Heck Van Tran v. Roland Colson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0203p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

HECK VAN TRAN, ┐

Petitioner-Appellant, │

│

│ No. 11-5867

v. │

>

│

ROLAND COLSON, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Tennessee at Memphis

No. 2:00-cv-2451—Samuel H. Mays, Jr., District Judge.

Argued: June 12, 2013

Decided and Filed: August 25, 2014

Before: ROGERS, COOK, and WHITE, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for

Appellant. James E. Gaylord, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN,

PLLC, Memphis, Tennessee, Brock Mehler, Nashville, Tennessee, for Appellant. James E.

Gaylord, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee. Steven J. Mulroy, CECIL C. HUMPHREYS SCHOOL OF LAW, Memphis,

Tennessee, for Amici Curiae.

_________________

OPINION

_________________

ROGERS, Circuit Judge. Heck Van Tran, a Tennessee prisoner under sentence of death,

appeals the district court’s judgment denying his petition for a writ of habeas corpus pursuant to

1

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28 U.S.C. § 2254. Van Tran raised twenty-six claims in his original habeas petition. The district

court and this court have certified three claims for this appeal: (1) whether Van Tran is

intellectually disabled and his execution would therefore violate the Eighth Amendment under

Atkins v. Virginia, 536 U.S. 304 (2002);1 (2) whether, as applied to Van Tran’s crime, the

“heinous, atrocious, or cruel” aggravating circumstance of the capital jury instruction violates the

Eighth and Fourteenth Amendments; and (3) whether Van Tran’s penalty phase counsel was

ineffective, thereby violating the Sixth, Eighth, and Fourteenth Amendments. The district court

committed no error in denying the writ of habeas corpus on the second and third claims. With

respect to the first claim, however, because the Tennessee state court’s decision did not apply the

proper legal standard for assessing whether Van Tran has intellectual disability, which was

announced in a recent decision of the Tennessee Supreme Court, the district court’s judgment

must be vacated and remanded. In accordance with the Supreme Court’s command that the

procedural scheme for enforcing Atkins is within the state’s purview and because the State is

faced with a state law–imposed procedural burden it could not have anticipated at the time of the

original state-court Atkins hearing, we remand for the entry of a conditional writ of habeas

corpus to allow the state courts to consider Van Tran’s Atkins claim under the proper, now-

governing standard.

I.

Heck Van Tran was born in 1966 in Vietnam, during the Vietnam War, the son of a

Vietnamese woman and an American serviceman. Van Tran’s father died two years after his

birth. Van Tran and his mother lived in poverty, and as a young child Van Tran suffered severe

social deprivation and inadequate support. He began speaking at a late age, although even after

beginning to speak he had difficulty articulating words and spoke infrequently and in short

1

The lower courts in this case, as well as the parties until now, have used the term “mental retardation” to

describe a neurological condition typified by significant limitations in both intellectual and adaptive functioning.

More recent judicial opinions and the professional community have adopted the contemporary term “intellectual

disability,” which describes the identical specific condition (despite the new term’s arguably different sense in

common parlance). See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). This semantic practice has also been adopted

by the State of Tennessee. Coleman v. State, 341 S.W.3d 221, 226 n.5 (Tenn. 2011); 2010 Tenn. Pub. Acts ch. 734

(modifying Tenn. Code Ann. § 39-13-203). In light of the practice now accepted among courts, legislatures, and the

professional community, we adopt for our present analysis the term “intellectual disability.” However, where

quoting and discussing previous opinions and reports that employed the term “mental retardation,” we will employ

the old term for clarity of reference.

No. 11-5867 Van Tran v. Colson Page 3

phrases. He and his mother were relocated to Memphis by a charitable organization in 1983. He

attended one year of school in the United States, during which he had good attendance but got

poor grades. He dropped out in 1984.

In October 1987, Van Tran and three accomplices participated in an armed robbery of the

Jade East Restaurant in Memphis, Tennessee, where Van Tran had been employed and from

which he had been fired a month or two before. During the robbery, three people were killed. A

fourth, a seventy-five-year-old woman, was beaten and knocked unconscious. The victims were

all related and worked in the restaurant together. The robbers obtained a few jewelry cases from

the restaurant’s back office, and two diamond rings, a necklace, and a watch that were taken

from the survivor’s person. A detailed summary of the incident, including the ensuing interstate

manhunt, is found in the Tennessee Supreme Court’s statement of the facts at State v. Van Tran,

864 S.W.2d 465, 468–70 (Tenn. 1993). For the purposes of this appeal, it suffices to summarize

a few additional facts.

During the robbery, Van Tran twice shot Kai Yin Chuey, a slight, seventy-four-year-old

woman. The first time he shot her through her windpipe, although he claims that this was an

accident. A few moments later, he placed the gun directly against the back of her skull and shot

her again, killing her instantly. During the robbery, two others were killed. Van Tran shot one

of them in the face; his accomplices shot the other while Van Tran collected the loot.

Six months later, Van Tran was arrested in Houston, where he confessed that he

participated in the robbery. After trial, Van Tran was convicted of three counts of felony

murder; he was sentenced to death for each count on the basis of two aggravating circumstances,

one of which was that the murder was found to be “especially cruel in that it involved depravity

of mind.” Id. at 470.2 On direct appeal, the Tennessee Supreme Court affirmed Van Tran’s

convictions on the three counts of felony murder, but reversed his sentence of death for two of

the three murders, affirming the death sentence only for the murder of Kai Yin Chuey. Id. at

482. In arriving at this decision, the state supreme court disapproved of the deletion of the words

2

Under the Tennessee Code at the time, a defendant could be sentenced to death if the jury found that

“[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Van Tran,

864 S.W.2d at 478 (quoting Tenn. Code Ann. § 39-2-203(i)(5) (1982)).

No. 11-5867 Van Tran v. Colson Page 4

“heinous” and “atrocious” from the aggravating circumstance instruction. However, the court

ultimately affirmed on the grounds that the curtailed instruction did not likely confuse the jurors,

that the jury still made the dispositive “depravity of mind” finding, and relatedly, that the failure

to include those terms in the instruction had no effect on the result. Id. at 479.

In addition, the Tennessee Supreme Court independently determined that there was

sufficient evidence presented at trial to find that the killing of Kai Yin Chuey evinced “depravity

of mind.” Id. at 480. In making this determination, the court summarized the murder in the

following manner:

In [Kai Yin Chuey’s] case we have a helpless 74-year-old woman, who had

already been shot by the Defendant and was lying on the floor unable to protect

herself when the Defendant put a gun to the back of her head and shot her a

second time. We find the evidence of this brutal and senseless execution of a

helpless old woman sufficient to support this aggravating circumstance in the

murder of Kai Yin Chuey.

Id.

Van Tran filed a state postconviction petition in March 1995, claiming, among other

things, that he received ineffective assistance of counsel and that he should not be executed

because he is mentally retarded and incompetent. After being denied relief in the postconviction

trial court, Van Tran appealed to the Tennessee Court of Criminal Appeals (TCCA), where the

trial court’s judgment was affirmed. Van Tran v. State, No. 02C01-9803-CR-00078, 1999 WL

177560, at *13 (Tenn. Ct. Crim. App. Apr. 1, 1999). Regarding Van Tran’s claim of ineffective

assistance of counsel for failure to investigate and present additional mitigating evidence during

the penalty phase, the appellate court found that trial counsel conducted a proper investigation

and that there was no prejudice. Id. at *11–12. As to whether Van Tran’s execution was

prohibited by state statute because of his mental retardation, the appeals court deferred to the

postconviction trial court’s finding that Van Tran’s I.Q. was above 70, which was based upon the

State’s expert’s testimony that Van Tran’s expert had misread the manual related to I.Q.

calculation and had arrived at an erroneously low figure. Id. at *6.

With respect to only the issue of whether Van Tran’s execution was prohibited because of

mental retardation, Van Tran’s petition eventually reached the Tennessee Supreme Court, which

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took up the case “in order to clarify the procedure by which a prisoner who has been sentenced to

death may raise the issue of present mental competency to be executed.” Van Tran v. State,

6 S.W.3d 257, 260 (Tenn. 1999). The court denied Van Tran’s request for relief primarily on the

ground that the issue of his competency for the purposes of execution was not ripe for resolution,

because the execution was not imminent. Id. at 274. Van Tran filed a motion to reopen his

postconviction petition in February 2000, alleging that new evidence established that he was

mentally retarded and was therefore ineligible for the death penalty under state law. When this

petition reached the Tennessee Supreme Court, that court announced as an issue of first

impression that execution of mentally retarded persons was prohibited by the Eighth Amendment

of the U.S. Constitution and Article I, Section 16 of the Tennessee Constitution. Van Tran v.

State, 66 S.W.3d 790, 809 (Tenn. 2001). The state supreme court remanded to the

postconviction trial court for a hearing on the issue of whether Van Tran qualified as mentally

retarded. Id. at 812. Furthermore, the court held that mental retardation, for the purposes of the

state and federal constitutions, was defined by the Tennessee Code. The code defined mental

retardation, for the purposes of prohibiting the execution of those with mental retardation,

according to the following three necessary criteria: “(1) significantly subaverage general

intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy

(70) or below; (2) deficits in adaptive behavior; and (3) mental retardation manifested during the

developmental period, or by eighteen (18) years of age.” Id. (citing Tenn. Code Ann. § 39-13-

203 (1997)). Within a year, the United States Supreme Court would similarly hold that the

execution of persons with mental retardation violates the United States Constitution. Atkins v.

Virginia, 536 U.S. 304, 321 (2002).3

On remand, the postconviction trial court held a trial to determine whether Van Tran was

mentally retarded as defined by § 39-13-203 of the Tennessee Code. At the trial, two

psychologists testified that Van Tran is mentally retarded under the statute’s definition. Van

Tran v. State, 2006 WL 3327828, at *2–13 (Tenn. Ct. Crim. App. Nov. 9, 2006). Both doctors

based their conclusions on tests personally administered to Van Tran, his institutional records,

3

Because the United States Constitution provides the legal basis for habeas relief in this court and Atkins

and Van Tran announce identical prohibitions on the execution of persons with intellectual disability, we will refer

to the claim that a capital defendant cannot be executed because of intellectual disability as an Atkins claim.

No. 11-5867 Van Tran v. Colson Page 6

and interviews with him, his mother, and others who knew him. In addition to finding that Van

Tran currently has an I.Q. of seventy or below and suffers from numerous deficits in adaptive

behavior,4 both experts concluded that Van Tran’s deficits manifested themselves during the

developmental period, before Van Tran was eighteen years old. Dr. Daniel Grant based this

conclusion on a social history that discussed Van Tran’s late language skills, his difficulties in

school, and his lack of success in living independently. Id. at *5. Dr. Pamela Auble based her

conclusion that Van Tran’s impairments appeared during the developmental period on numerous

risk factors provided in the tenth edition of the American Association on Mental Retardation’s

reference manual, including a traumatic brain injury during youth, malnutrition, poverty, lack of

social resources, and prenatal maternal smoking. Id. at *11; see also American Association on

Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 127

tbl. 8.1 (10th ed. 2002) (“AAMR 10th”).

The State presented no testimony to contradict the findings of Van Tran’s experts,

although it did test Van Tran’s experts with some cross-examination.

The postconviction trial court denied Van Tran’s request for relief, finding that he had

not demonstrated mental retardation under the Tennessee statute by a preponderance of the

evidence. Van Tran, 2006 WL 3327828, at *15. Although the court found that Van Tran

satisfied the first prong by proving that he has a functional I.Q. of seventy or below, the court

determined that Van Tran had failed to meet his burden of proof for the second and third prongs.

With respect to the second prong, the existence of deficits in adaptive behavior, the court found

that Van Tran had demonstrated an adaptive deficit in only one area, that of communication.

The court weighed the experts’ testimony against evidence that Van Tran had held a few jobs

and had occasionally cooked for and cared for others. The court held that, in light of the

4

The trial court, following some of the experts’ testimony and the typical test used by Tennessee courts,

adopted the following definition of “adaptive deficits” for the purposes of the second prong:

The DSM-IV defines adaptive behavior using a set of ten criteria, as adopted from the Manual of

the American Association of Mental Retardation 9th Edition. The ten criteria listed for

consideration include: social interpersonal skills, communication, self-direction, work, leisure,

home living, functional academics, self-care, health and safety, and use of community resources.

In order to have significant deficits in adaptive behavior, a person must demonstrate deficits in at

least two of these areas.

See also Van Tran, 66 S.W.3d at 795 (endorsing ten-area framework).

No. 11-5867 Van Tran v. Colson Page 7

evidence of Van Tran’s at least somewhat successful social and individual functioning, he had

not demonstrated by a preponderance of the evidence that he suffered adaptive deficits in the

areas of self-direction, social interpersonal skills, personal health and safety, or functional

academics. Id. at *16. Because the court found that Van Tran suffered from a deficit in only one

area of adaptive functioning, it concluded that Van Tran did not meet the second prong.

Regarding the third prong, the trial court found that Van Tran had not presented sufficient

evidence demonstrating the manifestation of deficits before the age of eighteen. The court noted

that no test of intellectual functioning was administered prior to Van Tran’s incarceration and

that neither testifying expert “could offer any real proof to establish that the deficits occurred

prior to the age of eighteen.” Id. at *17. The court also noted that Van Tran’s current deficits,

rather than being caused by neurological deficit, could have been caused by neglect or paranoid

schizophrenia, which had not been diagnosed for many years. Id.

On appeal, the TCCA affirmed the trial court’s denial of Van Tran’s request for relief.

Id. at *27. The appellate court agreed with the trial court that some of the adaptive functioning

tests used by Van Tran’s experts were untrustworthy because they relied on interviews with

people that either had not observed Van Tran frequently or had not observed him in a non-

institutionalized setting. Id. at *23. The appellate court emphasized Van Tran’s unique position,

suggesting that Van Tran’s limited education, history of drug and alcohol use, schizophrenia, and

lack of ordinary life experiences all negatively impacted the effectiveness of the living skills tests

that were used by the experts:

We agree with the trial court’s assessment that the Petitioner is in a unique

position. The Petitioner was born in Vietnam. There is no question that the

Petitioner’s childhood was atypical. His social history reveals abuse, neglect, and

social ostracism. He essentially “lived on the streets” until age seventeen when he

came to this country through the assistance of Catholic Charities. The Petitioner’s

formal schooling was limited to several years in Vietnam and about one year in

this country. The Petitioner has spent the majority of his time in this country

incarcerated. While the Petitioner’s experts maintained that the Petitioner was

more proficient in the English language than in Vietnamese, proof at the

Petitioner’s original post-conviction hearing indicated that the Petitioner had

difficulty communicating with trial counsel until a Vietnamese interpreter was

appointed. A social worker with Catholic Charities testified that the Petitioner

spoke and understood the Vietnamese language. The Petitioner has a history of

drug and alcohol use. The Petitioner has also been diagnosed with paranoid

No. 11-5867 Van Tran v. Colson Page 8

schizophrenia. The proof also corroborates the trial court’s conclusion that the

Petitioner was in a position unique to most American adults. Dr. Grant conceded

that the Petitioner had probably never “filled out a check, or a money order.”

Moreover, there is no indication that the testing questions took into account the

Petitioner’s lifestyle in Vietnam or that he has spent the majority of his adult life

incarcerated. Accordingly, we agree with the trial court’s assessment that little

weight should be given to the Petitioner’s below average score on the Independent

Living Scale.

Id. at *24. The court also found:

The circumstances of the Petitioner’s crime belie any assertion that the Petitioner

suffered from any deficit in intellectual ability or adaptive skills. The Petitioner

had previously been employed by the victims of his crime. He knew the layout of

the restaurant and knew that jewelry was kept on the premises. The Petitioner did

the talking with one of the victims at the onset of the crime. The Petitioner was

the person that went into the office to collect the jewelry. After the crime, the

Petitioner escaped with two of his co-defendants to Houston, Texas, where it was

the Petitioner who arranged to sell the jewelry to a Vietnamese man for $4,000. It

was also the Petitioner who paid this man from the proceeds and divided the

money with his two co-defendants.

Id. at *25. Finally, the appellate court determined that Van Tran had not demonstrated that his

intellectual deficits manifested themselves prior to his reaching the age of eighteen:

The Petitioner had not been administered any test of intellectual functioning prior

to reaching the age of eighteen, and no testing was performed until ten years after

his incarceration. The only proof establishing this third prong [was] reliance upon

social factors present in the Petitioner’s childhood, including extreme poverty and

child abuse. In this regard, we cannot conclude that the trial court’s conclusion

that the Petitioner’s late development could have been the result of “neglect”

rather than neurological deficit was in error or contrary to the evidence. The

evidence of poverty, child abuse, lack of education, family dysfunction and poor

social conditions are not enough to demonstrate that any deficits manifested

during the developmental period. The proof established that the Petitioner

supported himself, took care of others, and was employed. The proof also

established that the Petitioner, with the aid of an interpreter, was able to assist and

communicate with his trial attorneys. The occurrences of these abilities all

occurred after the age of eighteen. Moreover, we conclude that the fact that the

Petitioner admits to alcohol and drug abuse and the fact that he has been

diagnosed with schizophrenia may have impaired his brain functioning. Finally,

Dr. Auble’s litany of potential “risk factors” fail to provide sufficient facts to

support the conclusion that any impairments were revealed during the

developmental period. Accordingly, Petitioner cannot satisfy the third prong of

the test for mental retardation.

No. 11-5867 Van Tran v. Colson Page 9

Id. at *26.

Tran originally filed his federal habeas petition in May 2000. In May 2001, the district

court entered an order holding the petition in abeyance while Van Tran exhausted his state-court

remedies. Tran v. Bell, 145 F. Supp. 2d 939 (W.D. Tenn. 2001). The district court took the case

out of abeyance in April 2007, after which Tran filed an amended petition raising twenty-six

claims in December 2007.

On September 30, 2010, the district court denied Van Tran’s petition in its entirety.

Order, Van Tran v. Bell, No. 00-2451-SMH, at 140 (W.D. Tenn. Sept. 30, 201) (“District Court

Order”). Regarding Van Tran’s Atkins claim, the district court first held that the state court’s

determination that Van Tran was not limited in functional academics was an unreasonable

determination of the facts based on the evidence presented in the state court. Id. at 64. This

determination meant that Van Tran met his burden for the second prong, because the state court

had already found that he had a deficit in one other area, that of communication. However, the

district court went on to find that the state court was reasonable in its determinations that Van

Tran did not suffer from deficits in the areas of self-direction and social/interpersonal skills, on

the ground that the state court was able to base its conclusion on record evidence that

contradicted the experts’ testimony about Van Tran’s gullibility, lack of personal responsibility,

and mental rigidity. Id. at 66–68.

Despite finding that the state court was not reasonable in finding that Van Tran did not

suffer from deficits in adaptive behavior, the district court found reasonable the state court’s

ultimate finding that Van Tran had not sufficiently demonstrated mental retardation, based solely

upon Van Tran’s failure to meet the third prong. In particular, the district court held that the

state postconviction appellate court’s finding, namely that Van Tran did not sufficiently

demonstrate that his intellectual deficits manifested themselves in the developmental stage, was

neither contrary to nor an unreasonable application of federal law, and was not based on an

unreasonable determination of the facts in light of the evidence presented. Id. at 75. The district

court reasoned that “[a]n expert’s testimony that an individual is ‘at risk’ of mental retardation

because of congenital factors, poverty, and abuse is not enough to support an Atkins claim.” Id.

at 74 (citing In re Mathis, 483 F.3d 395, 398–99 (5th Cir. 2007)). The court also reasoned that a

No. 11-5867 Van Tran v. Colson Page 10

lack of evidence does not entitle a petitioner to relief. Id. The district court went on to support

the state court’s finding:

In the instant case, the Tennessee Court of Criminal Appeals’ determination was

not based solely on the fact of Van Tran’s schizophrenia, but also on the lack of

evidence available about Van Tran’s early development. The court noted Van

Tran’s abilities in contrast to his stated deficits and the possible effects of drug

abuse and mental illness on his cognitive abilities. Despite some possibility that

Van Tran suffered significant adaptive deficits before age 18, the court’s

determination that he failed to meet his burden is neither contrary to nor an

unreasonable application of clearly established precedent, or based on an

unreasonable determination of facts in light of the evidence presented. Van Tran

has not satisfied the requirements to prove mental retardation and obtain habeas

relief for his Atkins claims.

Id. at 75.

Next, the district court held that the state supreme court’s narrowing construction of the

aggravating circumstance was constitutional, because it provided specific and detailed guidance

rendering the capital process susceptible to rational review. Id. at 96–97. The court also held

that the state supreme court’s determination that there was sufficient evidence to find that the

facts of Van Tran’s crime evinced “depravity of mind” was neither contrary to nor an

unreasonable application of clearly established federal law and was based on a reasonable

determination of the facts. Id. at 98. Regarding the ineffective-assistance-of-counsel claim, the

district court held that the state appellate court did not apply the Strickland test unreasonably and

did not rely on an unreasonable determination of the facts; the court noted that the evidence that

could have been presented at trial was not significantly different from what was actually

presented. Id. at 103–04.

The district court granted Van Tran a certificate of appealability with respect to claim

(2), that he has mental retardation, and claim (4), that the “depravity of mind” aggravating

circumstance was unconstitutionally vague as applied. Id. at 140–42. Van Tran moved this

court to expand the scope of this appeal, and we subsequently certified claim (7), that Van Tran

received ineffective assistance of trial counsel during the penalty phase because his counsel

failed to properly investigate and present all available mitigating evidence.

No. 11-5867 Van Tran v. Colson Page 11

II.

A. Standard of Review and Governing Law

The merits of Van Tran’s habeas claims are governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), under which a writ of habeas corpus may not be granted unless the

state court’s adjudication of the claim “(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that 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 also Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010).

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if

the state court decides a case differently than the Supreme Court on a set of materially

indistinguishable facts. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor,

529 U.S. 362, 412–13 (2000). To obtain habeas relief, “a state prisoner must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

State court determinations of fact are presumed to be correct, and the petitioner bears the

burden of rebutting this presumption of correctness by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). Our review under § 2254(d)(1) is limited to the record that was before the state

court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

B. Atkins Claim

The Eighth and Fourteenth Amendments prohibit the execution of intellectually disabled

persons. Hall v. Florida, 134 S. Ct. 1986, 1990 (2014); Atkins v. Virginia, 536 U.S. 304, 321

(2002). The Supreme Court left to the individual states “the task of developing appropriate ways

to enforce the constitutional restriction.” Atkins, 536 U.S. at 317. Accordingly, the Atkins Court

“did not provide definitive procedural or substantive guides” for enforcing the Atkins protection.

Bobby v. Bies, 556 U.S. 825, 831 (2009). The Court recently elucidated this vague command:

No. 11-5867 Van Tran v. Colson Page 12

[T]he States play a critical role in advancing protections and providing the

[courts] with information that contributes to an understanding of how intellectual

disability should be measured and assessed. But Atkins did not give the States

unfettered discretion to define the full scope of the constitutional protection.

Hall, 134 S. Ct. at 1998. Thus, the Tennessee legislature and courts have discretion, within

reason, to determine the procedures by which the Tennessee courts will ensure that persons with

intellectual disability are not executed in violation of the Eighth Amendment. The Tennessee

legislature and courts also have discretion to define intellectual disability substantively for the

purposes of Atkins, but this latter discretion is limited.

Tennessee, in accordance with longstanding clinical practice, has adopted the standard

definition of intellectual disability with the following three elements: “(1) Significantly

subaverage general intellectual functioning as evidenced by a functional intelligence quotient

(I.Q.) of seventy (70) or below; (2) Deficits in adaptive behavior; and (3) The intellectual

disability must have been manifested during the developmental period, or by eighteen (18) years

of age.” State v. Pruitt, 415 S.W.3d 180, 202 (Tenn. 2013) (quoting Tenn. Code Ann. § 39-13-

203(a)); see also Hall, 134 S. Ct. at 2003.

The first prong of the definition of intellectual disability is not at issue, which the State

concedes. The second prong was met under the reasoning of the district court, which we uphold

on de novo review. Although the state court found that Van Tran had failed to meet the third

prong, this was contrary to or an unreasonable application of federal law in light of intervening

Tennessee law in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), in which the Tennessee

Supreme Court explicated the role of expert testimony in a court’s consideration of Atkins

claims. Under Coleman’s guidance, Van Tran should be granted a conditional writ of habeas

corpus in order to allow the state postconviction court to reconsider Van Tran’s Atkins claim

under the now-governing legal standard.

First Prong: Intelligence Quotient

With regard to the first prong, the TCCA held that Van Tran had satisfied the first prong

of the test because he had proved by a preponderance of the evidence that he had a functional

No. 11-5867 Van Tran v. Colson Page 13

I.Q. of 70 or below. Van Tran, 2006 WL 3327828, at *20 (Tenn. Ct. Crim. App. Nov. 9, 2006).

The parties do not contest this issue on appeal.

Second Prong: Adaptive Deficits

With regard to the second prong, although the issue is close, the district court correctly

found that the state court unreasonably applied the facts in arriving at the conclusion that Van

Tran demonstrated only one adaptive deficit. Overall, the TCCA reasoned in a holistic way that

departed unreasonably from the reliable expert analyses used by Van Tran’s experts, which were

in accordance with the professionally accepted definitions provided by the statute and the clinical

best practices endorsed by the Tennessee Supreme Court. The reliable and professionally vetted

methods presented by Van Tran’s experts, from which the legal standards draw their substance,

must guide the court’s inquiry. The postconviction trial and appellate courts’ ad hoc, ostensibly

commonsense reasoning, by itself, is not sufficient to reject the experts’ conclusions that Van

Tran has more than one adaptive deficit.

The Tennessee Supreme Court has stated generally that “deficits in adaptive behavior

‘mean[s] the inability of an individual to behave so as to adapt to the surrounding

circumstances.’” Coleman, 341 S.W.3d at 248 (quoting State v. Smith, 893 S.W.2d 908, 918

(Tenn. 1994)). In order to demonstrate deficits in adaptive behavior sufficient to satisfy the

second prong of the intellectual disability test, Tennessee courts typically require the defendant

to demonstrate “significant limitations” in 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.” See Van Tran v. State, 66 S.W.3d

790, 795 (Tenn. 2001) (citing American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 39 (4th ed. 1994) (“DSM-IV”)). This approach, as clearly set out in

the Van Tran opinion of 2001 and borrowed from the DSM-IV (and its revision, the DSM-IV-

TR), was cited with approval by the state supreme court in the recent Coleman opinion.

Coleman, 341 S.W.3d at 248–49; see also American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders 49 (4th rev. ed. 2000) (maintaining two-out-of-ten-area

framework). Similarly, in Howell v. State, the state supreme court intimated approval of the two-

or-more-deficits approach by stating that “the most widely recognized definitions of mental

No. 11-5867 Van Tran v. Colson Page 14

retardation include two basic characteristics: significantly subaverage intellectual functioning

accompanied by related limitations in two or more adaptive skill areas (such as self-care,

communication, or social skills), and manifestation of the condition before age 18.” 151 S.W.3d

450, 457 (Tenn. 2004) (emphasis added). Most importantly, the state postconviction courts

below appeared to use this framework in analyzing Van Tran’s adaptive deficits. For these

reasons, although other frameworks could be used,5 it is most appropriate in this case to adhere

to the two-out-of-ten framework on habeas review of the state court’s decision.

As an initial matter, it is uncontested that Van Tran suffers from deficits in

communication, one of the ten areas of adaptive behavior. In order to satisfy the second prong,

therefore, Van Tran had to demonstrate by a preponderance of the evidence that he suffers from

a deficit in at least one of the other areas. Because we conclude, like the district court below,

that it was not reasonable for the Tennessee courts to find no adaptive deficit with respect to

functional academics, we need not address the remaining eight factors.

The district court correctly determined that the TCCA’s “determination that Van Tran

was not limited in functional academics, especially considering the court’s finding that he had

deficits in reading proficiency and language skills, was an unreasonable determination of fact

based on the evidence presented.” District Court Order at 64. The State’s brief on this appeal

devotes little more than a page to refuting this conclusion. Appellee’s Br. at 53–54. The

evidence presented in the record demonstrates that Van Tran had significant deficits in the area

of functional academics. The state trial court, in an analysis adopted by the TCCA, reasoned as

follows in rejecting the functional academics adaptive deficit:

5

For example, the American Association on Mental Retardation changed the adaptive behavior analysis in

the Tenth Edition of its manual. The Ninth Edition, released in 1992, employed the two-out-of-ten framework. See

AAMR 10th at 25. However, the Tenth Edition, released in 2002, employed three broader categories that it deemed

“are more consistent with the structure of existing measures and with the body of research evidence on adaptive

behavior.” Id. at 73. Now, the requirement of “significant limitations in adaptive behavior” has been “operationally

defined as performance that is at least two standard deviations below the mean of either (a) one of the following

three types of adaptive behavior: conceptual, social, and practical, or (b) an overall score on a standardized measure

of conceptual, social, and practical skills.” Id. at 13. Although this analysis was explained by Dr. Auble and both

Drs. Grant and Auble applied tests that purport to assess adaptive behavior pursuant to the Tenth Edition, see Van

Tran, 2006 WL 3327828, at *21–23, it is sufficient for our purposes to rely solely on the two-out-of-ten test that is

used most frequently by the Tennessee courts and which appeared to be the primary guide in the analysis of the state

court in this case.

No. 11-5867 Van Tran v. Colson Page 15

Finally, the court further disagrees with the assessment that petitioner suffers

deficits in the area of functional academics. The court does not disagree that the

petitioner has deficits in the area of reading proficiency and language skills, but

finds petitioner’s deficits are more in the area of communication than functional

academics. Petitioner only attended school in the United States for one year, and

attended school in Vietnam sporadically for a total of only two years. To the

court’s knowledge, no records exist from the school(s) in Vietnam. Moreover, on

the one test designed to determine petitioner’s functional academic level,

petitioner’s score was not below average. Dr. Grant testified that he administered

the Kaufman Functional Academic Skills Test and petitioner’s functional

academic score was 79. In looking at the individual parts of the test, petitioner’s

math score was much higher than his reading score. Other testing seemed to

indicate the same pattern. Despite the fact that these tests may indicate some

academic deficit in the area of reading, this court finds it is unable to say such

results indicate an overall deficit in the area of functional academics. This is

especially true in light of the court’s conclusion that petitioner does have deficits

in communication and Dr. Grant’s testimony that all of the tests were given in

English without the aid of an interpreter. While[] Dr. Grant maintains the

petitioner’s English skills are better than his Vietnamese, this court finds this fact

significant in evaluating the weight to be given to Dr. Grant’s conclusions. Given

the fact that the petitioner’s functional academic score was 79; the fact that the

petitioner may have had difficulty understanding the testing due to the language

barrier; the fact that petitioner has a very limited formal education; and the fact

that the only areas where petitioner showed deficiencies were in the areas

involving language skills, this court finds the evidence does not establish deficits

in the area of functional academics.

This discounting of expert testimony was based on the trial court’s refusal to accept the

expert conclusions of Van Tran’s witnesses, in light of the district court’s disagreement with the

expert opinions as to what the tests indicated and how the test results were affected by the fact

that English was Van Tran’s second language. These conclusions, while perhaps reasonable in

appearance to a layperson, are in the context of this case too unsupported by the record to be

upheld as reasonable. The State presented no testimony to contradict the conclusions of Van

Tran’s experts, all of whom agreed that he suffered significant deficits in functional academics.

Dr. Adler, a nationally certified school psychologist, testified that Van Tran was

“functionally illiterate” and could not, for example, comprehend a newspaper article written at a

sixth-grade level. Dr. Grant, a board-certified forensic examiner and neuropsychologist,

administered the Kaufman Academic Skills Test, on which Van Tran scored an arithmetic

standard score of 93, a reading standard store of 66, and a functional academic score of 79. Dr.

No. 11-5867 Van Tran v. Colson Page 16

Grant emphasized that the fact that Van Tran does not suffer a “significant deficit” in arithmetic

did not change his conclusions, noting that “retarded individuals are just like the rest of us, they

have strengths and they have weaknesses.” Dr. Grant testified that Van Tran was reading at a

fourth-grade level, and that it was important to note that he continued to read at a fourth-grade

level even after eight or nine years of instruction in a G.E.D. program. Similarly, Dr. Auble

concluded, based on Van Tran’s plateauing at a fourth grade–level reading skill, that Van Tran

demonstrates an adaptive deficit in functional academics, noting that “he really has not

progressed much in terms of his functional academics despite many, many[] years of schooling.”

The expert testimony explicitly refuted the concern that the tests were affected by the fact

that the tests were conducted in English, Van Tran’s non-native language. Dr. Grant explained

in his testimony why he decided to conduct his tests on Van Tran in the English language even

though Van Tran’s native tongue is Vietnamese. Dr. Grant testified that Van Tran is seriously

deficient in Vietnamese and that he performed no better than a child in effectively

communicating in Vietnamese. Dr. Grant also noted that his colleague Dr. Wasserman, a

bilingual psychologist, had determined that Van Tran’s proficiency in English exceeded his

proficiency in Vietnamese and that he would score higher on tests in English than in Vietnamese.

A bilingual correctional officer also confirmed that Van Tran’s proficiency in Vietnamese is

“very low.” The State presented no evidence contradicting the expert evidence that Van Tran

was more proficient in English than Vietnamese.

Because the State presented no evidence to support the theory that Van Tran’s tests

administered in English were unreliable because they were not given in his native language, the

state court unreasonably discredited the testimony of the psychologists who administered Van

Tran’s tests in English. Given that there are various considerations in the choice of which

language to use, and that the diagnostic tests were administered and interpreted by a member of

the professional group that designs and frequently applies the tests, the choice of the language in

which to administer the test is reasonably within the clinical discretion of the professional

administering the test. Without a contradictory analysis by another member of the profession, a

court is in no position to question the professional judgment used in decisions associated with the

administration of a clinical diagnostic test. This conclusion finds some support in an Atkins case

No. 11-5867 Van Tran v. Colson Page 17

from the Fifth Circuit. In Rivera v. Quarterman, the Fifth Circuit considered the State of Texas’s

argument that the intelligence tests administered to a bilingual capital defendant should have

been adjusted upward to compensate for his bilingualism. 505 F.3d 349, 361 (5th Cir. 2007).

The psychiatrist who had administered the test testified that she spoke with the defendant before

administering the test and had no trouble communicating with him in English. Id. In addition,

other witnesses testified that they conversed with the defendant in English and without

communication difficulties. Id. However, the State presented the testimony of an expert who

explained that the defendant’s bilingualism negatively impacted his verbal acuity and thereby

artificially decreased the results of the I.Q. test administered by the defendant’s expert. Id. The

Fifth Circuit rejected the State’s argument that the district court erred by crediting the testimony

of the psychiatrist who administered the test, largely because, as Texas’s own expert witness

acknowledged on the stand, the ultimate decision of which language in which to administer the

intelligence tests is a clinical judgment that must be made with the clinician’s professional

judgment. Id. at 362. In the present case, the State’s argument that the tests were unreliable is

even less plausible, because the State relied neither on a general theory about bilingualism nor on

any expert testimony presented.

Notwithstanding the TCCA’s general failure to adhere to the clinical framework, the

sophistication of the crime and Van Tran’s role in it are mostly irrelevant to the very narrow,

clinically defined question of whether Van Tran suffers a deficit in the area of functional

academics. In Hooks v. State, the Oklahoma Court of Criminal Appeals held that evidence that

the defendant ran a prostitution ring was admissible at an Atkins hearing, because a crime that

involved a continuing criminal enterprise “requires a level of abstract thought, coupled with the

ability to carry out plans, which might be beyond the capabilities of a mentally retarded person.”

126 P.3d 636, 644 (Okla. Ct. Crim. App. 2005). By contrast, the court noted that “individual

acts of violent crime, such as armed robbery or rape, require little or no abstract thought or

complex planning.” Id. Van Tran’s murder is of the latter kind; it was impulsive, committed in

the heat of a tense moment during an armed robbery performed with accomplices. Fleeing the

jurisdiction with his accomplice does not indicate forethought or planning, but rather an

impulsive response to an armed robbery gone awry. Selling the stolen goods is a fairly basic

response to the desperate situation in which Van Tran and his accomplice surely found

No. 11-5867 Van Tran v. Colson Page 18

themselves. None of these actions is so sophisticated or elaborate that the intellectually disabled

could not have performed it.

Furthermore, the overemphasis on certain perceived strengths, inferred from anecdotal

evidence, is inconsistent with the expert testimony and accepted professional analyses. Dr. Grant

testified that “retarded individuals . . . have strengths and they have weaknesses.” Indeed, one of

the “essential” assumptions of the clinical definition is: “Within an individual, limitations often

coexist with strengths.” AAMR 10th at 1, 8. In Black v. Bell, we noted expert testimony that

“someone might be mentally retarded but still be able to carry out any of a number of everyday

activities, such as maintaining a simple job or driving a car.” 664 F.3d 81, 99 (6th Cir. 2011).

Thus, we held that, in light of the expert testimony presented, “[a] full, independent review of

whether [the petitioner] showed . . . that he displayed adaptive deficits . . . must therefore look at

his weaknesses instead of at his strengths.” Id.; see also United States v. Davis, 611 F. Supp. 2d

472, 499, 501 (D. Md. 2009).

The irrelevance of Van Tran’s criminal conduct to functional academics is consistent

with the TCCA’s decision in Howell v. State, No. W2009-02426-CCA-R3-PD, 2011 WL

2420378 (Tenn. Ct. Crim. App. June 14, 2011). In affirming the postconviction trial court’s

finding that the defendant did not exhibit at least two deficits in adaptive behavior, the appellate

court accepted that “the facts and circumstances of Petitioner’s convictions reflect that Petitioner

adapted and adjusted to his surroundings throughout the course of his three state crime spree,” id.

at *19, and upheld the trial court’s use of anecdotal evidence to contradict the expert conclusions

about “additional deficits in adaptive behavior,” id. at *18. However, the appellate court did not

use this assessment to contest the expert testimony presented to demonstrate deficits in academic

functioning. See id. Rather, the trial court had accepted the experts’ findings that there were

deficits in “academic functioning” and used the anecdotal evidence to counter “claims of

additional deficits,” for which “the testing was done retroactively and was contradicted by

Petitioner’s conduct.” Id. The most natural reading of the Howell decision supports the use of

relevant anecdotal evidence to contradict specific findings regarding individual adaptive deficits,

especially where there is a dearth of directed expert testimony regarding those deficits. Here,

although Van Tran’s crime and ensuing actions could provide useful data points in assessing

No. 11-5867 Van Tran v. Colson Page 19

adaptive behavior deficits, the persuasive expert testimony that Van Tran suffered a deficit in the

area of functional academics was not contradicted by the facts of his conviction.

The foregoing does not undermine the court’s ultimate decision-making role. As the

Supreme Court said in Kansas v. Crane, 534 U.S. 407, 413 (2002), “the science of psychiatry,

which informs but does not control ultimate legal determinations, is an ever-advancing science,

whose distinctions do not seek precisely to mirror those of the law.” However, where lawmakers

deliberately incorporate clinical standards into legal definitions, the courts strain the limits of

reasonableness by rejecting expert opinions based exclusively on the courts’ own inexpert

analysis. Although “the trial court is not required to follow the opinion of any particular expert,”

it “must give full and fair consideration to all the evidence presented.” Coleman, 341 S.W.3d at

at 242. The Tennessee Supreme Court has emphasized the importance of clinical judgment in

guiding the courts to overall more accurate and consistent decisions. See id. at 246–47.

Because the postconviction courts performed an analysis in terms of these ten areas of

adaptive deficits, which it borrowed from the methods used by the expert witnesses, our review

utilizes the same framework. Adherence to some chosen clinical framework, even if such

adherence is not rigid, appears to be required by Tennessee law. In a comprehensive review of

the state supreme court’s previous decisions interpreting § 39-13-203, the Coleman court stated

that one of the principles guiding the application of the statute is that “[t]he Court’s application

of the statute may be guided and informed by the clinical standards, criteria, and practices

customarily used to assess and diagnose intellectual disability.” Coleman, 341 S.W.3d at 240

(citing State v. Strode, 232 S.W.3d 1, 14 (Tenn. 2007)). Although the use of the term “may”

appears permissive, the state supreme court in the same opinion communicated a strong policy in

favor of employing clinical definitions, supplied necessarily by experts in the field of intellectual

disability, when it stated that “[a]ligning the application of the statute with the clinical approach

to diagnosing and assessing intellectual disability will result in more accurate and consistent

decisions.” See id. at 247.

Indeed, the state supreme court has consistently indicated that the clinical definitions,

although not binding, have a close semantic relationship to the statutory definition. For example,

the Van Tran opinion of 2001 stated that the Tennessee courts refer to the DSM-IV framework

No. 11-5867 Van Tran v. Colson Page 20

for assessing adaptive deficits “for the purpose of providing insight and background into mental

retardation,” although not strictly “for the purpose of expanding upon or interpreting the

statutory definition in Tennessee.” 66 S.W.3d at 795 n.4. Citing this statement with approval,

the Coleman court stated: “Tennessee courts have thus relied on this [clinical] definition to better

understand what the Tennessee Code means by addressing deficits in adaptive behavior.”

341 S.W.3d at 248 n.86. The ten-area framework from the DSM-IV was cited with approval yet

again in the Tennessee Supreme Court’s most recent decision expounding § 39-13-203, which

called the DSM-IV’s ten-area framework “[t]he accepted clinical definition of adaptive

functioning.” State v. Pruitt, 415 S.W.3d 180, 204 (Tenn. 2013). The most reasonable reading

of these various propositions is that the courts should be guided, though not constricted, by the

two-out-of-ten-area clinical definition from the DSM-IV.

More importantly, the court must assess adaptive deficits in light of the expert testimony

presented by the parties. The trial court “must give full and fair consideration to all of the

evidence presented,” especially the testimony of experts who “bring to bear and utilize reliable

practices, methods, standards, and data that are relevant in their particular fields.” Coleman,

341 S.W.3d at 242. Although not mandating any particular analysis for adaptive deficits, the

state supreme court in Coleman found that the trial court committed reversible error by

distinguishing causally between intellectual disability and mental illness where that distinction

was not supported by expert evidence, and hence there “was error in light of the evidence

presented by” the defendant’s expert witnesses. Id. at 251–52. Because “[t]he State presented

no contrary evidence,” there was “simply no sufficient basis on the present record to” make the

conceptual distinction the court made. Id. at 252 (emphasis added).

The Tennessee Supreme Court’s recent decision in State v. Pruitt, 415 S.W.3d 180 (Tenn.

2013), reinforces the proposition that “full and fair consideration” of expert testimony requires

the trial court to treat as dispositive expert testimony establishing and utilizing methods of

analysis that is uncontradicted by other expert testimony. In that case, two of the defendant’s

experts testified that his I.Q. was below seventy. Id. at 202–03. One of the experts testified that

a raw score of of sixty-six might have been slightly below the defendant’s true level of cognitive

functioning because the defendant did not appear to take the test seriously; and the other expert

No. 11-5867 Van Tran v. Colson Page 21

noted that the defendant, answering hastily, might not have thought through all of the questions.

Id. at 203. And “[a]lthough both experts stated that Mr. Pruitt may not have given his best effort

on the tests, neither testified that Mr. Pruitt’s I.Q. would have been higher than seventy if his

effort had been greater,” and “[n]either expert testified that Mr. Pruitt’s test scores were

‘unreliable.’” Id. The trial court nonetheless “found that neither [test score] was the product of

Mr. Pruitt’s best efforts and that his grades in school and [state achievement test] scores

indicated that the . . . test scores were unreliable.” Id. at 200. The Tennessee Supreme Court

reversed this finding, distinguishing between the experts’ speculative asides about the test

administration and the considerations that actually contributed to the experts’ final conclusions:

. . . Although the scores in this case were called into question by the trial

court, neither expert opined that Mr. Pruitt’s I.Q. was greater than seventy,

whether through lack of effort or on some other basis for adjustment of the raw

score. Neither expert testified that the tests had an element of unreliability in their

administration.

Under these circumstances, we are unwilling to uphold a finding that the

tests are of no value in determining whether Mr. Pruitt has met his burden in

showing that his I.Q. is seventy or below . . . . The evidence showed that Mr.

Pruitt had I.Q. test scores below seventy. In the absence of expert testimony that

his I.Q. was above seventy, we hold that the evidence preponderates against the

trial court’s determination that Mr. Pruitt failed to prove that he had significantly

subaverage general intellectual functioning as evidenced by a functional I.Q. of

seventy or below.

Id. at 203. This analysis further supports Coleman’s implication that a trial court in Tennessee

cannot disregard reliable expert opinions on the issue of intellectual disability when those

opinions are based on clinically sound and professionally accepted methods and there is no other

expert testimony that supports an analysis leading to a contrary conclusion.

It follows from the above discussion that Tennessee law does not permit the state trial

court to use its independent judgment to disregard uncontroverted expert analyses, consider

factors that the experts have testified are unreliable, or declare to be dispositive a factor

irrelevant to the clinical definitions employed by the experts. At one point, the Tennessee

Supreme Court declined to define in a careful and delineated form the term “adaptive deficits,”

stating that the term should be construed in a commonsense way as “the inability of an individual

to behave so as to adapt to surrounding circumstances.” State v. Smith, 893 S.W.2d 908, 918

No. 11-5867 Van Tran v. Colson Page 22

(Tenn. 1994). But more recently, the court has turned toward reliance on expert analysis. With

respect to intellectual functioning, the Coleman court stated that, for example, “[a]scertaining a

person’s I.Q. is not a matter within the common knowledge of lay persons,” and concluded that

“[e]xpert testimony in some form will generally be required to assist the trial court in

determining whether a criminal defendant is a person with intellectual disability.” Coleman,

341 S.W.3d at 241 (emphasis added). Adaptive deficits are similarly outside the ken of the lay

judge. The Coleman court, as it did with I.Q., emphasized reliance on expert analysis:

“Notwithstanding State v. Smith, Tennessee’s trial and appellate courts have repeatedly relied

upon expert analysis of adaptive behavior or functioning predicated upon definitions advanced

within the relevant medical and psychological community and authoritative texts such as the

AAIDD Manual and the DSM-IV in determining whether the second prong has been satisfied.”

Id. at 248.

This construction of Tennessee law under Coleman is buttressed by the United States

Supreme Court’s recent opinion in Hall v. Florida, 134 S. Ct. 1986 (2014), which clarified the

minimum Atkins standard under the U.S. Constitution (whereas Coleman interpreted state

constitutional and statutory law). In Hall, the Court reasoned that the Constitution requires the

courts and legislatures to follow clinical practices in defining intellectual disability. In that case,

the Court confronted directly the question of “how intellectual disability must be defined in order

to implement the[] principles and the holding of Atkins.” Id. at 1993. The Court emphasized that

“[s]ociety relies upon medical and professional expertise to define and explain how to diagnose

the mental condition at issue,” for a variety of important legal determinations not limited to the

death penalty. Id. The Court held that Florida’s strict I.Q. cutoff of 70 was unconstitutional, in

part because it “disregard[ed] established medical practice.” See id. at 1995. This decision

supports the position of the Tennessee Supreme Court that “the courts would make these fact-

intensive and complex decisions with the assistance of experts in the field.” Coleman,

341 S.W.3d at 244.

In light of the methods and analyses employed by the expert witnesses, the TCCA

unreasonably determined that Van Tran was not intellectually disabled. The TCCA emphasized

too heavily in its analysis the facts of the crime, which are not relevant to the analysis of most of

No. 11-5867 Van Tran v. Colson Page 23

the areas of adaptive behavior, especially that of functional academics. The TCCA also

incorporated by reference the analysis of the state postconviction trial court, which undertook a

careful analysis within the ten-area framework. That analysis, as incorporated by the TCCA,

was reasonable except with respect to the area of functional academics.

The district court thus properly determined, notwithstanding AEDPA deference, that Van

Tran suffers from deficits in two of the ten areas of adaptive behavior, thereby satisfying the

second prong of the statutory definition of intellectual disability.

Third Prong: Early Onset

Because under the now-prevailing standards for adjudicating claims of intellectual

disability the TCCA used an erroneous causation analysis with respect to the third prong of early

onset, Van Tran is entitled to habeas relief conditioned on a new evidentiary hearing before the

state trial court. In particular, the postconviction hearing given to Van Tran did not meet the

retroactively applicable substantive and procedural standards set forth by the Tennessee Supreme

Court in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011).

The state postconviction court ruled that there was no onset of intellectual disability

during the developmental period despite strong evidence of pre-age-eighteen intellectual and

adaptive deficits. Two board-certified experts in psychology, both trained and experienced in

intellectual disability, testified about Van Tran’s early developmental challenges, which

stemmed from his early childhood and continued through his arrival in the United States shortly

before he turned eighteen. Van Tran, 2006 WL 3327828, at *2–12. Dr. Grant discussed how

Van Tran was late in important developmental milestones: he was not toilet-trained until five

years of age, did not speak until the age of six, and reportedly never advanced with his

Vietnamese language skills beyond those of a five-year-old child. See id. at *4–5. Dr. Grant

testified that Van Tran’s most recent testing was consistent with prior achievement tests, and that

his neurological impairment and intellectual deficiencies would have been stable over the course

of his adult life, even despite the presence of schizophrenia in late adolescence. See id. at *6.

Dr. Auble’s testimony presented a compelling enumeration of circumstances in Van Tran’s

childhood that made it likely that Van Tran would have developed his neurological impairments

before the age of eighteen:

No. 11-5867 Van Tran v. Colson Page 24

Dr. Auble stated that the evidence indicates that the impairments appeared during

the Petitioner's developmental period. In this regard, she stated that the

Petitioner’s life history indicates a number of risk factors that would have

contributed to his mental retardation. Using a table listing various potential risk

factors for mental retardation provided in the Tenth Edition of the AAMR, Dr.

Auble proceeded to enumerate those factors applicable to the Petitioner. First, the

Petitioner's mother had poor prenatal care. The Petitioner’s mother suffered from

a fall while she was pregnant resulting in “some bleeding and some other injuries

. . . .” The Petitioner’s mother “smoked about a half a pack a day at the time she

was pregnant with him.” The Petitioner’s mother is “probably relatively limited

in intelligence.” The Petitioner did not have medical treatment while he lived in

Vietnam. As a child, he had malnutrition and reportedly had seizures. The

Petitioner had traumatic brain injuries. The Petitioner also lacked adequate

stimulation and experienced family poverty. His living situation was essentially

homeless. During his childhood, he only attended school for two years. The

Petitioner suffered child abuse and neglect. The Petitioner had no consistent

caretakers or friends. His mother was a single parent, and the Petitioner did not

really know his father. The Petitioner did not speak until he was six years old,

and, when he did speak, his speech was abnormal. Presently, the Petitioner has

speech impairments in both Vietnamese and English. The Petitioner was a poor

student, although he did have good attendance. “These findings indicate that

there was brain dysfunction that was present in childhood as well as present now.”

Dr. Auble summarized, “. . . he had an impaired mother. He had lack of support

from his family. He had abuse, poverty, war, discrimination . . . , early drug and

alcohol abuse. All of this contributed to his compromised functioning during

childhood.”

Id. at *11. Both Drs. Grant and Auble noted that Van Tran’s early onset is corroborated by the

academic difficulty he experienced during the year he spent in the Memphis school system,

where he scored poorly on achievement tests and was slow to learn English in relation to

similarly situated peers. Id. at *4–6, 12. The State offered no expert testimony to rebut Van

Tran’s experts’ testimony establishing that Van Tran suffered from significant intellectual and

adaptive deficits from as early as his childhood in Vietnam.

The state trial court nonetheless found that Van Tran had not met his burden with respect

to this third prong. The court relied substantially on the absence of any test of intellectual

functioning before the age of eighteen. With respect to Van Tran’s late speech development, the

court declined to attribute it to early-onset intellectual disability because “there could be a

multitude of reasons why, as a child, petitioner did not speak or only spoke in a limited fashion.”

The court similarly found that late toilet training could have been the result of a lack of

No. 11-5867 Van Tran v. Colson Page 25

instruction rather than neurological deficit, and that his sporadic school attendance and life on

the streets could have caused his poor school performance. The court also found that “it is just

as likely that any deficits in intellectual functioning occurred as a result of [paranoid

schizophrenia], and thus, did not develop until after the age of eighteen.” The trial court

summed up:

In this case there are no school records, no medical records, very little

documented social history and the observations of the experts on this point are

speculative at best. Additionally, there is evidence that tends to establish a

legitimate alternative explanation for the petitioner’s below average I.Q. scores.

Admittedly, Dr. Kenner could not say for sure how the petitioner would be

[a]ffected. However, neither Dr. Grant nor Dr. Auble could say definitively that

the disease had not [a]ffected petitioner’s neurological functioning.

Having determined that, in light of the proof presented, it is not possible to

discern when the petitioner’s deficits in intellectual functioning developed, this

court finds petitioner has also failed to meet his burden with respect to the third

prong of the statute.

The TCCA affirmed. The TCCA relied on the absence of pre-age-eighteen testing and

the possibility that Van Tran’s deficits were caused by substance abuse or schizophrenia instead

of impaired brain functioning. Moreover, the court held that “[t]he evidence of poverty, child

abuse, lack of education, family dysfunction and poor social conditions are not enough to

demonstrate that any deficits manifested during the developmental period.” Van Tran, 2006 WL

3327828, at *26. The TCCA thus upheld the postconviction court’s rejection of the expert

evidence of Drs. Auble and Grant.

This conclusion is unreasonable, but only in light of the Tennessee Supreme Court’s

intervening opinion in Coleman.

It was unreasonable for the TCCA to conclude in this case “that the fact that the

Petitioner admits to alcohol and drug abuse and the fact that he has been diagnosed with

schizophrenia may have impaired his brain functioning.” Van Tran, 2006 WL 3327828, at *26.

Under Coleman, it is not appropriate to separate neurological deficit from mental disorder as

causes when determining whether a defendant actually suffers from cognitive and adaptive

deficits, when the petitioner presents expert testimony to the contrary and the State does not

rebut with its own experts. Coleman, 341 S.W.3d at 252; see also State v. Pruitt, 415 S.W.3d

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180, 203 (Tenn. 2013) (holding that lower court’s finding I.Q. tests were unreliable was

erroneous, in light of the fact that no expert testified that they were unreliable).

Furthermore, because the TCCA did not thoroughly address its reasoning about the

impact of schizophrenia on Van Tran’s deficits, the court appears to have adopted the

postconviction trial court’s erroneous determination that Van Tran’s cognitive

functioning deteriorated as a result of suffering from untreated schizophrenia for seven years.

This conclusion appeared to rely on the determination that Van Tran’s first treatment began

when he was diagnosed by a Dr. Kenner in 1997, who also indicated at that time that Van Tran

might have begun suffering from schizophrenia as early as 1989. However, the record clearly

indicates that a Dr. Humble diagnosed Van Tran with schizophrenia in 1990, and that Van Tran

began to be treated with medication in that same month. Thus, the TCCA could not have relied

on the state trial court’s findings that Van Tran suffered from a long length of untreated

schizophrenia and that his functioning may have deteriorated during that period of no treatment.

Indeed, because Van Tran’s treatment began so early, the conclusion that Van Tran’s

schizophrenia somehow tends to disprove early onset is undermined by Dr. Auble’s testimony

that when schizophrenia is treated, “I.Q. scores do not decline and can, in fact, improve.” Van

Tran, 2006 WL 3327828, at *10. Indeed, these corrections to the state trial court’s analysis

imply the opposite of the state trial court’s conclusions. That is, because Van Tran’s

standardized test scores may have improved with treatment, the fact that he continues to suffer

from deficits even now after a period of improvement implies that he also suffered the deficits in

the past, before the improvement. Thus, the TCCA’s causal analysis with respect to Van Tran’s

schizophrenia is unreasonable factually as well as legally.

Similarly, regardless of whether Coleman would strictly forbid a causal analysis that

separates out permanent impairments caused by drug and alcohol abuse, such an analysis is not

reasonably supported by expert testimony in the record. There is no expert testimony regarding

how a history of drug or alcohol abuse may have contributed to post-developmental impairment.

In light of the facts and the expert testimony, the TCCA’s conclusion that alcohol and drug abuse

may have permanently caused or substantially contributed to Van Tran’s cognitive and adaptive

deficits in the three years between his eighteenth birthday and when he was incarcerated—the

No. 11-5867 Van Tran v. Colson Page 27

only time that any testimony establishes he had access to drugs and alcohol in his adult life—

appears unlikely. Van Tran had begun abusing drugs and alcohol at a young age, so much of his

drug and alcohol abuse probably occurred prior to his eighteenth birthday. Indeed, Dr. Auble

suggested that early drug and alcohol abuse may have actually contributed to the manifestation

of deficits before the age of eighteen. Thus, the TCCA’s causal analysis was also flawed with

respect to Van Tran’s history with drug and alcohol abuse.

Further, the state court committed an error under Coleman by not giving “full and fair

consideration” to the expert testimony regarding “risk factors.” See 341 S.W.3d at 242. The

TCCA misconstrued the experts’ testimony by interpreting the presence of “risk factors” as a

concession that Van Tran could not demonstrate that he actually was mentally retarded. See

2006 WL 3327828, at *26. The state court’s analysis conflated the issue of whether there are

adaptive deficits with the related but distinct issue of distinguishing their causes:

The only proof establishing this third prong were reliance upon social factors

present in the Petitioner’s childhood, including extreme poverty and child abuse.

In this regard, we cannot conclude that the trial court’s conclusion that the

Petitioner’s late development could have been the result of “neglect” rather than

neurological deficit was in error or contrary to the evidence. The evidence of

poverty, child abuse, lack of education, family dysfunction and poor social

conditions are not enough to demonstrate that any deficits manifested during the

developmental period.

Id.

There are two critical errors with this characterization of Van Tran’s case for early onset.

First, the state court mischaracterizes the nature of Van Tran’s proof; contrary to what the

TCCA stated, the presence of risk factors were not the “only proof” of intellectual disability

during the developmental period. There was substantial real evidence of deficits being

manifested before Van Tran reached the age of 18: his poor achievement tests in school in the

United States, administered at the age of 17, which Dr. Adler opined “likely reflect an

overestimate of his actual abilities”; the testimony of Van Tran’s mother that he was late in

arriving at important developmental milestones, for instance, Van Tran did not speak until he

was six; and the testimony of Dr. Grant that Van Tran’s early intellectual deficits could be

inferred from his present subaverage I.Q. level because “I.Q. is usually, fairly consistent over

No. 11-5867 Van Tran v. Colson Page 28

time.” These forms of evidence, which arise directly or indirectly from Van Tran’s actual pre-

age-eighteen behavior, constitute real proof of early onset rather than mere observations about

his environment. See In re Mathis, 483 F.3d 395, 399 (5th Cir. 2007). The state court

incorrectly interpreted the experts’ “risk factor” analysis as a foundation of proof, rather than as

an additional method of explaining, corroborating, and reinforcing their conclusion that Van

Tran started suffering deficits in intellectual functioning and adaptive behavior at a young age.

Second, the state court committed a Coleman error by using the “risk factors” presented

by Van Tran’s experts to dismiss intellectual disability as the cause of any deficits that were

manifested during Van Tran’s childhood. That is, the state court appears to have interpreted the

presence of risk factors as proof that the cause of any deficits was “neglect” rather than

“neurological deficit.” See Van Tran, 2006 WL 3327828, at *26. This is an error under

Coleman, in which the Tennessee Supreme Court held that a court commits legal error when it

makes causal distinctions in the absence of expert testimony supporting the court’s causal

analysis. See 341 S.W.3d at 252. In Coleman, the state supreme court relied exclusively on the

expert testimony on record to support the court’s causal analysis. The experts in Coleman

“concluded that, along with organic brain disorder and environmental factors, mental illness

provided an aggravating factor joining together to limit Mr. Coleman’s adaptive functioning.”

Id. Similarly, Van Tran’s experts testified that environmental factors as well as neurological

deficits contributed to Van Tran’s adaptive and intellectual deficits. Just as in Coleman, the

State presented no expert testimony to contradict Van Tran’s experts’ causal analysis, and

therefore “[t]here is simply no sufficient basis on the present record to separate the impact of

mental illness and intellectual disability in assessing [the defendant’s] deficits in adaptive

behavior.” Id. (emphasis added). The Coleman court found that, because it could not “conclude

beyond a reasonable doubt that the lower courts’ erroneous causation analysis did not have a

substantial and injurious impact on their determination that Mr. Coleman failed to carry his

burden of establishing deficits in adaptive behavior,” the error was not harmless. Id. For the

same reasons, the TCCA’s erroneous reliance on a causal analysis unsupported by expert

testimony on the record had a substantial and injurious impact on its final determination that Van

Tran is not intellectually disabled.

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The district court below correctly pointed out that “[a]n expert’s testimony that an

individual is ‘at risk’ of mental retardation because of congenital factors, poverty, and abuse is

not enough to support an Atkins claim.” District Court Order at 74 (citing In re Mathis, 483 F.3d

at 398–99). But Van Tran presented more than just expert testimony that he was “at risk” of

intellectual disability at a young age. Van Tran’s experts testified that Van Tran actually was

intellectually disabled under the statutory definition, which necessarily includes a finding that his

intellectual and adaptive deficits were manifested in the developmental period. Dr. Grant stated

in his report, “It is my professional opinion that Heck Van Tran is functioning within the

mentally retarded range as defined by Tenn. Stat. Ann. § 39-13-203 in that he has subaverage

intellectual functioning as evidenced by an I.Q. of 70 or below; he has deficits in adaptive

behavior . . . and both were manifested before the age of eighteen.” Dr. Auble concluded in her

report, “It is my professional opinion that Mr. Tran met the criteria for mental retardation at the

time of the offense. There is evidence that Mr. Tran’s functioning has been impaired since

childhood, and that it continues to be impaired at present.”

Coleman is applicable in this case notwithstanding the State’s argument that it does not

apply. We are bound by our published decision in Black v. Bell to consider Coleman

retroactively in our review of an Atkins claim under AEDPA. 664 F.3d 81, 92 (6th Cir. 2011).

The defendant in Black claimed that his sentence of death was unconstitutional under Atkins, and

he challenged in federal habeas proceedings the decision of the TCCA denying postconviction

relief. After oral argument in the Sixth Circuit, the Tennessee Supreme Court released its

decision in Coleman, which the panel characterized as “a significant decision explaining the

Atkins standard under Tennessee law.” Id. at 91. Because “[t]he rules governing what factors

may be considered in determining whether a defendant qualifies as mentally retarded under

Atkins deal with questions of law,” the court concluded that “[t]he TCCA’s assessment of

Black’s level of intellectual and adaptive functioning was . . . contrary to Coleman under

AEDPA’s legal standard.” Id. at 100. We held that, because the state court’s analysis regarding

intellectual disability contradicted the governing law, de novo review of the issue was required.

Id. at 97 (citing Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006), and West v. Bell, 550 F.3d

542, 553 (6th Cir. 2008)). But the court “refrain[ed] from reaching any independent conclusions

. . . because no court ha[d] yet analyzed Black’s Atkins claims according to the proper legal

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standard, which was set out by the Tennessee Supreme Court in Coleman.” Id. at 101. We

vacated and remanded to the district court “to review the record based on the standard set out in

Coleman.” Id.; see also Black v. Colson, No. 3:00-0764, 2013 WL 230664 (M.D. Tenn. Jan. 22,

2013) (conducting the independent analysis on remand).

Contrary to the State’s argument, the Tennessee Supreme Court’s holding in Keen v.

State that “Coleman’s holding . . . was not a constitutional ruling,” 398 S.W.3d 594, 609 (Tenn.

2012), does not affect Black’s holding. First, the court in Keen was presented with a different

issue in a different procedural context. The court in that case was determining whether the

decision in Coleman could be grounds for reopening a case under Tenn. Code Ann. § 40-30-

117(a)(1), which permits a motion to reopen on the basis of “a final ruling of an appellate court

establishing a constitutional right.” See Keen, 398 S.W.3d at 608. In contrast, here we are

presented with determining what is “clearly established federal law” for the purposes of a

petition for relief under § 2254. Coleman can still change the governing applicable law even if it

does not assert a new constitutional right under Tennessee law. Second, the holding in Black

does not rely upon the constitutional status of Coleman. Rather, the court in Black characterized

Coleman merely as “a significant decision explaining the Atkins standard under Tennessee law,”

664 F.3d at 91 (emphasis added), and one that “elucidates Tennessee’s interpretation of Atkins’s

legal standard,” id. at 92 (first emphasis added). Indeed, the Tennessee Supreme Court in Keen

characterized Coleman’s relationship to Van Tran and Atkins’s constitutional right in a similar

way, stating that Coleman “concerned the interpretation of Tenn. Code Ann. § 39-13-203” and

that it “supplemented” and “clarified” previous case law. See 398 S.W.3d at 608. In this way,

Keen actually supports Black’s reading of Coleman’s effect on Tennessee law.

Furthermore, the Tennessee Supreme Court itself has applied Coleman retroactively to

review proceedings that occurred before Coleman. In State v. Pruitt, the court relied on Coleman

to reverse a finding that the defendant did not have an I.Q. of seventy or below, even though the

trial court’s decision came out “nearly two years before [the court] clarified in Coleman the

process and criteria a trial court should use” to adjudicate an Atkins claim. 415 S.W.3d at 203.

Thus, Black’s retroactive application of Coleman is also consistent with Tennessee law, which

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provides the procedural law that governs Van Tran’s Atkins claim. See Bobby v. Bies, 556 U.S.

825, 831 (2009).

Black’s holding that this court may grant relief based upon Coleman applies to this case,

because this case is in relevant ways procedurally identical to Black. Both cases involve Atkins

claims in Tennessee. In both cases, the TCCA denied postconviction relief and the federal

district court denied habeas relief based on the TCCA’s decision before Coleman was decided.

In both cases, Coleman was decided before the district court was able to fully consider the case.

Thus, as in Black, we have a situation in which Coleman intervened in between the decision of

the district court and consideration by this court, changing the governing law regarding the

standards by which Atkins claims in Tennessee are decided.

As indicated above, in Coleman, the defendant appealed the denial of postconviction

relief in the state courts. 341 S.W.3d at 224. He had presented testimony by two expert

witnesses to establish an Atkins claim under Tennessee’s statutory definition of intellectual

disability, while the State presented no contrary evidence. Id. at 227. The state supreme court

declined to decide the proper approach to determine whether a defendant has demonstrated

deficits in adaptive behavior, see id. at 251–52 & n.93, but rather held more narrowly that

“distinguishing causally between intellectual disability and mental illness in the present case was

error in light of the evidence presented” by the two experts, id. at 252. Although “the trial court

is not required to follow the opinion of any particular expert,” it “must give full and fair

consideration to all the evidence presented.” Id. at 242. Furthermore, in formulating their

opinions, “experts may bring to bear and utilize reliable practices, methods, standards, and data

that are relevant in their particular fields.” Id. The court remanded so that the State could

challenge the admissibility of the petitioner’s experts’ testimony and present additional expert

testimony to counter the petitioner’s. Id. at 253.

In light of Coleman’s enunciation of the proper legal standard by which to evaluate

Atkins claims, the TCCA’s decision did not apply the proper legal standard and was therefore

contrary to clearly established governing law for the reasons given above. It is sufficient to draw

relevant comparisons between this case and Coleman to demonstrate how the TCCA erred here.

Like Coleman, the State presented no expert testimony to contradict the analysis of Van Tran’s

No. 11-5867 Van Tran v. Colson Page 32

experts. Like Coleman, the TCCA relied upon the presence of various factors that may have

contributed to Van Tran’s deficits in intellectual functioning and adaptive behavior in order to

cast doubt on experts’ opinion that intellectual disability caused these deficits. In both cases,

“[b]ased upon the evidence presented” by the expert testimony, these factors are “simply too

intertwined in cause and effect for such unraveling.” See Coleman, 341 S.W.3d at 252. It is

inappropriate in light of the expert testimony to treat “mental illness and intellectual disabilities

as separate dichotomous spheres rather than as interwoven causes.” See id. at 249.

Similar to the TCCA’s decision that was under review in Black v. Bell, here “the record is

rife with conflicting testimony” regarding onset, and “[t]he TCCA’s decision is of little help

because the court made so few definitive factual determinations leading up to its ultimate

conclusion” that Van Tran did not show onset by a preponderance of the evidence. 664 F.3d at

100. Because it is at least clear that the TCCA’s decision was not entirely consistent with

Coleman, the TCCA’s assessment of Van Tran’s intellectual and adaptive functioning prior to

the age of 18 was contrary to Coleman.

The Nature of the Remand

This case presents a unique circumstance in that the constitutional protection depends on

the content of state law that has changed retroactively since the relevant state court ruled, and the

relevant state court ruled unreasonably in light of the change. Deference to the state court’s

ability to apply its own law first, even where such application is compelled by the U.S.

Constitution, suggests that the proper course at this stage is for the district court to grant a writ of

habeas corpus prohibiting imposition of the death penalty, conditioned upon the fresh

determination by the Tennessee courts whether Van Tran is intellectually disabled under the

clarified principles set out in Coleman.

Such relief is consistent with our “broad discretion in conditioning a judgment granting

habeas corpus relief, [to] dispose of habeas corpus cases ‘as law and justice require.’” Pickens v.

Howes, 549 F.3d 377, 382 (6th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 775

(1987)). Here, the defendant’s Atkins claim was not adjudicated under the governing legal

standard, under which the enforcement of the substantive constitutional prohibition is

inextricably intertwined with certain evidentiary and procedural considerations governed by state

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law. When a constitutional error may be cured by further state proceedings, the common course

is to grant the writ of habeas corpus conditional upon the state court’s correcting the error. See

Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006).

This relief is consistent with the relief provided in Coleman itself. The Coleman court

remanded to the state postconviction trial court for a new hearing under the standards enunciated

in the case, and that hearing included the more robust, adversarial consideration of expert

testimony in the final determination. See 341 S.W.3d at 253. The Coleman court permitted the

State to correct its failure to present expert testimony to challenge the clinical analyses of the

defendant’s experts. The court stated that “[o]n remand, the State may challenge the

admissibility of [the defendant’s experts’] testimony, present expert testimony countering [those

experts’] methods or conclusions on this issue, or do both.” Coleman, 341 S.W.3d at 253. The

Coleman court appeared to believe that it was important for the State to have an opportunity to

correct a procedural mistake that the court was only then enunciating. Similarly, the State in Van

Tran’s hearing before the state postconviction court occurred before Coleman came out, and the

State did not act with the benefit of knowing the procedural implications of Coleman’s rules,

which are now retroactively applicable to that proceeding. In fashioning relief for Van Tran in

this case, we, like the Coleman court, should also take into consideration the State’s interest in

being able to correct a flaw in its case against Van Tran that it might not have been able to

foresee.

Moreover, the procedural principles of Atkins suggest that the state postconviction trial

court would be the most appropriate venue for de novo consideration under the new governing

rules. Where a predominantly procedural mistake is made in a previous proceeding and the

constitutionally required process must start anew, it is proper to let the court that would normally

get the first crack at the issue take it up again. In Bobby v. Bies, the state court’s consideration of

the defendant’s intellectual disability in a previous proceeding did not comply with Atkins. See

556 U.S. 825, 831–32 (2009). The Supreme Court reversed the federal district court’s grant of

habeas relief pursuant to Atkins, reasoning that it was inappropriate to disrupt the state court’s

Atkins proceedings. See id. at 837. The Court stated that “[r]ecourse first to [state] courts is just

what this Court envisioned in remitting to the States responsibility for implementing the Atkins

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decision.” Id. Like the state court in Bobby v. Bies, Tennessee is poised to offer the necessary

relief of a new Atkins hearing.

We recognize that in Black we remanded to the district court with instructions to “review

the record based on the standard set out in Coleman and consistent with [the Black] opinion.”

664 F.3d at 101. In Black, however, the State had presented contrary expert evidence that could

be evaluated by the federal court. Id. at 89. In contrast, in this case as in Coleman itself, the

State—unaware of the as-yet-undecided Coleman case—essentially presented no expert

testimony. Because of this difference, the remedy provided in Black v. Bell, a remand to the

district court for de novo consideration of the Atkins issue, would likely not achieve the optimal

balance between Van Tran’s and the State’s separate interests in relitigating under the new

Coleman principles.

That is, it is necessary, as it was in Coleman, to fashion a remedy that allows the State to

make the showing that Coleman now requires. A remand to the district court to consider the

Atkins claim under the Coleman standard might not allow the State to present evidence, if it were

determined that Van Tran was not independently entitled to a hearing. As a general matter, the

district court could hold some form of evidentiary hearing to allow Van Tran to present

additional evidence to support his claim. See, e.g., Jackson v. Norris, 615 F.3d 959, 962–64 (8th

Cir. 2010). And AEDPA did not change the “basic rule” that “the decision to grant an

evidentiary hearing [is] generally left to the sound discretion of district courts.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (citing Townsend v. Sain, 372 U.S. 293, 313 (1963)).

When a court performs an independent review of a claim, like this, it may conduct an evidentiary

hearing pursuant to the AEDPA’s hearing section, 28 U.S.C. § 2254(e), in order to permit the

petitioner to present additional evidence. See Cullen v. Pinholster, 131 S. Ct. 1388, 1412 (2011)

(Breyer, J., concurring); see also Burgess v. Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1321–

22 (11th Cir. 2013) (reversing denial of request for evidentiary hearing on Atkins claim); Allen v.

Buss, 558 F.3d 657, 665 (7th Cir. 2009) (same). However, § 2254(e)(2) and prior case law

discussing the court’s basic discretion to hear new evidence do not appear to contemplate the

peculiar situation in which the State would request an evidentiary hearing to develop in federal

court its case that had not been fully developed in the state court. Tennessee, especially in light

No. 11-5867 Van Tran v. Colson Page 35

of the court’s remand order in Coleman, is unquestionably capable of providing procedural relief

for both Van Tran and the State. Thus, a balanced retroactive application of Coleman logically

requires a conditional writ in the context of this case.

C. Challenge to the “Heinous, Atrocious, or Cruel” Aggravating Circumstance

Van Tran argues that the “depravity of mind” aggravating circumstance in Tenn. Code

Ann. § 39-2-203(i)(5) (1982) (now codified in § 39-13-204(i)(5) (2011)), as applied in this case,

is unconstitutionally vague. He maintains that the state court’s decision unreasonably applied

Proffitt v. Florida, 428 U.S. 242 (1976), and was contrary to Bell v. Cone, 543 U.S. 447 (2005).

In a footnote, Van Tran argues that the evidence was insufficient to support the jury’s verdict

that Kai Yin Chuey’s murder showed depravity of mind beyond a reasonable doubt. Because

there was sufficient evidence for a reasonable factfinder to find that Van Tran evidenced

depravity of mind under the state supreme court’s constitutionally permissible narrowing

construction, the district court’s denial of Van Tran’s petition on this ground must be upheld.

The penalty phase jury sentenced Van Tran to death based on the trial court’s

aggravating-factor instruction that the murder must be found to have been “especially cruel in

that it involved depravity of mind.” State v. Van Tran, 864 S.W.2d 465, 470 (Tenn. 1993).

Under the Tennessee Code at the time, a defendant could be sentenced to death if the jury found

that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind.” Id. at 478 (quoting Tenn. Code Ann. § 39-2-203(i)(5) (1982)). On direct

appeal, the Tennessee Supreme Court disapproved of the deletion of the words “heinous” and

“atrocious” from the instruction but ultimately affirmed on the grounds that the curtailed

instruction did not likely confuse the jurors, that the jury still made the dispositive “depravity of

mind” finding, and that the omission had no effect on the result. Id. at 479.

We must uphold the Tennessee Supreme Court’s finding that Van Tran committed

murder in an especially cruel way that evinced depravity of mind because the court did not

unreasonably apply the constitutionally permissible narrowing construction of the statute

established by previous decisions of the court. Even if the instruction given by the sentencing

court is deemed to be unconstitutionally vague, we will still uphold the sentence where the state

appellate court properly applied a narrowing construction of a possibly vague statutory

No. 11-5867 Van Tran v. Colson Page 36

enhancement. Walton v. Arizona, 497 U.S. 639, 653–54 (1990), overruled on other grounds by

Ring v. Arizona, 536 U.S. 584 (2002). The United States Supreme Court has previously affirmed

a sentence of death under the arguably vague statutory aggravating circumstance that was

applied in this case, because the Tennessee Supreme Court “has recognized that its narrowing

construction is constitutionally compelled and has affirmatively assumed the responsibility to

ensure that the aggravating circumstance is applied constitutionally in each case.” Bell v. Cone,

543 U.S. 447, 456 (2005).

Here, the state supreme court was guided by the constitutionally permissible narrowing

construction of the statute enunciated in State v. Williams, 690 S.W.2d 517 (Tenn. 1985).

“Torture” or “depravity of mind” must also be found in addition to cruelty, heinousness, or

atrociousness, and “depravity of mind” can be found even where there is no gratuitous infliction

of severe pain, physical or mental, that amounts to torture. Id. at 529. “Moral depravity” is

equivalent to a state of mind of “moral corruption,” which could be shown by a willingness to

torture, but could also be shown by other morally corrupt acts, such as mutilation of a dead body.

See id. at 529–30. Although the trial court omitted heinousness or atrociousness as aggravating

factors, the court gave the Williams definitions of “cruelty” and “depravity of mind” and stated

that a finding of both was sufficient to impose the death sentence on Van Tran; the Tennessee

Supreme Court relied upon this truncated instruction in affirming Van Tran’s sentence of death.

Van Tran, 864 S.W.2d 465, 479. We have previously held that the narrowing construction of

Williams, including the implication that depravity of mind or torture can be found without

torture, is constitutionally permissible. Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). In

particular, we noted that the Williams construction incorporated and expounded on previous

decisions of the state supreme court, including constructions already declared constitutional by

the United States Supreme Court. See id.

Here, the state supreme court reasonably applied the constitutionally permissible

narrowed construction of the aggravating circumstance as interpreted and applied in the state

court’s previous decisions. See Bell v. Cone, 543 U.S. at 457. The facts of this case fit within

the narrowed definition as applied in these previous cases. The state supreme court in Van

Tran’s case followed State v. Black, in which it had previously held that the “brutal and senseless

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execution style murder of a helpless child, who could not protect herself, evinces torture or

depravity of mind.” 815 S.W.2d 166, 181–82 (Tenn. 1991). Analogously, Van Tran’s victim

was helpless, since Kai Yin Chuey was a slight seventy-four-year-old woman whom Van Tran

had already shot through the throat and who was lying defenseless on the floor. And like Black,

when Van Tran placed his gun to her head and fatally shot her, he was committing an execution-

style murder, in which the murderer kills the victim by shooting them at close range after

rendering them helpless. The Eleventh Circuit in Hargrave v. Wainwright, in a similar situation,

explained:

An execution-style murder, as defined by the Florida courts, is typically one in

which the defendant, without provocation, first renders his victim helpless—for

example, by wounding the victim, tying the victim’s hands, or ordering the victim

to the floor—and then shoots the victim in the head at close range, often to

eliminate the victim as a future witness.

804 F.2d 1182, 1195 (11th Cir. 1986). In State v. Dicks, 615 S.W.2d 126, 127, 132 (Tenn.

1981), the Tennessee Supreme Court held that a murder was especially heinous, atrocious, or

cruel where the defendant slashed the victim’s throat while the victim lay unconscious due to a

blow to the head. The U.S. Supreme Court has approved the narrowing construction of the

aggravating circumstance that the Tennessee Supreme Court used in Dicks, stating that an

aggravator “directed at the conscienceless or pitiless crime which is unnecessarily torturous to

the victim” meaningfully narrows the discretion of the court and thereby avoids a constitutional

vagueness problem. Bell v. Cone, 543 U.S. at 457–58 (quoting Dicks, 615 S.W.2d at 132)

(internal quotation marks omitted).

Under these precedents and with a view of the evidence in the light most favorable to the

State, it was reasonable for the state court to conclude that a rational trier of fact could have

found beyond a reasonable doubt that Van Tran acted with depravity of mind. In the statement

Van Tran made to the police, he indicated that he shot Kai Yin Chuey once accidentally and once

intentionally. Van Tran, 864 S.W.2d at 468-69. The Tennessee Supreme Court described her as

a helpless seventy-four-year-old woman who had already been shot by Van Tran and was lying

on the floor unable to protect herself when Tran shot her in the back of her head. Id. at 480. She

was four feet, nine inches tall, and weighed only ninety pounds. The shot to the back of her head

was a contact wound, where the muzzle of the weapon was placed against the skin’s surface. Id.

No. 11-5867 Van Tran v. Colson Page 38

at 470. Kai Yin Chuey was not a threat to Van Tran, and by the time he shot her the second time

Arthur Lee was no longer a threat because Van Tran had killed him. Because the Tennessee

Supreme Court’s decision that a rational trier of fact could have found Tran showed depravity of

mind was not objectively unreasonable, we cannot grant Van Tran habeas relief on the basis that

the application of the aggravating circumstance was unconstitutional.

D. Ineffective Assistance of Counsel Claim

Van Tran argues that penalty phase counsel failed to investigate and present mitigating

evidence, failed to introduce evidence to rebut the “depravity of mind” aggravating

circumstance, failed to object to prosecutorial misconduct in closing argument, and failed to

preserve and present issues on appeal. This court certified Tran’s claim that counsel failed to

investigate and present mitigating evidence, but not his other ineffective-assistance-of-counsel

claims. This court cannot consider claims not certified for appeal, so those claims will not be

addressed. See 28 U.S.C. § 2253(c); Abdur’Rahman v. Colson, 649 F.3d 468, 473 (6th Cir.

2011).

Because the state court did not unreasonably apply the Strickland standard that governs

ineffective-assistance-of-counsel claims, Van Tran is not entitled to relief on this ground. Under

the deferential review standards of AEDPA, the already deferential Strickland standard becomes

doubly deferential: “[t]he question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

In order to gain relief, Van Tran must satisfy both Strickland prongs: he must prove both that his

counsel was objectively deficient and that he was prejudiced by his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The postconviction review

court found that Van Tran had neither proven that trial counsel conducted an improper

investigation or had unreasonably failed to present mitigating evidence, nor established

prejudice. Van Tran, 1999 WL 177560, at *12 (Tenn. Ct. Crim. App. Apr. 1, 1999). Van Tran

is not entitled to relief if we find that the postconviction review court was not unreasonable in its

determination regarding just one of the prongs.

Because the state postconviction court’s determination that Van Tran suffered no

prejudice was a reasonable application of the prejudice prong of the Strickland test, and the court

No. 11-5867 Van Tran v. Colson Page 39

relied on a reasonable determination of the facts, Van Tran must be denied habeas relief

according to § 2254(d). Numerous relevant mitigating circumstances about Van Tran’s

continuous social and education deprivations throughout life were presented at the initial trial;

the additional mitigating evidence that Van Tran argues would have been presented had his

counsel pursued further investigation is similar to and cumulative to the evidence that was

actually presented. The balance of mitigating and aggravating circumstances was close and the

presentation of additional and more precise mitigating circumstances about Van Tran’s

upbringing and emotional and mental states may have made a difference in the jury’s ultimate

determination. However, we cannot say that the state postconviction court was unreasonable in

determining that because “[m]uch of this evidence is similar to that which was presented to the

jury,” Van Tran had failed to “establish[] a reasonable probability that the jury’s determination

would have been different.” Van Tran, 1999 WL 177560, at *12.

The state court found that trial counsel had presented various forms of evidence in

mitigation that were considered in adjudicating Van Tran’s culpability, including his

“cooperation with the FBI, good employment history, lack of prior criminal involvement,

remorse for the homicides, personal history as a child of a Vietnamese mother and an American

father, difficult childhood and educational problems.” Van Tran, 1999 WL 177560, at *12

(citing Van Tran, 864 S.W.2d at 482). These mitigating circumstances were presented during the

testimony of several witnesses, including Van Tran’s mother, supervisors from Van Tran’s jobs,

and Dr. Khanna, a clinical psychologist who testified that Van Tran was below average

intelligence, depressed, and under a great deal of stress. Id. at *8, 11. For instance, Dr. Khanna

testified to horrid abuses during Van Tran’s childhood, including a time spent in an orphanage, a

time spent with his aunt in the countryside where she tied him to a tree naked and he was bit by

ants, a period in which he lived alone on the streets as a young child, and early exposure to illicit

substances. Dr. Khanna also testified that Van Tran had been abusing an inordinate amount of

drugs and alcohol in the three days preceding the robbery, such that “he had lost all judgment—

all reason—and he didn’t know probably where he was.” Van Tran’s trial counsel thus appears

to have presented a fairly thorough, if not comprehensive, social and personal history of Van

Tran that highlighted many mitigating factors.

No. 11-5867 Van Tran v. Colson Page 40

The mitigating evidence that Van Tran argues his counsel failed to present is remarkably

similar to the kind of evidence that was presented at trial. None of the evidence differs much in

substance from what was presented; it differs mostly in form. Van Tran argues that his trial

counsel should have provided the testimony of more experts: a licensed social worker fluent in

Vietnamese and English to testify about the sociocultural history of Vietnam and the plight of the

Amerasian population; a board-certified psychologist to testify about Van Tran’s post-traumatic

stress disorder and the effects of his Amerasian status on his psychological well-being; an

internist with a specialty in addiction to testify at greater length about Van Tran’s chemical

dependency issues arising out of hypervigilance related to his difficult upbringing, and how this

would have affected his perception and judgment during the murder; and, finally, a board-

certified forensic and child psychiatrist to attest to Tran’s hypersensitivity and threat perception

and explain their origins in his traumatic upbringing. Appellant’s Br. at 69–77. Van Tran argues

that this information “changes the ‘entire evidentiary picture’” by “answer[ing] the questions . . .

left unanswered about the significance of Tran’s early history, his status as an Amerasian, why

he abused drugs, and whether shooting Kai Yin Chuey was a cold-blooded act.” Appellant’s Br.

at 77–78. But the TCCA could reasonably conclude that the picture is not that different.

The most significant difference between what evidence was presented at trial and what

was presented in the postconviction proceeding is that the latter is presented in more scientific

terms. See, e.g., Appellant’s Br. at 78 (describing the evidence that trial counsel failed to present

as a “scientifically-grounded portrait of Tran”). Although the form of the proposed additional

mitigation evidence differs in its manner of presentation, the differences are, from the jury’s

perspective of final decisionmaker, somewhat superficial. That is, the substance of these

different analyses—whether based on Van Tran’s neurophysiology, the outcast social status of

Amerasians, or the chemical and physiological details of his substance abuse—is substantially

the same: Van Tran has suffered immense deprivation and misfortune during his life, which have

all had a great impact on his ability to reason and make decisions. Precisely this argument was

presented to the jury by the trial testimony of Dr. Khanna.

Methodological diversity and precision are not necessarily sufficient to demonstrate that

the jury would have arrived at a different conclusion, particularly where the jury’s final

No. 11-5867 Van Tran v. Colson Page 41

determination is one that is unconstrained by technical scientific jargon. Here, the jury was

asked to find simply whether Van Tran’s crime was especially cruel, in that it involved depravity

of mind. Boiled down to this purest essence of common-sense judgment, this determination

requires no specialty in psychology, psychiatry, neurophysiology, psychopharmacology, or

sociocultural anthropology.

The superfluity of presenting the same substance in a different form is supported by our

precedent. In Clark v. Mitchell, this court held that a state court was reasonable in determining

that a petitioner had failed to demonstrate prejudice by his counsel’s failure to present mitigation

evidence in a suppression hearing in which the issue was whether the defendant had waived his

rights voluntarily and knowingly. 425 F.3d 270, 281–82 (6th Cir. 2005). At the suppression

hearing, a psychiatrist had testified in favor of the defendant, concluding that the defendant’s

mental function would be considered “borderline defective” and that he suffered from acute

brain damage that would have interfered with his decision making abilities. Id. at 274–75. On

appeal, the defendant argued that his counsel should have presented testimony from a

neuropsychologist or pharmacologist to present evidence about organic brain syndrome and

defendant’s drug addiction and related withdrawal symptoms, which arguably would have more

comprehensively explained his actions. Id. at 276. This court held that

[t]he state court was also reasonable in determining that Clark had failed to

demonstrate prejudice as a result of his counsel’s failure to introduce evidence

from a neuropsychologist or pharmacologist at his suppression hearing or at trial.

Clark’s defense team introduced evidence at Clark’s suppression hearing from a

psychiatrist who concluded that Clark was suffering from depression, suicidal

tendencies, and brain impairments that would have made Clark less able to

understand his choices and to resist pressure from other individuals. It thus was

reasonable for the state court to conclude that new information sought to be

introduced by Clark about his drug addiction and brain disorder did not differ in

a substantial way from the evidence actually presented at the suppression hearing

and, accordingly, that Clark could not demonstrate that he was prejudiced by his

counsel’s failure to present such evidence.

Id. at 282–83 (emphasis added).

Although in the present case Van Tran presents a much more substantial argument about

the presentation of his case in mitigation, his argument still suffers from the same problem that

the Clark petitioner’s did, namely that the evidence does not differ in a substantial way from the

No. 11-5867 Van Tran v. Colson Page 42

evidence actually presented at trial. Van Tran’s counsel presented substantial testimony about

Van Tran’s horrific childhood and his dependence on drugs and the impact these influences had

on his psychological state at the time of the crime. The court of criminal appeals followed this

analysis in arriving at its conclusion:

The suggested mitigating evidence related to petitioner’s cultural and social

background and his medical condition. Much of this evidence is similar to that

which was presented to the jury. Furthermore, considering the nature and

circumstances of the offense, and the applicability of the two aggravating

circumstances of mass murder and depravity of mind, we conclude petitioner has

not established a reasonable probability that the jury’s determination would have

been different had this evidence been presented.

Van Tran, 1999 WL 177560, at *12. “[F]airminded jurists could disagree” on whether this is the

correct result under federal law, and therefore we must uphold the state court’s decision under

AEDPA as not an unreasonable application of established federal law. See Harrington v.

Richter, 131 S. Ct. 770, 786 (2011).

Accordingly, Van Tran is not entitled to relief for his claim of ineffective assistance of

counsel.

III.

Van Tran is not entitled to relief on his ineffective-assistance-of-counsel or

unconstitutional vagueness claims. The state court’s application of Tennessee law with regard to

whether Van Tran is intellectually disabled under Atkins was contrary to clearly established

federal law. Accordingly, we VACATE and REMAND to the district court so that the district

court may grant a CONDITIONAL WRIT OF HABEAS CORPUS prohibiting execution unless

the State completes a new Atkins hearing consistent with this opinion.