     Case: 12-30256       Document: 00512492984         Page: 1     Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                       No. 12-30256                              FILED
                                                                           January 8, 2014

KEVAN BRUMFIELD,                                                            Lyle W. Cayce
                                                                                 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 STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
CARL E. STEWART, Chief Judge:
       The State of Louisiana appeals the district court’s imposition of a
permanent injunction, enjoining the State from executing Petitioner-Appellee
Kevan Brumfield.         The district court granted habeas relief in favor of
Brumfield, finding that he is mentally retarded 1 and therefore ineligible for
execution based on Atkins v. Virginia, 536 U.S. 304 (2002). For the reasons
stated herein, we REVERSE the district court’s judgment.



       1  As some of our sister Circuits have noted, the preferred terminology for mental
retardation is now “intellectual disability.” See Pizzuto v. Blades, 729 F.3d 1211, 1214 n.1
(9th Cir. 2013) (citation omitted); Hooks v. Workman, 689 F.3d 1148, 1159 n.1 (10th Cir. 2012)
(citation omitted). Nevertheless, because mental retardation is used by the parties and the
applicable legal authority, we use mentally retarded throughout our opinion.
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            I.     FACTUAL AND PROCEDURAL BACKGROUND
   A. Trial and Direct Appeal
      In 1995, a jury convicted Brumfield of the first degree murder of a Baton
Rouge police officer—Corporal Betty Smothers—and sentenced him to death.
The Louisiana Supreme Court affirmed his conviction on direct appeal. State
v. Brumfield, 737 So. 2d 660 (La. 1998). He appealed to the United States
Supreme Court, but it denied his petition for a writ of certiorari. Brumfield v.
Louisiana, 526 U.S. 1025 (1999).
   B. State Post-Conviction Proceedings
      In 2000, Brumfield filed for post-conviction relief in Louisiana state court
alleging, inter alia, that he was ineligible for execution due to insanity. In his
petition, he also requested funds to further develop his claims. Before the state
court considered Brumfield’s petition, the Supreme Court issued its decision in
Atkins, which prohibited the execution of mentally retarded criminals.
Brumfield then amended his state petition to assert an Atkins claim and that
he was entitled to an evidentiary hearing on his mental retardation claim. As
evidence of his claim, Brumfield provided the following: 1) his IQ score,
obtained prior to trial, of 75; 2) his slow progress in school; 2 3) his premature
birth; 3 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, 4 and was hospitalized




      2  There was testimony that Brumfield read on a fourth grade level, was placed in
special education classes, and was diagnosed with a learning disability.
       3 We note that, while Brumfield claimed he was born prematurely, this assertion is

contradicted by the record. However, he accurately stated that his birth weight was 3.5
pounds.
       4 This assertion is also belied by the record, which only reflects that one seizure

occurred.
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                                  No. 12-30256
for months after his birth. In the petition, Brumfield again requested funds to
develop his claims.
      On October 23, 2003, the state trial court conducted a hearing on
Brumfield’s pending petition.       At the hearing, the trial court denied
Brumfield’s petition in its entirety and stated as to the Atkins claim:
      I guess the biggest [issue] we need to address is the claims of
      mental retardation and Atkins and whether or not the defendant
      is entitled to a hearing to determine that issue, and I’ve read the
      cases that were cited and also both sides’ arguments, and even in
      Atkins it is clear that everybody that’s facing the death penalty is
      not entitled to an Atkins hearing.
      The cases say that that’s to be taken up on a case-by-case method,
      and the burden of proving that [] is an issue that needs to be
      addressed is on the defendant here. I’ve looked at the application,
      the response, the record, portions of the transcript on that issue,
      and the evidence presented, including Dr. Bolter’s testimony, Dr.
      Guinn’s testimony, which refers to and discusses Dr. Jordan’s
      report, and based on those, since this issue—there was a lot of
      testimony by all of those in Dr. Jordan’s report. Dr. Bolter in
      particular found [Brumfield] had an IQ of over—or 75. Dr. Jordan
      actually came up with a little bit higher IQ. I do not think that the
      defendant has demonstrated impairment based on the record in
      adaptive skills. The doctor testified that he did have an anti-social
      personality or sociopath, and explained it as someone with no
      conscience, and the defendant hadn’t carried his burden placing
      the claim of mental retardation at issue. Therefore, I find he is not
      entitled to [an Atkins] hearing based on all of those things that I
      just set out.

      The trial court did not address Brumfield’s request for funding, and
Brumfield’s counsel did not raise the issue or specifically object to the court’s
failure to address it.
      Brumfield then filed a writ with the Louisiana Supreme Court, alleging,
inter alia, that the district court erred in failing to hold an Atkins hearing
because he had presented substantial evidence supporting the claim. In the
application, Brumfield requested an Atkins hearing as well as funding. The
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                                 No. 12-30256
Louisiana Supreme Court denied petitioner’s writ without explanation.
Brumfield v. State, 885 So. 2d 580 (La. 2004).
   C. Federal Post-Conviction Proceedings
      On November 4, 2004, Brumfield timely filed a petition for a writ of
habeas corpus with the federal district court. The petition asserted, among
other things, that the state court erred in failing to grant relief as to
Brumfield’s Atkins claim and in failing to hold an Atkins hearing. Brumfield
also requested funds to enable him to properly present his claims.
      After Brumfield filed his petition, the district court appointed counsel,
and the Federal Public Defender Board provided expert funding. In 2007,
Brumfield amended his petition to incorporate the expert findings.           The
magistrate judge (“MJ”) issued a Report and Recommendation, which first
found, when considering the evidence Brumfield submitted to the state court,
the state court’s refusal to grant an Atkins hearing to be “reasonable and in
accordance with clearly established federal law.” However, the MJ concluded
that it should consider the additional evidence Brumfield presented in his
amended habeas petition. In the MJ’s view, Brumfield demonstrated cause for
failing to provide the state court with the new evidence because he did not have
the requisite funding. Additionally, if Brumfield was barred from presenting
the new evidence, he would be prejudiced due to a state statute of limitation.
After reviewing the additional evidence, the MJ concluded that Brumfield had
established a prima facie case of mental retardation such that he was entitled
to an Atkins hearing.     The district court adopted the MJ’s report and
recommendations, and it held a six-day Atkins evidentiary hearing in 2010.
      On February 22, 2012, the district court granted Brumfield’s petition for
a writ of habeas corpus on the ground that he is mentally retarded and
therefore ineligible for execution. The district court then issued a permanent


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                                       No. 12-30256
injunction, forbidding the State from executing Brumfield. The State timely
appealed. 5
                                    II.    DISCUSSION
       On appeal, the State first argues that the district court erred by failing
to give the proper deference to the state court’s denial of Brumfield’s request
for an Atkins hearing. The district court therefore erred, in the State’s view,
by holding an evidentiary hearing. Alternatively, the State contends that, even
if this court were to consider the evidence produced in the federal evidentiary
hearing, Brumfield has not proven that he was mentally retarded. We address
each argument in turn.
   A. Standard of Review
       When considering an appeal from a district court’s grant of habeas relief,
this court reviews issues of law de novo and findings of fact for clear error.
Wiley, 625 F.3d at 204–05 (citing Fratta v. Quarterman, 536 F.3d 485, 499 (5th
Cir. 2008)). The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
limits the ability of a federal court to issue a writ of habeas corpus to a state
prisoner where the prisoner’s claim was “adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d).             “When a federal claim has been
presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). This is true whether the
state court addresses all, some, or none of a prisoner’s claims. See Johnson v.
Williams, 133 S. Ct. 1088, 1094 (2013).




       5 Because the State is the appellant, no Certificate of Appealability is required. Wiley
v. Epps, 625 F.3d 199, 204 n.2 (5th Cir. 2010); Fed. R. App. P. 22(b)(3).
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                                 No. 12-30256
      When a state court adjudicates a prisoner’s claim on the merits, a federal
habeas court “shall not” grant the prisoner’s writ of habeas corpus unless the
state court’s ruling:
     (1) resulted in a decision that was contrary to, or involved an
         unreasonable application of, clearly established Federal law, as
         determined by the Supreme Court of the United States; or
     (2) resulted in a decision that was based on an unreasonable
         determination of the facts in light of the evidence presented in
         the State court proceeding.
28 U.S.C. § 2254(d).
      Under § 2254(d)(1), the law must be “clearly established in the holdings
of [the Supreme] Court” at the time of the state court’s decision. Harrington,
131 S. Ct. at 785 (citation omitted). “[A]n unreasonable application of federal
law is different from an incorrect application of federal law.” Renico v. Lett,
559 U.S. 766, 773 (2010) (citation omitted).     “[I]t is not an unreasonable
application of clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely established by [the
Supreme] Court.” Harrington, 131 S. Ct. at 786 (internal quotation marks and
citation omitted) (first alteration in original).    “[A] habeas court must
determine what arguments or theories supported or . . . could have supported,
the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.” Id.
A state court’s decision is not entitled to AEDPA deference under § 2254(d)(1)
“if the state court correctly identifies the governing legal principle from the
Supreme Court’s decisions, but unreasonably applies it to the facts of the
particular case” or if the state court “extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.”


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                                  No. 12-30256
Chester v. Thaler, 666 F.3d 340, 344 (5th Cir. 2011) (alteration in original)
(citations and internal quotation marks omitted).
      Under § 2254(d)(2), “relief may not be granted unless the decision was
based upon an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings. A factual determination made by a
state court must be rebutted by clear and convincing evidence.” Id. at 348
(quoting Clark v. Quarterman, 457 F.3d 441, 443 (5th Cir. 2006)) (internal
quotation marks omitted). “The question of whether a defendant suffers from
mental retardation involves issues of fact, and thus is subject to a presumption
of correctness that must be rebutted by clear and convincing evidence under
Section 2254(e)(1).” Id. (quoting Maldonado v. Thaler, 625 F.3d 229, 236 (5th
Cir. 2010)) (internal quotation marks omitted).
   B. Applicable Law
      The Supreme Court “did not provide definitive procedural or substantive
guides for determining when a defendant is mentally retarded.” Hearn v.
Thaler, 669 F.3d 265, 272 (5th Cir. 2012) (quoting Bobby v. Bies, 556 U.S. 825,
831 (2009)) (internal quotation marks omitted). Instead, the Supreme Court
left “to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [the] execution of sentences.” Atkins, 536 U.S.
at 317 (internal quotation marks and citation omitted). Therefore, we examine
Louisiana law to determine whether Brumfield established the prerequisites
of an Atkins claim.
      Louisiana defines mental retardation as “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. art.
905.5.1(H)(1). The Louisiana Supreme Court has held that the confidence
range associated with an intellectual quotient (“I.Q.”) score of 75 “brush[es] the
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                                   No. 12-30256
threshold score for a mental retardation diagnosis; however, it is possible for
someone with an I.Q. score higher than 70 to be considered mentally retarded
if his adaptive functioning is substantially impaired.” State v. Dunn (Dunn
III), 41 So. 3d 454, 470 (La. 2010).
       Adaptive functioning “refers to how effectively individuals cope with
common life demands and how well they meet the standards of personal
independence expected of someone in their particular age group, sociocultural
background, and community setting.” Id. at 463 (internal quotation marks and
citation omitted). The Louisiana Supreme Court has recognized “six major life
activities related to adaptive functioning: self-care, understanding and use of
language, learning, mobility, self-direction, and capacity for independent
living.”   Id. (citation omitted).       This prong is satisfied when there are
“significant limitations in . . . at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health, and safety . . . .” Id. at 459
       In State v. Dunn (Dunn II), 974 So. 2d 658, 662 (La. 2008) (per curiam),
the Louisiana Supreme Court held that the procedure it explained in State v.
Williams, 831 So. 2d 835 (La. 2002) governed cases in which the issue of
whether to hold an Atkins hearing is raised post-trial. That is, a defendant
must first “come forward with some evidence to put his mental condition at
issue.” State v. Dunn (Dunn I), 831 So. 2d 862, 884 (La. 2002). The defendant
must undergo a mental examination “[i]f the court has reasonable ground to
doubt whether the defendant is mentally retarded.” Id. Essentially, “[t]he
defendant [must] come forward with some evidence initially to put his or her
mental condition at issue.” Dunn III, 41 So. 3d at 461. Then, the “defendant
must prove his or her mental retardation by a preponderance of the evidence.”
Id.
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                                       No. 12-30256
   C. Analysis
       We first consider whether the state court’s judgment was “on the merits”
as contemplated by § 2254(d). We agree with the district court that the state
court’s decision was “on the merits.” 28 U.S.C. § 2254(d). The state court did
not cite any procedural grounds relating to Brumfield’s mental retardation
claim in its decision or at its hearing. 6                Therefore, the state court’s
determination is due AEDPA deference unless an exception under §§
2254(d)(1)–(2) applies. Because no exception applies, we hold that the state
court’s judgment was entitled to AEDPA deference.
       1. 28 U.S.C. § 2254(d)(1)
       The district court erred in its determination that the state court decision
was not entitled to AEDPA deference. In the district court’s view, the state
court was required to provide Brumfield with the funds necessary to develop
his claims. However, there is no Supreme Court decision that has held that
prisoners asserting Atkins claims are entitled to expert funds to make out a
prima facie case.       Rather than present cases holding that Brumfield was
entitled to funding to develop his prima facie case, the district court faulted
the state court for failing to extend the due process precepts in Atkins, Ford,
and Panetti to encompass this aspect of due process. See Chester, 666 F.3d at
344 (holding that a state court’s decision is not entitled to AEDPA deference
under 2254(d)(1) where the court “unreasonably refuses to extend [a legal
principle from Supreme Court precedent] to a new context where it should
apply”).




       6 Even though the state court did not discuss Brumfield’s funding request, we presume
that its denial of funds was also a decision “on the merits.” See Johnson, 133 S. Ct. at 1096
(“When a state court rejects a federal claim without expressly addressing that claim, a federal
habeas court must presume that the federal claim was adjudicated on the merits—but that
presumption can in some limited circumstances be rebutted.”).
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                                 No. 12-30256
      The district court’s holding was an unwarranted extension of Supreme
Court jurisprudence. See id. at 345 (“The first step in determining whether a
state court unreasonably applied clearly established federal law is to identify
the Supreme Court holding that the state court supposedly unreasonably
applied.”). Under Panetti v. Quarterman, 551 U.S. 930 (2007), and Ford v.
Wainwright, 477 U.S. 399 (1986), a court is explicitly required to provide an
“opportunity to be heard” once the prisoner has made a “substantial threshold
showing of insanity.” Panetti, 551 U.S. at 949 (internal quotation marks and
citation omitted). This includes the opportunity to submit expert evidence. Id.
at 951. However, nowhere does the Supreme Court hold that this opportunity
requires the court or the state to provide the prisoner with funds to obtain this
expert evidence. Nor has this circuit recognized that such an established
federal right exists. See Morris v. Dretke, 413 F.3d 484, 501 (5th Cir. 2005)
(Higginbotham, J., concurring) (“[T]he State was within its rights to deny [the
petitioner] assistance in obtaining intellectual testing [in order to make out a
prima facie case of mental retardation].”).
      We have explained the due process rights due “under Ford[:] [o]nce a
prisoner seeking a stay of execution has made a ‘substantial threshold showing
of insanity,’ the protection afforded by procedural due process includes a ‘fair
hearing’ in accord with fundamental fairness.” Rivera v. Quarterman, 505 F.3d
349, 358 (5th Cir. 2007) (second alteration in original) (quotation omitted).
Similarly, “[t]he lesson we draw from Panetti is that, where a petitioner has
made a prima facie showing of retardation . . . the state court’s failure to
provide him with the opportunity to develop his claim deprives the state court’s
decision of the deference normally due.” Id. Thus, the strictures of procedural
due process associated with Ford and Panetti attach only after a prisoner has




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                                       No. 12-30256
made a “substantial threshold showing.” Accordingly, we hold that the state
court did not violate § 2254(d)(1). 7
       2. 28 U.S.C. § 2254(d)(2)
       Similarly, the state court’s judgment did not violate § 2254(d)(2).
Brumfield does not contend that he presented a prima facie showing of mental
retardation before the state court. Accordingly, he has waived this claim. See
Trico Marine Assets Inc. v. Diamond B. Marine Servs. Inc., 332 F.3d 779, 790
n.6 (5th Cir. 2003) (“Issues not raised or argued in the brief of the appellant
may be considered waived and thus will not be noticed or entertained by the
court of appeals.” (citation and emphasis omitted)). Nevertheless, even if this
claim were not waived, our review of the record persuades us that the state
court did not abuse its discretion when it denied Brumfield an evidentiary
hearing. The district court erroneously found that the state court rested its
ruling on Brumfield’s adaptive skills and faulted the state court for failing to
provide Brumfield with the requisite funding. The district court also chided
the state court for relying on evidence presented for mitigation purposes and
deciding Brumfield’s claim based on a record which failed to discuss all of the
necessary elements. In addition, the district court concluded that the state
court wrongly used competency evidence to determine Brumfield’s Atkins
claim.
       Contrary to the district court’s ruling, the state court considered both the
intellectual functioning and adaptive behavior prongs of Louisiana’s test for


       7 Unlike the situation before us in Wiley, 625 F.3d 199, there is no violation of due
process that would render deference to the state court inappropriate. In Wiley, because the
state court failed to follow its own procedure, we held that the state court was not due
deference under AEDPA. Id. at 211. Conversely, neither Brumfield nor the district court
could point to any state law or procedure violated by the state court when it denied his Atkins
claim and request for funds. The cases relied on by Brumfield and the district court simply
do not support their contention that the state court strayed from the applicable Louisiana
law on this issue.
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                                  No. 12-30256
mental retardation. The state court noted that of the two I.Q. tests, one
returned a score of 75 and the other returned “a little bit higher I.Q.” The state
court then properly considered the evidence of adaptive functioning that
Brumfield presented.     The state court concluded that Brumfield had not
“demonstrated impairment in adaptive skills.” The district court criticized the
state court for not analyzing each sub-factor of the adaptive skills prong, but
there is no requirement that the state court articulate all of its reasons.
Notably, no one testified that Brumfield was mentally retarded. Indeed, the
record showed that at least one doctor diagnosed him with attention-deficit
disorder and an anti-social personality.       There was also testimony that
Brumfield was capable of daily life activities such as working and establishing
relationships. Based on the evidence in the record, we conclude that the state
court did not clearly err in determining that Brumfield did not meet his burden
of presenting a prima facie case of mental retardation under Louisiana law.
Thus, the state court’s decision does not fall under the exceptions in § 2254(d)
and was entitled to AEDPA deference.
      In sum, the district court erred when it failed to give the proper AEDPA
deference to the state court’s decision. Because the state court’s judgment was
entitled to AEDPA deference, “there was no reason for the district court to
conduct an evidentiary hearing.” Blue v. Thaler, 665 F.3d 647, 661 (5th Cir.
2011). Accordingly, it was error for the district court to conduct such a hearing,
and we therefore disregard the evidence adduced for the first time before the
district court for purposes of our analysis under § 2254(d). See Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2010) (“[R]eview under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the
merits.”); Blue, 665 F.3d at 655–56 (“Pinholster prohibits a federal court from
using evidence that is introduced for the first time at a federal-court


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                                       No. 12-30256
evidentiary hearing as the basis for concluding that a state court’s adjudication
is not entitled to deference under § 2254(d).”). 8
                                   III.    CONCLUSION
       For the foregoing reasons, we REVERSE the district court’s grant of
habeas relief in favor of Brumfield.




       8Even 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. See Dunn III, 41 So.3d 454
(holding, under similar circumstances, that the defendant failed to carry his burden of
establishing that he was mentally retarded).
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