                                            Filed:   February 24, 2005

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 04-16
                            (CA-03-764-A)


DARICK DEMORRIS WALKER,

                                              Petitioner - Appellant,

           versus

WILLIAM PAGE TRUE, Warden,
Sussex I State Prison,

                                               Respondent - Appellee.

--------------------------

THE ARC OF VIRGINIA,

                                       Amicus Supporting Appellant.



                              O R D E R


     The court amends its opinion filed February 17, 2005, as

follows:

     On page 10, second full paragraph, beginning at line 6, and

page 15, beginning at line 12 -- the citations to Walton v.

Johnson, 269 F. Supp. 2d 692 (W.D. Va. 2003), and explanatory

parentheticals are deleted.

                                       For the Court - By Direction



                                             /s/ Patricia S. Connor
                                                     Clerk
                           PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


DARICK DEMORRIS WALKER,               
              Petitioner-Appellant,
                v.
WILLIAM PAGE TRUE, Warden,
Sussex I State Prison,                           No. 04-16
               Respondent-Appellee.


THE ARC OF VIRGINIA,
      Amicus Supporting Appellant.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge.
                         (CA-03-764-A)

                     Argued: December 1, 2004

                     Decided: February 17, 2005

      Before LUTTIG and GREGORY, Circuit Judges, and
     W. Craig BROADWATER, United States District Judge
           for the Northern District of West Virginia,
                     sitting by designation.



Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Broadwater joined. Judge Gregory wrote an
opinion concurring in part and dissenting in part.
2                          WALKER v. TRUE
                             COUNSEL

ARGUED: David William Ogden, WILMER, CUTLER, PICKER-
ING, HALE & DORR, L.L.P., Washington, D.C., for Appellant. Rob-
ert Quentin Harris, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: David P. Donovan, WILMER, CUTLER,
PICKERING, HALE & DORR, L.L.P., McLean, Virginia; Lara Ann
Englund, Alison J. Nathan, Edward N. Siskel, Eric J. Hougen, WIL-
MER, CUTLER, PICKERING, HALE & DORR, L.L.P., Washing-
ton, D.C., for Appellant. Jerry W. Kilgore, Attorney General of
Virginia, Richmond, Virginia, for Appellee. Paul M. Smith, Kathleen
R. Hartnett, JENNER & BLOCK, L.L.P., Washington, D.C., for
Amicus Supporting Appellant.


                              OPINION

LUTTIG, Circuit Judge:

   Petitioner Darick Demorris Walker was convicted of capital mur-
der by a jury in the Circuit Court for the City of Richmond for the
killings of Stanley Beale and Clarence Threat within a three-year
period. J.A. 253. Consistent with the jury’s verdict and sentencing
recommendation, the trial judge imposed a sentence of death. J.A.
253-54. Walker’s conviction and sentence were affirmed on direct
appeal. Walker v. Commonwealth, 515 S.E.2d 565 (Va. 1999), cert.
denied, 528 U.S. 1125 (2000). After unsuccessfully pursuing state
post-conviction relief, J.A. 254, Walker filed a federal habeas peti-
tion. The district court denied that petition, and Walker appealed. On
appeal, Walker asserted, for the first time, that his execution would
violate the Eighth Amendment as interpreted by the Supreme Court
in Atkins v. Virginia, 536 U.S. 304 (2002). We construed this claim
as a motion for authorization to file a successive section 2254 petition
and granted Walker such authorization. Walker v. True, 67 Fed.
Appx. 758, 770-71 (4th Cir. 2003); J.A. 61.

  On June 11, 2003, Walker filed his successive petition and accom-
panying exhibits in the district court. J.A. 5-230. The district court
                            WALKER v. TRUE                              3
dismissed Walker’s petition, J.A. 253, and the instant appeal fol-
lowed. For the reasons set forth below, we hold that the district court
erred when it dismissed Walker’s petition before holding an evidenti-
ary hearing and, consistent with this determination, vacate the judg-
ment of the district court and remand the case for further proceedings
consistent with this opinion.

                                    I.

   The procedural posture of Walker’s claim before the district court
bears on the ultimate disposition of that claim, and we therefore
explore it in some detail. Because Atkins was decided after Walker’s
conviction and sentence became final, that claim has never been pre-
sented in state court. Indeed, when we authorized Walker to file a suc-
cessive petition to raise his Atkins claim, we noted that the district
court was "free to dismiss it without prejudice to afford the Common-
wealth of Virginia the first opportunity to assess Walker’s Atkins
claim." Walker, 67 Fed. Appx. at 770-71; J.A. 62. But after our deci-
sion authorizing Walker to file his successive petition, Virginia
enacted a statutory framework addressing the "presentation of a claim
of mental retardation by persons sentenced to death before April 29,
2003." Va. Code § 8.01-654.2. That framework provides that petition-
ers, such as Walker, who have "completed both a direct appeal and
a [state] habeas corpus proceeding . . . shall not be entitled to file any
further habeas petitions in the Supreme Court and [the] sole remedy
shall lie in federal court." Id. (emphasis added).

   As a consequence of Virginia’s statutory framework, Walker pre-
sented his Atkins claim for the first time before the district court.
Accordingly, that claim is not subject to deference under 28 U.S.C.
§ 2254(d) because it has never been "adjudicated on the merits" in
state court. The district court appeared to review Walker’s claim de
novo, and we do the same. See Hudson v. Hunt, 235 F.3d 892, 895
(4th Cir. 2000) ("Because the claim was not adjudicated on the merits,
our review is de novo.").

   The district court disposed of Walker’s petition by granting the
state’s motion to dismiss.1 In ruling on such a motion the district court
  1
  In section 2254 proceedings, the state’s answer is filed pursuant to
Rule 5 of the "Rules Governing Section 2254 cases in the United States
4                            WALKER v. TRUE
was obliged to "assume all facts pleaded by" Walker "to be true."
Rouse v. Lee, 339 F.3d 238, 248 n. 8 (4th Cir. 2003) (holding that
such a standard is required in a section 2254 proceeding when the dis-
trict court grants "the State’s motion to dismiss"). Instead of assuming
the facts pleaded in Walker’s petition to be true, however, the district
court found that Walker had "failed to meet his burden of proof in
presenting his claim of mental retardation," J.A. 253 (emphasis
added), and — as explained in detail below — reached this conclu-
sion by relying on material that was not included in Walker’s petition
and by either ignoring or discounting the factual allegations in the
petition. Indeed, even the state admits that the district court’s ruling
was "in the nature of a grant of summary judgment." Respondent’s Br.
at 14. But such a ruling cannot be upheld where, as here, the facts
alleged in Walker’s petition and supported by his accompanying
exhibits demonstrate that several material facts remain disputed.2

                                     A.

   While Walker’s claim ultimately derives from his rights under the
Eighth Amendment, whether he is mentally retarded is governed by
Virginia law. As the Supreme Court observed in Atkins, "[t]o the
extent there is serious disagreement about the execution of mentally
retarded offenders, it is in determining which offenders are in fact

District Courts" while the motion to dismiss is filed pursuant to Fed. R.
Civ. P. 12(b)(6). See Section 2254 Rule 11 ("The Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with these rules,
may be applied when appropriate, to petitions filed under these rules.");
Fed. R. Civ. P. 81(a)(2) ("These rules are applicable to proceedings for
. . . habeas corpus . . . to the extent that the practice in such proceedings
is not set forth in the statutes of the United States, the Rules Governing
Section 2254 Cases, the Rules Governing Section 2255 Proceedings, and
has heretofore conformed to the practice in civil action.").
    2
      To the extent that the district court’s decision was in the "nature of
a grant of summary judgment," the court was required to dispose of
Walker’s claim as set forth in Federal Rule of Civil Procedure 56. See
Johnson v. RAC Corp., 491 F.2d 510 (4th Cir. 1974) ("When a motion
to dismiss . . . is founded on matters outside the pleadings, the district
court is obligated to treat the motion to dismiss as one for summary judg-
ment and to dispose of it as provided in Rule 56.").
                             WALKER v. TRUE                                5
retarded. . . . Not all people who claim to be mentally retarded will
be so impaired as to fall within the range of mentally retarded offend-
ers about whom there is a national consensus. As was our approach
in Ford v. Wainwright . . . , with regard to insanity, ‘we leave to the
states the task of developing appropriate ways to enforce the constitu-
tional restriction upon their execution of sentences.’" 536 U.S. at 317
(emphasis added).3 Accordingly, whether Walker has "stated a claim"
in his petition depends on whether he has set forth facts that, if true,
would demonstrate that he is mentally retarded under Virginia law.

   Under Virginia law, Walker bears the burden of establishing that
he is mentally retarded by a preponderance of the evidence. Va. Code
§ 19.2-264.3:1.1. "Mentally retarded" is defined as

      a disability, originating before the age of 18 years, charac-
      terized concurrently by (i) significantly subaverage intellec-
      tual functioning as demonstrated by performance on a
      standardized measure of intellectual functioning adminis-
      tered in conformity with accepted professional practice, that
      is at least two standard deviations below the mean and (ii)
      significant limitations in adaptive behavior as expressed in
      conceptual, social, and practical adaptive skills.

Id. With respect to the "standardized measure of intellectual function-
ing" referenced in subpart (i), the Virginia Code provides that "the
Commissioner of Mental Health, Mental Retardation and Substance
Abuse services shall maintain an exclusive list of standardized mea-
sures of intellectual functioning generally accepted in the field of psy-
chological testing." Va. Code § 19.2-264.3:1.1(B)(1) (emphasis
  3
    Walker contended before the district court that the Virginia statutory
scheme enacted after Atkins did not apply because that scheme provides
that petitioners in Walker’s position "shall not be entitled to file any fur-
ther habeas petitions in the Supreme Court and [their] sole remedy shall
lie in federal court." J.A. 31. Walker maintained that the district court
should decide his case "directly under the Eighth Amendment and under
federal common law." Id. But the statutory provision referenced by
Walker merely denotes the forum where Walker must present his claim,
where, so long as it comports with Atkins, state law governs the question
of whether Walker is mentally retarded.
6                           WALKER v. TRUE
        4
added). Thus, Walker must allege that his disability originated before
the age of eighteen, and that it is characterized concurrently by a
score two standard deviations below the mean on an approved stan-
dardized test and that there exist significant limitations in his adaptive
behavior.

   Walker has set forth facts that, if true, satisfy the elements of Vir-
ginia’s definition of mentally retarded. Specifically, Walker’s petition
refers to affidavits where, after recounting evidence of his subaverage
intellectual functioning, the limitations in his adaptive behavior, and
the developmental origin of his disability, experts conclude that
Walker satisfies the statutory definition. See J.A. 11 (declaration of
Dr. Weinstein concluding that "[b]ased on my testing of Mr. Walker
and my review of [his school] records . . . it is my professional opin-
ion that Mr. Walker is mentally retarded according to the criteria set
forth in . . . the Commonwealth of Virginia in its new statute."); id.
19-20 (declaration of Dr. Sautter concluding that "Darick’s cognitive
deficits are consistent with mental retardation as that disability is
defined by . . . the Commonwealth.").

   With respect to the intellectual functioning component of the defi-
nition, Walker has presented the results from the Wechsler Intelli-
gence Scale for Children-Revised that he was administered in 1984
when he was eleven years old. J.A. 13. According to Walker, the full
scale score he received — 76 — is two standard deviations below the
mean. Id. 13-14. Walker has also submitted his full scale score of 61
on the General Ability Measure for Adults test (GAMA) that was
administered in May of 2003. That score is indisputably two standard
deviations below the mean. J.A. 27.

   Walker has also set forth facts pertaining to the limitations in his
adaptative behavior both before and after he was eighteen years old.
With respect to his conceptual skills, Walker has identified "deficien-
cies in . . . language, reading, and writing," J.A. 20-21 (referencing
school records), an inability to handle money, "difficulty dealing with
unstructured time," and inordinate dependence on others. J.A. 22-23.
    4
  As is relevant here, the Commissioner’s list includes the Wechsler
Adult Intelligence Scale (WAIS), the Wechsler Intelligence Scale for
Children (WISC), and the General Ability Measure for Adults (GAMA).
                             WALKER v. TRUE                               7
With respect to his social skills, Walker has identified testimony from
his family which suggests that "he never had friends who were his
peers" and school records which indicate that "Darick has a low frus-
tration tolerance and an inadequate control over basic impulses" and
that "due to emotional immaturity, learning difficulties, and inability
to control his own behavior, Darick appears to be in need of special
education as a child with specific learning disabilities as well as emo-
tional disturbance." J.A. 24. With respect to his practical skills,
Walker has identified family member testimony which indicates that
"Darick never rented an apartment or paid a bill," that he did not hold
a job, and that he was dependent on family members for transporta-
tion because he did not have a drivers license and did not take the
public bus. J.A. 26.

   Based on the foregoing, we conclude that the facts alleged in Walk-
er’s petition, if true, would establish that he is mentally retarded and
that his execution is therefore prohibited by the Eighth Amendment.

                                    B.

   The district court did not suggest that Walker had failed to state a
claim; rather, it concluded that "the evidence presented by Walker is
insufficient to conclude, by a preponderance of the evidence, that he
is mentally retarded." J.A. 268. The district court based this finding
exclusively on its determination that "all [three] of Walker’s scores on
the WAIS-III, the only IQ test he was administered that is accepted
in Virginia, are above the level of mentally retarded." Id. 268 (empha-
sis added). Notably, at the time of the district court’s initial ruling, the
GAMA test was not on Virginia’s list of acceptable measures of intel-
lectual functioning. The addition of the GAMA test to that list formed
the basis of petitioner’s motion to amend the original judgment. The
district court denied that motion, finding that "the GAMA test was
administered to petitioner in May of 2003 when petitioner was 30
years old. The test, therefore, does not support a manifestation of
retardation before the age of 18." J.A. 305.

   As the foregoing references reveal, in ruling on Virginia’s motion
to dismiss, the district court did not assume the facts alleged by
Walker in his petition to be true. The district court’s judgment could
not be affirmed, however, even if its determination had been in the
8                           WALKER v. TRUE
context of summary judgment, as the state suggests it should be con-
strued, because the district court resolved factual disputes in favor of
the moving party.

   Specifically, the district court found that Walker’s 1984 WISC
score and his 1998 WAIS score demonstrated that he was not retarded.5
J.A. 268. But Walker vigorously protested such conclusions in his
petition. As to the 1984 WISC test, he alleged that his score of 76
actually supports his petition because it is two standard deviations
below the mean, even though only scores of 70 or lower represent an
IQ two standard deviations below the mean.6 Walker’s claim is based
upon expert affidavits describing the "Flynn Effect," which posits that
IQ scores rise over time and that IQ tests that are not "re-normed" to
adjust for rising IQ levels will overstate a testee’s IQ. Under this the-
ory, a score of 70 on a test that has recently been re-normed will be
two standard deviations below the mean of 100, while a score on the
WISC given in 1984 — which had last been re-normed in 1972 —
purportedly overstates a testee’s IQ by over 4 points, or 1/3 of a point
per year. J.A. 276-77. Thus, according to Walker, his score of 76 on
the 1984 WISC should be viewed as a 72. J.A. 274-76.

   But even Walker’s re-normed score of 72 does not necessarily indi-
cate that he has "perform[ed] on a standardized measure of intellec-
tual functioning . . . two standard deviations below the mean" as set
forth under the Virginia statute. On a properly normed IQ test only
scores of 70 or lower are two standard deviations below the mean.
Walker nonetheless maintains that 72 is a qualifying score because,
he claims, any IQ test score must be considered in the context of the
standard error of measurement. See J.A. 14. According to the affida-
vits submitted by Walker’s experts, the American Association on
    5
     While the district court purported to rest its judgment on Walker’s
three WAIS-III tests, the test that Walker took in 1984 is actually the
WISC test.
   6
     On IQ tests, standard deviations are measured in 30 point increments,
distributed evenly on either side of the mean. Thus, a score of two stan-
dard deviations below the mean is 70 or lower while a score of two stan-
dard deviations above the mean is 130 or higher. 95% of all test-takers
will score between 70 and 130, thus those scoring below two standard
deviations below the mean are in the bottom 2.5%.
                            WALKER v. TRUE                             9
Mental Retardation ("AAMR") and the American Psychological
Association ("APA") recognize that IQ tests have a measurement
error of plus or minus five points. J.A. 276 (expert testimony that the
AAMR and the APA "require measurement error to be taken into
account when IQ test scores are considered"). Walker’s experts there-
fore suggest that 72 is a qualifying score because "the AAMR and
APA concur that the IQ criteria for falling two standard deviations
below the mean (IQ 70) means that individuals who have a measured
IQ of 65 to 75 or lower may be considered to be mentally retarded
if there is evidence of poor adaptive functioning." Id. The state, of
course, may contest Walker’s experts’ particular suggestions on
remand and may also contest the applicability of measurement error
to the inquiry of whether a petitioner has performed "at least two stan-
dard deviations below the mean" under the Virginia statute.

   The district court, without much explanation, did not consider the
Flynn Effect or the measurement error, stating that such evidence
"does not provide a legal basis for ignoring Walker’s WAIS test
scores." J.A. 266. But, as the Virginia statute makes clear, the relevant
question is whether Walker scored two standard deviations below the
mean, a question which is directly addressed by Walker’s expert opin-
ion as to the Flynn Effect. Thus, not only did the district court resolve
a factual dispute against Walker — contrary to the claims in his peti-
tion and where the facts remained materially disputed — it also
refused to consider relevant evidence, namely the Flynn Effect evi-
dence. Therefore, on remand the district court should consider the
persuasiveness of Walker’s Flynn Effect evidence. And if the district
court does credit that evidence, it should then consider whether the
Virginia statute permits consideration of measurement error in order
to determine whether Walker’s purported score of 72 is "two standard
deviations below the mean" as set forth under that statute.

   As to Walker’s 1998 WAIS test, Walker claims that his score of
86 is "highly unreliable for multiple reasons" because it was adminis-
tered by an inexperienced intern who now claims she made "errors in
the administration and scoring of the test." J.A. 17; id. at 105-07. The
district court rejected Walker’s characterization of the test, and con-
cluded that if all of the administrator’s errors were added together,
Walker would have been left with a score of 77, "above the 70-75 cut-
off." J.A. 267. But Walker claims that his score cannot be recon-
10                          WALKER v. TRUE
structed in the manner proposed by the district court, Petitioner’s
Reply Br. at 18, and, moreover, has presented an affidavit from his
expert stating that the test results are so unreliable that they should be
"discarded." J.A. 113-14. In the face of this uncontested expert opin-
ion, the district court’s re-calculation of Walker’s score was error.

   The district court also rested its judgment on the results of Walk-
er’s March 17, 2000 WAIS-III test, administered by Dr. Sautter,
where Walker received a full scale score of 77. J.A. 247. While
Walker does not contest the validity of the results of this test, Dr.
Sautter has submitted an affidavit, explaining that after an "opportu-
nity to review a more comprehensive set of Darick’s records . . . I
conclude that Darick’s cognitive deficits are consistent with mental
retardation as that disability is defined by . . . the Commonwealth in
its recently enacted statute." J.A. 112-13. Moreover, Walker main-
tains that his score of 61 on the GAMA test in May 2003 — a score
that is indisputably more than two standard deviations below the
mean — more accurately reflects his disability.7

   In some circumstances an Atkins claim may properly be dismissed
where a petitioner has IQ scores that are above the high-end of the
intellectual functioning measurement set forth in Virginia’s definition
and where uncontested expert opinion verifies that such scores are an
accurate measurement of a petitioner’s intellectual functioning. See,
e.g.,



  7
    The district court discounted the results from the GAMA test because
it was not administered until Walker was 30 years old and therefore did
"not support a manifestation of retardation before the age of 18." J.A.
305. But, under Virginia’s statute, Walker is not required to submit an
IQ test to establish the "developmental origin" of his disability. Rather,
such an assessment "shall be based on multiple sources of information
generally accepted by the field of psychological testing . . . including,
whenever available, educational, social service, medical records, prior
disability assessments, parental or caregiver reports, and other collateral
data." Va. Code § 19.2-264.3:1.1(B)(3). Moreover, Walker’s adult IQ
scores are directly relevant to the "intellectual functioning" component
of Virginia’s definition.
                            WALKER v. TRUE                            11

Johnson v. Commonwealth, 591
S.E.2d 47, 59 (Va. 2004) (holding that petitioner’s Atkins claim was
frivolous because petitioner had received a 75 and 78 and because his
own expert witness stated that he was "not retarded"); Morrisette v.
Commonwealth, 569 S.E.2d 47, 56 n.8 (Va. 2002) (rejecting an Atkins
claim where petitioner’s IQ scores were 77 and 82 and where the
evaluating psychiatrist opined that petitioner’s intelligence was
"roughly below average"). Where, as here, however, a petitioner has
received IQ scores above and below two standard deviations below
the mean and where uncontested expert opinion suggests that he is
mentally retarded under the Commonwealth’s definition, dismissal is
inappropriate. Accordingly, in this case further proceedings are neces-
sary to determine whether the preponderance of the evidence suggests
that Walker’s lower scores are an accurate reflection of his intellec-
tual functioning or whether, as the state suggests, his higher scores are
dispositive.

                                   II.

   While we conclude that the district court erred in dismissing Walk-
er’s claim, we cannot conclude, on the basis of the record before us,
that Walker’s execution would violate the Eighth Amendment.
Rather, further proceedings are necessary to determine whether, after
consideration of all relevant evidence, Walker has established that he
is mentally retarded as defined by the Commonwealth of Virginia.
Walker maintains that further proceedings should be before a jury or,
in the alternative, seeks an evidentiary hearing before the district
court.

                                   A.

   Walker contends that he is entitled to a jury under both the Virginia
statutory scheme and Ring v. Arizona, 536 U.S. 584 (2002). We dis-
agree.

   Walker is not entitled to a jury under the Virginia statute. Section
8.01-654.2 of the Virginia Code sets forth the procedural framework
for the resolution of Atkins claims filed by petitioners, such as
12                          WALKER v. TRUE
Walker, who were sentenced to death before April 29, 2003. The rele-
vant portion of that statute provides as follows:

     A person proceeding under this section shall allege the fac-
     tual basis for his claim of mental retardation. The Supreme
     Court shall consider a claim raised under this section and if
     it determines that the claim is not frivolous, it shall remand
     the claim to the circuit court for a determination of mental
     retardation . . . . If the claim is before the Supreme Court on
     direct appeal and is remanded to the circuit court and the
     case wherein the sentence of death was imposed was tried
     by a jury, the circuit court shall empanel a new jury for the
     sole purpose of making a determination of mental retarda-
     tion.

     If the person has completed both a direct appeal and a
     [state] habeas corpus proceeding under subsection C of
     § 8.01-654, he shall not be entitled to file any further habeas
     petitions in the Supreme Court and his sole remedy shall lie
     in federal court.

Va. Code § 8.01-654.2 (emphasis added). As the emphasized sections
make clear, the Virginia statute does not provide for a jury for claims
raised in federal court.

   Walker nonetheless contends that he is entitled to a jury under sec-
tion 19.2-264.3:1.1(c), which provides that "in any case in which the
offense may be punishable by death and is tried before a jury, the
issue of mental retardation . . . shall be determined by the jury as part
of the sentencing proceeding." Walker claims that his entitlement to
a jury under this section cannot be severed from the other applicable
portions of the section; namely the definition of "mentally retarded"
and the defendant’s burden of proof. But the portion of the Virginia
statute that refers to a jury determination does so in the context of the
appropriate procedure at sentencing in state court. It does not bear on
the appropriate federal procedure governing Walker’s Eighth Amend-
ment claim that is based, in part, upon Virginia’s definition of men-
tally retarded.

   Walker further contends that his proposed interpretation of the Vir-
ginia statutory scheme is supported by the canon of constitutional
                             WALKER v. TRUE                               13
avoidance. According to Walker, an interpretation of Virginia’s stat-
ute that deprives him of a jury would violate the Equal Protection
clause of the Fourteenth Amendment because there is no rational
basis for treating petitioners who have completed their state habeas
proceedings differently than those who have not. As set forth above,
Va. Code. § 8.01-654.2 permits petitioners whose convictions are
final but who have not sought state habeas relief to pursue their Atkins
claims in state court where a jury is required for all non-frivolous
claims. On the other hand, petitioners, such as Walker, who have
completed state habeas review must pursue their claims in federal
court. Walker claims that such a distinction is "arbitrary."

   Walker’s Equal Protection challenge to the Virginia statute is not
sustainable. As noted by the state, under the relevant Supreme Court
precedent the standard applicable to Walker’s challenge is whether
the "classification drawn by the statute is rationally related to a legiti-
mate state interest." City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432, 440-41 (1985). Just as the federal habeas statute treats
petitioners filing an initial habeas petition differently than it treats
those who are filing a successive petition, see 28 U.S.C. § 2244, so
too may Virginia differentiate between petitioners who have not yet
presented claims under § 8.01-654 and those who have completed
their § 8.01-654 proceedings. As with the distinction at the federal
level, Virginia’s differentiation is reasonably related to the state’s
interest of efficient utilization of its judicial resources and satisfies the
deferential standard set forth in Cleburne. This is especially so, given
that Walker is entitled to present his federal claim in a federal forum.8
  8
    Petitioner also maintains that Virginia’s statute is arbitrary because it
"treats defendants differently depending on the purely arbitrary factor
[of] whether a particular defendant pursued a state habeas petition or
simply let the 60-day time limit on filing a state habeas petition run with-
out filing." Petitioner’s Br. at 51. But the Virginia statute does not permit
such gamesmanship. If a petitioner with an Atkins claim who has not pur-
sued relief under § 8.01-654 fails to timely file his petition, that petition
will be dismissed pursuant to § 8.01-654.1. Thus, § 8.01-654.2 does not
waive the applicable filing deadlines of § 8.01-654; rather it requires sub-
mission of Atkins claims, when possible, "under such subsection." And,
such a claim would be procedurally defaulted in federal court. See 28
U.S.C. §§ 2254(b)-(c). Accordingly, as with any other claim for relief
under the Virginia and federal habeas statutes, petitioners must comply
with applicable filing deadlines or forfeit their claims.
14                           WALKER v. TRUE
   Nor can Walker establish entitlement to a jury under Ring v. Ari-
zona. As an initial matter, Ring was decided after Walker’s conviction
became final and is not retroactive on collateral review. See Schriro
v. Summerlin, 124 S. Ct. 2519 (2004) ("Ring announced a new proce-
dural rule that does not apply retroactively to cases already final on
direct review."). Walker suggests Schriro is inapplicable because he
is not seeking to vacate a factual decision already made by a judge
in favor of having that factual decision made by a jury; rather, he is
presenting his Atkins claim for the first time in his petition and is
therefore not seeking retroactive application of Ring. Petitioner’s
Reply Br. at 22-23.

   But even if Walker is not seeking retroactive application of Ring,
he is not entitled to a jury. The operative language of Ring provides
that:

      The dispositive question . . . is one not of form, but of effect.
      (citation omitted). If a State makes an increase in a defen-
      dant’s authorized punishment contingent on the finding of a
      fact, that fact — no matter how the state labels it — must
      be found by a jury beyond a reasonable doubt. A defendant
      may not be exposed to a penalty exceeding the maximum he
      would receive if punished according to the facts reflected in
      the jury verdict alone.

536 U.S. at 602; see also id. at 610 ("I believe that the fundamental
meaning of the jury-trial guarantee of the Sixth Amendment is that all
facts essential to imposition of the level of punishment that the defen-
dant receives — whether the statute calls them elements of the
offense, sentencing factors, or Mary Jane — must be found by the
jury beyond a reasonable doubt.") (Scalia, J. concurring).

   Walker maintains that the factual determination of "not-retarded"
is required to impose the death penalty. The Virginia statute authoriz-
ing "punishment for conviction of felony" lends some support to this
view. It provides that "[t]he authorized punishments for conviction of
felony are: (a) For class 1 felonies, death, if the person so convicted
was 16 years of age or older at the time of the offense and is not
determined to be mentally retarded." Va. Code § 18.2-10.9 But the
  9
   Walker was convicted of violating Va. Code § 18.2-31.1(8) which
provides that "the willful, deliberate, and premeditated killing of more
                            WALKER v. TRUE                             15
finding of mental retardation does not increase the penalty for the
crime beyond the statutory maximum — death. Rather, a defendant
facing the death penalty may avoid that penalty if he successfully
raises and proves by a preponderance of the evidence that he is men-
tally retarded. Va. Code § 19.2-264.3:1.2(E) and § 19.2-264.3:1.1(C).
The state does not have a corollary duty to prove that a defendant is
"not retarded" in order to be entitled to the death penalty. Accord-
ingly, "an increase" in a defendant’s sentence is not predicated on the
outcome of the mental retardation determination; only a decrease. See
also In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) ("[T]he absence
of mental retardation is not an element of the sentence any more than
sanity is an element of the offense.").




                                   B.

   Walker contends that even if he is not entitled to a jury, he must,
at a minimum, receive an evidentiary hearing in the district court on
his Atkins claim. Petitioner’s Br. at 56-60. We agree.

   Walker’s entitlement to an evidentiary hearing is not addressed by
the federal habeas statutes. Section 2254(e)(2) does not apply because
Walker has not "failed to develop the factual basis of [his] claim in
State court." See Williams v. Taylor, 529 U.S. 420, 432 (2000) ("[A]
failure to develop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel."). Because Atkins was decided
after Walker’s conviction became final, neither he nor his counsel can
be faulted for failure to develop the factual basis of that claim.

   Under Supreme Court and circuit precedent, an evidentiary hearing
is required if Walker "alleges . . . facts that, if true, would entitle[ ]
him to relief and establishes one of six factors set out by the Supreme

than one person within a three-year period" shall "constitute capital mur-
der, punishable as a Class 1 felony."
16                          WALKER v. TRUE
Court in Townsend v. Sain, 372 U.S. 293 (1963)." Fisher v. Lee, 215
F.3d 438, 455 (4th Cir. 2000); see also Cardwell v. Green, 152 F.3d
331, 338 (4th Cir. 1998) ("if . . . the applicant has not failed to
develop the facts in state court, the district court may proceed to con-
sider whether a hearing is appropriate or required under Townsend.")
(emphasis added). Townsend holds that "[w]here the facts are in dis-
pute, the federal court in habeas corpus must hold an evidentiary
hearing if the habeas applicant did not receive a full and fair eviden-
tiary hearing in a state court." Townsend, 372 U.S. at 312 (emphasis
added).

   The district court’s refusal to hold an evidentiary hearing was error
under Townsend. As noted above, Walker has alleged facts that would
entitle him to relief and those facts remain disputed. Moreover,
because he has never presented his Atkins claim in state court, he has
not received "a full and fair evidentiary hearing" and thus easily satis-
fies several of the six factors mentioned in Townsend. Id. at 313 (evi-
dentiary hearing required if "the merits of the factual dispute were not
resolved in the state hearing" or "for any reason it appears that the
state trier of fact did not afford the habeas applicant a full and fair
hearing.").

   Accordingly, on remand the district court should conduct an evi-
dentiary hearing to determine whether Walker is mentally retarded
under Virginia law. In this hearing, the district court should consider
all relevant evidence, as set forth in the Virginia statute, pertaining to
the developmental origin, intellectual functioning, and adaptive
behavior aspects of Walker’s mental retardation claim. See Va. Code
§ 19.2-264.3:1.1. The district court may ultimately conclude that its
initial resolution of Walker’s claim was correct; the preponderance of
the evidence may indicate that Walker’s scores on the 1984 WISC
test, the 1998 WAIS-III test, and the 2000 WAIS-III tests are valid
and greater than two standard deviations below the mean. The district
court may, as well, conclude that the scores on these three tests are
more reflective of Walker’s intellectual functioning than his score on
the GAMA test. But, whether or not the district court comes to the
same conclusions upon reconsideration, Walker is entitled under law
both to an evidentiary hearing in which he is afforded an opportunity
to fully develop the factual basis of his mental retardation claim and
                           WALKER v. TRUE                            17
to consideration by the courts of all of the evidence that is relevant
to that claim under Virginia’s statutory framework.

                                  III.

   The judgment of the district court is vacated and the case remanded
for an evidentiary hearing to address whether Walker is mentally
retarded under Virginia statute.

                                         VACATED AND REMANDED

GREGORY, Circuit Judge, concurring in part and dissenting in part:

  I agree with the majority insofar as it holds that Walker’s petition
should not have been dismissed without an evidentiary hearing. I
must dissent, however, from the majority’s failure to recognize that
Va. Code § 8.01-654.2 violates the Equal Protection Clause.

   As interpreted by the majority, Virginia’s statutory scheme denies
to Walker what it gives freely to others with non-frivolous claims of
mental retardation: assured jury review. Stated otherwise, the majority
allows Virginia to treat unequally criminal defendants submitting
non-frivolous claims of mental retardation for the first time by with-
holding its juries from those who have exhausted state remedies on
other grounds. See Va. Code § 8.01-654.2 ("If the person has com-
pleted both a direct appeal and a [state] habeas corpus proceeding
under subsection C of § 8.01-654, he shall not be entitled to file any
further habeas petitions in the Supreme Court and his sole remedy
shall lie in federal court."). Thus, Daryl Atkins and Darick Walker,
despite being identically situated for present purposes, will be treated
unequally: Atkins — merely because he was on direct review — will
be allowed to present his retardation claim to a jury, but Walker may
not. This is unconstitutional.

   The majority’s error begins by adopting the Warden’s contention
that Virginia’s scheme merits merely rational-basis review. It is plain
that "when state laws impinge on personal rights protected by the
Constitution," strict scrutiny — not rational-basis review — is war-
ranted. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440
18                          WALKER v. TRUE
       1
(1985). The Eighth Amendment’s prohibition against the cruel and
unusual punishment embodied by the execution of the mentally
retarded is surely a fundamental, personal constitutional right. Thus,
Virginia’s law should be sustained only if it is "suitably tailored to
serve a compelling state interest." Id.

   Virginia’s post-Atkins statute cannot survive such scrutiny. The
Warden proffers two sides of the same "prompt finality" coin for Vir-
ginia’s otherwise arbitrary distinction: avoiding delay in executions
from frivolous litigation and encouraging finality of the judgments.
See Appellee’s Br. at 37 n.12 (Virginia legislature made policy choice
to avoid "unnecessary delay for frivolous litigation") and at 40 n.15
("Obviously it is a legitimate, even compelling, state interest to fur-
ther the finality of criminal judgments.").

   First, I doubt the Warden precisely captures Virginia’s interests
when it passed the statute dealing with Atkins claims. Evidently, the
Commonwealth felt sufficiently strongly that a jury had to decide
these factual questions2 that it mandated a jury trial for all persons on
direct appeal. See Va. Code § 8.01-654.2 ("If the claim is before the
Supreme Court on direct appeal and is remanded to the circuit court
and the case wherein the sentence of death was imposed was tried by
a jury, the circuit court shall empanel a new jury for the sole purpose
of making a determination of mental retardation."). At the very least,
this adds nuance to Virginia’s interests: it commanded its circuit
courts to empanel a jury for some defendants, while it wished to deny
the right to such a determination to defendants like Walker. Thus, the
question should be whether Virginia’s interest in promptly executing
the tiny handful of death-row prisoners like Walker who had
  1
     The majority opinion cites, but misapplies, Cleburne for the idea that
rational basis review governs. Ante at 13-14. Cleburne establishes that
mental retardation itself is not a "quasi-suspect classification" such that
all laws affecting the mentally retarded merit heightened scrutiny. 473
U.S. at 442-47. Cleburne also recognized quite plainly, however, that
strict scrutiny is warranted "when state laws impinge on personal rights
protected by the Constitution." Id. at 440.
   2
     See Burns v. Warden of Sussex I State Prison, 597 S.E.2d 195, 196
(Va. 2004) ("The threshold issue — whether the defendant is mentally
retarded — is a factual one.").
                            WALKER v. TRUE                            19
                                3
exhausted state habeas appeals is "compelling," and if so, compelling
enough to justify denying these few persons a jury determination of
their Atkins claim.

   Even accepting the Warden’s proffered justification as compelling,
surely this scheme is not narrowly tailored; indeed, the statute seems
to be an awfully clumsy means of obtaining quick executions. The
Commonwealth could have allowed for an expedited state-court
review of Walker’s Atkins claim, just as they did for those of other
defendants. But by short-circuiting AEDPA and pushing off Walker
to federal court, Virginia denies us the benefit of its fact-finding. I
seriously doubt that this shortens the time to execution at all. Indeed,
it may well lengthen the review process by forcing federal courts —
perhaps ultimately the Supreme Court — to attempt awkwardly to
harmonize federal habeas procedures with both Virginia’s substantive
and procedural post-Atkins statutes.

   I know of no other reason why treating Walker the same as defen-
dants like Daryl Atkins would have been so unpardonably slow as to
justify the denial of equal treatment. As the Virginia Supreme Court
noted about this very statute just last year,

      The different procedures for resolving this factual issue
      [whether the defendant is mentally retarded] that the War-
      den urges are based solely on whether a capital defendant
      happened to have his case on direct appeal or collateral
      attack on April 29, 2003. To assign the finding of this fact
      to the trial court for one group of qualifying defendants and
      to either a court or a jury for another, as the Warden sug-
      gests, would treat similarly situated persons differently in
      violation of the Equal Protection Clause of the Fourteenth
      Amendment to the United States Constitution.
  3
   There appears to be only one other Virginia death-row inmate who,
like Walker, exhausted state remedies on other grounds and then raised
a mental retardation claim after Atkins. Five other death-row prisoners
had completed state habeas proceedings when Atkins was decided, but
none of them raised an Atkins claim and all have since been executed.
Thus, it is not as if scores of cases threaten to drown Virginia’s courts
with frivolous retardation claims.
20                          WALKER v. TRUE
Burns v. Warden, 597 S.E.2d 195, 196 (Va. 2004)(citing City of Cle-
burne, 473 U.S. at 439).

   In sum, Atkins did not leave the states with unbridled authority to
craft procedures that would protect mentally retarded defendants.
Rather, it allows the states to develop "‘appropriate ways to enforce
the constitutional restriction upon [their] execution of sentences.’"
Atkins 536 U.S. at 317 (emphasis added). If nothing else, to be appro-
priate, procedures must comport with the Constitution. The majority
allows Virginia’s violation of the Equal Protection Clause by not
requiring that Walker’s claim, as would Atkins’, be heard by a jury
of his peers. I respectfully remove myself from this part of the deci-
sion and strongly encourage the district court to exercise its discretion
— which this decision does not destroy — to empanel a jury to hear
Walker’s claim.
