                                                               [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              MAY 27, 2010
                               No. 09-12869
                                                               JOHN LEY
                                                                CLERK

                D. C. Docket No. 01-00772-CV-CLS-RRA

KENNETH GLENN THOMAS,

                                               Petitioner-Appellee,

                                  versus

RICHARD F. ALLEN,

                                               Respondent-Appellant.



                Appeal from the United States District Court
                   for the Northern District of Alabama


                              (May 27, 2010)


Before DUBINA, Chief Judge, BARKETT and WILSON, Circuit Judges.

DUBINA, Chief Judge:
      Appellant, Richard Allen, Commissioner of the Alabama Department of

Corrections, appeals the district court order granting Kenneth Glenn Thomas

penalty phase habeas relief based on its finding that Thomas is mentally retarded

and ineligible for execution pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.

Ct. 2242 (2002). Because we conclude that the district court did not clearly err in

its mental retardation finding, we affirm.

                                I. BACKGROUND

      A Limestone County, Alabama, jury convicted Thomas for the intentional

murder of Flossie McLemore during the course of a burglary. The jury

unanimously recommended a death sentence, and the trial court followed the

jury’s recommendation and sentenced Thomas to death. The Alabama Court of

Criminal Appeals and the Alabama Supreme Court affirmed Thomas’s conviction

and death sentence. Thomas v. State, 539 So. 2d 375 (Ala. Crim. App. 1988); Ex

parte Thomas, 539 So. 2d 399 (Ala. 1988). The United States Supreme Court

denied certiorari review. Thomas v. Alabama, 491 U.S. 910, 109 S. Ct. 3201

(1989).

      Thomas filed a state petition for post-conviction relief pursuant to Ala. R.

Crim. P. 32, raising numerous claims for relief. With regard to Thomas’s claim

that he was mentally retarded and exempt from execution under the Eighth and

                                             2
Fourteenth Amendments, the trial court determined that the claim was

procedurally defaulted under state rules because Thomas could have raised the

claim at trial or on direct appeal but failed to do so. Alternatively, the trial court

found that the claim had been raised and fully litigated at trial and on direct

appeal; therefore, it was precluded from granting Thomas post-conviction relief

under Ala. R. Crim. P. 32.2(a)(2) and (a)(4). The state trial court also held that

Thomas was not in fact mentally retarded and rejected his claim. [State R. 42 at

734–36.] With regard to Thomas’s other claims, the trial court denied relief, and

after conducting an evidentiary hearing on Thomas’s claim that his trial counsel

were ineffective for not investigating and developing evidence to support an

insanity defense, denied Thomas post-conviction relief. The state appellate courts

affirmed. See Thomas v. State, 766 So. 2d 860 (Ala. Crim. App. 1998) (holding

that Thomas’s Eighth Amendment claim was procedurally barred under state

procedural rules and that as a matter of federal constitutional law, Thomas’s

Eighth Amendment claim was without merit); Ex parte Thomas, 766 So. 2d 975

(Ala. 2000).

      In March 2001, Thomas filed a federal habeas petition pursuant to 28 U.S.C.

§ 2254 raising numerous challenges to his capital murder conviction and death

sentence. The district court denied Thomas habeas relief with one exception—it

                                           3
found that the state court’s post-conviction determination that Thomas was not

mentally retarded was contrary to, and an unreasonable application of, clearly

established federal law as determined by the Supreme Court in Atkins, as well as

an unreasonable determination of the facts in light of the evidence presented in the

state post-conviction court. [R. 86 at 250–54 (citing 28 U.S.C. § 2254(d)).]1

Initially, the district court ordered that the case be remanded to state court for a re-

evaluation of Thomas’s mental retardation claim, but later, upon a joint motion of

the parties, the district court withdrew that portion of its order and scheduled a

hearing on Thomas’s claim of mental retardation. After an Atkins hearing, the

district court found Thomas to be mentally retarded and ordered that the

Limestone County, Alabama, Circuit Court re-sentence him to a term of life

imprisonment without the possibility of parole. The State appeals.

                                          II. ISSUE




       1
         Because the Atkins decision announced a “new rule of constitutional law made retroactive
to cases on collateral review,” In re Holladay, 331 F.3d 1169, 1172 (11th Cir. 2003), the district
court noted that Thomas’s Eighth Amendment claim that it would be cruel and unusual punishment
to execute him because he is mentally retarded could not be defaulted under state procedural rules.
Accordingly, the district court gave no deference to the state courts’ opinions to the contrary and
reviewed the claim under the parameters set forth in the Anti-terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2254 (2006). In this appeal, the State does not challenge the district court’s
decision with respect to any procedural bar. Thus, any such challenge is deemed abandoned, and we
consider the merits of the issue according no deference to any state court decision on this, or any
tangentially-related, issue. See Holladay v. Allen, 555 F.3d 1346, 1348 n.1 (11th Cir. 2009).

                                                4
      Whether the district court clearly erred in finding Thomas mentally retarded

and ineligible for execution under the Eighth Amendment.

                         III. STANDARD OF REVIEW

      “We review the district court’s finding that [Thomas] is mentally retarded

for clear error.” Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009) (citation

omitted). “Clear error is a highly deferential standard of review.” Holton v. City

of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005). “[A] finding is

‘clearly erroneous’ when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573, 105 S. Ct. 1504, 1511 (1985) (quoting United States v. U. S. Gypsum

Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).

                                 IV. DISCUSSION

      A. Controlling Legal Criteria

      Unpersuaded that the execution of mentally retarded capital offenders

would “measurably advance the deterrent or the retributive purpose of the death

penalty,” the Atkins Court held that the execution of mentally retarded capital

offenders violates the Eighth Amendment. 536 U.S. at 321, 122 S. Ct. at 2252.

The Atkins majority agreed that mentally retarded individuals should be punished

                                          5
when they commit crimes, but also recognized that the disabilities of such persons

in the areas of reason, judgment, and impulse control diminish their ability to “act

with the level of moral culpability that characterizes the most serious adult

criminal conduct.” Id. at 306, 122 S. Ct. at 2244. The Court noted that “clinical

definitions of mental retardation require not only subaverage intellectual

functioning, but also significant limitations in adaptive skills such as

communication, self-care, and self-direction that became manifest before age 18.”

Id. at 318, 122 S. Ct. at 2250. Because of these impairments, mentally retarded

individuals “have diminished capacities to understand and process information, to

communicate, to abstract from mistakes and learn from experience, to engage in

logical reasoning, to control impulses, and to understand the reactions of others.”

Id.,122 S. Ct. at 2250. Thus, the Court held that “death is not a suitable

punishment for a mentally retarded criminal.” Id. at 321, 122 S. Ct. at 2252.

      Although the Atkins Court alluded to clinical definitions propounded by the

American Association on Mental Retardation (“AAMR”) and the American

Psychiatric Association (“APA”), it left to the states the development of standards

for courts to employ in making a determination of whether an offender is mentally

retarded. Id. at 317, 122 S. Ct. at 2250. Thus, we look to Alabama case law for

guidance because the Alabama Legislature has not enacted any legislation

                                          6
developing procedures by which a court may determine if a capital defendant is

mentally retarded and thus ineligible for execution.

      The Alabama Supreme Court in Ex parte Perkins, 851 So. 2d 453, 456 (Ala.

2002), held that a defendant alleging an Eighth Amendment mental retardation

claim must show that he has significantly subaverage intellectual functioning (IQ

of 70 or below), significant or substantial deficits in adaptive behavior, and that

these problems manifested themselves during the developmental period (before

the age of eighteen). Later, in Smith v. State, the Alabama Supreme Court added

an additional element to the definition by stating that a defendant must exhibit

significantly subaverage intellectual functioning abilities and significant deficits in

adaptive behavior during three periods of his life: before the age of eighteen, on

the date of the capital offense, and currently. ___ So. 2d ___, No. 1060427, 2007

WL 1519869, at *8 (Ala. May 25, 2007). “All three factors must be met in order

for a person to be classified as mentally retarded for purposes of an Atkins claim.”

Id.

      1. Standardized Assessment Instruments

      The two most widely recognized and utilized intellectual functioning

assessment instruments are the Wechsler Adult Intelligence Scales (“WAIS”) and

the Stanford-Binet Intelligence Scales (“SB"). The expert witnesses in this case

                                           7
utilized these instruments, as well as others, to assess Thomas’s intellectual

functioning.2 When considering an individual’s intellectual functioning test score,

the evaluator may consider the Standard Error of Measurement (“SEM”), which is

an index of the variability of test scores produced by persons forming the

normative sample. In other words, the SEM is a statistical measure that allows the

evaluator to know the amount of error that could be present in any test. The

AAMR acknowledges that the SEM has been estimated to be three to five points

for well-standardized measures of general intellectual functioning. Hence, the IQ

standard score is bounded by a range that would be approximately three to four

points above and below the obtained scores. [R. 130 at 20–31.] In Thomas’s case,

the parties stipulated that a SEM of approximately plus or minus five points was

proper for full-scale IQ test scores produced by the intelligence assessment

instruments. [Id. at 24.]

       An evaluator may also consider the “Flynn effect,” a method that recognizes

the fact that IQ test scores have been increasing over time. [Id. at 31–39.] The

Flynn effect acknowledges that as an intelligence test ages, or moves farther from

the date on which it was standardized, or normed, the mean score of the population



       2
        We rely on the district court’s very thorough explanation of these standardized assessment
instruments and do not elaborate on them in this opinion. [R. 130 at 10–18.]

                                                8
as a whole on that assessment instrument increases, thereby artificially inflating

the IQ scores of individual test subjects. Therefore, the IQ test scores must be

recalibrated to keep all test subjects on a level playing field. The parties in this

case agree that the Flynn effect is an empirically proven statistical fact; however,

they disagree on the extent to which an individual test subject’s IQ score should be

adjusted to take into consideration this phenomenon. [Id. at 33.]

      a. Developmental Period

      The record indicates that Thomas’s first intellectual functioning evaluation

occurred on October 4, 1968, when Thomas was nine years and seven months of

age. Dr. David Loiry, Ph.D., a psychologist, administered a short form version of

the Wechsler Intelligence Scales for Children (“WISC”). According to Dr. Loiry’s

report, Thomas’s estimated full-scale IQ score of 56 placed him near the middle of

the range of moderate mental deficiency according to the classification system

utilized by the APA. [R. Pet’r Exh. 3 & 4.] Dr. Loiry recommended that Thomas

be placed in a special class for the educable mentally retarded. [Id.]

      When Thomas was thirteen, he took the California Test of Mental Maturity,

Short Form, along with other students. That test measured various aspects of

intellectual functioning, such as memory and logical reasoning, at five different

levels of difficulty. Thomas’s composite IQ score was 68. The third assessment

                                           9
occurred in June 1973, when Thomas was fourteen years and two months of age.

At the request of Dr. Frank M. Cauthen, M.D., Dr. Loiry administered four tests:

the full WISC; the Wide Range Achievement Test; the Bender Visual Motor

Gestalt Test; a figure drawing test; and a Rorschach test. Thomas’s full-scale IQ

score on the WISC was 64, and his other test results were poor. Dr. Loiry

concluded that there was no doubt about Thomas’s mental retardation. [Id.]

Shortly after Thomas’s sixteenth birthday, Jim Lenz, a psychometrist for the

Limestone County School System, administered the WAIS to Thomas to

determine whether he should remain in special education classes. Thomas’s full-

scale IQ score was 74, and Mr. Lenz concluded that Thomas was functioning in

the educable range of mental retardation and should remain in special education

classes. [R. Pet’r Exh. 6.]

      b. Post-developmental Period

      A month after Thomas’s eighteenth birthday, Joyce Raley, a counselor at the

West Limestone School, administered a WAIS test to Thomas, and he scored his

highest full-scale IQ score—77. Prior to the murder trial, when Thomas was

twenty-six years old, Dr. K. Hall, a doctor at the Taylor Hardin Secure Medical

Facility, administered the revised WAIS to Thomas, who had a full-scale IQ of 71.

Dr. Hall concluded that Thomas was functioning within the borderline range of

                                        10
intellect. Dr. James Crowder, Ph.D., a psychologist, also administered a revised

WAIS to Thomas prior to trial, and Thomas’s full-scale IQ score was 65. In

September 2007, in preparation for Thomas’s federal evidentiary hearing on his

Atkins claim, Dr. Harry McClaren administered a WAIS-III intelligence

assessment to Thomas, and he obtained a full-scale IQ score of 65. Dr. McClaren

also administered a test to Thomas to determine if Thomas was malingering, but

the test results did not suggest malingering. Dr. Karen Salekin also administered

an intelligence assessment to Thomas prior to the federal evidentiary hearing. She

performed an SB5 intelligence assessment which indicated a full-scale IQ score of

62.

      2. Adaptive Behavior

      The AAMR defines the term “adaptive behavior” as the collection of

conceptual, social, and practical skills that people learn in order to function in

their everyday lives. [R. 130 at 42– 47.] See also Holladay, 555 F.3d at 1353. As

we noted in Holladay, “significant or substantial deficits in adaptive behavior are

defined as concurrent deficits or impairments in present adaptive functioning in at

least two of the following skill areas: communication, self-care, home living,

social/interpersonal skills, use of community resources, self-direction, functional

academic skills, work, leisure, health and safety.” Id. at 1353 (internal quotation

                                          11
marks omitted). Therefore, to satisfy this prong of the test for mental retardation,

Thomas must show a deficiency in two of these listed areas. See id.

       Because Thomas had no standardized adaptive behavior assessments during

his developmental period, the parties reviewed Thomas’s public school records,

his standardized test scores, his social worker’s case records, and interviewed

people who were acquainted with Thomas during this period, such as family

members and teachers.3 The district court also reviewed these documents and

relied extensively on the testimony presented during the evidentiary hearing to

find that Thomas showed, by a preponderance of the evidence, that he had

significant deficits in adaptive functioning prior to age eighteen in five areas: (1)

functional academics; (2) work; (3) social and interpersonal skills; (4) home

living; and (5) self-direction. Additionally, there were no formal behavior

assessments performed on Thomas on or about the date of the capital offense.

Relying on the tests, records, and testimony from the hearing, the district court




       3
         Dr. Salekin stated that the APA did not require the use of standardized, adaptive-behavior
assessment instruments prior to Thomas’s eighteenth birthday. She also testified that in 2002, it
became a diagnostic requirement to test for adaptive functioning. Dr. Salekin commented that, in
her opinion, adaptive functioning “is more important than getting your IQ score.” [R. 124 Vol. I at
58.]

                                                12
found that Thomas currently suffers substantial limitations in at least two adaptive

behavioral skill areas: (1) social and interpersonal skills; and (2) self-direction.4

       In preparation for the evidentiary hearing, Dr. Salekin summarized the

dysfunctional and poor environment in which Thomas lived during most of his

developmental period. Dr. Salekin referenced the Department of Pensions and

Securities (“DPS”) records that were replete with information indicating that

social services had repeatedly deemed Thomas’s parents unfit. When Thomas was

living in the home with his parents, he was exposed to his father’s alcoholism, his

father’s criminal activity, and his father’s domestic violence toward his mother.

The DPS records also contained information that on numerous occasions,

Thomas’s family did not have adequate food, clothing, and shelter, and Thomas’s

mother did not access appropriate medical services for the care and treatment of

her children. In her report, Dr. Salekin noted that multiple informants stated that

Thomas was heavily influenced by his father who taught him to steal and to

engage in other illegal activities. [R. Dr. Salekin Report, Exh. 110 at 19-20.]


       4
          The district court noted that the State did not dispute Thomas’s assertion that he had proven
that he presently has significant deficits in adaptive functioning. Accordingly, the district court
determined that the State had abandoned any such challenge. However, in an abundance of caution,
the district court considered the evidence of record in light of the legal and diagnostic standards and
concluded that Thomas did presently show significant deficits in adaptive functioning in at least two
areas: social/interpersonal skills and self-direction. [R. 130 at 122–25.] The State does not challenge
this finding on appeal.

                                                  13
Even Dr. Marson recorded that Thomas’s father took him to bars and taught him

how to strip cars and rob houses. [R. Dr. Marson Report, Exh. 111-1 at 4–5.]

      The DPS records also indicated that Thomas resided with his family from

birth until the age of twelve, when the DPS removed him from the home and

placed him in DPS protective custody as a result of his arrest for arson. The DPS

placed him in three different foster homes. Thomas lived approximately one year

at each of the first two foster homes. The third foster home, the farm of Mr. and

Mrs. Wayne Ridgeway, was the most successful placement for Thomas. Thomas

resided there with other special needs children of low cognitive ability. Thomas

had daily chores on the farm, and he learned to drive a tractor. During this time,

Thomas played baseball, did not use illegal drugs, did not get into trouble in

school, and attended church. His placement with the Ridgeways ended when he

turned eighteen. [R. Dr. Salekin Report, Exh. 110 at 20–21.]

      Dr. Salekin also noted in her report that Thomas’s older brother opined that

Thomas could not have managed money or maintained a household. One of

Thomas’s foster parent’s daughter informed Dr. Salekin that, based on her

interaction with Thomas, he was not capable of taking care of all the things

necessary to live independently. David Seibert, Thomas’s special education

teacher, stated that Thomas would have a difficult time functioning independently

                                         14
in a community setting because it would be hard for Thomas to keep up with

budgeting his money and paying his bills. [Id. at 25–26.] Dr. Marson reported

that Thomas had limited skills in dealing with finances and money. Thomas did

not know how to keep an accurate record of funds, he never learned how to use a

money order, and he never had any bills to pay. During the interview, Thomas had

significant difficulty calculating simple math computations. [R. Dr. Marson

Report, Exh. 111-1 at 12.]

      Three persons who had extensive contact with Thomas prior to age eighteen

testified at the evidentiary hearing. Wayne Ridgeway, whose parents served as

Thomas’s foster parents for several years, testified that he saw Thomas every day

while Thomas lived on the farm. He stated that Thomas did not have girlfriends

and did not socialize and do things that other boys his age did. Wayne commented

that he could not leave Thomas unsupervised while performing a task, and he had

to give Thomas directions “over and over.” [R. 124 Vol. I at 225–248.] He taught

Thomas how to drive a tractor, but Thomas was the slowest of the 40 or more

foster children he taught to drive a tractor. He opined that Thomas could not have

lived independently.

      David Seibert, Thomas’s special education teacher in high school, stated

that Thomas would not have been able to function well in a normal classroom, and

                                        15
Thomas required much repetition in order to follow instructions. [R. 124 Vol. I at

263–288.] Carole Russell, Thomas’s case worker from age twelve until eighteen,

testified that Thomas was very immature, and his mannerisms were childlike. She

thought he was very far behind both socially and educationally, and he had a poor

ability to follow instructions. She also noted that Thomas not only lacked the

maturity of children his same age, but he looked like a child much younger in age.

[R. 124 Vol I at 289-125 Vol. II at 26.]

      B. Analysis

      The district court found that Thomas showed, by a preponderance of the

evidence, that he suffers from significant limitations in intellectual functioning

that originated before the age of eighteen years, were present on the date of the

offense of conviction, and continue to the present day. The district court further

found that Thomas showed, by a preponderance of the evidence, that his adaptive

functioning abilities have been substantially impaired throughout his life,

including the developmental period, the time surrounding the offense of

conviction, and the present. As such, the district court found that Thomas is

mentally retarded and is ineligible for execution because the imposition of the

death penalty would violate the Eighth Amendment’s prohibition against cruel and

unusual punishment. On appeal, the State challenges the district court’s findings

                                           16
that Thomas showed limited intellectual functioning and limited adaptive

functioning during the developmental period. The State proffers several specific

challenges.

      1. Intellectual Assessment

      a. Failure to follow the IQ score of 70

      The State contends that the district court committed clear error when it did

not adhere to Alabama precedent holding that an IQ score of 70 is the cutoff for

significantly subaverage intellectual functioning. See, e.g., Smith, ___ So. 2d ___,

2007 WL 1519869, at *8; Ex parte Perkins, 851 So. 2d at 456. The State argues

that had the district court properly followed Alabama precedent, it would have

found that Thomas did not have subaverage intellectual functioning during the

developmental period because he had an IQ score of 77 when he was eighteen

years old. Additionally, in support of its assertion, the State references Thomas’s

increased scoring over the course of his developmental period.

      Contrary to the State’s contention, there is no Alabama precedent stating

that when a capital offender has numerous IQ test scores during the developmental

period, and one of those IQ scores is over 70, then the court cannot find the

offender mentally retarded. The district court considered all of Thomas’s IQ

scores from the developmental period— 56 at age nine, 68 at age thirteen, 64 at

                                         17
age fourteen, and 77 at age eighteen (shortly after the end of the developmental

period), and concluded that Thomas had proven, by a preponderance of the

evidence, that he suffered subaverage intellectual functioning during his

developmental period. Because one or more of these raw scores, excluding the

post-eighteen age score, clearly indicate mental retardation, and the mean of these

three scores fell below the 70 score cutoff, the district court did not clearly err in

its finding. There is no Alabama case law stating that a single, or even multiple,

raw IQ score above 70 automatically defeats an Atkins claim when the totality of

the evidence (scores) indicates that a capital offender suffers subaverage

intellectual functioning.

      b. Failure to consider the IQ score of 77

      The State argues that the district court’s decision not to consider Thomas’s

highest IQ raw score of 77 is clearly erroneous. The State contends that this score

was an accurate indication of Thomas’s upward trend in intellectual functioning.

The argument is not compelling. Even considering the IQ raw score of 77, taken

after the termination of Thomas’s developmental period, the mean of Thomas’s IQ

scores during the developmental period is sufficiently below 70. See Holladay,

555 F.3d at 1357–58 (district court found significant limitations in intellectual

functioning based on multiple IQ scores, the mean of which was below 70). Thus,

                                           18
the district court did not err because, even considering this high score, Thomas

still showed, by a preponderance of the evidence, that he had significant

subaverage intellectual functioning during the developmental period.

      c. Application of Flynn effect

      The State takes issue with the district court’s employment of the Flynn

effect. The question is not whether the district court’s application of the Flynn

effect to lower Thomas’s IQ scores was mandatory, but whether the district court’s

application of it in this case was clearly erroneous. We cannot say that it was.

      At the hearing, all the experts acknowledged that the Flynn effect is a

statistically—proven phenomenon, although no medical association recognizes its

validity. Numerous courts recognize the Flynn effect. See e.g., Walker v. True,

399 F.3d 315, 322–23 (4th Cir. 2005) (stating that on remand, the district court

should consider the Flynn effect evidence to determine if petitioner’s IQ score is

overstated); United States v. Davis, 611 F. Supp. 2d 472, 486–88 (D. Md. 2009)

(district court considered Flynn effect in evaluation of defendant’s intellectual

functioning); People v. Superior Court, 28 Cal. Rptr. 3d 529, 558–59 (Cal. Ct.

App. 2005), overruled on other grounds by 155 P.3d 259 (Cal. 2007) (recognizing

that Flynn effect must be considered); State v. Burke, No. 04AP-1234, 2005 WL

3557641, at *13 (Ohio Ct. App. Dec. 30, 2005) (stating that court must consider

                                         19
evidence on Flynn effect, but it is within court’s discretion whether to include it as

a factor in the IQ score). There are also courts that do not recognize the Flynn

effect. See In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007) (noting that circuit

has not recognized Flynn effect as scientifically valid); Berry v. Epps, No.

1:04CV328-D-D, 2006 WL 2865064, at *35 (N.D. Miss. Oct. 5, 2006) (refusing to

consider Flynn effect); Bowling v. Commonwealth, 163 S.W.3d 361, 374–75 (Ky.

2005) (noting that because Kentucky statute unambiguously sets IQ score of 70 as

cutoff, courts cannot consider Flynn effect or SEM). Because there is no uniform

consensus regarding the application of the Flynn effect in determining a capital

offender’s intellectual functioning, and there is no Alabama precedent specifically

discounting a court’s application of the Flynn effect, we cannot say that the district

court clearly erred in applying it. The district court considered the Flynn effect

just as it considered the other evidence in the record presented by the parties

regarding Thomas’s intellectual functioning. Moreover, even without application

of the Flynn effect, Thomas has still shown by a preponderance of the evidence

that he has significantly subaverage intellectual functioning. Hence, we are not

left with a definite and firm conviction that the district court erred in its finding.

      d. Application of SEM




                                           20
      The State also argues that the district court’s utilization of the SEM was

clearly erroneous because the court did not consider it as a plus or minus five point

range indicating a confidence level in the IQ scores; instead, the district court used

it as a five point downward adjustment in Thomas’s IQ scores. Even if the district

court improperly employed the SEM, it did not clearly err in its application. First,

the parties stipulated at the hearing that the SEM was plus or minus five points.

Second, Alabama courts have adopted the “most liberal definition of mental

retardation employed by those states that bar the execution of the mentally

retarded,” Burgess v. State, 962 So. 2d 272, 299 (Ala. Crim. App. 2005), and

Alabama courts have acknowledged the application of the SEM. See Byrd v.

State, ___ So. 3d ___, No. CR-07-0113, 2009 WL 1164985, at *3 (Ala. Crim.

App. May 1, 2009) (noting that the psychologist testified that there is a 95%

confidence interval regarding the capital offender’s IQ scores). Third, the district

court adjusted Thomas’s scores downward based on its finding that Thomas had

significant deficits in adaptive behavior. Fourth, in this case, five of the eight raw

IQ scores for Thomas were below 70, and the district court adjusted his scores

downward based on the preponderance of the evidence that indicated that the

higher IQ scores may have been overstated. Lastly, even if the district court

improperly applied the SEM, Thomas’s total mean raw IQ score was below 70, the

                                          21
cutoff for intellectual functioning as stated by Alabama case law. In sum, the

district court exercised its discretion to consider the SEM, as it did with the Flynn

effect, and we cannot say that this was clear error.

      2. Adaptive Behavior

      The State takes issue with the district court’s finding that Thomas showed,

by a preponderance of the evidence, that he had significant deficits in adaptive

functioning before his eighteenth birthday. The district court relied upon records

maintained by public schools, DPS social worker records, the recollections of

persons who were acquainted with Thomas during his youth, the testimony of

experts at the evidentiary hearing, and the reports of experts to conclude that

Thomas had pronounced deficits in five areas: functional academics, work,

social/interpersonal skills, home living, and self-direction. The record supports

the district court’s findings, and the State cannot show that the district court

clearly erred in its determination regarding Thomas’s adaptive behavior during the

developmental period.

      David Siebert, Thomas’s high school special education teacher, testified that

Thomas was definitely mentally retarded, that he could not follow complicated

directions, and that he required repetition before he retained information. Drs.

Salekin and Marson testified that Thomas could not have survived in a regular

                                          22
classroom. Moreover, Thomas’s IQ scores during his developmental period

placed him in the mildly mentally retarded range. Even the State’s expert, Dr.

McClaren, stated that all of Thomas’s IQ scores prior to age eighteen are

consistent with mental retardation. [R. 125 Vol. II at 238.] There is no clear error

in the district court’s finding that Thomas had a pronounced deficit in functional

academics during his developmental period.

      In challenging the district court’s finding that Thomas had pronounced

deficits in the work area, the State contends that Thomas worked at a farm

performing manual labor and driving a tractor and that Thomas held several other

menial jobs. However, the experts testified that these skills are consistent with

individuals with mild mental retardation. Even the State’s expert, Dr. McClaren,

stated that mentally retarded persons can drive cars and hold menial jobs. Thus,

the district court’s finding regarding Thomas’s work deficit is not clearly

erroneous.

      The State claims that Thomas’s ability to manipulate people shows that he

did not have substantial limits in his social/interpersonal skills. The State relies

heavily upon the testimony of DPS social worker Carole Russell, who referenced

an incident when Thomas, in the presence of his foster mother, told them he did

not want to have contact with his biological mother, but when he was alone with

                                          23
the case worker, told her that he did. The State also relies upon the testimony of

Thomas’s teacher who stated that Thomas seemed to get along well with his

fellow classmates and the record evidence that Thomas played baseball and spoke

of enlisting in the Navy.

      The record indicates to the contrary. Wayne Ridgeway testified that

Thomas did not have girlfriends and did not do things other boys his age did.

Carole Russell also stated that Thomas was immature and socially behind his

peers. Thus, contrary to the State’s assertion, we are not left with the definite and

firm conviction that the district court erred in finding that Thomas suffered

substantial limitations in his social and interpersonal skills during his

developmental period.

      The State contends that the district court also clearly erred in finding that

Thomas had limitations in his ability to live by himself and function

independently. Again, the record is to the contrary. Dr. Marson testified that

Thomas always needed an adult to assist him with his needs. Moreover, several

witnesses testified that Thomas could neither live independently nor handle

finances. The State’s attempt to challenge the district court’s finding regarding

Thomas’s limitations in self-direction also fails. The record indicates that Thomas

was immature both socially and mentally, that he required lots of repetition in

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order to follow instructions, and that he could not live independently. The State

cannot show that the district court’s finding that Thomas suffered substantial

limitations in self-direction is clearly erroneous.

                                 V. CONCLUSION

      The district court conducted a comprehensive examination of the record

evidence and assessed the credibility of the experts and acquaintances who

testified at the Atkins evidentiary hearing. The district court wrote a very lengthy,

detailed opinion finding that Thomas had shown by a preponderance of the

evidence that he is mentally retarded and ineligible for execution. Having

conducted a thorough review of the record, we cannot say that the district court’s

finding is clearly erroneous. Accordingly, we affirm the district court’s grant of

sentencing phase habeas relief to Thomas.

      AFFIRMED.




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