior to infer [a] level of adaptive behavior.’” Id. (quoting Red Book,
supra, at 22). However, the court recognized the “propensity of Louisiana
courts to take such maladaptive criminal behavior into account when
discussing the adaptive skills prong of the [intellectual disability] test.” Id. at
394.
       “With these important precepts in mind,” the district court evaluated
each of the three domains of adaptive behavior under the AAIDD guidelines.
Id. at 396.     The court began with the conceptual skills, or “functional
academics,” domain. Id. First, the court found that “Brumfield's writing
abilities are severely limited,” as he “cannot write freehand” and “takes an
inordinate amount of time to write a simple, one-page letter.” Id. Second,
Brumfield does not have adequate reading abilities, as he reads at “a fourth
grade level.”    Id.   Third, “Brumfield has a dismal record of academic
accomplishments in the classroom.” Id. And Brumfield “reached a plateau
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                                  No. 12-30256
somewhere between the fourth and sixth grade, which is where mildly
[intellectually disabled] individuals generally fall.” Id.
      Based on the procedural posture of this case, the district court noted that
it was required to “view, more or less in isolation, whether Brumfield [met] the
clinical criteria.” Id. at 401. In weighing the credibility of the experts in this
case, the district court ultimately found the testimony of Weinstein and
Swanson more credible than the testimony of Blanche on the second prong of
the intellectual disability test. 20 Id. Blanche “lacked basic knowledge about
the AAIDD’s standards until he was deposed in this case shortly before the
hearing.” Id. Blanche also “failed to conduct interviews with anyone other
than Brumfield himself, which [ran] afoul of the basic guidelines for
retrospective diagnoses.” Id. Beyond the expert testimony, the court held that
it could not “accord great weight to the facts of the crime, even though they
must be taken into account, because the diagnostic guidelines for assessing
maladaptive behavior as a part of adaptive skills ha[d] not been sufficiently
shown to be present in th[e] case.” Id.
      “Ultimately, the [district c]ourt f[ound] that, based on the credibility of
petitioner’s witnesses combined with the documented problems with the bases
of testimony by the State’s experts, Brumfield [showed] by a preponderance of
the evidence that he ha[d] significantly limited conceptual skills.” Id. “[O]n
balance, the evidence [demonstrated that Brumfield met] the AAIDD’s
definition of [intellectual disability] with respect to the conceptual domain of
adaptive behavior.”    Id.   “Because Brumfield’s deficit in conceptual skills




      20 The State’s other expert, Hoppe, did not make any determinations on whether
Brumfield had significant limitations in adaptive behavior.
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                                        No. 12-30256
satisfie[d] Prong Two of the [intellectual disability] test, the [district c]ourt
[conducted] only a brief review of the other two domains.” 21 Id.
        The district court next addressed the final prong of the intellectual
disability test: whether the disability manifested prior to age 18. Id. at 403.
The court credited Weinstein’s unrebutted testimony that “there is no question
that [Brumfield] had very serious problems from very early on in life.” Id.
Swanson reached a similar conclusion in her report. Id. Merikangas evaluated
Brumfield in 2007 and concluded that he had no “acquired brain damage or
ongoing disease that might negate the existence of an organic reason for
Brumfield’s [intellectual disability].”          Id.    While Brumfield was evaluated
during his youth by “no less than six doctors,” none of whom diagnosed him as
intellectually disabled, “Swanson [gave] the [c]ourt a compelling reason to not
draw a negative inference due to the lack of childhood diagnosis.” Id. at 403–
04.
        Additionally, “[e]tiological factors appear[ed] to bolster the conclusion
that Brumfield was and is [intellectually disabled].” 22 Id. at 404. Weinstein
testified that Brumfield’s mother “took psychotropic medication during her
pregnancy” and that Brumfield weighed only “three and a half pounds” and
suffered fetal distress at birth. Id. “The etiological risk factors, along with



        21  Analyzing the social skills domain, the court found that “[o]n balance, this domain
[was] a close call, but [it] d[id] not find Brumfield [met] the criteria for a significant overall
deficit in the domain of social skills.” Id. at 402. Considering the practical skills domain,
the court found that “Brumfield ha[d] not met his burden of showing he ha[d] significant
deficits in practical skills.” Id. at 403.
         22 As Greenspan explained, “[e]tiology has to do with cause and effect or things that

put the person at risk that could explain why he became [intellectually disabled].” Greenspan
further explained that “for the most part, when we talk about etiology, we are talking about
something biological,” such as “an infection or a brain malformation that came about in utero
. . . [or] some physical cause that organically places the person at risk” of developing an
intellectual disability. Environmental causes of intellectual disability also exist, such as
severe child abuse; and some etiological risk factors are both environmental and biological
such as “oxygen deprivation at birth, or a low birth weight.”
                                               22
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                                 No. 12-30256
Brumfield’s school and medical records, indicate[d] that his mental health
problems and developmental delays occurred prior to adulthood.” Id. at 405.
“Based on the showing of substantial intellectual functioning and adaptive
behavior deficiencies detailed above, the [district c]ourt credit[ed] the
testimony of Brumfield’s experts and f[ound that] Brumfield ha[d] met his
burden to show by a preponderance of the evidence that those deficits occurred
before he turned 18.” Id. Because the district court concluded that Brumfield
was intellectually disabled, it granted his petition for a writ of habeas corpus,
rendering him ineligible for execution. Id. at 405–06.
   C. Proceedings in the Fifth Circuit and Supreme Court
      The State timely appealed the district court’s grant of the writ to this
court. Brumfield (5th Cir.), 744 F.3d at 922. This court reversed the district
court, concluding that Brumfield’s habeas petition did not satisfy either of
§ 2254(d)’s requirements.    Id. at 927. First, because this court determined
that none of the Supreme Court’s precedents required a state court to grant an
Atkins petitioner funds to develop his claim, it rejected the district court’s
conclusion that the state court had unreasonably applied clearly established
federal law. Id. at 925–26. Second, because this court’s “review of the record
persuade[d it] that the state court did not abuse its discretion when it denied
Brumfield an evidentiary hearing,” it held that the state court’s decision did
not rest on an unreasonable determination of the facts. Id. at 926. Having
concluded that Brumfield failed both of the requirements of 28 U.S.C.
§ 2254(d), this court did not review the district court’s determination that
Brumfield was intellectually disabled. Id. at 927. However, in a footnote, this
court noted that “[e]ven if we were to consider the new evidence presented to
the district court, we likely would hold that Brumfield failed to establish an
Atkins claim.” Id. at 927 n.8.


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                                  No. 12-30256
        The Supreme Court granted certiorari and vacated this court’s decision
on June 18, 2015, in a 5–4 decision. Brumfield (S. Ct.), 135 S. Ct. at 2283. The
Court explained that to obtain an Atkins evidentiary hearing, a defendant in
Louisiana must “put forward sufficient evidence to raise a ‘reasonable ground’
to believe him to be intellectually disabled.” Id. at 2274 (citing Williams, 831
So. 2d at 861). The Court held that the state court’s refusal to grant Brumfield
an Atkins hearing rested on two unreasonable factual determinations that
related directly to the three-part test for intellectual disability. Id. at 2276–
82. First, the Court noted that “the state court apparently believed” that
Brumfield’s IQ score of 75 and an expert witness’s testimony that he “may have
scored higher on another test . . . belied the claim that Brumfield was
intellectually disabled because they necessarily precluded any possibility that
he possessed subaverage intelligence.”       Id. at 2277.    However, the Court
explained, “this evidence was entirely consistent with intellectual disability.”
Id.    The Court further explained—relying on its prior decision in Hall v.
Florida, 134 S. Ct. 1986 (2014), and Louisiana statutory law and caselaw—
that “Brumfield’s reported IQ test result of 75 was squarely in the range of
potential intellectual disability.” Id. at 2278. “To conclude . . . that Brumfield’s
reported IQ score of 75 somehow demonstrated that he could not possess
subaverage intelligence therefore reflected an unreasonable determination of
the facts.” Id.
        Second, the Court held that the state court unreasonably determined
that “the record failed to raise any question as to Brumfield’s ‘impairment . . .
in adaptive skills.’” Id. at 2279. Even under the interpretation of the second
prong of the intellectual disability test “most favorable to the State,” the Court
held that it was unreasonable for the state court to conclude that Brumfield
lacked deficits in adaptive behavior.      Id. at 2279–81.    The Court noted a
number of examples of Brumfield’s deficits in the state trial court record. Id.
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                                          No. 12-30256
at 2279–80. For example, when Brumfield was born, he had a low birth weight
and “slower responses than other babies.” Id. at 2279. Brumfield was placed
“in special classes in school and in multiple mental health facilities.” Id. One
report from one of these facilities “questioned his intellectual functions,” and
Dr. Bolter noted that Brumfield had only a “fourth-grade reading level . . . with
respect to ‘simple word recognition,’” and did not even reach that level with
respect to “comprehension.” Id. at 2280. “All told,” the Court concluded, “the
evidence in the state-court record provided substantial grounds to question
Brumfield’s adaptive functioning” because “[a]n individual, like Brumfield,
who was placed in special education classes at an early age, was suspected of
having a learning disability, and can barely read at a fourth-grade level,
certainly would seem to be deficient in both ‘[u]nderstanding and use of
language’ and ‘[l]earning.’” 23 Id. (alteration in original) (citation omitted).
        Finally, with respect to the third prong of the test, the Court noted that
“the state trial court never made any finding that Brumfield had failed to
produce evidence suggesting he could meet this age-of-onset requirement.” Id.
at 2282. Therefore, there was no “determination on that point to which a
federal court had to defer in assessing whether Brumfield satisfied § 2254(d).”
Id.    The Court noted that “[i]f Brumfield presented sufficient evidence to
suggest that he was intellectually limited, as we have made clear he did, there
is little question that he also established good reason to think that he had been


        23   The Court also noted that:

        An individual who points to evidence that he was at risk of “neurological
        trauma” at birth, was diagnosed with a learning disability and placed in special
        education classes, was committed to mental health facilities and given
        powerful medication, reads at a fourth-grade level, and simply cannot “process
        information,” has raised substantial reason to believe that he suffers from
        adaptive impairments.

Id. at 2281.
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                                        No. 12-30256
so since he was a child.” Id. at 2283. Based on its conclusion that the state
trial court decision “was based on an unreasonable determination of the facts
in light of the evidence,” 28 U.S.C. § 2254(d)(2), the Supreme Court held that
“Brumfield ha[d] satisfied the requirements of § 2254(d).” Brumfield (S. Ct.),
135 S. Ct. at 2283. Accordingly, the Court reversed the judgment of this court
and remanded the case for further proceedings. Id. The sole remaining issue
on remand is whether the district court clearly erred when it found Brumfield
was intellectually disabled, as the Supreme Court held that Brumfield had
satisfied § 2254(d) and that Brumfield “was therefore entitled to have his
Atkins claim considered on the merits in federal court.” Id. at 2273.
                             II. STANDARD OF REVIEW
       “[T]he determination of whether a defendant is [intellectually disabled]
is inherently an intensively factual inquiry.” State v. Williams, 22 So. 3d 867,
887 (La. 2009); see also State v. Turner, 936 So. 2d 89, 98 (La. 2006). Because
intellectual disability is a factual finding, this court reviews a district court’s
determination that an individual is intellectually disabled for clear error. 24
Rivera v. Quarterman, 505 F.3d 349, 361 (5th Cir. 2007).
       “A finding is clearly erroneous only if it is implausible in the light of the
record considered as a whole.” Id. (quoting St. Aubin v. Quarterman, 470 F.3d
1096, 1101 (5th Cir. 2006)); see also Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985) (“[A] finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been committed.” (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 394–95 (1948))). “If


       24The State never mentions the standard of appellate review in its brief, and despite
direct questions at oral argument, the State refused to acknowledge the appropriate standard
of review. In its brief and also at oral argument, the State argued that the district court
refused to introduce the state trial court record into evidence when, in fact, the district court
allowed the State to introduce the vast majority of the state court record into evidence.
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                                  No. 12-30256
the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed
the evidence differently.” Anderson, 470 U.S. at 573–74. “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Id. at 574. The Supreme Court has explained that:
      [W]hen a trial judge’s finding is based on his decision to credit the
      testimony of one of two or more witnesses, each of whom has told
      a coherent and facially plausible story that is not contradicted by
      extrinsic evidence, that finding, if not internally inconsistent, can
      virtually never be clear error.

Id. at 575. This court “cannot second guess the district court’s decision to
believe one witness’ testimony over another’s or to discount a witness’
testimony,” and is thus “reluctant to set aside findings that are based upon a
trial judge’s determination of the credibility of witnesses.” Canal Barge Co. v.
Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).
                     III. INTELLECTUAL DISABILITY
      Although the determination of whether an individual has an intellectual
disability under Atkins is necessarily a question for the court to decide, this
determination is heavily informed by clinical standards and guidelines.         In
Atkins, when the Supreme Court left to states the task of implementing its
holding that intellectually disabled individuals may not be executed, it cited
with approval the clinical standards of the AAIDD and APA. Atkins, 536 U.S.
at 308–09, 317. The Supreme Court of Louisiana first implemented the Atkins
mandate in Williams, 831 So. 2d at 835. Noting that the Atkins Court adopted
a “‘clinical definition’ of [intellectual disability],” the Supreme Court of
Louisiana explicitly relied on the definition of intellectual disability developed
by the AAIDD and the APA in crafting the test for intellectual disability. Id.
at 852.
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                                       No. 12-30256
       Following Atkins and Williams, Louisiana enacted a statute providing
that “[n]otwithstanding any other provisions of law to the contrary, no person
who is [intellectually disabled] shall be subjected to a sentence of death.” La.
Code Crim. Proc. Ann. art. 905.5.1(A). The statute defining intellectual
disability at the time of the Atkins hearing provided as follows:
       (1)“[Intellectual disability]” means a disability characterized by
       significant limitations in both intellectual functioning and
       adaptive behavior as expressed in conceptual, social, and practical
       adaptive skills. The onset must occur before the age of eighteen
       years.

La. Code Crim. Proc. Ann. art. 905.5.1(H). 25                As Swanson stated in her
testimony and as the district court noted, this definition tracks the Red Book’s
definition of intellectual disability. The Red Book provides that “[intellectual



       25The Louisiana legislature amended the statute in June 2014, which currently reads
as follows:

       A. Notwithstanding any other provisions of law to the contrary, no person with
       an intellectual disability shall be subjected to a sentence of death.
       ...
       H. (1) “Intellectual disability”, formerly referred to as “mental retardation”, is
       a disability characterized by all of the following deficits, the onset of which
       must occur during the developmental period:
               (a) Deficits in intellectual functions such as reasoning, problem
               solving, planning, abstract thinking, judgment, academic
               learning, and learning from experience, confirmed by both
               clinical    assessment      and    individualized,    standardized
               intelligence testing.
               (b) Deficits in adaptive functioning that result in failure to meet
               developmental and sociocultural standards for personal
               independence and social responsibility; and that, without
               ongoing support, limit functioning in one or more activities of
               daily life including, without limitation, communication, social
               participation, and independent living, across multiple
               environments such as home, school, work, and community.

La. Code Crim. Proc. Ann. art. 905.5.1. The district court relied on the older version of the
statute, and we do the same here. However, we note that while the new statute is worded
differently, the test for intellectual disability remains largely unchanged.
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                                  No. 12-30256
disability] is a disability characterized by significant limitations both in
intellectual functioning and in adaptive behavior as expressed in conceptual,
social, and practical adaptive skills,” and that “[t]his disability originates
before age 18.” Red Book, supra, at 1. Since this statute was enacted, the
Supreme Court has reiterated that “[t]he clinical definitions of intellectual
disability . . . were a fundamental premise of Atkins.” Hall, 134 S. Ct. at 1999.
In this case, the Supreme Court again cited with approval the clinical
guidelines on intellectual disability. Brumfield (S. Ct.), 135 S. Ct. at 2274,
2278. Therefore, the district court properly relied on the clinical guidelines of
the AAIDD and APA in assessing whether Brumfield satisfied the statutory
test for intellectual disability, and we similarly look to these guidelines in our
review of the district court’s decision. In reviewing the district court’s decision,
we address seriatim the three prongs of the test for intellectual disability.
   A. First Prong: Intellectual Functioning
      The assessment of an individual’s intellectual functioning requires the
administration of standardized intelligence testing.             “The ‘significant
limitations in intellectual functioning’ criterion for a diagnosis of intellectual
disability is an IQ score that is approximately two standard deviations below
the mean, considering the standard error of measurement for the specific
instruments used.” Green Book, supra, at 31; accord Red Book, supra, at 58
(“[T]he ‘intellectual functioning’ criterion for diagnosis of [intellectual
disability] is approximately two standard deviations below the mean,
considering the [standard error of measurement] for the specific assessment
instruments used.”).      As Greenspan explained, IQ tests are normalized so
that the mean score is 100 and the standard deviation is 15; thus, two standard
deviations below the mean equates to a score of 70. This is consistent with the
assessment of Louisiana law by the Supreme Court of the United States, as it
explained that, “[t]o qualify as ‘significantly subaverage in general intellectual
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                                  No. 12-30256
functioning’ in Louisiana, ‘one must be more than two standard deviations
below the mean for the test of intellectual functioning.’” Brumfield (S. Ct.),
135 S. Ct. at 2277 (quoting Williams, 831 So. 2d at 853).
      Although a score of 70 is two standard deviations below the mean score,
both the Supreme Court of the United States and the Louisiana Supreme Court
have rejected a bright-line numerical cutoff for intellectual disability. See Hall,
134 S. Ct. at 1996; Williams, 22 So. 3d at 888. As the Supreme Court of the
United States explained in Hall, “[t]he concept of standard deviation describes
how scores are dispersed in a population,” but “[s]tandard deviation is distinct
from standard error of measurement, a concept which describes the reliability
of a test.” 134 S. Ct. at 1994. The Court further explained that the standard
error of measurement “reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score.”           Id. at 1995.
Therefore, “an individual’s score is best understood as a range of scores on
either side of the recorded score.” Id. Thus, scores higher than 70 can satisfy
the first prong of the intellectual disability test. The Supreme Court in Hall
explicitly rejected the contention that an IQ score of 75 precludes the
possibility of an intellectual disability diagnosis. Id. at 1996. Similarly, the
Louisiana Supreme Court in State v. Dunn (Dunn III), 41 So. 3d 454, 470 (La.
2010), stated that “[t]he ranges associated with the two scores of 75 brush the
threshold score for [an intellectual disability] diagnosis.”        Moreover, the
AAIDD recognizes that a score of 75 is consistent with an intellectual
disability. Red Book, supra, at 59; see also DSM-IV-TR, supra, at 41–42.
      In this case, the district court concluded that Brumfield satisfied the first
prong of the intellectual disability test based on his IQ scores. As found by the
district court, Brumfield’s IQ test scores were as follows:




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                                        No. 12-30256
       — In a 1995 WAIS–R test administered by then-defense expert Dr.
       Bolter, he scored a 75, with a 95% confidence interval of 70–80.
       — In a 2007 Stanford–Binet V test administered by petitioner’s
       expert, Dr. Weinstein, he scored a 72, with a 95% confidence
       interval of 69–77.
       — In a 2007 C–TONI test administered by Dr. Weinstein, he
       scored a 70, with a 95% confidence interval of 65–75.
       — In a 2009 WAIS–IV test administered by the State’s expert, Dr.
       Hoppe, he scored a 70, with a 95% confidence interval of 67–75.

Brumfield II, 854 F. Supp. 2d at 389–90. All four of the confidence intervals
(the range of scores calculated from the standard error of measurement)
surrounding Brumfield’s full-scale IQ scores include scores of 70 or below, and
therefore satisfy the first prong of the intellectual disability test based on how
both the Supreme Court and Supreme Court of Louisiana have analyzed IQ
scores in the past. 26 Even ignoring the confidence intervals, no score exceeds
75, and the Supreme Court noted in Atkins, Hall, and Brumfield (S. Ct.), that
a score of 75 can satisfy the first prong of the intellectual disability test.
Brumfield (S. Ct.), 135 S. Ct. at 2278; Hall, 134 S. Ct. at 1996; Atkins, 536 U.S.
at 309 n.5.      Moreover, every single expert agreed that Brumfield’s scores
satisfied the first prong of the intellectual disability test. 27 As this court noted



       26  Weinstein explained that as long as the lower bound of the confidence interval
includes a score of 70 or less, an individual can satisfy the first prong of the intellectual
disability test.
        27 The district court, experts, and parties discussed the import of the “Flynn effect,”

which describes the phenomenon whereby the American public’s score on any given IQ test
increases by approximately three points per decade. Brumfield II, 854 F. Supp. 2d at 391.
“Thus, when an older test is used to measure a test subject, the subject’s IQ score may be
artificially inflated because that test was normalized using a past sample of Americans.” Id.
at 391. To correct for the Flynn effect, a test subject’s score may be adjusted downward by
0.30–0.33 for every year that has elapsed since the test was normalized. Id. The State
correctly points out that the Fifth Circuit has not recognized the Flynn effect. In re Salazar,
443 F.3d 430, 433 n.1 (5th Cir. 2006); see also In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir.
2007). It is not necessary to decide whether to recognize the Flynn effect in this case,
however, as Brumfield’s scores satisfy the first prong of the intellectual disability test without
a Flynn effect adjustment.
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                                  No. 12-30256
in Rivera, 505 F.3d at 361, “[a] finding is clearly erroneous only if it is
implausible in the light of the record considered as a whole.” Given that all of
Brumfield’s reported IQ scores fell at or below 75 and that the experts’
conclusions were based on these scores, the district court’s conclusion that
Brumfield met the first criterion for an intellectual disability diagnosis is not
implausible and therefore is not clearly erroneous.
      The State argues that “assessments consistently demonstrated that
Brumfield had an IQ in the 70-85 range.” However, the State does not point
to specific IQ scores which demonstrate that Brumfield’s IQ fell within this
range. Presumably, it refers to the tests administered to Brumfield in the
1980s. As Weinstein explained, no actual IQ scores from these tests were
reported anywhere in Brumfield’s records; instead, the reports based on these
IQ tests provided only descriptions of the ranges into which Brumfield’s scores
fell. For example, Weinstein explained that one report described Brumfield’s
IQ score as falling into the “dull normal” range, which Weinstein further
explained corresponded to a score between 80 and 89. The district court’s
discrediting of this range of scores in favor of reported, full-scale IQ scores was
not clear error, as the Supreme Court similarly disregarded supposedly higher
IQ scores when no actual score was provided. See Brumfield (S. Ct.), 135 S. Ct.
at 2278–79. Moreover, multiple expert witnesses discredited this range of
scores in favor of the reported scores, and this court “cannot second guess the
district court’s decision to believe one witness’ testimony over another’s or to
discount a witness’ testimony.” Canal Barge, 220 F.3d at 375.
      The State also argues that Brumfield’s scores may be explained by his
low effort on the IQ tests. However, the experts in this case—including the
State’s expert who administered IQ tests—also administered tests for
malingering and found that Brumfield was, in fact, not malingering. Moreover,
Greenspan explained that Brumfield’s consistent scores across multiple tests
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                                       No. 12-30256
over multiple years ruled out malingering. We decline the State’s invitation to
second guess the district court’s decision to believe the multiple experts who
stated that Brumfield’s scores were not a product of malingering. Accordingly,
we find no clear error in the district court’s finding that Brumfield satisfied the
first prong of the intellectual disability test.
   B. Second Prong: Adaptive Behavior
       “Adaptive behavior is the collection of conceptual, social, and practical
skills that have been learned and are performed by people in their everyday
lives.” Green Book, supra, at 43; see also Red Book, supra, at 73. Under the
AAIDD’s definition, 28 a diagnosis of intellectual disability requires that an
individual have significant limitations in at least one of the three domains of
adaptive skills—conceptual, social, and practical skills. 29 Red Book, supra, at
14. The district court found that Brumfield showed significant limitations in
the conceptual domain but not in the social or practical domains. Brumfield
II, 854 F. Supp. 2d at 396–403.
       The first deficit the court found in the conceptual domain was
Brumfield’s writing abilities, as Brumfield could not write in a straight line
without an aid, took an “inordinate amount of time to write a simple, one-page
letter,” and relied on the assistance of other inmates when writing letters. Id.
at 396. In coming to this conclusion, the district court relied on Weinstein’s


       28 The district court correctly noted that, as with the intellectual functioning prong,
the AAIDD prefers that practitioners employ standardized testing to evaluate adaptive
functioning. See Red Book, supra, at 76. However, utilizing standardized testing, such as
the ABAS questionnaires administered by Weinstein, is difficult in situations requiring a
retrospective diagnosis. In these situations, the district court correctly explained that the
User’s Guide, supra, at 17–22, calls for additional inquiry into the subject’s past and
interviews alongside the types of questionnaires used in situations of contemporaneous
diagnosis. That additional inquiry and those interviews were conducted by two of Brumfield’s
experts in this case.
       29 Neither the State nor Brumfield contests the use of the “three domain” test on

remand. The State structures its argument that Brumfield has no deficits in adaptive skills
around this test.
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                                  No. 12-30256
testimony, and in concluding that the State’s reliance on the “quality of his
expressions in his prison correspondence is misplaced,” the court credited the
testimony of Swanson. Id. The court next found that Brumfield’s reading
skills were deficient. Id. The court explained that after listening to Brumfield
read some of his letters, Swanson concluded he read at approximately a fourth
grade level. Id. Finally, the district court found that “Brumfield has a dismal
record of academic accomplishments.” Id. The court relied on the testimony
of Weinstein, who stated that Brumfield was always behind in school because
of developmental delays, and Swanson, who noted that Brumfield “reached a
plateau somewhere between fourth and sixth grade, which is where mildly
[intellectually disabled] individuals generally fall.” Id.
      In reaching its conclusion that Brumfield demonstrated significant
limitations in the conceptual skills domain, the district court carefully
explained its reasoning, identified the specific evidence it relied upon, and
specifically credited the testimony of certain experts. Because nothing in the
district court’s reasoning suggests its conclusion “is implausible in the light of
the record considered as a whole,” Rivera, 505 F.3d at 361 (quoting St. Aubin,
470 F.3d at 1101), and because this court must give “due regard . . . to the
opportunity of the trial court to judge of the credibility of the witnesses,”
Anderson, 470 U.S. at 573 (quoting Fed. R. Civ. P. 52(a)), we hold that the
district court’s finding is not clearly erroneous. Brumfield was only required
to demonstrate significant limitations in one of the three domains of adaptive
behavior to satisfy the legal and clinical tests for intellectual disability. Thus,
the district court’s finding that Brumfield met “the AAIDD’s definition of
[intellectual disability] with respect to the conceptual domain of adaptive
behavior,” Brumfield II, 854 F. Supp. 2d at 401, was sufficient for the district
court to conclude that Brumfield had satisfied the second prong of the
intellectual disability test.
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                                         No. 12-30256
       In challenging the district court’s conclusion, the State argues that
Brumfield’s academic problems, which led to his being placed in special
education classes, stemmed primarily from his behavior problems and conduct
disorder, not an intellectual disability. However, the district court credited the
testimony of Swanson, who explained that, at the time Brumfield attended
school, school systems were urged to substitute diagnoses of conduct disorder
for intellectual disability essentially for political reasons. 30              Id. at 397.
Moreover, the Supreme Court noted that “[t]he diagnostic criteria for
[intellectual disability] do not include an exclusion criterion; therefore, the
diagnosis should be made . . . regardless of and in addition to the presence of
another disorder.” Brumfield (S. Ct.), 135 S. Ct. at 2280 (quoting DSM-IV-TR,
supra, at 47).         Both the State and Brumfield tell “coherent and facially
plausible stor[ies],” Anderson, 470 U.S. at 575, as either behavioral problems
or an intellectual disability could explain all or some of Brumfield’s poor
academic record. “When ‘the district court is faced with testimony that may
lead to more than one conclusion, its factual determinations will stand so long
as they are plausible—even if we would have weighed the evidence otherwise.’”
Heck v. Triche, 775 F.3d 265, 284 (5th Cir. 2014) (quoting Nielsen v. United
States, 976 F.2d 951, 956 (5th Cir. 1992)); see also Anderson, 470 U.S. at 574


       30   The district court explained that:

       Swanson [gave] the Court a compelling reason to not draw a negative inference
       due to the lack of childhood [intellectual disability] diagnosis. She points out
       that during Brumfield’s school years in the late 1970s, African–Americans
       males were b[e]ing disproportionately diagnosed with [intellectual
       disabilities]. School officials, psychologists, and appraisal teams were
       accordingly cautious not to over-represent black males as being [intellectually
       disabled] and were instead urged to consider other alternatives that would
       avoid placing the [intellectually disabled] label on them. Swanson confirmed
       that East Baton Rouge Parish schools, which Brumfield attended, had received
       this admonition.

Id. at 404.
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                                  No. 12-30256
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
      The State also points to elements of Brumfield’s past that it argues
demonstrate adaptive functioning.        For example, Blanche testified that
Brumfield “owned” a car, engaged in cash transactions by renting motel rooms,
and helped his girlfriend financially. Although the district court acknowledged
these activities, among others, it explained that “[m]ildly [intellectually
disabled] people generally have mental ages ranging from seven to eleven,” and
“[i]t is not inconceivable for someone around the age of ten to have the mental
capacity” to engage in these types of activities. Brumfield II, 854 F. Supp. 2d
at 398.
      The State also argues that Brumfield’s activities while in prison belie
any intellectual disability, as he wrote letters, possessed books (including two
dictionaries), and explained complex tasks to people over the phone. With
respect to Brumfield’s writing letters, the district court credited the testimony
of Weinstein and Swanson that “Brumfield requires assistance from other
death row inmates to write his letters, . . . and thus the reliance by the States’
experts on the quality of his expressions in his prison correspondence is
misplaced.” Id. at 396. The court further found that, based on Swanson’s
testimony, “[t]he reading materials in his prison cell are targeted to middle
school audiences and are consistent with someone who has [an intellectual
disability].” Id. Finally, with respect to Brumfield’s phone calls, the district
court found that they were “simply not sufficient to show adaptive strength in
communication abilities,” and that “one or two instances of him exhibiting oral
communication skills expected of adults could hardly be said to outweigh the
other documented adaptive weaknesses in the conceptual domain,” as
“strengths can coexist alongside weaknesses.”        Id. at 399.   Although the
evidence emphasized by the State tends to undermine the district court’s
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                                  No. 12-30256
conclusion that Brumfield had significant limitations in adaptive functioning,
we are “not entitle[d to]. . . reverse the finding of the trier of fact” even if we
“would have weighed the evidence differently.” Anderson, 470 U.S. at 573–74.
Because nothing the State emphasizes establishes that the district court’s
account of the evidence is implausible, we hold that the district court’s
finding—that Brumfield’s poor academic performance and his deficiencies in
reading and writing constitute deficits in adaptive behavior—is not clearly
erroneous. See id. at 573–74 (“If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently.”).
      Furthermore, we note that the district court’s finding is not clearly
erroneous because it has more evidentiary support than prior cases in which
this court upheld a district court’s intellectual disability determination. In
Wiley v. Epps, 625 F.3d 199, 219–22 (5th Cir. 2010), this court found no clear
error when a district court held that petitioner Wiley had an intellectual
disability based on deficits in functional academic skills, communication, and
self-direction. In that case, Wiley was evaluated four separate times with
conflicting results. Id. at 219–21. Based on these results and evidence that he
struggled academically while in the military, the district court found that he
was deficient in the area of functional academic skills. Id. at 221. This court
refused to reverse the district court because doing so would essentially
substitute the opinion of the State’s expert for Wiley’s experts. Id. at 218. As
the district court was in a better position to judge the credibility of the experts,
this court declined to reverse the district court. Id. In Rivera, the district court
found that Rivera had “adaptive limitations,” including “consistent[] . . .
academic problems.” 505 F.3d at 362. After remarking that the district court
“is in a better position than this court to judge and weigh the credibility of the
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                                       No. 12-30256
witnesses who testified,” this court declined to find a clear error. Id. at 363.
However, neither Wiley nor Rivera involved Louisiana law.
       Dunn III, on the other hand, did involve Louisiana law, and this court
noted previously that, based on this case, it would likely determine that the
district court erred in finding Brumfield intellectually disabled, 31 Brumfield
(5th Cir.), 744 F.3d at 927 n.8. In that case, the Supreme Court of Louisiana
reviewed a trial court’s determination that Dunn was not intellectually
disabled following an Atkins hearing. Dunn III, 41 So. 3d at 455–56. Dunn
had reported IQ scores of 70, 78, and 78. Id. at 462–63. Multiple experts
administered ABAS scales, but like this case, the evidence on Dunn’s adaptive
behavior conflicted. Id. at 463–70. After reviewing that evidence, the court
noted that “[i]t is also important to consider the defendant’s behavior during
the planning and commission of the instant crime as it relates to his adaptive
skills functioning.” Id. at 471. In evaluating Dunn’s crime, the court found
that “the evidence at trial established defendant engaged in the leadership and
planning of a major bank robbery” and held that the defendant’s planning
“with its premeditative aspects, clearly lacks the impulsiveness and non-


       31 The State argues that the district court failed to consider other Louisiana cases
addressing the question of how to factor criminal behavior into an evaluation of an
individual’s adaptive functioning. However, the court recognized the “propensity of
Louisiana courts to take such maladaptive criminal behavior into account when discussing
the adaptive skills prong of the [intellectual disability] test.” Brumfield II, 854 F. Supp. 2d
at 394. Addressing this propensity, the district court identified five cases where the Supreme
Court of Louisiana “affirmed on direct appeal a jury’s assessment of death in the penalty
phase of the trial where the [intellectual disability] issue was actually litigated.” Id.; see
generally Williams, 22 So. 3d 867; State v. Anderson, 996 So. 2d 973 (La. 2008); State v. Lee,
976 So. 2d 109 (La. 2008); State v. Scott, 921 So. 2d 904 (La. 2006); State v. Brown, 907 So.
2d 1 (La. 2005). However, the district court found these cases distinguishable because the
Supreme Court of Louisiana was required under Jackson v. Virginia, 443 U.S. 307 (1979), to
apply a different standard of review than the standard that applies to Atkins hearings.
Brumfield II, 854 F. Supp. 2d at 394. The court found that Dunn III “[was] the only Louisiana
Supreme Court case on point.” We agree and find no error with the manner in which the
district court factored Brumfield’s criminal behavior into its analysis of his adaptive
functioning.
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                                      No. 12-30256
leadership interactions associated with [intellectually disabled] persons” based
on “the firmly established facts of this case.” Id. at 471–72.
       The district court carefully considered this case and concluded that it
could consider “evidence of the criminal action in the overall assessment if
‘firmly established facts’ show[ed] clear instances of premeditation and
leadership.” Brumfield II, 854 F. Supp. 2d at 395. In considering the evidence
of Brumfield’s criminal activity, the district court concluded that it was not
sufficient to demonstrate an absence of deficits in the conceptual skills domain,
id. at 398–401, and that nothing in the record suggested Brumfield “‘led’ this
terrible scheme.” Id. at 400. The district court further reasoned that even if
the crime involved planning and premeditation by Brumfield, “this particular
instance [should not be] sufficient to overwhelm the other demonstrated
showings of adaptive deficits in conceptual skills.” Id.
       Beyond the facts of Smothers’ murder, the State argues that other
aspects of Brumfield’s criminal history demonstrate that he does not have
significant limitations in adaptive functioning. First, the State contends that
Brumfield’s two confession videos show his composure under pressure, ability
to lie, and think quickly.       However, the district court credited Swanson’s
testimony that, in the first tape, Brumfield responded to cues from police and
that, in the second tape, Brumfield spoke more quickly because he was more
familiar with the topic at that point.           Id.   Second, the State argues that
Brumfield’s history of drug dealing and other criminal behavior demonstrates
his ability to plan, his ability to handle complex transactions, and his adaptive
functioning generally. 32 Although the State is correct that Brumfield dealt
drugs in the past, the court noted that “[t]he record is barren of any testimony


       32The State notes that Brumfield demonstrated an ability to choose weak and
vulnerable victims for his past crimes. We see nothing in the record concerning this ability
that demonstrates clear error on the part of the district court.
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                                    No. 12-30256
regarding his efficacy in drug transactions,” id. at 398, and both Greenspan
and Weinstein testified that Brumfield’s drug dealing was not inconsistent
with an intellectual disability diagnosis.         Third, the State argues that
Brumfield’s ability to avoid the police after his crime demonstrates adaptive
functioning, but the district court found that “[w]hile evading police and
avoiding capture can exhibit raw physical skills, at other times those acts are
just as consistent with primal survival instincts as they are with callous, cold-
blooded calculation.” Id. at 399.
      Overall, the district court considered the facts surrounding Smothers’
murder as well as Brumfield’s other criminal activities.          Thus, while the
district court considered similar evidence as the trial court in Dunn III, it
simply reached a different conclusion. Although this difference in findings
based on relatively similar evidence certainly weighs against the conclusion
that Brumfield is intellectually disabled, it does not necessarily demonstrate
that the district court clearly erred based on the record before it. The Dunn III
court recognized that trial courts are called on “to make exceedingly fine
distinctions” between those who are mildly intellectually disabled and those
who are not. Dunn III, 41 So. 3d at 469. We agree with the Dunn III court on
this point.    Accordingly, we decline to disturb the “exceedingly fine
distinctions,” id., the district court made in this “intensively factual inquiry,”
Williams, 22 So. 3d at 887. Even if we were to disagree about how to weigh
the evidence in this case, the clear error standard “plainly does not entitle a
reviewing court to reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.” Anderson, 470 U.S.
at 573.
   C. Third Prong: Onset during Developmental Years
      The final prong of the intellectual disability test requires that the
disability manifest before the age of 18. The district court did not clearly err
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                                  No. 12-30256
in finding that Brumfield’s disability manifested during his developmental
years. In fact, one of the principal findings of the district court with respect to
Brumfield’s deficits in the conceptual skills domain—his poor academic record
while in school—necessarily involved finding that the disability manifested
before age 18. Brumfield II, 854 F. Supp. 2d at 396. Similarly, the district
court credited Swanson’s testimony that while in the eighth grade, Brumfield
read at only a third grade level. Id.
      Although none of the IQ tests was administered to Brumfield prior to the
age of 18, Greenspan testified that IQ scores remain stable over time.
Additionally, Merikangas evaluated Brumfield and found no physical problems
with his brain that would explain his consistent IQ scores between 70 and 75,
meaning that Brumfield’s disability stems from some underlying problem he
has had all of his life. Finally, the district court pointed to etiological factors
such as, inter alia, Brumfield’s low birth weight, fetal distress at birth, and
family history of intellectual disability.       Id. at 404–05.     Although not
dispositive, these factors certainly bolster the court’s conclusion that
Brumfield’s intellectual disability manifested during his developmental years.
Id. at 405.
   D. Expert Credibility and Brumfield’s Medical History
      On remand, the State correctly highlights a number of weaknesses in
Brumfield’s expert witnesses that undermine their credibility. For example,
Greenspan never evaluated Brumfield, Weinstein obtained his Ph.D. from an
unaccredited institution, and Swanson diagnosed Brumfield prior to meeting
with him. However, the district court explicitly weighed the credibility of
different witnesses.   Id. at 401.      For example, the court pointed out that
Blanche “lacked basic knowledge about the AAIDD’s standards until he was
deposed in this case shortly before the hearing,” id. at 401, and that Hoppe
failed to interview anyone other than Brumfield, id. at 387 n.21. Giving “due
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                                   No. 12-30256
regard” to the “opportunity of the trial court to judge the credibility of the
witness[es],” Anderson, 470 U.S. at 573 (quoting Fed. R. Civ. P. 52(a)), we
decline to disturb the district court’s findings, see also Dunbar Med. Sys. Inc.
v. Gammex Inc., 216 F.3d 441, 453 (5th Cir. 2000) (“The burden of showing that
the findings of the district court are clearly erroneous is heavier if the
credibility of witnesses is a factor in the trial court’s decision.” (quoting Coury
v. Prot, 85 F.3d 244, 254 (5th Cir. 1996))).
      All of the experts in this case agreed that Brumfield had never been
diagnosed with an intellectual disability prior to the Atkins hearing, and the
district court was rightly wary about a “made-for-litigation diagnos[i]s.”
Brumfield II, 854 F. Supp. 2d at 404. However, Swanson gave the court “a
compelling reason to not draw a negative inference due to the lack of childhood
diagnosis” by explaining the political incentives in place at the time Brumfield
was in school. Id. In doing so, Swanson told a “coherent and facially plausible”
story. Anderson, 470 U.S. at 575. Therefore, the district court’s refusal to give
preclusive effect to the lack of a previous diagnosis of intellectual disability is
not clearly erroneous. Id.
      Overall, while the State points to evidence that undermines the district
court’s conclusion that Brumfield is intellectually disabled, it has not pointed
to sufficient evidence to establish that the district court’s finding of intellectual
disability was not “plausible in light of the record viewed in its entirety.” Id.
at 574. Therefore, we hold that the district court committed no clear error.
                                  IV. CONCLUSION
      In this case, we are called upon to determine whether the district court’s
conclusion that Brumfield is intellectually disabled is clearly erroneous, i.e.,
whether we have a firm and definite conviction that the district court made a
mistake here. Both the State and Brumfield present plausible views of the
evidence, although, on balance, Brumfield’s witnesses were somewhat stronger
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                                  No. 12-30256
and presented a slightly more compelling view. Given that there are two
permissible views of the evidence here and the Supreme Court’s guidance that
the choice by a trier of fact between two permissible views of the evidence
cannot be clearly erroneous, we find no clear error in the district court’s
conclusion that Brumfield is intellectually disabled.
      Because the State has not demonstrated clear error on the part of the
district court, we AFFIRM the ruling of the district court that Brumfield is
intellectually disabled and, accordingly, ineligible for execution.




                                       43
