                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT DOUGLAS SMITH,                 Nos. 96-99025
          Petitioner-Appellant,            96-99026
                                           10-99011
               v.
                                        D.C. No.
DORA B. SCHRIRO, Warden,            CV-87-00234-RMB
Arizona, Department of
Corrections,
             Respondent-Appellee.        OPINION


     Appeal from the United States District Court
              for the District of Arizona
     Cindy K. Jorgenson, District Judge, Presiding

                Argued and Submitted
      March 17, 2015—San Francisco, California

                Filed February 4, 2016

    Before: Mary M. Schroeder, Stephen Reinhardt,
      and Consuelo M. Callahan, Circuit Judges.

             Opinion by Judge Reinhardt;
          Concurrence by Judge Schroeder;
       Special Concurrence by Judge Reinhardt;
              Dissent by Judge Callahan
2                       SMITH V. SCHRIRO

                           SUMMARY*


                          Habeas Corpus

    The panel reversed Arizona state prisoner Robert Douglas
Smith’s death sentence in a case to which the Antiterrorism
and Effective Death Penalty Act does not apply, and
remanded to the district court with instructions to grant the
writ of habeas corpus and return the case to the state court to
reduce Smith’s sentence to life or natural life.

    The state court determined on remand that Smith was not
intellectually disabled at the time of the offense and trial
under Atkins v. Virginia, 536 U.S. 304 (2002), which held
that the execution of intellectually disabled criminals
constitutes cruel and unusual punishment prohibited by the
Eighth Amendment.

    The panel held that because the state court’s factual
determination is not fairly supported by the record, a
presumption of correctness does not apply. Judge Reinhardt
would hold (section II.C.2) that deference is not due for the
additional and independent reason that the state court
rendered its finding that Smith was not intellectually disabled
under a constitutionally impermissible legal standard.

    Reviewing the record de novo, and considering Smith’s
intellectual functioning test scores and his history of
significantly impaired adaptive behavior, the panel found that
Smith satisfied by clear and convincing evidence the two

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      SMITH V. SCHRIRO                         3

substantive prongs of Arizona’s definition of intellectual
disability both prior to the age of eighteen and at the time of
the crime.

   Judge Schroeder concurred in all of Judge Reinhardt’s
opinion except section II.C.2.

   Specially concurring, Judge Reinhardt wrote to convey
his serious concerns regarding the constitutionality of
Arizona’s Atkins statute.

     Dissenting, Judge Callahan wrote that the majority
reaches its conclusion that Smith was not intellectually
disabled when he committed the murder by disregarding the
findings of the state courts, denying those courts the
deference they are due, and expressing supreme confidence
in its own ability to detect past intellectual disability despite
substantial conflicting evidence and the fact that Smith is not
now intellectually disabled.
4                        SMITH V. SCHRIRO

                             COUNSEL

S. Jonathan Young (argued), Williamson & Young, P.C.,
Tucson, Arizona; Ralph E. Ellinwood, Ellinwood, Francis &
Plowman LLP, Tucson, Arizona, for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General,
Capital Litigation Section, Mark Brnovich, Attorney General,
Robert E. Ellman, Solicitor General, Jeffrey A. Zick, Chief
Counsel, Capital Litigation Section, Phoenix, Arizona, for
Respondent-Appellee.


                              OPINION

REINHARDT, Circuit Judge:1

    This case, to which the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) does not apply, returns to us
following remand to the Arizona state court to conduct an
Atkins evidentiary hearing. After that hearing the state trial
court denied Smith’s Atkins claim, and the Arizona Court of
Appeal and Arizona Supreme Court affirmed. The district
court then found Smith’s Atkins claim without merit and
denied his petition for a writ of habeas corpus. We now hold
that Smith is intellectually disabled under Atkins, and we
reverse.2



 1
   Judge Reinhardt’s opinion is the opinion of the court except for Section
II.C.2. in which neither Judge Schroeder nor Judge Callahan joins.
  2
    Because we grant relief on the Atkins claim, we find it unnecessary to
reach Smith’s claim of ineffective assistance of counsel.
                         SMITH V. SCHRIRO                                5

I. FACTUAL AND PROCEDURAL BACKGROUND3

    In 1982, Robert Smith was convicted in Arizona state
court of kidnapping, sexual assault, and murder and sentenced
to death. Lambright v. Stewart, 167 F.3d 477, 479 (9th Cir.
1999), reh’g granted, vacated, 177 F.3d 901 (9th Cir. 1999),
rev’d, en banc, 191 F.3d 1181 (9th Cir. 1999). On June 20,
2002, the Supreme Court decided Atkins v. Virginia, 536 U.S.
304 (2002), holding that the execution of intellectually
disabled criminals constitutes “cruel and unusual
punishment” prohibited by the Eighth Amendment.4 Under
Atkins, if Smith was intellectually disabled at the time he
committed the crime or at the time of his trial, he may not be
executed. We suspended federal habeas proceedings, ordered
supplemental briefing and remanded to the state court to
determine whether Smith was intellectually disabled and thus
ineligible for execution under Atkins.

    The Pima County Superior Court reopened discovery and
held a two-day evidentiary hearing on October 29 and
November 1, 2007. The court heard testimony by Dr.
Thomas Thompson, a neuropsychologist and prescribing
psychologist selected by Smith, who opined that there is a
very high probability that Smith was intellectually disabled at
the time the crime was committed in 1980. The court also
heard testimony from Dr. Sergio Martinez, a psychologist

     3
     Because the lengthy factual and procedural history of this case is
known to the parties and set forth in prior opinions, we recount only those
portions directly relevant to the issues discussed herein.
 4
    Although both the parties and prior opinions in this case use the term
“mental retardation,” we employ the term “intellectually disabled.” See
Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). We use “mental
retardation” only when quoting material employing that term.
6                     SMITH V. SCHRIRO

selected by the State, who stated that there is a high degree of
probability that Smith was not intellectually disabled in 1980.
The parties entered numerous exhibits into evidence,
including the deposition transcripts of twelve lay witnesses
who described their observations of Smith as a child or young
adult.

    Following the hearing, the Pima County Superior Court
found on March 27, 2008, that Atkins did not preclude
Smith’s execution. The Arizona Court of Appeals denied
special action relief later that year, Smith v. Kearney, No. 2
CA-SA 2008-0019, 2008 WL 2721155 (Ariz. Ct. App. July
11, 2008), and the Arizona Supreme Court denied Smith’s
petition for review. In September 2010, we remanded this
case to the district court for the limited purpose of
considering Smith’s Atkins claim. The district court denied
the claim in December 2012. Smith timely appealed.

                       II. ANALYSIS

    A. Jurisdiction and Standard of Review

    We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir. 2011). We
review de novo the federal district court decision denying
Smith’s 28 U.S.C. § 2254 habeas petition. Alvarado v. Hill,
252 F.3d 1066, 1068 (9th Cir. 2001).

    Because Smith filed his federal habeas petition prior to
AEDPA’s April 24, 1996 effective date, pre-AEDPA
standards govern our review even though Smith filed
amended petitions subsequent to AEDPA’s effective date.
See Sivak, 658 F.3d at 905 (applying the pre-AEDPA
standard of review where initial petition was filed prior to
                          SMITH V. SCHRIRO                                 7

AEDPA’s effective date and amended petitions were filed
following AEDPA’s enactment); Robinson v. Schriro,
595 F.3d 1086, 1099 (9th Cir. 2010) (same); see also Lindh
v. Murphy, 521 U.S. 320, 326 (1997) (holding that Congress
intended AEDPA to apply “only to such cases as were filed
after [AEDPA’s] enactment”).

     Under pre-AEDPA law, state court factual findings are
entitled to a presumption of correctness, subject to eight
exceptions enumerated in the previous version of 28 U.S.C.
§ 2254(d). Sivak, 658 F.3d at 905–06. Among the exceptions
to the rule regarding a presumption of correctness is the
following: the state court’s “factual determination is not fairly
supported by the record.” 28 U.S.C. § 2254(d)(8). Because
the parties agree that whether Smith is intellectually disabled
is a question of fact, we assume for purposes of this opinion
that such is the case.5 The presumption of the correctness
also does not apply if the factual determination is based on
the application of constitutionally impermissible legal
principles. Lafferty v. Cook, 949 F.2d 1546, 1551 n. 4 (10th
Cir. 1991).

 5
    The Fourth and Fifth Circuits have held that the question of whether a
person is intellectually disabled under Atkins constitutes an issue of fact.
See Walker v. Kelly, 593 F.3d 319, 323 (4th Cir. 2010); Maldonado v.
Thaler, 625 F.3d 229, 236 (5th Cir. 2010). The Nevada, Pennsylvania,
and Tennessee Supreme Courts have held that the question is instead a
mixed question of law and fact. Ybarra v. State, 247 P.3d 269, 276 (Nev.
2011); Commonwealth v. Crawley, 924 A.2d 612, 615 (Pa. 2007); State
v. Strode, 232 S.W.3d 1, 8 (Tenn. 2007). We have not yet decided the
issue in our Circuit, but have held in a separate context that the question
of intellectual disability is a mixed question of law and fact. See Gregory
K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987) (whether
student was intellectually disabled, as defined by state regulations, for the
purpose of the federal Education for All Handicapped Children Act is a
mixed question of law and fact).
8                         SMITH V. SCHRIRO

        B. Legal Standard Governing Determination of
           Intellectual Disability Under Arizona Law

    In 2001, one year before Atkins was decided, the Arizona
legislature enacted a statute prohibiting the execution of
intellectually disabled persons and creating a process by
which capital defendants are evaluated for intellectual
disability. Ariz. Rev. Stat. Ann. § 13-703.02 (2001), 2001
Ariz. Sess. Laws, Ch. 260, § 2; State v. Grell (Grell I),
66 P.3d 1234, 1240 (2003). Under the version of the statute
in effect at the time of Smith’s Atkins hearing in 2007, the
procedures for evaluating a defendant were automatically
triggered upon the State’s filing a notice of intent to seek the
death penalty. Ariz. Rev. Stat. Ann. § 13-703.02(B) (2006),
as amended by 2006 Ariz. Sess. Laws, Ch. 55, § 1.6 The
statute provides that the burden of proving intellectual
disability lies with the capital defendant who must prove his
disability by “clear and convincing evidence.” Ariz. Rev.
Stat. Ann. § 13-703.02(G).

    The Arizona statute defines “mental retardation” as
containing three elements: (1) “significantly subaverage
general intellectual functioning” and (2) concurrent
“significant impairment in adaptive behavior,” (3) “where the
onset of the foregoing conditions occurred before the
defendant reached the age of eighteen.” Ariz. Rev. Stat. Ann.
§ 13-703.02(K)(3). “Significantly subaverage general


    6
   Section 13-703.02 was subsequently renumbered as § 13-753. 2008
Ariz. Sess. Laws, Ch. 301, § 26. In 2011, the statute was amended to
substitute the term “intellectual disability” for “mental retardation.” Ariz.
Sess. Laws 2011, Ch. 89, § 5. Unless otherwise stated, all references to
§ 13-703.02 are to the version in effect at the time of Smith’s Atkins
evidentiary hearing.
                     SMITH V. SCHRIRO                        9

intellectual functioning” is defined as “a full scale
intelligence quotient [IQ] of seventy or lower.” Ariz. Rev.
Stat. Ann. § 13-703.02(K)(5). “Adaptive behavior” is defined
as “the effectiveness or degree to which the defendant meets
the standards of personal independence and social
responsibility expected of the defendant’s age and cultural
group.” Ariz. Rev. Stat. Ann. 13-703.02(K)(1).

    Under Arizona’s procedures for determining intellectual
disability, the court appoints a prescreening psychological
expert to determine the defendant’s IQ “using current
community, nationally and culturally accepted intelligence
testing procedures.” Ariz. Rev. Stat. Ann. § 13-703.02(B). If
the expert determines that the defendant’s IQ is above 75,
“the notice of intent to seek the death penalty shall not be
dismissed on the ground that the defendant has mental
retardation.” Ariz. Rev. Stat. Ann. § 13-703.02(C). If the IQ
score is 75 or less, however, the court will appoint additional
experts in consultation with the parties to prepare reports
regarding whether the defendant is intellectually disabled.
Ariz. Rev. Stat. Ann. § 13-703.02(D), (E). If at this point all
IQ test scores are above 70, the defendant remains eligible for
the death penalty. Ariz. Rev. Stat. Ann. § 13-703.02(F).

    If the testing demonstrates that the defendant’s IQ score
is equal to or less than 70, however, the court holds a hearing
at which “the defendant has the burden of proving mental
retardation by clear and convincing evidence.” Ariz. Rev.
Stat. Ann. § 13-703.02(G). Under Arizona law, “[c]lear and
convincing evidence is that which may persuade that the truth
of the contention is ‘highly probable.’” In Re Neville,
708 P.2d 1297, 1302 (Ariz. 1985) (en banc). A determination
by the court that the defendant’s IQ is 65 or below
“establishes a rebuttable presumption that the defendant has
10                    SMITH V. SCHRIRO

mental retardation.” Ariz. Rev. Stat. Ann. § 13-703.02(G).
However, “‘[t]he presumption of mental retardation based on
the IQ scores vanishes . . . if the State presents evidence that
calls into question the validity of the IQ scores or tends to
establish that [the] defendant does not otherwise meet the
statutory definition of mental retardation.’” State v. Boyston,
298 P.3d 887, 895 (Ariz. 2013) (quoting State v. Arellano,
143 P.3d 1015, 1019 (Ariz. 2006)); see Arellano, 143 P.3d at
1018 (“A rebuttable presumption, however, ‘vanishes when
the state provides contradictory evidence.’” (citation
omitted)). “‘At that point, the IQ scores serve as evidence of
mental retardation, to be considered by the trial court with all
other evidence presented.’” Boyston, 298 P.3d at 895
(quoting Arellano, 143 P.3d at 1019).

    Smith did not have the benefit of this procedural
framework at the time of his trial because the trial took place
nearly twenty years before the procedural framework’s
adoption. The Arizona Supreme Court has held that in cases
presenting Atkins claims in such a post-trial posture, courts
should use Atkins as a guide and apply the pre-trial
procedures of § 13-703.02 to the extent practical. As the
Arizona Supreme Court explained in a capital case predating
the passage of § 13-703.02,

       We recognize that the procedures set forth in
       section 13-703.02 are not applicable in Grell’s
       case, as section 13-703.02 did not take effect
       until after Grell’s sentencing. Moreover, the
       procedures contemplated by section 13-
       703.02 are pre-trial procedures, triggered
       when the State files its notice of intent to seek
       the death penalty. The trial court should use
       Atkins as a guide and should, insofar as is
                      SMITH V. SCHRIRO                       11

       practical in the post-trial posture of this case,
       follow the procedures established in [Ariz.
       Rev. Stat.] section 13-703.02.

Grell I, 66 P.3d at 1241 (footnote omitted); accord Arellano,
143 P.3d at 1017 (“[Ariz. Rev. Stat. § 13-703.02] applies to
all capital sentencing proceedings, including post-conviction
proceedings brought to determine whether a defendant meets
the statutory definition of mental retardation.”).

   C. Presumption of Correctness

    As an initial matter, we must determine whether a
presumption of correctness applies to the state court’s factual
determination that Smith was not intellectually disabled at the
time of the offense and trial. We conclude that it does not.
As discussed in section II.C.1, we hold that the state court’s
factual determination is not entitled to deference because it is
“not fairly supported by the record.” 28 U.S.C. § 2254(d)(8).
Also, as explained in section II.C.2, Judge Reinhardt would
hold that deference is not due for the additional and
independent reason that the Pima County Superior Court
rendered its finding that Smith was not intellectually disabled
under a constitutionally impermissible legal standard.

       1. The State Court’s Factual Determination Is
          Not Fairly Supported By the Record

    Our case law provides some guidance for determining
when the exception codified at § 2254(d)(8) applies. Where
the record is ambiguous, a state court’s factual determination
is “fairly supported by the record” within the meaning of
§ 2254(d)(8). Palmer v. Estelle, 985 F.2d 456, 459 (9th Cir.
1993); see Wainwright v. Goode, 464 U.S. 78, 85 (1983).
12                       SMITH V. SCHRIRO

Where the great majority of the evidence strongly points
against the state court’s finding, however, the finding is not
fairly supported. We have held that a factual determination
is not fairly supported by the record even if it is supported by
some evidence and other evidence is equally consistent with
both the state court’s conclusion and a contrary conclusion,
so long as the record as a whole “strongly suggests” a
different conclusion. See Carriger v. Stewart, 132 F.3d 463,
473–76 (9th Cir. 1997).

    This standard must also be read in the context of the
Supreme Court’s recent decision in Hall v. Florida, 134 S. Ct.
1986 (2014). In Hall, the Court emphasized that, in death
penalty cases where a defendant’s intellectual functioning is
a close question, the defendant “must be able to present
additional evidence of intellectual disability . . . .” Id. at 2001.
In fact, in these situations, the court must not “view a single
factor as dispositive” given the complexity of intellectual
disability assessments. Id. Therefore, a court reviewing the
whole record as required by the standard at issue must
consider all indications of a defendant’s intellectual disability
and may not discard relevant evidence.

     Here, we do not defer to the state court’s ultimate
conclusion that Smith was not intellectually disabled because
it lacks fair support in the record as a whole.7 Nor do we
defer to the state court’s weighing of the evidence where its


 7
   The mere fact that the record contains contrary opinions by two expert
witnesses does not render it ambiguous. Once we look behind each
expert’s conclusion and consider the evidence on which he relies, it
becomes clear that the great majority of the evidence strongly reinforces
Dr. Thompson’s opinion and that Dr. Martinez’s contrary conclusion lacks
even fair evidentiary support.
                          SMITH V. SCHRIRO                               13

decisions to discount certain evidence similarly lack fair
evidentiary support or result from legal error.8 The evidence
in this case overwhelmingly supports our conclusion that
Smith satisfied both substantive prongs of intellectual
disability—significantly subaverage general intellectual
functioning and significant impairment in adaptive
behavior—both prior to age eighteen and at the time of the
crime.

              a. Application of Atkins

    The state trial court correctly concentrated its analysis on
whether Smith was intellectually disabled at the time of the
offense and the ensuing trial. In Atkins, the Court identified
two rationales supporting its holding. First, concentrating on
the time of the offense, the Court recognized that
intellectually disabled offenders are less culpable for their
crimes. Atkins, 536 U.S. at 317; see also Hall, 134 S. Ct. at
1992–93. Specifically, the Court noted that there is reason to
doubt whether either justification it had previously
recognized as a basis for the death penalty—retribution and
deterrence—applies to intellectually disabled offenders.
Atkins, 536 U.S. at 318–19. These individuals, the Court
explained, suffer from impairments leaving them with


 8
    When a state court’s decision to discount certain evidence constitutes
a factual determination, we may apply § 2254(d)(8) to determine whether
deference is due. See Carriger, 132 F.3d at 473–76, 478 (applying
§ 2254(d)(8) to reject the state court’s ancillary factual determination that
a witness lacked credibility and holding, based in part upon our decision
to credit that witness’s testimony, that the petitioner had satisfied the
Schlup “miscarriage of justice” standard); see also Schlup v. Delo,
513 U.S. 298, 314 (1995). Where a state court’s decision to discount
certain evidence results from legal error, the presumption of correctness
does not apply. See Sivak, 658 F.3d at 905.
14                       SMITH V. SCHRIRO

“diminished capacities to understand and process
information, to communicate, to abstract from mistakes and
learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others,”
making them more likely to act on impulse rather than
premeditation, and as followers rather than leaders. Id. at
318. These limitations diminish the individual’s relative
culpability for the crime, and, consequently, the retributive
justification of the death penalty. See id. at 319 (“[T]he
severity of the appropriate punishment necessarily depends
on the culpability of the offender.”); see also Hall, 134 S. Ct.
at 1992 (“No legitimate penological purpose is served by
executing a person with intellectual disability.”). They
likewise limit the death penalty’s deterrent effect, because
these impairments “also make it less likely that [intellectually
disabled offenders] can process the information of the
possibility of execution as a penalty and, as a result, control
their conduct based upon that information.” Atkins, 536 U.S.
at 320.

    The Court’s second rationale concentrates on a
defendant’s trial in light of the heightened risk that
“[m]entally retarded defendants in the aggregate face a
special risk of wrongful execution” because they are less able
to effectively participate in their own defense for the purpose
of making “a persuasive showing of mitigation.”9 Id. at
320–21; see also Hall, 134 S. Ct. at 1993. Because the


   9
     Because it applies equally to the time of the crime and trial, the
constitutional right announced in Atkins is unlike the rights provided by
Pate v. Robinson, 383 U.S. 375, 378 (1966) (right to not to be tried while
legally incompetent), and Ford v. Wainwright, 477 U.S. 399, 409–10
(1986) (right not to be executed while insane), which attach, respectively,
to the time of trial and execution.
                         SMITH V. SCHRIRO                             15

rationales underlying the right announced in Atkins
concentrate on the time the crime was committed and the
ensuing trial, we hold that a defendant comes within the
protection of Atkins if he can demonstrate that he was
intellectually disabled during either of these periods.10
Consequently, a defendant’s present condition is relevant
only to the extent that it is probative of his condition during
the relevant periods.

   The defendant must, of course, qualify under the third
prong as well. The onset of the mental disability must have
occurred before he reached the age of eighteen.

    We turn now to why the record does not fairly support the
state court’s determination that Smith was not intellectually
disabled. In order to do so, we must examine the evidence
under the two substantive elements of the Arizona statute, and
determine whether the evidence as a whole strongly points to
the conclusion that the two statutory conditions existed at the
time of the crime or trial, and whether the onset of each
condition occurred prior to age eighteen.




 10
    Many states expressly recognize that Atkins applies to individuals who
may be deemed intellectually disabled at the time the crime was
committed or at trial. See, e.g., Smith v. State, No. 1060427, 2007 WL
1519869, at *8 (Ala. May 25, 2007); Ark. Code Ann. § 5-4-618(b); Del.
Code Ann. tit. 11, § 4209(d)(3)(c); Ga. Code Ann. § 17-7-131(c); Pizzuto
v. State, 202 P.3d 642, 653, 654 (Idaho 2008); Chase v. State, No. 2013-
CA-01089-SCT, 2015 WL 1848126, at *3 (Miss. Apr. 23, 2015); S.D.
Codified Laws § 23A-27A-26.1; Tenn. Code Ann. § 39-13-203(b); Ex
parte Cathey, 451 S.W.3d 1, 19 (Tex. Crim. App. 2014); Wash. Rev.
Code § 10.95.030(2).
16                       SMITH V. SCHRIRO

              b. Significantly Subaverage                      General
                 Intellectual Functioning

    “‘Significantly subaverage general intellectual
functioning’ is the touchstone for proving [intellectual
disability] and means ‘a full scale intelligence quotient [IQ]
of seventy or lower.’” State v. Grell (Grell III), 291 P.3d
350, 352 (Ariz. 2013) (quoting Ariz. Rev. Stat. Ann. § 13-
753(K)(5)).11 It must be manifested before age eighteen,
Ariz. Rev. Stat. Ann. § 13-703.02(K)(3), and at the time of
the crime or trial, see Atkins, 536 U.S. at 317–21.

                  1. Intellectual Functioning Prior to Age
                     Eighteen

    Smith took the Otis Intelligence Scale Test in April 1964
and again in October of that year, when he was fifteen years
old, receiving scores of 62 and 71, respectively. The score of
62 Smith received the first time he took the test is the more
relevant of the two scores in light of Dr. Thompson’s
unrebutted testimony that Smith’s second test score of 71 was
inflated by the practice effect of having taken the same test
just several months earlier. Dr. Thompson explained that
under the practice effect, a person scores higher on a test
when it is readministered within a short period of time
because he has become familiar with the test. Arizona courts
and the most current clinical guidelines recognize the practice
effect. See State ex rel. Thomas v. Duncan, 216 P.3d 1194,
1195 n. 4 (Ariz. Ct. App. 2009) (“The practice effect occurs
when a person performs better on a test because he or she has


 11
    The version of the statute in effect at the time of Smith’s evidentiary
hearing uses an identical definition. Ariz. Rev. Stat. Ann. § 13-
703.02(K)(5).
                      SMITH V. SCHRIRO                        17

taken it before.”); id. at 1198 (stating that “a defendant may
argue that the practice effect impacted the results” of
successive IQ tests); Am. Ass’n of Intellectual and
Developmental Disabilities, Intellectual Disability 38 (11th
ed. 2010) [hereinafter AAIDD 11th ed.] (describing research
showing the artificial increase in IQ scores when the same
instrument is readministered within a short time interval, and
stating that established clinical practice is to avoid
administering the same intelligence test within the same year
to the same individual because it will often lead to an
overestimation of the examinee’s true intelligence); Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 37 (5th ed. 2013) [hereinafter DSM-V]
(identifying the practice effect as a factor capable of affecting
test scores).

    Under the Atkins framework Arizona later adopted,
Smith’s IQ score of 62 would entitle him to a presumption of
intellectual disability. See Ariz. Rev. Stat. Ann. § 13-
703.02(G). The State, however, “present[ed] evidence that
calls into question the validity of the IQ scores or tends to
establish that [the] defendant does not otherwise meet the
statutory definition of mental retardation.” Boyston, 298 P.3d
at 895 (quoting Arellano, 143 P.3d at 1019). Specifically, the
State points to the results of IQ test scores administered by
Drs. Thompson and Martinez in 2005 and 2007, on which
Smith received scores of 89, 91, and 93. These scores
demonstrate that Smith is not presently intellectually
disabled, and, in the absence of IQ scores documenting
Smith’s IQ at the time the crime was committed, raise an
18                        SMITH V. SCHRIRO

inference that he may not have been disabled at that time.12
Accordingly, “[t]he presumption . . . based on the IQ scores
vanishes” and we weigh the evidence as if no presumption
had existed. Id. (quoting Arellano, 143 P.3d at 1019)).13

    In any event, the Otis test scores remain highly probative
of Smith’s condition prior to age eighteen. The State asserts
that the tests are unreliable, and points to Dr. Thompson’s
testimony on cross-examination that by 1964 the Otis tests
had not been “normed” against the current population for
forty years, and that he had not seen the raw data from
Smith’s Otis tests or any information regarding the conditions
under which those tests were administered. Although the lack
of contemporary norming may call into some question the
accuracy of the test results, Dr. Thompson gave
uncontroverted testimony that, due to the Flynn Effect, this
would only have caused Smith’s scores to be overstated. The
basic premise of the Flynn effect is that because average IQ
scores increase over time, a person who takes an IQ test that


  12
    Given the substantial time between the commission of the crime and
the IQ tests administered by Drs. Thompson and Martinez, this inference
is not particularly strong. Moreover, as discussed below, substantial
evidence demonstrates that Smith’s IQ did in fact fall below the threshold
necessary to demonstrate significantly subaverage general intellectual
functioning at the time the crime was committed.
   13
      While the standard for overcoming the statutory presumption of
intellectual disability is not particularly clear, the general rule in Arizona
suggests it is low. Cf. State v. Lewis, 340 P.3d 415, 420 (Ariz. Ct. App.
2014) (“[A]s with other rebuttable presumptions, the presumption of
continued incompetence ‘disappears entirely upon the introduction of any
contradicting evidence and when such evidence is introduced the existence
or non-existence of the presumed [incompetence] is to be determined
exactly as if no presumption had ever been operative.’” (quoting Sheehan
v. Pima Cnty., 660 P.2d 486, 489 (Ariz. Ct. App. 1982))).
                         SMITH V. SCHRIRO                              19

has not recently been normed against a representative sample
of the population will receive an artificially inflated IQ score.
See James R. Flynn, Tethering the Elephant: Capital Cases,
IQ, and the Flynn Effect, 12 Psychol. Pub. Pol'y & L. 170,
173 (2006) [hereinafter Flynn Effect]. This is because IQ
scores are based on a normal distribution curve, and thus an
individual’s score is meaningful only in relation to the scores
of the other people who took the same test. See J.C. Oleson,
The Insanity of Genius: Criminal Culpability and Right–Tail
Psychometrics, 16 Geo. Mason L. Rev. 587, 598 (2009).
When correcting for the Flynn Effect, “[t]he standard practice
is to deduct 0.3 IQ points per year (3 points per decade) to
cover the period between the year the test was normed and
the year in which the subject took the test.” Flynn Effect,
supra, at 173. The AAIDD recognizes the existence of the
Flynn Effect and recommends correcting for the age of norms
in outdated tests. AAIDD 11th ed., supra, at 37; see also Am.
Ass’n on Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Supports 56 (10th ed. 2002)
[hereinafter AAMR 10th ed.]. The Fourth and Eleventh
Circuits have also recognized the existence of the Flynn
Effect. See Walker v. True, 399 F.3d 315, 322–23 (4th Cir.
2005) (reversing district court due to its failure to consider
“relevant evidence” of the Flynn effect); Holladay v. Allen,
555 F.3d 1346, 1358 (11th Cir. 2009) (“[A]ll of the scores
were on WAIS tests, which may have reflected elevated
scores because of the Flynn effect.”).14 Without referring to

  14
     Courts have taken a range of approaches with regard to the Flynn
effect. Some courts have gone beyond the Fourth and Eleventh Circuits
by mandating its application to defendants’ IQ scores. See Thomas v.
Allen, 614 F.Supp.2d 1257, 1281 (N.D. Ala. 2009) (“A court must also
consider the Flynn effect and the standard error of measurement in
determining whether a petitioner’s IQ score falls within a range containing
scores that are less than 70.”); United States v. Parker, 65 M.J. 626, 629
20                        SMITH V. SCHRIRO

the Flynn effect by name, we too have adjusted IQ scores
based on out-of-date norms. Gregory K., 811 F.2d at 1312 n.
2. Here, we conclude that, in light of Dr. Thompson’s
uncontroverted testimony regarding the impact of the Flynn
Effect, Smith’s score of 62 on the outdated Otis test renders
it highly probable that his IQ at the time of the test was lower
than 62, well below the cutoff for demonstrating
“significantly subaverage general intellectual functioning”
under Arizona law.

    The record does not fairly support the state court’s
determination to afford the Otis test little weight and discount
Dr. Thompson’s opinion to the extent that he relied on the




(N-M. Ct. Crim. App. 2007); People v. Superior Court, 28 Cal. Rptr.3d
529, 558-559 (Cal. Ct. App. 2005), overruled on other grounds (“In
determining [a petitioner’s] IQ score, consideration must be given to the
so-called Flynn effect”). Other courts have left to the trial court’s
discretion whether to apply the Flynn Effect. See State v. Burke, No.
04AP-1234, 2005 WL 3557641, at *13 (Ohio Ct. App. Dec. 30, 2005)
(“We conclude that a trial court must consider evidence presented on the
Flynn effect, but, consistent with its prerogative to determine the
persuasiveness of the evidence, the trial court is not bound to, but may,
conclude the Flynn effect is a factor in a defendant’s IQ score.”). Still
other courts have rejected use of the Flynn Effect. See Bowling v.
Commonwealth, 163 S.W.3d 361 (Ky. 2005) (neither the Flynn effect nor
standard margins of error properly are considered); Howell v. State,
151 S.W.3d 450, 458 (Tenn. 2004); Neal v. State, 256 S.W.3d 264, 273
(Tex. Crim. App. 2008) (“We have previously refrained from applying the
Flynn effect, however, noting that it is an ‘unexamined scientific concept’
that does not provide a reliable basis for concluding that an appellant has
significant sub-average general intellectual functioning.”); In re Mathis,
483 F.3d 395, 398 n. 1 (5th Cir. 2007) (“The Flynn Effect . . . has not been
accepted in this Circuit as scientifically valid.”).
                         SMITH V. SCHRIRO                             21

test.15 Although Dr. Thompson and Dr. Martinez each noted
that additional information regarding the administration of the
test would enhance its validity, neither witness concluded that
the test results were invalid in the absence of such
information. More fundamentally, we decline to disregard
the Otis tests on the basis that Smith is unable to proffer the
same level of detailed evidence regarding their administration
as is available for recent tests administered by court-
appointed psychologists. Like most states, Arizona places the
burden on a defendant raising an Atkins claim to demonstrate,
inter alia, significantly subaverage general intellectual
functioning [meaning an IQ of 70 or below] occurring before
the age of eighteen. Ariz. Rev. Stat. Ann. § 13-703.02(K)(3),
(5). It is highly unlikely, however, that the people
administering an IQ test to a child would ever anticipate the
use of that test in an Atkins proceeding, and at the time of
Smith’s tests the constitutional right provided by Atkins did
not even exist. Consequently, records of childhood IQ tests
will rarely include the detailed information collected for IQ
tests administered under court supervision to adjudicate a
defendant’s Atkins claim. To discount what may be the only
evidence of subaverage general intellectual functioning prior
to age eighteen on this ground would effectively deny the
protection afforded by Atkins to individuals who are
substantially older than eighteen years old, or whose trials
predate Atkins, because it would render their intellectual
disability nearly impossible to prove. Given the evidentiary

 15
   The state court also noted that expert testimony regarding Quantitative
Electronencephalography (QEEG) testing on Smith, which it held
inadmissible, played a role in Dr. Thompson’s opinion that Smith’s
functional limitations were related to his frontal lobe dysfunction.
Because testimony regarding the QEEG testing played a non-essential and
limited role in Dr. Thompson’s conclusion, his opinion cannot be
discounted on this basis.
22                    SMITH V. SCHRIRO

challenges so often arising from the retrospective nature of
Atkins claims, the Eighth Amendment requires that courts
apply a more relaxed standard when determining the
reliability of evidence documenting childhood onset of
intellectual disability. Here, there is no indication that Smith
was malingering when he took the Otis tests. Accordingly,
although they do not provide a presumption of intellectual
disability under Arizona law, we find that Smith’s first Otis
test score nonetheless “serve[s] as evidence of mental
retardation, to be considered by [this] [C]ourt with all other
evidence presented.’” Boyston, 298 P.3d at 895 (internal
quotation marks omitted).

    We hold the first Otis test score reliable for the additional
reason that it is consistent with Smith’s contemporaneous
poor academic performance. Under Arizona law, evidence of
poor academic performance is evidence of subaverage
intellectual functioning. Williams v. Cahill ex rel. Cnty. of
Pima, 303 P.3d 532, 540 (Ariz. Ct. App. 2013) (“[W]hen no
childhood IQ tests were performed, subaverage intellectual
functioning before the age of eighteen properly may be
inferred from other evidence of intellectual functioning, such
as school performance.”).              Here, the evidence
overwhelmingly demonstrates that Smith performed
exceedingly poorly in school, scoring in the 2nd to 5th
percentiles on the Stanford Achievement Test at age fifteen,
placing him five to seven years below his age level and three
to five years below grade level. Smith’s school transcripts
reveal that he received nearly all “Ds” and “F’s” in his
academic subjects, and that his education did not progress
beyond the eighth grade, after which he dropped out of
school. The State does not contest the validity of these
records. Melva Jane Box, Smith’s older sister, testified that
Smith was held back in all his grades, was placed in special
                     SMITH V. SCHRIRO                       23

education class for slow learners, and was even transferred to
a special school “because he couldn’t learn.” Charles
Caperton, one of Smith’s childhood neighbors, similarly
testified that Smith was placed in special education classes.
Taken together, Smith’s Otis test scores and poor academic
performance overwhelmingly demonstrate that Smith
experienced significantly subaverage general intellectual
functioning prior to the age of eighteen. The state court’s
determination to the contrary does not find fair support in the
record.

               2. Intellectual Functioning at the Time of
                  the Crime and Trial

    The more fundamental question in this case is whether
Smith continued to suffer from subaverage intellectual
functioning at the time of the crime and trial. The only
evidence to the contrary is the IQ test scores conducted by Dr.
Thompson and Dr. Martinez decades after the trial. Thus, the
question is the relative weight that can fairly be given to the
pre-crime and post-crime test scores insofar as they provide
evidence determinative of Smith’s intellectual functioning at
the time of the crime and trial, and whether the record fairly
supports the state court’s conclusion that Smith did not
experience significantly subaverage general intellectual
functioning at that crucial time.

    We begin by noting that the subsequent administration of
IQ tests by Drs. Thompson and Martinez was substantially
more remote from the period of Smith’s crime than the
administration of the Otis test scores: twenty-five and twenty-
seven years after the crime, in the former case, compared to
sixteen years in the latter. Accepting each set of test scores
as valid measures of Smith’s IQ at the time the tests were
24                    SMITH V. SCHRIRO

administered, this discrepancy renders more probable Smith’s
assertion that his IQ at the time of the crime approximated the
IQ reflected in his first Otis test score rather than his more
recent, higher scores.

    The key issue, however, is the strength of Smith’s
evidence demonstrating the probability that his significant
gains in IQ score occurred after, rather than before, his
incarceration. Dr. Thompson testified that improvements in
IQ score similar to those attained by Smith are possible for
individuals like Smith whose cognitive problems stem from
environmental factors rather than physical injury and who are
later given appropriate antidepressant medication and placed
in a structured environment. Certainly, Smith adduced
substantial evidence of a horribly abusive and impoverished
upbringing supporting Dr. Thompson’s opinion: he was
routinely brutalized by his stepfather, and was subjected to
extreme verbal and emotional abuse by his mother,
interspersed with neglect and periods of outright
abandonment. According to Box, Smith’s stepfather would
beat him with “whatever was closest . . . . a belt, a stick, a
coat hangar,” and also molested him. Martha Gau, Smith’s
younger half-sister, similarly testified that Smith’s stepfather
would tell him “he was good for nothing and would never
amount to anything,” and would kick him and whip him with
both ends of a belt; she recalled finding Smith’s bedsheets
covered in blood following one particularly serious beating
when he was about twelve or thirteen years old. Caperton
saw Smith beaten with a belt “pretty regularly,” and
witnessed one beating involving use of a two-by-four.
Smith’s mother frequently left the children alone at a time
when Smith was still young enough to be using a high chair.
On one occasion when she was actually present, Smith’s
mother engaged in extra-marital foreplay in the front seat of
                          SMITH V. SCHRIRO                               25

her car while Smith sat in the backseat. On another, after the
children failed to adequately clean the dishes, she sent them
outside with bowls on their heads to pick weeds from the yard
while other children from the neighborhood gathered around
them and laughed. As a result of this upbringing, Dr.
Thompson opined, Smith became intellectually disabled with
frontal lobe abnormalities.16

    As evidence that IQ scores can improve following the
commission of the crime in situations similar to Smith’s, Dr.
Thompson cited robust data demonstrating that the use of
antidepressants (which Smith took while incarcerated) can
significantly increase brain functioning over time, noted that
other death row inmates have attained improved functioning
while incarcerated, and provided an anecdote of a patient who
achieved a twelve point gain in IQ score after receiving
medication for just four months. As evidence that his level of


   16
       The state court committed legal error when it discounted Dr.
Thompson’s opinion that Smith’s abusive upbringing contributed to his
intellectual disability, which was manifested by poor test scores and
grades, and instead adopted the state’s theory that Smith’s abusive
upbringing itself caused his poor academic performance but that he was
not intellectually disabled. The state’s theory misapprehends Arizona’s
definition of intellectual disability, which centers on indicators such as
low IQ scores and impaired adaptive behavior and not the purported
etiology of these indicators. See Ariz. Rev. Stat. Ann. § 13-703.02(K)(1),
(3), (5). Simply stated, while the specific cause of intellectual disability
is significant with regard to whether the condition is static or mutable, the
threshold question whether an individual is intellectually disabled is
answered simply by the presence of impaired functioning regardless of its
purported cause. See AAIDD 11th ed., supra, at 59–61 (describing
intellectual disability as arising from cultural-familial factors, biological
factors, or a combination of the two, and stating that “[b]ecause
[intellectual disability] is characterized by impaired functioning, its
etiology is whatever caused this impairment in functioning.”).
26                    SMITH V. SCHRIRO

functioning improved over the course of his incarceration,
Smith adduced testimony from multiple witnesses describing
dramatic improvements in the quality of the letters he sent
from prison. Gau testified that letters Smith sent her at the
beginning of his incarceration were virtually unintelligible,
but that over the following years his writing had improved
“100 percent,” explaining that “it was like a totally different
person was writing it.” Martha Hight, Smith’s aunt by
marriage, similarly described Smith’s early letters from
prison as partially unintelligible, and noted improvements in
the letters he sent in later years. Smith also received tutoring
while in prison. Ronald Labrecque, who worked for the
Department of Corrections from 1986 until 1997, supervised
Smith’s work on maintenance jobs over an eight year period.
Labrecque also tutored Smith, helping him with his reading
and providing him reading materials such as working
manuals, and described witnessing a “vast improvement” in
Smith’s reading ability over this time. Smith received
additional help from Ed Schad, a fellow inmate, who would
get books for Smith from the prison library and have him read
them. None of this evidence is refuted by the State.

    For his part, although disagreeing with Dr. Thompson’s
ultimate conclusion, Dr. Martinez agreed with several of his
key premises. Dr. Martinez testified that significant IQ gains
are possible, and acknowledged that Smith’s IQ gains were
not without precedent. He also agreed with Dr. Thompson’s
characterization of prison as a “structured environment.”
More significant, Dr. Martinez testified that improved
functioning is unlikely to occur in the absence of training and
educational opportunities (which Smith received in prison
from Labrecque and Schad), and stated that there was no
indication Smith received any such opportunities prior to the
time of the crime. This strongly reinforces, and renders
                      SMITH V. SCHRIRO                       27

highly probable, Smith’s assertion that the improvement in
his functioning did not occur until after the crime was
committed. For all of these reasons, we hold that the state
court’s determination that no evidence explains whether the
finding of Smith’s low childhood IQ could be extrapolated to
the time of the crime and trial lacks even fair support in the
record.

    Dr. Martinez also relied on reports summarizing three
Rule 11 competency evaluations Smith underwent in 1981,
each of which found Smith competent to stand trial. He
specifically cited the conclusion of one evaluator, Dr.
LaWall, that Smith “probably functions in the average range
of intelligence.” Dr. Thompson described the Rule 11 reports
as an unreliable assessment of intelligence because they are
“very superficial,” and “very subjective.” He explained that
because the reports focus on competency, they comprise
estimates of a subject’s functioning based only on a brief
interview, involve little review of the subject’s history,
and—more important—include no quantitative assessment of
his IQ. Dr. Thompson’s critique is consistent with Arizona
law and highly persuasive, and Dr. LaWall’s assessment of
Smith’s intelligence carries little weight. See Ariz. Rev. Stat.
Ann. § 13-703.02(K)(5) (determining whether an individual
suffers from significantly subaverage general intellectual
functioning requires a quantitative assessment of IQ). The
State adduces no other evidence of improved academic
performance or other indicia of increased intellectual
functioning prior to the commission of the crime.
Accordingly, viewing the record as a whole, we hold that Dr.
Martinez’s conclusion is not fairly supported by the record.
Because the remaining evidence supporting the state court’s
conclusion is minimal, we hold that its conclusion that Smith
failed to satisfy the intellectual functioning prong of
28                         SMITH V. SCHRIRO

Arizona’s intellectual disability definition at the of the crime
and/or trial is not fairly supported by the record. We hold
instead that the evidence overwhelmingly demonstrates that
Smith experienced significantly subaverage general
intellectual functioning at that dispositive time.17


  17
      The State’s citation to cases describing intellectual disability as a
static condition does not alter our conclusion, Heller v. Doe, 509 U.S. 312,
323 (1993); Moormann v. Schriro, 672 F.3d 644, 649 (9th Cir. 2012);
State v. Arellano, 143 P.3d 1015, 1020 (Ariz. 2006). Moorman and
Arellano each rely on Heller, which cites a 1985 report for the proposition
that intellectual disability “is a permanent, relatively static condition.”
Heller, 509 U.S. at 323 (citing Samuel J. Brakel et al., The Mentally
Disabled and the Law 37 (3d ed. 1985)). Thus, all of this case law relies
on a single study that substantially predates developments in the clinical
understanding of intellectual disability as a fluid condition subject to
change. See Am. Ass’n on Mental Retardation, Mental Retardation:
Definition, Classification, and Systems of Supports 1, 5 (9th ed. 1992)
[hereinafter AAMR 9th ed.] (“With appropriate supports over a sustained
period, the life functioning of the person with mental retardation will
generally improve.”); id. at 18 (“Mental retardation begins prior to age 18
but may not be of lifelong duration.”); Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 47 (4th ed. 2000) [hereinafter
DSM-IV] (“Mental Retardation is not necessarily a lifelong disorder.
Individuals who had Mild Mental Retardation earlier in their lives
manifested by failure in academic learning tasks may, with appropriate
training and opportunities, develop good adaptive skills in other domains
and may no longer have the level of impairment required for a diagnosis
of Mental Retardation.”); AAIDD 11th ed., supra, at xiii (“ID is no longer
considered entirely an absolute, invariant trait of the person.”). This
contemporary clinical understanding necessarily informs the law on
intellectual disability. See Hall v. Florida, 134 S. Ct. 1986, 1993 (2014)
(stating that legal definitions of intellectual disability “are informed by the
work of medical experts”). In addition, unlike the record in this case,
none of the cases on which the State relies involves an evidentiary record
containing extensive expert testimony describing intellectual disability as
a condition that is neither fixed nor static where (as in Smith’s case) it is
influenced by environmental factors rather than an underlying medical
condition.
                      SMITH V. SCHRIRO                        29

     Moreover, to hold otherwise would contravene the
fundamental principles the Supreme Court recently laid out
for the benefit of the federal courts and the state judiciary in
the landmark case of Hall v. Florida, 134 S. Ct. 1986 (2014).
In that case, the Court made it clear that a determination of
intellectual disability requires, at least in questionable cases,
the consideration of significant relevant evidence, not simply
a measurement of an IQ test at a particular point in time.
Here, the premise on which the state court’s decision as to
intellectual disability is based is that the IQ tests taken at a
critical time–the time prior to Smith’s 18th year–must be
discounted in large part because, at the time they were taken,
the procedures used for such tests were not adequately
recorded and the information regarding the administration of
such tests was no longer available. This test evidence was not
only critical to the initial IQ determination when Smith was
15 but also to the ultimate determination of his intellectual
disability at the time of the crimes. To discount the reliability
of the tests on such grounds is little different from failing to
consider, or excluding, crucial evidence that is not only
highly relevant to the principal questions at issue but is
indeed critical to arriving at a fair and just answer to the
question whether Smith is eligible for capital punishment.

    Hall reminds us that “the death penalty is the gravest
sentence our society may impose,” 134 S. Ct. at 2001, and
that imposing this “harshest of punishments on an
intellectually disabled person violates his or her inherent
dignity as a human being,” id. at 1992. Given these stakes,
Hall warns that we must not make judgments in haste as to
whether a person has an intellectual disability, but rather must
consider all the “substantial and weighty evidence” in cases
that present close questions. Id. at 1994. Put differently, we
cannot risk making the protections of Atkins a nullity by
30                       SMITH V. SCHRIRO

executing a person with an intellectual disability without
giving him the “fair opportunity to show the Constitution
prohibits [his] execution.” Id. at 2001. The state court’s
decision in Smith’s case takes that risk. By discounting
Smith’s early IQ tests even though they were the type used at
the time and even though they are the most likely evidence
that an intellectually disabled defendant of Smith’s age could
present in order to prove his condition, the state court judge
rendered the protection for the intellectually disabled
established by Atkins effectively meaningless, which is
precisely what the Court sought to avoid in Hall. Such a
decision, by removing highly probative evidence of a
person’s intellectual disability in a death-penalty case, not
only violates the individual defendant’s right but also
“contravenes our Nation’s commitment to dignity and its duty
to teach human decency as the mark of a civilized world.” Id.

              c. Significantly Impaired Adaptive Behavior

    “‘Adaptive behavior’ means the effectiveness or degree
to which the defendant meets the standards of personal
independence and social responsibility expected of the
defendant's age and cultural group.” Ariz. Rev. Stat. Ann.
§ 13-703.02(K)(1). Courts applying this prong must conduct
“an overall assessment of the defendant’s ability to meet
society’s expectations of him.”18 State v. Grell (“Grell II”),

   18
      Although state courts generally construed Atkins as imposing no
binding definition of impaired adaptive behavior, the Supreme Court held
in Hall that states must comply with elements of the clinical definition
about which there exists a national consensus. 134 S. Ct. at 1998–99.
Because Arizona’s definition of adaptive behavior is far more restrictive
than the clinical definition, Williams, 303 P.3d at 548 (Eckerstrom, P.J.,
dissenting), and because a national consensus exists with regard to this
aspect of the clinical definition, see Concurring Opinion of Reinhardt, J.,
                          SMITH V. SCHRIRO                              31

135 P.3d 696, 709 (Ariz. 2006) (en banc); accord Boyston,
298 P.3d at 895.

    Although there is scant case law applying this prong, we
find the Arizona Supreme Court’s decision in Grell III,
291 P.3d 350 (Ariz. 2013), highly instructive. In Grell III,
the State stipulated that the capital defendant demonstrated
significantly subaverage general intellectual functioning but
contested the impairment of his adaptive behavior. Id. at 352.
Independently reviewing the evidentiary record, the court
proceeded to hold that Grell had also demonstrated significant
deficits in adaptive behavior, and reduced his death sentence
to natural life. Id. at 351, 357.19 As evidence of significantly


Arizona’s definition may well be violative of the rules established in Hall,
and unconstitutional for that reason. Because Hall was not decided until
after the state court had rendered its decision denying Smith’s Atkins
claim, however, Smith had no opportunity to make this argument before
the state court and the state had no opportunity to respond. In such
circumstance, we might remand to allow the state court to consider the
more recent Supreme Court decision, although we express no view on that
question. Here, however, we need not apply Hall in light of our
conclusion that Smith clearly satisfies even Arizona’s more onerous
standard.
  19
    Due to the unique procedural posture of the case, the Grell III court
applied

Ariz. Rev. Stat. Ann. § 13-751(C). Under this statute, a defendant may
present evidence at the penalty phase of mitigating circumstances, which
must be proven by a preponderance of the evidence. We note that the
Grell III court applied a lower standard of proof than governs Smith’s
claim, but nonetheless regard the case as a useful guidepost demonstrating
the Arizona Supreme Court’s approach to the adaptive behavior prong.
Grell III contains the Court’s most extended analysis on this element and
identifies numerous attributes supporting a finding of significantly
impaired adaptive behavior.
32                   SMITH V. SCHRIRO

impaired adaptive behavior, the court considered, inter alia,
Grell’s grade school records showing that he had been placed
in special education classes; lay witness testimony describing
him as highly impulsive, unable to understand social cues of
children his own age, and largely unable to use the few social
skills that he had; expert testimony describing Grell’s
tendency to act more like children several years younger, and
noting his impulsiveness and poor communication skills; and
testimony from teachers and administrators who observed
that Grell was impulsive, inattentive, and unable to
communicate effectively. Id. at 353–55. Grell also adduced
testimony from members of the special education team at his
elementary school stating their conclusion that Grell was
intellectually disabled. Id. at 353. A psychologist opined that
the consistency of Grell’s poor social functioning and
behavioral problems demonstrated the presence of intellectual
disability, because problems arising solely from antisocial or
personality disorders would vary over time. Id. at 354. Grell
also presented the expert testimony of an educational
psychologist who concluded that

       [g]iven the facts of [Grell’s] low intellectual
       functioning, his inability to learn from his
       mistakes, his reduced capacity in
       communication, socialization and self-help
       skills, and his significant history of special
       education, followed by failure and dropping
       out of school and, in the absence of significant
       parental support and guidance, his subsequent
       serious entanglement with the criminal justice
       system, it is clear at this point that Shawn
       Grell is a person who has mental retardation.
                     SMITH V. SCHRIRO                       33

Id. at 355. The court additionally noted Grell’s history of
running away from home, committing crimes, his inability to
hold jobs, and his general immaturity. Id. at 356. Reviewing
this evidence, the court concluded that Grell had
demonstrated significant deficits in adaptive behavior,
notwithstanding evidence of his limited ability to adapt. Id.
at 357.

    The record in this case paints a remarkably similar picture
of Smith, demonstrating consistent traits, beginning in
childhood and continuing through the time of the crime, that
the Grell III court held established impaired adaptive
behavior. See id. at 354 (consistency of behavioral problems
indicates a root cause of intellectual disability, rather than
antisocial or personality disorders). Like Grell, Smith had a
“significant history of special education, followed by failure
and dropping out of school.” See id. at 355. Specifically,
Smith was held back in all his grades, placed in special
education classes, subsequently transferred to a special school
for children unable to learn, and dropped out after the eighth
grade, by which time he was already sixteen years old. These
facts are consistent with other testimony providing further
evidence of Smith’s poor intellectual functioning during his
childhood. Box testified that as a child, Smith had trouble
learning and struggled to grasp the rules even of simple
children’s games like tag and marbles. Betty Ruth Knight,
another former neighbor and the mother of Smith’s fifth wife,
Beth Lewis, stated that as a child Smith “always looked like
he was just lost.”

   Smith had poor social skills. According to Delores Elaine
Long, one of Smith’s childhood neighbors, as a child Smith
was unable to interact with, play with, or carry on a
conversation with other children. See Grell III, 291 P.3d at
34                    SMITH V. SCHRIRO

353 (“[Grell] could not understand social cues that children
his age should understand, and was largely unable to use the
few social skills that he had.”). Hight testified that as a young
adult Smith lacked any social life, and Gerald Lambright, the
cousin of Smith’s co-defendant Joe Lambright, described
Smith as a “loner.” Other evidence reveals Smith’s
impulsiveness. Smith’s mother reported that psychiatrists
who treated him during his childhood concluded Smith had
problems with impulsiveness, which would likely continue
throughout his life. The presentence report also describes
Smith’s impulsiveness, stating that he “responds to external,
social stimuli on a very concrete level, living basically from
day to day and acting on impulse to a great degree.” See id.
at 353–55 (noting Grell’s impulsiveness); Atkins, 536 U.S. at
318 (stating that intellectually disabled people “often act on
impulse rather than pursuant to a premeditated plan”).

     Smith’s communication skills were similarly stunted.
Hight testified that, as an adult, Smith had difficulty forming
sentences and correctly pronouncing words; for example, he
would say “weekie days” when referring to “weekdays.” Gau
and Hight each described receiving nearly incomprehensible
letters from Smith during the early period of his
incarceration. See Grell III, 291 P.3d at 354–55 (stating that
Grell was “unable to communicate effectively” and noting
“his reduced capacity in communication”).

    As in Grell III, a lay witness familiar with intellectual
disability concluded that Smith was intellectually disabled.
Here, Hight stated that she believed Smith to be intellectually
disabled, based on her comparison of Smith to her own
intellectually disabled sister. See id. at 353 (Grell identified
as intellectually disabled by special education staff
experienced with other disabled children). Although she was
                     SMITH V. SCHRIRO                       35

not an expert, Hight’s testimony, based on her personal
experience, is highly probative of Smith’s adaptive behavior.
See Arellano, 143 P.3d at 1020 (discussing the relevance of
lay witness testimony regarding adaptive behavior).

    Other evidence indicates that Smith did not possess the
skills necessary to take care of his own needs. Hight
described Smith as lacking basic hygiene, unable to sit at the
table or eat properly, and unable to take care of himself
without assistance. Labrecque testified that he was forced to
reprimand Smith on one occasion over his sloppiness, body
odor, and infrequent bathing. See Grell III, 291 P.3d at 355
(“Dr. Keyes’ investigation revealed that Grell’s family
viewed Grell as ‘somewhat incapable of caring for many of
his own needs . . . .’ He concluded that Grell’s record
confirmed his adaptive deficits, as illustrated by his lifelong
inability ‘to conform his behavior to the expected standards
of his social and same aged peers.’”).

     The evidence in this case includes many additional
parallels to the evidence presented in Grell. Smith tormented
his younger half-sister, sexually abusing her at a young age:
when he was twelve, Smith was severely punished after
persuading Gau to play “doctor” when she was five years old,
and when Gau was nine Smith, then sixteen, brought her out
to the garage and forced her to perform oral sex on him.
Smith made repeated attempts to run away from home after
which he was jailed for vagrancy. He frequently got into
trouble for criminal activity, including numerous arrests.
Hight testified that Smith was unable to hold a job, which she
attributed to his inability to “comprehend what a normal
person . . . would be able to interpret.” The record reveals
that Smith cycled through more than 100 short-term jobs over
a period of sixteen years, which Dr. Thompson described as
36                        SMITH V. SCHRIRO

evidence of multiple adaptive impairments.20 Smith also
functioned very immaturely as an adult. Long testified that
Smith got along well with the children of Beth Lewis,
Smith’s fifth wife, because he related to them as a child rather
than as an adult: “[H]e was a lot mentality [sic] like they
were. I mean, like instead of being a dad figure, he was kind
of like they were.” Gerald Lambright testified that, as an
adult, Smith was immature, had difficulty interacting with
adults his own age, would frequently mimic Donald Duck
when he spoke at all, and preferred to interact with children.21
Labrecque characterized Smith’s emotional maturity as
resembling that of a twelve to fourteen year-old even a
number of years after he had committed the crimes. Multiple
medical records appended to Smith’s presentence report
describe Smith in his late teens and early twenties as
possessing an “immature personality” and exhibiting
“immature behavior.” As the Grell III court found, this
behavior indicates significant impairment in adaptive
behavior under Arizona law. See id. at 356–57 (stating that
tormenting other children, running away from home,
committing crimes, an inability to hold jobs, and immaturity
are among the elements of a mental history that “by itself,
provides strong evidence that [an individual] suffered a
‘significant impairment’ in the ability to ‘meet[ ] the
standards of personal independence and social responsibility
expected’ of him.” (quoting Ariz. Rev. Stat. Ann. § 13-
753(K)(1), (3))).


 20
    Dr. Martinez attributed Smith’s inability to hold jobs in part to Smith’s
impulsivity, itself an indicator of impaired adaptive behavior. See Grell
III, 291 P.3d at 353–55; Atkins, 536 U.S. at 318.
 21
    The presentence report lists “Duck” and “Crazy Duck” as aliases for
Smith.
                          SMITH V. SCHRIRO                              37

    Additional evidence of Smith’s impaired adaptive
behavior not present in Grell makes Smith’s impaired
adaptive behavior even clearer. Charles McCarver, who lived
in Smith’s apartment complex and worked with Smith
repossessing cars, gave testimony describing an incident in
which McCarver’s ex-girlfriend Penny jokingly told Smith
that he could “have” their son because Smith and his wife
were having difficulty conceiving their own child. Following
this conversation, Smith called McCarver to say that Penny
had told him he could have McCarver’s son. McCarver
adamantly refused. Undeterred, Smith showed up at
McCarver’s home expecting to take the boy, changing his
mind only after seeing how happy the child was with
McCarver.       Smith’s absurdly literal interpretation of
McCarver’s joke that he would “give” Smith his son vividly
demonstrates Smith’s malformed social and communication
skills and his general inability to navigate his social world.22


   22
      The record does not fairly support the state court’s decision to
discount Hight’s testimony that Smith resembled her intellectually
disabled sister on the sole ground that it was inconsistent with testimony
by McCarver and a second lay witness, Sidney LeBlanc, who lived in
Smith’s apartment building and drove trucks for the same company as
Smith. We credit Hight’s testimony because, among these witnesses, only
she had firsthand experience with someone diagnosed with intellectual
disability. See Grell, 291 P.3d at 353; Arellano, 143 P.3d at 1020. More
important, testimony by McCarver and LeBlanc does not contradict
Hight’s assessment of Smith as intellectually disabled. McCarver’s
testimony, as recounted above, strongly reinforces the conclusion that
Smith was intellectually disabled. LeBlanc’s explanation that he and
Smith held a large number of short-term jobs as a result of their “footloose
and fancy free” transient lifestyle, is at least as suggestive of traits
indicating intellectual disability as of the standard of adaptive behavior
expected of Smith’s age and cultural group. Accordingly, we find the
state court’s determination that McCarver and LeBlanc were more
credible witnesses than Hight is not fairly supported by the record.
38                       SMITH V. SCHRIRO

    Smith’s mother, Sylvia Scott (Joe Lambright’s wife),
Gerald Lambright, and the presentence report all described
Smith as a follower, a trait the Supreme Court has identified
as an indicator of impaired adaptive behavior. Gerald said
that Smith would do whatever Joe told him to do, adding that
“it was almost like the guy could not think for himself.” See
Atkins, 536 U.S. at 318 (“in group settings [intellectually
disabled people] are followers rather than leaders”). The
presentence report describes Smith as having a “borderline
personality,” which is also probative of Smith’s condition at
the time of Smith’s crime and trial.23

    Moreover, Smith demonstrated a lifelong inability to
make informed decisions regarding his own safety and
welfare. Specifically, Smith was described as having poor
judgment as a child and engaging in dangerous behavior
without awareness of its risks. As an adult, Smith accepted
dares to run across the highway in front of an oncoming truck
and climb to the top of a radar tower hundreds of feet tall,
where he dangled himself by his arms. He would sometimes


     23
       Dr. Thompson testified that he found this assessment in the
presentence report credible notwithstanding the lack of evidence regarding
the author’s level of training because, in his experience working with the
Department of Corrections, the probation and parole officers who wrote
such reports had experience with prisoners and diagnostic evaluations that
provided them a reasonable basis from which to determine whether an
individual has low or borderline cognitive functioning and because the
report’s findings are corroborated by substantial evidence of Smith’s
impaired mental functioning. We agree that the report constitutes
probative lay witness testimony of Smith’s disability. See Arellano,
143 P.3d at 1020. Accordingly, and in light of the foregoing discussion
of the limitations of the Rule 11 reports, we find the state court’s
determination to afford the Rule 11 reports greater weight than the
presentence report, and its critique of Dr. Thompson’s contrary
conclusion, lacks fair support in the record.
                      SMITH V. SCHRIRO                       39

go up on the top of buildings where carpentry work was being
performed and jump along the beams and rafters without any
safety harness. On one occasion while in prison, Smith took
a walk along the edge of the roof of a two-story building,
earning a rebuke from Labrecque. Such reckless behavior,
apparently undertaken without any comprehension of the
risks involved, further demonstrates Smith’s inability to meet
the expected standards of personal independence.

     Although Dr. Martinez viewed Smith’s ability to date
women as evidence of his adaptive abilities, that testimony is
clearly of little worth. The only evidence of Smith’s romantic
life is his five failed marriages, the details of which paint a
picture inconsistent with Dr. Martinez’s assessment. Smith’s
first three marriages lasted a cumulative total of nineteen
months. The presentence report notes that Smith beat his
fourth wife, threatened her life, enjoyed tying her up and
pretending to rape her, and on other occasions forced her to
submit to anal intercourse against her will. Smith married
Beth Lewis, his fifth wife, in November 1980, shortly before
his arrest. According to Lewis, at one point she decided to
end their relationship and Smith became very angry; he
grabbed a gun and, shaking it in front of her, said “You want
to end it? I can end it for us.” Afraid for her life, Lewis said
that she would “do anything.” After contemplating this offer,
Smith decided the pair should get married. That same
evening, Smith pushed Lewis into the backseat of her car and
tore off her pantyhose. Lewis said she began screaming and
crying and begged Smith to stop, which he did, leading her to
conclude that “[s]o he didn’t actually I guess rape me.”
Following this encounter, Smith drove by Lewis’s home on
several occasions and waved a pistol at her; the couple
married a short time later. We fail to see how Smith’s serial
marriages, at least some of which involved death threats as
40                    SMITH V. SCHRIRO

well as incidents of simulated and actual sexual assault,
exhibit the “standards of personal independence and social
responsibility expected of the defendant's age and cultural
group.” Rather, they further demonstrate the adaptive
impairments affecting this and so many other areas of Smith’s
childhood and adult life.

    Testimony by Dr. Thompson and Dr. Martinez indicating
that Smith possessed some adaptive skills does not alter the
conclusion that it is highly probable that Smith experienced
significant impairment in adaptive behavior at the relevant
times. The evidence that Smith exhibited limited adaptive
abilities is substantially outweighed by evidence of more far-
reaching adaptive impairments. We note, moreover, that
Arizona law does not mandate a complete absence of
adaptive strengths. See Grell III, 291 P.3d at 357 (“The
record also contains some indications of Grell's limited ability
to adapt. Although this evidence makes our decision difficult,
a diagnosis of mental retardation, as statutorily defined, does
not require a complete absence of adaptive skills.”).

    Nor do we regard the Rule 11 reports as inconsistent with
our conclusion. As the Supreme Court and our own Court
have held, the ultimate conclusions stated in these
reports—that Smith understood the difference between right
and wrong, and was competent to stand trial—are not
inconsistent with intellectual disability. See Atkins, 536 U.S.
at 318 (“Mentally retarded persons frequently know the
difference between right and wrong and are competent to
stand trial.”); Rohan ex rel. Gates v. Woodford, 334 F.3d 803,
810 n. 3 (9th Cir. 2003) (“Incompetence and mental
retardation are overlapping but distinct categories. Many
retarded individuals are still competent to stand trial.”),
abrogated on other grounds by Ryan v. Gonzales, 133 S. Ct.
                     SMITH V. SCHRIRO                       41

696 (2013). Nor, for that matter, is Dr. LaWall’s finding that
Smith had a personality disorder with antisocial features
inconsistent with our conclusion regarding impaired adaptive
behavior, especially in light of Smith’s immaturity and
childlike conduct. See Grell III, 291 P.3d at 354, 356 (citing
expert testimony that “[i]f Grell had a mere conduct or
personality disorder . . . he would have committed acts that
were simply against the rules and deviant . . . , rather than
acting, as he did, in ways that were embarrassing or
immature,” and noting that antisocial personality disorder is
not inconsistent with intellectual disability); Brumfield v.
Cain, 135 S. Ct. 2269, 2280 (2015) (“[A]n antisocial
personality is not inconsistent . . . with intellectual
disability.”).

    The vast majority of the evidence strongly points to the
conclusion that Smith was unable to “meet[] the standards of
personal independence and social responsibility expected of
[his] age and cultural group,” both before the age of eighteen
and at the time of the crime. Ariz. Rev. Stat. Ann. § 13-
703.02(K)(1). Accordingly, we conclude that the state
court’s determination that Smith’s pre-arrest life did not show
significant impairment in adaptive behavior is not fairly
supported by the record.

    In sum, we conclude that under § 2254(d)(8) the clear
weight of the evidence overcomes the presumption of
correctness attaching to the state court’s finding that Smith
was not intellectually disabled, as well as the state court’s
ancillary factual determinations necessary to its ultimate
conclusions. Specifically, we have found that the grounds on
which the state court discounted Dr. Thompson’s testimony
lack fair support in the record and are the product of legal
error.
42                       SMITH V. SCHRIRO

         2. The State Court Applied an Unconstitutional
            Standard of Proof

    The state court’s factual determination is not entitled to
deference for a separate and independent reason. The Pima
County Superior Court found Smith was not intellectually
disabled by applying an incorrect and unconstitutional legal
standard, a question of law we review de novo.

    As the Tenth Circuit has recognized in pre-AEDPA cases,
a state court’s factual determination rendered under a
constitutionally impermissible legal standard is not entitled to
a presumption of correctness. See Lafferty v. Cook, 949 F.2d
1546, 1551 n. 4 (10th Cir. 1991) (“The initial inquiry must be
whether the Utah court made its fact findings under the
correct legal standard of competency. It is elemental that fact
finding made under an erroneous view of the governing law
cannot be presumed correct. Only after concluding that a state
court used the proper standard does a habeas court turn to the
issue of the presumption of correctness.”); accord Walker v.
Att’y Gen for Oklahoma, 167 F.3d 1339, 1345 (10th Cir.
1999) (“Mr. Walker’s competency was determined under a
constitutionally impermissible standard of proof. Such a
determination is not entitled to a presumption of
correctness.”).24



 24
    The dissent in Lafferty contended that the majority erred by inserting
an additional, preliminary step in its review of the state court’s factual
determination, contrary to the requirements of 28 U.S.C. § 2254(d).
949 F.2d at 1558–59 & nn. 2–3 (Brorby, J., dissenting). The majority is
clearly correct. Because a factual determination rendered under an
erroneously inflated and unconstitutional legal standard does not resolve
the question of whether the same answer obtains under the correct lower
standard, the factual determination rendered cannot be said to constitute
                          SMITH V. SCHRIRO                               43

    In the section of the Pima County Superior Court’s
decision entitled “Burden of Proof,” the court described the
legal standard governing Smith’s Atkins claim.25 The court
subsequently analyzed the evidence, after which it set forth its
ultimate finding in the final section of its opinion. It
concluded that “the circumstances described at the hearing do
not point to mental retardation with any degree of certainty.”
(Emphasis added.) A court’s recitation of the proper
governing legal standard does not insulate its holding from
habeas review where the record demonstrates that the court
actually applied an unconstitutional standard. See Sears v.
Upton, 561 U.S. 945, 952 (2010) (per curiam) (“Although the
court appears to have stated the proper prejudice standard, it
did not correctly conceptualize how that standard applies to
the circumstances of this case.” (footnote omitted)). Here,
because the state court made no other mention of the correct
legal standard, and because its analysis provides no indication
that the court actually applied the correct legal standard rather
than the standard employed when it applied the law to the
facts, its boilerplate statements in the introductory “Burden of
Proof” section are of no force or effect.




a valid finding. Where a state court has made no valid finding, there is
nothing to which a presumption of correctness may attach.
 25
    In its introductory statement regarding the standard of review, the state
court stated that Smith had the burden of proving his Atkins claim by clear
and convincing evidence. It added that, due to the unique procedural
posture of the case, it would also apply the preponderance of the evidence
standard applicable to Rule 32 proceedings, and that its decision would be
the same under that lower standard. The body of the opinion did not fulfill
that promise, however, but, rather, the court concluded after reviewing all
the evidence that it did not meet a “certainty” standard.
44                    SMITH V. SCHRIRO

    Under Arizona law, the “any degree of certainty” standard
applied by the Pima County Superior Court is more akin to
the “reasonable doubt” standard than the clear and convincing
standard mandated by Arizona’s Atkins statute, which
requires only that the issue under consideration be “highly
probable.” See State v. King, 763 P.2d 239, 243, 246 (Ariz.
1988) (reversing trial court for providing erroneous jury
instructions, and explaining that “[t]he instruction now before
us utilized the term ‘certainty’ in defining the clear and
convincing standard . . . . We believe that ‘certainty’ is truer
to the concept of proof beyond a reasonable doubt than to the
‘highly probable’ meaning of the clear and convincing
standard.”).

    To be sure, “[a] state’s misapplication of its own laws
does not provide a basis for granting a federal writ of habeas
corpus.” Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir.
2011). A state’s Atkins procedures present a special case,
however. “‘[B]ecause Atkins reserved for the states the task
of developing appropriate ways to enforce the constitutional
restriction’ prohibiting the execution of the intellectually
disabled, ‘federal courts conducting habeas review routinely
look to state law . . . in order to determine how Atkins applies
to the specific case at hand.’” Williams v. Mitchell, 792 F.3d
606, 612 (6th Cir. 2015) (quoting Black v. Bell, 664 F.3d 81,
92 (6th Cir. 2011)). Stated differently, Atkins leaves to the
states the task of developing appropriate procedures to
enforce the constitutional right, but constitutionalizes the
procedures the state creates. Consequently, where a state
court analyzing an Atkins claim fails to follow binding state
law, its decision does not simply violate state law, but also
violates the Eighth Amendment right provided by Atkins and
the violation is therefore cognizable by a federal habeas court.
Id. (“[W]here a state-court decision is ‘contrary to’ clearly
                     SMITH V. SCHRIRO                       45

established state supreme court precedent applying Atkins, the
decision is ‘contrary to Atkins’ for purposes of habeas
review” under AEDPA); see also Black, 664 F.3d at 97
(“[B]ecause Atkins defers to the individual states to set out
the standard for a defendant to qualify as mentally retarded,
the [state court’s] misinterpretation of [the state supreme
court’s decision] is contrary to Atkins.”).

    Here, the “certainty” standard applied by the state trial
court was plainly contrary to the clear and convincing
standard required by Arizona’s statute and adopted by its
supreme court. See Ariz. Rev. Stat. Ann. § 13-703.02(G);
Grell II, 135 P.3d at 701 (“The statute places on ‘the
defendant . . . the burden of proving mental retardation by
clear and convincing evidence’ in the pretrial hearing.”
(alteration in original) (quoting § 13-703.02(G))).
Accordingly, the standard of proof applied by the state trial
court was not simply contrary to state law but was also
unconstitutional under Atkins, see Williams, 792 F.3d at 612;
Black, 664 F.3d at 97, and, accordingly, the state court’s
findings are not due any deference. See Lafferty, 949 F.2d at
1551 n. 4; Walker, 167 F.3d at 1345.

    There is another reason the standard of proof applied by
the state trial court is unconstitutional, and would be even if
it were consistent with state law: a “certainty” standard of
proof transgresses the limits of the state’s authority to craft
appropriate procedures to enforce Atkins and, in so doing,
encroaches on the substantive constitutional right. In
reaching this conclusion, it is not necessary to determine what
standard of proof the federal Constitution requires, but rather
only whether the Arizona court applied a standard it forbids.
Cf. Schriro v. Smith, 546 U.S. at 7–8 (state Atkins procedures
may, “in their application, be subject to constitutional
46                    SMITH V. SCHRIRO

challenge,” but the state must first have an opportunity to
apply them).

    In Atkins, the Supreme Court did not announce a specific
standard of proof governing claims of intellectual disability.
Instead, the Court, citing Ford v. Wainwright, stated that it
was “leav[ing] to the States the task of developing
appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences.” 536 U.S. at 317 (quoting
Ford, 477 U.S. at 405, 416–17). This did not leave the states
unchecked discretion in determining such procedures,
however. Rather, to be constitutional, a state’s procedures
must constitute “appropriate ways to enforce the
constitutional restriction.” Id. (emphases added) (quoting
Ford, 477 U.S. at 416). The Court’s citation to Ford
reinforces this view. In Ford, a majority of the Court found
Florida’s specific procedures for determining the sanity of a
condemned prisoner constitutionally inadequate. See Ford,
477 U.S. at 413; see also id. at 418 (plurality opinion); id. at
424–25 (Powell, J., concurring in part and concurring in the
judgment); id. at 427 (O’Connor, J., concurring in the result
in part and dissenting in part).

     When the natural operation of a state’s procedures for
rendering factual determinations transgresses a substantive
constitutional right, those procedures are unconstitutional.
See Bailey v. Alabama, 219 U.S. 219, 239–44 (1911). It is
elementary that the “natural operation” of applying a
heightened standard of proof can determine the outcome of
litigation, and thus the availability of a constitutional right.
See id. at 244 (stating that “we must consider the natural
operation of the statute here in question”). As the Supreme
Court has recognized, it is often impossible to ascertain
disputed facts with absolute certainty. Victor v. Nebraska,
                     SMITH V. SCHRIRO                       47

511 U.S. 1, 14 (1994). Consequently, “the trier of fact will
sometimes, despite his best efforts, be wrong in his factual
conclusions.” In re Winship, 397 U.S. 358, 370 (1970)
(Harlan, J., concurring). “The function of a standard of proof
. . . is to ‘instruct the factfinder concerning the degree of
confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of
adjudication.’” Addington v. Texas, 441 U.S. 418, 423 (1979)
(quoting In re Winship, 397 U.S. at 370 (Harlan, J.,
concurring)). As a result, “[t]he standard [of proof] serves to
allocate the risk of error between the litigants.” Addington,
441 U.S. at 423; see Cooper v. Oklahoma, 517 U.S. 348, 362
(1996) (“The ‘more stringent the burden of proof a party must
bear, the more that party bears the risk of an erroneous
decision.’” (quoting Cruzan v. Director, Mo. Dept. of Health,
497 U.S. 261, 283 (1990))).

    Atkins claims present a heightened risk of an erroneous
factual conclusion. Unlike factual determinations in which
the basic issue is whether a fact occurred—for example,
whether a defendant actually committed the act of which he
is accused—determinations like intellectual disability, which
depend upon psychiatric diagnosis, turn on an expert’s
interpretation of the meaning of various facts. Cf. Addington,
441 U.S. at 429. As the Supreme Court explained in rejecting
the argument that the Constitution requires use of a
reasonable doubt standard in the context of civil commitment
proceedings, the unique nature of psychiatric diagnosis
renders factual determinations uniquely unsusceptible to
certainty.

       The subtleties and nuances of psychiatric
       diagnosis render certainties virtually beyond
       reach in most situations. The reasonable-doubt
48                   SMITH V. SCHRIRO

       standard of criminal law functions in its realm
       because there the standard is addressed to
       specific, knowable facts. Psychiatric
       diagnosis, in contrast, is to a large extent
       based on medical “impressions” drawn from
       subjective analysis and filtered through the
       experience of the diagnostician. This process
       often makes it very difficult for the expert
       physician to offer definite conclusions about
       any particular patient. Within the medical
       discipline, the traditional standard for
       “factfinding” is a “reasonable medical
       certainty.” If a trained psychiatrist has
       difficulty with the categorical “beyond a
       reasonable doubt” standard, the untrained lay
       juror—or indeed even a trained judge—who
       is required to rely upon expert opinion could
       be forced by the criminal law standard of
       proof to reject commitment for many patients
       desperately in need of institutionalized
       psychiatric care.

                             ...

       We have concluded that the reasonable-doubt
       standard is inappropriate in civil commitment
       proceedings because, given the uncertainties
       of psychiatric diagnosis, it may impose a
       burden the state cannot meet and thereby erect
       an unreasonable barrier to needed medical
       treatment.

Id. at 430–32 (citations omitted). Similar concerns also arise
in other contexts requiring psychiatric diagnosis. See Ford,
                         SMITH V. SCHRIRO                              49

477 U.S. at 426 (Powell, J., concurring in part and concurring
in the judgment) (sanity); Cooper, 517 U.S. at 365, 369
(competency).

     The concern espoused in Addington regarding the
inherent imprecision of psychiatric determinations of mental
illness for the purpose of civil commitment applies with even
greater force to psychiatric determinations of intellectual
disability under Atkins.26         Unlike civil commitment
proceedings, which inquire into whether an individual is
presently mentally ill and poses a danger to himself or others,
the age of onset element of Atkins claims requires a
retrospective analysis of the individual’s childhood capacity
that may be years or, as in this case, even decades removed
from the time of trial. Moreover, in cases like this, in which
the trial predates Atkins and Petitioner’s claim arises for the
first time on habeas, the determination of mental condition at
the time of commission of the crime may occur not at trial but
rather decades afterwards. Smith’s case illustrates the
difficulties that inhere in such an inquiry: as discussed below,
records detailing the administration of childhood IQ tests are
unavailable, and lay witnesses untrained in psychology are
asked to share distant recollections of Petitioner’s behavior as
a child and young adult. Certainty is thus even less attainable


  26
     It is of no consequence to the analysis that Addington and Atkins
involve different burdens of proof than the case at bar, because the focus
here is on the effect of the standard of proof. Under Addington, a state
desiring the civil commitment of an individual must demonstrate that he
suffers from mental illness, whereas under Atkins an individual seeking to
avoid execution by the state must demonstrate intellectual disability. In
both situations, the determination heavily relies upon psychiatric opinion,
and thus in both situations a standard of proof requiring “any degree of
certainty” as defined by Arizona law will often render it impossible for a
party to carry its burden. See Addington, 441 U.S. at 432.
50                    SMITH V. SCHRIRO

and a certainty standard is even less constitutionally
acceptable in such cases.

    Further compounding the likelihood of error in Atkins
claims is the fact that the overwhelming majority (85 percent)
of individuals with intellectual disability fall into the “mild”
category, for whom the likelihood of misdiagnosis is
particularly acute. As young children such individuals are
often indistinguishable from children without intellectual
disability, and as adults they can acquire social and vocational
skills adequate for minimum self-support. DSM-IV 43; see
also AAIDD 11th ed., at 47 (“Individuals with [intellectual
disability] typically demonstrate both strengths and
limitations in adaptive behavior.”). In fact, Daryl Atkins
himself maintained that he was only “mildly mentally
retarded.” Atkins, 536 U.S. at 308. However, Atkins applies
equally to all intellectually disabled individuals irrespective
of the degree of their disability.

    Not only are Atkins claims uniquely susceptible to
erroneous factual determinations, but they occur in a
context—capital punishment—requiring a heightened degree
of certainty that the decision is not erroneous. “Because the
standard of proof affects the comparative frequency of . . .
erroneous outcomes, the choice of the standard to be applied
in a particular kind of litigation should, in a rational world,
reflect an assessment of the comparative social disutility of
each.” In re Winship, 397 U.S. at 371 (Harlan, J.,
concurring). The Supreme Court’s repeated holdings that
capital cases require a heightened degree of certainty that the
punishment is lawful make clear its determination that the
social “disutility” of a wrongful execution outweighs the
“disutility” of errors favoring defendants. See Gilmore v.
Taylor, 508 U.S. 333, 342 (1993) (“[T]he Eighth Amendment
                         SMITH V. SCHRIRO                              51

requires a greater degree of accuracy and factfinding than
would be true in a noncapital case.”); Ford, 477 U.S. at 411
(plurality opinion); Lockett v. Ohio, 438 U.S. 586, 604–05
(1978) (plurality opinion) (“[The] qualitative difference
between death and other penalties calls for a greater degree of
reliability when the death sentence is imposed. . . . When the
choice is between life and death, [a heightened risk of
wrongful execution created by a state statute] is unacceptable
and incompatible with the commands of the Eighth and
Fourteenth Amendments.”); Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (plurality opinion). Accordingly,
where, as in Atkins, the Eighth Amendment renders a class of
individuals categorically ineligible for execution, the
procedures used to determine whether a defendant falls into
that class may not allocate nearly all of the risk of an
erroneous determination to the defendant.

    By requiring Smith to demonstrate with a “degree of
certainty” that he is intellectually disabled, the Arizona court
disregarded this fundamental rule. Simply stated, the court
took the highly unusual step27 of allocating nearly the entire
risk of an erroneous determination to Smith. That the factual
determination in question concerned an issue for which
certainty may be unattainable, cf. Addington, 441 U.S. at
429–32, and a penalty for which a greater degree of reliability


   27
      Only Georgia applies a more onerous standard, requiring proof of
intellectual disability beyond a reasonable doubt. By contrast, every other
state to establish a standard of proof imposes a more relaxed standard than
the state court applied here. In addition to Arizona, only four
states—Colorado, Delaware, Florida, and North Carolina—apply even a
clearly convincing standard, and the remaining twenty-two states
imposing the death penalty and the federal government apply a
preponderance standard. Hill v. Humphrey, 662 F.3d 1335, 1365 n. 1
(11th Cir. 2011) (en banc) (Barkett, J., dissenting).
52                      SMITH V. SCHRIRO

is required, see, e.g., Gilmore, 508 U.S. at 342; Lockett,
438 U.S. at 604–05 (1978) (plurality opinion), renders the
constitutional violation even more clear. Like the Alabama
statute in Bailey, the standard of proof applied by the Pima
County Superior Court in this case transgresses a substantive
constitutional right by accomplishing indirectly what the state
may not do directly: the execution of individuals who are
intellectually disabled under Atkins. See Bailey, 219 U.S. at
239 (“It is apparent that a constitutional prohibition cannot be
transgressed indirectly by the creation of a [procedural rule]
any more than it can be violated by direct enactment.”);
Atkins, 536 U.S. at 321. Because it impairs the substantive
right, the state court’s “certainty” standard of proof is not an
“appropriate way[] to enforce the constitutional [protection]”
mandated by Atkins. Atkins, 536 U.S. at 317. In short, the
Constitution forbids requiring a defendant to demonstrate
intellectually disability with “any degree of certainty.”28
Because the Pima County Superior Court made its finding
that Smith is not intellectually disabled by applying an
incorrect and unduly onerous legal standard, its ultimate
factual determination is not consonant with the Eighth
Amendment. A finding that is made pursuant to the wrong
legal standard is not a finding at all. Accordingly, the state
court’s application of an unconstitutional standard of proof
provides an independent and alternative ground for denying
its determination a presumption of correctness.




     28
      Because Smith satisfies the lower “clearly convincing” standard
required by Arizona’s Atkins statute, it can be assumed without deciding
that the statutory standard is constitutional. However, many of the
concerns expressed here apply to the clear and convincing standard as
well.
                      SMITH V. SCHRIRO                       53

       D. Whether Smith is Intellectually Disabled

    Having determined that the state court’s determination is
not entitled to a presumption of correctness, we must review
the record de novo to determine whether Smith has
demonstrated intellectual disability by clear and convincing
evidence, as required by Arizona law. For all the reasons set
forth in Section II.C.1, we hold that he has. Considering
Smith’s intellectual functioning test scores and his history of
significantly impaired adaptive behavior, as we must under
Atkins and Hall, we find that the record in this case
overwhelmingly demonstrates that Smith satisfied the two
substantive prongs of Arizona’s definition of intellectual
disability both prior to age eighteen and at the time of the
crime. Specifically, Smith’s Otis test score of 62, combined
with his poor academic performance, clearly demonstrates the
childhood onset of his significantly subaverage general
intellectual functioning. The record further demonstrates
that, consistent with Dr. Thompson’s testimony, Smith also
experienced this condition at the time of the crime:
improvement in Smith’s intellectual functioning did not occur
until after his incarceration in a structured environment, when
he began receiving appropriate antidepressant medication as
well as tutoring from Labrecque and Schad. The many
parallels between Smith’s life and that of the capital
defendant in Grell, including Smith’s stunted communication
skills, lack of personal care skills, severe immaturity, and
inability to maintain employment and personal relationships,
reveal his significant impairment in adaptive behavior as a
child and at the time of the crime, as does his general lifelong
inability to navigate his social world.

    There can be no doubt that the crime in this case was truly
horrific. The Constitution, however, regards intellectually
54                   SMITH V. SCHRIRO

disabled defendants as less morally culpable for their crimes,
and for this reason prohibits their execution. Atkins, 536 U.S.
at 316; Hall, 134 S. Ct. at 1992. Viewing the record as a
whole, we find that Smith has demonstrated by clear and
convincing evidence significantly subaverage general
intellectual functioning existing concurrently with significant
impairment in adaptive behavior, and that both conditions
were manifested prior to age eighteen and at the time Smith
committed the capital offense. The overwhelming weight of
the evidence compels this result. Smith is intellectually
disabled and may not be executed. Atkins, 536 U.S. at 316;
Hall, 134 S. Ct. at 1992. Accordingly, we reverse Smith’s
death sentence and remand to the district court with
instructions to grant the writ as to his capital sentence.

                      CONCLUSION

   The judgment of the district court is reversed. We
remand with instructions to grant the writ with respect to the
penalty phase and return the case to the state court to reduce
Smith’s sentence to life or natural life.

     REVERSED AND REMANDED.



SCHROEDER, Circuit Judge, concurring in the judgment and
concurring in part:

   I concur in all of Judge Reinhardt’s opinion except
Section II.C.2.
                          SMITH V. SCHRIRO                              55

REINHARDT, Circuit Judge, specially concurring:

    Obviously, I concur entirely in the majority opinion. I
write this special concurrence only because I feel compelled
to convey my serious concerns regarding the constitutionality
of Arizona’s Atkins statute. The issue before us is not limited
to the case of Robert Smith. Rather, the constitutional
infirmity of Arizona’s statute creates a recurring problem
with potentially far-reaching consequences: Arizona has
executed 15 inmates since Atkins,1 and 124 inmates remain on
its death row, the eighth highest number of any state.2 As
detailed below, if presented with the issue, I would likely
hold that in light of Hall v. Florida, 134 S. Ct. 1986 (2014),
both substantive prongs of Arizona’s intellectual disability
statute—governing “intellectual functioning” and “adaptive
behavior”—violate the Eighth Amendment because they
permit the execution of individuals whom Atkins deems
categorically ineligible for capital punishment.3

    In Atkins, the Supreme Court cited the clinical definition
for intellectual disability, but did not make clear that this

 1
    Bureau of Justice Statistics, “Prisoners executed under civil authority
in the United States, by year, region, and jurisdiction, 1977-2014” (Dec.
10, 2014).
    2
       This figure is current as of July 1, 2015. See Death Penalty
I nfo rmatio n Center , Dea th Ro w I n ma tes b y S t a te,
http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-
row-year?scid=9&did=188#state (last visited Jan. 12, 2016).
 3
    The third element of the Arizona statute requires that the onset of the
intellectual functioning and adaptive behavior deficits occur before the age
of eighteen. Ariz. Rev. Stat. Ann. § 13-703.02(K)(3) (2006); Ariz. Rev.
Stat. Ann. § 13-753(K)(3) (2015). There is no reason to believe that this
element is in itself unconstitutional.
56                    SMITH V. SCHRIRO

definition was binding on the states. In Hall, however, the
Court held that states must comply with elements of the
clinical definition about which there exists a national
consensus. Because both of Arizona’s substantive prongs are
more restrictive than the clinical definition, and because a
national consensus exists with regard to the pertinent
elements of the clinical definition, Arizona’s statute is in all
likelihood unconstitutional.

     A. The Supreme Court Embraces the Clinical
        Definition of Intellectual Disability

    In Atkins v. Virginia, 536 U.S. 304, 314–16, (2002), the
Supreme Court identified a “national consensus” against
executing the intellectually disabled, gleaned from its survey
of states passing legislation exempting the intellectually
disabled from the death penalty and the consistency of the
direction of such legislative change. The Court defined
“mental retardation” by citing two clinical definitions, one
from the ninth edition of the American Association on Mental
Retardation’s (AAMR) Mental Retardation: Definition,
Classifications, and Systems of Support (9th ed. 1992)
[hereinafter AAMR 9th ed.], and a second from the fourth
edition of the American Psychiatric Association’s (APA)
Diagnostic and Statistical Manual of Mental Disorders (4th
ed. 2000) [hereinafter DSM-IV]. Id. at 309 n. 3. The AAMR
defines intellectual disability as characterized by two clinical
elements: (1) “significantly subaverage intellectual
functioning,” (2) “existing concurrently with related
limitations in . . . adaptive skill areas,” which must “manifest
[themselves] before age 18.” AAMR 9th ed., supra, at 1.
The DSM-IV similarly defines intellectual disability as
consisting of (1) “significantly subaverage general
intellectual functioning,” (2) “accompanied by significant
                      SMITH V. SCHRIRO                         57

limitations in adaptive functioning,” where “[t]he onset . . .
occurs[s] before age 18 years . . . .” DSM-IV, supra, at 41.
The Court noted that the states’ “statutory definitions of
mental retardation are not identical, but generally conform to
the clinical definitions” set forth by the AAMR and APA.
Atkins, 536 US. at 317 n. 22.

    Atkins did not expressly state whether it was establishing
a substantive definition of intellectual disability as a matter of
federal law. The Court explained that “[t]o the extent there
is serious disagreement about the execution of mentally
retarded offenders, it is in determining which offenders are in
fact retarded.” Id. at 317. Citing Ford v. Wainwright,
477 U.S. 399 (1986), the Court explained that it “le[ft] to the
State[s] the task of developing appropriate ways to enforce
the constitutional restriction upon [their] execution of
sentences.” Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S.
at 405, 416–17) (first alteration added). Because the cited
sections of Ford address only procedural issues, and say
nothing regarding the substantive definition of insanity, a
straightforward reading of the Court’s statement is that it
leaves to the states the determination of procedural issues
only. Stated differently, under this reading of Atkins, the
Court did not leave to the states the task of defining
intellectual disability, but merely the task of determining
procedures capable of use in identifying intellectually
disabled persons. Because a majority of the Court in Ford
found Florida’s specific procedures for determining the
sanity of a condemned prisoner inadequate “to achieve even
the minimal degree of reliability required for the protection
of any constitutional interest,” it is reasonable to conclude
that a state’s discretion in even this area is similarly
circumscribed. 477 U.S. at 413; see also id. at 418 (plurality
opinion); id. at 424–25 (Powell, J., concurring in part and
58                    SMITH V. SCHRIRO

concurring in the judgment); id. at 427 (O’Connor, J.,
concurring in the result in part and dissenting in part).

    Nevertheless, courts generally interpreted Atkins to mean
that the Supreme Court did not establish a substantive
definition of intellectual disability, and instead included the
substantive definition of intellectual disability as among the
tasks left to the states. See Moorman v. Schriro, 672 F.3d
644, 648 (9th Cir. 2012) (“The Supreme Court in Atkins did
not define mental retardation as a matter of federal law.”);
Williams v. Cahill ex rel. Cnty. of Pima, 303 P.3d 532, 543
(Ariz. Ct. App. 2013) (“[E]very other state court that has
addressed the issue has determined or implied that Atkins
allows the states to define mental retardation without strict
adherence to the clinical standards. Of the thirty-three states
that still permit use of the death penalty, courts in
twenty-three have stated or implied that Atkins did not define
mental retardation, but instead left that task to individual
states.”).

    In Hall v. Florida, 134 S. Ct. 1986 (2014), however, the
Court held that, contrary to what the state courts and our own
court had thought, Atkins set forth a substantive definition of
intellectual disability encompassing those aspects of the
clinical definition about which a national consensus exists.
See id. at 1993 (“The question this case presents is how
intellectual disability must be defined in order to implement
these principles and the holding of Atkins.”); id. at 1999
(“The clinical definitions of intellectual disability . . . were a
fundamental premise of Atkins.”); see also Van Tran v.
Colson, 764 F.3d 594, 612 (6th Cir. 2014) (“In Hall, the
Court reasoned that the Constitution requires the courts and
legislatures to follow clinical practices in defining intellectual
disability.”). In Hall, the Court held unconstitutional
                      SMITH V. SCHRIRO                       59

Florida’s use of a strict IQ score cut-off of 70 without taking
into account the test’s margin of error, known as a “standard
error of measurement” or “SEM,” because this approach
deviated from the clinical definition embraced in Atkins, and
because a national consensus existed with regard to this
aspect of the clinical definition. Hall, 134 S. Ct. at 2000; see
id. at 1997–98 (finding a consensus against using a strict IQ
score cut-off of 70 without considering the margin of error
because such a practice is mandated by nine states at the
most, and because all but one of the state legislatures to have
considered the issue after Atkins and whose law has been
interpreted by its courts have foregone use of a strict cut-off
of 70).

     The Court concluded that although Florida’s statute
appeared facially consistent with Atkins, the Florida Supreme
Court had interpreted the provision more narrowly, rendering
it inconsistent with Atkins and thus unconstitutional. Id. at
1994, 2000. Specifically, the Court stated that the Florida
Supreme Court had held that an individual with an IQ score
above 70 does not have an intellectual disability and is barred
from presenting any other evidence to this effect, contrary to
the medical community’s views that IQ scores are inherently
imprecise and should be considered in light of their margin of
error. Id. at 1994–95. The Court explained that “IQ test
scores should be read not as a single fixed number but as a
range” taking into account the test’s inherent imprecision, and
that “an individual’s score is best understood as a range of
scores on either side of the recorded score.” Id. at 1995. The
Court thus held that “when a defendant’s IQ test score falls
within the test’s acknowledged and inherent margin of error,
the defendant must be able to present additional evidence of
intellectual disability, including testimony regarding adaptive
deficits.” Id. at 2001.
60                    SMITH V. SCHRIRO

        1. Arizona’s Definition of Intellectual
           Functioning is Unconstitutional

    While surveying other states’ approach to assessing the
intellectual functioning prong of intellectual disability, the
Hall Court questioned the constitutionality of Arizona’s
method for determining IQ scores under Atkins but did not
purport to decide the issue. Id. at 1996–97. The version of
Arizona’s statute in place at the time of Smith’s evidentiary
hearing, like the current version of the statute, includes a hard
IQ cut-off score of 70, and precludes a defendant from
presenting additional evidence of intellectual disability if all
of his or her IQ test scores are above 70. Ariz. Rev. Stat.
Ann. § 13-703.02(F) (2006); Ariz. Rev. Stat. Ann. § 13-
753(F) (2015). However, Arizona’s statute also instructs
courts to “take into account the margin of error for the test
administered.” Ariz. Rev. Stat. Ann. § 13-703.02(K)(5)
(2006); Ariz. Rev. Stat. Ann. § 13-753(K)(5) (2015). Thus,
like Florida’s statute, Arizona’s statute appears constitutional
on its face. However, as in Hall, Arizona’s highest court has
given the statute an unconstitutional construction. In State v.
Roque, 141 P.3d 368, 402–03 (Ariz. 2006) (en banc), the
Arizona Supreme Court rejected the defendant’s contention
that his test score be considered in light of the test’s margin
of error, explaining that “the [intellectual disability] statute
accounts for margin of error by requiring multiple tests.”
This approach to accounting for the margin of error—using
multiple tests without taking into consideration the margin of
error for each test administered—is expressly foreclosed by
Hall. Rather, under Hall, a state must apply the margin of
error—meaning the range of scores likely to represent the
subject’s actual IQ—to every test administered. See Hall,
134 S. Ct. at 1995–96 (“Even when a person has taken
multiple tests, each separate score must be assessed using the
                     SMITH V. SCHRIRO                       61

SEM . . . . [B]ecause the test itself may be flawed, or
administered in a consistently flawed manner, multiple
examinations may result in repeated similar scores, so that
even a consistent score is not conclusive evidence of
intellectual functioning.”). Thus, as in Hall, the state’s
highest court has interpreted a facially constitutional statute
to unconstitutionally exclude application of the SEM to each
individual IQ test administered. Because Arizona’s Supreme
Court construes the statutory requirement to consider a test’s
margin of error in a manner directly contrary to that required
by Hall, it renders unconstitutional the IQ provision of
Arizona’s statute—the intellectual functioning prong of
intellectual disability.

       2. Arizona’s Definition of Adaptive Behavior is
          Unconstitutional

    Although Hall did not address the second requirement for
intellectual disability—limitations in adaptive behavior—its
reasoning applies to this clinical element with equal force.
Where states fail to abide by the clinical definition of
“adaptive behavior” set forth in Atkins and adopted by a
national consensus of states, they violate the Eighth
Amendment just as they do in the case of intellectual
functioning because they permit the execution of individuals
whom Atkins deems ineligible for capital punishment. Hall,
134 S. Ct. at 2001. In short, under Hall, if a state defines
adaptive behavior more narrowly than the clinical definition,
and if the clinical definition has been adopted by a national
consensus of states, that prong likewise runs afoul of the
Eighth Amendment. Such is the case with Arizona’s
statutory definition of “adaptive behavior,” as construed by
its Supreme Court. The only difference is that here the
constitutional violation is even clearer.
62                       SMITH V. SCHRIRO

             a. A National Consensus Exists With Regard
                to the Clinical Definition

    As in Hall, to determine whether a national consensus
exists within the context of the Eighth Amendment, courts
look to “‘objective indicia of society’s standards.’” Id. at
1996 (quoting Roper v. Simmons, 543 U.S. 551, 563 (2005)).
To do so, we must consider the number of states that
“implement the protections of Atkins by” following the
clinical definition of adaptive behavior, id., either expressly
by statute or by judicial interpretation, see Roper, 543 U.S. at
564 (deeming as evidence of a national consensus those states
prohibiting the juvenile death penalty “by express provision
or judicial interpretation”), including in this figure those
states that have abolished the death penalty, see Hall, 134 S.
Ct. at 1997. As further evidence of a national consensus,
courts also consider the direction and consistency of the
change in how states have defined adaptive behavior since
Atkins was decided. See id. at 1997–98. If a court determines
that such a consensus exists, it proceeds to the next step and
determines whether, in its independent judgment, a state’s
definition of adaptive behavior is constitutional or
unconstitutional. Id. at 2000.

    There exists a clear national consensus in favor of using
the clinical definition of adaptive behavior. Only four states
including Arizona define “adaptive behavior” in non-clinical
terms.4 A fifth appears to require no showing of impaired
adaptive behavior at all, and in nine states the definition of
adaptive behavior is unclear. Because nothing in the nine
states’ statutes or case law suggests that courts in those states

  4
    A complete list of states referenced in this section and accompanying
authorities is provided in Appendix A.
                      SMITH V. SCHRIRO                         63

define adaptive behavior in non-clinical terms, the result is
that only five, or at the very most fourteen, states can be said
to permit the use of a non-clinical definition to analyze
adaptive behavior under Atkins.

    In contrast, thirty-six states prohibit use of a non-clinical
definition of adaptive behavior in determining whether an
individual is intellectually disabled under Atkins. These
include the nineteen states that have abolished the death
penalty, and one that has suspended its use. See id. at 1997
(counting among the national consensus those states that have
abolished the death penalty, and one that has suspended its
use). In addition, sixteen states expressly require use of the
clinical definition, either by statute or by interpretation of the
courts. See Roper, 534 U.S. at 564. The thirty-six states
prohibiting use of a non-clinical definition of adaptive
behavior far exceed the number of states the Supreme Court
has required to establish a national consensus. See Atkins,
536 U.S. at 313–15 (30 states prohibit the death penalty for
the intellectually disabled); Roper, 543 U.S. at 564 (30 states
prohibit juvenile execution).

    As in Hall, it is not simply the aggregate numbers that
determine the existence of a national consensus but also the
“[c]onsistency of the direction of the change.” 134 S. Ct. at
1997–98 (comparing the number of states that since Atkins
have passed legislation setting a strict IQ score cutoff at 70
with the number of states to either abolish the death penalty
or pass legislation allowing defendants to present additional
evidence of intellectual disability when their IQ test score is
above 70 but within the margin of error). Since Atkins was
decided, only one state has passed legislation defining
adaptive behavior in non-clinical terms. During the same
period, six states abolished the death penalty legislatively, a
64                       SMITH V. SCHRIRO

court invalidated the death penalty in a seventh, and six other
states passed legislation mandating use of the clinical
definition, either as expressly stated in the state’s statute or as
interpreted by the courts. Since Atkins, “no state that
previously [defined adaptive behavior in clinical terms] has
modified its law” to mandate a non-clinical definition. Id. at
1998.

    Having determined that a national consensus of states
forbids use of a non-clinical definition, as indicated by the
number of states taking this approach and the consistency of
the direction of change, the final step in a court’s inquiry is to
apply its own independent judgment to the constitutionality
of Arizona’s definition of adaptive behavior. See id. at
1999–2000.

             b. Arizona’s Definition is Narrower than the
                Clinical Definition

    The two clinical definitions cited in Atkins and endorsed
by a national consensus—the ninth edition of the AAMR and
the DSM-IV—define impaired adaptive behavior as the
existence of deficits in two or more skill areas among a list of
ten or eleven total such areas.5 Atkins, 536 U.S. at 309 n. 3.


  5
     The ten adaptive skill areas enumerated in the ninth edition of the
AAMR are communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics,
leisure, and work. AAMR 9th ed., supra, at 1, 5, 38. The DSM-IV sets
forth a nearly identical list of eleven skill areas, consisting of
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work,
leisure, health, and safety. DSM-IV, supra, at 41. See John H. Blume et
al., Of Atkins and Men: Deviations from Clinical Definitions of Mental
Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol'y 689, 691
                         SMITH V. SCHRIRO                             65

These deficits in themselves have been clinically deemed
sufficient to show the impairment of adaptive skills generally.
Other measures may, from a clinical standpoint, be under or
over-inclusive, but in any event they fail to meet the clinically
recognized requirements of Atkins and Hall. Courts generally
reach the adaptive behavior prong only in the case of
individuals who demonstrate an IQ of 70 or below, a score
limited to about 2.3% of the population. AAMR 9th ed.,
supra, at 37. When the individuals who meet the intellectual
functioning prong are evaluated for impairment of adaptive
skills under the Atkins clinical standards, only about 1% of
the general population actually satisfies that standard and thus
meets the clinical definition of intellectual disability. Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 38 (5th ed. 2013) [hereinafter DSM-V]. In
short, it is this 1% who are deemed to be intellectually
disabled and thus under the constitution ineligible for the
death penalty.

    Arizona’s means of determining impairment of adaptive
behavior differs from the nationally agreed upon clinical
definition even more substantially than does its IQ provision.
Unlike the nationally approved clinical means of determining
impaired adaptive behavior, which requires limitations in
only a minority of established skill areas, Arizona assesses
such limitations generally by examining on an overall basis
“the effectiveness or degree to which the defendant meets the
standards of personal independence and social responsibility
expected of the defendant’s age and cultural group.” Ariz.
Rev. Stat. Ann. § 13-703.02(K)(1) (2006); Ariz. Rev. Stat.
Ann. § 13-753(K)(1) (2015).


(2009) (describing the clinical criteria set forth in the AAMR and DSM-IV
as “virtually identical”).
66                    SMITH V. SCHRIRO

    Arizona courts interpret the state’s statutory provision in
a manner that is entirely different than that required by Atkins
and Hall. See State v. Grell, 135 P.3d 696, 709 (Ariz. 2006);
accord State v. Boyston, 298 P.3d 887, 895 (Ariz. 2013). In
Grell, the defendant asserted that he had satisfied the adaptive
behavior prong of Arizona’s statute by demonstrating deficits
in two of the eleven areas listed in the DSM-IV. Grell,
135 P.3d at 709. Rejecting Grell’s claim that compliance
with the DSM-IV, which Hall makes clear is the
constitutionally required standard, satisfies the Arizona
statute, the Arizona Supreme Court held that

       The defense claims to have clearly shown that
       Grell has deficits in two of the eleven areas
       listed in the DSM–IV and therefore has
       mental retardation. The DSM–IV definition of
       mental retardation, however, while similar in
       overall meaning, is not the same as the
       [Arizona] statutory definition. The statute
       requires an overall assessment of the
       defendant’s ability to meet society’s
       expectations of him. It does not require a
       finding of mental retardation based solely on
       proof of specific deficits or deficits in only
       two areas.

135 P.3d at 709 (citation omitted) (emphasis added).
Construing the Arizona statute, the Grell Court then found
that the defendant had failed to demonstrate a significant
impairment in adaptive behavior. Id.

   Thus, as construed by the Arizona courts, Arizona’s
means of determining impairment of adaptive behavior is not
simply different than the clinical means required by Hall: it
                      SMITH V. SCHRIRO                        67

specifically rejects the Supreme Court’s clinically based
substantive standard; it is substantially more restrictive than
the constitutionally required standard; and, it fails to cover
numerous individuals deemed to be suffering from impaired
adaptive behavior under the Constitution. Williams, 303 P.3d
at 548 (Eckerstrom, P.J., dissenting) (“Arizona’s [adaptive
behavior] statutory requirements substantially narrow the
class of persons who are defined as mentally retarded when
compared with the class of those who would be clinically
defined as such”). This is because, unlike the nationally
approved clinical standard, which requires deficits only in a
minimal number of adaptive skill areas, Arizona’s definition,
as interpreted by Arizona state courts, requires that
impairments be considered globally and determined on an
overall basis, regardless of the specific limitations that
compel an individual’s classification as adaptively impaired
under the constitutionally required clinical standard.

    Arizona’s standard departs from the clinical standard in
two fundamental ways. First, it requires deficits in both of
two general areas: social responsibility and personal
independence. By contrast, an individual evaluated under the
clinical definition need not manifest deficits in both of these
or any other general areas, so long as he demonstrates deficits
in at least two of a number of skill areas. Thus, individuals
who demonstrate “significant limitations in . . . adaptive
behavior” under the AAMR or DSM-IV standards based on
factors other than overall social responsibility and personal
independence (which are not discreet skill areas under either
standard) will fail to satisfy Arizona’s less inclusive standard.
The Arizona standard ignores the heterogeneous nature of
adaptive behavior and imposes a one-size-fits-all definition
that excludes many individuals falling under the clinical
definition. See AAMR 9th ed. 13 (“[T]here is no one way
68                    SMITH V. SCHRIRO

that defines ‘retarded’ performance. Every person with
mental retardation will differ in the nature, extent, and
severity of their functional limitations . . . . The current
definition reflects this fact by requiring the presence of
limitations in two or more of a variety of adaptive skill areas
but does not require any one single limitation or any specific
combination of limitations.”).

    The second way in which Arizona’s standard diverges
from the clinical definition is that it, unlike the clinical
definition, includes an “overall assessment of the defendant’s
ability to meet society’s expectations of him.” Grell,
135 P.3d at 709. This means that a court may conclude that
even an individual demonstrating adaptive deficits in the
required areas of personal independence and social
responsibility nevertheless does not meet the adaptive
behavior prong under the Arizona statute because he has
adaptive strengths in certain areas that outweigh adaptive
deficits in others. This distinction is critical, because the
clinical definition recognizes that adaptive weaknesses may
coexist alongside adaptive strengths, and requires that
adaptive skills be assessed independently of each other to
prevent strengths in certain areas from outweighing
weaknesses in others. See AAMR 9th ed. 6 (“Specific
adaptive limitations often coexist with strengths in other
adaptive skills or other personal capabilities”); id. at 7 (“[A]n
individual may have a strength in a particular adaptive skill
area (e.g., social skills) while having difficulty in another
skill area (e.g. communication); and . . . an individual may
possess certain strengths within a particular specific adaptive
skill, while at the same time having limitations within the
same area (e.g., functional math and functional reading,
respectively).”). Because Arizona’s statutory definition of
impaired adaptive behavior, as defined by its courts, is under-
                       SMITH V. SCHRIRO                           69

inclusive and would not cover numerous individuals who
would be deemed to suffer from impaired adaptive behavior
under the nationally recognized clinical definition, I believe
that the Arizona statute, when properly before a federal court,
will in all likelihood be held to be unconstitutional.

    Although the professional manuals cited in Atkins are no
longer the most current versions, the same conclusion is
equally likely with respect to the more recent editions.
Although Atkins cites the 9th edition of the AAMR and the
DSM-IV, see 536 U.S. at 308 n. 3, Hall cites the DSM-V and
the eleventh definition of the American Association of
Intellectual and Developmental Disabilities (AAIDD)
(formerly the AAMR) (11th ed. 2010), see 134 S. Ct. at 1994,
1995, 2000, 2001. Each of the editions cited in Hall retains
the essential premise and characteristic of the clinical
definition cited in Atkins and rejected by the Arizona
Supreme Court: an individual must demonstrate deficits in
only a number of skill areas among a larger list, deficits are
not required in any specific listed categories, and adaptive
deficits in certain categories are sufficient and need not be
balanced against or outweighed by strengths in other areas.6
See Williams, 303 P.3d at 547 n. 12 (Eckerstrom, P.J.,
dissenting) (“[T]he revised AAIDD definition [of adaptive
behavior] is not a meaningful departure from either the
DSM–IV criteria or the AAMR’s prior definitional standard
set forth in Atkins.”); Chase v. State, 171 So. 3d 463, 471
(Miss. 2015) (“The [AAIDD and DSM-V definitions of
intellectual disability] have not materially altered the
diagnosis of intellectual disability [cited in Atkins] but have
provided new terminology.”); United States v. Williams,

  6
    The relevant portions of each professional manual’s definition of
adaptive behavior are set forth in Appendix B.
70                   SMITH V. SCHRIRO

1 F.Supp.3d 1124, 1146–47 (D. Hawaii 2014). Most
important, the Arizona Court of Appeals strongly questioned
Atkins and expressly rejected the more recent version of the
clinical elements, holding that Arizona is not bound by the
AAIDD’s clinical guidelines because, under Grell, Arizona’s
definition of adaptive behavior differs from the clinical
definition. Williams, 303 P.3d at 541.

     As the foregoing discussion demonstrates, the Arizona
court denied Smith’s Atkins claim by applying a likely
unconstitutional statute.       An example of how that
unconstitutional statute works in practical effect is that with
respect to Smith, the Arizona court made no assessment as to
whether he met any two of the specific ten or eleven elements
listed in Atkins or any of the three domains or elements
referred to in Hall but instead relied on the state’s “overall
assessment of [his] ability to meet society’s expectations of
him” which the Arizona Supreme Court found to be the
requirement prescribed in the Arizona statute. This is directly
contrary to the substantive clinical standard required by
Atkins and Hall. Finally, in this respect, it appears evident
that, properly assessed, Smith qualifies as intellectually
disabled under both the initial and updated medical standards.

    As in this case, the right announced in Atkins may be all
that stands between an intellectually disabled defendant and
an unconstitutional execution. However, Arizona’s statutory
scheme, as interpreted by its courts, severely erodes that
right. Given the gravity of this issue and the likelihood that
it will arise in future cases, the Arizona legislature would do
well to amend its statutory scheme to bring it within the
boundaries of the Eighth Amendment.
                   SMITH V. SCHRIRO                      71

                      Appendix A

I. States that retain the death penalty and define
   “adaptive behavior” in non-clinical terms.

      State         Citation
 1    Arizona       Ariz. Rev. Stat. Ann. § 13–753(F);
                    State v. Grell, 135 P.3d 696, 709
                    (Ariz. 2006).
 2    Texas         Tex. Health & Safety Code
                    § 591.003(1); Ex parte Briseno,
                    135 S.W.3d 1, 8–9 (Tex. Crim. App.
                    2004).
 3    Utah          Utah Code Ann § 77–15a–102.
 4    Washington    Wash. Rev. Code
                    § 10.95.030(2)(d).

II. States that retain the death penalty but which do not
    require any showing of impaired adaptive behavior.

      State         Citation
 1    Kansas        Kan. Stat. Ann. §§ 21-6622(h), 76-
                    12b01(i); State v. Maestas, 298 Kan.
                    765, 783 (Kan. 2014).
72                 SMITH V. SCHRIRO

III.   States that retain the death penalty in which the
       definition of “adaptive behavior” is unclear.

       State        Citation
 1     Colorado     Colo. Rev. Stat. Ann.
                    § 18-1.3-1101(2).
 2     Georgia      Ga. Code Ann. § 17-7-131(a)(3).
 3     Indiana      Ind. Code § 35-36-9-2; Pruitt v.
                    State, 834 N.E.2d 90, 108 (Ind.
                    2005).
 4     Louisiana    La. Code Crim. Proc. Ann., art.
                    905.5.1(H)(1)(b).
 5     Montana      Montana has no Atkins statute and
                    no cases defining adaptive behavior.
 6     New          New Hampshire has no Atkins
       Hampshire    statute and no cases defining
                    adaptive behavior.
 7     South        S.C. Code Ann.
       Carolina     § 16-3-20(C)(b)(10); Franklin v.
                    Maynard, 588 S.E.2d 604, 605–06
                    (S.C. 2003).
 8     South        SDCL § 23A-27A-26.2.
       Dakota
 9     Wyoming      Wyo. Stat. Ann. § 7-11-301(a)(iii).
                        SMITH V. SCHRIRO                            73

Kansas, New Hampshire, and Wyoming have not carried out
any executions in decades.7 Colorado has carried out only
one execution since 1977, and Montana and South Dakota
have each carried out three;8 however, none of these cases
appears to have involved a claim raising the Atkins-Hall
issue. These states’ definitions thus deserve little weight.
See Hall, 134 S. Ct. at 1997; Atkins, 536 U.S. at 316.

IV.        States that have abolished the death penalty.9

1. Alaska
2. Connecticut
3. Hawaii
4. Iowa
5. Illinois
6. Massachusetts
7. Maryland
8. Maine
9. Michigan
10. Minnesota
11. Nebraska
12. North Dakota
13. New Jersey
14. New Mexico
15. New York
16. Rhode Island

           7
             Death Penalty Information Center,
http://www.deathpenaltyinfo.org/node/5741 (last visited July 31, 2015).
 8
     Id.
 9
   Death Penalty Information Center, States With and Without the Death
Penalty, http://www.deathpenaltyinfo.org/states-and-without-death-pen
alty (last visited July 20, 2015).
74                  SMITH V. SCHRIRO

17. Vermont
18. Wisconsin
19. West Virginia

In addition, Oregon has suspended its death penalty and has
executed only two individuals in the past 40 years. Hall,
134 S. Ct. at 1997. Oregon does not define “adaptive
behavior” by statute and Oregon courts have not considered
the issue.

V. States that retain the death penalty but utilize the
   clinical definition of “adaptive behavior.”

      State            Citation
 1    Alabama          Lane v. State, No. CR-10-1343,
                       2013 WL 5966905, at *5 (Ala.
                       Crim. App. 2013).
 2    Arkansas         Jackson v. Norris, 615 F.3d 959,
                       961–62 (8th Cir. 2010).
 3    California       In re Hawthorne, 35 Cal.4th 40,
                       47–48 (Cal. 2005); Campbell v.
                       Superior Court, 159 Cal. App. 4th
                       635, 641 (Cal. Ct. App. 2008).
 4    Delaware         Del. Code Ann. Tit. 11
                       § 4209(d)(3)(d)(1).
 5    Florida          Hodges v. State, 55 So.3d 515,
                       534 (Fla. 2010).
 6    Idaho            Idaho Code Ann. § 19-
                       2515A(1)(A).
                    SMITH V. SCHRIRO                      75

7    Kentucky         Bowling v. Commonwealth,
                      163 S.W.3d 361, 369–70 & n. 8
                      (Ky. 2008).
8    Missouri         Mo. Ann. Stat. § 565.030(6).
9    Mississippi      Chase v. State, No. 2013-CA-
                      01089-SCT, 2015 WL 1848126, at
                      *1–6 (Miss. 2015).
10   North            N.C. Gen. Stat. Ann. § 15A-
     Carolina         2005(a)(1)b.
11   Nevada           Ybarra v. State, 247 P.3d 269,
                      273-74 & n. 6 (Nev. 2011).
12   Ohio             State v. Lott, 97 Ohio St.3d 303,
                      305 (Ohio 2002).
13   Oklahoma         Okla. Stat. Ann. tit. 21
                      § 701.10b(A).
14   Pennsylvania     Commonwealth v. Hackett,
                      99 A.3d 11, 27 (Pa. 2014).
15   Tennessee        State v. Pruitt, 415 S.W.3d 180,
                      203-04 (Tenn. 2013).
16   Virginia         Va. Code Ann.
                      § 19.2–264.3:1.1(A); Walker v.
                      Kelly, 593 F.3d 319, 323 & n.2
                      (4th Cir. 2010).
76                   SMITH V. SCHRIRO

VI.    States that have passed legislation since Atkins
       defining adaptive behavior in non-clinical terms.

       State          Citation
 1     Utah           Utah Code Ann. § 77–15a–102
                      (West 2003).

VII.   States that have abolished the death penalty since
       Atkins.

       State          Citation
 1     Connecticut    2012 Conn. Pub. Acts no. 12–5.
 2     Illinois       725 Ill. Comp. Stat. Ann. 5/119-1
                      (West 2011).
 3     Maryland       Md. Code Ann. Correc. Servs.
                      §§ 3–901 et seq. (Lexis 2008).
 4     Nebraska       Neb. Laws. L.B. 268 (2015).
 5     New Jersey     N.J. Stat. Ann. § 2C:11–3(b)(1)
                      (West Supp. 2007).
 6     New            N.M. Stat. § 31-18-14 (2009).
       Mexico

The New York Court of Appeals invalidated New York’s
death penalty under the State Constitution in 2004. People v.
LaValle, 817 N.E. 2d 341 (N.Y. Ct. 2004). The legislature
has not voted to reinstate it.
                     SMITH V. SCHRIRO                      77

VIII. States that have passed legislation since Atkins
      mandating use of the clinical definition of adaptive
      behavior.

       State          Citation
 1     California     Cal. Penal Code Ann. § 1376(a)
                      (West Supp. 2003); In re
                      Hawthorne, 35 Cal.4th 40, 47–48
                      (Cal. 2005).
 2     Delaware       Del. Code Ann. tit. 11
                      § 4209(d)(3)(d)(1) (2002).
 3     Idaho          Idaho Code Ann. § 19-2515A(1)(A)
                      (2003).
 4     Nevada         Nev. Rev. Stat. § 174.098.7 (2003);
                      Ybarra v. State, 247 P.3d 269,
                      273-74 (Nev. 2011).
 5     Oklahoma       Okla. Stat. Ann. § 701.10b(A)
                      (2006).
 6     Virginia       Va. Code Ann. § 19.2–264.3:1.1(A)
                      (2003); Walker v. Kelly, 593 F.3d
                      319, 323 & n.2 (4th Cir. 2010).

In 2014, Louisiana amended a 2003 statute that had been
judicially construed as adopting the clinical definition, and
codified a new definition that uses clinical language from the
DSM-V but which has not yet been construed by courts. See
La. Code Crim. Proc. Ann. Art. 905.5.1(H)(1) (2003)
(amended 2009, 2014); State v. Williams, 22 So.3d 867,
880–81 & n. 10 (La. 2009); Brumsfield v. Cain, 744 F.3d 918,
924 (5th Cir. 2014), overruled on other grounds (citing State
78                  SMITH V. SCHRIRO

v. Dunn, 41 So.3d 454, 459 (La. 2010)); La. Code Crim. Proc.
Ann. Art. 905.5.1(H)(1)(b) (2014).
                                                             Appendix B

  Manual     Definition of Intellectual                Measurement                             Definition of Adaptive Skills
                     Disability
AAMR 9th    “Substantial limitations in      “limitations in two or more of the    “communication, self-care, home living, social skills,
ed.         present functioning. . . .       following applicable adaptive skill   community use, self-direction, health and safety,
            characterized by                 areas”2                               functional academics, leisure, and work.”3
            [1] significantly subaverage
            intellectual functioning,
            [2] existing concurrently
            with related limitations . . .
            adaptive skill areas”1
AAMR 10th   “characterized by                “performance that is at least two     “the collection of conceptual, social, and practical
ed.         [1] significant limitations      standard deviations below the         skills that have been learned by people in order to
            both in intellectual             mean of either (a) one of the         function in their everyday lives.”
            functioning and [2] in           following three types of adaptive     • Conceptual skills: “Language (receptive and
            adaptive behavior as             behavior: conceptual, social, or          expressive), Reading and writing, Money
                                                                                                                                               SMITH V. SCHRIRO




            expressed in conceptual,         practical, or (b) an overall score        concepts, Self-direction”
            social, and practical            on a standardized measure of          • Social skills: “Interpersonal, Responsibility, Self-
            adaptive skills.”4               conceptual, social, and practical         esteem, Gullibility (likelihood of being tricked or
                                             skills.”5                                 manipulated), Naiveteé, Follows rules, Obeys
                                                                                       laws, Avoids victimization”
                                                                                   • Practical skills: “Activities of daily living (eating,
                                                                                       transfer/mobility, toileting, dressing), Instrumental
                                                                                       activities of daily living (meal preparation,
                                                                                       housekeeping, transportation, taking medication,
                                                                                       money management, telephone use), Occupational
                                                                                                                                               79




                                                                                       skills, Maintains safe environments”6
                                                                                                                                                80
  Manual      Definition of Intellectual                Measurement                              Definition of Adaptive Skills
                      Disability
AAIDD 11th   “characterized by                “performance that is                   “the collection of conceptual, social, and practical
ed.          [1] significant limitations in   approximately two standard             skills that have been learned and are performed by
             both intellectual                deviations below the mean of           people in their everyday lives.”
             functioning and [2] in           either (a) one of the following        • Conceptual skills: “language; reading and writing;
             adaptive behavior as             three types of adaptive behavior:          and money, time and number concepts”
             expressed in conceptual,         conceptual, social or practical or     • Social skills: interpersonal skills, social
             social, and practical            (b) an overall score on a                  responsibility, self-esteem, gullibility, naiveteé
             adaptive skills.”7               standardized measure of                    (i.e. wariness), follows rules/obeys laws, avoids
                                              conceptual, social, and practical          being victimized, and social problem solving
                                              skills.”8                              • Practical skills: activities of daily living (personal
                                                                                         care), occupational skills, use of money, safety,
                                                                                         health care, travel/transportation,
                                                                                         schedules/routines, and use of the telephone”9
DSM-IV       “[1] significantly               “significant limitations in adaptive   “communications, self-care, home living,
             subaverage general               functioning in at least two of the     social/interpersonal skills, use of community
                                                                                                                                                SMITH V. SCHRIRO




             intellectual functioning . . .   following skill areas”11               resources, self-direction, functional academic skills,
             that is accompanied by                                                  work, leisure, health, and safety”12
             [2] significant limitations in
             adaptive functioning”10
 Manual   Definition of Intellectual             Measurement                            Definition of Adaptive Skills
                  Disability
DSM-V     “a disorder . . . that       “at least one domain of adaptive     “Without ongoing support, the adaptive deficits limit
          includes both                functioning–conceptual, social or    functioning in one or more activities of daily life, such
          [1] intellectual and         practical–is sufficiently impaired   as communication, social participation, and
          [2] adaptive functioning     that ongoing support is needed in    independent living, across multiple environments,
          deficits in conceptual,      order for the person to perform      such as home, school, work, and community.”
          social, and practical        adequately in one or morel life
          domains.”                    settings at school, at work, at      Adaptive functioning deficits result in a “failure to
                                       home, or in the community.”13        meet developmental and socio-cultural standards for
                                                                            personal independence and social responsibility.”14

                                                                            “Adaptive functioning involves adaptive reasoning in
                                                                            three domains: conceptual, social, and practical.”
                                                                            • Conceptual domain: competence in memory
                                                                                language, reading, writing, math reasoning,
                                                                                acquisition of practical knowledge, problem
                                                                                                                                        SMITH V. SCHRIRO




                                                                                solving, and judgment in novel situations, among
                                                                                others.”
                                                                            • Social domain: “awareness of others’ thoughts,
                                                                                feelings, and experiences; empathy; interpersonal
                                                                                communication skills; friendship abilities; and
                                                                                social judgment, among others.”
                                                                            • Practical domain: learning and self-management
                                                                                across life settings, including personal care, job
                                                                                responsibilities, money management, recreation,
                                                                                self-management of behavior, and school and
                                                                                work task organization, among others.”15
                                                                                                                                        81
                                82
1. AAMR 9th ed., at 1, 5.

2. Id.

3. Id. at 5, 38.

4. AAMR 10th ed., at 39.

5. Id. at 13, 14.

6. Id. at 14, 42, 198.

7. AAIDD 11th ed., at 221.

8. Id. at 43.

9. Id. at 217, 218, 222, 224.

10. DSM-IV, at 41.

11. Id.
                                SMITH V. SCHRIRO




12. Id.

13. Id. at 38.

14. DSM-V, at 33.

15. Id. at 33, 37.
                           SMITH V. SCHRIRO                              83

CALLAHAN, Circuit Judge, dissenting:

    The one thing everyone appears to agree on is that Smith
is not intellectually disabled.1 When tested in 2005 the
experts found that he had an IQ of between 87 and 93, well
within the low-average to average range of intellectual
ability. Yet despite this fact, the majority reverses because it
is certain that Smith was intellectually disabled in 1980 when
he murdered Sandy Owen. The majority reaches this
conclusion by disregarding the findings of the state courts,
denying those courts the deference they are due, and
expressing supreme confidence in its own ability to detect
past intellectual disability despite substantial conflicting
evidence and the fact that Smith is not now intellectually
disabled. Accordingly, I dissent.

    The majority recognizes that although Smith filed his
federal habeas petition prior to the effective date
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the state court factual findings are entitled to a
presumption of correctness.2 Nonetheless, the majority

  1
    As does the majority opinion, I use the term “intellectually disabled”
rather than “mentally retarded” except where the term is used in quoted
material.
 2
      Under pre-AEDPA law:

          We review the district court’s decision to grant habeas
          relief de novo. We review de novo questions of law and
          mixed questions of law and fact, whether decided by
          the district court or the state courts. The district court’s
          factual findings are reviewed for clear error. We
          therefore accept its findings “absent a definite and firm
          conviction that a mistake has been committed.” State
          court factual findings are entitled to a presumption of
84                     SMITH V. SCHRIRO

concludes that the state court’s factual determination is “not
fairly supported by the record.” Op. 11. The majority is
wrong as an objective review of the record discloses ample
evidence to support the Arizona courts’ determination that
Smith did not sustain his burden of showing that he was
intellectually disabled in 1980.

    Section II C 2 of Judge Reinhardt’s “opinion” also
contains his view—for which there is no concurrence—that
the Arizona courts applied an “unconstitutional standard of
proof.” This argument is based on an unreasonable reading
of the trial court’s decision and a failure to give the state
courts’ decisions the deference they are due. Judge
Reinhardt’s opposition to the death penalty in Section 2 C of
his opinion is neither the ruling of this panel nor of the Ninth
Circuit.

     I. The Record Adequately Supports the
        Determination that Smith Failed to Show He Was
        Intellectually Disabled at the Time of the Murder
        and His Conviction.

    The majority boldly asserts that the finding that Smith has
not shown that he was intellectually disabled at the time of
the murder and his trial is not fairly supported by evidence.
Op. 11. The majority recognizes, as it must, that there was
conflicting evidence, but argues that “once we look behind
each expert’s conclusion and consider the evidence on which


        correctness, subject to eight exceptions enumerated in
        the previous version of 28 U.S.C. § 2254(d).

Sivak v. Hardison, 658 F.3d 898, 905–06 (9th Cir. 2011) (internal
citations omitted).
                      SMITH V. SCHRIRO                       85

he relies,” the majority of the evidence supports a finding of
intellectual disability. Op. 12 n. 7. This is not a fair reading
of the record.

   A. The Record

   1. The Underlying Crime and Prior Judicial Proceedings

    In our 1999 en banc opinion affirming the denial of
Smith’s first federal habeas appeal, we described the crime as
follows:

       Lambright and Smith were traveling across
       the country with Lambright’s girlfriend,
       Kathy Foreman. Smith was troubled by the
       fact that while Lambright and Foreman had
       intercourse in his presence, he did not have
       anybody along to satisfy him. For his part,
       Lambright thought that he “would like to kill
       somebody just to see if he could do it.” [State
       v. Lambright], 138 Ariz. [63,] 66 [(1983)]
       . . . . They decided that both desires could be
       fulfilled, and they set out with Foreman to
       find a victim. They found Sandy Owen and
       kidnaped her. Smith raped her on the way to
       a mountain site where they all got out of the
       car and Smith raped Owen again as Lambright
       and Foreman had intercourse. What happened
       next was that Smith began choking Owen, and
       Lambright declared that she must be killed.
       So, “Lambright took Foreman’s knife out of
       its sheath and began stabbing the victim in the
       chest and abdomen, twisting the knife around
       inside of her. Smith held one of the victim’s
86                    SMITH V. SCHRIRO

       arms while she was being stabbed, and
       Foreman held the other arm.” Id. at 67. . . .
       After that, “Smith unsuccessfully tried to
       break Ms. Owen’s neck by twisting her head.
       Then Lambright, Foreman or both began
       cutting deeply into the victim’s neck with the
       knife. . . . The victim remained alive, and was
       at least semiconscious, as she attempted to
       raise herself up on one arm. Lambright
       picked up a large rock and hurled it at her
       head. Foreman testified that as he threw the
       rock he yelled ‘Die, bitch.’” Id. The three
       then drove off in a celebratory mood, playing
       the piece “We Are the Champions” as they
       went. See id. Once caught, the trio’s song
       changed. Foreman turned state’s evidence,
       was given immunity, and testified against her
       erstwhile lover and his friend. Lambright
       confessed, but deemed Smith to be the worst
       of the three. Smith, too, confessed, but he
       dubbed Foreman and Lambright as the real
       killers.

In 1982, an Arizona jury convicted Robert Douglas Smith of
first-degree murder, kidnaping, and sexual assault. Schriro
v. Smith, 546 U.S. 6 (2005). He was given the death penalty.

    Smith’s appeals and post-conviction proceedings proved
unavailing. See Stewart v. Smith, 536 U.S. 856 (2002). It
was not until after the Supreme Court had denied him relief,
that around 2004 Smith alleged for the first time that he was
intellectually disabled and thus pursuant to Atkins v. Virginia,
536 U.S. 304 (2002), could not be executed. See Schriro v.
Smith, 546 U.S. 6 (2005). In December 2005, we entered an
                     SMITH V. SCHRIRO                       87

order suspending Smith’s federal proceedings and directing
his counsel “to pursue state proceedings in Arizona to
determine whether the state is prohibited from executing the
petitioner in accordance with Atkins.” Smith v. Schriro, No.
96-99025 (Dec. 12, 2005). The Arizona Superior Court, Pima
County, held extensive proceedings concerning Smith’s
intellectual disability before issuing its opinion on March 27,
2008.

   2. The Evidence Concerning Intellectual Disability

    In 1964, when Smith was 15, he took the Otis IQ test and
received scores of 62 and 71. The state court found that the
“Otis test was developed in approximately the 1920’s and
was outmoded at the time it was reportedly given to [Smith]
in 1964.” More importantly, “[t]here is no evidence
concerning the qualifications of the persons administering the
tests, whether an appropriate protocol was followed, the
specific circumstances of [Smith] at the times of the tests, or
any of the other information required to determine the
validity of these school record entries.”

    Moreover, by this time, Smith’s dysfunctional and
abusive childhood had already had an effect on his education.
At age 15 he scored in the 2nd to 5th percentiles on the
Stanford Achievement Test, placing him seven years below
his age level. Moreover, his school transcripts reveal that he
received nearly all “Ds” and “Fs” in his academic studies.
Indeed, Smith dropped out of school when he was 16.

    Between the time he left school at the age of 16, and his
arrest some 15 years later in 1980, Smith had many jobs, a
number of unstable relationships, and frequent changes of
residence. The state court found that those who knew Smith
88                    SMITH V. SCHRIRO

stated that “he was one of a group of young men which
included his co-defendant, Joe Lambert, Sidney LeBalanc and
Charles McCarver, who lived together, worked together, and
traveled together at various times during the 1970’s.” The
state court found that the evidence from the 1970’s showed
that Smith was a full participant in his adult life. It found that
Smith:

        worked as a diesel mechanic, garage
        mechanic, car repossessor, truck driver, cable
        installer and apartment maintenance provider,
        among other things. While Defendant held a
        large number of jobs, he was consistently
        employed.       Defendant’s last employer
        indicated, in a form attached to Defendant’s
        pre-sentence report, that Defendant worked
        for approximately four months as a mechanic
        employed to maintain and repair equipment,
        that he received a raise after three months,
        that his work was rated “satisfactory” for job
        performance, work skills and attendance, and
        “ex cellent” for cooperation wi t h
        employer/supervisor and other employees,
        and that he would be considered for re-
        employment.

    Smith’s friend, LeBlanc, who sometimes worked for the
same employer as Smith, stated that Smith had difficulties
with paperwork and written tests, as opposed to hands-on or
mechanical tasks. Similarly, Robert Lebrecque, a former
maintenance man with the Arizona Department of
Corrections, who worked with Smith for about eight years
after he began serving his prison term, commented that
although Smith “was a little slow at the beginning . . . [i]f I
                         SMITH V. SCHRIRO                             89

showed him how to do something, I only had to show him
once.” Lebrecque recalled that Smith could read, “but
seemed to have a hard time understanding what the written
words meant.”3

    Smith was married five times in approximately 15 years.
The state court, however, noted that while Smith “made poor
choices in partners and had great difficultly maintaining
relationships with women, this fact can be explained as
arising from his loveless childhood just as well as it can be
viewed as an indicator of the limitations of mental
retardation.” Smith’s last marriage, which was entered into
between the time of the offense and his arrest, “showed
promise of being quite different from the others despite two
incidents of violence in the relationship.” His fifth wife had
known Smith since childhood. During this marriage Smith
worked as a truck driver and performed dry-wall and other
work in the apartment complex. His wife did not work
outside the home and Smith supported her and her three
children, for whom he was a loved, active father figure.

    After he was arrested, the pre-sentence report
characterized Smith as having a “borderline mentality.” The
state court, however, gave this description little weight
because the “experience of this probation officer is unknown,
and there was no indication that he had training as a
psychologist or other mental health professional that would




 3
   Lebrecque further noted that because of Smith’s “lack of basic grade-
school academic skills, and his short stature, Lebrecque initially thought
his maturity level was that of a 12 to 14 year old.”
90                         SMITH V. SCHRIRO

provide the expertise required for any diagnostic
observations.”4

 4
     The state court further explained:

          The pre-sentence report contains detailed descriptions
          of the offense, including a recitation of information
          obtained from written statements of Defendant to the
          court and his statements to law enforcement officers.
          Information concerning Defendant’s social, marital,
          educational, religious, and employment history, was
          also apparently obtained primarily from Defendant.
          The pre-sentence report does not mention any difficulty
          in obtaining this information from Defendant. The
          section entitled “Physical and Mental Health,” while
          noting Defendant’s depression, “very poor self
          concept,” sexual issues, drug abuse and early
          psychiatric treatment, did not mention mental
          retardation. The references to retardation were two. In
          the “education” section, the pre-sentence report writer
          stated: “Appended records indicate that intelligence
          tests administered during his eighth grade year revealed
          an IQ of 71, indicating that he is borderline but
          educable.” The “Evaluation Summary” includes the
          following sentence: “His borderline mentality probably
          makes him an easy person to manipulate and somewhat
          of a follower in social situations.” Defendant’s so-
          called “borderline mentality” is not mentioned as a
          mitigating circumstance - - in fact, the pre-sentence
          report noted that, “In view of the defendant’s known
          history and the circumstances of the instant offense, the
          Court may feel that there are no applicable mitigating
          circumstances.” It is at least as likely that the
          “borderline” language in the Evaluation Summary
          section simply reflected the pre-sentence report writer’s
          knowledge of the 1964 IQ test referenced in the school
          records, as that the pre-sentence report writer based the
          comment on an analysis of Defendant’s history and
          characteristics grounded in the appropriate expertise.
          There simply is no way to know.
                       SMITH V. SCHRIRO                          91

    In addition, two mental health professionals, Dr. Martin
Levy and Dr. John LaWall, performed Rule 11 evaluations of
Smith in 1982 for purposes of his criminal trial proceedings.
Both found Smith to be competent. Dr. Levy noted that
Smith was neatly dressed and displayed logical, coherent
thought.5 Dr. LaWall also noted that Smith “was neat and
cooperative, and his mood somewhat depressed, with
somewhat blunted affect.” Dr. LaWall’s report indicated that
Smith was oriented to time, place, and person, with intact
memory, and there was “no evidence of any disturbance of
the form or content of his thinking whatsoever.” Dr. LaWall
indicated that Smith “probably functions in the average range
of intelligence,” but probably has a personality disorder with
both passive-aggressive and antisocial features.

    3. The Post-2005 Evaluations

    After our 2005 order, proceedings were commenced in
the Arizona Superior Court, Pima County, for the sole
purpose of complying with our order that the state court
determine whether Arizona was prohibited from executing
Smith in accordance with Atkins. The Superior Court noted
that the burden was on Smith “to prove the claim of mental
retardation by clear and convincing evidence” and that both
parties acknowledged that the court was “bound to follow the
decision of the Arizona Supreme Court in State v. Grell
(Grell II), 212 Ariz. 516, 521, 135 P.3d 696, 701 (2006) in
this regard.”

    Smith was subjected to testing and evaluations by experts
retained by both Smith and Arizona. Testing in August 2005

  5
    Smith apparently complained of memory problems, but there was no
evaluation for organic brain syndrome or seizure disorder.
92                   SMITH V. SCHRIRO

by Dr. Sergio Martinez, Arizona’s expert, resulted in a
finding that Smith “had an IQ score of 93 on the WAIS-III
and a score of 89 on a second test, the Slosson Intelligence
Test - Revised, within the low-average to average range of
intellectual ability.” Testing by Dr. Thomas Thompson,
Smith’s expert, utilizing a different appropriate testing
instrument, the Reynolds Intellectual Assessment Scale with
subtests, resulted in a finding that Defendant, at the time of
the testing, had a score of 93. Thus, both experts agree that
as of 2005 Smith was not intellectually disabled.

    Dr. Thompson, however, was of the opinion that there
was a “high probability” that Smith “was mentally retarded
at the time the crime was committed in 1980, but that his
functioning has improved as a result of his stable, structured
prison life and appropriate medication.” Dr. Thompson relied
heavily on the Otis test scores from 1964, the Stanford test
scores, early grades and recollections by relatives and others
concerning Smith’s childhood and early adolescence. Dr.
Thompson appeared “to view mental retardation as a fluid
condition responsive to any number of changes in a patient’s
environment, nutrition, and physical, mental and emotional
health.” He considered Smith’s low test scores, low grades,
lack of social skills and other deficits as valid indicators of
mental retardation.

    When asked about evidence of Smith’s intellectual
disability in 1980, Dr. Thompson referred to the 1964 IQ tests
and noted that the presentence evaluation indicated that he
functioned in a borderline range. However, when informed
of the two Rule 11 evaluations by Drs. Levy and LaWall, he
acknowledged that he would have expected retardation to
have been noted in their reports.
                        SMITH V. SCHRIRO                             93

    Dr. Thompson described Smith’s life after he left school
as “characterized by instability in employment, personal
relationships and residence, and showed signs of impulsivity
and deficits of adaptive functioning, all characteristic of
mental retardation.” Nonetheless, he acknowledged that
Smith “seemed to have some qualitative independent living
skills.”6

    In contrast, Dr. Martinez, after giving Smith IQ tests and
meeting with him, testified that there was a high degree of
probability that he was not retarded at the time of the offense.
He agreed that increases in intellectual functioning could
occur within a highly enriched learning environment, but that
a 30-point increase in IQ was unlikely and he did not view
prison as an enriching environment.

      4. The Arizona Superior Court’s Decision

    On March 27, 2008, the Arizona Superior Court issued a
19-page ruling that Smith had failed to show that he was
intellectually disabled at the time of his trial and that Arizona
was therefore not precluded by Atkins from executing him.

    The court first held that the parties agreed that the burden
to prove intellectual disability was on Smith, pursuant to
Grell II, 212 Ariz. at 521. However, in view of the
procedural differences between Grell II and Smith’s case, the


  6
    In reference to Smith’s prior 1970 hospitalization and diagnosis for
personality disorder with psychotic features, Dr. Thompson
“acknowledged that this disorder included features described as
‘inadequate and immature,’ and that this condition included anxiety and
depression which could display the impulsivity causing the job changes
and relationship issues characterizing Defendant’s early adulthood.”
94                        SMITH V. SCHRIRO

court “considered the evidence under the preponderance of
evidence standard applicable to Rule 32 proceedings.” The
court held that Smith had failed to show that he was entitled
to relief under either the clear and convincing evidence
standard or the preponderance of evidence standard.

     The trial court expressed serious concerns with Dr.
Thompson’s perspective. It noted that his view of “mental
retardation as a fluid condition responsive to any number of
changes in a patient’s environment, nutrition, and physical,
mental and emotional health,” was not necessarily consistent
“with the definition of mental retardation provided by
Arizona law, and the procedures by which mental retardation
is to be determined under A. R. S. § 13-703.02.”7 The court
further noted that Dr. Thompson placed considerable weight
on the 1964 IQ tests and the pre-sentence report’s indication
of Smith’s “borderline functioning.” It also observed that Dr.
Thompson gave little weight to Smith’s ability to live on his
own for 15 years between the time he left school and the
murder. The court concluded that Dr. Thompson’s “analysis
does not permit a finding, with any degree of accuracy, of
Defendant’s level of ‘general intellectual functioning’ either

 7
     The state court commented:

          The State . . . contends that the family dysfunction and
          abuse, faulty nutrition, depression and anxiety rather
          than mental retardation contributed to the low test
          scores, low grades and other signs. In other words, the
          defense view is that Defendant’s early difficulties cause
          his retardation, and that he got better in prison. The
          prosecution’s perspective is that Defendant’s
          dysfunctional background and other mental health
          problems rather than mental retardation caused the
          factors pointed to by Dr. Thompson as diagnostic of
          retardation.
                    SMITH V. SCHRIRO                     95

before the age of 18, or in the period 1980–82.” Thus, his
evaluation “does not support the conclusion that during the
pertinent time period, Defendant was mentally retarded.”

    The Superior Court recognized that Smith’s
“dysfunctional family and troubled early life undoubtedly
affected his circumstances in an adverse way,” and that he
likely “has suffered from clinically cognizable conditions
probably including a personality disorder.” However, the
circumstances “do not point to mental retardation with any
degree of certainty.” Based on all the evidence the Superior
Court found that:

       Defendant has failed to meet his burden of
       showing that he was mentally retarded at the
       time of the offense and trial in this case.
       There was insufficient evidence from which
       this Court could find that Defendant exhibited
       “significantly subaverage general intellectual
       functioning” during the period of the offense
       and his trial. While unorthodox and unstable,
       Defendant’s pre-arrest life did not show
       “significant impairment in adaptive behavior”
       existing concurrently with the deficit in
       general intellectual functioning.      In the
       absence of adequate information concerning
       the early Otis IQ tests, and in view of the
       alternative explanations for his early school
       and social deficits, Defendant failed to show
       the onset of mental retardation before the age
       of 18. The Court therefore FINDS that the
       State of Arizona is not precluded, on Atkins
       grounds from executing Defendant.
96                     SMITH V. SCHRIRO

     5. The Arizona Court of Appeals’ Opinion

    Smith appealed to the Arizona Court of Appeals, which
unanimously affirmed the Superior Court. Smith v. Kearney,
No. 2CA-SA-2008-0019, 2008 WL 2721155 (Ariz. App. Jul.
11, 2008). It noted that the trial court “had considered the
evidence under the applicable clear-and-convincing standard
as well as under the lesser burden of a preponderance of the
evidence standard that applies to post-conviction
proceedings.” The appellate court reviewed the evidence and
the Superior Court’s decision noting that the trial court had
found: (a) Dr. Thompson’s opinion was based on an approach
to defining mental retardation that was inconsistent with the
requirements of Arizona law; (b) lay witness Martha Hight’s
opinion that Smith was mentally retarded was inconsistent
with the testimony of witnesses who had lived with Smith in
the 1970’s; and (c) Smith’s own written statements were
“lengthy, neatly written, logical, detailed, structured and
coherent.” The appellate court concluded that the Superior
Court had carefully considered all the evidence and
“exercised its discretion in resolving conflicts in the evidence,
in assessing the reliability of the test results, and credibility
of the witnesses, and in weighing evidence.” The court
concluded that it had no basis for interfering with the
Superior Court’s discretionary judgments or for re-weighing
the evidence.8

     6. The District Court’s Order Denying Habeas Relief

   Following the conclusion of his state court proceedings,
Smith renewed his proceedings in the United States District

  8
    The Arizona Supreme Court summarily denied Smith’s petition for
review.
                            SMITH V. SCHRIRO                              97

Court for the District of Arizona. In a 21-page order issued
on December 3, 2012, the court found that Smith’s Atkins
related claims were without merit.

    The court recognized that because Smith filed his initial
federal habeas petition prior to AEDPA’s effective date, pre-
AEDPA standards applied. Accordingly, the court reviewed
de novo mixed questions of law and fact as well as pure
questions of law. See Robinson v. Schriro, 595 F.3d 1086,
1099 (9th Cir. 2010). However, the court held, citing
Robinson, that the state court factual findings were entitled to
a presumption of correctness, subject to eight exceptions
enumerated in the previous version of 28 U.S.C. § 2254(d).9



 9
     The district court listed the exceptions as:

           (1) that the merits of the factual dispute were not
           resolved in the State court hearing;

           (2) that the factfinding procedure employed by the State
           court was not adequate to afford a full and fair hearing;

           (3) that the material facts were not adequately
           developed at the State court hearing;

           (4) that the State court lacked jurisdiction of the subject
           matter or over the person of the applicant in the State
           court proceeding;

           (5) that the applicant was an indigent and the State
           court, in deprivation of his constitutional right, failed to
           appoint counsel to represent him in the State court
           proceeding;

           (6) that the applicant did not receive a full, fair and
           adequate hearing in the State court proceeding; or
98                        SMITH V. SCHRIRO

The district court, citing Marshal v. Lonberger, 459 U.S. 422,
432 (1983), held that before it could reject a state court’s
factual determination it would have to conclude “that the state
court’s findings lacked even fair support in the record.” It
further determined that whether Smith “is mentally retarded
is a question of fact.”

    The district court noted that Smith did not dispute that the
state court’s finding as to intellectual disability was entitled
to a presumption of correctness.10 The district court


         (7) that the applicant was otherwise denied due process
         of law in the State court proceeding;

         (8) or unless . . . the Federal court on consideration of
         [the relevant] part of the record as a whole concludes
         that such factual determination is not fairly supported
         by the record.

28 U.S.C. § 2254(d) (1994).
   10
      Smith nonetheless sought de novo review for at least one of four
grounds: “(1) an inadequate factfinding procedure by the state court;
(2) the failure to adequately develop material facts at the state court Atkins
hearing; (3) the failure to provide Petitioner a full, fair and adequate
hearing; and (4) a violation of Petitioner’s due process rights.” The
district court rejected Smith’s claim to a right to funding for a Positron
Emission Tomography (PET) scan and his assertion that he was entitled
to jury determination on mental retardation. The majority opinion does
not discuss either of these claims. Rejecting Smith’s other grounds, the
district court noted that the “state court provided a lengthy period of time
for Petitioner to prepare for the Atkins hearing and authorized Petitioner’s
expert of choice, his initial diagnostic testing requests, investigative
resources, and numerous depositions of lay witnesses.” It noted that
Smith “identifies nothing to support a finding that the state court’s
factfinding procedures were inadequate, that material facts were left
undeveloped, that the state court failed to provide a full and fair hearing,
or that his due process rights were violated. Accordingly, the district court
                        SMITH V. SCHRIRO                            99

concluded that there was ample evidence in the record to
support the state court’s conclusion that Smith had failed to
establish either “subaverage general intellectual functioning”
or “significant impairment in adaptive behavior” before the
age of 18. In particular, the district court agreed that the 1964
Otis tests were unreliable and entitled to little weight. It
noted that the record was “devoid of any evidence concerning
the testing, including the raw test data, identification of the
administrators and their qualifications, or the protocols
followed.” Moreover, both Drs. Thompson and Martinez
testified that the Otis test was outdated when administered to
Smith in 1964 and would not be used today to determine an
individual’s IQ.

    The district court further commented:

        [A]s noted by the state court, the evidence
        presented at the hearing indicated it is just as
        likely that Petitioner’s poor school
        performance and unstable lifestyle was the
        result of a severely dysfunctional upbringing
        and personality disorder as it was mental
        retardation. Petitioner led a transient lifestyle,
        frequently changing employment and
        residences, but many of his jobs (such as
        being a mechanic, a cable installer, and a
        truck driver) required at least a minimal
        degree of intellectual functioning. Although
        witnesses agreed that Petitioner is not “book
        smart,” he learns quickly when shown how to
        do something. In addition, the record


found that Smith had not overcome the presumption of correctness on any
of these grounds.
100                   SMITH V. SCHRIRO

        supports a finding that Petitioner began living
        an independent life after dropping out of
        school at age 16 and was not dependent on
        others to function in his daily life.

The district court concluded that Smith had not overcome the
presumption of correctness that attached to the state court’s
finding that he was not intellectually disabled at the time of
the offense.

    B. Analysis

    The majority does not question the adequacy of the state
court’s proceedings. Instead, invoking the eighth exception
enumerated under the 1994 version of § 2254(d), it concludes
that the state court’s findings are “not fairly supported by the
record.” Op. 11. This is simply wrong. An objective review
of the conflicting evidence reveals that there is substantial un-
refuted evidence supporting the state court’s determination
that Smith was not intellectually disabled in 1980. The
majority’s preference for Dr. Thompson’s perspective does
not justify its setting aside all the evidence—including
portions of Dr. Thompson’s testimony—that supports the
determinations by the state court and the district court that
Smith has not demonstrated that he was intellectually
disabled in 1980.

    First, the majority cannot deny that as of 2005, Smith was
not intellectually disabled. Even Dr. Thompson’s test
indicated that Smith had an IQ of 93. Thus, this case is
relatively unique in that the courts are required to determine
whether a person who now is clearly not intellectually
disabled, was intellectually disabled some 25 years earlier
when he committed a murder and was tried. The fact that
                        SMITH V. SCHRIRO                           101

Smith was not intellectually disabled in 2005, gives rise to at
least a presumption that Smith was not intellectually disabled
in 1980.

    Second, the evidence supporting the majority’s
determination is inherently problematic. Smith’s 1964 IQ
tests, his poor performance on the Stanford achievement tests,
and his poor grades could be signs of intellectual disability.
But the test administered in 1964 was out-moded and there is
nothing in the record as to how the test was administered.
Also, by the time that the test was administered, Smith had
failed in school, and there is nothing to suggest that he made
any effort to perform well on the test.11 Moreover, there is
substantial evidence that Smith had difficulty with the written
word, which indicates that his written test results were likely
to underrate his intelligence.

    Other than the test scores and his academic performance,
the evidence of Smith’s alleged intellectual disability is
primarily the testimony of lay witness Martha Hight who
compared Smith to her sister who had been diagnosed as
intellectually disabled. However, the trial court found that
her statement “was inconsistent with the testimony of others
who lived with [Smith] at or near the same period of time in
the 1970’s.”

    There was evidence, as the majority notes, of Smith’s
horrendous childhood. That his stepfather frequently belittled
him and beat him. That his mother frequently ignored her


  11
     Dr. Martinez testified as to the importance of an awareness of an
individual’s behavior during an assessment. He noted that in a group-
administered test you don’t have the ability to “directly assess how the
individual is doing, whether they’re paying attention or not.”
102                   SMITH V. SCHRIRO

children and was promiscuous in front of them. See Op.
24–25. This upbringing, the majority notes, led Dr.
Thompson to opine that Smith “became intellectually
disabled with frontal lobe abnormalities.” Op. 25.

    But it is Dr. Thompson’s view of intellectual disability
“as a fluid condition responsive to any number of changes in
a patient’s environment, nutrition and physical, mental and
emotional health” that renders his diagnosis problematic. If
a person’s mental ability is fluid, if it can change in response
to changes in the person’s environment, nutrition, and
physical, mental and emotional health, then by definition,
even assuming that Smith was intellectually disabled in 1964,
when he was 16 years old, he was not necessarily disabled in
1980, when he committed the murder.

    Critically, by 1980, Smith had lived independently for 15
years, had been married a number of times, and had held
numerous jobs. This inherently raises questions as to
whether, assuming that Smith was intellectually disabled in
1964, the subsequent improvement of his mental ability was
due to his living alone away from his oppressive family for
15 years, as Dr. Martinez suggests, or to his being in prison
from 1980 to 2005, as Dr. Thompson suggests. Smith’s
independent life from 1964 to 1980 is strong circumstantial
evidence that by 1980 he was not intellectually disabled, even
if he had been intellectually disabled in 1964.

    In addition, Dr. Thompson’s perception of intellectual
disability is in tension with Arizona’s definition. Arizona’s
statute assumes that a person’s intellectual ability is relatively
stable. See Ariz. Rev. Stat. Ann. § 13-703.02(K)(3). In fact,
the statute requires that the onset of intellectual disability be
before an individual is 18 years of age. Dr. Thompson’s
                      SMITH V. SCHRIRO                      103

approach begs the question of whether Smith was
intellectually disabled as defined by Arizona when he was 16,
or only suffered from “frontal lobe abnormalities” that
affected his performance but cleared up once he was in a less
toxic environment. It is not clear that the alleged “frontal
lobe abnormalities” resulted in “significant subaverage
intellectual functioning” or caused “significant impairment of
adaptive behavior” as required by the Arizona statute. See
A. R. S. § 13-703.02 (K).

    In any event, the critical issue here is not whether Smith
was intellectually disabled in 1964, but in 1980. Dr.
Martinez’s perspective that Smith was never disabled is
certainly supported by the 2005 IQ tests. Dr. Thompson’s
suggestion that Smith was disabled in 1980 depends first on
a determination that Smith was disabled in 1964 and second
on the acceptance that prison rather than 15 years of living
alone, explains Smith’s present IQ level. However, as noted,
Smith’s ability to live on his own for 15 years from 1964 to
1980 is strong evidence that even if Smith had developed
“frontal lobe abnormalities” as a result of his horrendous
childhood, they had dissipated by 1980. Moreover, this
conclusion is supported by the fact that the two doctors who
examined Smith for competency to stand trial for the murder
in 1980 failed to detect any signs of intellectual disability.
Even Dr. Thompson admitted that he would have expected
the doctors to note some sign of intellectual disability.

    In sum, there is substantial—if not overwhelming—
evidence to support the state court’s determination that Smith
had failed to demonstrate that he was intellectually disabled
in 1980. Indeed, the majority does not really try to refute this
evidence. Instead, it explains at length why it prefers Dr.
Thompson’s perspective to that of Dr. Martinez. But that is
104                       SMITH V. SCHRIRO

not the proper inquiry. The question is whether the state
court’s factual determination is “fairly supported by the
record.” Marshal, 459 U.S. at 432. Perhaps if all the
conflicting evidence could be explained away, the majority’s
approach might be acceptable. But the evidence remains
obstinate in support of the state court’s determinations: Smith
is not now intellectually disabled, he lived independently for
15 years before he committed the murder, and the doctors
who examined him for competency in 1980 failed to detect
any signs of intellectual disability. Moreover, although Dr.
Thompson offers an explanation for how Smith’s mental
ability could change over time, his own theory cannot
pinpoint when Smith overcame his alleged initial intellectual
disability. The factual record fully supports the state court’s
determinations that Smith failed to carry his burden, and that,
accordingly, he was not intellectually disabled in 1980.

    In addition, the Supreme Court’s recent opinion in Hall v.
Florida, 134 S. Ct. 1986 (2014), supports the denial of relief.
The Supreme Court was critical of Florida’s over-reliance on
the measurement of an IQ test.12 It concluded that
“[i]ntellectual disability is a condition, not a number.” 134 S.


 12
      The Court explained:

          Florida’s rule disregards established medical practice in
          two interrelated ways. It takes an IQ score as final and
          conclusive evidence of a defendant’s intellectual
          capacity, when experts in the field would consider other
          evidence. It also relies on a purportedly scientific
          measurement of the defendant’s abilities, his IQ score,
          while refusing to recognize that the score is, on its own
          terms, imprecise.

134 S. Ct. at 1995.
                          SMITH V. SCHRIRO                            105

Ct. at 2001. It held that courts “must recognize, as does the
medical community, that the IQ test is imprecise.13 Id. The
Supreme Court concluded:

          Florida’s rule is in direct opposition to the
          views of those who design, administer, and
          interpret the IQ test. By failing to take into
          account the standard error of measurement,
          Florida’s law not only contradicts the test’s
          own design but also bars an essential part of a
          sentencing court’s inquiry into adaptive
          functioning. Freddie Lee Hall may or may
          not be intellectually disabled, but the law
          requires that he have the opportunity to
          present evidence of his intellectual disability,
          including deficits in adaptive functioning over
          his lifetime.

Id.

   Here, Smith had precisely this opportunity. He had a full
“opportunity to present evidence of his intellectual disability,


 13
      The Court continued:

          This is not to say that an IQ test score is unhelpful. It
          is of considerable significance, as the medical
          community recognizes. But in using these scores to
          assess a defendant’s eligibility for the death penalty, a
          State must afford these test scores the same studied
          skepticism that those who design and use the tests do,
          and understand that an IQ test score represents a range
          rather than a fixed number.

134 S. Ct. at 2001.
106                      SMITH V. SCHRIRO

including deficits in adaptive functioning over his lifetime.”
Id. However, the state courts and the district court concluded
that the evidence did not show that he was intellectually
disabled in 1980. It is the majority and Dr. Thompson who
cling to the 1964 test results. But other evidence such as
Smith’s 2005 IQ test results, his living independently on his
own for 15 years before the murder, and the failure of the
doctors who examined Smith for mental competence in 1980
to detect any sign of intellectual disability, strongly support
the state court’s determination.14

    Accordingly, because the district court’s denial of Smith’s
petition should be affirmed, I dissent from the majority’s
opinion.




  14
     Finally, it should be noted that the Supreme Court in Hall considered
the Arizona’s statute and suggested that it passed constitutional muster.

         Arizona’s statute appears to set a broad statutory cutoff
         at 70, Ariz. Rev. Stat. Ann. § 13–753(F) (West 2013),
         but another provision instructs courts to “take into
         account the margin of error for a test administered.” Id.
         at § 14–753(K)(5). How courts are meant to interpret
         the statute in a situation like Hall’s is not altogether
         clear. The principal Arizona case on the matter, State v.
         Roque, 213 Ariz. 193, 141 P.3d 368, (2006), states that
         “the statute accounts for margin of error by requiring
         multiple tests,” and that “if the defendant achieves a
         full-scale score of 70 or below on any one of the tests,
         then the court proceeds to a hearing.” Id. at 403.

134 S. Ct. at 1996.
                     SMITH V. SCHRIRO                     107

   II. The Arizona Courts Applied the Appropriate
       Standard of Proof.

   A. The Superior Court’s Use of the Words “with any
      degree of certainty” Does Not in Any Way Suggest
      that it Applied an Inappropriate Standard of
      Proof.

    Despite the lack of any concurrence, Judge Reinhardt
includes in his opinion an argument that the Arizona courts
applied an unconstitutional standard of proof. Section II C.2,
pages 42–52. Accordingly, I offer the following rebuttal to
his inaccurate accusations.

   1. The State Court and District Court Decisions

    As noted, the Arizona Superior Court held extensive
hearings and admitted considerable evidence as to whether
Smith was intellectually disabled at the time of his trial. It
agreed with the parties that the burden to prove intellectual
disability was on Smith, pursuant to Grell II, 212 Ariz. 515.
However, in view of the procedural differences between Grell
II and Smith’s case, the court “considered the evidence under
the preponderance of evidence standard applicable to Rule 32
proceedings.” The court held that its decision was the same
under this lower standard.

   After carefully considering all the evidence, the Superior
Court concluded:

       Although Defendant’s dysfunctional family
       and troubled early life undoubtedly affected
       his circumstances in an adverse way, and
       while it is likely Defendant has suffered from
108                 SMITH V. SCHRIRO

       clinically cognizable conditions probably
       including a personality disorder, the
       circumstances described at the hearing do not
       point to mental retardation with any degree of
       certainty. The Court has carefully considered
       all of the testimony presented at the hearing,
       and has reviewed and considered all of the
       exhibits received in evidence at that
       proceeding. Based on all of the evidence, the
       Court FINDS that Defendant has failed to
       meet his burden of showing that he was
       mentally retarded at the time of the offense
       and trial in this case. There was insufficient
       evidence from which this Court could find
       that Defendant exhibited “significant
       subaverage general intellectual functioning”
       during the period of the offense and his trial.
       While unorthodox and unstable, Defendant’s
       pre-arrest life did not show “significant
       impairment in adaptive behavior” existing
       concurrently with the deficit in general
       intellectual functioning. In the absence of
       adequate information concerning the early
       Otis IQ tests, and in view of the alternative
       explanations for his early school and social
       deficits, Defendant failed to show the onset of
       mental retardation before the age of 18. The
       Court therefore FINDS that the State of
       Arizona is not precluded, on Adkins grounds,
       from executing Defendant.

    The Arizona Court of Appeals affirmed the Superior
Court. It noted that the trial court “had considered the
evidence under the applicable clear-and-convincing evidence
                      SMITH V. SCHRIRO                     109

standard as well as under the lesser burden of a
preponderance of the evidence that applies to post conviction
proceedings . . . and concluded that under either standard
Smith had failed to establish he was mentally retarded at the
time of the offense and at trial.”

    Similarly, the district court denied Smith’s petition. It
noted that although Smith did not “identify deficiencies in the
state court’s ruling,” he contended that his proffered evidence
“overwhelmingly established the subaverage intellectual
functioning and adaptive skills prongs of Arizona’s mental
retardation test as of the time of the offense in 1980.” The
district court rejected this contention. It noted that Smith did
not dispute that the 1964 Otis tests were unreliable, and
commented that “the evidence presented at the hearing
indicated it is just as likely that Petitioner’s poor school
performance and unstable lifestyle was the result of a
severely dysfunctional upbringing and personality disorder as
it was mental retardation.” The district court concluded that
there was “ample evidence in the record to support the state
courts’ conclusion that Petitioner failed to establish either
‘subaverage general intellectual functioning’ or ‘significant
impairment in adaptive behavior’ before the age of 18.”
Accordingly, he had “not overcome the presumption of
correctness attached to the state court’s finding that he was
not mentally retarded.” Moreover, in denying a certificate of
appealability the district court found “that reasonable jurists
could not debate its resolution of Petitioner’s Atkins-related
claims,” and that “[t]he question of whether the state court
erred in finding that Petitioner was not mentally retarded
under Arizona law is not debatable among jurists of reason.”
110                       SMITH V. SCHRIRO

      2. Discussion

    In light of the unanimous perspective of the Arizona trial
and appellate courts and the district court, how does Judge
Reinhardt conclude that the Superior Court applied an
unconstitutional standard of proof? His concurrence does so
by first disbelieving the state courts’ statements that the
Superior Court applied the preponderance of the evidence
standard. Second, the concurrence ignores the court’s factual
findings and misconstrues the Superior Court’s statement that
“the circumstances described at the hearing do not point to
mental retardation with any degree of certainty.” See Op. 43.
Thus, the concurrence takes five words from the trial court’s
decision out of context and then gives them an improper
definition. By attacking this incorrect definition, the
concurrence, in essence, argues that the death penalty cannot
be constitutionally applied.15

    Both the Superior Court and the Arizona Court of
Appeals stated that the Superior Court applied the lesser
preponderance of the evidence standard. The concurrence
dismisses their considered opinions in a footnote arguing that
the body of the Superior Court’s opinion “did not fulfill that
promise, however, but, rather, the court concluded after
reviewing all the evidence that it did not meet a ‘certainty’
standard.” Op. 43 n.25. This is wrong on a number of levels.

    The concurrence takes “with any degree of certainty” out
of context, endows it with a incorrect meaning and then
argues that the stilted meaning it has conjured up is


 15
    Although Judge Reinhardt specifically addresses the constitutionality
of the Arizona death penalty statute in his separate concurrence, its spirit
clearly informs his concurrence set forth in the majority opinion.
                         SMITH V. SCHRIRO                           111

unconstitutional. But, considering the factual evidence in this
case, an objective jurist must admit to the lack of some
precision in an evaluation of Smith’s intellectual ability in
1980. On the one hand, there are the Otis IQ tests from 1964
and Dr. Thompson’s testimony that Smith’s intellectual
disability was not a constant. On the other hand, both Dr.
Thompson and Dr. Martinez agreed that by 2005 Smith was
not intellectually disabled, and there is evidence that for some
15 years after dropping out of school, and before committing
the murder, Smith lived independently and was not dependent
on anyone. Thus, given that Smith had the burden to prove
an intellectual disability, the Superior Court reasonably
concluded that he had failed to do so, even by a
preponderance of the evidence. In other words, the evidence
as presented by Smith did not “point to mental retardation
with any degree of certainty.” Both the Arizona Court of
Appeals and the District Court agreed.

    But the concurrence eschews the trial court’s intent and
suggests that “the ‘any degree of certainty’ standard . . . is
more akin to the ‘reasonable doubt’ standard than the clear
and convincing standard mandated by Arizona’s Atkins
statute, which requires only that the issue under consideration
be ‘highly probable.’”16 Op. 44. In support of this assertion,
the concurrence cites a 27-year old Arizona case that
involved a jury instruction. State v. King, 763 P.2d 239 (Ariz.
1988). This case, which affirmed placing the burden on the
defendant to prove insanity, disapproved defining “clear and
convincing evidence” as evidence that “is certain, plain to the


  16
      Of course, this argument is only relevant if one ignores the trial
court’s determination, affirmed by the state court of appeals, that Smith
had failed to demonstrate an intellectual disability by the preponderance
of the evidence.
112                      SMITH V. SCHRIRO

understanding, unambiguous, and convincing in the sense that
it is so reasonable and persuasive as to cause you to believe
it.” Id. at 241. The court held that “the better instruction
would inform a jury that clear and convincing evidence is
evidence that makes the existence of the issue propounded
highly probable.” Id. at 244.

    In Smith’s proceedings, no court used the definition of
clear and convincing evidence disapproved in King. Indeed,
our precedent requires that we presume that the state judges
know and follow the law. See Lopez v. Schriro, 491 F.3d
1029, 1043 (9th Cir. 2007). We have further held that we
should not lightly disregard the trial court’s determinations.
Id. In Parker v. Dugger, 498 U.S. 308, 315 (1991), the
Supreme Court held “[w]e must assume that the trial judge
considered all this [mitigation] evidence before passing
sentence. For one thing, he said he did.” Thus, we have no
basis for finding that the Superior Court did not apply the
preponderance of the evidence standard that it said it did (and
which the Arizona Court of Appeals affirmed) or that the
Superior Court somehow applied “certainty” in a way that has
been improper in Arizona since King was decided in 1988.

     Furthermore, even if there were some ambiguity in the
Superior Court’s decision—which there is not—we would
still have to construe any ambiguity in the language in the
state court’s favor. See Woodford v. Visciotti,. 537 U.S. 19,
24 (2002) (“This readiness to attribute error is inconsistent
with the presumption that state courts know and follow the
law”).17 Indeed, the Supreme Court has indicated that we


  17
     Although Woodford concerned review under AEDPA, the Supreme
court indicated, citing Parker, 498 U.S. at 314–16, and other cases, that
the presumption that state courts know and follow the law was established
                      SMITH V. SCHRIRO                       113

should not “demand a formulary statement” by state courts.
Early v. Packer, 537 U.S. 3, 9, (2002) (per curiam) (an
AEDPA case, but citing a pre-AEDPA decision, Lowenfield
v. Phelps, 484 U.S. 231, (1988), in support of its admonition).
Thus, the concurrence’s approach goes against both Supreme
Court and Ninth Circuit case law when it not only construes
the trial court’s clear language as ambiguous, but then
interprets the ambiguity as reflecting an unconstitutional
standard.

    The concurrence then proceeds to argue that Atkins
proceedings are different. “Consequently, where a state court
analyzing an Atkins claim fails to follow binding state law, its
decision does not simply violate state law, but also violates
the Eighth Amendment right provided by Atkins and the
violation is therefore cognizable by a federal habeas court.”
Op. 44. Again relying on its stilted definition of “certainty,”
the concurrence asserts:

        Here, the “certainty” standard applied by the
        state trial court was plainly contrary to the
        clear and convincing standard required by
        Arizona’s statute and adopted by its supreme
        court. See Ariz. Rev. Stat. Ann. § 13-
        703.02(G); Grell II, 135 P.3d at 701 (“The
        statute places on ‘the defendant . . . the burden
        of proving mental retardation by clear and
        convincing evidence’ in the pretrial hearing.”
        (quoting § 13-703.02(G)) (alteration in
        original)). Accordingly, the standard of proof
        applied by the state trial court was not simply


before the enactment of AEDPA and thus applies to pre-AEDPA cases.
Woodford, 537 U.S. at 24.
114                   SMITH V. SCHRIRO

       contrary to state law but was also
       unconstitutional under Atkins, see Williams,
       2015 WL 4079430, at *4; Black, 664 F.3d at
       97, and, accordingly, the state court’s findings
       are not due any deference. See Lafferty,
       949 F.2d at 1551 n. 4; Walker, 167 F.3d at
       1345.

    But this is not right. First, as noted, the state court
applied the less demanding preponderance of the evidence
test. Second, there is nothing in either the trial court’s
decision or the state appellate court’s memorandum
disposition that suggests that either court defined “certainty”
in a way that violated King, 736 P.2d 239. Third, Grell II,
which the majority cites, affirms that Smith had the burden of
proving mental retardation by clear and convincing evidence.
Fourth, a review of the record in this case fully supports the
Superior Court’s factual determination that Smith had failed
either by clear and convincing evidence or a preponderance
of the evidence to show that he was intellectually disabled at
the time of the crime and his trial. Cherry-picking words
from the trial court’s decision and then giving them an
incorrect meaning does not undermine the clear logic of the
decision as affirmed by the state appellate court.

    Perhaps aware that its first argument is less than
persuasive, the concurrence offers a second argument: that
“the standard of proof applied by the state trial court is
unconstitutional.” Op. 45. Again, based largely on its
incorrect definition of “certainty,” the concurrence asserts
that “a ‘certainty’ standard of proof transgresses the limits of
the state’s authority to craft appropriate procedures to enforce
Atkins and, in doing so, encroaches on the substantive
constitutional right.” Op. 45.
                         SMITH V. SCHRIRO                            115

     This argument appears, in essence, to be an argument
against the constitutionality of the death penalty. The
majority claims that it does not “need to determine what
standard of proof the federal Constitution requires,” but “only
whether the Arizona court applied a standard it forbids.” Op.
45. It posits that “[w]hen the natural operation of a state’s
procedures for rendering factual determinations transgresses
a substantive constitutional right, those procedures are
unconstitutional.” Op. 46. The concurrence argues that “[i]t
is elementary that the ‘natural operation’ of applying a
heightened standard of proof can determine the outcome of
litigation, and thus the availability of a constitutional right.”18
Op. 46.

    The concurrence next objects to the death penalty based
on the “inherent imprecision of psychiatric determinations of
mental illness.” Op. 49. Citing Addington v. Texas, 441 U.S.
418, 430–32 (1979), it comments: “[a]s the Supreme Court
explained in rejecting the argument that the Constitution
requires use of a reasonable doubt standard in the context of
civil commitment proceedings, the unique nature of
psychiatric diagnosis renders factual determinations uniquely
unsusceptible to certainty.” Op. 47. The concurrence posits
that when, as in this case, the determination of an individual’s
intellectual ability at the time of the crime is not made until
years after the crime, certainty is “even less attainable and a




  18
    The concurrence’s authority for these assertions is a 1911 Supreme
Court opinion, Bailey v. Alabama, 219 U.S. 219 (1911), which held that
an Alabama statute that created a presumption of intent to injure violated
the 13th Amendment.
116                         SMITH V. SCHRIRO

certainty standard is even less constitutionally acceptable in
such cases.”19 Op. 49–50.

    The concurrence concludes with the assertion that capital
punishment requires a “heightened degree of certainty.” Op
50.     Accordingly, “where, as in Atkins, the Eighth
Amendment renders a class of individuals categorically
ineligible for execution, the procedures used to determine
whether a defendant falls into that class may not allocate
nearly all of the risk of an erroneous determination to the
defendant.” Op. 51. It reasons that by requiring Smith to
demonstrate with a “degree of certainty” that he was
intellectually disabled, the Arizona court allocated “nearly the


 19
      In footnote 26, the concurrence asserts:

           It is of no consequence to the analysis that Addington
           and Atkins involve different burdens of proof than the
           case at bar, because the focus here is on the effect of the
           standard of proof. Under Addington, a state desiring
           the civil commitment of an individual must demonstrate
           that he suffers from mental illness, whereas under
           Atkins an individual seeking to avoid execution by the
           state must demonstrate intellectual disability. In both
           situations, the determination heavily relies upon
           psychiatric opinion, and thus in both situations a
           standard of proof requiring “any degree of certainty” as
           defined by Arizona law will often render it impossible
           for a party to carry its burden. See Addington, 441 U.S.
           at 432.

Again, this argument is based on the concurrence’s misinterpretation of
the trial court’s decision. Deciding whether a person has carried his
burden of showing an intellectual disability may well be difficult, but here
the state court carefully did so. Indeed, it is telling that the majority
attacks the decision by giving the words “any degree of certainty” a
meaning that they do not have.
                      SMITH V. SCHRIRO                     117

entire risk of an erroneous determination to Smith.” Op. 51.
Thus, according to the concurrence, because “the factual
determination in question concerned an issue for which
certainty may be unattainable . . . and a penalty for which a
greater degree of reliability is required . . . [,] the
constitutional violation [is] even more clear.” Op. 51–52.

    Judge Reinhardt is certainly entitled to his opinion, but it
is not the opinion of the panel or of the Ninth Circuit. The
concurrence is clearly contrary to the position of the Arizona
Supreme Court. State v. Grell (Grell III), 135 P.3d 696, 702
(Ariz. 2006) (en banc) (“We find no constitutional bar to
imposing the burden of proving mental retardation on the
defendant.”). The concurrence cites no Ninth Circuit case to
support its perspective. And it is not supported by any
decision by the United States Supreme Court, which denied
certiorari in Grell II (Grell v. Arizona, 127 S. Ct. 2246
(2007)), and accepted certain provisions of Arizona’s
proceedings in Hall, 134 S. Ct. at 1996–97.

    In sum, the assertion that the Arizona courts applied an
unconstitutional standard of proof fails first because it
misconstrues the Arizona Superior Court’s decision, and
ignores the ruling of the Arizona Court of Appeals, contrary
to both Supreme Court and Ninth Circuit precedent. See
Woodford, 537 U.S. at 24; Parker, 498 U.S. at 315; Lopez,
491 F.3d at 1043 (stating “there are ways to construe the state
court’s ruling that would not make it ‘clearly untenable,’ and
we are therefore bound by the state courts’ interpretation and
application of its own procedural rules.”). The second arrow
in the concurrence’s quiver—that there is not sufficient
certainty to impose the death penalty on Smith—similarly
lacks support from either the Supreme Court or the Ninth
Circuit, as Arizona’s placement of the burden on the
118                  SMITH V. SCHRIRO

defendant to prove his intellectual disability has not been
disturbed in the eight years that have passed since the Arizona
Supreme Court decided Grell II in 2007.

   III.    Conclusion

     The district court’s denial of the Smith’s petition should
be affirmed because an objective review of the extensive
record reveals that there is substantial evidence, if not
overwhelming evidence, that Smith failed to meet his burden
of showing that he was intellectually disabled in 1980–82,
when he murdered Sandy Owen and was tried, convicted and
sentenced. At a minimum, this conclusion is compelled by
the undeniable facts that: (a) Smith in 2005 had an IQ
between 87 and 93; (b) Smith lived independently and
supported himself for 15 years after he dropped out of school
and before the murder; and (c) the doctors who examined
Smith in 1980 to determine his competency to be tried found
no signs of intellectual disability. Furthermore, Dr.
Thompson’s approach of considering intellectual ability to be
fluid, while allowing for Smith’s alleged intellectual
disability to dissipate, offers no assurance as to when it did
so. The state courts took Smith’s claim of intellectual
disability seriously, and gave his assertions and the evidence
full consideration. An objective review of this record will not
support a finding—and certainly not a finding by this court on
review of a state habeas petition—that Smith met his burden
of showing that he was intellectually disabled in 1980. I
                          SMITH V. SCHRIRO                              119

would affirm the district court’s denial of Smith’s petition20
and I therefore dissent.




  20
     I would also affirm the district court’s holding that Smith has failed
to demonstrate cause to overcome his procedural default of his ineffective
assistance of counsel claim. His invocation of Martinez v. Ryan, 132 S.
Ct. 1309 (2012) fails because he has not demonstrated ineffective
assistance of counsel in his first state post-conviction proceeding, and
even if he did, this would not excuse Smith’s new counsel from raising
ineffective assistance of trial counsel in Smith’s second state post-
conviction proceeding. Moreover, Smith has not shown a reasonable
probability that he received ineffective assistance of counsel at sentencing.
See Strickland v. Washington, 466 U.S. 668 (1984). Smith’s other
arguments are unavailing. He fails to demonstrate the existence of a
conflict of interest pervading the Pima County Public Defender’s Office;
the state habeas court’s denial of a psychological exam does not provide
cause for his procedural default; and to the extent that his claim was not
covered by Stewart v. Smith, 536 U.S. 856, 860–61 (2002), the state
court’s application of its post-conviction waiver rule is adequate and
independent.
