                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0379p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                 X
                                                  -
 In re: THOMAS CLYDE BOWLING, JR.,
                                                  -
                              Movant (04-6194).
                                                  -
 __________________________________________
                                                  -
                                                                 Nos. 04-6194/6378

                                                  ,
 THOMAS CLYDE BOWLING, JR.,                        >
                            Petitioner-Appellant -
                                      (04-6378), -
                                                  -
                                                  -
                                                  -
            v.
                                                  -
                                                  -
 GLENN HAEBERLINE, Warden, Kentucky State
 Penitentiary,                                    -
                           Respondent-Appellee. -
                                                  -
                                                 N


                                     Filed: September 7, 2005
                  Before: MOORE, GILMAN, and GIBBONS, Circuit Judges.
                                        _________________
                                             ORDER
                                        _________________
        JULIA SMITH GIBBONS, Circuit Judge. Thomas Clyde Bowling, Jr., a Kentucky death
row inmate represented by counsel, applied for leave to file a second or successive petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2244. He asserts that he is mentally retarded and therefore
ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Bowling also appeals
from a federal district court order denying his motion for relief from judgment pursuant to Fed. R.
Civ. P. 60(b). He seeks a certificate of appealability, arguing that his ineffective-assistance-of-
counsel claim and his Brady claim should be reopened. We construe his request for a certificate of
appealability as an application for leave to file a second or successive petition for a writ of habeas
corpus. For the following reasons, we deny both of Bowling’s applications to file a second or
successive habeas petition.
                                                  I.
        In December 1990, a Kentucky state jury tried and convicted Bowling of two counts of
murder in the deaths of James and Tina Early. The trial court sentenced him to death. The Supreme
Court of Kentucky affirmed the convictions and sentence on direct appeal. Bowling v.
Commonwealth, 873 S.W.2d 175 (Ky. 1993). In October 1996, the trial court denied Bowling’s
petition for post-conviction relief under Ky. R. Crim. P. 11.42. The Supreme Court of Kentucky


                                                  1
Nos. 04-6194/6378 In re Bowling                                                                 Page 2


affirmed the trial court’s decision on appeal. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.
1998).
        In August 1999, Bowling filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254
in federal district court. Without ordering an evidentiary hearing, the district court denied the
petition, and this court affirmed the district court’s opinion. Bowling v. Parker, 138 F. Supp. 2d 821
(E.D. Ky. 2001), aff’d, 344 F.3d 487 (6th Cir. 2003), cert. denied, 125 S. Ct. 281 (2004).
        Bowling subsequently filed an action in Fayette Circuit Court against Warden Glenn
Haeberline, claiming that he is exempt from the death penalty because he is mentally retarded.
Bowling v. Commonwealth, 163 S.W.3d 361, 364 (Ky. 2005). The circuit court summarily
dismissed his petition, concluding that Bowling could not collaterally attack his death sentence
through a civil action and that he had not timely asserted his mental retardation claim. Id. at 365.
Bowling appealed to the Kentucky Supreme Court. The Kentucky Supreme Court held that Bowling
procedurally defaulted his claim that he is mentally retarded because he could have asserted such
a claim at trial given that Kentucky had in place at that time a statute prohibiting the execution of
the mentally retarded. Id. at 371-72. It further determined that Bowling could not make a prima
facie showing that he is mentally retarded because his I.Q. scores were higher than what Kentucky
law considers to be “significantly subaverage intellectual functioning.” Id. at 384.
         While the Kentucky state court action was ongoing, Bowling filed an application for leave
to file a second or successive petition for a writ of habeas corpus with this court. In his application,
he asserts that he is actually innocent of the death penalty because he is mentally retarded. He also
filed a Rule 60(b) motion to reopen his first habeas corpus proceeding in the United States District
Court for the Eastern District of Kentucky. The district court denied the motion, and Bowling filed
a request for a certificate of appealability with this court.
                                                  II.
       An application for permission from this court to file a second or successive habeas petition
must not involve a claim that has been raised in a previous habeas petition. 28 U.S.C. § 2244(b)(1).
A new claim will not be allowed to proceed unless:
       (A) the applicant shows that the claim relies on a new rule of constitutional law,
       made retroactive to cases on collateral review by the Supreme Court, that was
       previously unavailable; or
       (B)(i) the factual predicate for the claim could not have been discovered previously
       through the exercise of due diligence; and
       (B)(ii) the facts underlying the claim, if proven and viewed in light of the evidence
       as a whole, would be sufficient to establish by clear and convincing evidence that,
       but for constitutional error, no reasonable factfinder would have found the applicant
       guilty of the underlying offense.
Id. § 2244(b)(2). In order for this court to grant permission to file a second or successive habeas
petition, the applicant must make a prima facie showing that his application satisfies the statutory
requirements. Id. § 2244(b)(3)(C). A prima facie showing requires the presentation of “sufficient
allegations of fact together with some documentation that would ‘warrant a fuller exploration by the
district court.’” In re Lott, 366 F.3d 431, 433 (6th Cir. 2004) (quoting Bennett v. United States, 119
F.3d 468, 469 (7th Cir. 1997)).
        Bowling’s claim that he cannot receive the death penalty because he is mentally retarded
rests upon the new rule established in Atkins, in which the Supreme Court held that the execution
Nos. 04-6194/6378 In re Bowling                                                                Page 3


of a mentally retarded offender violates the Eighth Amendment. 536 U.S. at 321. This rule has been
made retroactive to cases on collateral review. See Hill v. Anderson, 300 F.3d 679, 681 (6th Cir.
2002).
        In order for this court to grant Bowling a second or successive habeas petition, Bowling must
present “sufficient allegations of fact together with some documentation” of his claim that he is
mentally retarded. See Lott, 366 F.3d at 433; In re Holladay, 331 F.3d 1169, 1174 (11th Cir. 2003)
(establishing that the motion should be granted allowing petitioner to file a successive habeas
petition, “if petitioner’s proofs, when measured against the entire record in this case, establish a
reasonable likelihood that he is in fact mentally retarded”). Thus, the key substantive question
before this court is whether Bowling was mentally retarded at the time he committed the murders
of James and Tina Early.
       Atkins did not set forth a definitive rule or procedure for the courts to follow in determining
when an offender is mentally retarded such that his or her execution would violate the Eighth
Amendment. Instead, Atkins reserved for the states “the task of developing appropriate ways to
enforce the constitutional restriction” upon the execution of sentences. 536 U.S. at 317.
         Atkins specifically observes that “[n]ot all people who claim to be mentally retarded will be
so impaired as to fall within the range of mentally retarded offenders about whom there is a national
consensus” against execution. Id. Those who are mentally retarded will have “significantly
subaverage intellectual functioning, existing concurrently with related limitations in two or more
of the following applicable adaptive skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure, and work.” Id. at
308 n.3 (quoting American Association on Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Support 5 (9th ed. 1992)). Further, mental retardation will manifest
before the person reaches eighteen years of age. Id.
        Kentucky law began prohibiting the execution of “seriously mentally retarded” defendants
twelve years prior to Atkins. Ky. Rev. Stat. § 532.140. It defines “seriously mentally retarded” as
one who has “significant subaverage intellectual functioning existing concurrently with substantial
deficits in adaptive behavior and manifested during the developmental period.” Id. § 532.130(2).
“Significant subaverage intellectual functioning” is defined as “an intelligence quotient (I.Q.) of
seventy (70) or below.” Id.
       The evidence before this court strongly suggests that Bowling is not mentally retarded.
Thus, Bowling does not make a prima facie showing on his claim of mental retardation such that he
can receive permission to file a second or successive habeas petition.
        Bowling has had four I.Q. tests – two were taken while he was in grade school and the other
two were taken in preparation for his trial. While Bowling was in seventh grade (1966-67 academic
year), he received scores of 74 and 79 on these tests. He was tested again twice in 1990, with both
tests administered within a month of his December 1990 trial. He received a score of 86 using the
WAIS-R test and a score of 87 on the Shipley Hartford Intelligence Scale. None of these scores are
at or below the cutoff of 70 established by Kentucky law as proof of significant subaverage
intellectual functioning. Further, in a separate case, the Kentucky Supreme Court determined that
I.Q. scores of 74 and 78, similar to two of Bowling’s scores, “are 4 to 8 points respectively higher
than the definition of a seriously mentally retarded offender” who would be ineligible for the death
penalty. Woodall v. Commonwealth, 63 S.W.3d 104, 116 (Ky. 2002).
       Bowling argues that this court should not consider the absolute scores on these I.Q. tests, but
instead apply a five-point margin of error. The five-point margin of error does place one of
Bowling’s seventh-grade scores below the statutory cutoff. However, Bowling does not justify the
Nos. 04-6194/6378 In re Bowling                                                                 Page 4


five-point margin of error with any explanation nor does the margin of error appear to derive from
any particular source. In addition, there is no indication that the psychologists who administered
the I.Q. tests to Bowling would not have already considered the adequacy and accuracy of the testing
mechanisms in calculating his scores or in using these instruments for evaluation in the first place.
See United States v. Roane, 378 F.3d 382, 409 (4th Cir. 2004) (in rejecting the argument that
defendant’s I.Q. score should be considered within the range for those with mental retardation
because of I.Q. score variations, the court observed that the psychologist’s care in calculating a score
“belies the suggestion that [the psychologist’s] analysis did not account for possible variations in
his testing instrument”). Finally, the I.Q. scores on the tests taken around the time of Bowling’s trial
were 86 and 87, scores that are significantly higher than the Kentucky statutory cutoff of 70 even
taking into account Bowling’s suggested five-point margin of error.
        Bowling also argues that his academic performance indicates that he is mentally retarded.
According to Bowling, his “grades were deplorable–mostly D’s and F’s,” and he “was recommended
for special education as early as the first grade, failed the second grade, and dropped out of school
after spending nearly three years in the ninth grade.” It is true that Bowling failed the ninth grade
three times before leaving school. However, the record reflects that, between the third and sixth
grades, Bowling received mostly C’s and did not fail a class. School records do not indicate that
Bowling ever took special education classes. In addition, a teacher commented during Bowling’s
eighth-grade year that “[t]his child is a slow learner; however, if a genuine interest is taken in him,
he will perform and behave more satisfactorily. With guidance, his potential as a student will
improve.” Thus, while Bowling’s academic performance was not exceptional, it does not follow
from the evidence before this court that he is mentally retarded.
        Bowling also presents the affidavits of his mother, sister, and son to establish that he was
deficient in adaptive skills and unable to function in the basic aspects of everyday life. Iva Lee
Bowling, his mother, stated that Bowling was slow in learning to walk and in becoming toilet
trained, that he had scarlet fever when he was three years old, and that he had multiple head injuries
as an infant and a teenager. She also stated that Bowling wandered off as a child and teenager, got
into fights, and was a follower. According to his mother, he had problems with money, difficulty
in keeping jobs, and difficulty maintaining personal relationships. Patricia Gentry, Bowling’s sister,
and Thomas Jason Bowling, Bowling’s son, reiterated these and similar observations.
        These limitations do not state a prima facie case for Bowling’s mental retardation claim.
Bowling’s known, diagnosed psychological problems include attention deficit hyperactivity
disorder, alcohol abuse, and a personality disorder. These diagnoses provide an explanation for the
various problems noted by Bowling’s mother and sister. While some of the problems may also be
indicative of a low level of intellectual functioning, their existence has little tendency to establish
mental retardation, given Bowling’s other diagnoses and the fact that the psychological evidence is
inconsistent with mental retardation.
        Most damaging to Bowling’s claim that he is mentally retarded are the results of evaluations
conducted by the two psychologists who examined him before the trial. Dr. Smith, the court-
appointed psychologist who evaluated Bowling over two days and through a variety of
psychological instruments, concluded that “T.C. is not mentally retarded.” He diagnosed Bowling
as suffering from alcohol abuse, personality disorder, and attention deficit hyperactivity disorder.
Bowling’s attorneys also retained a psychologist, Dr. Beal. Dr. Beal did not specifically indicate
whether or not he thought Bowling is mentally retarded. However, he did find that Bowling’s level
of intellectual functioning fell “in the low average range of intellectual functioning.” He also
diagnosed Bowling as suffering from major depression, personality disorder, and alcohol abuse, but
these disorders “were not of such severity to cause him to be substantially impaired in his ability to
know the wrongfulness of the acts alleged.”
Nos. 04-6194/6378 In re Bowling                                                                 Page 5


        Bowling’s claim that he is mentally retarded must also be considered in context. Bowling
raised this argument for the first time in the months preceding his execution date, after the Supreme
Court declined to review his first habeas petition. Yet, Kentucky law has prohibited the execution
of the seriously mentally retarded since 1990, before his case went to trial. Additionally, Penry v.
Lynaugh, while not categorically prohibiting execution of the mentally retarded, held that “the jury
must be able to consider and give effect to any mitigating evidence relevant to a defendant’s
background,” including evidence that the defendant is mentally retarded. 492 U.S. 302, 328 (1989).
The evidence Bowling presents to this court was also available well before his trial, as it consists
mainly of his family’s observations, school records, and I.Q. tests administered in the seventh grade
and before trial. If Bowling is in fact mentally retarded, he likely would not have waited fourteen
years to present this argument only in connection with a request for a second or successive habeas
petition.
        While Atkins did create a new rule prohibiting the execution of the mentally retarded, it does
not appear that its mandate affected Kentucky law in particular, because Kentucky already
prohibited the imposition of this sentence on the “seriously mentally retarded.” Further, the test
enunciated in Atkins for defining who is mentally retarded, see 536 U.S. at 308 n.3, is remarkably
similar to the Kentucky statute; both require significantly subaverage intellectual functioning,
limitations in adaptive functioning, and an onset before adulthood. Thus, Atkins did not significantly
alter Bowling’s ability to present his claim that he is mentally retarded under Kentucky law.
       Under either Kentucky law or Atkins, Bowling has failed to establish a prima facie case on
his mental retardation claim. None of his I.Q. scores falls below the cutoff of 70 established by the
Kentucky statute. Evidence that he has limitations in functioning does not show that he is mentally
retarded; rather, these limitations are just as indicative of the other psychological disorders from
which he suffers as they are of low level intellectual functioning. Thus, we deny Bowling’s
application.
                                                  III.
         Bowling also appeals from a federal district court order denying his motion to reopen his first
habeas corpus proceeding. Bowling’s Rule 60(b) motion asserts two general claims. First, Bowling
argues that his ineffective-assistance-of-counsel claim should be reopened because of new evidence
in the form of a Brooklyn Law Review article that he suggests indicates that the jury did not consider
the mitigation evidence presented at trial. He also claims that the intervening Supreme Court
decision in Wiggins v. Smith, 539 U.S. 510 (2003), provides that it is not inconsistent for a defendant
to both assert his own innocence and present mitigating evidence. Second, Bowling contends that
his Brady claim should be reopened based upon the intervening Supreme Court decision in Banks
v. Dretke, 540 U.S. 668 (2004), and because the prosecution allegedly committed fraud on the court
by failing to reveal exculpatory evidence.
        The district court initially construed Bowling’s motion as a second or successive habeas
corpus petition, which cannot be filed in the district court without prior authorization from a federal
court of appeals. See 28 U.S.C. § 2244(b)(3)(A). Rather than transferring the case to this court for
consideration, however, the district court alternatively held that Bowling did not satisfy his burden
under Rule 60(b) and denied the motion. The district court declined to grant a certificate of
appealability. Bowling now requests a certificate of appealability from this court.
        In Gonzalez v. Crosby, 125 S. Ct. 2641 (2005), the Supreme Court explained how to
differentiate a true Rule 60(b) motion from an unauthorized second or successive habeas corpus
petition. The Supreme Court explained that a movant presents a “claim” under 28 U.S.C. § 2244
if the motion “attacks the federal court’s previous resolution of a claim on the merits, since alleging
that the court erred in denying habeas relief on the merits is effectively indistinguishable from
Nos. 04-6194/6378 In re Bowling                                                                   Page 6


alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.”
Id. at 2648. By contrast, it held that such a “claim” is not present in a true Rule 60(b) motion, which
instead “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some
defect in the integrity of the federal habeas proceedings.” Id.
         We hold that the district court properly determined that Bowling’s Rule 60(b) motion was
in fact a second or successive habeas petition under Gonzalez. However, the district court failed to
comply with its obligation to transfer the case to this court. See In re Sims, 111 F.3d 45, 47 (6th Cir.
1997). Thus, we construe Bowling’s Rule 60(b) motion as an application for permission to file a
second or successive habeas petition. Bowling is not entitled to file a successive habeas petition
because he seeks to re-litigate claims previously raised in his initial habeas petition, which is not
permitted under 28 U.S.C. § 2244(b)(1). Further, his claims are without merit and thus do not justify
granting leave to file a second or successive petition for habeas corpus.
                                                   IV.
        For the foregoing reasons, we deny both of Bowling’s applications for an order authorizing
a federal district court to consider his second or successive petition for a writ of habeas corpus.
Nos. 04-6194/6378 In re Bowling                                                                                      Page 7


        KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. I
respectfully dissent from Part II of the majority’s opinion, as I would grant Bowling permission to
file a second or successive habeas corpus petition and issue a stay of execution pending final
determination of his mental retardation claim.
         Bowling has filed with this court an application to file a second or successive habeas corpus
petition pursuant to 28 U.S.C. § 2244 and a petition requesting a stay of execution pending final
determination of his mental retardation claim. To obtain this court’s permission to file a second or
successive federal habeas corpus petition, the applicant must make a prima facie showing that the
application satisfies the statutory requirements. 28 U.S.C. § 2244(b)(3)(C); In re Green, 144 F.3d
384, 388 (6th Cir. 1998). A prima facie showing requires the applicant to set forth “sufficient
allegations of fact together with some documentation that would ‘warrant a fuller exploration in the
district court.’” In re Lott, 366 F.3d 431, 433 (6th Cir. 2004) (quoting Bennett v. United States, 119
F.3d 468, 469 (7th Cir. 1997)). I conclude that Bowling has made such a showing.
         Although the Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the
execution of mentally retarded persons violates the Eighth Amendment, the Court did not explicitly
define which persons qualify as mentally retarded under the Eighth Amendment, rather “leav[ing]
to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences.” Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17
(1986)) (second and third alterations in Atkins). Twelve years prior to the Supreme Court’s decision
in Atkins, the Commonwealth of Kentucky by statute abolished the death penalty for “seriously
mentally retarded defendant[s],” i.e., persons “with significant subaverage intellectual functioning
existing concurrently with substantial deficits in adaptive behavior and manifested during the
developmental period.” KY. REV. STAT. §§ 532.130, 532.140. However, until Bowling’s appeal,
judicial review of Kentucky’s mental-retardation statute had been quite circumscribed.1
       In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005), the Kentucky Supreme Court
concluded that Bowling was “not entitled to relief from his death sentence . . . . ” Id. at 366.
Specifically, the court ruled that, although Atkins applies retroactively with respect to persons tried
before Kentucky enacted its statutory ban on execution of mentally retarded persons, see id. at 371,
Bowling waived his mental-retardation claim because he was tried after the effective date of the
Kentucky mental-retardation statute but had chosen not to raise the issue at trial. See id. at 372. The
court went on to state, though, that if Bowling could prove that he was mentally retarded, he would
be actually innocent of the death penalty, and thus the “miscarriage of justice” exception to
procedural default would apply. See id. at 372-73.
      Ultimately, the court declined to grant Bowling’s request for an evidentiary hearing because
Bowling had failed to make a prima facie showing that he was mentally retarded under Kentucky


         1
            See Woodall v. Commonwealth, 63 S.W.3d 104, 116 (Ky. 2002) (upholding trial judge’s limitations on voir
dire questioning regarding mitigating factors such as low I.Q., noting that defendant’s I.Q. scores of 74 and 78 “are 4
to 8 points respectively higher than the definition of a seriously mentally retarded offender as found in KRS
532.130”); Hunter v. Commonwealth, 869 S.W.2d 719, 722 (Ky. 1994) (concluding that the trial court violated due
process by failing to grant continuance to permit further testing of defendant, noting that “the doctor’s initial judgment
that appellant’s I.Q. is most likely in the low 70’s. The significance of this information, of course, is due to the fact that
an I.Q. of seventy is the lower threshold at which a defendant becomes ‘death ineligible’ under KRS 532.130(2) and KRS
532.140(1).”) (internal quotation marks omitted); C.I. v. Commonwealth, No. 2002-CA-001066-DG, 2003 WL
22461730, *2 (Ky. Ct. App. Oct. 31, 2003) (unpublished) (finding that KBIT test did not qualify as a “full scale” testing
measure as required by juvenile-sex-offender statute and could not “satisfy the multifaceted requirements of KRS
532.130(2)”); see also Skaggs v. Parker, 235 F.3d 261, 273 n.4 (6th Cir. 2000) (stating that § 532.140 was not in effect
at time of trial but explaining that, under § 532.140, “the court must determine, prior to trial, whether a defendant is
mentally retarded. To this end, the court must evaluate a number of factors, including whether the defendant’s I.Q. is
70 or below.”).
Nos. 04-6194/6378 In re Bowling                                                                                  Page 8


law. See id. at 384 (“We hold that to be entitled to an evidentiary hearing on a claim of entitlement
to the mental retardation exemption provided by KRS 532.140(1), a defendant must produce some
evidence creating a doubt as to whether he is mentally retarded.”). The court determined that
Kentucky Revised Statute § 532.130 mandates that a defendant have “an intelligence quotient (I.Q.)
of seventy (70) or below,” but that the lowest IQ score Bowling had ever received was a 79. See id.
The court further noted that, although there was some confusion whether Bowling received a 74 or
an 84 on a 1966 IQ examination, “the relevancy of an IQ score of 74 at age thirteen would be clearly
outweighed by Appellant’s IQ scores of 79 measured five months later, and 86 and 87 measured
twenty-four years later and in the same time frame as the offenses and the trial.” Id. at 384 n.37 (“If
a trial court found otherwise, we would deem that finding to be clearly erroneous.”). The court also
ruled that Kentucky’s statutory framework for adjudicating mental-retardation claims complies with
Atkins, rejecting Bowling’s arguments that, inter alia, the Kentucky statutes define only severe
mental retardation and that an IQ ceiling of 70 fails to account for margins of error in IQ tests and
for increases in IQ scores as a person ages. See id. at 376-77.
         Justice Keller, joined by Justice Graves, filed a dissenting opinion. First, Justice Keller
stated that Atkins claims should not be deemed waived when a defendant fails to comply with
Kentucky’s statutory requirement that mental-retardation issues be raised prior to trial, given that
the Eighth Amendment claim arises only after conviction and that society has an independent
interest in mentally retarded persons not being executed, which the defendant cannot waive. See id.
at 385-86 (Keller, J., dissenting). Justice Keller also expressed his belief that Bowling had presented
“sufficient [evidence] to create a doubt as to his mental condition,” noting that the record was
ambiguous as to whether Bowling had received a 74 or an 84 on his November 1966 IQ exam and
that it was the province of the trial court to resolve this factual issue in the first instance. See id. at
387 (Keller, J., dissenting). Justice Keller further noted that the Kentucky statute required an IQ of
70 or below, not an IQ score of 70 or below, and thus a judge should make an independent
determination of a defendant’s IQ based on the entirety of the evidentiary record (taking into account
such matters as margins-of-error and age-based scoring patterns) rather than depending strictly on
an examination score. See id. at 388 (Keller, J., dissenting).
         After reviewing the Kentucky Supreme Court’s decision and the parties’ briefing, I believe
that Bowling has made a sufficient showing to obtain leave to file a second or successive habeas
petition. The Kentucky Supreme Court’s rejection of Bowling’s mental retardation claim rested
exclusively on the fact that Bowling had not presented any evidence that he had ever received an
IQ test score of 70 or below. See id. at 384. However, there appears to be considerable evidence
that irrebuttable IQ ceilings are inconsistent with current generally-accepted clinical definitions of
mental retardation and that any IQ thresholds that are used should take into account     factors, such
as a test’s margin of error, that impact the accuracy of a particular test score.2 As then-California
Supreme Court Justice Janice Rogers Brown explained in In re Hawthorne, 105 P.3d 552, 557-58
(Cal. 2005):
                 With respect to the intellectual prong of [California’s mental retardation
         statute], respondent Attorney General urges the court to adopt an IQ of 70 as the
         upper limit for making a prima facie showing. We decline to do so for several
         reasons: First, unlike some states, the California Legislature has chosen not to


         2
           Kentucky’s mental retardation statute was enacted in 1990 (i.e., prior to Atkins) and appears to have relied on
the 1983 version of the AAMR’s mental retardation definition. Bowling v. Commonwealth, 163 S.W.3d 361, 374 (Ky.
2005); see Peggy M. Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them
From Execution, 30 J. LEGIS. 77, 138 (2003) (“As is abundantly clear, . . . Atkins changed the landscape of death penalty
jurisprudence. Definitions and procedures that were adequate for a mental retardation determination for purposes of a
state execution ban are not necessarily adequate for the enforcement of the Atkins constitutional execution ban.”)
(internal quotation and footnotes omitted).
Nos. 04-6194/6378 In re Bowling                                                                                  Page 9


         include a numerical IQ score as part of the definition of mentally retarded. . . .
         Moreover, statutes referencing a numerical IQ generally provide that a defendant
         is presumptively mentally retarded at or below that level, rather than–as respondent
         impliedly argues–that a defendant is presumptively not mentally retarded above it.
         Second, a fixed cutoff is inconsistent with established clinical definitions and fails
         to recognize that significantly subaverage intellectual functioning may be established
         by means other than IQ testing. Experts also agree that an IQ score below 70 may
         be anomalous as to an individual’s intellectual functioning and not indicative of
         mental impairment. (See Am. Psychiatric Assn., Diagnostic and Statistical Manual
         of Mental Disorders (4th ed.2000) pp. 41-42.) Finally, IQ test scores are
         insufficiently precise to utilize a fixed cutoff in this context. (See id. at p. 41
         [indicating IQ scores are considered to have a five-point measurement error];
         AAMR, Mental Retardation: Definition, Classification, and Systems of Support
         (10th ed.2002) p. 57; Am. Assn. of Mental Deficiency, Classification in Mental
         Retardation (8th ed.1983) p. 11.)
(emphasis added, citations and footnote omitted); see also State v. Lott, 779 N.E.2d 1011, 1014
(Ohio 2002) (“While IQ tests are one of the many factors that need to be considered, they alone are
not sufficient to make a final determination on this issue. We hold that there is a rebuttable
presumption that a defendant is not mentally retarded if his or her IQ is above 70.”); cf. Ford v.
Wainwright, 477 U.S. 399, 417 (1986) (“[T]he lodestar of any effort to devise a procedure must be
the overriding dual imperative of providing redress for those with substantial claims and of
encouraging accuracy in3 the factfinding determination. The stakes are high, and the ‘evidence’ will
always be imprecise.”).
        While it is true that Atkins vests states with the primary responsibility for defining mental
retardation, states are not wholly unfettered in this process. Rather, states must adopt mental-
retardation definitions and procedures for ascertaining a defendant’s mental capacity that are in


         3
            See Tobolowsky, supra note 2, at 95-96 (“[M]any states have incorporated a specific IQ cutoff score in their
definitions of mental retardation, most often using an IQ of seventy as the cutoff for this component of the mental
retardation definition. However, most of these definitions do not acknowledge that each assessment instrument has a
standard measurement error, usually between three and five points, and that the standard measurement error is not the
same for all instruments. Recognizing the impact of the standard measurement error, in the previous AAMR definitions
and the current APA definition, the IQ cutoff for mental retardation has been quantified between seventy and
seventy-five, as noted by the Court in Atkins. To avoid mistaken reliance on and potential misuse of a particular IQ
score, especially if it does not include consideration of standard measurement error, the AAMR stated its current IQ
cutoff in terms of being at least two standard deviations below the mean of the specific instruments used, considering
their particular standard measurement error, strengths, and limitations. The current APA definitional material also refers
to the IQ cutoff as being approximately two standard deviations below the mean, with reference to measurement error
of approximately five points. Thus, any state's use of a fixed IQ cutoff score, without reference to standard measurement
error and other factors concerning the specific instrument used, risks an inaccurate assessment of the intellectual
functioning component of the mental retardation definition.”) (emphasis added, footnote omitted); id. at 139 (“[S]tates
that use a rigid IQ cutoff score of seventy for the intellectual functioning component may be excluding some individuals
otherwise falling within the accepted clinical definition.”); Bob Egelko, California Judging If A Killer is Retarded:
State’s Justices Set Framework on Executions, S.F. CHRON., Feb. 11, 2005, at B1 (“[Mental health] organizations
stopped using IQ scores as decisive measures more than a decade ago but consider an IQ of 70 to 75 — below all but
1 to 3 percent of the population — to be evidence of retardation.”); James W. Ellis, Mental Retardation
and the Death Penalty:                   A Guide to State Legislative Issues, 7 & nn.18-19, at
http://www.aamr.org/Reading_Room/pdf/state_legislatures_guide.pdf (last accessed July 20, 2005) (“IQ scores alone
cannot precisely identify the upper boundary of mental retardation. Generally, mental retardation encompasses everyone
with a score of 70 or below. Additionally, it includes some individuals with scores in the low 70s (and even mid-70s),
depending on the nature of the testing information. As much as the criminal justice system might prefer to have a hard-
and-fast limitation measurable by a single IQ score, it is simply impossible to exclude consideration of other factors
about the testing performed on the individual, nor is it possible to ignore the need for clinical judgment by experienced
diagnosticians.”) (footnotes omitted).
Nos. 04-6194/6378 In re Bowling                                                                Page 10


accordance with the Eighth Amendment’s goals and principles. Thus, I would grant Bowling leave
to file a second or successive habeas petition so that the district court and this court can consider
whether Kentucky’s definition of mental retardation and its procedures for evaluating such a claim
encompass the whole “range of mentally retarded offenders about whom there is a national
consensus,” Atkins, 536 U.S. at 317, and if not, whether Bowling qualifies as mentally retarded when
all of the record evidence (not simply his IQ scores) is considered.
       With respect to Bowling’s motion for a stay of execution, 28 U.S.C. § 2251 provides that:
               A justice or judge of the United States before whom a habeas corpus
       proceeding is pending, may, before final judgment or after final judgment of
       discharge, or pending appeal, stay any proceeding against the person detained in any
       State court or by or under the authority of any State for any matter involved in the
       habeas corpus proceeding.
              After the granting of such a stay, any such proceeding in any State court or
       by or under the authority of any State shall be void. If no stay is granted, any such
       proceeding shall be as valid as if no habeas corpus proceedings or appeal were
       pending.
Bowling has filed an application with this court seeking permission to file a second or successive
habeas corpus petition asserting that his execution would violate the Eighth Amendment, and thus
a habeas corpus proceeding is pending for purposes of § 2251. Cf. McFarland v. Scott, 512 U.S.
849, 859 (1994) (“[A] capital defendant may invoke this right to a counseled federal habeas corpus
proceeding by filing a motion requesting the appointment of habeas counsel, and . . . a district court
has jurisdiction to enter a stay of execution where necessary to give effect to that statutory right.”).
Thus, in order to ensure that Bowling’s Eighth Amendment claim can be heard by a federal court
before he is executed, I would order that Bowling’s execution be stayed until further notice.
                                               ENTERED BY ORDER OF THE COURT


                                                     /s/ Leonard Green
                                               __________________________________
                                                            Clerk
