     Case: 09-70037 Document: 00511276323 Page: 1 Date Filed: 10/27/2010




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                 October 27, 2010

                                 No. 09-70037                     Lyle W. Cayce
                                                                       Clerk

WILLIAM WILEY,

                                           Petitioner-Appellee
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

                                           Respondent-Appellant




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


Before KING, JOLLY, and DAVIS, Circuit Judges.
KING, Circuit Judge:
      This is a capital case in which the district court granted habeas relief in
favor of Petitioner-Appellee William Wiley, holding that Wiley is ineligible for
a death sentence because he is mentally retarded as contemplated by Atkins v.
Virginia, 536 U.S. 304 (2002).     The State of Mississippi, acting through
Respondent-Appellant Christopher B. Epps, appeals. We conclude that the
district court did not clearly err in finding Wiley mentally retarded.        We
therefore AFFIRM the district court’s judgment.
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                  I. Factual and Procedural Background
      In 1981, Wiley shot and killed store owner J.B. Turner during the course
of a robbery in DeSoto County, Mississippi. He also shot Turner’s daughter,
leaving her seriously injured and blind. Wiley was charged with capital murder
and was convicted in 1982. His conviction was affirmed on direct appeal, but his
death sentence was vacated and the case was remanded for a new sentencing
hearing because of improper comments that had been made by the prosecutor.
See Wiley v. State, 449 So. 2d 756, 763 (Miss. 1984). Wiley was again sentenced
to death in 1984, and the sentence was upheld on direct appeal. See Wiley v.
State, 484 So. 2d 339, 355 (Miss. 1986). In a subsequent federal habeas petition,
we vacated the death sentence on the ground that the state trial court had
improperly instructed the second sentencing jury. See Wiley v. Puckett, 969 F.2d
86, 91 (5th Cir. 1992). In 1995, Wiley was sentenced to death for the third time.
The sentence was again affirmed on direct appeal, see Wiley v. State, 691 So. 2d
959, 960 (Miss. 1997), and Wiley’s subsequent efforts for state post-conviction
relief were unsuccessful.
      Wiley again sought federal habeas relief in a 28 U.S.C. § 2254 petition. In
2003, while his federal petition was pending, Wiley filed in state court a
successive habeas application based on the United States Supreme Court’s
decision in Atkins. Wiley claimed that he is mentally retarded and therefore
ineligible for a death sentence.
      In support of his state habeas application, Wiley relied in part on an
affidavit from Dr. David Grant, who administered to Wiley in 2003 the Wechsler
Adult Intelligence Scale-Third Edition (WAIS-III). Dr. Grant reported from this
test that Wiley’s Verbal IQ was 73, his Performance IQ was 68, and his full-scale
IQ was 68, placing Wiley within the mentally retarded range for intellectual
functioning. Dr. Grant also indicated that Wiley had adaptive behavior deficits
in at least two defined areas and that Wiley’s mental retardation manifested by

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age eighteen. In addition to Dr. Grant’s testing, Wiley had also been tested in
1987 and 1994 by Dr. Billy Fox, who administered the Wechsler Adult
Intelligence Scale-Revised (WAIS-R), an earlier version of the Wechsler test. Dr.
Fox’s testing had revealed full-scale IQ scores of 73 and 78, respectively. Dr. Fox
indicated in a 1987 affidavit that Wiley was borderline mentally retarded. Dr.
Grant opined that Wiley’s 1987 and 1994 scores were consistent with his 2003
performance, and that Wiley was mildly mentally retarded. In a 2004 affidavit,
Dr. Fox also agreed that Wiley’s 2003 score on the WAIS-III was consistent with
his 1987 and 1994 WAIS-R scores. Dr. Fox explained that the consistency was
due to the margin of error for the tests, the Flynn effect, and the practice effect.1
Wiley also submitted with his state application his school records.
       The Mississippi Supreme Court declined to grant Wiley an evidentiary
hearing on his Atkins claim because it determined that he failed to present a
prima facie case. The court examined the record and held that the evidence did
not support Wiley’s claim. See Wiley v. State, 890 So. 2d 892, 897–98 (Miss.
2004). Instead, the court determined that, at best, Wiley’s experts had shown
only borderline mental retardation. Id. at 898. The court placed particular
emphasis on several affidavits in the record that had been submitted by Wiley’s
family and friends as mitigating evidence during the earlier state court
proceedings. In the words of the state court, those affidavits indicated that
Wiley “was a good husband, father, son and grandson, that he was a good,
reliable worker with steady employment at various employers, that he



       1
         The so-called “Flynn effect” is a phenomenon positing that, over time, standardized
IQ test scores tend to increase with the age of the test without a corresponding increase in
actual intelligence in the general population. Those who follow the Flynn effect adjust for it
by deducting from the IQ score a specified amount for each year since the test was normalized.
See In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006). Dr. Fox opined that Wiley’s score of
78 on the 1994 WAIS-R reflected thirteen years of inflation since the test was originally
standardized and was “unreliably high.” The “practice effect” holds that a subject who is
tested more than once generally will do better on subsequent tests than on the first test.

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performed household maintenance, repaired automobiles, babysat children, ran
errands, supported his family and did numerous other things.” Id. at 896. The
court discounted Wiley’s school records as evidence of retardation because in
addition to showing poor performance they also showed a poor attendance
record, and there was no indication that Wiley had ever attended special
education classes. Id. The court noted that Wiley had been in the Army until
he injured his leg and was honorably discharged. Id. The court further noted
that Wiley had not completed a test to rule out malingering. Id. at 898. It
concluded that the “overwhelming weight of the evidence” showed Wiley was not
mentally retarded. Id.
      Wiley filed a motion for rehearing, submitting a supplemental affidavit
from Dr. Grant addressing the Mississippi Supreme Court’s opinion. Dr. Grant
indicated that the court was incorrect to rely on the affidavits from Wiley’s
friends and family as proof that Wiley was not mentally retarded. Contrary to
the court’s holding, Dr. Grant stated that it is widely accepted in the medical
community that mentally retarded persons are often able to perform basic life
functions and tasks, such as holding jobs, driving cars, and supporting their
families.   Dr. Grant reiterated his opinion that, to a reasonable degree of
psychological certainty, Wiley fell within the mentally retarded range, and the
retardation manifested before age eighteen. The state court denied the motion.
      Wiley then raised his Atkins claim in federal court by amending his § 2254
petition.   Wiley claimed that Dr. Grant’s affidavits had been sufficient to
warrant an evidentiary hearing in state court, and that the Mississippi Supreme
Court failed to follow its own precedent and procedures by denying him a
hearing. Wiley maintained that the evidence showed he was mentally retarded.
      The federal district court initially denied Wiley’s Atkins claim but
subsequently withdrew its decision after Wiley filed a motion to alter or amend
the judgment under Federal Rule of Civil Procedure 59. The district court

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ordered additional briefing and conducted an evidentiary hearing. The court
appointed Dr. C. Gerald O’Brien to examine Wiley. Wiley was also examined by
his own expert, Dr. Victoria Swanson, and by an expert obtained by the State,
Dr. Gilbert S. Macvaugh, III. At the evidentiary hearing, Drs. O’Brien and
Swanson both testified that Wiley was mentally retarded, but Dr. Macvaugh
reached a contrary conclusion. The district court issued a written opinion in
which it first determined that the Mississippi Supreme Court had failed to follow
its own precedent for determining whether a defendant should obtain a hearing
on an Atkins claim, and that the failure to permit a hearing had denied Wiley
due process. The district court determined that it was therefore not bound to
afford deference to the state court’s resolution of Wiley’s claim. The district
court determined from a preponderance of the evidence that Wiley was mentally
retarded. The court held that Wiley was thus entitled to have his death sentence
vacated pursuant to Atkins.
       The State now appeals.2            It contends that Wiley failed to meet the
requirements for an evidentiary hearing in state court, and therefore the federal
district court erroneously concluded that the state court denied Wiley due
process. Under the State’s view, the district court should not have granted
Wiley’s Rule 59 motion or conducted an evidentiary hearing and should have
deferred to the Mississippi Supreme Court’s holding that Wiley is not mentally
retarded. The State further argues that the district court’s conclusion that Wiley
is mentally retarded is incorrect because Wiley failed to show in the federal
hearing that he has subaverage intellectual ability and adaptive functioning



       2
         Although the district court’s judgment denied Wiley federal habeas relief on numerous
additional claims challenging his conviction, Wiley did not file a notice of appeal or seek a
Certificate of Appealability (COA) as to those additional claims. See 28 U.S.C. § 2253(c)(1);
FED . R. APP . P. 22(b)(1). Thus, the only issue before us in the instant appeal is Wiley’s Atkins
claim. Because the State is the appellant on this issue, no COA is required. See DiLosa v.
Cain, 279 F.3d 259, 262 n.1 (5th Cir. 2002) (citing FED . R. APP . P. 22(b)(3)).

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deficits, both of which manifested before the age of eighteen. Before turning to
the district court’s conclusion on metal retardation, we first set out the standard
of review and the requirements under Atkins; we then consider the district
court’s grant of an evidentiary hearing and its determination that no deference
was due to the state court.
                              II. Standard of review
      In an appeal from the district court’s grant of habeas relief, we review
issues of law de novo and findings of fact for clear error. Fratta v. Quarterman,
536 F.3d 485, 499 (5th Cir. 2008). Wiley’s habeas petition is governed by the
standards of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2254, because he filed his Atkins claim well after the effective date of
the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 324–26 (1997). Under those
standards, a federal court may not grant a petitioner habeas relief on a claim
that was adjudicated on the merits by the state court unless the state court
decision was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or (2) “was based
on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d); see Pierce v. Thaler, 604 F.3d
197, 200 (5th Cir. 2010).
      “A state court decision is ‘contrary to’ clearly established federal law if it
applies a rule that contradicts the governing law set forth in Supreme Court
cases . . . or if the state court decide[s] a case differently than the United States
Supreme Court previously decided a case on a set of nearly identical facts.”
Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010) (internal quotation marks and
citations omitted). A state court’s decision is an unreasonable application of
clearly established federal law if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.” Gregory
v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (internal quotation marks and

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citations omitted). An unreasonable application of federal law is different from
an incorrect or erroneous application of the law. Rogers v. Quarterman, 555 F.3d
483, 488–89 (5th Cir. 2009) (citing Williams v. Taylor, 529 U.S. 362, 409–10
(2000)).
                         III. Atkins and mental retardation
       The Supreme Court held in Atkins that the execution of mentally retarded
persons constitutes cruel and unusual punishment in violation of the Eighth
Amendment. See Atkins, 536 U.S. at 321. The Atkins Court did not define who
is mentally retarded for purposes of eligibility for a death sentence but it
referred generally to two definitions of mental retardation from the American
Association on Mental Retardation (AAMR) and the American Psychiatric
Association (APA).3 Id. at 309 n.3. Clinical definitions of mental retardation


       3
           The AAMR definition of mental retardation cited in the Atkins decision is as follows:

       Mental retardation refers to substantial limitations in present functioning. It
       is characterized by significantly subaverage intellectual functioning, existing
       concurrently with related limitations in two or more of the following applicable
       adaptive skill areas: communication, self-care, home living, social skills,
       community use, self-direction, health and safety, functional academics, leisure,
       and work. Mental retardation manifests before age 18.

AAMR, MENTAL RETARDATION : DEFINITION , CLASSIFICATION , AND SYSTEMS OF SUPPORTS 5 (9th
ed. 1992) (AAMR 9th ed.).

       The APA defines mental retardation similarly:

       The essential feature of Mental Retardation is significantly subaverage general
       intellectual functioning (Criterion A) that is accompanied by significant
       limitations in 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 (Criterion B). The onset must occur before age 18 years
       (Criterion C).

AM ERICAN PSYCHIATRIC ASSOCIATION , DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 41 (4th ed. 2000). This definition is often referred to as the DSM-IV-TR definition.

       In 2002, the AAMR modified its definition to read:

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typically require subaverage intellectual functioning, significant limitations in
adaptive skills, and manifestation before the age of eighteen. Id. at 318. Rather
than adopt a definitive meaning of mental retardation, however, the Court left
“‘to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.’”                      Id. at 317
(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17 (1986)).
         In accord with Atkins, the Mississippi Supreme Court set the standard for
adjudging mental retardation in Mississippi in Chase v. State, 873 So. 2d 1013,
1028–29 (Miss. 2004), which it decided three months before it decided Wiley’s
case.4       Under Chase, the trial court is to make the determination about
retardation based on a preponderance of the evidence after an evidentiary
hearing. Chase, 873 So. 2d at 1028–29. A defendant may not be adjudged
retarded unless he presents, at a minimum, an expert opinion, to a reasonable
degree of certainty, that (1) “[t]he defendant is mentally retarded, as that term
is defined by the American Association on Mental Retardation and/or The
American Psychiatric Association”; and (2) “[t]he defendant has completed the
Minnesota Multi phasic Personality Inventory-II (MMPI-II) and/or other similar
tests, and the defendant is not malingering.” Id. at 1029.
         The Mississippi Supreme Court also set out in Chase the standard for
determining whether a defendant is entitled to an evidentiary hearing on his
mental retardation claim. The court held that a hearing would not be granted



         Mental retardation is a disability characterized by significant limitations both
         in intellectual functioning and in adaptive behavior as expressed in conceptual,
         social, and practical adaptive skills. This disability originates before age 18.

AAMR, MENTAL RETARDATION : DEFINITION , CLASSIFICATION ,         AND   SYSTEM S   OF   SUPPORTS 1
(10th ed. 2002) (AAMR 10th ed.).
         4
         Because the Mississippi Legislature has not addressed the issue of mental retardation
in the context of death-penalty litigation, the Chase standard is controlling. See Doss v. State,
19 So. 3d 690, 709–10 (Miss. 2009).

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unless a defendant files a motion to which he attaches an affidavit from at least
one qualified expert “who opines, to a reasonable degree of certainty, that: (1) the
defendant has a combined Intelligence Quotient (‘IQ’) of 75 or below, and; (2) in
the opinion of the expert, there is a reasonable basis to believe that, upon further
testing, the defendant will be found to be mentally retarded, as defined herein.”
Id. The court explained that because the cutoff for the intellectual functioning
prong of the test for mental retardation is 75, defendants with an IQ of 76 or
above do not qualify for Atkins protection. Id. at 1029 n.20. For defendants who
were convicted before Atkins and Chase were decided, such as Wiley, the
required expert affidavit may be submitted with the defendant’s application for
post-conviction relief. Id. at 1029–30.
      As noted above, Wiley’s position is that the affidavit he submitted from Dr.
Grant with his state application for post-conviction relief satisfied the Chase
standards to at least obtain an evidentiary hearing in state court. The district
court agreed, and it held that the denial of a hearing in state court was a due
process violation such that no deference was due to the state court decision. We
agree with the district court, as we now explain.
                    IV. Deference and a federal hearing
      When a petitioner has properly presented his Atkins claim in state court,
and that court rejects it on the merits, we ordinarily apply AEDPA deference to
the state court’s judgment on legal and factual grounds. Moore v. Quarterman,
533 F.3d 338, 341 n.2 (5th Cir. 2008) (en banc); see also 28 U.S.C. § 2254(d).
There is no dispute in this case that the Mississippi Supreme Court adjudicated
Wiley’s Atkins claim on the merits. But the question of affording deference to
the state court’s adjudication in this case is intertwined with the alleged due
process violation by the state court’s failure to conduct a hearing.
      It is axiomatic that infirmities in state habeas proceedings under state law
are not a basis for federal relief. See Moore v. Quarterman, 369 F.3d 844, 846

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(5th Cir. 2004). Indeed, we have also held that a full and fair hearing in state
court is not a prerequisite to applying the AEDPA’s deferential scheme. See
Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001). The Supreme Court has
recognized, however, that a state court’s unreasonable application of federal law,
as a predicate for adjudicating a defendant’s claim, may undermine the AEDPA
deference given to the state court adjudication. See Panetti v. Quarterman, 551
U.S. 930, 953 (2007) (“When a state court’s adjudication of a claim is dependent
on an antecedent unreasonable application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim
without the deference AEDPA otherwise requires.”).
      Thus, when a petitioner makes a prima facie showing of mental
retardation, a state court’s failure to provide him with an opportunity to develop
his claim deprives the state court decision of the deference ordinarily due under
the AEDPA. Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007). As we
explained in Rivera, even though Atkins left to the states the job of
implementing procedures for determining who is mentally retarded, “it was
decided against the backdrop of the Supreme Court’s and lower court’s due
process jurisprudence.” Id. That jurisprudence included Ford v. Wainwright,
477 U.S. 399 (1986), which required a hearing in accord with fundamental
fairness and procedural due process for defendants who make a showing of
ineligibility for a death sentence due to insanity. Id. (citing Ford, 477 U.S. at
424 (Powell, J., concurring in part and concurring in the judgment)).
      We held in Rivera that the Texas Court of Criminal Appeals acted
unreasonably by failing to conduct a full and fair evidentiary hearing in light of
the petitioner’s prima facie case of mental retardation. Id. at 357–58. We were
guided by the Supreme Court’s decision in Panetti, where the Court held that
after a petitioner made a substantial showing of incompetency the state court’s
failure to provide the procedures elaborated on in Ford constituted an

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unreasonable application of clearly established federal law. Panetti, 551 U.S. at
948. Moreover, the state court’s error deprived its decision of AEDPA deference.
See id. (“As a result of this error, our review of petitioner’s underlying
incompetency claim is unencumbered by the deference AEDPA normally
requires.”).
       The teachings of Panetti and Rivera inform our conclusion in Wiley’s case.
We must decide whether Wiley presented a prima facie case of retardation, and
was therefore entitled to a hearing. If he did, but the state court denied him the
opportunity to develop his Atkins claim, the state court decision is not entitled
to deference. In order to decide this question, we first closely examine the
State’s argument that Wiley was not entitled to a hearing under state law, and
we then consider the question of deference to the state court decision in light of
the procedure the court applied in Wiley’s case.
       Although Wiley was convicted before Atkins was decided, and although he
filed his state post-conviction application before the Mississippi Supreme Court
established the state’s requirements for obtaining an Atkins hearing in Chase,5
Wiley’s affidavit from Dr. Grant (as well as other evidence) on its face met the
Chase requirements for an evidentiary hearing, and the State conceded as much
at oral argument.6




       5
        Wiley filed his Atkins claim in state court on June 19, 2003. The Mississippi Supreme
Court decided Chase on May 20, 2004, and it adjudicated Wiley’s claim on August 26, 2004.
       6
          Dr. Grant stated that Wiley’s IQ was below the threshold of 75 and that Wiley was
mentally retarded. See Chase, 873 So. 2d at 1028. Dr. Grant specifically found that Wiley’s
IQ was 68. He also concluded that Wiley had adaptive behavior deficits in communication
skills, functional academic skills, and health and safety skills based on numerous tests
administered to Wiley. Dr. Grant further concluded that Wiley had the “ability to learn and
perform simple tasks, but with significantly impaired reasoning and problem solving skills.”
Dr. Grant concluded from the consistent poor performance reported in Wiley’s school records
that Wiley’s mental retardation manifested prior to age eighteen.

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       The State contends, however, that Wiley was not entitled to a hearing
under Chase because Wiley’s pre-Atkins tests, which showed IQs of 73 and 78,
included at least one score above the threshold for a mental retardation finding.
It argues that under state law, as interpreted by the Mississippi Supreme Court,
no defendant may obtain an evidentiary hearing if there was any test score
above 75.      It asserts that Wiley was treated no differently from any other
defendant making an Atkins claim, and therefore he suffered no deprivation of
due process by being denied a hearing.
       In support of its argument that state law precludes an Atkins hearing
when any single test score is above the threshold of 75, the State relies primarily
on State v. Branch, 882 So. 2d 36 (Miss. 2004). In that case, the defendant’s
childhood IQ score at age five was 68, but post-arrest testing showed an IQ of 84.
After noting the absence of evidence about adaptive skills deficits, the court held
that Branch failed to make a prima facie showing of mental retardation. Id. at
51. Wiley’s case is not substantially similar to Branch. Unlike Wiley, the
defendant in Branch relied on tests done seventeen years earlier when he was
a child, while a court-ordered psychologist who tested him after arrest said he
had an IQ well above the threshold for mental retardation. See id. The court
also found significant the absence of evidence concerning adaptive skills
functioning. Id. In contrast, Wiley presented evidence of both recent and past
IQ testing showing deficient intellectual functioning, as well as adaptive skills
deficits. Branch does not present a situation like Wiley’s.7

       7
          In its brief, the State also relies on Scott v. State, 878 So. 2d 933 (Miss. 2004) (Scott
I), a direct appeal, where the defendant presented evidence that his IQ score from childhood
was 48 and that his post-arrest IQ score was 60. His own expert questioned the validity of the
childhood score, however, and testified that he believed Scott was actually functioning at a
much higher level. Id. at 948. The state court held that the evidence was insufficient to
require an evidentiary hearing, but it noted that if the defendant presented the required
evidence and affidavits along with an application for post-conviction relief (PCR), a hearing
could be warranted. Id. Scott, like Wiley, subsequently did provide additional affidavits and
evidence in a “lengthy” PCR application, and he was granted a hearing. See Scott v. State, 938

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       Contrary to the State’s argument that a single IQ score may deny a
defendant an Atkins hearing under state law, the Mississippi Supreme Court’s
decision in Wiley’s case to deny a hearing and decide the mental retardation
question appears to be an anomaly. In Chase itself, the Mississippi Supreme
Court specifically recognized the due process underpinings at the core of an
Atkins hearing, and the importance of a hearing even in the face of minimal or
controverted evidence. See Chase, 873 So. 2d at 1020–21 (noting that although
the State had raised “valid points” in contesting the defendant’s mental
retardation claim, its task was “to determine whether Chase is entitled to a
hearing, rather than weigh the credibility of evidence to be presented at that
hearing” and that because both the Atkins decision and its guidance in Chase
were unavailable to the defendant, due process required it “to allow the motion
to be filed in the trial court, enabling Chase and the State to fully present the
trial judge evidence as required by Atkins”). Furthermore, decisions of the state
court before and after Chase undermine the State’s position that a single IQ
score will automatically disqualify a defendant from an Atkins hearing.
       For example, in Thorson v. State, 994 So. 2d 707, 715 (Miss. 2007), which
was decided after Chase and is very similar to Wiley’s case, the record showed
that the defendant’s IQ around the time of the murder offense was 77—above
the Chase threshold. At Thorson’s trial, a doctor testified that a subsequent test
showed the defendant’s IQ to be 74. The doctor also testified that Thorson was
“borderline mentally retarded.” Id. At sentencing, the same doctor testified that
Thorson was “mentally handicapped” but not to the degree of the mentally
retarded. Id. Nevertheless, in connection with Thorson’s Atkins claim in his



So. 2d 1233, 1238 (Miss. 2006) (Scott II). In neither Scott I nor Branch did the defendant
present an affidavit consistent with Chase that established that the defendant had subaverage
intellectual functioning and adaptive skills deficits, as Wiley did in this case.


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application for post-conviction relief, Thorson, like Wiley, submitted an affidavit
from another doctor who opined that Thorson’s IQ was 70, that he had adaptive
behavior deficits, and that the onset of the deficits occurred before age eighteen.
Id. at 715–16. The Mississippi Supreme Court held that Thorson “met the
requirements established . . . in Chase” and remanded the matter to the trial
court for an evidentiary hearing. Id. at 716.
       The sequence of IQ test scores in Thorson mirrors the sequence in Wiley’s
case. In both instances the defendant had two reported IQ scores before Atkins,
one above Mississippi’s threshold of 75 and one below, and one post-Atkins IQ
score that was below the threshold. In both cases, the defendant submitted an
expert’s affidavit opining that he met the definition for a mentally retarded
person. The Mississippi Supreme Court granted Thorson a hearing on facts
nearly indistinguishable from Wiley’s case. The court also granted a hearing in
another case involving multiple IQ scores decided before Chase in Russell v.
State, 849 So. 2d 95, 148 (Miss. 2003). There the defendant received a hearing
even though one of his two IQ scores, which were 68 and 76, was above the
threshold for mental retardation. In light of these cases, the State’s argument
that Wiley was treated no differently from any other defendant with several IQ
test scores who makes an Atkins claim is seriously undermined.8


       8
          A survey of the Mississippi case law shows that the Mississippi Supreme Court has
routinely granted evidentiary hearings as long as the Chase requirements are met even in the
face of weak or controverted evidence. See, e.g., Doss v. State, 882 So. 2d 176, 193 & n.1 (Miss.
2004) (granting the petitioner an evidentiary hearing despite “numerous legitimate questions
concerning [the petitioner’s] claim” and noting in the face of inconsistencies in the evidence
“that is precisely the procedure established by this Court in Chase, which allows the State, as
well as Doss, to offer evidence in support of their respective arguments”); Smith v. State, 877
So. 2d 369, 398 (Miss. 2004) (where petitioner’s evidence showed an IQ of 75 at age 13, but a
psychologist opined that the petitioner’s education records suggested only borderline mental
retardation, the state supreme court held that “[n]otwithstanding the dearth of evidence,” it
could not “constitutionally deny [the petitioner] the opportunity to present the issue of his
possible mental retardation to the trial court” in an evidentiary hearing); Carr v. State, 873
So. 2d 991, 1007 (Miss. 2004) (granting a hearing “[n]otwithstanding the evidence,” which
consisted of minimal testimony from a doctor at sentencing that the petitioner was mildly

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                                       No. 09-70037

       The State also argues at some length that Wiley’s single IQ score of 78 in
1994 automatically disqualified him from an evidentiary hearing unless that
score is reduced by the Flynn effect. But it contends that neither the Mississippi
Supreme Court nor this court has ever recognized the Flynn effect as
scientifically valid. See In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007);
Salazar, 443 F.3d at 433 n.1. The Mississippi Supreme Court made no mention
of the Flynn effect, and we therefore need not address what, if any, impact it has
in this case. Even without considering the Flynn effect, Wiley had two IQ scores
that fell below the threshold established by the Mississippi Supreme Court to
obtain an evidentiary hearing. We are not prepared to hold, as the State would
have it, that one IQ score, by itself, conclusively precludes an evidentiary
hearing when the Mississippi Supreme Court did not base its decision on that
fact; there were other test scores below the mental retardation threshold; the
state court has otherwise followed a fairly liberal policy in granting evidentiary
hearings, even in the face of minimal evidence and multiple IQ scores; and at
least one expert, Dr. Grant, provided a specific opinion in accord with Chase that
Wiley is mentally retarded. The State’s contention that Wiley was not entitled
to a hearing under Chase is therefore unavailing.
       This does not end the inquiry, however, as we must next consider whether
the state court decision was nevertheless entitled to AEDPA deference despite
Wiley’s satisfaction of the requirements for an evidentiary hearing. The state
court in this case apparently decided that it should adjust the standards that it
had established in Chase.          The court stated that “evolving standards” for
determining who is mentally retarded required it “to expand on the procedure
to be used in reaching a determination of mental retardation[.]” Wiley, 890




retarded and testimony from a school counselor that problems at school were likely from a lack
of attendance, without any discussion of specific IQ test scores).

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                                   No. 09-70037

So. 2d at 897. The court held that it would therefore “consider the entire record
before it in deciding whether to grant an Atkins hearing.” Id.
      We will ordinarily defer to a state court’s interpretation of its own law, see
Woodfox v. Cain, 609 F.3d 774, 816 (5th Cir. 2010), and we find no fault in the
state court’s use of evolving standards to make the determination whether to
grant a hearing, or its consideration of the entire record.         A state court’s
precedent certainly is not set in stone, and the court must be able to change its
rules if, in its judgment, it is advisable to do so. Indeed, state courts are granted
much leeway in determining when a hearing is required, but in determining
whether to give deference to the state court’s decision here, we must consider
whether that court’s application of its own standards and precedent resulted in
a denial of due process under the federal Constitution. See also Panetti, 551 U.S.
at 950–51 (“If [the failure to provide a competency hearing] did, in fact,
constitute a violation of the procedural framework Texas has mandated for the
adjudication of incompetency claims, the violation undermines any reliance the
State might now place on Justice Powell’s assertion that ‘the States should have
substantial leeway to determine what process best balances the various interests
at stake.’”) (quoting Ford, 477 U.S. at 427). We conclude from our review of the
relevant case law and the record before the state court that the state court’s
departure from its own Chase standards in the face of Wiley’s evidence of
retardation failed to provide Wiley with the minimum constitutional protections.
      It is evident from the Mississippi case law that up until the Mississippi
Supreme Court decided Wiley’s case, the court remanded Atkins claims to the
trial court for an evidentiary hearing on the retardation question when the
Chase requirements (or what became the Chase requirements) were met. The
court has continued to follow this procedure even after deciding Wiley’s case.
But in the instant case, the court unexpectedly proceeded to a merits-based
determination of factual questions and essentially required Wiley to prove his

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                                  No. 09-70037

claim at the prima facie stage, pretermitting the opportunity for the hearing and
the fuller development of the evidence that Chase contemplated.
      By adjudicating Wiley’s mental retardation claim without telling him that
it would do so, the state court implicated the “core due process concepts” of notice
and foreseeability. See Rogers v. Tennessee, 532 U.S. 451, 459 (2001). The state
court applied an unexpectedly more stringent process to Wiley without notice,
contrary to its announced procedure in numerous cases. Cf. Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964) (“When a state court overrules a consistent
line of procedural decisions with the retroactive effect of denying a litigant a
hearing in a pending case, it thereby deprives him of due process of law . . . .”);
see also Janecka v. Cockrell, 301 F.3d 316, 324 n.11 (5th Cir. 2002) (noting that
due process is implicated where retroactive judicial alterations of common law
doctrines are “‘unexpected and indefensible by reference to the law which had
been expressed prior to the conduct at issue’” (quoting Rogers, 532 U.S. at 462));
Talavera v. Wainwright, 468 F.2d 1013, 1015–16 (5th Cir. 1972) (holding that
state supreme court’s retrospective application of a state severance statute
rather than its less stringent interpretation of the prior rule in effect at time of
trial was a violation of due process). Had the state court followed its established
procedures and remanded Wiley’s case to the trial court for a hearing, or had it
given notice to Wiley that his pleading was deficient and that it intended to
adjudicate fully the Atkins claim, Wiley could have amended his state habeas
application or supplemented his claim with additional evidence. See, e.g., Bishop
v. State, 882 So. 2d 135, 151 (Miss. 2004) (holding on direct appeal that
defendant who supported his Atkins claim only with school records and family
members’ affidavits was not entitled to a hearing but that if he filed an affidavit
that complied with Chase he could be entitled to a hearing). As it was, Wiley
was left to believe that the state habeas application he filed before the Chase
decision was sufficient because he had already filed an expert’s affidavit in

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                                       No. 09-70037

accord with Chase only to find later that the state court reached a contrary
conclusion by departing from its previously announced standards for
determining who gets an Atkins hearing.9
       Moreover, a review of the state court’s reasons for rejecting Wiley’s claim
of retardation and the specific evidence presented demonstrates the disputed
nature of the facts and bears out the need for a hearing to test the arguments of
both sides. Instead of granting a hearing, the state court decided the retardation
question itself and held that Wiley was not retarded because, in its view, Wiley’s
family affidavits “did not allege or establish that Wiley is mentally retarded.”
Wiley, 890 So. 2d at 896–97. It found compelling the State’s argument based on
the family affidavits that retarded people do not perform such functions as
driving tractors, joining the Army, obtaining a driver’s license, and supporting
their families.10 Id.
       Wiley’s motion for rehearing cast material doubt on such an argument,
however.     In the supplemental affidavit in support of Wiley’s motion for
rehearing, Dr. Grant opined that “mentally retarded persons do indeed ‘hold



       9
         Relying on its decision in Wiley’s case, the Mississippi Supreme Court said in a
subsequent opinion that technical compliance with the Chase requirements is insufficient to
warrant a hearing if the record evidence “overwhelmingly belies” the mental retardation claim.
Hughes v. State, 892 So. 2d 203, 216 (Miss. 2004). In a subsequent federal habeas petition, the
federal district court held that the state court’s failure to conduct a hearing in the face of a
prima face case of mental retardation denied Hughes due process. See Hughes v. Epps, 692
F. Supp. 2d 533, 543 (N.D. Miss. 2010). We note that the State did not appeal that holding.
We also believe that the evidence in Wiley’s case did not “overwhelming belie” his claim.
       10
         In Chase, the State made a similar argument and offered evidence that the petitioner
was never in special education classes, never failed a grade in school, played quarterback on
the football team, completed a welding course and became a certified welder, performed yard
work and washed cars, cooked for his mother, had a girlfriend, and had no deficits in social
skills. Chase, 873 So. 2d at 1022. Despite the fact that this evidence “would certainly be
persuasive and interesting to the trial judge at the hearing,” the Mississippi Supreme Court
permitted a hearing because the petitioner had “arguably demonstrated that his IQ falls
within the range of possible mental retardation, and because he has presented an affidavit
which asserts that he suffers from ‘mild mental retardation.’” Id. at 1022, 1023.

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                                   No. 09-70037

jobs,’ ‘drive cars,’ and ‘support families.’” According to Dr. Grant, there is a
“widely-recognized view within the medical community that mentally retarded
persons are often able to perform such tasks.”          Dr. Grant supported his
assertions with attached excerpts from psychiatric literature. See Bryan H.
King, M.D., et al., Mental Retardation, in C OMPREHENSIVE T EXTBOOK OF
P SYCHIATRY V OL. II 2598 (Benjamin Sadock, M.D. & Virginia Sadock, M.D. eds.,
7th ed. 2000) (“As adults, many [individuals with mild mental retardation] hold
jobs, marry, and raise families . . . .”); A MERICAN P SYCHIATRIC A SSOCIATION,
D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS 43 (4th ed. 2000)
(DSM-IV-TR) (“By their late teens, [persons with Mild Mental Retardation] can
acquire academic skills up to approximately the sixth-grade level. During their
adult years, they usually achieve social and vocational skills adequate for
minimum self-support . . . . With appropriate supports, individuals with Mild
Mental Retardation can usually live successfully in the community, either
independently or in supervised settings.”). In light of this evidence, Wiley’s
ability to function vel non was the type of clearly disputed fact that could benefit
from a hearing before the state court. See Thompson v. Bell, 580 F.3d 423, 436
(6th Cir. 2009) (“Regardless of whether Thompson’s incompetency petition
should be granted, his evidence has at least created a genuine issue about his
competency, and therefore warrants an evidentiary hearing. . . . Because the
Tennessee courts unreasonably applied federal law clearly established by Ford,
this Court does not afford AEDPA deference to their dismissal of Thompson’s
petition.”).
      This conclusion is also supported by Wiley’s school records, which show
that Wiley attended school only from first to eighth grade, that his grades
consisted of Ds and Fs in all subjects, with the exception of a few Cs and C
minuses, and that he was twice socially promoted despite failing marks. Dr.
Grant’s testing revealed that Wiley’s reading and writing ability are, at best, on

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                                     No. 09-70037

a fourth grade level. This evidence created at least disputed questions of fact
about Wiley’s abilities noted elsewhere in the record. See Wiley, 890 So. 2d 896-
97 (noting that Wiley’s family affidavits suggested Wiley “did ‘pretty well in
school’” and spent his prison time studying the Bible, reading, and writing to pen
pals).
         Wiley presented a prima facie case of mental retardation in his state court
habeas application under the Mississippi standards for an Atkins claim, see
Chase, 873 So. 2d at 1029, and his evidence and affidavits raised “serious
questions about [Wiley’s] possible retardation.” Rivera, 505 F.3d at 357; cf. In
re Hearn, 462 F.3d 413, 415 (5th Cir. 2006) (holding, albeit in another context,
that a prima facie case of mental retardation “is simply a sufficient showing of
possible merit to warrant a further [exploration] by the district court”).
Therefore, faced with the threshold question of whether to allow Wiley’s claim
to proceed to a hearing, it was an unreasonable application of clearly established
federal law for the Mississippi Supreme Court to deny Wiley’s Atkins claim
without a hearing, and the district court correctly concluded that it was not
bound to afford the state court’s decision deference. See Rivera, 505 F.3d at 357;
see also Panetti, 551 U.S. at 948.
                     V. The merits of Wiley’s Atkins claim
         We must next consider whether the district court’s determination that
Wiley is mentally retarded was erroneous. As noted above, a claim of mental
retardation in Mississippi requires proof that the defendant has subaverage
intellectual functioning, significant deficits in at least two areas of adaptive
functioning, and manifestation prior to the age of eighteen. See Chase, 873 So.
2d at 1027–29. A defendant must also prove through appropriate testing that
he is not malingering. Id. at 1028–29.




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                                       No. 09-70037

       1. Subaverage intellectual functioning
       Whether a petitioner suffers from significantly subaverage intellectual
functioning is a question of fact. Clark v. Quarterman, 457 F.3d 441, 444 (5th
Cir. 2006). We will not disturb a district court’s factual findings unless they are
implausible in light of the record considered as a whole. Rivera, 505 F.3d at 361;
see Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985) (“If the
district court’s account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even though convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently.”). “Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470
U.S. at 574 (citation omitted).
       The Atkins Court recognized that IQ scores ranging from 70 to 75 are
generally considered to be the cutoff for the intellectual functioning prong of the
test for mental retardation.         Atkins, 536 U.S. at 309 n.5. The Mississippi
Supreme Court has adopted as its cutoff for Atkins protection an IQ score of 75.
Chase, 873 So. 2d at 1029 n.20.
       Wiley was administered an IQ test five times between 1987 and 2009. The
testing was done on two versions of the Wechsler test—the WAIS-R and the
WAIS-III—and on the Stanford-Binet Intelligence Scales, Fifth Edition (the
SB5). In addition to the testing by Dr. Fox and Dr. Grant discussed above, Wiley
was tested by the court-appointed expert, Dr. O’Brien, and by the state’s expert,
Dr. Macvaugh.11
       When the district court considered Wiley’s scores, it noted that the experts’
testimony and reports indicated that they were subject to a confidence interval


       11
         Wiley’s own expert, Dr. Swanson, testified that she did not administer a standardized
IQ test because Wiley had already been tested several times, and she believed the results of
another test could be inflated by the so-called practice effect.

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                                   No. 09-70037

(CI) of 95%, meaning that due to standard errors of measurement the experts
would expect with 95% confidence that Wiley’s true IQ would fall within a
certain range around the reported score. The district court also noted that the
experts debated the application of the Flynn effect. As noted above, the Flynn
effect provides a reduction in IQ scores to account for inflation in the score based
on the number of years since the test was normalized. All three experts who
testified at the evidentiary hearing stated that the Flynn effect is generally
accepted in the scientific community, but they did not agree as to whether an
individual IQ score must be adjusted to reflect the phenomenon. Drs. O’Brien
and Swanson testified that an adjustment should be considered, but Dr.
Macvaugh disagreed. The district court noted that Wiley’s full-scale IQ scores
(FSIQ), the CI interval ranges, and the Flynn adjusted IQ scores were as follows:


Date Examiner            Test         FSIQ         95% CI range        Flynn effect
1987 Dr. Fox             WAIS-R         73           68–78                   70
1994 Dr. Fox             WAIS-R         78           73–83                   73
2003 Dr. Grant           WAIS-III       68           65–73                   65
2007 Dr. O’Brien         WAIS-III       70           67–75                   66
2009 Dr. Macvaugh        SB5            80           76–84                   77


      The State argues that the district court found Wiley mentally retarded
because it erroneously applied the Flynn effect to Wiley’s scores. It contends
that without such an adjustment only Dr. Grant’s score of 68 clearly falls within
the range for mental retardation. The State urges that the Flynn effect should
not be employed and that even if it is considered, Wiley’s adjusted score on the
SB5 was 77.
      The State is incorrect that the district court found Wiley mentally retarded
only because of the Flynn adjusted scores. The court explicitly stated that it was

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                                       No. 09-70037

“not holding that the Flynn effect must be applied to properly assess an
individual’s IQ, and it is not holding that failing to apply it is unreasonable.”
Instead, the court indicated only that it should be considered as one factor when
interpreting Wiley’s IQ scores in light of the unanimous opinion from the
experts.12 We need not resolve the weight, if any, to be given to the Flynn effect,
however, because the district court also found that even without it the evidence
supported a finding that Wiley had significant subaverage intellectual
functioning. On the record before us, that finding is not clearly erroneous.
       Dr. O’Brien’s report opined that Wiley’s full scale IQ without any
adjustments for the Flynn effect was likely to be between 67 and 75. Dr. O’Brien
testified that the score of 80 obtained by Dr. Macvaugh, as well as the score of
78 obtained by Dr. Fox in 1994, were likely “outliers” insofar as they did not fit
within the overall pattern of scores obtained across the range of testing. Dr.
Swanson testified that Wiley’s scores from 1987 to 2007 were “fairly tight.”
Although her report made adjustments for the Flynn effect, it also reported that
the four Wechsler tests had overlapping ranges between 68 and 70, which in her
opinion was Wiley’s true IQ score.
       The State argues that Dr. Macvaugh’s score of 80 precludes a finding that
Wiley is mentally retarded. It contends that the fact that a score may be an
outlier does not render it invalid. We reject the State’s position that an IQ score
above the cutoff for mental retardation automatically resolves a defendant’s
Atkins claim when the defendant has been tested as many times as Wiley has
been tested and a majority of the scores fall within the mental retardation range.
As discussed above, the State’s contention is not found in the Mississippi
Supreme Court’s case law. Cf. Thomas v. Allen, 607 F.3d 749, 757 (11th Cir.
2010) (rejecting argument that district court clearly erred in finding defendant

       12
          In its written decision the court referred to “test obsolescence,” which we interpret
to be the same as the Flynn effect based on the experts’ testimony at the evidentiary hearing.

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                                   No. 09-70037

mentally retarded where one of several IQ test scores was above the state’s
threshold: “There is no Alabama case law stating that a single IQ raw score, or
even multiple IQ raw scores, above 70 automatically defeats an Atkins claim
when the totality of the evidence (scores) indicates that a capital offender suffers
subaverage intellectual functioning.”).
      To be sure, the Mississippi Supreme Court has held that a person with an
IQ above 76 does not have a valid Atkins claim. Chase, 873 So. 2d 1029 n.20
(“[D]efendants with an IQ of 76 or above do not qualify for Eighth Amendment
Atkins protection.”). But we have found no state court authority indicating how
to assess the defendant’s true IQ score in the face of multiple IQ examinations.
The court has said simply that a defendant must present expert evidence that
he is mentally retarded and that he is not malingering. Id. at 1029. After
hearing evidence from both the State and the defendant, the trial court is then
to determine whether the defendant is mentally retarded from a preponderance
of the evidence. Id. The state court treats Atkins hearings the same as any other
evidentiary consideration. See id. (stating that after the defendant and the State
present evidence as allowed by the Mississippi Rules of Evidence “the matter
should proceed as other evidentiary hearings on motions”).          Therefore, the
district court here was not bound by a single reported IQ score, but rather was
free to consider all the reported scores and testimony as part of its analysis of
the evidence.
      The hearing in this case was essentially a battle of the experts, who gave
competing opinions as to Wiley’s IQ and intellectual functioning. The calculation
of a person’s IQ score is imprecise at best and may come down to a matter of the
examiner’s judgment. Cf. Clark, 457 F.3d at 444 (noting that the “confidence
band is designed to account for the measurement error inherent in intelligence
testing”). The State’s expert even testified that no test or examiner is perfect.
Although Dr. Macvaugh disagreed with the opinions of Dr. Grant and Dr.

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                                   No. 09-70037

O’Brien, he testified that his disagreement was based on “examiner judgment”
in the scoring of the IQ tests and conceded that “these things could be argued
either way.”
      As noted by the district court, the record contains three expert
assessments that explicitly found Wiley’s IQ to be below 75, without any
adjustments for the Flynn effect or practice effect. (Dr. Fox’s score of 73 in 1987;
Dr. Grant’s score of 68 in 2003; and Dr. O’Brien’s score of 70 in 2007.) The
record also contains opinions from three experts (Drs. Grant, O’Brien, and
Swanson) that Wiley has subaverage general intellectual functioning, as
required by Atkins. Given the nature of IQ scoring and the presence of several
IQ tests in the record, we do not believe it was clearly erroneous for the district
court to place weight on these experts’ opinions when determining Wiley’s
intellectual functioning.
      The State’s argument would have us simply accept the opinion of Dr.
Macvaugh over the opinions of Dr. O’Brien, Dr. Swanson, and Dr. Grant. We
will not re-weigh the facts and evidence in order to reach a decision contrary to
the district court’s conclusion. See Anderson, 470 U.S. at 574; see also Rivera,
505 F.3d at 363 (the district court is in the best position to weigh the evidence).
The record supports the district court’s assessment of Wiley’s intellectual
functioning, and we conclude that the district court did not clearly err in its
finding from a preponderance of the evidence that Wiley satisfies this prong of
the test for mental retardation.
      2. Adaptive functioning deficits
      A diagnosis of mental retardation requires not only subaverage intellectual
ability but also significant deficits in adaptive functioning. See Chase, 873 So. 2d
at 1028 & n.18. “Adaptive functioning refers to how effectively individuals cope
with common life demands and how well they meet the standards of personal
independence expected of someone in their particular age group, sociocultural

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                                       No. 09-70037

background, and community setting.” DSM-IV-TR at 42. To meet this prong of
the test, clinical definitions of mental retardation found in both the DSM-IV-TR
and the AAMR require proof of limitations in two or more adaptive skill areas,
which include communication, self-care, home living, social skills, community
use, self-direction, health, safety, functional academics, leisure, and work.13 See
Atkins, 536 U.S. at 309 n.3 (quoting AAMR 9th ed. at 5, and DSM-IV-TR at 41).
       Wiley’s adaptive functioning skills have been assessed four times: by Dr.
Grant in 2003, by Dr. O’Brien in 2008, by Dr. Macvaugh in 2008–09, and by Dr.
Swanson in 2009. Dr. Grant and Dr. Swanson used standardized measures of
adaptive functioning to assist in their assessments of Wiley.                      Dr. Grant
administered to Wiley the Independent Living Scale. Dr. Swanson used the
Vineland-II Adaptive Behavior Scales (Vineland), as well as the Adaptive
Behavior Assessment Scale (ABAS-II). Swanson used the standardized tests to
gather information retrospectively by asking Wiley’s grandmother and his
former wife to recall Wiley’s behavior at age fifteen and eighteen, respectively.
Drs. Grant, O’Brien, and Swanson concluded that Wiley had sufficient adaptive
functioning deficits to be considered mildly mentally retarded, while Dr.
Macvaugh disagreed.
       After reviewing the experts’ reports and considering the testimony at the
hearing, the district court held that Wiley met his burden of showing by a
preponderance of the evidence that he suffers from significant deficits in the
areas of functional academics, communication, and self-direction. Rather than

       13
           As noted above, the tenth edition of the AAMR revised the definition to require proof
of limitations in adaptive behavior as expressed in “conceptual, social, and practical adaptive
skills.” The AAMR indicates that its Terminology and Classification Committee made this
change because of a lack of a single standardized measure of adaptive behavior that measures
all of the original skills. AAMR 10th ed. at 81. Dr. O’Brien testified that the ninth and tenth
editions of the AAMR look at the same types of adaptive behavior, but the tenth edition
essentially groups into three categories the individual skill areas of the ninth edition. Both
Dr. O’Brien and Dr. Swanson indicated that their diagnoses of Wiley were the same under
both editions.

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                                  No. 09-70037

challenge these findings, the State presents two arguments that concern the
process by which the court and the experts reached their conclusions about
Wiley’s adaptive behavior.
      The State first asserts that the Mississippi Supreme Court found from the
affidavits of Wiley’s family and friends that Wiley did not have deficits in
adaptive behavior, and that the state court’s decision was not unreasonable. The
affidavits at issue showed that Wiley often provided money to help pay
household bills, possessed skill repairing vehicles and frequently helped friends
and neighbors with auto repairs, provided transportation for others, volunteered
for military service, and was a reliable worker who quit school to go to work to
provide for his family.
      Because we have determined that the district court did not err by declining
to afford deference to the Mississippi Supreme Court’s decision, the district court
was not limited to consideration of this evidence at the hearing. Moreover, Drs.
Grant, O’Brien, and Swanson all opined that mentally retarded persons could
perform the types of activities noted in the affidavits. See also Thomas, 607 F.3d
at 759 (rejecting State’s argument that defendant was not retarded because he
worked on a farm performing manual labor and driving a tractor and also held
several other menial labor jobs where experts agreed these skills are consistent
with mild mental retardation and State’s own expert testified that mentally
retarded persons can drive cars and hold menial jobs).
      The State also contests the methodology used by Wiley’s examiners,
primarily Dr. Swanson.       It argues that Swanson’s retrospective use of the
Vineland and the ABAS-II to ask about Wiley’s past behavior was erroneous and
that Dr. Swanson also incorrectly scored individual questions on the tests. We
are unpersuaded by the State’s rather cursory briefing of this issue.
      The assessment of adaptive functioning deficits is no easy task. Because
its conceptualization “has proven elusive,” adaptive functioning “historically has

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                                   No. 09-70037

been assessed on the inherently subjective bases of interviews, observations, and
professional judgment.” Doss v. State, 19 So. 3d 690, 713 (Miss. 2009) (internal
quotation marks and citation omitted). The Mississippi Supreme Court has
recognized that “there is not one test to determine mental retardation, including
the adaptive functioning component” and that there has been no agreement
among professionals as to the proper test for assessing adaptive behavior. Id.
at 712. The district court here also recognized that there is debate among
clinicians as to whether retrospective assessments are valid for determining
adaptive functioning in an Atkins-related context. Nevertheless, the district
court found the testing by Dr. Swanson, which she corroborated with interviews
of others and with direct probes of Wiley, to be sufficiently reliable for
consideration. We see no clear error in the district court’s findings. See, e.g., id.
at 714 (holding in the face of similar expert disagreement about standardized
adaptive testing and the adaptive functioning of the defendant that neither
side’s methodology was infallible and that the ultimate issue of whether the
defendant is mentally retarded is up to the trial court after assessing the totality
of the evidence and the credibility of the witnesses). The record and evidence
before the district court in this case supported the court’s consideration of the
information obtained by Dr. Swanson.
      Although Dr. Macvaugh disagreed with Dr. Swanson’s use of the ABAS
and Vineland tests, even he agreed that some experts believe standardized
instruments are necessary to assist in the assessment of adaptive behavior. The
tenth edition of the AAMR specifically recommends the use of standardized
measures and instruments, and it notes that the ABAS test “can be used to
identify significant limitations in adaptive behavior.” See AAMR 10th ed. at 76,
81, 83. Furthermore, the authors of the Vineland test expressly state that
retrospective interviews to obtain information about a subject’s behavior at an
earlier age is permissible in certain circumstances, including when the subject

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                                   No. 09-70037

is in a restricted environment, such as prison, and there is a question about the
subject’s adaptive functioning before coming to that environment. See S ARA S.
S PENCER, ET AL., V INELAND A DAPTIVE B EHAVIOR S CALES, S ECOND E D., Expanded
Interview Form Manual, 28 (emphasis added).
      The AAMR 10th edition recommends that because the adaptive
functioning assessment typically takes the form of interviewing third-parties,
the respondent should be someone who is well acquainted with the subject’s
behavior over an extended period, such as a parent, teacher, or direct-service
provider.   AAMR 10th ed. at 85. Here, Dr. Swanson spoke with Wiley’s
grandmother and with his former wife. She also spoke with other persons
familiar with Wiley, such as his former supervisor, to probe the information
about him. The State offers no evidence or even a cogent argument that the
answers given by Wiley’s grandmother and wife were incorrect or faulty. Dr.
Macvaugh also admitted that speaking with Wiley’s family members, as Dr.
Swanson did, was something he also should have pursued. See Doss, 19 So. 3d
at 714 (“Interviews with family members, and others familiar with an
individual’s typical behavior over an extended period of time in various settings,
can supplement or aid in the interpretation of test results.”).
      At bottom, the State would have us accept the opinion of its own expert as
a substitute for the opinions of Dr. Grant, Dr. O’Brien, and Dr. Swanson. But
the district court, having presided over the evidentiary hearing, “is in a better
position than this court to judge and weigh the credibility of the witnesses who
testified on the extent, duration, and causes of [Wiley’s] adaptive functioning
limitations.” Rivera, 505 F.3d at 363. On the record before us, we cannot say
that the district court erred by considering the opinions of the experts who
testified that Wiley has adaptive functioning deficits as part of the totality of the
evidence. See Doss, 19 So. 3d at 712.



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                                        No. 09-70037

       As noted above, the State has failed to brief the district court’s factual
findings on the specific areas of functional skills deficits or explain how those
findings are clearly erroneous, and we may consider that issue waived. See, e.g.,
Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes waiver of that
argument.”). For the sake of completeness, and to give the district court’s
decision context, however, we briefly mention some of the deficits found by the
district court.
       First, all of the experts agreed that Wiley possesses significant deficits in
the area of functional academics and that his functional academic ability is
between the third and sixth grade levels. Dr. Grant administered to Wiley the
Wide Range Achievement Test-Revision III (WRAT-III) and the Nelson-Denny
Reading Comprehension Test. He concluded that Wiley was functioning on a
fourth grade level.14 Dr. O’Brien tested Wiley with the fourth edition of the
WRAT (WRAT-4) and found results consistent with Dr. Grant’s earlier report.15
Dr. Macvaugh also administered the WRAT-4 and reported similar results and
conclusions.16     Dr. Swanson concluded from her own administration of the




       14
         Dr. Grant reported that Wiley scored a 68 (1st percentile) on the WRAT-III, which
is a grade equivalent of 4.2. Wiley scored a 64 on the reading subtest for word recognition,
which is a grade equivalent of 4.3, and a 70 on spelling, which is equivalent to grade 5.1. The
Nelson-Denny Reading Comprehension Test yielded a grade equivalent of 4.1.
       15
         On the WRAT-4, as reported by Dr. Grant, Wiley achieved the following scores: Word
Reading standard score of 77, fifth grade level; Sentence Comprehension standard score of 74,
sixth grade level; Spelling standard score 74, fourth grade level; Arithmetic standard score 76,
fourth grade level.
       16
         The scores obtained by Dr. Macvaugh for the WRAT-4 were as follows: Word Reading
standard score of 77 (6th percentile; grade equivalent of 5.7); Sentence Comprehension
standard score of 74 (4th percentile; grade equivalent of 6.5); Spelling standard score of 72 (3rd
percentile; grade equivalent of 4.3); Math Computation standard score of 81 (10th percentile;
grade equivalent of 5.4); and Reading Composite standard score of 73 (4th percentile).

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                                     No. 09-70037

WRAT-4, as well as the Woodcock Johnson and Kaufman Tests of Educational
Achievement, that Wiley was functioning on a third to fourth grade level.17
      Wiley’s military records also support a finding that Wiley possesses limited
academic skills. Wiley’s Army record indicates that he was forced to abandon his
training in radio operator school because of failing tests and “difficulty relating
the information contained in technical manuals to the appropriate equipment.”
The military instructors concluded that “this course of training is too difficult for
him to complete in a reasonable length of time.”              Wiley’s “poor academic
progress” resulted in a “resentful attitude.” Wiley was discharged from the
Army when his commander determined that “[r]eassignment of this individual
would not be in the best interest of the Army because of his extremely negative
attitude towards the military and his physical and mental limitations.”
(Emphasis added.)
      The district court also concluded that Wiley had deficits in the adaptive
functioning area of communication, as evidenced by Wiley’s oral comprehension
scores on academic tests and language battery, Wiley’s school records, the
experts’ interviews of Wiley, and reports of interviews with Wiley’s family and
friends. The record and opinions of the experts supports the district court’s
conclusion.
      Dr. Swanson testified that her testing showed that at the age of eighteen
Wiley had the communication skills of someone six to nine years old. She
concluded that Wiley could not be given verbal directions, but that he could learn

      17
          Dr. Swanson indicated in her report that Wiley’s various test results were
corroborated by his school records, which showed that he passed the fourth grade with
minimal grades but had been socially promoted or retained in subsequent years. She opined
that such an “academic plateau” was common in persons with mild mental retardation, who
often make slow progress early but plateau between fourth and sixth grade. Wiley’s school
records show that he repeated both the fifth and sixth grades. Following his grandfather’s
death, Wiley dropped out of school in the eighth grade to work on his grandparents’ farm.
Some of the problems noted by Dr. Swanson involved Wiley’s memory, abstract reasoning, and
reading and writing skills.

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                                  No. 09-70037

tasks visually upon demonstration. Interviews with Wiley’s grandmother and
former wife revealed that Wiley had been a shy child, was “late to talk,” could
not remember oral instructions or give complex directions, and did not express
his feelings well. Dr. Swanson concluded that Wiley had communication deficits
in areas of receptive vocabulary, oral expression, listening comprehension or
following directions, and written language. Dr. Grant also gave Wiley a series
of tests to gauge his communication skills, including the Oral and Written
Language Scale (OWLS) and the Expressive Vocabulary Test (EVT). Dr. Grant
stated in his report that Wiley’s Oral Composite score of 71 (third percentile) and
score of 52 (less than first percentile) on the EVT “indicated significant deficits
in the area of communication skills.”          Dr. O’Brien also found deficits in
communication skills, placing weight on Wiley’s school records.
      We note, as did the district court, that Dr. Macvaugh found no deficits in
communication skills in part because affidavits in the record from Wiley’s family
and friends indicated that he continued to correspond with them in written
letters and by telephone after he was incarcerated. But Dr. Macvaugh qualified
his opinion about the family affidavits by noting that because the affidavits had
been prepared for the purpose of mitigation, “there is some concern with regard
to their validity.” Dr. Swanson also indicated that Wiley’s ability to write was
painfully slow, as shown by his taking two minutes to write six dictated words
of a nine-word sentence.
      In the functional area of self direction, Dr. O’Brien testified that self-
direction concerns whether a person can independently decide what to do and
carry out certain activities without someone directing him. Self-direction skills
are “related to making choices; learning and following a schedule; initiating
activities appropriate to the setting, conditions, schedule, and personal interests;
completing necessary or required tasks; seeking assistance when needed;
resolving   problems   confronted    in   familiar   and   novel situations;   and

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                                   No. 09-70037

demonstrating appropriate assertiveness and self-advocacy skills.” AAMR 9th
ed. at 40. The district court concluded that Wiley’s deficits in self-direction skills
were supported by adaptive assessments by the experts, Wiley’s work history,
his gambling and alcohol addictions, and reports from family and friends.
      The record shows that Wiley consistently relied on others for virtually all
direction of his life and daily living, including finances, healthcare, and
employment. Wiley relied on his grandmother and then his wife to handle his
money. Although he was a hard worker, Wiley primarily worked manual labor
jobs and relied on his in-laws to find him work. Wiley’s grandmother stated that
when Wiley’s grandfather died, Wiley was unable to make basic decisions about
the farm, and he instead sought advice from his grandfather’s friends. He later
sought help from his in-laws even after he and his wife separated. As a child,
Wiley was slow to master hygiene, dressing, and toileting skills, and his older
sister had to help teach him how to dress and groom. Wiley’s grandmother
bought his clothes and made selections for him when he was as old as fifteen,
and then his wife took over that task when he moved in with her family.
Although Wiley helped around the house with the trash and yard work, his
grandmother and then his wife did all the cooking, cleaning, and laundering.
      Wiley indicated in probes with Dr. Swanson that his grandmother and his
wife managed his money; after he separated from his wife he would cash his
paychecks at the liquor store, pay his bills, and then drink or gamble his money
away. When Wiley was in the Army, the military arranged all of his travel and
someone always told him where to go. Dr. Swanson reported that in order to
learn a new task Wiley required many repetitions, a lot of time, and continuous
drill. She opined that military and court records and interviews with Wiley and
his wife substantiate his poor self-direction as an adult. We conclude from the
above evidence that the district court’s finding that Wiley had significant deficits
in adaptive functioning skills was not clearly erroneous. See, e.g., Thomas, 607

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                                  No. 09-70037

F.3d at 759 (finding of limitations in self-direction was not clearly erroneous
where “record indicates Thomas was immature both socially and mentally, that
he required lots of repetition to follow instructions, and that he could not live
independently”).
      3. Onset before age eighteen
      In concluding that Wiley’s significant subaverage intellectual functioning
and adaptive functioning deficits manifested prior to age eighteen, the district
court relied on Wiley’s school records, reports of Wiley’s family members, and the
adaptive assessments conducted by Dr. Swanson. The court also noted that
Wiley’s military records, which documented Wiley’s service at age nineteen,
provided a helpful snapshot of Wiley’s intellectual functioning and adaptive
skills close in time to the age of eighteen.
      The State argues only that the Mississippi Supreme Court discounted
Wiley’s school records because of Wiley’s poor attendance record at school, and
that the state court’s decision was reasonable.      However, we have already
decided that the district court was not bound to defer to the state court decision.
      The State is correct that Wiley’s school records show numerous absences,
and Dr. O’Brien agreed that missing school could result in poor grades. But he
also testified that having difficulty in school could affect whether a person
chooses to attend school regularly.      The district court noted that Wiley’s
academic struggles commenced from the beginning of his formal education when
he received all Ds, except for one C-, in the first grade. Wiley’s best year
academically was in the sixth grade when he had the fewest absences, but that
was also Wiley’s second attempt at sixth grade.
      We agree with the district court that evidence in addition to Wiley’s
academic performance also supports the conclusion that Wiley’s deficits
manifested before the age of eighteen. As noted by the district court, Wiley’s
grandmother reported Wiley’s early childhood difficulties learning to speak,

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                                      No. 09-70037

expressing his feelings, mastering hygiene and dressing skills, performing basic
skills like making his bed and putting away his possessions, and requiring help
with making purchases. Wiley’s wife later provided daily assistance, and the
military records note physical and mental limitations just past Wiley’s
eighteenth year. Based on the record, we do not find clear error in the district
court’s determination.
       4. Malingering
       The final requirement for a finding of mental retardation is evidence
through appropriate testing that Wiley is not malingering. The State does not
address this requirement in its brief, but as noted by the district court, each of
the experts who testified at the evidentiary hearing conducted testing to probe
for malingering. Dr. O’Brien, Dr. Swanson, and Dr. Macvaugh each indicated
that there was no evidence that Wiley was feigning or malingering intellectual
or adaptive functioning deficits.18
                                   VI. Conclusion
       Based on the foregoing, we hold that the district court’s conclusion that
Wiley is mentally retarded and therefore ineligible for a death sentence under
Atkins was not clearly erroneous. The district court’s judgment is AFFIRMED.
       Judge Jolly concurs in the judgment only.




       18
         Dr. O’Brien tested Wiley with the 21 Word Test and found a “normal result” with “no
indication of lack of motivation, dissimulation, or malingering.” Dr. Swanson administered
the Rey’s 15-word List, which indicated “adequate effort and no signs of malingering were
evident.” Dr. Macvaugh administered the Test of Memory Malingering (TOMM) to Wiley and
concluded that “there was no indication that he attempted to feign cognitive deficits.”

                                            35
