            SUPREME COURT OF MISSOURI
                                      en banc



STATE EX REL. CECIL CLAYTON,                 )
                                             )
                            Petitioner,      )
                                             )
v.                                           )   No. SC94841
                                             )
CINDY GRIFFITH, in her capacity as           )
WARDEN, POTOSI CORRECTIONAL                  )
CENTER,                                      )
                                             )
                            Respondent.      )


                  ORIGINAL PROCEEDING IN HABEAS CORPUS

                            Opinion issued March 14, 2015

      On February 6, 2015, this Court scheduled the execution of Petitioner Cecil

Clayton (“Clayton”) for March 17, 2015. On March 10, 2015, Clayton filed a petition for

writ of habeas corpus claiming that he is not competent to be executed under Ford v.

Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007), and

section 552.060.1, RSMo 2000. Addressing the merits of Clayton’s petition, this Court

finds that he has failed to make the threshold showing required by Ford and Panetti to

justify staying his execution so that his competence can be determined after an

evidentiary hearing.
                                        Background

       Clayton’s conviction and death sentence were affirmed by this Court in State v.

Clayton, 995 S.W.2d 468, 472 (Mo. banc 1999) (Clayton I). His motion for

post-conviction relief was overruled, and this Court affirmed that decision as well.

Clayton v. State, 63 S.W.3d 201 (Mo. banc 2001) (Clayton II). The United States District

Court for the Western District of Missouri, Judge Laughrey presiding, denied Clayton’s

federal petition for a writ of habeas corpus, Clayton v. Luebbers, 2006 WL 1128803

(April 27, 2006) (Clayton III), and that decision was affirmed by the United States Court

of Appeals in Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008) (Clayton IV).

I.     Clayton’s Crime

       Clayton’s petition does not claim that he is innocent of the crime for which he has

been sentenced to death. In 1996, Clayton became angry at his girlfriend in a

convenience store in Purdy, Missouri. Clayton I, 995 S.W.2d at 473-74. When Clayton

pushed his girlfriend, a clerk in the store phoned the sheriff’s department. The Purdy

police chief arrived and waited there until Clayton and his girlfriend left separately. Id. at

473. Within an hour, Clayton drove his truck to his girlfriend’s residence. She was not

there, but her sister called the sheriff’s department when she saw Clayton sitting in his

truck in their driveway. Id. Deputy Castetter was dispatched and arrived at the residence

at 10:03 p.m. Three or four minutes later, two other deputies arrived to help Deputy

Castetter deal with Clayton. When they arrived, however, they found Deputy Castetter in

his patrol car, bleeding profusely from a point-blank gunshot wound to his forehead. Id.
His gun was still in his holster. Deputy Castetter was taken to the hospital but soon died

of his wound. Id. at 474.

       Within 15 minutes of this murder, Clayton arrived at a friend’s house, brandished

a pistol, and exclaimed “would you believe me, if I told you that I shot a policeman,

would you believe me?” Id.     Clayton told his friend he needed him to provide an alibi.

Clayton then drove his friend to Clayton’s house. Less than a half hour after the crime,

the two arrived at Clayton’s home just as the police were arriving there to question him

about Deputy Castetter’s murder. Clayton asked his friend “should I shoot them?” His

friend answered “No.” Id. Clayton got out of his truck and, claiming he could not hear

the officers, walked away from them and toward the side of his house with his right hand

in his pocket. The officers saw him take something out of the pocket and put it in a stack

of concrete blocks next to his house.

       The officers arrested Clayton and later found his gun among the concrete blocks.

Id. In a subsequent interrogation, Clayton stated that Deputy Castetter “probably should

have just stayed home” and that “he shouldn’t have smarted off to me.” Clayton added,

however, “I don’t know because I wasn’t out there.” Later, Clayton admitted his

involvement in Deputy Castetter’s murder to a cellmate. Clayton II, 63 S.W.3d at 204.

II.    Clayton’s Brain Injury

       Clayton was 56 years old in 1996 when he killed Deputy Castetter.

Approximately 24 years before he committed that crime, Clayton was injured while

working in a sawmill. A piece of wood broke off a log he was sawing and lodged in

Clayton’s head. Surgery was required to remove the object, and this procedure resulted


                                             3
in the loss of nearly eight percent of Clayton’s brain and 20 percent of a frontal lobe.

Clayton II, 63 S.W.3d at 205. At trial, Clayton’s brother Marvin testified that, after the

injury, Clayton changed. “He broke up with his wife, began drinking alcohol and became

impatient, unable to work and more prone to violent outbursts.” Id. at 204. Another

brother, Jerry, testified during the penalty phase about Clayton’s “childhood and life as a

part-time pastor and evangelist prior to the sawmill accident and, after the accident, his

marital breakup, drinking alcohol and his antisocial personality.” Id.

III.   Impact of Clayton’s Injury on his Culpability and Competence

       From the beginning of this prosecution, Clayton has argued that the effects of his

1972 accident left him blameless for the 1996 murder of Deputy Castetter and/or

incompetent to proceed in some – but not all – stages of his case.

       A.     Trial

       During the guilt phase of his trial, Clayton argued that the accident rendered him

incapable of deliberating or forming the intent necessary for the jury to find him guilty of

first-degree murder. Clayton II, 63 S.W.3d at 204. In addition to the testimony from his

brother, two experts testified that he was not capable of “deliberating, planning, or

otherwise coolly reflecting on a murder when agitated” and that his inculpatory

statements to the police should be discounted because his injury made him unusually

“susceptible to suggestion.” Id. The jury rejected this evidence and found Clayton guilty

of first-degree murder. In the penalty phase of his trial, Clayton argued that his injury

was a mitigating factor that should make the death penalty inappropriate in his case. Id.




                                              4
at 209-10. The jury rejected this as well and recommended that Clayton be sentenced to

death.

         Clayton did not argue at trial that he was insane at the time of the murder or that

he was incompetent to stand trial. When he later claimed that his trial counsel was

constitutionally ineffective for failing to challenge his competence to be tried, this Court

held: “Counsel has no duty to investigate a client’s mental condition where the client

appears to have the present ability to consult rationally with the attorney and understand

the court proceedings.” Id. at 209. Because “Clayton was able to intelligently discuss his

legal options with his attorney, and even carry on correspondence with him about the

case, [his] attorney could reasonably conclude that [Clayton] was competent to stand

trial.” Id.

         In addition, this Court held there was no evidence that Clayton actually was

incompetent. Noting that the motion court had good reason to reject Clayton’s expert

witness’s testimony in denying Clayton’s motion for post-conviction relief, this Court

stated that “Dr. Foster’s determination is especially questionable because even though he

said Clayton was incompetent at the time of his trial, he admitted that Clayton understood

the role of the prosecutor, the judge, the juror, and even his own attorney in the process.”

Id. More important, when this expert examined Clayton three years after his trial, Dr.

Foster admitted that “Clayton knew what he was charged with, that he was facing the

death penalty, and that he was able to discuss his various options with his attorney.” Id.

Accordingly, this Court held: “The judge, who had also presided during Clayton’s trial,




                                               5
had more than a reasonable basis to concluded [sic] that Dr. Foster’s testimony was not

credible and that Clayton was competent at the time of his trial.” Id.

       B.     Federal Habeas

       Clayton raised numerous claims in his federal petition for a writ of habeas corpus,

including many based on the impairments created by his 1972 accident and resulting

brain injury. Though not conclusive of the question now before this Court, these claims

and the District Court’s rejection of them are relevant because Clayton’s competence

argument relies on a condition that existed throughout his legal proceedings and – even

though his experts refer to the condition worsening with age – neither Clayton nor his

experts identify any evidence to support the fact that his competence is materially worse

now than in 2005 and 2006 when his federal habeas petition was litigated and rejected.

              1.     Dual Defense Theories

       In 2006, as part of his petition for habeas relief in the federal courts, Clayton

claimed that his trial counsel was ineffective for arguing both that Clayton was not the

murderer and that, even if Clayton did kill Deputy Castetter, Clayton’s brain injury

precluded him from forming the necessary intent and deliberation. Clayton III, 2006 WL

1128803, at *5-8. The District Court noted that this Court had rejected this claim, in part,

because this Court earlier had reached the conclusion that Clayton “did not have a good

defense under either theory.” Id. at *7 (citing Clayton II, 63 S.W.3d at 206-07). The

District Court held there was “ample evidence” to support this conclusion. Id. at *8.




                                              6
              2.     Additional Evidence of Impairment at Trial

       The District Court also rejected Clayton’s claim that his trial counsel should have

introduced voluminous records from his extended hospital stay after his injury. “The

records Clayton now complains about would have complicated [the simple] picture [that

counsel wanted to present] and shown the jury that Clayton was also a violent man with a

criminal record even before the accident occurred.” Clayton III, 2006 WL 1128803, at

*8 (quoting Clayton II, 63 S.W.3d at 208). Similarly, the District Court agreed with this

Court’s decision that Clayton’s counsel was not ineffective for electing not to present a

witness who, on cross-examination, would have had to admit “that Clayton had a violent

temper even before his accident, undercutting Clayton’s diminished capacity defense.”

Id. at *11 (quoting Clayton II, 63 S.W.3d at 209).

              3.     Clayton was Competent to Stand Trial

       The District Court also agreed with this Court’s conclusion that Clayton’s counsel

had no reasonable basis to challenge Clayton’s competence to stand trial. Noting that,

even though Clayton’s expert psychologist had not been retained specifically to evaluate

his competence, Clayton’s expert testified that defense counsel had asked her to “let him

know if there was a problem with Clayton’s competency.” Clayton III, 2006 WL

1128803, at *12. “Dr. Back stated that she believed in June 1997 that Clayton was

competent to stand trial and that, had she thought otherwise, she would have told [defense

counsel] he was not competent.” Id.

       Not only was counsel reasonable in relying on this expert, the District Court

agreed with this Court’s holding that Clayton failed to show that he actually was


                                             7
incompetent to be tried. Id. at *14. Clayton’s claim was based on the testimony of

Dr. Foster, but the District Court held that the “Missouri courts’ decision to give no

weight to Dr. Foster’s testimony is well supported by the evidence in the record[.]” Id.

“Dr. Foster testified that Clayton understood the proceedings, the charges against him and

that he faced the death penalty, that he had the right not to testify, and the role of different

participants in the trial, including his attorneys, the prosecutor, the judge, and the jury.”

The District Court concluded that these concessions contradicted Dr. Foster’s assertion

Clayton was not competent and justified this Court’s (and the post-conviction motion

court’s) decisions not to give any weight to it. Id.

              4.      Clayton was not Mentally Retarded

       The District Court also rejected Clayton’s claim, based on Atkins v. Virginia, 536

U.S. 304 (2002), that due process prohibited his being sentenced to death. Even though

Atkins holds that the constitution prohibits the execution of mentally retarded criminals,

the District Court noted that Atkins is limited to “mentally retarded individuals who

satisfy state standards for retardation.” Clayton III, 2006 WL 1128803, at *43 (citing

Atkins, 536 U.S. at 317). The District Court held that Clayton’s claim must fail,

therefore, because he “has not presented evidence that any of his symptoms manifested

before the age of eighteen – a necessary requirement under the [Missouri] statutory

definition.” Id. (citing § 565.030.6, RSMo Supp. 2013).

       In addition to this shortcoming, the District Court also noted that Dr. Back,

Clayton’s expert during his post-conviction proceedings, admitted that Clayton “was not

retarded when she evaluated him in 2000.” Id. at *44. “Dr. Back evaluated Clayton less


                                               8
than one year after he killed Castetter and his IQ scores placed Clayton within the low

average range of intellectual functioning.” Id. Dr. Black’s conclusion was reinforced by

the 2005 psychiatric evaluation that the District Court ordered be conducted by Dr.

Preston of the Medical Center for Federal Prisoners. When given tests designed to show

the degree of impairment among mentally retarded persons, Clayton “received scores that

were consistent with presumed competent individuals without mental retardation.” Id.

(citing Dr. Preston’s Report at p. 26). Accordingly, the District Court held that “the

record refutes his claim that at the time of the murder, or at any time since, [Clayton]

functioned at the level of a mentally retarded person.” Id. at *43.

              5.     Clayton was not Insane at the Time of the Offense

       The District Court rejected Clayton’s claim that his conviction and death sentence

violate due process because his brain injury meant he could not be criminally responsible

for the murder of Deputy Castetter under section 552.030.1, RSMo 2000, which provides

that “a person is not responsible for criminal conduct if, at the time of such conduct, as a

result of mental disease or defect such person was incapable of knowing and appreciating

the nature, quality, or wrongfulness of such person’s conduct.” Clayton III, 2006 WL

1128803, at *41. Again, Clayton based this claim on the opinions of Dr. Foster but, after

reviewing this expert’s testimony, the District Court held “it is unlikely the jury would

give it substantial weight.” Id. Even assuming that Dr. Foster’s testimony was credible,

the District Court found that his testimony contradicted rather than supported Clayton’s

claim because “Dr. Foster testified that Clayton knew his conduct was wrong and




                                              9
understood the quality and nature of his act.” Id. Moreover, “at Clayton’s trial Dr. Back

testified that Clayton had the ability to distinguish between right and wrong.” Id. “In

short, Clayton’s own expert’s testimony shows that he did not meet the criteria for

insanity” set forth in section 552.030.1. Id.

              6.     Clayton was Competent During his Habeas Proceeding

       Even though the District Court rejected Clayton’s claims that the brain injury he

suffered in the 1972 accident absolved him of criminal liability for the 1996 murder of

Deputy Castetter and/or rendered him incompetent to be tried for that crime, the District

Court ordered that a new psychiatric evaluation be performed in 2005 to assist it in

determining: (1) whether Clayton was competent to understand and assist with his federal

habeas proceedings; and (2) whether Clayton was competent to be executed under the

Eighth Amendment standard set forth in Ford. This psychiatric evaluation was

performed by Dr. Preston of the Medical Center for Federal Prisoners, who prepared a

forensic report for the District Court. Dr. Preston’s report concluded:

       Clayton demonstrated a good factual and rational understanding of the legal
       system and the process of adjudication. More specifically, during clinical
       interviews, he demonstrated an adequate rational understanding of the
       habeas corpus proceedings. He understood the roles of the various
       individuals involved in this process as well as the possible outcomes. His
       cognitive deficits did not appear to negatively impact his ability to
       understand his present legal proceedings.

District Court Order dated April 27, 2006 (the “Competency Order”) at p. 15

(quoting Dr. Preston’s report at p. 30).

       Regarding Clayton’s ability to communicate with counsel and make

rational decisions, the District Court noted that “Dr. Preston also acknowledged


                                                10
that Clayton is capable of communication with his lawyer, but emphasized that it

takes more time and effort than with a fully functioning client.” Competency

Order at p. 15. See also Clatyon IV, 515 F.2d at 791 (“Clayton has the ability to

understand the legal proceedings and communicate with counsel provided that his

counsel is patient in eliciting information”). Moreover, neither Clayton’s federal

counsel nor the two prior counsel who submitted affidavits complained they were

unable to obtain relevant factual information from Clayton. In fact, Dr. Preston

“concluded that Dr. Back’s earlier diagnosis of dementia was not correct” and she

“did not find Clayton to have any significant impairment in memory.”

Competency Order at p. 17 (citing Dr. Preston’s Report at pp. 26-28). The District

Court noted that “Clayton consistently was found to be functioning above the level

for a mentally retarded person, and his performance on tests assessing memory,

although weak at times, did not suggest severe impairment.” Id.

       Accordingly, based on Dr. Preston’s Report, the District Court concluded

that even though “Clayton’s judgment is impaired, he has failed to show that the

impairment requires a stay” on the ground that he is incompetent to proceed. Id. at

p. 18. This decision was affirmed. Clatyon IV, 515 F.2d at 790. The District

Court reached this conclusion notwithstanding Dr. Preston’s “ultimate conclusion”

that Clayton was incompetent to proceed. Competency Order at p. 18. As the

District Court explained, competency is a legal determination that must be made

by the court and not by experts. Id. See also Clatyon IV, 515 F.2d at 791 (“expert

opinion on competency rises no higher than the reasons on which it is based”).


                                            11
“Because Dr. Preston’s objective observations and the tests which she reviewed

show that Clayton is competent to proceed with his habeas corpus action, the

Court is not persuaded by Dr. Preston’s ultimate conclusion.” Competency Order

at p. 18. See also Clatyon IV, 515 F.2d at 791 (“the court placed more emphasis

on the objective findings from the tests the doctor performed than on her ultimate

conclusion”)

               7.    Clayton was Competent to be Executed

       Regarding Clayton’s claims that he was not competent to be executed, the District

Court first compared the standard for competence to stand trial, see Cooper v. Oklahoma,

517 U.S. 348, 354 (1996) (“a rational as well as functional understanding of the

proceedings against him” and a “sufficient present ability to consult with [the

defendant]’s lawyer with a reasonable degree of rational understanding”), with the

standard for competence to be executed, which the District Court stated “required only

that the convicted defendant be aware of the punishment the defendant was about to

suffer and why the defendant was going to suffer it.” Competency Order at p. 11 (citing

Ford, 477 U.S. at 422). The District Court concluded that, assuming competence is even

an issue in federal habeas proceedings (an assumption proved wrong by Ryan v.

Gonzales, 133 S. Ct. 696, 702 (2013)), the standard for such competence must require

greater abilities than the standard for competence to be executed but fewer abilities than

required by the standard of competence to stand trial originally. Id. at 11, 14.

Accordingly, because Clayton was competent to proceed with his federal habeas petition,




                                             12
the District Court needed no additional analysis to reject Clayton’s claim that he was

incompetent to be executed:

       Clayton asserts that he is incompetent to be executed under the standard set
       forth in Ford v. Wainwright, 477 U.S. 399 (1986). His recent competency
       examination shows that he is competent to be executed. Clayton’s thirtieth
       claim is denied.

Clayton III, 2006 WL 1128803, at *44.

       C.     Clayton’s Current Petition Alleging He is Incompetent to be Executed

       Clayton filed this action on March 10, 2015, more than four weeks after this

Court’s February 6 order scheduling Clayton’s execution for March 17. This delay is not

attributable to any need to gather evidence because the most recent of Clayton’s exhibits

is dated in early January 2015. Instead, this delay is due to the tactical decisions of

Clayton’s counsel seeking to avoid litigating this claim in this Court. On January 9,

2015, Clayton filed a civil rights action and motion for a stay of execution in federal

court claiming that he was not competent to be executed. This case was assigned to the

same District Court that, in 2006, denied Clayton’s habeas petition and found that he was

competent to be executed.

       Last year, John Middleton sought to litigate his competence in the federal courts

without first raising the issue in this Court. The Eighth Circuit rejected that approach:

       The Missouri courts are the proper forum in the first instance for
       Middleton’s claim of incompetency to be executed. The likelihood of
       success of a Ford claim in a federal habeas petition depends on how the
       Missouri courts dispose of such a claim. See 28 U.S.C. § 2254(d); Panetti,
       551 U.S. at 948, 127 S.Ct. 2842. Middleton thus far has declined, perhaps
       for tactical reasons in light of § 2254(d), to advance a Ford claim before the
       Supreme Court of Missouri. But that is where the claim must be presented
       in the first instance. Whatever might be said about possible justifications


                                             13
       for Middleton’s failure to bring a Ford claim until fewer than 48 hours
       before the scheduled execution, there is no reason why Middleton cannot
       present a Ford claim and a motion for stay of execution to the Missouri
       courts in light of this court’s decision of July 15.

Middleton v. Roper, 759 F.3d 867, 869, (8th Cir. 2014) (Middleton II). Thereafter,

Middleton filed his competency action in this Court, and that petition was denied for lack

of merit. State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014)

(Middleton III).

       Here, finding no meaningful distinction between Clayton’s tactic and Middleton’s

approach that was rejected by the Court of Appeals, the District Court dismissed

Clayton’s federal suit on February 24, 2015:

               Clayton seeks a stay of the March 17, 2015 execution date set by the
       Missouri Supreme Court. In [Middleton v. Roper, 759 F.3d 833 (8th Cir.
       2014) (Middleton I),] the Eighth Circuit held that the district court abused
       its discretion by staying the inmate’s execution for the purpose of holding a
       hearing on a Ford claim that had not been presented in the first instance to
       the Missouri state courts. 759 F.3d at 835-36.
               In [Middleton II)], issued the following day, the Eighth Circuit held
       that the district court had abused its discretion in granting an indefinite stay
       of execution, because the inmate had not shown a substantial likelihood of
       success on the merits of a Ford claim in his federal habeas petition. 759
       F.3d at 869. And the likelihood of success in federal habeas depended on
       how the Missouri courts disposed of such a claim. Id. There was no reason
       why the inmate could not present both his Ford claim and motion for stay
       of execution in the state courts. Id.
               In view of Middleton I and II, and this Court’s dismissal of
       Clayton’s case, Clayton’s motion for a stay of execution is denied, without
       prejudice.

Clayton v. Lombardi, Case No. 4-15:cv-04003-NKL (order of dismissal) (Feb. 24, 2015),

at pp. 5-6.




                                             14
       Even though only three weeks remained until Clayton’s execution, his counsel

chose not to file his competency claim in this Court, as the District Court held he must.

Instead, Clayton’s counsel waited until March 2 and then filed a “Motion to Alter or

Amend” the District Court’s judgment dismissing his suit. Only when that motion was

denied (on March 9) did counsel file the present petition.

                                         Analysis

       Clayton’s petition asserts three claims: (1) that Clayton is incompetent to be

executed under Ford and Panetti and section 552.060.1, RSMo 2000; (2) that

section 552.060.2, RSMo 2000 is unconstitutional “insofar as it permits the director of

the Department of Corrections, a member of the executive branch who is charged with

conducting the execution, to determine a prisoner’s competence to be executed;” and

(3) that Clayton is intellectually disabled and cannot be executed under Atkins. In

support of these claims, Clayton relies principally on the evaluations performed by Dr.

Foster and Dr. Preston, referred to above, as well as those performed by Dr. Logan.

I.     Clayton is Competent to be Executed

       The standard for an Eighth Amendment claim that a prisoner is not competent to

be executed is found in Ford and Panetti. “[T]he Eighth Amendment prohibits a State

from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at

409–410. See also Panetti, 551 U.S. at 934. This constitutional protection “prohibits

execution of one whose mental illness prevents him from comprehending the reasons for

the penalty or its implications … [or is] unaware of the punishment they are about to




                                            15
suffer and why they are to suffer it.” Panetti, 551 U.S. at 957 (quotation marks and

citations omitted).

       This standard applies “despite a prisoner’s earlier competency to be held

responsible for committing a crime and to be tried for it,” and earlier findings of

competency “do not foreclose a prisoner from proving he is incompetent to be executed

because of his present mental condition.” Panetti, 551 at 934. Under Ford, however, a

prisoner is not entitled to an adjudication to determine a claim of incompetence on the

eve of his execution unless he makes a sufficient threshold showing that his current

mental state bars execution. Id.

       In Middleton III, this Court analyzed the requirements of Ford and Panetti in

greater detail.

       In Panetti, the Supreme Court explains that the gravamen of an Eighth
       Amendment incompetence claim is not that an inmate is delusional, but that
       the inmate suffers from some “mental illness that is the source of gross
       delusions preventing him from comprehending the meaning and purpose of
       the punishment to which he has been sentenced.” Id. at 960[]. The
       delusions must be such that “they so impair the prisoner’s concept of reality
       that he cannot reach a rational understanding of the reason for the
       execution.” Id. at 958.
       In Panetti, the inmate had a “genuine delusion involving his understanding
       of the reason for his execution .... [that] recast petitioner’s execution as
       ‘part of spiritual warfare ... between the demons and the forces of the
       darkness and God and the angels and the forces of light.’” Id. at 954
       (citations omitted). As a result, even though “petitioner claims to
       understand ‘that the state is saying that [it wishes] to execute him for [his]
       murder[s],’ he believes in earnest that the stated reason is a ‘sham’ and the
       State in truth wants to execute him ‘to stop him from preaching.’ ” Id. at
       954–55[].




                                             16
       Nothing in Dr. Logan’s[ 1] statement, or in the other proof submitted with
       Middleton’s petition, even approaches a substantial threshold showing that
       Middleton suffers from such delusions. Instead, at most, they show that
       Middleton is delusional as to his innocence and his chances of escaping
       execution. Middleton plainly understands he is to be executed as
       punishment because he was found guilty of murdering his three victims; he
       simply believes he should not have been convicted. Nothing in Panetti or
       Ford suggests that an inmate is incompetent to be executed only if he both
       understands why he is being executed and agrees that the sentence is
       justified.
       Instead, the Court in Panetti stated:
              The mental state requisite for competence to suffer capital
              punishment neither presumes nor requires a person who would be
              considered “normal,” or even “rational,” in a layperson’s
              understanding of those terms. Someone who is condemned to death
              for an atrocious murder may be so callous as to be unrepentant; so
              self-centered and devoid of compassion as to lack all sense of guilt;
              so adept in transferring blame to others as to be considered, at least
              in the colloquial sense, to be out of touch with reality. Those states
              of mind, even if extreme compared to the criminal population at
              large, are not what petitioner contends lie at the threshold of a
              competence inquiry. The beginning of doubt about competence in a
              case like petitioner’s is not a misanthropic personality or an amoral
              character. It is a psychotic disorder.
       Id. at 959–60 (emphasis omitted).

Middleton III, 435 S.W.3d at 85-86 (all emphasis in the original).

       Clayton’s petition fails for the same reasons expressed in Middleton III. The

deficiencies in Clayton’s evidentiary offerings are discussed below, but even if the Court

gives them more weight than they are due, they show no more than what the District

Court saw in 2006, i.e., a man who suffers from some cognitive impairment but who

understands that he has been found guilty of killing Deputy Castetter and sentenced to


1
  Dr. Logan, on whom Clayton relies, also opined that Middleton was not competent to be
executed.



                                               17
death for that act. As in Middleton III, neither the fact that Clayton believes he should

not have been convicted nor the fact that he believes he will be spared execution are

sufficient to make a threshold showing that he is incompetent. Id. at 85. Clayton’s

beliefs in these respects are likely mistaken. They may even be delusional. But they are

not the sort of delusions described in Panetti, and they do not constitute a threshold

showing of incompetence as required by Ford.

       Panetti allows for the possibility that an inmate may admit that – according to his

jailers – he is to be executed for some criminal act even though he actually is laboring

under the genuine (albeit delusional) belief that he is going to be executed for some

different, likely bizarre, but utterly unrelated reason. Such circumstances are

qualitatively different from the circumstances in Middleton III and the present case where

the inmate knows he has been convicted of first-degree murder and sentenced to death

but labors under the genuine (even delusional) belief that he will not be executed because

some outside force – whether judicial, gubernatorial, or supernatural – will intervene and

save him. The latter is sad, but it is not unconstitutional. Accordingly, Clayton is not

incompetent to be executed.

       Seeking to discount the similarity between Clayton’s condition and Middleton’s,

Clayton’s counsel and his experts argue that Clayton meets the Ford and Panetti standard

for incompetence because Clayton is delusional in believing God will spare him from

execution and Middleton was delusional in believing he would be spared by the courts or

the governor. This argument fails. Clayton posits that “religious faith and delusion are

not mutually exclusive,” Petitioner’s Reply Suggestions, at p. 25, but his argument


                                             18
implies that they are synonymous. What made the delusions in Panetti sufficient to

trigger a full hearing on the inmate’s competence was not that the religious themes of the

delusions. Instead, it was the fact that there was reason to believe the inmate genuinely

believed the true purpose behind his execution was not as punishment for a crime, but to

stop him from preaching. The experts on whom Clayton relies admit that Clayton

understands that his death sentence was imposed as punishment for killing Deputy

Castetter and that it will be carried out for that purpose if not stayed, vacated, or

commuted. As explained below, the evidence from these experts (and the other evidence

before the Court) falls short of the required threshold showing that Clayton is not

competent to be executed.

       A.     Dr. Foster

       Dr. Foster testified during Clayton’s post-conviction proceedings that Clayton’s

brain injury rendered him insane at the time he murdered Deputy Castetter and left him

incompetent to stand trial. The motion court gave no weight to his opinion because it

was conclusory and internally inconsistent. This Court affirmed on the same basis.

Clayton II, 63 S.W.3d at 209.

       When Clayton was given an execution date in 2008, Dr. Foster again opined that

Clayton was not competent to be executed. This time, he relied heavily on Dr. Preston’s

report from 2005. In addition, Dr. Foster noted:

       Despite the approaching date of execution, he [Clayton] remains resolute
       that he is called to preach the gospel and will be released from prison by a
       miraculous act of God…. He continues to practice his gospel singing in
       preparation for his ministry once freed, rather than bothering with requests
       for clemency or extenuation. Concepts beyond him perceptually, not


                                              19
       intellectually. By now he fancies himself wrongly convicted, though does
       not have an alternative theory of the crime for which he is convicted.

       In November 2013, Dr. Foster “reassessed” Clayton. He concedes Clayton

“seemed aware of his current prison status and the outcome of intervening years (his trial

and conviction, the birth of his grandchildren, the death of his son, the loss of his

property and estate in the payment to his Attorney at his trial, etc.).” However, Dr.

Foster again opined that Clayton did not meet “the requirements of competency for

purposes of the final appellate proceedings.” He stated:

       His [Clayton’s] dementia, medically substantiated and described now for 44
       years, is of sufficient severity that, to paraphrase Dr. Preston from her
       Report of January 18, 2005, he lacks the capacity to communicate
       effectively with his counsel, to testify relevantly if called upon, and to make
       rational decisions regarding his habeas proceedings. I found the same
       problems in 2000 and testified to those findings in September of that year
       [in Clayton’s post-conviction proceedings]. His Dementia had progressed
       by the time I reassessed him in 2008, and his deterioration the past five
       years has further lessened his capacity for meaningful participation in his
       legal proceedings.

       Finally, Dr. Foster updated his report in January 2015. Again, he relies on and

quotes from Dr. Preston’s report from January 2005. Though he mentions Clayton’s age-

related health problems that have occurred since being incarcerated (e.g., hearing loss,

vision deficits, coronary artery disease resulting in a triple coronary bypass in 2001,

hypertension, arthritic spine, hips, and knees, and a surgically repaired broken leg in

2013), Dr. Foster does not opine that any (or all) of these conditions are what make

Clayton incompetent to be executed. Instead, that opinion is based on the 1972 head

injury and its effects, which Dr. Foster says cause Clayton to exhibit “poor judgment,

problem solving, mental flexibility, and verbal disinhibition[.]” He opines that Clayton is


                                             20
“not simply incompetent legally, he would be unable to care for himself or manage basic

self care, were he not in a structured environment …. [because even though he] can

shower, groom, eat, walk, it is his comprehension, judgment, memory, limited

intelligence and social deficits that plague him.”

       Dr. Foster’s opinions are not credible because the issue is not whether Clayton is

competent in the sense of whether he can care for himself, or even whether Clayton

suffers from deficits in comprehension, judgment, memory, or intelligence. The issue is

whether Clayton can comprehend the reasons for his death sentence and its implications.

Panetti, 551 U.S. at 957. Put another way, the issue is whether Clayton has a rational

understanding of the punishment he is about to suffer and why he is to suffer it. Id. This

is because the Eighth Amendment only prohibits Clayton’s execution if he suffers from

gross delusions that impair his “concept of reality [such] that he cannot reach a rational

understanding of the reason for the execution.” Id. at 958. Dr. Foster does not opine that

Clayton suffers from the “gross delusions” of the sort described in Panetti. In fact, the

only thing Dr. Foster says about Clayton’s understanding of his impending execution is in

the penultimate paragraph of his 2015 letter in which Dr. Foster asserts: “I do not find

him competent to appreciate the purpose of his pending execution as addressed in

Panetti[.]” Dr. Foster does not attempt to substantiate this assertion, and it is not

supported by the remainder of his January 2015 letter. 2



2
   Regarding Dr. Foster’s reliance on Dr. Preston’s 2005 conclusions as to Clayton’s inability to
assist his counsel, Dr. Foster fails to note that the District Court specifically rejected those
conclusions and found them to be inconsistent with the remainder of Dr. Preston’s report.


                                               21
       B.     Dr. Preston

       Dr. Preston examined Clayton in 2005 at the request of the District Court in which

Clayton’s federal habeas petition was being heard. As discussed above, the District

Court thoroughly reviewed Dr. Preston’s report and relied heavily upon it in reaching the

conclusion that Clayton was competent to participate in federal habeas proceedings. In

so holding, the District Court reasoned that the standard for competence to proceed with

habeas must require greater abilities than the minimal standard for competence to be

executed. Dr. Preston’s report exhibits this same understanding because, even though Dr.

Preston’s ultimate opinion was that Clayton was not competent to proceed with his

habeas petition, she had no doubt that Clayton was competent to be executed.

       5) Does Mr. Clayton understand that he is to be executed and the reason for
       the execution (i.e., the killing of Officer Christopher Castetter)?
       Yes. Mr. Clayton was fully aware of the fact that he had been convicted of
       murdering Officer Christopher Castetter. Additionally, he expressed the
       understanding that he had been sentenced to death for this crime.
       According to Mr. Clayton, the method of execution for the state of Missouri
       is lethal injection.

Dr. Preston’s report at p. 68.

       Based on this conclusion, as well as the objective test results and subjective

studies of Clayton described throughout Dr. Preston’s report, the District Court rejected

Clayton’s claim that he was not competent to be executed. The District Court denied a

certificate of appealability on this claim, holding that no reasonable jurist could disagree

about this conclusion.




                                             22
       This Court agrees. Though the District Court’s decision that Clayton was

competent to be executed in 2006 does not dispose of the question now before this Court,

Dr. Preston’s concessions and the other data in her 2005 report are still applicable and

have been endorsed in the last two months by Dr. Foster and Dr. Logan. With no

compelling evidence of any material change in his competence, this Court can reach no

different conclusion from the one reached by the District Court in 2006.

       C.     Dr. Logan

       Like Dr. Foster, Dr. Logan was brought in to render an opinion as to Clayton’s

competency to be executed in light of his execution date in 2008. Unlike Dr. Foster,

however, Dr. Logan was not involved in Clayton’s federal habeas or earlier state

proceedings. After spending three and a half hours with Clayton and reviewing the

voluminous mental health records amassed in earlier proceedings, Dr. Logan opined that

Clayton was not competent to be executed. Like the other experts, however, the details

of Dr. Logan’s 2008 report do not support – and in some places contradict – this

conclusion. In particular, he states:

       Mr. Clayton believes his conviction was the result of a conspiracy by the
       legal system against him and that someone else killed Deputy Castetter.
       Furthermore, despite knowing he is facing his last appeal, he firmly
       believes God will intervene and his execution will not occur…. While
       Mr. Clayton knows the State plans to execute him for killing Deputy
       Castetter, he believes his legal situation is instead a test of his faith and that
       God will not allow the punishment to occur as God has chosen him for
       another mission.

       In 2013, Dr. Logan was asked to update his findings. He first summarized his

findings from 2008, stating that Clayton “only knew concretely that the State planned to



                                               23
execute him for killing Deputy Castetter, but belives [sic] this is only a test of his faith

and would not occur.” Because Clayton’s “head trauma, documented on MRI, will never

change,” and because Clayton’s delusional ideas are “fixed and unchangeable,”

Dr. Logan found “no reason to change my previous 2008 opinion[.]” He stated:

       When examined on September 14, 2012 Mr. Clayton’s thoughts were
       tangential. He still believed God would intervene and he would one day be
       a gospel singer and evangelist. He continues to believe he was unjustly
       convicted and will never be executed. He just tries to get along with others
       and has asked God to work on his case. He does know his attorneys are
       working to get him off the capital punishment unit and then have a new
       trial. Past this point he has no understanding of the issues in his
       proceedings.

       On January 7, 2015, Dr. Foster again stated that “Mr. Clayton’s mental state has

changed little since my earlier evaluations in 2008 and 2013.”

       His view of his conviction is that he is the victim of a conspiracy. His
       mood varies from anxiety to paranoia. He still engages in delusional denial
       that his execution will take place relying on divine intervention in some
       form so he can pursue a gospel ministry as a preacher and sing with the best
       pianist in Missouri with whom he will tour the nation.

Even though he concludes that Clayton “lacks the capacity to understand matters in

extenuation [or] arguments for executive clemency,” Dr. Logan admits that, “[i]n this

regard, he [Clayton] accepts that God may choose to work through his defense team[.]”

       Dr. Logan’s opinions about Clayton are not credible for the same reasons that the

Court refused to credit the substantially similar opinions he offered in Middleton III.

There, too, Dr. Logan opined that Middleton was incompetent to be executed because,

even though “Middleton can recite the reason it [his death sentence] was imposed, he in

fact believes his conviction was the result of a conspiracy.… Furthermore, he shows



                                              24
little to no emotional reaction to his impending execution date but instead believes he will

not die while incarcerated but will be cleared on the charges and return to the

community.” Middleton III, 435 S.W.3d at 84. Dr. Logan’s opinions about Middleton,

however, did not even purport to describe the sort of “gross delusions” that would

prevent Middleton from “comprehending the meaning and purpose of the punishment to

which he has been sentenced.” Id. (quoting Panetti, 551 U.S. at 960). Accordingly, this

Court held:

       Nothing in Dr. Logan’s statement, or in the other proof submitted with
       Middleton’s petition, even approaches a substantial threshold showing that
       Middleton suffers from such delusions. Instead, at most, they show that
       Middleton is delusional as to his innocence and his chances of escaping
       execution. Middleton plainly understands he is to be executed as
       punishment because he was found guilty of murdering his three victims; he
       simply believes he should not have been convicted. Nothing in Panetti or
       Ford suggests that an inmate is incompetent to be executed only if he both
       understands why he is being executed and agrees that the sentence is
       justified.

Id. at 85.

       Even though Clayton has a severe brain injury and Middleton did not, Dr. Logan’s

assessment of the effects of Clayton’s injury on his competence to be executed is

fundamentally the same as his assessment of Middleton’s competence to be executed.

Dr. Logan concluded they were both incompetent because they both believed they were

wrongfully convicted and they both believed their sentences would never be carried out.

But being “delusional as to his innocence and his chance of escaping execution” did not

mean that Middleton was incompetent to be executed. Id. Accordingly, those same




                                            25
delusions do not constitute a sufficient threshold showing that Clayton is incompetent to

be executed.

       D.      Other Evidence

       The Court has reviewed the remaining evidence submitted in support of Clayton’s

petition, nearly all of which was reviewed by, described, and relied upon by one or more

of Clayton’s three experts (i.e., Drs. Foster, Logan and Preston). None of this other

evidence, either singly or in combination with the opinions of Clayton’s experts,

establishes the sort of threshold showing required by Ford and Panetti. This evidence

confirms the facts the experts describe, i.e., that Clayton continues to suffer effects from

his 1972 brain injury but Clayton also understands that he was convicted of murdering

Deputy Castetter and that he is to be executed for that crime.

       For example, during telephone calls to his relatives, Clayton poignantly explains

that his execution is being scheduled and that – unless that execution is stopped – he will

die for murdering Deputy Castetter. He explains that he will appear before a parole board

as part of his clemency process and that he understands that the purpose of that

appearance is to explain why he should not be executed. Clayton then recites those

circumstances surrounding the crime which he believes demonstrate his innocence. Even

though Clayton does not believe he is guilty, and even though he believes he will be

spared execution, these calls confirm that Clayton knows – if he is not spared – that he is

going to be executed for this murder.

       In addition, in September 2014, at the request of the director of the department of

corrections, the director of the department of mental health had James Reynolds, M.D., a


                                             26
forensic psychiatrist, perform an evaluation of Clayton’s competence to be executed. Dr.

Reynolds’ report confirms the Court’s conclusions set forth above. For example, he

concludes that “Mr. Clayton’s religious beliefs, and his faith that God will intervene in

some fashion to prevent his execution, do not represent delusional thinking.”

Respondent’s Exhibit A at p. 9. Despite his beliefs, Dr. Reynolds explains that Clayton

understands God may not spare him from execution, and Clayton is comfortable with that

possibility. Clayton told Dr. Reynolds that, “if he [God] don’t, it won’t be his fault. I

will take my chances with God.” Id.

       Dr. Reynolds also explains that, not only is Clayton aware of the implications his

death sentence holds for him, Clayton has grown weary of the stress of waiting and not

knowing. Viewed in that context, Dr. Reynolds concludes that Clayton has a realistic

understanding that God may not spare him and, therefore, his faith that He can (and may)

do so is not delusional.

       We were discussing the efforts of his attorneys to help him avoid the death
       penalty and the role that my evaluation and those of others might play in
       that process. Mr. Clayton stated “if it [my report] don’t help me then it
       don’t matter to me. I want an honest evaluation.” He then added “it
       matters a lot to get off of capital punishment. I’ve had that hanging over
       my head for years. It would give me some relief in other words. It’s been
       seventeen or eighteen years. You wouldn’t want them to take a needle and
       put it in your arm and kill you, would you?” In my opinion, an individual
       who is delusional about the certainty of God rescuing him from the death
       penalty would not likely show so much feeling when discussing his fear of
       the sentence being executed.

Id. at 9-10.

       Similarly, Dr. Reynolds recounts Clayton’s description of the circumstances of

Deputy Castetter’s murder in 1996, as well as Clayton’s explanation regarding those facts


                                             27
which he believes demonstrate his innocence. In the end, however, Dr. Reynolds

concluded: “Mr. Clayton’s words to me in this area of discussion did not have the

character of a delusional belief about his being falsely accused of the crime…. He

merely claimed that he did not harm the deputy. Certainly it is not uncommon for

criminal defendants to deny their guilt even in the face of overwhelming evidence. Such

denial does not equate to delusional mental illness.” Id. at 11.

       Dr. Reynolds does not opine – and this Court does not believe – that Clayton is

perfectly normal or that his 1972 brain injury does not affect him to this day. Clearly it

does. Dr. Reynolds diagnosed Clayton as having several disorders in accordance with the

Diagnostic and Statistical Manual of Mental Disorders, 4th edition (“DSM-IV”),

including DSM 294.1 (“Dementia Due to General Medical Condition,” i.e., traumatic

brain injury, a small stroke, and possible age-related decline); DSM 296.32 (“Major

depression – currently mild to low-moderate in severity”); DSM 293.82 (“Psychotic

Disorder Due to General Medical Condition,” i.e., traumatic brain injury). Id. at 8.

       But, on the question of whether any single one, or a combination, of these mental

diseases, “giv[es] reasonable cause to believe that Mr. Clayton is lacking in capacity to

understand the nature and purpose of the punishment he is under sentence to receive,”

Dr. Reynolds responds: “It is my opinion, to a reasonable degree of medical certainty,

that they do not.” Id. at 10. He states unequivocally that Clayton “clearly is aware that

he is under sentence of death for being convicted of shooting and killing Deputy

Castetter. He indicated to me in what I consider an unequivocal fashion during the

[initial] interview of June 26, 2014, that he understands that he is under the threat of


                                             28
execution, that this will result in his death, and he communicated this to me with

considerable feeling.” Id. at 11.

       E.      Matters in Extenuation and Clemency

       Clayton also claims that, even if he is competent to be executed under Ford and

Panetti, he does not meet the standard for competence in section 552.060.1, RSMo 2000,

which requires that he be able to understand “matters in extenuation, arguments for

executive clemency or reasons why the sentence should not be carried out.” The Court

rejects this claim.

       As described above, this Court found in Clayton II that there was no basis to

suspect that Clayton was unable to assist counsel appropriately at (and prior to) his

original trial. Clayton II, 63 S.W.3d at 209. During his federal habeas proceedings, the

District Court found that Clayton was competent to assist counsel with those proceedings.

Competency Order at 15-18. This finding was based on the extensive testing and

evaluation by Dr. Preston, who found that Clayton’s “cognitive deficits did not appear to

negatively impact his ability to understand his legal proceedings.” Dr. Preston’s Report,

at p. 30. The District Court relied extensively on Dr. Preston’s conclusions that Clayton

had “no significant impairment in memory” and could – with some work – communicate

effectively with counsel. Competency Order at pp. 17, 15 (citing Dr. Preston’s report at

pp. 26-28).

       Clayton provides no evidence that these capabilities have declined materially since

2006 and that, as a result of that decline, his counsel have been unable to prepare a

clemency application on his behalf. As the District Court held, the question of whether


                                             29
an inmate is competent to assist in his defense must be analyzed in light of the

proceedings underway at the time and the demands those proceedings place on the

inmate’s memory and ability to communicate. Competency Order, at 13-15. Greatest

prior to and during trial, these demands fall off markedly throughout the appellate,

post-conviction, and federal habeas proceedings. At the end of this process, when the

issue turns to clemency, there is very little that depends on the defendant suddenly

recollecting some new fact that will result in a new argument or ground for clemency.

       Certainly this is so in this case. Clayton’s life has been chronicled exhaustively by

counsel in the nearly two decades since his crime. Counsel have thoroughly mined the

original trial for every conceivable legal and factual argument. As the petition in this

case shows clearly, there is nothing about Clayton or this crime that has not been known

and debated at multiple stages of his legal proceedings. And, as noted above, Clayton’s

telephone records and the evaluations of Drs. Foster, Logan and Reynolds show that

Clayton recalls the salient details from 1996 quite clearly and is aware that both he and

his counsel continue to search for arguments to preclude his execution.

       Accordingly, even though the effects of his brain injury and increasing age make it

more difficult for Clayton, there is no evidence that he is not capable of understanding

“matters in extenuation, arguments for executive clemency or reasons why the sentence

should not be carried out” as required by section 552.060.1 2000.

       F.     Clayton is Competent to be Executed

       For the reasons set forth above, the Court finds that Clayton is competent to be

executed. The Court has considered all of the evidence he has submitted and concludes


                                             30
that this evidence – by itself and in light of the evidence submitted by the state – neither

satisfies the threshold showing requirement in Ford and Panetti nor shows that Clayton is

incapable of understanding arguments for extenuation or clemency as required by section

552.060.1, RSMo 2000.

II.    Section 552.060.2 is Not Unconstitutional

       Clayton claims that section 552.060.2, RSMo 2000, is unconstitutional “insofar as

it permits the director of the Department of Corrections, a member of the executive

branch who is charged with conducting the execution, to determine a prisoner’s

competence to be executed.” This claim is denied on the merits.

       Clayton misperceives the function of section 552.060.2. This subsection provides

that, if the director of the department of corrections has reasonable cause to believe an

inmate who is sentenced to death is not competent to be executed, “he shall immediately

notify the governor who shall forthwith order a stay of execution of the sentence if there

is not sufficient time between such notification and time of execution for a determination

of the mental condition of such person to be made in accordance with the provisions of

this section without such stay.” By its plain language, this statute only pertains to what

the director and the governor “shall” do under certain circumstances. It does not

establish, define, or enforce any right belonging to the condemned inmate.

       When this Court issues an execution warrant, the director and the warden of the

particular institution are obligated to carry it out. Anytime the director has reasonable

cause to believe that a condemned inmate is not competent to be executed, the director

can – and indeed must – invoke the procedure in section 552.060.2. The fact that the


                                             31
director does not need this statute to pursue the same course when no execution warrant

is outstanding demonstrates that the purpose of section 552.060.2 focuses on when there

is a warrant and the inmate, though incompetent to be executed, does not seek to protect

himself. Without section 552.060.2, the director and the warden would be trapped

between their duty to comply with the warrant by executing the prisoner and their

independent constitutional duty not to execute an incompetent inmate. Section 552.060.2

resolves this dilemma and requires the governor to stay the execution.

       Section 552.060.2 is irrelevant, however, when an inmate claims he is not

competent to be executed. As this Court noted in Middleton III, a condemned inmate has

a right to raise that issue directly in this Court by filing a petition for writ of habeas

corpus. This is the procedure by which a condemned prisoner is permitted to litigate this

question, and Clayton does not contend that it is constitutionally deficient to meet that

end. Section 552.060.2, on the other hand, is only intended to be invoked by a different

party under different circumstances. Accordingly, the Court now expressly holds what

was implied in Middleton III, i.e., that section 552.060.2 is not unconstitutional because it

does not permit the director to determine whether a prisoner is competent to be executed

to the exclusion of (or even as a predicate to) an inmate’s ability to seek a judicial

determination on that issue.




                                               32
III.   Clayton is not Intellectually Disabled under Atkins

       Clayton’s final claim is that, because of his significantly sub-average IQ and lack

of adaptive skills, he is “intellectually disabled” 3 and, therefore, categorically ineligible

for the death penalty under Atkins. As noted above, Clayton already has litigated this

claim in his federal habeas proceedings. There, the District Court denied this claim and

did not allow an appeal. Clayton III, 2006 WL 1128803, at *43 (noting that Clayton’s

expert, Dr. Back, testified that Clayton “was not retarded when she evaluated him in

2000”).

       Assuming (without deciding) that Clayton’s lack of any intellectual disability is

not res judicata based on the decision in the District Court, this Court rejects Clayton’s

claim on the merits. Atkins holds that the constitution prohibits the execution of an

intellectually disabled person, but Atkins also recognizes that the question of what

constitutes intellectual disability is a question of state law. 4 Atkins, 536 U.S. at 317.

Missouri law on this issue is established by section 565.030.6, which provides:

       As used in this section, the terms “intellectual disability” or “intellectually
       disabled” refer to a condition involving substantial limitations in general
       functioning characterized by significantly subaverage intellectual
       functioning with continual extensive related deficits and limitations in two
       or more adaptive behaviors such as communication, self-care, home living,
       social skills, community use, self-direction, health and safety, functional

3
  Originally, the United States Supreme Court used the term “mentally retarded” to refer to
persons with intellectual disability. In keeping with changes by the American Psychiatric
Association and others, the Supreme Court now uses the phrase “intellectual disability” to
describe the same condition. See Hall v. Florida, 134 S.Ct. 1986, 1989 (2014) (explaining the
change in terminology).
4
   The Supreme Court, in Hall, recognizes, however, that the Court determines whether the state
standard for "intellectual disability" meets constitutional scrutiny, after being informed by the
medical community's diagnostic framework. Hall, 134 S.Ct. 1999-2000.

                                               33
       academics, leisure and work, which conditions are manifested and
       documented before eighteen years of age.

§ 565.030.6, RSMo Supp 2013.

       The school records and other evidence provided by Clayton in this case show that

he was of average intelligence – or better – before age 18, and this continued at least until

his brain injury in 1972. Accordingly, he cannot be “intellectually disabled” as that term

is defined in Missouri law.

       Section 565.030.6, like the analysis Atkins, considers intellectual disability as an

immutable characteristic which manifests at or shortly following birth and, therefore, is

necessarily present at the time the defendant committed the crime. Ford and Panetti, on

the other hand, analyze incompetence as a disease or defect which can arise after the

crime and, therefore, must be evaluated separately at each stage of the proceedings. See

Ford, 477 U.S. at 406-07 (“if, after judgment, he [the inmate] becomes of nonsane

memory, execution shall be stayed”). See also Goodwin, 191 S.W.3d 20, 33 n.9 (Mo.

banc 2006) (holding that, even though Goodwin was not intellectually disabled, he could

still claim he is not competent to be executed when his execution date is set).

       Clayton would eliminate this distinction by arguing that – even though his brain

injury does not render him incompetent to be executed under section 552.060.1 or the

Eighth Amendment standard under Ford and Panetti – the continuing effects5 of that


5
   After his injury in 1972, Clayton’s various “Full Scale IQ” scores are: 75 (in 1980, using the
Wechsler Adult Intelligence Scale), 86 (in 1997, using the Wechsler Adult Intelligence Scale
Revised), and 71 (in 2005, using the Wechsler Adult Intelligence Scale – Third Edition). These
scores all are in the “low average” range of intellectual functioning. Clayton recognizes that
these scores all are above the generally recognized cutoff for intellectual disability of 70, and

                                               34
injury nevertheless exempt him from execution because they are “as if” he was

intellectually disabled under Atkins. Clayton offers no authority for such an expansion

of Atkins, and this Court is not persuaded that such an expansion is justified.

       Accordingly, the Court finds that Clayton is not intellectually disabled under

Missouri law and holds that – because Atkins does not apply to conditions not recognized

as intellectual disabilities under state law – Clayton is not categorically excluded from

eligibility for the death penalty. All conditions other than those which constitute an

intellectual disability under section 565.030.6 must be analyzed in terms of their effect on

an inmate’s competence to be executed. As held above, Clayton fails to make a threshold

showing that his lacks such competence.

                                         Conclusion

       For the reasons set forth above, Clayton’s petition for a writ of habeas corpus is

denied on its merits and Clayton’s accompanying motion for a stay of execution is

overruled as moot.

                                                    _________________________________
                                                    Paul C. Wilson, Judge



Russell, C.J., Breckenridge, and Fischer, JJ., concur; Stith, J., dissents in separate opinion
filed; Draper and Teitelman, JJ., concur in opinion of Stith, J.


Clayton does not make a “margin of error” argument of the sort addressed in Hall, 134 S.Ct. at
2001. See also Goodwin, 191 S.W.2d at 31 n.7 (recognizing that IQ test scores are not applied
mechanically because IQ scores are only one part of the statutory definition). Moreover, when
Dr. Preston administered the competency assessment tests designed for use with intellectually
disabled persons, Clayton’s scores “were consistent with presumed competent individuals
without mental retardation.” Dr. Preston’s report at p. 26.


                                              35
            SUPREME COURT OF MISSOURI
                                       en banc


STATE EX REL. CECIL CLAYTON,                 )
                                             )
                            Petitioner,      )
                                             )
v.                                           )   No. SC94841
                                             )
CINDY GRIFFITH, in her capacity as           )
WARDEN, POTOSI CORRECTIONAL                  )
CENTER,                                      )
                                             )
                            Respondent.      )

                               DISSENTING OPINION

       Mr. Clayton has a traumatic brain injury that has resulted in the loss of 20 percent

of his frontal lobe and has presented reasonable grounds to believe his overall mental

condition has deteriorated and he is intellectually disabled under Atkins v. Virginia, 536

U.S. 304, 317, 320 (2002), and Hall v. Florida, 134 S.Ct. 1986, 2001 (2014).

Mr. Clayton also has presented reasonable grounds to believe that he is incompetent to be

executed and so, under Ford v. Wainwright, 477 U.S. 339 (1986), and Panetti v.

Quarterman, 551 U.S. 930 (2007), is entitled to a hearing at which his competence will

be determined. This Court, nonetheless, rushes to reject his request for a hearing before a

special master at which he can attempt to prove his incompetency claim and his claim

that he is intellectually disabled. As explained in more detail below, the majority’s
decision to proceed with the execution at this time and in these circumstances violates the

Eighth Amendment ban on cruel and unusual punishment.

       A.     Timeliness of Petition for Habeas Relief

       The majority opinion suggests that one of the reasons why the Court refuses to

allow him a hearing is that the request has come so close to the date of execution. But the

Ford claim can be made only once an execution date is set, as it is the defendant’s

competency at the time of execution that is relevant. This Court set the execution date

only on February 6, 2015. Counsel sought relief in federal court and then in this Court

during the succeeding 33 days. Counsel can hardly be said to have tarried.

       As to Mr. Clayton’s claim that he is intellectually disabled, part of his claim is that

his brain injury has combined with the lack of treatment while in prison to render him

more disabled over time. As time goes on, therefore, his condition has deteriorated. He

most recently was examined in January 2015. This Court did not give notice it would

decide to start setting executions almost monthly. Counsel could not know which clients

they needed to get examined first or whose execution would be set when. But counsel

had acted before this Court notified Mr. Clayton on February 6, 2015, that he would be

executed just 39 days later. If that execution proceeds as scheduled, it will be the 14th

execution this State will have carried out since November 2013 – the Court set three

other persons’ executions, but those orders were later stayed by this Court or by the

federal courts.

       All of these executions have been carried out with less than 60-days’ notice. The

same group of half a dozen lead counsel, aided by fewer than a dozen co-counsel,

                                              2
represent nearly all of those who have been executed, as well as others as to whom the

attorney general of Missouri has filed motions to set execution dates. Recently, this

Court has been asked to consider giving six-months’ notice of execution dates because of

the difficulties posed by the fact that the same small group of counsel represent nearly all

of the death penalty petitioners, making it difficult for them to competently prepare

pleadings or to recover from the death of one client, when they are unsuccessful, before

turning to the next.

        Ms. Carlyle, lead counsel for Mr. Clayton, has been lead counsel for three

executed defendants in the last year alone – Michael Taylor, executed February 26, 2014;

John C. Middleton, executed July 16, 2014; and Leon Taylor, executed just four months

ago on November 19, 2014. Two of her other clients have received orders to show cause

why execution dates should not be set. To suggest in these circumstances that these

dedicated counsel are at fault for not filing papers a few weeks earlier is just plain

unreasonable. It is also unreasonable to expect counsel to anticipate and have the ability

to file pleadings and conduct needed medical and mitigation research and investigation

simultaneously in the face of Missouri’s sudden rush of executions.

       I turn to a discussion of the substance of Mr. Clayton’s claim. 1

       B.     Reasonable Grounds to believe Mr. Clayton is Intellectually Disabled

       In Atkins the United States Supreme Court held that no legitimate penological

purpose is served by executing a person who is “mentally retarded.” 2 Therefore, Atkins


1
   I do not respond to the majority’s sua sponte decision to revisit Mr. Clayton’s trial,
appeal and earlier post-trial proceedings because the issues now raised by Mr. Clayton do
not involve those proceedings.
                                             3
held, to execute an intellectually disabled person would violate the Eighth Amendment.

536 U.S. at 317, 320. Atkins left “to the States the task of developing appropriate ways

to enforce the constitutional restriction.” Id. at 317.   But the constitutional restriction

bars execution of the disabled; the constitutional protection is not narrowed just because

some states may not enact a statute that encompasses all intellectually disabled persons.

        Missouri, like other states, passed legislation to comply with Atkins’ mandate.

Missouri’s statute bars the execution of persons with an “intellectual disability,” which

section 565.030.6, RSMo Supp. 2014, defines as:

        [A] condition involving substantial limitations in general functioning
        characterized by significantly subaverage intellectual functioning with
        continual extensive related deficits and limitations in two or more adaptive
        behaviors such as communication, self-care, home living, social skills,
        community use, self-direction, health and safety, functional academics,
        leisure and work, which conditions are manifested and documented before
        eighteen years of age.

        Florida also passed legislation to comply with Atkins’ mandate.         Florida law

defines intellectual disability as “significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior and manifested during the period

from conception to age 18,” and defines “significantly subaverage general intellectual

functioning” as “performance that is two or more standard deviations from the mean

score on a standardized intelligence test,” with the mean IQ test score as 100. Id. at

1994.




2
 Being found “mentally retarded” now is referred to as being “intellectually disabled,”
and the latter term will be substituted for “mentally retarded” for the remainder of this
opinion.
                                             4
       In Hall, Mr. Hall committed a murder in Florida for which he was subject to the

death penalty. 134 S. Ct. at 1991. But Mr. Hall claimed that he was ineligible for the

death penalty because he was intellectually disabled. He had an IQ test score of 71. The

question was whether this qualified him for a hearing as to whether he was intellectually

disabled. The Florida Supreme Court interpreted the meaning of its statute narrowly. It

held that a score of 70 was two standard deviations below a score of 100, and this made

70 a strict IQ cut-off. Therefore, Florida held, “a person whose test score is above 70,

including a score within the margin for measurement error, does not have an intellectual

disability and is barred from presenting other evidence that would show his faculties are

limited.” Id. at 1994. In fact, Florida held:

              Pursuant to this mandatory cutoff, sentencing courts cannot consider
       even substantial and weighty evidence of intellectual disability as measured
       and made manifest by the defendant’s failure or inability to adapt to his
       social and cultural environment, including medical histories, behavioral
       records, school tests and reports, and testimony regarding past behavior and
       family circumstances. This is so even though the medical community
       accepts that all of this evidence can be probative of intellectual disability,
       including for individuals who have an IQ test score above 70.

Id.

       The United States Supreme Court reversed and remanded. Id. at 2001. In doing

so, the Supreme Court explained that the Florida Supreme Court disregarded established

medical practice in two ways. Id. at 1995. First, the Florida Supreme Court took “an IQ

score as final and conclusive evidence of a defendant’s intellectual capacity, when

experts in the field would consider other evidence.” Id. This was error. In determining

whether an individual is intellectually disabled, the Supreme Court stated, other factors

regarding an individual’s adaptive functioning must be considered in addition to IQ, such
                                            5
as evidence of past performance, environment, and upbringing.               Id. at 1995-96.

Therefore, “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.

       Second, and interrelated with the first reason, the Florida Supreme Court relied

“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.” Id. at 1995. The

Supreme Court said that many medical professionals agree that an IQ score should be

considered a range rather than a fixed score, and such a range reflects the “standard error

of measurement.” Id. Although Hall’s score was 71, the margin of error meant his score

fell in a range between 66 and 76, creating the possibility that the defendant’s actual IQ

was below 70. Id. But the Florida Supreme Court “used the test score as a fixed number,

thus barring further consideration of other evidence bearing on the question of intellectual

disability.” Id. at 1996. Hall held this was improper, and the Supreme Court remanded

for a factual determination as to whether Mr. Hall was competent.

       Here, as in Hall, Cecil Clayton most recently has posted an IQ score of 71. The

majority does not deny that if Clayton had a score of 66, or some other score below 70,

he would be entitled to a hearing as to his intellectual disability. But, because his score is

71, it says he does not. This is exactly what the Supreme Court in Hall disallowed!

       The majority tries to get around this issue by saying in a footnote that the “margin

of error” argument was not raised. It is not clear why the majority would want to execute



                                              6
an intellectually disabled man regardless of whether the claim was preserved. To do so

would be manifestly unjust.

         In any event, the issue is not one that is waivable for multiple reasons. First, it is

not an error that must be raised to be preserved. It is just a scientific fact, a definition, of

what is meant by a score of 70 – it means a range with 70 at its center. Margins of error

are inherent in the testing, not a legal issue to be preserved. That is what Hall was all

about.

         Second, if Mr. Clayton is intellectually disabled, then the Eighth Amendment

makes him ineligible for execution. Would the majority hold that if a 14-year-old had

failed to raise his age at trial or in post-trial proceedings then it would be permissible to

execute him for a crime he committed while he was a minor? Of course not; his age

would make him ineligible for execution. So too, here, if Mr. Clayton is intellectually

disabled, then he is ineligible for execution. Hall held that: “The death penalty is the

gravest sentence our society may impose. Persons facing that most severe sanction must

have a fair opportunity to show that the Constitution prohibits their execution.” Hall, 134

S. Ct. at 2001 (emphasis added). Mr. Clayton deserves a hearing here.

         The majority also suggests that Mr. Clayton does not need a hearing, despite Hall,

because Mr. Clayton presented evidence of his lack of competency at trial and it was

rejected. But the issue here is not whether Mr. Clayton was sufficiently competent to

assist in his defense or to be found guilty when he was convicted in 1996. The issue is

whether Mr. Clayton is sufficiently competent today to be executed. Mr. Clayton alleges

that his lack of treatment during his incarceration has worsened his condition. His 2004

                                               7
IQ score of 71 has never been seen by a jury or considered by a Missouri court in an

evidentiary hearing, and neither have the expert opinions given since his post-conviction

hearing, opinions that support a finding of intellectual disability. Mr. Clayton’s score of

71 is within the standard error of measurement and Hall constitutionally requires that he

be given a hearing to present evidence of impairments in both his intellectual and

adaptive functioning.

       The majority further suggests that if intellectual disability is an issue it must reach,

it factually finds, from its own review of the record, that Mr. Clayton is not intellectually

disabled and, therefore, will not give him a hearing. But that puts the cart before the

horse. He needs to have the hearing before the Court can reject (or, there is always the

possibility that the majority would accept) the evidence he presents at it. Mr. Clayton

having shown he has an IQ score of 71, within the range of a score that is below 70, is

entitled to a hearing at which he has opportunity to prove that intellectual disability

before a fact-finding body, which this Court is not, at which he is entitled to present

“other factors regarding an individual’s adaptive functioning that must be considered in

addition to IQ, such as evidence of past performance, environment, and upbringing.”

Hall, 134 S. Ct. at 1995-96.

       The majority finally suggests that a Hall hearing need not be held because it is not

mandated by Missouri’s statute, section 565.030.6, which defines “intellectual disability”

as a disability that manifests itself before the age of 18. But Mr. Clayton’s principal

claim is not that he is entitled not to be executed under section 565.030.6. His claim is

that he is entitled to relief under the Eighth Amendment as interpreted and applied in

                                              8
Atkins and Hall. Section 565.030.6 simply sets out the circumstances in which the

legislature determined that a person is intellectually disabled. The legislature did not

state that no one can become intellectually disabled after age 18, for to do so would be

absurd.       Of course people can become disabled later in life.       In any event, the

presumptive purpose of requiring a disability to manifest itself by age 18 is to preclude

later faking of intellectual disability. Here, there is no factual dispute that Clayton

suffered a brain injury and lost 20 percent of his frontal lobe, and that his IQ went down

thereafter and long prior to the murder, so those concerns are not present.

       Whatever section 565.060 says, it is axiomatic that the Eighth Amendment applies

to all persons, so that under it a person who becomes intellectually disabled after age 18

may also seek relief from execution. Indeed, while, as the majority notes, Atkins left “to

the States the task of developing appropriate ways to enforce the constitutional

restriction,” 536 U.S.at 317, Hall makes it clear that what is “appropriate” is limited by

the Eighth Amendment. This is because the Atkins mandate that it is unconstitutional to

execute someone who is intellectually disabled does not depend on when an intellectual

disability manifested, but on whether an intellectual disability exists. It is not merely a

statutory right and in fact this Court by rule barred the execution of individuals with

intellectual disabilities before the statute was adopted. The right of an intellectually

disabled person not to be executed is a human right protected by the Eighth Amendment.

       Mr. Clayton is entitled to a hearing before a master on his claim of intellectual

disability.



                                             9
          C.     Mr. Clayton is Entitled to a Hearing under Ford v. Wainwright.

          Clayton also invokes his right to a competency hearing prior to his execution

under Ford and Panetti.         Indeed, the majority acknowledges that Ford requires a

competency hearing when the defendant makes a showing that he does not understand the

reason for his execution. But, it says, that is the only circumstance in which Ford or

Panetti require a competency hearing. The majority opinion is wrong.

          In Panetti, the Supreme Court explicitly held that merely being aware of the

rationale for the execution – a murder – is not adequate to meet the required standard of

competency, the prisoner must also understand the rationale for his execution. As Panetti

stated:

          We … find no support … in Ford, including in its discussions of the
          common law and the state standards, for the proposition that a prisoner is
          automatically foreclosed from demonstrating incompetency once a court
          has found he can identify the stated reason for his execution. A prisoner’s
          awareness of the State’s rationale for an execution is not the same as a
          rational understanding of it. Ford does not foreclose inquiry into the latter.

Panetti, 551 U.S. at 959 (emphasis added).

          Further, Missouri has enacted a statute that spells out in greater detail what the

Ford inquiry requires. Section 552.060.1 states: “No person condemned to death shall

be executed if as a result of mental disease or defect he lacks capacity to understand the

nature and purpose of the punishment about to be imposed upon him or matters in

extenuation, arguments for executive clemency or reasons why the sentence should not be

carried out.” (Emphasis added).

          The majority simply ignores the requirement that, unless Mr. Clayton understands

the rationale for his execution and matters “in extenuation, arguments for executive
                                         10
clemency or reasons why the sentence should not be carried out,” then he is not

competent to be executed. But shutting its eyes to this requirement does not make it go

away.

        The majority is also incorrect in suggesting that this Court can now decide on the

present record whether Mr. Clayton is competent and as it finds he is, he does not need a

hearing. That, again, puts the cart before the horse. The only issue for this Court is

whether Mr. Clayton has presented reasonable grounds that, if believed, demonstrate he

lacks the competency to be executed. If so, then this Court must allow a hearing at which

a factual determination can be made. No such hearing has been held in a Missouri court.

The record before this Court presents reasonable grounds to believe that Mr. Clayton can

meet the Panetti or section 552.060.1 standard. As Dr. Logan noted after his examination

of Mr. Clayton in January of this year:

        Mr. Clayton due to his delusional denial, lacks the capacity to understand
        matters in extenuation, arguments for executive clemency or any reasons
        his attorneys might present as to why his sentence should not be carried out.

        Another report states:

        While Mr. Clayton knows the State plans to execute him for killing Deputy
        Castetter, he believes his legal situation is instead a test of his faith and that
        God will not allow the punishment to occur as God has chosen him for
        another mission. Hence, he has no concept of a need for clemency, or
        capacity to understand matters in extenuation, arguments for executive
        clemency or rational reasons why the sentence should not be carried out.

        And Dr. Foster, whose testimony the majority much discusses, states that Mr.

Clayton:

        … remains, as he has been since I first met him, unable to fully participate,
        cooperate or comprehend his legal status, process and final, pending
        deliberations. While he can superficially seem intact, extended contact or
                                            11
       observation exposes his multiple deficits, which continue their slow
       deterioration, despite the structured, secure setting in which he has resided
       over the past two decades. He is not simply incompetent legally, he would
       be unable to care for himself or manage basic self care, were he not in a
       structured environment that takes care of him. He can shower, groom, eat,
       walk, it is his comprehension, judgment, memory, limited intelligence and
       social deficits that plague him.
              I do not find him competent to appreciate the purpose of his pending
       execution as addressed in Panetti v. Quarterman and Ford v.Wainwright,
       should it not be stayed by the State of Missouri or the Federal Court. He
       can replicate elements of the fact that an execution follows a conviction for
       first degree murder, though still does not comprehend, appreciate nor
       understand its approaching date for him.

       The special master may or may not believe these experts, or Mr. Clayton’s other

evidence and experts, but Dr. Foster’s expert opinion, particularly as supported by

Mr. Clayton’s 2004 IQ score of 71, presents reasonable grounds for a hearing.

Mr. Clayton should be allowed the opportunity to convince the special master that he is

ineligible for execution because he is intellectually disabled or because he does not have

a rational understanding of the reasons for his execution and does not have the capacity to

understand matters in extenuation, arguments for executive clemency or rational reasons

why the sentence should not be carried out. The denial of such a hearing deprives

Mr. Clayton of a fair opportunity to show that the Constitution prohibits his execution.

       For the foregoing reasons, I dissent.


                                                    ___________________________
                                                      LAURA DENVIR STITH, JUDGE




                                               12
