Kevan Brumfield v. Burl Cain, Warden

Case: 12-30256 Document: 00513375522 Page: 1 Date Filed: 02/10/2016

REVISED February 10, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 12-30256 December 16, 2015

Lyle W. Cayce

KEVAN BRUMFIELD, Clerk

Petitioner - Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent – Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before KING, CLEMENT, and ELROD, Circuit Judges.

KING, Circuit Judge:

Petitioner–Appellee Kevan Brumfield was convicted of first degree

murder and sentenced to death in 1995. Following state court proceedings,

Brumfield filed a petition for a writ of habeas corpus in the district court,

arguing that he is ineligible for the death penalty under Atkins v. Virginia, 536

U.S. 304 (2002), because he is intellectually disabled. The district court found

that the state court erred by not holding an Atkins hearing on whether

Brumfield was intellectually disabled. Following a multi-day hearing in 2010,

the district court granted Brumfield a writ of habeas corpus, finding that he

was intellectually disabled under Louisiana’s statutory definition of

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intellectual disability. Without reaching the merits of Brumfield’s claim that

he is intellectually disabled, this court reversed the district court’s judgment.

This court held that because Brumfield had failed to satisfy the requirements

of 28 U.S.C. § 2254(d), the district court should not have reached the merits of

his Atkins claim. The Supreme Court reversed and remanded, holding that

Brumfield had indeed satisfied the requirements of 28 U.S.C. § 2254(d) and

that he was thus entitled to have his claim of intellectual disability under

Atkins evaluated on the merits. On remand, we review for clear error the

district court’s determination that Brumfield is, in fact, intellectually disabled.

Because the district court’s determination that Brumfield is intellectually

disabled is plausible in light of the record as a whole, its determination is not

clearly erroneous. Accordingly, we AFFIRM the ruling of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts and procedural history of this case are recounted exhaustively

in prior opinions. See Brumfield v. Cain, 135 S. Ct. 2269 (2015) [hereinafter

Brumfield (S. Ct.)]; Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014) [hereinafter

Brumfield (5th Cir.)]; Brumfield v. Cain (Brumfield II), 854 F. Supp. 2d 366

(M.D. La. 2012); Brumfield v. Cain (Brumfield I), No. CIV.A.04-787JJB-CN,

2008 WL 2600140 (M.D. La. June 30, 2008); State v. Brumfield, 737 So. 2d 660

(La. 1998) [hereinafter Brumfield (La.)]. We recount the facts and procedural

history as relevant to the limited question before us today.

A. The Original Crime and State Court Proceedings

On January 7, 1993, Petitioner–Appellee Kevan Brumfield and an

accomplice, Henri Broadway, opened fire on a Baton Rouge Police Department

vehicle driven by Corporal Betty Smothers. Smothers was escorting Kimen

Lee, an assistant manager at the grocery store where Smothers worked part

time as a security guard, as Lee made the grocery store’s nightly bank deposit.

Brumfield fired seven rounds from the left side of the police cruiser, and

2

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Broadway fired five rounds from the right side. Lee survived, but Smothers

did not. Baton Rouge police officers arrested Brumfield for Smothers’ murder

on January 11, 1993. When police interrogated Brumfield, he initially denied

any involvement in Smothers’ murder and claimed that he had been with his

brother at the time. After Brumfield’s brother denied that claim, Brumfield

gave a videotaped statement admitting that he drove the getaway car but

denying that he murdered Smothers. Later, Brumfield gave another

videotaped statement where he admitted to being in the bank parking lot and

firing shots at the police car.

Following a multi-week trial in June and July of 1995, a jury found

Brumfield guilty of first degree murder. He was subsequently sentenced to

death on July 3, 1995. Brumfield appealed his conviction, but the Supreme

Court of Louisiana affirmed the state trial court. Brumfield (La.), 737 So. 2d

at 662, 671. And the Supreme Court of the United States denied his petition

for certiorari thereafter. Brumfield v. Louisiana, 526 U.S. 1025 (1999).

In March 2000, Brumfield filed for postconviction relief with a state trial

court before the Supreme Court of the United States issued its decision in

Atkins, 536 U.S. at 321, prohibiting the execution of intellectually disabled

criminals. 1 Brumfield later amended his state petition to assert an Atkins

claim and argued that he was entitled to an evidentiary hearing on his

intellectual disability claim. 2 Brumfield requested funds to develop his claim,

1 Consistent with the Supreme Court’s guidance, we use the term “intellectually

disabled” instead of “mentally retarded.” The two terms describe “identical phenomen[a].”

Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).

2 Brumfield provided the following evidence of his intellectual disability:

1) his IQ score, obtained prior to trial, of 75; 2) his slow progress in school; 3)

his premature birth; 4) his treatment at multiple psychiatric hospitals; 5)

various medications he was prescribed; and 6) testimony that he exhibited

slower responses than “normal babies,” suffered from seizures, and was

hospitalized for months after his birth.

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but the state trial court denied his petition in its entirety on October 23, 2003.

Brumfield then filed a writ with the Supreme Court of Louisiana, alleging,

inter alia, that the trial court erred by failing to hold an Atkins hearing. That

court denied the writ without explanation. Brumfield v. State, 885 So. 2d 580,

580 (La. 2004).

B. Federal District Court Proceedings

Following the Supreme Court of Louisiana’s dismissal of his appeal,

Brumfield petitioned the United States District Court for the Middle District

of Louisiana for a writ of habeas corpus, asking the court “to declare him

[intellectually disabled] and ineligible for the death penalty under Atkins.”

Brumfield II, 854 F. Supp. 2d at 370. Brumfield filed an amended petition in

2007 re-raising his Atkins claim, supported by expert findings developed with

federal funding. A magistrate judge recommended that, although the state

court’s refusal to grant an Atkins hearing was “reasonable and in accordance

with clearly established federal law,” the district court should consider the

additional evidence Brumfield presented in his amended habeas petition. The

magistrate judge explained that Brumfield had demonstrated cause for failing

to provide the state court with expert evidence because the state court denied

him funding to develop this evidence. The magistrate judge further reviewed

the additional evidence submitted by Brumfield and concluded that he had

established a prima facie case of intellectual disability and was thus entitled

to an Atkins hearing. The district court adopted the magistrate judge’s report

and recommendation and held an Atkins hearing July 12–16 and August 3–4,

2010, discussed in detail below. Brumfield II, 854 F. Supp. 2d at 370.

Brumfield (5th Cir.), 744 F.3d at 921 (footnotes omitted).

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In its opinion granting Brumfield a writ of habeas corpus, the district

court first addressed the legal prerequisites to a federal habeas hearing before

addressing the substance of Brumfield’s Atkins claim. Brumfield II, 854 F.

Supp. 2d at 373, 384. Under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Brumfield could obtain federal habeas relief only if, in

rejecting his claim, the state court’s decision “was either ‘contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,’ or was ‘based on an

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

the State court proceeding.’” Brumfield (S. Ct.), 135 S. Ct. at 2275 (quoting 28

U.S.C. § 2254(d)(1), (2)). The district court found that denying Brumfield an

evidentiary hearing without providing him with the funds to develop his Atkins

claim “represented an unreasonable application of then-existing due process

law as determined by the Supreme Court” and therefore satisfied § 2254(d)(1).

Brumfield II, 854 F. Supp. 2d at 383–84. The district court also concluded that

the state trial court’s denial of an Atkins hearing “suffered from an

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

in violation of § 2254(d)(2).” Id. at 379.

The district court then analyzed the merits of Brumfield’s Atkins claim.

In determining whether Brumfield is intellectually disabled—and therefore

barred from being sentenced to death under Louisiana law, La. Code Crim.

Proc. Ann. art. 905.5.1(A)—the district court relied heavily on the American

Association on Intellectual and Developmental Disabilities’ (AAIDD’s) 3 Mental

Retardation: Definition, Classification, and Systems of Support (10th ed. 2002)

[hereinafter Red Book], which “contains the current, consensus definition of

The AAIDD was formerly known as the American Association on Mental Retardation

3

(AAMR).

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[intellectual disability],” as “Louisiana law tracks the clinical definition

provided by the [Red Book].” Brumfield II, 854 F. Supp. 2d at 385–86. To

establish an intellectual disability, the district court explained, “Brumfield

bears the burden of proving by a preponderance of the evidence that he meets

the statutory definition.” Id. at 385 (citing La. Code Crim. Proc. Ann. art.

905.5.1(C)(1)).

All of the experts who testified in this case agreed on the relevant criteria

for diagnosing intellectual disability. 4 Consistent with the guidance from the

United States Supreme Court and the Louisiana Supreme Court and La. Code

Crim. Proc. Art. 905.5.1, the experts agreed that an intellectual disability

diagnosis requires satisfying a three part test: “(1) subaverage intelligence, as

measured by objective standardized IQ tests; (2) significant impairment in

several areas of adaptive skills; and (3) manifestations of this neuro-

psychological disorder in the developmental stage.” Brumfield (S. Ct.), 135 S.

Ct. at 2274 (quoting State v. Williams, 831 So. 2d 835, 854 (La. 2002)). Each

expert also agreed that the diagnosis of intellectual disability is guided by the

same relevant psychological and medical texts authored by the American

Psychiatric Association (APA) and AAIDD. See generally AAIDD, Intellectual

Disability: Definition, Classification, and Systems of Supports (11th ed. 2010)

[hereinafter Green Book]; Red Book; AAMR, User’s Guide: Mental Retardation:

Definition, Classification, and Systems of Supports (10th ed. 2002) [hereinafter

User’s Guide]; APA, Diagnostic and Statistical Manual of Mental Disorders

(rev. 4th ed. 2000) [hereinafter DSM-IV-TR]. While the experts agreed on the

criteria for diagnosing intellectual disability, they disagreed on whether

Brumfield met those criteria.

4At the Atkins hearing, the district court heard testimony from six expert witnesses—

three each for Brumfield and the State—and several other witnesses.

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1. Brumfield’s Three Expert Witnesses

The asserted role of Brumfield’s first expert, Stephen Greenspan, Ph.D., 5

was to educate the court on intellectual disability. While Greenspan did not

evaluate whether Brumfield was intellectually disabled, the district court held

that Greenspan “is one of the foremost [intellectual disability] experts in the

country.” Brumfield II, 854 F. Supp. 2d at 386. Greenspan testified generally

as to the “proper use of the AAIDD’s clinical standards in making diagnoses of

[intellectual disability].” Id.

Beginning with the subaverage intelligence prong of the intellectual

disability test, Greenspan explained that psychologists originally used an IQ

score of 70 as the cutoff for determining whether an individual had an

intellectual disability, but because of advances in scientific and statistical

methods, the AAIDD uses “75 as the upper ceiling now” for a diagnosis of

intellectual disability. Commenting on potential factors that may affect the

validity of an individual’s IQ score, Greenspan explained that if an individual

is “malingering,” which refers to intentionally performing poorly on a test, an

IQ test score may not be valid. He further explained that consistently receiving

the same IQ score across multiple tests generally rules out malingering by an

individual. When Greenspan examined the IQ scores from Brumfield’s

previous tests, the scores “[told him] that [the test subject] here . . . clearly

me[t] prong one because all of these scores [we]re in the mild [intellectual

disability] range.” Greenspan also noted that an individual’s IQ tends to

remain stable over time, implying that Brumfield, absent some incident that

lowered his IQ, has always had an IQ in the intellectually disabled range.

5Greenspan is a licensed psychologist, obtained his Ph.D. in 1976, and (at the time of

the hearing), was employed as a visiting professor at the University of Colorado Medical

School. The district court accepted him as an expert in intellectual disability and adaptive

behavior. Brumfield II, 854 F. Supp. 2d at 386.

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When discussing the second prong of the intellectual disability test—

whether an individual has impairments in adaptive behavior 6—Greenspan

explained that “adaptive functioning usually would determine whether

somebody is really [intellectually disabled]” when a person’s IQ is close to the

cutoff for an intellectual disability diagnosis. “Adaptive behavior has to do

with how one functions in the real world . . . outside of the testing situation.”

Adaptive behavior includes three domains: the practical domain, the social

domain, and the conceptual domain. The practical domain concerns daily

living skills, the social domain concerns whether an individual can conform to

the rules of society, and the conceptual domain concerns quasi-academic skills

applicable to the real world, such as telling time. A diagnosis of intellectual

disability requires “at least one . . . major domain of a relative impairment.”

However, Greenspan was careful to note that an impairment in one domain of

adaptive behavior does not require the complete absence of adaptive behaviors

in that domain and that it does not preclude the possibility that an individual

possesses some strengths in particular areas.

To measure adaptive behavior in an individual, psychologists administer

tests, such as the Adaptive Behavior Assessment System (ABAS)

questionnaires, to people who know or knew the individual being evaluated for

an intellectual disability. Greenspan emphasized that “the more people you

can talk to, the better picture you get of an individual.” He also noted the

importance of interviewing the subject himself. Greenspan testified that when

sufficient records are available, reviewing all of the available information can

shed light on whether an individual has deficits in adaptive functioning. He

further noted that reviewing records is important when evaluating whether an

“Adaptive behavior,” “adaptive functioning,” and “adaptive skills” are used

6

interchangeably in both professional psychology circles and during the district court’s Atkins

hearing.

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individual satisfies the third prong of an intellectual disability diagnosis—

manifestations prior to the age of 18. Additionally, Greenspan explained that

the presence or absence of “maladaptive behavior” is not relevant to the

diagnosis of intellectual disability. Maladaptive behavior involves a “person

act[ing] out” by, for example, “attack[ing] other people” and is “not used

diagnostically.”

Brumfield’s second expert, Ricardo Weinstein, Ph.D., 7 evaluated

Brumfield for intellectual disability. During the course of his evaluation,

Weinstein met with Brumfield on at least three separate occasions for between

five and seven hours each time, administered psychological tests, and

performed a clinical interview with Brumfield. Weinstein also reviewed school

records, medical records, and other records relevant to Brumfield’s past.

Finally, Weinstein interviewed at least 14 different individuals who knew

Brumfield. Based on his evaluation, Weinstein diagnosed Brumfield as

intellectually disabled.

Focusing on the first criterion for intellectual disability, Weinstein

administered two IQ tests to Brumfield in 2007. Id. at 389. Brumfield scored

a 72 (95% confidence interval of 69–77) on the Stanford-Binet V and a 70 (95%

confidence interval of 65–75) on the C-TONI. Both of these scores fall within

the intellectually disabled range and thus meet the first prong of the

intellectual disability test. Weinstein also noted that Brumfield’s scores on

previous IQ tests were consistent with an intellectual disability diagnosis. 8

7 Weinstein received his Ph.D. in 1971, and at the time of the hearing, he practiced

forensic psychology. The district court accepted him as an expert in intellectual disability

and forensic neuropsychology. Id. Although the State questioned his credentials, correctly

pointing out that he received his Ph.D. from a non-traditional school that is no longer in

operation, we note that he is licensed by the State of California and completed a post-doctoral

certificate at the Fielding Institute.

8 Based on other psychological testing, Weinstein ruled out malingering as a possible

explanation for Brumfield’s IQ scores.

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Specifically, a 1995 administration of the WAIS-R by then-defense expert Dr.

Bolter resulted in a score of 75 (95% confidence interval of 70–80), and a 2009

administration of the WAIS-IV by State’s expert Dr. Hoppe yielded a score of

70 (95% confidence interval of 67–75). Because all four of Brumfield’s full-scale

IQ scores fell within the intellectually disabled range, Weinstein concluded

that Brumfield had satisfied the first requirement for an intellectual disability

diagnosis.

With respect to his evaluation of Brumfield’s adaptive functioning,

Weinstein explained that his job as a psychologist “is to identify deficits,” and

not to identify strengths in adaptive behavior, as “the issue . . . of . . . strengths

is not relevant.” His evaluation of Brumfield’s adaptive functioning included

his interviews with Brumfield and his review of relevant records. Additionally,

Weinstein administered ABAS questionnaires to six people who knew

Brumfield during his developmental years. However, because Weinstein

admitted that the results of the ABAS questionnaires were “not very reliable,” 9

the district court “f[ound] these tests to be of little or no value,” and did not

rely on them in reaching its conclusion on Brumfield’s intellectual disability.

Id. at 393. The court did, however, consider Weinstein’s interviews with the

people to whom he administered the ABAS questionnaires and at least eight

other individuals, as well as his review of the records.

Based on these interviews and his review of school, hospital, and group

home records, Weinstein “identif[ied] very significant deficits in all three

domains” of adaptive behavior. First, Weinstein noted that Brumfield was

9 As Weinstein explained, the ABAS was designed to be used contemporaneously while

he was “trying to see how Mr. Brumfield functioned prior to the age of 18,” which required

him to “ask[] people to remember how [Brumfield] functioned” in the past. Because “these

backward-looking questions rely principally upon the memories of the test-takers regarding

Brumfield’s abilities dating back 15–20 years,” id. at 393, the scores derived from the ABAS

are not, in Weinstein’s opinion, very reliable.

10

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developmentally delayed. For example, Brumfield was “two years behind his

chronological age in terms of achievement or even grade levels.” Weinstein

also noted impairment in Brumfield’s “visual motor coordination.” In

particular, “Brumfield’s writing abilities are severely limited.” According to

Weinstein, to write a letter Brumfield “needs to have a guide” and “uses a piece

of cardboard that he puts underneath the line” in order to write in a straight

line. Brumfield “takes . . . a very long time to write a letter”; in fact, a one page

letter “take[s him] several days to write.” When writing, Weinstein noted,

Brumfield “gets assistance from people in death row.”

With respect to Brumfield’s behavior in the community, Weinstein

testified that after “look[ing] at the records [and] talk[ing] to people,” he

concluded that Brumfield “had problems with attention” and “with language

comprehension.” Weinstein also concluded that Brumfield never learned any

skills that could lead to gainful employment. Although Brumfield quit his job

in order to sell drugs so that he could make more money, Weinstein stated that

this did not suggest that Brumfield was able to obtain or maintain gainful

employment.

Commenting on the third prong of the intellectual disability inquiry,

Weinstein noted that many of the adaptive behavior deficits, such as

Brumfield’s academic progress lagging two years behind his age, were present

during Brumfield’s developmental years. Although not part of the intellectual

disability diagnosis, Weinstein pointed to several risk factors present in

Brumfield’s history that support the conclusion that Brumfield manifested

symptoms of an intellectual disability before he turned 18. For example,

Brumfield’s mother “had psychiatric problems and was being medicated” and

did not have “access to prenatal care . . . until she was about six months

pregnant.”

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Brumfield’s third expert, Victoria Swanson, Ph.D., also evaluated him

for intellectual disability. 10 Swanson initially reviewed Brumfield’s records,

particularly his school records, and the reports of other experts. Based on this

review, she confirmed the earlier diagnosis of intellectual disability. Although

she did not meet with Brumfield prior to confirming his intellectual disability

diagnosis, she later met with him for five hours, interviewed people familiar

with Brumfield during his developmental years, and broadened her review of

the records. Swanson stated that nothing she reviewed or learned after writing

her report changed her opinion or diagnosis.

After reviewing all of the full-scale IQ scores Brumfield had received,

Swanson opined that all of his scores fell within the range of intellectual

disability and therefore concluded that Brumfield had satisfied the first prong

of the intellectual disability test. Turning to the second prong—adaptive

behavior—Swanson discussed Brumfield’s educational history extensively. In

1983, two teachers referred Brumfield for an evaluation within the school

system. As part of this evaluation, Brumfield took a number of psychological

tests, which indicated that Brumfield was functioning academically between

20 and 41 months behind his chronological age. 11 Based on the results of this

evaluation, Brumfield was given the “exceptionality of behavior disorder” and

10 Swanson is a licensed psychologist in the State of Louisiana, and received her Ph.D.

from Louisiana State University (LSU) in 1999. She has over 20 years of experience working

with intellectually disabled patients. She also assisted the Louisiana legislature in drafting

the bill that eventually became the statute governing intellectual disability at issue in this

case. The district court accepted Swanson as an expert in intellectual disability and

psychology.

11 The Illinois Test for Polylinguistic Abilities indicated that he was functioning at an

age level 41 months behind his chronological age, the Peabody Picture Vocabulary Test

indicated Brumfield was 20 months below his chronological age level, and the Woodcock

Language Proficiency Battery indicated Brumfield lagged approximately 24 months behind

his chronological age. As measured by the Woodcock-Johnson Psychoeducational Battery in

1983, Brumfield’s reading level fell into the seventh percentile.

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placed into a classroom setting appropriate for students with this disorder. 12

After spending three years in the special education classroom, Brumfield again

took a number of psychological tests. Explaining these tests, Swanson noted

that “there hasn’t been any progress academically over the three years that

[Brumfield] continued to be in [the behavior disorder] class, and he seems to

have plateaued at about the same grade level.” She further opined that

Brumfield did not make any progress in the behavior disorder classroom

because he, in fact, suffered from an intellectual disability. Explaining that

students with behavior disorder typically catch up to their peers once their

behavioral needs are met, Swanson stated that Brumfield simply plateaued

between a fourth and sixth grade level, which was “consistent with a person

with [an intellectual disability] more so than with a person who is just

behaviorally disordered.”

Swanson also discussed Brumfield’s reading and writing skills at length.

She noted that, while in prison, Brumfield possessed both elementary-school-

level and collegiate dictionaries, but he was only able to effectively use the

elementary-school-level dictionary. Discussing his reading ability more

generally based on her interview with Brumfield, she said “he was able to read

60 words a minute, which is extremely low for someone his age, but would be

consistent for someone with a fourth grade reading level trying to read at the

tenth.” Based on her evaluation of Brumfield, Swanson opined that “a

diagnosis of [intellectual disability] would be appropriate for [Brumfield]. He

12 Swanson explained that individuals can have both a behavior disorder and an

intellectual disability. Moreover, “[t]here is a high instance of aggression amongst students

with [intellectual disability]” because they “are being asked to do things that they can’t do,”

which leads to frustration and aggression. When a student has both a behavior disorder and

an intellectual disability, she explained, schools often place the student into the behavior

disorder classroom.

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meets criteria one; he meets criteria two, and . . . there’s evidence of deficits in

at least two areas prior to the age of 18.”

2. The State’s Three Expert Witnesses

The State’s first expert was Donald Hoppe, Psy.D. 13 Hoppe explained

that his primary role in evaluating Brumfield “was the administration of IQ

testing in determining an IQ range.” Hoppe administered the WAIS–IV, which

is one of the “gold standard” IQ tests, to Brumfield on March 13, 2009. On this

test, Brumfield obtained a full-scale IQ score of 70 with a 95% confidence

interval of 67 to 75. Hoppe explained that these “results are not that different

from the results of Dr. Weinstein’s testing,” suggesting that the IQ scores

obtained by both Hoppe and Weinstein are credible. Hoppe noted that he

believed “that these scores represent the low end of what Mr. Brumfield’s

intellectual range is” because “with more effort, his scores would have been

higher.” However, Hoppe explicitly agreed that Brumfield meets the first

requirement of an intellectual disability diagnosis based on the IQ test he

administered and the previous scores that were consistently between 70 and

75.

Although his primary role was to administer IQ testing to Brumfield,

Hoppe also reviewed the available records from Brumfield’s past and

commented generally on whether Brumfield is intellectually disabled. 14 Hoppe

noted that Brumfield had taken an IQ test in 1984, and although no actual

score was included in the records concerning the test, a report indicated that

Brumfield scored in the “dull normal” range which implied a score between 80

13 Hoppe received his doctorate from Baylor University in 1981 and is a licensed

psychologist in the State of Louisiana. He estimated that he has performed “hundreds, if not

thousands” of IQ tests over his career. The district court accepted Hoppe as an expert in

“clinical and forensic psychology.”

14 Hoppe did not interview anyone familiar with Brumfield. He only reviewed written

records.

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and 89. Hoppe further noted that although Brumfield had been evaluated

previously by psychologists and psychiatrists, he was only diagnosed with

conduct disorder, 15 never with an intellectual disability.

Hoppe also discussed Brumfield’s past as it related to the adaptive

functioning prong of the intellectual disability test. Discussing Brumfield’s

two videotaped confessions to the police following the murder of Corporal

Smothers, Hoppe stated that these were “good snapshot[s] of what . . .

[Brumfield] was functioning like at the time of the crime.” Hoppe noted that

Brumfield appeared to be quick-thinking and gave a “detailed description of

the streets in Baton Rouge,” which was not consistent with his having an

intellectual disability. With respect to the crime itself, Hoppe agreed that it

was fairly complicated, requiring planning and coordination. Hoppe also

explained that Brumfield’s previous criminal behavior was important to his

conclusion that Brumfield has no intellectual disability. Brumfield appeared

to pick “weak victims” in several successive crimes, suggesting that he has the

capacity to plan and organize.

Discussing earlier details of Brumfield’s life, Hoppe opined that

Brumfield’s lack of long-term employment, his lack of a checking account, and

the fact that he never entered into a contract, could result from Brumfield

being lazy or the fact that he was only 20 years old when he was arrested. He

stated that these factors did not necessarily suggest that Brumfield has an

intellectual disability. Hoppe also stated that drug dealing is “a form of

employment” and that selling drugs requires a skill set that is not necessarily

compatible with an intellectual disability diagnosis.

15Conduct disorder is, essentially, the childhood version of antisocial personality

disorder. “The essential feature of conduct disorder is a repetitive pattern of behavior in

which the basic rights of others or major age-appropriate norms or rules are violated,” i.e.,

conduct disorder is characterized by aggressive behavior.

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The State’s second expert, Robert V. Blanche, M.D., 16 testified primarily

as to whether Brumfield had deficits in adaptive functioning. Although

Blanche evaluated Brumfield for intellectual disability, he had never heard of

the AAMR/AAIDD, Red Book, Green Book, or User’s Guide before his deposition

in this case and “was thus unfamiliar with [the AAIDD’s] diagnostic

definitions.” 17 Id. at 388. He stated that instead of the AAIDD’s materials and

definitions, psychiatrists rely on the DSM-IV instead. In explaining his

evaluation of Brumfield, Blanche noted that he was not familiar with the

standard adaptive behavior scales used by psychologists and had received no

formal training in administering psychological testing.

In conducting his evaluation, Blanche did not interview anyone other

than Brumfield himself, noting that he did not “feel that [he] would get reliable

information” from such interviews. Therefore, beyond his interview with

Brumfield, Blanche’s inquiry into Brumfield’s adaptive functioning was

limited to the available written records. In the records Blanche reviewed, there

was no diagnosis of intellectual disability prior to the Atkins hearing despite

multiple evaluations by psychologists and psychiatrists in the past. Blanche

explained that Brumfield’s case was “a classic case of conduct disorder” and

noted that, while many of the psychologists and psychiatrists who had

previously evaluated Brumfield had diagnosed him with some form of conduct

disorder, none of them had diagnosed him with an intellectual disability.

Reviewing Brumfield’s records from the several group homes where he

resided over the years, Blanche recalled a number of reports that Brumfield

participated in sports and other group activities. Assessing the two videotaped

16 Blanche received his M.D. from LSU Medical School in 1981 and, at the time of the

hearing, worked part time as a psychiatrist in the East Baton Rouge Parish jail, where he

identified prisoners in need of mental health care. The district court accepted him as an

expert in forensic psychiatry.

17 Blanche admitted this in a deposition that took place in January 2010.

16

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confessions Brumfield gave to the police following Corporal Smothers’ murder,

Blanche noted that Brumfield had no problems explaining himself to the police

even in the face of complex questions. Based on Brumfield’s description of the

events leading up to Smothers’ murder, Blanche concluded that the crime

clearly involved planning, as Brumfield “scoped out [the] situation.”

Additionally, Blanche explained that Brumfield’s other behaviors in the

community, though often illegal, also demonstrated his adaptive behavior. For

example, Brumfield chose to deal drugs instead of working a typical job not

because he was unable to work a typical job but because dealing drugs was

more lucrative. Similarly, Brumfield was able to “rent” a car by offering its

owner drugs in exchange for the use of the car. Based on his review of the

available records, Blanche concluded that, “to a reasonable medical certainty,

[Brumfield] is not [intellectually disabled].”

Despite this conclusion, Blanche admitted, on cross-examination, that

“[Y]eah. I think he has some weaknesses. And in adaptive functioning that

there are some—there are some, I will call it deficient. But to how significant

they are, is, I think, a question.” He further agreed that Brumfield possesses

weaknesses in several domains of adaptive functioning. Identifying specific

weaknesses, Blanche stated that Brumfield’s impulsivity fits into the social

domain of adaptive behavior and his inability to follow rules fits into the

practical domain of adaptive behavior.

The State’s final expert, John Bolter, Ph.D., 18 had previously evaluated

Brumfield in 1995, written a report based on that evaluation, and testified in

the penalty phase of Brumfield’s original trial. However, all of Bolter’s original

records and raw data from his 1995 evaluation were destroyed. Bolter stated

18 Bolter received his Ph.D. from the University of Memphis, and at the time of the

hearing was a practicing clinical neuropsychologist.

17

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he remembered little about Brumfield’s 1995 evaluation and did not

independently recall which materials he reviewed as part of that evaluation.

Over Brumfield’s objection, the court accepted Bolter as an expert but

restricted his testimony to the scope of his 1995 report. Id. at 388.

In preparing his report, Bolter administered “a standard

neuropsychological battery of tests to explore . . . brain function, assessing

things such as visual spatial skills, language functioning, memory abilities,

conceptual or executive functions, motor functions, and basic sensory

perception functions.” Based on the tests he ran, Bolter “didn’t see any clear

evidence of organic brain dysfunction.” He “saw that [Brumfield] had what

[Bolter] thought was an attention deficit hyperactivity disorder and . . .

nonspecific learning difficulties . . . borderline intellectual functioning, and . .

. an antisocial personality.” Bolter also administered the WAIS-R to Brumfield

to measure his IQ. His full-scale IQ score was “in the range of 75” which put

Brumfield in the “borderline mentally defective range.” Based on this test and

all of the information available to him in 1995, Bolter did not diagnose

Brumfield with an intellectual disability.

3. Other Witnesses and Expert Materials

In addition to its three experts, the State called five other witnesses to

testify at Brumfield’s Atkins hearing. Warrick Dunn was Corporal Smothers’

oldest son. Dunn met with Brumfield on October 23, 2007. Commenting on

Brumfield’s verbal abilities, Dunn stated that the two of them “had a

conversation like two adults” and agreed that Brumfield was able to express

himself well. Jerry Callahan, a retired Baton Rouge Police Department

lieutenant, was the lead investigator of Corporal Smothers’ murder. Callahan

interrogated Brumfield and was responsible for videotaping Brumfield’s two

confessions. Callahan stated that during the five hours he spent with

Brumfield, Brumfield never had any problems communicating and, in fact,

18

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“communicated easily.” None of the State’s final three witnesses testified

substantively on Brumfield’s intellectual disability.

In addition to his three testifying experts, Brumfield also relied on a

report compiled by James Merikangas, M.D. 19 In his report, Merikangas

stated that a neurological examination of Brumfield revealed no acquired brain

damage or ongoing disease. The district court recognized that the implication

of this report is that Brumfield’s cognitive deficiencies stem from an underlying

disability, as no physical damage to Brumfield’s brain explains his problems.

Additionally, the report implies that these deficiencies have been present for

the entirety of Brumfield’s life, as no physical damage occurring after his

developmental years explains his problems.

4. The District Court’s Conclusion on Intellectual Disability

Beginning with the first prong of the intellectual disability test, the

district court found that, based on its analysis of Louisiana law and the mental

health literature, “an IQ score of 75 or below does not preclude a finding of mild

[intellectual disability] for Atkins purposes.” Brumfield II, 854 F. Supp. 2d at

389. After listing Brumfield’s scores on previous IQ tests, the court explained

that his “scores consistently show him scoring between 70 and 75 on various

IQ tests, a range which falls squarely within the upper bounds of mild

[intellectual disability] according to the AAIDD's clinical definition.” Id. at

389–90. Further, the court noted that “[e]very expert that has testified in this

matter has admitted that Brumfield meets the intellectual functioning prong

of the [intellectual disability] test as set forth in La.C.Cr.P. art. 905.5.1(H)(1).”

Id. at 390.

Turning to the second prong and relying on the Red Book, the court

explained that “Prong Two involves an assessment of Brumfield's adaptive

19 Merikangas received his M.D. in 1969 and is board certified in neuropsychiatry.

19

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skills in the areas of conceptual, social, and practical skills” and that “[h]e must

show a significant limitation in at least one of those three domains to satisfy

the adaptive skills prong.” Id. at 392 (citing Red Book, supra, at 14). “Without

reliable standardized measures available, the [district c]ourt [relied] on the

testimony of the expert witnesses and their reports, the [c]ourt’s independent

evaluation of Brumfield’s social, educational, medical, and criminal histories,

and a common sense appraisal of Brumfield’s actions and abilities.” Id. at 393.

In doing so, the district court remained cognizant that an intellectual disability

“is ruled in by areas of impairment but is not ruled out by areas of competence”

and that “‘people with [intellectual disabilities] are complex human beings’

who may have ‘strengths in one aspect of an adaptive skill in which they

otherwise show an overall limitation.’” Id. (quoting Red Book, supra, at 8). The

court further noted that it “must take into account the retrospective diagnostic

guideline admonishing practitioners to ‘not use past criminal behavior or

verbal behavior to infer [a] level of adaptive behavior.’” Id. (quoting Red Book,

supra, at 22). However, the court recognized the “propensity of Louisiana

courts to take such maladaptive criminal behavior into account when

discussing the adaptive skills prong of the [intellectual disability] test.” Id. at

394.

“With these important precepts in mind,” the district court evaluated

each of the three domains of adaptive behavior under the AAIDD guidelines.

Id. at 396. The court began with the conceptual skills, or “functional

academics,” domain. Id. First, the court found that “Brumfield's writing

abilities are severely limited,” as he “cannot write freehand” and “takes an

inordinate amount of time to write a simple, one-page letter.” Id. Second,

Brumfield does not have adequate reading abilities, as he reads at “a fourth

grade level.” Id. Third, “Brumfield has a dismal record of academic

accomplishments in the classroom.” Id. And Brumfield “reached a plateau

20

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somewhere between the fourth and sixth grade, which is where mildly

[intellectually disabled] individuals generally fall.” Id.

Based on the procedural posture of this case, the district court noted that

it was required to “view, more or less in isolation, whether Brumfield [met] the

clinical criteria.” Id. at 401. In weighing the credibility of the experts in this

case, the district court ultimately found the testimony of Weinstein and

Swanson more credible than the testimony of Blanche on the second prong of

the intellectual disability test. 20 Id. Blanche “lacked basic knowledge about

the AAIDD’s standards until he was deposed in this case shortly before the

hearing.” Id. Blanche also “failed to conduct interviews with anyone other

than Brumfield himself, which [ran] afoul of the basic guidelines for

retrospective diagnoses.” Id. Beyond the expert testimony, the court held that

it could not “accord great weight to the facts of the crime, even though they

must be taken into account, because the diagnostic guidelines for assessing

maladaptive behavior as a part of adaptive skills ha[d] not been sufficiently

shown to be present in th[e] case.” Id.

“Ultimately, the [district c]ourt f[ound] that, based on the credibility of

petitioner’s witnesses combined with the documented problems with the bases

of testimony by the State’s experts, Brumfield [showed] by a preponderance of

the evidence that he ha[d] significantly limited conceptual skills.” Id. “[O]n

balance, the evidence [demonstrated that Brumfield met] the AAIDD’s

definition of [intellectual disability] with respect to the conceptual domain of

adaptive behavior.” Id. “Because Brumfield’s deficit in conceptual skills

20 The State’s other expert, Hoppe, did not make any determinations on whether

Brumfield had significant limitations in adaptive behavior.

21

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satisfie[d] Prong Two of the [intellectual disability] test, the [district c]ourt

[conducted] only a brief review of the other two domains.” 21 Id.

The district court next addressed the final prong of the intellectual

disability test: whether the disability manifested prior to age 18. Id. at 403.

The court credited Weinstein’s unrebutted testimony that “there is no question

that [Brumfield] had very serious problems from very early on in life.” Id.

Swanson reached a similar conclusion in her report. Id. Merikangas evaluated

Brumfield in 2007 and concluded that he had no “acquired brain damage or

ongoing disease that might negate the existence of an organic reason for

Brumfield’s [intellectual disability].” Id. While Brumfield was evaluated

during his youth by “no less than six doctors,” none of whom diagnosed him as

intellectually disabled, “Swanson [gave] the [c]ourt a compelling reason to not

draw a negative inference due to the lack of childhood diagnosis.” Id. at 403–

04.

Additionally, “[e]tiological factors appear[ed] to bolster the conclusion

that Brumfield was and is [intellectually disabled].” 22 Id. at 404. Weinstein

testified that Brumfield’s mother “took psychotropic medication during her

pregnancy” and that Brumfield weighed only “three and a half pounds” and

suffered fetal distress at birth. Id. “The etiological risk factors, along with

21 Analyzing the social skills domain, the court found that “[o]n balance, this domain

[was] a close call, but [it] d[id] not find Brumfield [met] the criteria for a significant overall

deficit in the domain of social skills.” Id. at 402. Considering the practical skills domain,

the court found that “Brumfield ha[d] not met his burden of showing he ha[d] significant

deficits in practical skills.” Id. at 403.

22 As Greenspan explained, “[e]tiology has to do with cause and effect or things that

put the person at risk that could explain why he became [intellectually disabled].” Greenspan

further explained that “for the most part, when we talk about etiology, we are talking about

something biological,” such as “an infection or a brain malformation that came about in utero

. . . [or] some physical cause that organically places the person at risk” of developing an

intellectual disability. Environmental causes of intellectual disability also exist, such as

severe child abuse; and some etiological risk factors are both environmental and biological

such as “oxygen deprivation at birth, or a low birth weight.”

22

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Brumfield’s school and medical records, indicate[d] that his mental health

problems and developmental delays occurred prior to adulthood.” Id. at 405.

“Based on the showing of substantial intellectual functioning and adaptive

behavior deficiencies detailed above, the [district c]ourt credit[ed] the

testimony of Brumfield’s experts and f[ound that] Brumfield ha[d] met his

burden to show by a preponderance of the evidence that those deficits occurred

before he turned 18.” Id. Because the district court concluded that Brumfield

was intellectually disabled, it granted his petition for a writ of habeas corpus,

rendering him ineligible for execution. Id. at 405–06.

C. Proceedings in the Fifth Circuit and Supreme Court

The State timely appealed the district court’s grant of the writ to this

court. Brumfield (5th Cir.), 744 F.3d at 922. This court reversed the district

court, concluding that Brumfield’s habeas petition did not satisfy either of

§ 2254(d)’s requirements. Id. at 927. First, because this court determined

that none of the Supreme Court’s precedents required a state court to grant an

Atkins petitioner funds to develop his claim, it rejected the district court’s

conclusion that the state court had unreasonably applied clearly established

federal law. Id. at 925–26. Second, because this court’s “review of the record

persuade[d it] that the state court did not abuse its discretion when it denied

Brumfield an evidentiary hearing,” it held that the state court’s decision did

not rest on an unreasonable determination of the facts. Id. at 926. Having

concluded that Brumfield failed both of the requirements of 28 U.S.C.

§ 2254(d), this court did not review the district court’s determination that

Brumfield was intellectually disabled. Id. at 927. However, in a footnote, this

court noted that “[e]ven if we were to consider the new evidence presented to

the district court, we likely would hold that Brumfield failed to establish an

Atkins claim.” Id. at 927 n.8.

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The Supreme Court granted certiorari and vacated this court’s decision

on June 18, 2015, in a 5–4 decision. Brumfield (S. Ct.), 135 S. Ct. at 2283. The

Court explained that to obtain an Atkins evidentiary hearing, a defendant in

Louisiana must “put forward sufficient evidence to raise a ‘reasonable ground’

to believe him to be intellectually disabled.” Id. at 2274 (citing Williams, 831

So. 2d at 861). The Court held that the state court’s refusal to grant Brumfield

an Atkins hearing rested on two unreasonable factual determinations that

related directly to the three-part test for intellectual disability. Id. at 2276–

82. First, the Court noted that “the state court apparently believed” that

Brumfield’s IQ score of 75 and an expert witness’s testimony that he “may have

scored higher on another test . . . belied the claim that Brumfield was

intellectually disabled because they necessarily precluded any possibility that

he possessed subaverage intelligence.” Id. at 2277. However, the Court

explained, “this evidence was entirely consistent with intellectual disability.”

Id. The Court further explained—relying on its prior decision in Hall v.

Florida, 134 S. Ct. 1986 (2014), and Louisiana statutory law and caselaw—

that “Brumfield’s reported IQ test result of 75 was squarely in the range of

potential intellectual disability.” Id. at 2278. “To conclude . . . that Brumfield’s

reported IQ score of 75 somehow demonstrated that he could not possess

subaverage intelligence therefore reflected an unreasonable determination of

the facts.” Id.

Second, the Court held that the state court unreasonably determined

that “the record failed to raise any question as to Brumfield’s ‘impairment . . .

in adaptive skills.’” Id. at 2279. Even under the interpretation of the second

prong of the intellectual disability test “most favorable to the State,” the Court

held that it was unreasonable for the state court to conclude that Brumfield

lacked deficits in adaptive behavior. Id. at 2279–81. The Court noted a

number of examples of Brumfield’s deficits in the state trial court record. Id.

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at 2279–80. For example, when Brumfield was born, he had a low birth weight

and “slower responses than other babies.” Id. at 2279. Brumfield was placed

“in special classes in school and in multiple mental health facilities.” Id. One

report from one of these facilities “questioned his intellectual functions,” and

Dr. Bolter noted that Brumfield had only a “fourth-grade reading level . . . with

respect to ‘simple word recognition,’” and did not even reach that level with

respect to “comprehension.” Id. at 2280. “All told,” the Court concluded, “the

evidence in the state-court record provided substantial grounds to question

Brumfield’s adaptive functioning” because “[a]n individual, like Brumfield,

who was placed in special education classes at an early age, was suspected of

having a learning disability, and can barely read at a fourth-grade level,

certainly would seem to be deficient in both ‘[u]nderstanding and use of

language’ and ‘[l]earning.’” 23 Id. (alteration in original) (citation omitted).

Finally, with respect to the third prong of the test, the Court noted that

“the state trial court never made any finding that Brumfield had failed to

produce evidence suggesting he could meet this age-of-onset requirement.” Id.

at 2282. Therefore, there was no “determination on that point to which a

federal court had to defer in assessing whether Brumfield satisfied § 2254(d).”

Id. The Court noted that “[i]f Brumfield presented sufficient evidence to

suggest that he was intellectually limited, as we have made clear he did, there

is little question that he also established good reason to think that he had been

23 The Court also noted that:

An individual who points to evidence that he was at risk of “neurological

trauma” at birth, was diagnosed with a learning disability and placed in special

education classes, was committed to mental health facilities and given

powerful medication, reads at a fourth-grade level, and simply cannot “process

information,” has raised substantial reason to believe that he suffers from

adaptive impairments.

Id. at 2281.

25

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so since he was a child.” Id. at 2283. Based on its conclusion that the state

trial court decision “was based on an unreasonable determination of the facts

in light of the evidence,” 28 U.S.C. § 2254(d)(2), the Supreme Court held that

“Brumfield ha[d] satisfied the requirements of § 2254(d).” Brumfield (S. Ct.),

135 S. Ct. at 2283. Accordingly, the Court reversed the judgment of this court

and remanded the case for further proceedings. Id. The sole remaining issue

on remand is whether the district court clearly erred when it found Brumfield

was intellectually disabled, as the Supreme Court held that Brumfield had

satisfied § 2254(d) and that Brumfield “was therefore entitled to have his

Atkins claim considered on the merits in federal court.” Id. at 2273.

II. STANDARD OF REVIEW

“[T]he determination of whether a defendant is [intellectually disabled]

is inherently an intensively factual inquiry.” State v. Williams, 22 So. 3d 867,

887 (La. 2009); see also State v. Turner, 936 So. 2d 89, 98 (La. 2006). Because

intellectual disability is a factual finding, this court reviews a district court’s

determination that an individual is intellectually disabled for clear error. 24

Rivera v. Quarterman, 505 F.3d 349, 361 (5th Cir. 2007).

“A finding is clearly erroneous only if it is implausible in the light of the

record considered as a whole.” Id. (quoting St. Aubin v. Quarterman, 470 F.3d

1096, 1101 (5th Cir. 2006)); see also Anderson v. City of Bessemer City, 470 U.S.

564, 573 (1985) (“[A] finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been committed.” (quoting

United States v. United States Gypsum Co., 333 U.S. 364, 394–95 (1948))). “If

24The State never mentions the standard of appellate review in its brief, and despite

direct questions at oral argument, the State refused to acknowledge the appropriate standard

of review. In its brief and also at oral argument, the State argued that the district court

refused to introduce the state trial court record into evidence when, in fact, the district court

allowed the State to introduce the vast majority of the state court record into evidence.

26

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the district court’s account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed

the evidence differently.” Anderson, 470 U.S. at 573–74. “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” Id. at 574. The Supreme Court has explained that:

[W]hen a trial judge’s finding is based on his decision to credit the

testimony of one of two or more witnesses, each of whom has told

a coherent and facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally inconsistent, can

virtually never be clear error.

Id. at 575. This court “cannot second guess the district court’s decision to

believe one witness’ testimony over another’s or to discount a witness’

testimony,” and is thus “reluctant to set aside findings that are based upon a

trial judge’s determination of the credibility of witnesses.” Canal Barge Co. v.

Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).

III. INTELLECTUAL DISABILITY

Although the determination of whether an individual has an intellectual

disability under Atkins is necessarily a question for the court to decide, this

determination is heavily informed by clinical standards and guidelines. In

Atkins, when the Supreme Court left to states the task of implementing its

holding that intellectually disabled individuals may not be executed, it cited

with approval the clinical standards of the AAIDD and APA. Atkins, 536 U.S.

at 308–09, 317. The Supreme Court of Louisiana first implemented the Atkins

mandate in Williams, 831 So. 2d at 835. Noting that the Atkins Court adopted

a “‘clinical definition’ of [intellectual disability],” the Supreme Court of

Louisiana explicitly relied on the definition of intellectual disability developed

by the AAIDD and the APA in crafting the test for intellectual disability. Id.

at 852.

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Following Atkins and Williams, Louisiana enacted a statute providing

that “[n]otwithstanding any other provisions of law to the contrary, no person

who is [intellectually disabled] shall be subjected to a sentence of death.” La.

Code Crim. Proc. Ann. art. 905.5.1(A). The statute defining intellectual

disability at the time of the Atkins hearing provided as follows:

(1)“[Intellectual disability]” means a disability characterized by

significant limitations in both intellectual functioning and

adaptive behavior as expressed in conceptual, social, and practical

adaptive skills. The onset must occur before the age of eighteen

years.

La. Code Crim. Proc. Ann. art. 905.5.1(H). 25 As Swanson stated in her

testimony and as the district court noted, this definition tracks the Red Book’s

definition of intellectual disability. The Red Book provides that “[intellectual

25The Louisiana legislature amended the statute in June 2014, which currently reads

as follows:

A. Notwithstanding any other provisions of law to the contrary, no person with

an intellectual disability shall be subjected to a sentence of death.

...

H. (1) “Intellectual disability”, formerly referred to as “mental retardation”, is

a disability characterized by all of the following deficits, the onset of which

must occur during the developmental period:

(a) Deficits in intellectual functions such as reasoning, problem

solving, planning, abstract thinking, judgment, academic

learning, and learning from experience, confirmed by both

clinical assessment and individualized, standardized

intelligence testing.

(b) Deficits in adaptive functioning that result in failure to meet

developmental and sociocultural standards for personal

independence and social responsibility; and that, without

ongoing support, limit functioning in one or more activities of

daily life including, without limitation, communication, social

participation, and independent living, across multiple

environments such as home, school, work, and community.

La. Code Crim. Proc. Ann. art. 905.5.1. The district court relied on the older version of the

statute, and we do the same here. However, we note that while the new statute is worded

differently, the test for intellectual disability remains largely unchanged.

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disability] is a disability characterized by significant limitations both in

intellectual functioning and in adaptive behavior as expressed in conceptual,

social, and practical adaptive skills,” and that “[t]his disability originates

before age 18.” Red Book, supra, at 1. Since this statute was enacted, the

Supreme Court has reiterated that “[t]he clinical definitions of intellectual

disability . . . were a fundamental premise of Atkins.” Hall, 134 S. Ct. at 1999.

In this case, the Supreme Court again cited with approval the clinical

guidelines on intellectual disability. Brumfield (S. Ct.), 135 S. Ct. at 2274,

2278. Therefore, the district court properly relied on the clinical guidelines of

the AAIDD and APA in assessing whether Brumfield satisfied the statutory

test for intellectual disability, and we similarly look to these guidelines in our

review of the district court’s decision. In reviewing the district court’s decision,

we address seriatim the three prongs of the test for intellectual disability.

A. First Prong: Intellectual Functioning

The assessment of an individual’s intellectual functioning requires the

administration of standardized intelligence testing. “The ‘significant

limitations in intellectual functioning’ criterion for a diagnosis of intellectual

disability is an IQ score that is approximately two standard deviations below

the mean, considering the standard error of measurement for the specific

instruments used.” Green Book, supra, at 31; accord Red Book, supra, at 58

(“[T]he ‘intellectual functioning’ criterion for diagnosis of [intellectual

disability] is approximately two standard deviations below the mean,

considering the [standard error of measurement] for the specific assessment

instruments used.”). As Greenspan explained, IQ tests are normalized so

that the mean score is 100 and the standard deviation is 15; thus, two standard

deviations below the mean equates to a score of 70. This is consistent with the

assessment of Louisiana law by the Supreme Court of the United States, as it

explained that, “[t]o qualify as ‘significantly subaverage in general intellectual

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functioning’ in Louisiana, ‘one must be more than two standard deviations

below the mean for the test of intellectual functioning.’” Brumfield (S. Ct.),

135 S. Ct. at 2277 (quoting Williams, 831 So. 2d at 853).

Although a score of 70 is two standard deviations below the mean score,

both the Supreme Court of the United States and the Louisiana Supreme Court

have rejected a bright-line numerical cutoff for intellectual disability. See Hall,

134 S. Ct. at 1996; Williams, 22 So. 3d at 888. As the Supreme Court of the

United States explained in Hall, “[t]he concept of standard deviation describes

how scores are dispersed in a population,” but “[s]tandard deviation is distinct

from standard error of measurement, a concept which describes the reliability

of a test.” 134 S. Ct. at 1994. The Court further explained that the standard

error of measurement “reflects the reality that an individual’s intellectual

functioning cannot be reduced to a single numerical score.” Id. at 1995.

Therefore, “an individual’s score is best understood as a range of scores on

either side of the recorded score.” Id. Thus, scores higher than 70 can satisfy

the first prong of the intellectual disability test. The Supreme Court in Hall

explicitly rejected the contention that an IQ score of 75 precludes the

possibility of an intellectual disability diagnosis. Id. at 1996. Similarly, the

Louisiana Supreme Court in State v. Dunn (Dunn III), 41 So. 3d 454, 470 (La.

2010), stated that “[t]he ranges associated with the two scores of 75 brush the

threshold score for [an intellectual disability] diagnosis.” Moreover, the

AAIDD recognizes that a score of 75 is consistent with an intellectual

disability. Red Book, supra, at 59; see also DSM-IV-TR, supra, at 41–42.

In this case, the district court concluded that Brumfield satisfied the first

prong of the intellectual disability test based on his IQ scores. As found by the

district court, Brumfield’s IQ test scores were as follows:

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— In a 1995 WAIS–R test administered by then-defense expert Dr.

Bolter, he scored a 75, with a 95% confidence interval of 70–80.

— In a 2007 Stanford–Binet V test administered by petitioner’s

expert, Dr. Weinstein, he scored a 72, with a 95% confidence

interval of 69–77.

— In a 2007 C–TONI test administered by Dr. Weinstein, he

scored a 70, with a 95% confidence interval of 65–75.

— In a 2009 WAIS–IV test administered by the State’s expert, Dr.

Hoppe, he scored a 70, with a 95% confidence interval of 67–75.

Brumfield II, 854 F. Supp. 2d at 389–90. All four of the confidence intervals

(the range of scores calculated from the standard error of measurement)

surrounding Brumfield’s full-scale IQ scores include scores of 70 or below, and

therefore satisfy the first prong of the intellectual disability test based on how

both the Supreme Court and Supreme Court of Louisiana have analyzed IQ

scores in the past. 26 Even ignoring the confidence intervals, no score exceeds

75, and the Supreme Court noted in Atkins, Hall, and Brumfield (S. Ct.), that

a score of 75 can satisfy the first prong of the intellectual disability test.

Brumfield (S. Ct.), 135 S. Ct. at 2278; Hall, 134 S. Ct. at 1996; Atkins, 536 U.S.

at 309 n.5. Moreover, every single expert agreed that Brumfield’s scores

satisfied the first prong of the intellectual disability test. 27 As this court noted

26 Weinstein explained that as long as the lower bound of the confidence interval

includes a score of 70 or less, an individual can satisfy the first prong of the intellectual

disability test.

27 The district court, experts, and parties discussed the import of the “Flynn effect,”

which describes the phenomenon whereby the American public’s score on any given IQ test

increases by approximately three points per decade. Brumfield II, 854 F. Supp. 2d at 391.

“Thus, when an older test is used to measure a test subject, the subject’s IQ score may be

artificially inflated because that test was normalized using a past sample of Americans.” Id.

at 391. To correct for the Flynn effect, a test subject’s score may be adjusted downward by

0.30–0.33 for every year that has elapsed since the test was normalized. Id. The State

correctly points out that the Fifth Circuit has not recognized the Flynn effect. In re Salazar,

443 F.3d 430, 433 n.1 (5th Cir. 2006); see also In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir.

2007). It is not necessary to decide whether to recognize the Flynn effect in this case,

however, as Brumfield’s scores satisfy the first prong of the intellectual disability test without

a Flynn effect adjustment.

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in Rivera, 505 F.3d at 361, “[a] finding is clearly erroneous only if it is

implausible in the light of the record considered as a whole.” Given that all of

Brumfield’s reported IQ scores fell at or below 75 and that the experts’

conclusions were based on these scores, the district court’s conclusion that

Brumfield met the first criterion for an intellectual disability diagnosis is not

implausible and therefore is not clearly erroneous.

The State argues that “assessments consistently demonstrated that

Brumfield had an IQ in the 70-85 range.” However, the State does not point

to specific IQ scores which demonstrate that Brumfield’s IQ fell within this

range. Presumably, it refers to the tests administered to Brumfield in the

1980s. As Weinstein explained, no actual IQ scores from these tests were

reported anywhere in Brumfield’s records; instead, the reports based on these

IQ tests provided only descriptions of the ranges into which Brumfield’s scores

fell. For example, Weinstein explained that one report described Brumfield’s

IQ score as falling into the “dull normal” range, which Weinstein further

explained corresponded to a score between 80 and 89. The district court’s

discrediting of this range of scores in favor of reported, full-scale IQ scores was

not clear error, as the Supreme Court similarly disregarded supposedly higher

IQ scores when no actual score was provided. See Brumfield (S. Ct.), 135 S. Ct.

at 2278–79. Moreover, multiple expert witnesses discredited this range of

scores in favor of the reported scores, and this court “cannot second guess the

district court’s decision to believe one witness’ testimony over another’s or to

discount a witness’ testimony.” Canal Barge, 220 F.3d at 375.

The State also argues that Brumfield’s scores may be explained by his

low effort on the IQ tests. However, the experts in this case—including the

State’s expert who administered IQ tests—also administered tests for

malingering and found that Brumfield was, in fact, not malingering. Moreover,

Greenspan explained that Brumfield’s consistent scores across multiple tests

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over multiple years ruled out malingering. We decline the State’s invitation to

second guess the district court’s decision to believe the multiple experts who

stated that Brumfield’s scores were not a product of malingering. Accordingly,

we find no clear error in the district court’s finding that Brumfield satisfied the

first prong of the intellectual disability test.

B. Second Prong: Adaptive Behavior

“Adaptive behavior is the collection of conceptual, social, and practical

skills that have been learned and are performed by people in their everyday

lives.” Green Book, supra, at 43; see also Red Book, supra, at 73. Under the

AAIDD’s definition, 28 a diagnosis of intellectual disability requires that an

individual have significant limitations in at least one of the three domains of

adaptive skills—conceptual, social, and practical skills. 29 Red Book, supra, at

14. The district court found that Brumfield showed significant limitations in

the conceptual domain but not in the social or practical domains. Brumfield

II, 854 F. Supp. 2d at 396–403.

The first deficit the court found in the conceptual domain was

Brumfield’s writing abilities, as Brumfield could not write in a straight line

without an aid, took an “inordinate amount of time to write a simple, one-page

letter,” and relied on the assistance of other inmates when writing letters. Id.

at 396. In coming to this conclusion, the district court relied on Weinstein’s

28 The district court correctly noted that, as with the intellectual functioning prong,

the AAIDD prefers that practitioners employ standardized testing to evaluate adaptive

functioning. See Red Book, supra, at 76. However, utilizing standardized testing, such as

the ABAS questionnaires administered by Weinstein, is difficult in situations requiring a

retrospective diagnosis. In these situations, the district court correctly explained that the

User’s Guide, supra, at 17–22, calls for additional inquiry into the subject’s past and

interviews alongside the types of questionnaires used in situations of contemporaneous

diagnosis. That additional inquiry and those interviews were conducted by two of Brumfield’s

experts in this case.

29 Neither the State nor Brumfield contests the use of the “three domain” test on

remand. The State structures its argument that Brumfield has no deficits in adaptive skills

around this test.

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testimony, and in concluding that the State’s reliance on the “quality of his

expressions in his prison correspondence is misplaced,” the court credited the

testimony of Swanson. Id. The court next found that Brumfield’s reading

skills were deficient. Id. The court explained that after listening to Brumfield

read some of his letters, Swanson concluded he read at approximately a fourth

grade level. Id. Finally, the district court found that “Brumfield has a dismal

record of academic accomplishments.” Id. The court relied on the testimony

of Weinstein, who stated that Brumfield was always behind in school because

of developmental delays, and Swanson, who noted that Brumfield “reached a

plateau somewhere between fourth and sixth grade, which is where mildly

[intellectually disabled] individuals generally fall.” Id.

In reaching its conclusion that Brumfield demonstrated significant

limitations in the conceptual skills domain, the district court carefully

explained its reasoning, identified the specific evidence it relied upon, and

specifically credited the testimony of certain experts. Because nothing in the

district court’s reasoning suggests its conclusion “is implausible in the light of

the record considered as a whole,” Rivera, 505 F.3d at 361 (quoting St. Aubin,

470 F.3d at 1101), and because this court must give “due regard . . . to the

opportunity of the trial court to judge of the credibility of the witnesses,”

Anderson, 470 U.S. at 573 (quoting Fed. R. Civ. P. 52(a)), we hold that the

district court’s finding is not clearly erroneous. Brumfield was only required

to demonstrate significant limitations in one of the three domains of adaptive

behavior to satisfy the legal and clinical tests for intellectual disability. Thus,

the district court’s finding that Brumfield met “the AAIDD’s definition of

[intellectual disability] with respect to the conceptual domain of adaptive

behavior,” Brumfield II, 854 F. Supp. 2d at 401, was sufficient for the district

court to conclude that Brumfield had satisfied the second prong of the

intellectual disability test.

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In challenging the district court’s conclusion, the State argues that

Brumfield’s academic problems, which led to his being placed in special

education classes, stemmed primarily from his behavior problems and conduct

disorder, not an intellectual disability. However, the district court credited the

testimony of Swanson, who explained that, at the time Brumfield attended

school, school systems were urged to substitute diagnoses of conduct disorder

for intellectual disability essentially for political reasons. 30 Id. at 397.

Moreover, the Supreme Court noted that “[t]he diagnostic criteria for

[intellectual disability] do not include an exclusion criterion; therefore, the

diagnosis should be made . . . regardless of and in addition to the presence of

another disorder.” Brumfield (S. Ct.), 135 S. Ct. at 2280 (quoting DSM-IV-TR,

supra, at 47). Both the State and Brumfield tell “coherent and facially

plausible stor[ies],” Anderson, 470 U.S. at 575, as either behavioral problems

or an intellectual disability could explain all or some of Brumfield’s poor

academic record. “When ‘the district court is faced with testimony that may

lead to more than one conclusion, its factual determinations will stand so long

as they are plausible—even if we would have weighed the evidence otherwise.’”

Heck v. Triche, 775 F.3d 265, 284 (5th Cir. 2014) (quoting Nielsen v. United

States, 976 F.2d 951, 956 (5th Cir. 1992)); see also Anderson, 470 U.S. at 574

30 The district court explained that:

Swanson [gave] the Court a compelling reason to not draw a negative inference

due to the lack of childhood [intellectual disability] diagnosis. She points out

that during Brumfield’s school years in the late 1970s, African–Americans

males were b[e]ing disproportionately diagnosed with [intellectual

disabilities]. School officials, psychologists, and appraisal teams were

accordingly cautious not to over-represent black males as being [intellectually

disabled] and were instead urged to consider other alternatives that would

avoid placing the [intellectually disabled] label on them. Swanson confirmed

that East Baton Rouge Parish schools, which Brumfield attended, had received

this admonition.

Id. at 404.

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(“Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”).

The State also points to elements of Brumfield’s past that it argues

demonstrate adaptive functioning. For example, Blanche testified that

Brumfield “owned” a car, engaged in cash transactions by renting motel rooms,

and helped his girlfriend financially. Although the district court acknowledged

these activities, among others, it explained that “[m]ildly [intellectually

disabled] people generally have mental ages ranging from seven to eleven,” and

“[i]t is not inconceivable for someone around the age of ten to have the mental

capacity” to engage in these types of activities. Brumfield II, 854 F. Supp. 2d

at 398.

The State also argues that Brumfield’s activities while in prison belie

any intellectual disability, as he wrote letters, possessed books (including two

dictionaries), and explained complex tasks to people over the phone. With

respect to Brumfield’s writing letters, the district court credited the testimony

of Weinstein and Swanson that “Brumfield requires assistance from other

death row inmates to write his letters, . . . and thus the reliance by the States’

experts on the quality of his expressions in his prison correspondence is

misplaced.” Id. at 396. The court further found that, based on Swanson’s

testimony, “[t]he reading materials in his prison cell are targeted to middle

school audiences and are consistent with someone who has [an intellectual

disability].” Id. Finally, with respect to Brumfield’s phone calls, the district

court found that they were “simply not sufficient to show adaptive strength in

communication abilities,” and that “one or two instances of him exhibiting oral

communication skills expected of adults could hardly be said to outweigh the

other documented adaptive weaknesses in the conceptual domain,” as

“strengths can coexist alongside weaknesses.” Id. at 399. Although the

evidence emphasized by the State tends to undermine the district court’s

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conclusion that Brumfield had significant limitations in adaptive functioning,

we are “not entitle[d to]. . . reverse the finding of the trier of fact” even if we

“would have weighed the evidence differently.” Anderson, 470 U.S. at 573–74.

Because nothing the State emphasizes establishes that the district court’s

account of the evidence is implausible, we hold that the district court’s

finding—that Brumfield’s poor academic performance and his deficiencies in

reading and writing constitute deficits in adaptive behavior—is not clearly

erroneous. See id. at 573–74 (“If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently.”).

Furthermore, we note that the district court’s finding is not clearly

erroneous because it has more evidentiary support than prior cases in which

this court upheld a district court’s intellectual disability determination. In

Wiley v. Epps, 625 F.3d 199, 219–22 (5th Cir. 2010), this court found no clear

error when a district court held that petitioner Wiley had an intellectual

disability based on deficits in functional academic skills, communication, and

self-direction. In that case, Wiley was evaluated four separate times with

conflicting results. Id. at 219–21. Based on these results and evidence that he

struggled academically while in the military, the district court found that he

was deficient in the area of functional academic skills. Id. at 221. This court

refused to reverse the district court because doing so would essentially

substitute the opinion of the State’s expert for Wiley’s experts. Id. at 218. As

the district court was in a better position to judge the credibility of the experts,

this court declined to reverse the district court. Id. In Rivera, the district court

found that Rivera had “adaptive limitations,” including “consistent[] . . .

academic problems.” 505 F.3d at 362. After remarking that the district court

“is in a better position than this court to judge and weigh the credibility of the

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witnesses who testified,” this court declined to find a clear error. Id. at 363.

However, neither Wiley nor Rivera involved Louisiana law.

Dunn III, on the other hand, did involve Louisiana law, and this court

noted previously that, based on this case, it would likely determine that the

district court erred in finding Brumfield intellectually disabled, 31 Brumfield

(5th Cir.), 744 F.3d at 927 n.8. In that case, the Supreme Court of Louisiana

reviewed a trial court’s determination that Dunn was not intellectually

disabled following an Atkins hearing. Dunn III, 41 So. 3d at 455–56. Dunn

had reported IQ scores of 70, 78, and 78. Id. at 462–63. Multiple experts

administered ABAS scales, but like this case, the evidence on Dunn’s adaptive

behavior conflicted. Id. at 463–70. After reviewing that evidence, the court

noted that “[i]t is also important to consider the defendant’s behavior during

the planning and commission of the instant crime as it relates to his adaptive

skills functioning.” Id. at 471. In evaluating Dunn’s crime, the court found

that “the evidence at trial established defendant engaged in the leadership and

planning of a major bank robbery” and held that the defendant’s planning

“with its premeditative aspects, clearly lacks the impulsiveness and non-

31 The State argues that the district court failed to consider other Louisiana cases

addressing the question of how to factor criminal behavior into an evaluation of an

individual’s adaptive functioning. However, the court recognized the “propensity of

Louisiana courts to take such maladaptive criminal behavior into account when discussing

the adaptive skills prong of the [intellectual disability] test.” Brumfield II, 854 F. Supp. 2d

at 394. Addressing this propensity, the district court identified five cases where the Supreme

Court of Louisiana “affirmed on direct appeal a jury’s assessment of death in the penalty

phase of the trial where the [intellectual disability] issue was actually litigated.” Id.; see

generally Williams, 22 So. 3d 867; State v. Anderson, 996 So. 2d 973 (La. 2008); State v. Lee,

976 So. 2d 109 (La. 2008); State v. Scott, 921 So. 2d 904 (La. 2006); State v. Brown, 907 So.

2d 1 (La. 2005). However, the district court found these cases distinguishable because the

Supreme Court of Louisiana was required under Jackson v. Virginia, 443 U.S. 307 (1979), to

apply a different standard of review than the standard that applies to Atkins hearings.

Brumfield II, 854 F. Supp. 2d at 394. The court found that Dunn III “[was] the only Louisiana

Supreme Court case on point.” We agree and find no error with the manner in which the

district court factored Brumfield’s criminal behavior into its analysis of his adaptive

functioning.

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leadership interactions associated with [intellectually disabled] persons” based

on “the firmly established facts of this case.” Id. at 471–72.

The district court carefully considered this case and concluded that it

could consider “evidence of the criminal action in the overall assessment if

‘firmly established facts’ show[ed] clear instances of premeditation and

leadership.” Brumfield II, 854 F. Supp. 2d at 395. In considering the evidence

of Brumfield’s criminal activity, the district court concluded that it was not

sufficient to demonstrate an absence of deficits in the conceptual skills domain,

id. at 398–401, and that nothing in the record suggested Brumfield “‘led’ this

terrible scheme.” Id. at 400. The district court further reasoned that even if

the crime involved planning and premeditation by Brumfield, “this particular

instance [should not be] sufficient to overwhelm the other demonstrated

showings of adaptive deficits in conceptual skills.” Id.

Beyond the facts of Smothers’ murder, the State argues that other

aspects of Brumfield’s criminal history demonstrate that he does not have

significant limitations in adaptive functioning. First, the State contends that

Brumfield’s two confession videos show his composure under pressure, ability

to lie, and think quickly. However, the district court credited Swanson’s

testimony that, in the first tape, Brumfield responded to cues from police and

that, in the second tape, Brumfield spoke more quickly because he was more

familiar with the topic at that point. Id. Second, the State argues that

Brumfield’s history of drug dealing and other criminal behavior demonstrates

his ability to plan, his ability to handle complex transactions, and his adaptive

functioning generally. 32 Although the State is correct that Brumfield dealt

drugs in the past, the court noted that “[t]he record is barren of any testimony

32The State notes that Brumfield demonstrated an ability to choose weak and

vulnerable victims for his past crimes. We see nothing in the record concerning this ability

that demonstrates clear error on the part of the district court.

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regarding his efficacy in drug transactions,” id. at 398, and both Greenspan

and Weinstein testified that Brumfield’s drug dealing was not inconsistent

with an intellectual disability diagnosis. Third, the State argues that

Brumfield’s ability to avoid the police after his crime demonstrates adaptive

functioning, but the district court found that “[w]hile evading police and

avoiding capture can exhibit raw physical skills, at other times those acts are

just as consistent with primal survival instincts as they are with callous, cold-

blooded calculation.” Id. at 399.

Overall, the district court considered the facts surrounding Smothers’

murder as well as Brumfield’s other criminal activities. Thus, while the

district court considered similar evidence as the trial court in Dunn III, it

simply reached a different conclusion. Although this difference in findings

based on relatively similar evidence certainly weighs against the conclusion

that Brumfield is intellectually disabled, it does not necessarily demonstrate

that the district court clearly erred based on the record before it. The Dunn III

court recognized that trial courts are called on “to make exceedingly fine

distinctions” between those who are mildly intellectually disabled and those

who are not. Dunn III, 41 So. 3d at 469. We agree with the Dunn III court on

this point. Accordingly, we decline to disturb the “exceedingly fine

distinctions,” id., the district court made in this “intensively factual inquiry,”

Williams, 22 So. 3d at 887. Even if we were to disagree about how to weigh

the evidence in this case, the clear error standard “plainly does not entitle a

reviewing court to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently.” Anderson, 470 U.S.

at 573.

C. Third Prong: Onset during Developmental Years

The final prong of the intellectual disability test requires that the

disability manifest before the age of 18. The district court did not clearly err

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in finding that Brumfield’s disability manifested during his developmental

years. In fact, one of the principal findings of the district court with respect to

Brumfield’s deficits in the conceptual skills domain—his poor academic record

while in school—necessarily involved finding that the disability manifested

before age 18. Brumfield II, 854 F. Supp. 2d at 396. Similarly, the district

court credited Swanson’s testimony that while in the eighth grade, Brumfield

read at only a third grade level. Id.

Although none of the IQ tests was administered to Brumfield prior to the

age of 18, Greenspan testified that IQ scores remain stable over time.

Additionally, Merikangas evaluated Brumfield and found no physical problems

with his brain that would explain his consistent IQ scores between 70 and 75,

meaning that Brumfield’s disability stems from some underlying problem he

has had all of his life. Finally, the district court pointed to etiological factors

such as, inter alia, Brumfield’s low birth weight, fetal distress at birth, and

family history of intellectual disability. Id. at 404–05. Although not

dispositive, these factors certainly bolster the court’s conclusion that

Brumfield’s intellectual disability manifested during his developmental years.

Id. at 405.

D. Expert Credibility and Brumfield’s Medical History

On remand, the State correctly highlights a number of weaknesses in

Brumfield’s expert witnesses that undermine their credibility. For example,

Greenspan never evaluated Brumfield, Weinstein obtained his Ph.D. from an

unaccredited institution, and Swanson diagnosed Brumfield prior to meeting

with him. However, the district court explicitly weighed the credibility of

different witnesses. Id. at 401. For example, the court pointed out that

Blanche “lacked basic knowledge about the AAIDD’s standards until he was

deposed in this case shortly before the hearing,” id. at 401, and that Hoppe

failed to interview anyone other than Brumfield, id. at 387 n.21. Giving “due

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regard” to the “opportunity of the trial court to judge the credibility of the

witness[es],” Anderson, 470 U.S. at 573 (quoting Fed. R. Civ. P. 52(a)), we

decline to disturb the district court’s findings, see also Dunbar Med. Sys. Inc.

v. Gammex Inc., 216 F.3d 441, 453 (5th Cir. 2000) (“The burden of showing that

the findings of the district court are clearly erroneous is heavier if the

credibility of witnesses is a factor in the trial court’s decision.” (quoting Coury

v. Prot, 85 F.3d 244, 254 (5th Cir. 1996))).

All of the experts in this case agreed that Brumfield had never been

diagnosed with an intellectual disability prior to the Atkins hearing, and the

district court was rightly wary about a “made-for-litigation diagnos[i]s.”

Brumfield II, 854 F. Supp. 2d at 404. However, Swanson gave the court “a

compelling reason to not draw a negative inference due to the lack of childhood

diagnosis” by explaining the political incentives in place at the time Brumfield

was in school. Id. In doing so, Swanson told a “coherent and facially plausible”

story. Anderson, 470 U.S. at 575. Therefore, the district court’s refusal to give

preclusive effect to the lack of a previous diagnosis of intellectual disability is

not clearly erroneous. Id.

Overall, while the State points to evidence that undermines the district

court’s conclusion that Brumfield is intellectually disabled, it has not pointed

to sufficient evidence to establish that the district court’s finding of intellectual

disability was not “plausible in light of the record viewed in its entirety.” Id.

at 574. Therefore, we hold that the district court committed no clear error.

IV. CONCLUSION

In this case, we are called upon to determine whether the district court’s

conclusion that Brumfield is intellectually disabled is clearly erroneous, i.e.,

whether we have a firm and definite conviction that the district court made a

mistake here. Both the State and Brumfield present plausible views of the

evidence, although, on balance, Brumfield’s witnesses were somewhat stronger

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and presented a slightly more compelling view. Given that there are two

permissible views of the evidence here and the Supreme Court’s guidance that

the choice by a trier of fact between two permissible views of the evidence

cannot be clearly erroneous, we find no clear error in the district court’s

conclusion that Brumfield is intellectually disabled.

Because the State has not demonstrated clear error on the part of the

district court, we AFFIRM the ruling of the district court that Brumfield is

intellectually disabled and, accordingly, ineligible for execution.

43