Hall v. Quarterman

REVISED JULY 9, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 30, 2008

No. 06-70041

Charles R. Fulbruge III

Clerk

MICHAEL WAYNE HALL

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CV-00436

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:

Michael Wayne Hall was convicted of capital murder in state court. He

sought state and federal habeas relief, requesting in each forum a live

evidentiary hearing on his claim of mental retardation. Each court denied his

request. We granted a Certificate of Appealability.

I

Michael Wayne Hall was tried in Texas state court for the murder of Amy

Robinson and convicted of capital murder by the jury. Although he was

convicted prior to the Supreme Court’s decision in Atkins v. Virginia, which held

No. 06-70041

that the execution of mentally retarded defendants is unconstitutional,1 there

was evidence regarding his mental abilities presented at trial in mitigation. On

direct appeal, the Texas Court of Criminal Appeals (the “CCA”) affirmed the

conviction, rejecting his Penry claim and his claim that the Constitution barred

the execution of mentally retarded persons. Hall filed a state petition for writ

of habeas corpus and a petition for certiorari with the United States Supreme

Court. In his state habeas petition, Hall asserted his claim of a constitutional

bar to execution of the mentally retarded and requested a “full and fair hearing,”

urging, “There has never been a fact finding rendered by either the trial court

or a jury as to the issue of whether Applicant is, in fact, mentally retarded.”

While his state habeas claim was pending, the Supreme Court decided Atkins.

Hall requested a live hearing on the mental retardation issue, urging, “Because

the issue of whether or not Applicant is ‘mentally retarded’ has never been fully

and fairly litigated and resolved by a fact-finder, this Court cannot rely solely on

. . . [its] recollection of the testimony from the trial which was conducted over

two (2) years ago. This Court should, at a bare minimum, conduct a live hearing

on this matter.” Hall also objected to the state court’s “conducting a hearing on

Applicant’s Atkins claim via affidavit rather than via live hearing.” Despite

Atkins, the trial court conducted a “hearing” by affidavit without awaiting the

disposition of Hall’s pending certiorari petition, and the CCA, relying on the

paper results, denied Hall’s state habeas claim.

The Supreme Court granted Hall’s petition for certiorari from his direct

appeal to the state court, vacating and remanding to the CCA to reconsider its

initial affirmance of Hall’s conviction in light of Atkins. The CCA, relying on the

state habeas and direct appeal records and a “re-review[] [of] the evidence” from

1

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

2

No. 06-70041

the records, held that Hall was not mentally retarded.2 Hall appealed again to

the Supreme Court, which denied certiorari, and he then filed a federal habeas

petition, again arguing, “Mr. Hall has a right under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to a full and fair hearing in a court of law on the issue

of his mental retardation.” The federal district court relied on the state record

to conclude that Hall was not retarded, and denied Hall’s Atkins claim. We

granted a COA.

II

In applying the deferential standard under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), we are mindful of the unique facts of this case,

in that Atkins was decided after Hall’s conviction, and the state’s paper hearing

on the Atkins mental retardation issue was completed before Texas had defined

mental retardation under the Atkins standard. We review the federal district

court’s refusal to grant an evidentiary hearing on the Atkins issue for an abuse

of discretion.3

Section 2254(e)(2) of United States Code Title 28 does not constrain the

district court’s discretion here because Hall diligently developed the factual basis

of his claim in state court.4 In the state habeas proceedings, Hall consistently

raised his claim that he was mentally retarded and that execution of a mentally

2

Hall v. State, 160 S.W.3d 24, 38-40 (Tex. Crim. App. 2004).

3

Schriro v. Landrigan, 127 S. Ct. 1933, 1937 (2007) (“In cases where an applicant for

federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. §

2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”);

McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998) (citing United States v. Cervantes,

132 F.3d 1106, 1110 (5th Cir.1998)) (“Denials of an evidentiary hearing are reviewed for abuse

of discretion.”).

4

See 28 U.S.C. § 2254(e)(2) (requiring an applicant to show, inter alia, that “the facts

underlying the claim would be sufficient to establish by clear and convincing evidence that but

for constitutional error, no reasonable factfinder would have found the applicant guilty of the

underlying offense” only if “the applicant has failed to develop the factual basis of a claim in

State court proceedings”).

3

No. 06-70041

retarded individual is unconstitutional.5 He also provided affidavits of experts,

affidavits of former teachers and other individuals who were familiar with Hall’s

capabilities,6 and evidence of mental limitations, such as medical records, grade

reports and special education screening results from school, and the results of

Hall’s examination for competency to stand trial. These were more than

adequate to establish a factual basis for his mental retardation claim.

Once a district court determines that a petitioner may be entitled to an

evidentiary hearing, this is not the end of the inquiry, since “[i]n cases where an

applicant for federal habeas relief is not barred from obtaining an evidentiary

hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in

the discretion of the district court.”7 In determining whether to grant a hearing,

under Rule 8(a) of the habeas Court Rules “‘the judge must review the answer

[and] any transcripts and records of state-court proceedings . . . to determine

whether an evidentiary hearing is warranted.’”8 And the Supreme Court has

held since AEDPA that the court must also “consider whether such a hearing

could enable an applicant to prove the petition’s factual allegations, which, if

true, would entitle the applicant to federal habeas relief. Because the

5

In his first state habeas petition, Hall prayed that the court would grant relief “after

a full and fair hearing” and argued:

The right to argue mental retardation in mitigation on a case-by-case

basis under article 37.071, section 2(e)(1), Texas Code of Criminal

Procedure (the so-called Penry instruction) is insufficient to prevent the

risk that retarded persons will be sentenced to death despite their lack

of the requisite culpability . . . .

6

As the CCA put it, Hall provided “testimony of three psychologists, his mother, his

brother, his trial attorneys, two private investigators, four teachers, and a fellow death row

inmate.” Hall, 160 S.W.3d at 39-40.

7

Schriro, 127 S. Ct. at 1937.

8

Id. at 1939 (quoting 28 U.S.C. § 2254, Rule 8(a) and finding that post-AEDPA, the

“basic rule has not changed”).

4

No. 06-70041

deferential standards prescribed by § 2254 control whether to grant habeas

relief, a federal court must take into account those standards in deciding

whether an evidentiary hearing is appropriate.”9 And finally, a district court

abuses its discretion in not holding an evidentiary hearing only if the state court

failed to provide a full and fair hearing.10

The facts before us are a core manifestation of a case where the state failed

to provide a full and fair hearing and where such a hearing would bring out facts

which, if proven true, support habeas relief. Hall alleges that he is mentally

9

Id. at 1940 (internal citation omitted) (citing Mayes v. Gibson, 210 F.3d 1284, 1287-88

(10th Cir. 2000)). Section 2254 provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the 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.

(e)(1) In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.

28 U.S.C. §§ 2254(d), (e)(1).

10

Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000) (citing Moawad v. Anderson, 143

F.3d 942, 948 (5th Cir. 1998)) (“To find an abuse of discretion which would entitle . . .

[petitioner] to discovery and an evidentiary hearing to prove his contentions, we would

necessarily have to find that the state did not provide him with a full and fair hearing. . . .”).

5

No. 06-70041

retarded under Texas’ Atkins test for mental retardation announced in Ex Parte

Briseno: under Briseno a defendant must prove that he has “(1) significantly

subaverage general intellectual functioning [‘defined as an IQ of about 70 or

below’]; (2) accompanied by related limitations in adaptive functioning; (3) the

onset of which occurs prior to the age of 18.”11 Because neither Atkins nor the

Briseno test had been established at his original trial, and Briseno was not

decided until approximately two years after the state court’s paper hearing on

mental retardation,12 upon which the CCA and the district court relied, Hall

never had the opportunity to present a full range of evidence on this technical

issue.13

The federal district court discussed the Briseno factors but did not conduct

a hearing, relying instead on the state court’s findings of mental retardation –

findings that were made prior to the Briseno test. The district court explained,

“In his petition, Hall thoroughly reviews the voluminous evidence as to his

mental capacity. The state does the same in its response. There is no reason for

the court to do so again here.”14 The court examined the paper evidence and

held, “Having independently reviewed all of the evidence, the court concludes”

11

135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (internal citations and quotations omitted).

12

The parties in the state habeas case filed their affidavits for the paper Atkins hearing

with the trial court in September 2002. Briseno was decided on February 11, 2004.

13

Hall emphasized in a motion to stay the paper proceeding in the state court,

Despite Atkins’ prohibition against the imposition of a death sentence

against mentally retarded capital defendants, the Supreme Court’s

opinion leaves it to the individual States to develop the appropriate

method to enforce this restriction. There is currently no statutory

procedure set out in Texas to govern the determination of whether or not

Applicant (or any other capital defendant) is mentally retarded as

contemplated by Atkins.

14

Hall v. Quarterman, 443 F. Supp. 2d 815, 821 (N.D. Tex. 2006) (internal citations

omitted).

6

No. 06-70041

that “the state court’s finding that Hall is not mentally retarded was not

unreasonable.”15

The district court also addressed Hall’s claim for a jury determination of

mental retardation or, in the alternative, a live hearing. The district court found

that Hall “failed to raise this issue in the state proceedings” and that it was

procedurally defaulted.16 This conclusion is incorrect; Hall consistently raised

this issue in his state and federal habeas petitions. The district court went on

to hold that “[e]ven if not procedurally defaulted, Hall’s claim that he was

entitled to a jury determination on mental retardation is without substantive

merit. Nowhere in Atkins does the Supreme Court hold that a jury

determination on this issue is required.”17 This conclusion is correct, but it

misses a central element of Hall’s claim – namely, that Hall requested a jury

trial or at minimum a live hearing.18

In reviewing the paper evidence, the district court failed to account for

several clearly erroneous findings of the CCA which, if addressed in an

evidentiary hearing, might have highlighted the unreasonableness of the state

court’s determination of the facts and entitled Hall to habeas relief. The CCA’s

habeas determinations rested on the state court’s findings from the paper

hearing, as the CCA fully adopted those findings.19 In other words, errors in the

15

Id. (citing 28 U.S.C. § 2254(d)(2)).

16

Id. at 822.

17

Id.

18

Hall argued in his federal habeas petition, “At the very least, this court should order

an evidentiary hearing on this issue [of mental retardation] so that Mr. Hall finally has an

opportunity through counsel to present testimony on his behalf and to confront and cross-

examine the state’s witnesses on mental retardation. The evidence already in the record that

demonstrates Mr. Hall’s mental retardation is summarized below.”

19

On direct appeal, the CCA likewise relied on the state habeas findings and

conclusions. Specifically, it took judicial notice of the prior state habeas proceeding and its

outcome and stated that its “conclusion on direct appeal [was] necessarily the same as [its]

conclusion in the habeas proceedings.” Hall,160 S.W.3d at 39. And, even in re-reviewing the

7

No. 06-70041

state court’s factual findings were not corrected when they reached the CCA. In

assessing the affidavits of experts, which address Hall’s IQ, the state court

misread an IQ score of 67 reported in Dr. Church’s sworn affidavit, replacing a

Wechsler Adult Intelligence Scale, third edition, exam (“WAIS-III”) score of 67

with 72. The state’s expert, Dr. Price, also erroneously relied on an IQ score of

72 in making his assessment, stating, “[I]f an individual is being assessed for the

presence or absence of mental retardation and receives and [sic] IQ score of 72,

then his or her actual IQ is 95% likely to fall between 67 and 77– a range of

scores that may indicate mild mental retardation or borderline intelligence.”20

Relying at least partially on this error, the state trial court concluded that Hall’s

intelligence level was “either in the borderline range of intellectual functioning

or in the upper end of mild mental retardation.”21 A hearing would clarify

whether Dr. Price’s conclusions with respect to Hall’s IQ, which influenced the

state court’s finding, were premised on factual error.

evidence in “an abundance of caution,” the CCA still deferred to the trial judge’s habeas

findings. Id. at 40 (“While there was significant evidence in favor of a finding of mental

retardation, there was also significant evidence against such a finding. The trial judge, who

presided over the trial and the habeas proceedings, was in the best position to evaluate the

conflicting evidence. Her findings, which we have judicially noticed in the current direct

appeal, deserve great deference.”).

20

The state notes that it was Hall’s expert, Dr. Denkowski, who initially misstated

Hall’s final IQ score as 72 rather than 67. The state submits that this error was harmless

because the state court discounted his affidavit, and the CCA on direct appeal noted correctly

that Dr. Church’s examination established an IQ of 67. Cf. Ylst v. Nunnemaker, 501 U.S. 797,

801–05 (1991) (explaining that courts look to the “last reasoned decision” of the state court in

determining whether a state procedural bar precludes federal-court review). However, Hall’s

claim is that this erroneous recitation affected Dr. Price’s overall characterization of Hall’s

general intellectual functioning. Consequently, neither Denkowski’s affidavit nor the CCA’s

recitation of the correct post-conviction IQ score would render the error harmless.

21

The state trial court never indicated which of Hall’s IQ scores was most reliable.

Instead, it only stated that the scores revealed that Hall was of borderline intelligence or

mildly mentally retarded.

8

No. 06-70041

The state trial court also made erroneous findings with respect to the

credibility of at least one of Hall’s experts22 – an expert whose testimony was

central to Hall’s allegations of limited adaptive functioning.23 The state

concluded that Dr. Church’s submission should “not be given weight” because

Texas law does not permit individuals with Dr. Church’s credentials to make

mental health determinations. Texas’ Persons with Mental Retardation Act only

permits physicians or psychologists licensed in Texas or certified by the Texas

Department of Mental Health and Mental Retardation to make such

determinations.24 Yet this Act is inapplicable in the Atkins context, and the

state court’s conclusion to the contrary was clearly erroneous. “The PMRA, by

its own terms, is irrelevant to the application of Atkins. For Eighth Amendment

purposes, it neither defines mental retardation nor–more relevantly–establishes

who may diagnose mental retardation.”25

The issue of mental retardation, defined by Atkins only after Hall was

tried and defined by Texas only after Hall’s paper “hearing” on mental

retardation, is fact-intensive and rests on nuanced determinations under broadly

stated concepts such as “limitations in adaptive functioning.” If Hall can prove

22

State credibility determinations also receive AEDPA deference on habeas review, but

not when overcome by clear and convincing evidence. See Summers v. Dretke, 431 F.3d 861,

871 (5th Cir. 2005); 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340

(2003) (“A federal court can disagree with a state court’s credibility determination and, when

guided by AEDPA, conclude the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence.”).

23

Dr. Church, a licensed psychologist in Oklahoma, testified in her affidavit that it is

“highly doubtful that [Hall] alone could meet the needs of his day to day life.”

24

TEX. HEALTH & SAFETY CODE § 591.003(16).

25

In re Hearn, 418 F.3d 444, 447 (5th Cir. 2005); see also Ex parte Lewis, 223 S.W.3d

372, 374 (Tex. Crim. App. 2006) (Cochran, J., concurring) (joining the majority in declining to

adopt the trial court’s fact findings based on TEX. HEALTH & SAFETY CODE § 591.003(16) and

explaining that whether a physician or psychologist is licensed in Texas is of no “legal

significance in deciding whether [an] applicant is mentally retarded for purposes of eligibility

for the death penalty under Atkins v. Virginia or Ex parte Briseno”).

9

No. 06-70041

the facts that he has consistently alleged on appeal, he will be entitled to habeas

relief.26

Furthermore, the state court’s erroneous factfinding and its refusal to

accept more than paper submissions despite the development of a new

constitutional standard and a lack of guidance from the state on that standard,

deprived Hall of a full and fair hearing at the state level. Although we have

found paper hearings adequate where “the trial court and the state habeas court

were one in the same,” as was the case here, there is a crucial distinction.

Following trial, the state trial judge on habeas review faced a new constitutional

rule categorically barring the execution of mentally retarded persons. Atkins

was so new that Texas had not had time to establish a definition of mental

retardation or the associated burdens of proof.

Nor were the district court’s findings of “facts” from the disputed

assertions of affidavits below adequate. As we have discussed, some of these

accepted “facts” were both critical and incorrect.27 These errors would have been

drawn out in a hearing with an opportunity of counsel to examine the witnesses.

Other of the district court’s conclusions rely heavily on the conflicting expert

opinions of psychologists, asserted in affidavits unaired in court and shielded

from cross examination. Given the material errors in credibility determinations

and factfinding at the state level, we are persuaded that the determination of

Hall’s claim, caught in the immediate uncertainty following Atkins, was so

26

See Schriro, 127 S. Ct. at 1940.

27

Dr. Denkowski’s affidavit, upon which the trial court relied in finding that Hall was

not mentally retarded, indicated incorrectly that Dr. Church’s examination of Hall produced

an IQ score of 72; the score was in fact a 67. Additionally, the state posited in its reply to

Hall’s state habeas petition that Hall, while in prison, wrote a note that said, “You have to get

me out of here because there’s no call button. The sink is stopped up. Also there are roaches

and a small ass bed. My feet go all the way to the wall because I’m six feet four.” The

document actually reads, as Hall’s attorneys point out in their briefing: “you half to get out of

here because there is No call button, the senk is stopd up also rauch’s and small ass bed by feet

go all the way to the wall because I am 6f4.”

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No. 06-70041

freighted with a risk of error in fact finding that the failure of the district court

below to conduct a meaningful hearing was an abuse of discretion in these

unusual and unique circumstances.

III

Accordingly, we VACATE the judgment of the federal district court and

REMAND to that court for further proceedings including an evidentiary hearing.

PATRICK E. HIGGINBOTHAM, Circuit Judge, Concurring in part and

dissenting in part:

The Supreme Court left implementation of Atkins to the states, a license

that implicitly insists upon faithfulness to its core holding and the constitutional

constraints of due process. I am persuaded that because the state denied Hall

the right to confront and cross examine state witnesses in the adjudication of his

claim of retardation, Hall’s death sentence was contrary to and involved an

unreasonable application of the clearly-established federal law of due process as

determined by the Supreme Court of the United States.

Michael Wayne Hall was convicted of capital murder by a Texas jury and

sentenced to death in 2000. Much of his mitigation case rested on the claim that

Hall suffered from a learning disability. The Texas Court of Criminal Appeals

affirmed the conviction and sentence, rejecting Hall’s Penry argument that the

jury could not give expression to his mitigation evidence and his claim that

execution of mentally retarded persons is unconstitutional. Hall filed a petition

for certiorari with the Supreme Court and sought collateral habeas review with

the state court.28 There he continued his contention that it was unconstitutional

to execute a mentally retarded individual – the issue presented in the Atkins

case – which was then sub judice in the Supreme Court. Before the state

answered his state habeas petition, the Supreme Court held in Atkins that

28

He filed his petition for certiorari in June of 2002 and his state application for writ

of habeas corpus in January of 2002.

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No. 06-70041

executing mentally retarded individuals violates the Eighth Amendment.

Despite Atkins, the trial court on habeas refused over Hall’s objection to conduct

an evidentiary hearing29 to determine whether Hall was mentally retarded,

refusing Hall the opportunity to cross examine witnesses. Rather, it

recommended that the CCA reject Hall’s state habeas claim, relying upon the

record from his original trial and affidavits submitted by order of the trial court.

No live testimony was taken, and Hall was not allowed to cross examine any of

the affiants despite the introduction of many new affiants and claims that had

not been tested at trial. In May of 2004, addressing the Supreme Court’s opinion

vacating and remanding the judgment of the CCA,30 which had rejected the

Atkins claim on Hall’s direct appeal, a divided CCA repaired to the same record

and again concluded that Hall was not mentally retarded. Hall again petitioned

the Supreme Court for certiorari, which the Supreme Court denied in June of

2005. Hall then filed his federal habeas claim, again requesting a hearing on the

Atkins issue. Without holding a federal evidentiary hearing, the U.S. district

court deferred to the state adjudication.

I

Michael Wayne Hall was 18 years old when he killed Amy Robinson, a

mentally retarded co-worker at a grocery store.31 Hall had low intelligence and

lived in a chaotic family environment. He had never been incarcerated, although

29

Of course a proceeding before a state or appellate court where the parties may argue

an issue is a “hearing.” See Sumner v. Mata, 449 U.S. 539, 546 (1981). But Sumner addressed

28 U.S.C. § 2254(d) and the deference due findings of fact by a state court in federal habeas,

and did not address the elements of a hearing the state was constitutionally compelled to

provide to sustain a criminal conviction.

30

The Supreme Court’s opinion granting certiorari and vacating and remanding the

CCA’s judgment was decided on October 7, 2002, but the CCA decided Hall’s state habeas

claim first, in February of 2003, not addressing the remand from the Supreme Court until

2004.

31

To provide context, much of this account of the case history will repeat the recitation

of the panel opinion.

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No. 06-70041

he had participated in minor shoplifting incidents with other individuals. Hall

often associated with people younger than his age but he met an older friend,

Robert Neville, in 1997. He appreciated Neville’s friendship and attention and

spent many hours with him, accepting his offers of gifts, rides, and places to

stay, and imitating his style of dress. Neville persuaded Hall to quit his job so

they could work together at a grocery store. They decided to kill someone. With

purchased weapons, they killed Amy, an easy target. Police arrested them

attempting to walk to Mexico several hundred miles away.

The trial commenced in February of 2000. The state presented, inter alia,

a videotape that the media had taken of Hall, Hall’s written statement to the

police, the arrest warrant, the weapons, photographs of the area where the

victim was found, and testimony of the agents and detectives who questioned

Hall and took his statement. There were vague references to Hall’s acuity

throughout this portion of the trial, but they were not drawn out. At one point,

an agent indicated that detectives had asked Hall to take a polygraph test, but

he said that “he couldn’t take it, his mind was kind of messed up.” The attorney

cross examining the agent asked if Hall had expanded on this statement, but the

agent replied in the negative. The attorney also inquired about the competency

of the writing – grammar and spelling, for example – in Hall’s statement, as well

as Hall’s ability to communicate with the agent (whether there was anything

“unusual about his understanding of events or how he told them” to the agent).

The defense asked a detective involved in the case whether Hall’s family

members had indicated that Hall had any mental disabilities and if this was

consistent with the detective’s impressions of Hall. The detective replied briefly

that, “[i]f I recall, [Hall’s stepbrother] said he was slow,” and that according to

the detective, “he was not the most intelligent person I had ever seen, but he’s

also not the dumbest person I had ever seen, either.” On the third day of trial,

the jury found Hall guilty.

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In the sentencing phase of the trial, the defense offered evidence of Hall’s

learning disability. Hall’s mother and brother testified about mental problems

and learning disabilities in the family, Hall’s struggles to perform typical

childhood tasks, childhood injuries to his head, and later difficulties when he

started work and attempted to socialize with colleagues.32 In addition to

testimony from Hall’s family, Hall’s teachers and psychologists discussed his

mental capacity at school.33 The school psychologist and experts discussed

various results from Hall’s IQ tests, ranging from 67 to 71 for full-scale IQ tests34

32

Mrs. Hall discussed mentally retarded cousins, Hall’s grandfather who was mentally

ill and hospitalized, and three of Hall’s father’s siblings who were “learning disabled and

received special education assistance.” As a child, Hall had trouble doing simple tasks such

as stacking blocks, and when he got older, he often associated with younger children because

children of his own age would “call him stupid and retarded.” When Hall was a child, a pickup

truck converted to a trailer fell on Hall’s head, another child struck him on the head with a

baseball bat, Hall once struck his head when he fell out of a car, and he received stitches over

his eye after an incident in a rocking chair. As an adult, he is unable to tell time from an

analog clock, he drools when he eats, and tears his food apart with his hands rather than

cutting it with a knife. He was demoted from his job as stocker at the grocery store to the

position of “bagger,” since he was unable to properly stack small boxes of food on the shelves.

Although he had a driver’s license, he had initially failed the written test and only passed after

his mother worked with him closely for three days. Hall’s brother testified that Hall became

lost and disoriented when his brother drove him several blocks from his house and dropped him

off at a friend’s mother’s house.

33

His wood shop instructor indicated that Hall had difficulty with “simple tasks.” While

most of his special education students were able to complete an assignment within three

weeks, it took Michael approximately eight weeks. Dr. Conner, the school psychologist,

indicated that although Hall tried to talk in class, he would often only repeat phrases that he

had heard students say in the hallway. Hall read at approximately a third-grade level and had

a comprehension level of a first grader. When Dr. Conner recommended additional

psychological testing, Hall’s mother resisted the testing. A special education teacher testified

that Hall did subtraction using “stick figures.” This teacher “guessed” that Hall’s IQ was in

the upper 60’s.

34

Dr. Conner, Hall’s school psychologist, testified that the school had classified Hall first

as mentally retarded and later as learning disabled, and that his IQ was 84 on the Test of Non-

verbal Intelligence (a non-full scale IQ test, which she testified is usually ten points higher

than a nonverbal intelligence test) and a 71 on the Weschsler Intelligence Scale for Children

Revised test in 1991. Dr. Cunningham, Hall’s expert witness, administered a WAIS-III IQ

Test when Hall was 20 years old and shared the test with Dr. Price, the state’s expert

psychologist. The test indicated that Hall’s IQ score was 67, and with standard error, fell

within a range of 64 to 70.

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but differed as to their significance, reliability, relevance, and margin of error.35

Several experts also testified generally as to Hall’s adaptive functioning and

knowledge, and his academic abilities. Dr. Cunningham assessed Hall’s

adaptive functioning,36 concluding that the tests indicated that Hall was

learning disabled, with “significant academic deficiency.” Dr. Price assessed

Hall’s adaptive knowledge (not adaptive functioning, which is the applicable

issue under the Briseno37 test for Atkins mental retardation) using a Street

Survival Skills Questionnaire,38 indicating that Hall was “slow on a lot” of the

questions but that his intelligence was “either borderline, right at the level of

mild mental retardation, or he’s mildly mentally retarded.” Dr. Price concluded,

“it’s sort of a judgment call.”

Finally, the state presented lay witnesses who had some past contact with

Hall. A fellow grocery store employee of Hall’s testified that Hall taught him

how to bag groceries, said that he had worked with mentally challenged

children, and indicated that he did not notice anything slow about Hall. A

waitress who had once served food to Hall and Neville in a restaurant after the

murder testified that Hall ordered food for himself and that she did not notice

35

Dr. Cunningham indicated that the school’s initial classification of Hall as mentally

retarded in 1988, followed by a re-classification to learning disabled in 1991 – when he received

an IQ score of 71 (with a 90 percent likelihood that the score ranged from 66 to 76) – may have

resulted from the school’s erroneous interpretation of the margin of error for the 1991 test. He

also discussed the danger of relying on the TONI test as an IQ score. Dr. Price, the state’s

expert, testified that the confidence range for the school’s WAIS-III test from 1991 was,

assuming a 90 percent confidence interval, approximately 68 to 74 for the full-scale IQ (not 66

to 76, as Dr. Cunningham had described the score results), and that Dr. Cunningham’s IQ test

results for Hall at age 20, in a “fuzzy” range, could have been “a 70” “[o]r a 71.”

36

Dr. Cunningham assessed adaptive functioning based on interviews with three

informants and concluded that his composite standard score for the test was a 59 – lower than

the IQ of 67 that he assessed when Hall was 20.

37

Ex Parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004).

38

On cross examination, he admitted that “adaptive functioning,” as assessed by Dr.

Cunningham, and “adaptive knowledge,” which he tested, are distinct types of evaluation.

15

No. 06-70041

him picking up food with his hands, although she did not discuss whether or not

he was able to use a knife.

In their closing arguments to the jury, the state and the defense focused

exclusively on Hall’s mental capacity as it related to mitigation. The state

argued that Hall was “at worst mildly retarded” and that this was not

mitigating, since he was “smart enough” to choose a trusting victim. Hall’s

attorney only discussed his IQ in the broad sense (discussing one teacher’s

estimation that it was “somewhere in the 60s,” and how the experts could not

agree on a “precise” IQ number) and emphasized Hall’s mental capacity in light

of his inability to understand the wrongness or “grasp the horribleness” of his

crime. The state, in its final rebuttal, argued: “does it really matter to us, other

than for labeling purposes, whether he’s labeled as mild mentally retarded or

low normal? Does that really tell us anything that we need to know or help us

in determining is this a mitigating factor?”

The jury answered “no” to the question of whether there were mitigating

circumstances to spare Hall’s life. On automatic appeal, the CCA affirmed the

trial court’s conviction and sentence on January 16, 2002,39 rejecting Hall’s

contention that it is unconstitutional to execute mentally retarded persons. On

January 17, 2002, Hall filed a state application for a habeas writ, re-

emphasizing his argument that “[t]o inflict a death sentence on a person

suffering from mental retardation” violates Article 1, § 12 of the Texas

Constitution and Eighth Amendment of the U.S. Constitution, an issue that was

then before the Supreme Court in Atkins. He requested a full and fair hearing,

a “live” hearing.40

39

Hall v. State, 67 S.W.3d 870, 872 (Tex. Crim. App. 2002).

40

Specifically, Hall requested an “evidentiary hearing” in his original state habeas

petition and a “live hearing” in his objection to the state trial court’s writ hearing procedure.

16

No. 06-70041

On June 10, 2002, Hall petitioned the Supreme Court for a writ of

certiorari on the mental retardation issue, seeking review of the CCA’s judgment

on direct appeal affirming his conviction and sentence. On June 20, 2002, the

U.S. Supreme Court in Atkins held that the “[Eighth Amendment of the]

Constitution ‘places a substantive restriction on the State’s power to take the

life’ of a mentally retarded offender,”41 thus setting a constitutional bar against

the execution of mentally retarded individuals.42

The state filed its reply to Hall’s state habeas application on July 16, 2002,

acknowledging the Atkins decision but maintaining that the trial court’s

procedure for determining mental retardation was adequate.43 The habeas trial

judge, who had also presided over the original trial, refused to order a hearing

or to allow cross examination of experts on the new Atkins issue, announcing

that the issue would be submitted based on affidavits and the trial record. Hall

again objected, urging that the court conduct a live hearing. The parties

submitted affidavits from Dr. Price and Dr. Cunningham, as well as affidavits

from many individuals who had not testified at trial, including psychologists Dr.

Denkowski and Dr. Church, an advocate for mentally retarded death row

inmates, prison guards, a mitigation specialist, investigators who assisted Hall

with his habeas claim, an inmate who resided next to Hall on death row, more

of Hall’s teachers, and Hall’s trial counsel.

41

Atkins v. Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright, 477 U.S.

399, 405 (1986)).

42

The Supreme Court granted Hall’s petition on October 7, 2002.

43

In its original reply to Hall’s habeas petition, the state urged that “[t]he Court

expressly left to the states the task of developing appropriate ways to enforce the constitutional

restriction . . . and offered no guidance for determining which capital offenders fall within its

purview.” In response to Hall’s motion to stay the state proceeding, the state continued, “The

mitigation special issue allowed the jury to consider whether Applicant’s mental retardation,

if any, was of such a degree to avoid imposition of the death penalty . . . .”

17

No. 06-70041

Free of cross examination, experts presented new evidence of Hall’s IQ and

further disputed the margin of error associated with the various IQ scores.

These IQ scores included the school’s WISC-R result of 71 with a measurement

error of 2.6, when Hall was 12 ½ years old; Dr. Cunningham’s WAIS-III test,

which resulted in Hall’s score of 67 at age 20; Dr. Church’s WAIS-III test at age

22, which again showed a score of 67 (wrongly reported by Dr. Denkowski as a

72); and TONI-2 and TONI-3 scores of 84 and 77 at ages 16 and 20, respectively

(with associated information that the TONI “yields a 7-point higher score than

the WISC-R Full Scale IQ” and does not measure general intellectual

functioning). Dr. Price’s affidavit discussed the IQ findings from the original

trial but presented new testimony regarding the proper standard for

determining mental retardation under Atkins, and how his testing related to this

standard. He criticized Dr. Denkowski for basing his affidavit on records rather

than a personal examination of Hall but indicated that he and Dr. Denkowski

“basically agree on the current working definition of mental retardation that is

used by the psychological community (i.e., IQ below approximately 70 with

measurement error considered, significant adaptive behavior deficits in 2 or 3

skill areas, and origination of these factors in the developmental period.)” Dr.

Price also described the results of his adaptive knowledge testing of Hall. He

alleged that “Mr. Hall’s knowledge of adaptive behavior ranged from the

borderline level (16th percentile) in several areas (understanding and telling

time, handling money, and using common measurements) to the average level

(8th to 63rd percentile) in other areas (“recognizing and understanding basic

spatial/quantitative concepts, functional signs, tools, kitchen utensils, hygiene,

safety skills, and the use of public services”). He did not indicate whether any

of the tests demonstrated that Hall was below borderline. Dr. Price also alleged:

“It is very important to note that Michael Hall was placed in special education

due to having been classified as having a learning disability – not mental

retardation . . . . [M]y review of this case does not clearly indicate that Michael

18

No. 06-70041

Hall is mentally retarded.” Yet he concluded elsewhere that “[i]t is obvious that

the issue of the diagnosis of mild mental retardation is controversial and

determining whether or not someone receives that diagnosis can literally turn

on a word or a number.”44

Dr. Denkowski’s affidavit explained that he did not interview Hall

because a meeting in a high security prison would “not provide reliable

information for gauging [Hall’s] functional status.” He contested Dr. Price’s IQ

data, indicating that “Dr. Price . . . misrepresented Mr. Hall’s SSSQ [adaptive

behavior] data through tacit implication that they were contrasted with those

of typical adults,” whereas in reality the test derives “adult norms” from “two

secondary school prevocational programs in Indiana and Texas.” Dr. Denkowski

concluded that “how Dr. Price presents SSSQ data is unacceptable for any

diagnostic purpose, even outside the courtroom” and that Dr. Price’s other

adaptive skills test, the K-FAR, showed that Hall’s math skills were “less

competent than those of 99% of typical same-aged persons” and that his reading

skills were “less proficient than 95% of people of his age.” Dr. Denkowski also

examined relevant authorities that determine mental retardation under Atkins

in Texas, concluding that the relevant numbers required for a finding of mental

retardation of a defendant in Texas are a “WAIS–III full scale IQ” below 75,45

“significant adaptive behavior deficits must exist in three skills areas and the

measurement error adjusted standard score for the overall instrument must be

below 71,” and “[t]hese impairments must have originated prior to the 18-22 age

range.” Further, he found that “[s]ince Mr. Hall’s IQ and adaptive behavior

quality plainly fall within the area that the DSM-IV and Texas law consider to

define mental retardation, it seems reasonable to express confidence in his

diagnosis of mental retardation.” Hall’s adaptive behavior tests indicated that

44

Emphasis added.

45

This is, of course, not the Atkins standard that Briseno later established.

19

No. 06-70041

his behavior was “of the quality of higher-level mentally retarded adults.” Dr.

Denkowski also emphasized that Texas’s definition of mental retardation

recognized only a WAIS test for IQ determination, since only that test “yield[s]

a ‘full scale intelligence quotient’ ” and that the TONI test (which had been

discussed at trial) does not yield an actual IQ or assess general intellectual

function, thus making it useless for diagnosing mental retardation in Texas.

Most significantly, Denkowski’s affidavit, upon which the trial court relied in

finding that Hall was not mentally retarded, indicated incorrectly that Dr.

Church’s examination of Hall produced an IQ score of 72; the score was in fact

a 67. Dr. Denkowski’s affidavit, in addition to commenting on other experts’

evaluations of Hall, discussed the weaknesses of the state’s lay witness affidavits

as well as some of the state’s claims regarding mental retardation.

There were gaps and inconsistencies throughout the record; we mention

only a small sample here. The state posited in its reply to Hall’s state habeas

petition that Hall, while in prison, wrote a note that said, “You have to get me

out of here because there’s no call button. The sink is stopped up. Also there are

roaches and a small ass bed. My feet go all the way to the wall because I’m six

feet four.” The document actually reads, as Hall’s attorneys point out in their

briefing: “you half to get out of here because there is No call button, the senk is

stopd up also rauch’s and small ass bed by feet go all the way to the wall because

I am 6f4".” This cleaning up of a statement lies buried in the paper records but

would have been brought to light by any trial lawyer given the opportunity to

cross examine the opposing party. Mr. Harris, one of Hall’s trial attorneys,

indicated in an affidavit that Hall’s defense team had chosen not to reveal the

victim’s IQ score, since she was clearly an innocent victim. However, the state

at trial had focused strongly on how Amy was mentally impaired and was clearly

20

No. 06-70041

more mentally impaired than Hall.46 In fact, as Mr. Harris’ affidavit reveals, her

IQ of approximately 83 (the exact number remains unclear, as it was only put

forth on paper) was meaningfully higher than Hall’s.

Hall’s affidavits from teachers alleged that he drooled in class, that he had

“extreme difficulty speaking complete sentences,” and that he had trouble

spelling his own name. An affidavit of a mitigation specialist appointed to Hall’s

case indicated that Hall did not understand the appeal or how the attorney

would help him with the appeal. He could only communicate basic information

about himself, such as his name and his mother’s name, and that, during the

interview, “Hall would agree with or go along with whatever he thought [the

mitigation specialist] wanted him to say.” Finally, he indicated that Hall

mispronounced words or used them out of context and appeared to use words

that he did not understand “in an attempt to mask or hide his disabilities.”

The state filed “affidavits” of prison staff, all of which appeared to have

been similar “fillable forms” employed by a state investigator. The affidavits

alleged that Hall appeared “normal” to the guards and that he could follow

instructions. To demonstrate experience with mental illness, one guard wrote

that he “knew some kids in school with Down’s syndrome,” while another said

that he had an uncle who was mentally retarded. Dr. Denkowski pointed out

that the observations of teachers and prison guards, indicating that Hall was

able to obey, follow rules, and function and cope, were painted by the state as

indications of Hall’s mental capacity but in fact simply affirm that “Hall has long

46

The state asked a fellow grocery store worker if Amy had the “same capabilities” as

Mr. Hall, in terms of bagging groceries and carrying them to customers’ cars and asked, “So

when you compare the two of them, who was slower?” and “Mentally, what kinds of things did

you see about her that were slow?” The state asked the jury in its closing arguments, “[I]sn’t

it interesting that the very quality, the very quality that made Amy Robinson the perfect

target, the very quality that enabled this Defendant to deceive . . . someone who truly was

mentally challenged, that very quality is now the quality he wants to cling to . . . . That he

chooses someone who was more mentally challenged by everyone’s account, by everyone’s

account, but himself . . . .”

21

No. 06-70041

demonstrated the capacity to learn and abide by institutional rules and

expectations,” as many mildly mentally retarded persons are capable of doing.

Additional papers presented by affidavit included Hall’s medical records

(showing various incidents such as a fall on the sidewalk resulting in an

abrasion to his mouth and cuts that resulted from glass falling on Hall), grade

reports and special education/disability documents from school, prison medical

and other records, the results of a psychiatric examination to determine Hall’s

competency to stand trial (indicating that Mr. Hall “presented his charge very

well” but that “[h]e could perform only two of the four basic elementary

mathematical functions”), and psychology texts, such as the American

Association on Mental Retardation’s book entitled, Mental Retardation:

Definition, Classification, and Systems of Supports.

The CCA relied entirely upon these affidavits and the original trial court

record in reviewing Hall’s habeas claim of mental retardation,47 which was now

controlled by the decision of the Supreme Court in Atkins. The CCA adopted the

trial court’s paper findings in full – at least one of which was based on an

erroneous conclusion of law48 – on February 26, 2003, and denied Hall’s habeas

47

See Hall v. State, 160 S.W.3d 24, 27-8 (Tex. Crim. App. 2004) (“On August 5, 2002,

in the habeas action, the trial court designated the issue of whether appellant was mentally

retarded as a previously unresolved fact issue and ordered a hearing by way of affidavits. . .

. [A]fter reviewing the trial record and the affidavits submitted by the parties, and relying

upon personal recollection of the events occurring at trial, the habeas trial court adopted the

State’s proposed findings of facts and conclusions of law, concluding that appellant is not, in

fact, mentally retarded . . . . [W]e denied relief in the habeas application in an order adopting

the trial court’s findings.”).

48

The state findings, which the trial court adopted, had held that Dr. Church’s

submission should be disregarded, since Dr. Church was licensed in Oklahoma and not Texas.

This finding erroneously confused the licensing requirements for persons testifying about

mental retardation in civil commitment hearings with those of experts testifying on mental

retardation. The only time that any judge of this court has implied that a Texas license may

be required for an expert to testify on an Atkins claim was in dissent, which relied on the Texas

Health and Safety Code’s definition of mental retardation based on a Texas licensed physician’s

or psychologist’s determination of mental retardation – a code which is meant to protect

persons in civil commitment hearings. See Hearn v. Dretke, 376 F.3d 447, 468 (5th Cir. 2004)

(Smith, J., dissenting).

22

No. 06-70041

49

application. The CCA then rejected the mental retardation claim a second

time on the Supreme Court remand of Hall’s direct appeal case50 but once again

it simply adopted the trial court’s findings based on the paper record and relied

solely on its habeas findings and portions of its original case affirming Hall’s

conviction, as well as a “re-review[]” of the record evidence, to conclude that Hall

was not mentally retarded.51 The court considered no new evidence in these

trials and ordered no hearing on the Atkins issue. It justified its actions by

arguing that the process was sufficient:

[T]he trial court and this Court did have the benefit of Atkins during

the habeas proceedings. The parties had ample opportunity to

present evidence at that time on the specific issue of mental

retardation. And we can consider the habeas proceedings and

evidence in the current posture of this appeal . . . we are faced in a

direct appeal with an issue that has already been presented to us on

habeas corpus. Consequently, we address appellant’s mental

retardation in light of both the direct appeal and the habeas records

. . . we believe that taking judicial notice of the habeas proceeding

and its outcome satisfies the Supreme Court’s remand order in the

present case.52

The dissenting justices disagreed with the “unique” precedent the court

elected to follow to determine the Atkins claims on remand of the direct appeal,

emphasizing that “[n]o trier of fact in this case has ever heard live testimony,

subject to testing on cross examination, on the specific issue of whether

appellant is mentally retarded.”53 The dissent concluded, “[W]e will never know

[whether Hall is mentally retarded] unless we order [a] full hearing and have

49

Ex parte Hall, No. 53,668-01, slip. op. at 1-2 (Tex. Crim. App. 2003).

50

Hall v. Texas, 537 U.S. 802 (2002).

51

Hall, 160 S.W.3d at 39-40.

52

Id. at 37-8. The statement that the parties had “ample opportunity to present

evidence at that time” ignored the state trial court’s rejection of Hall’s request for a hearing.

53

Id. at 41 (Johnson, J., joined by Holcomb, J., dissenting).

23

No. 06-70041

before us both the tested testimony of persons who are knowledgeable in the

mental-health field and relevant lay testimony about his adaptive behavior.”54

In June of 2006, Hall filed a federal habeas petition after the Supreme

Court had denied his petition for certiorari.55 He again specifically argued that

the denial of a full evidentiary hearing denied him due process rights, stating,

“Mr. Hall has a right under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to a full and fair hearing in a court of law on the issue of his

mental retardation.” The federal district court, like the state trial court and

court of appeals, refused to conduct an evidentiary hearing or to allow cross

examination of the state experts on the Atkins claims, denying the claims,

deferring to the state adjudication under AEDPA, and conducting its own

examination of the paper record.56 We granted a certificate of appealability on

the Atkins claim.

II

Our decisions have accorded deference to state adjudications of claims for

habeas relief from state criminal convictions under AEDPA even if made without

a live hearing.57 Under AEDPA there is a presumption that the state court’s

findings of fact are accurate “unless the petitioner can rebut the findings of fact

through clear and convincing evidence.”58 Following this line of deference, in

May59 and similar cases both before and after AEDPA, we have found that where

the trial judge who presided over the initial case later considers the habeas

54

Id. at 44 (Johnson, J., joined by Holcomb, J., dissenting).

55

Hall v. Texas, 545 U.S. 1141 (2005).

56

Hall v. Quarterman, 443 F. Supp. 2d 815 (N.D. Tex. 2006).

57

Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2001).

58

Id. at 949.

59

May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992).

24

No. 06-70041

claim, we presume that reliance upon the completed record is acceptable.60 This

is sensible in many cases, at least those in which the trial judge experienced

first-hand evidence directly relevant to the habeas issue. Due process requires

a hearing, not two. Despite the deference that we give the adjudication of state

courts under AEDPA, this court has highlighted – post-AEDPA – that “‘[t]he

fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’”61 This said, allowing the original

trial judge to proceed without an evidentiary hearing or live cross examination

finds trouble when a central constitutional principle changes between the initial

trial court decision and that same court’s decision of a habeas claim – acutely so

where the claim turns on sharply contested issues of fact and witness credibility.

AEDPA provides,

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the 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.62

60

See, e.g., Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000) (“[W]e have repeatedly

found that a paper hearing is sufficient to afford a petitioner a full and fair fearing on the

factual issues underlying the petitioner’s claims, especially where, as here, the trial court and

the state habeas court were one in the same.”).

61

Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2001) (quoting Mathews v. Eldridge, 424

U.S. 319, 333 (1976)).

62

28 U.S.C. § 2254(d).

25

No. 06-70041

The Supreme Court has explained that AEDPA does not “require the

federal courts, including this Court, to defer to state judges’ interpretations of

federal law.”63 Rather, our duty is to make an “‘independent evaluation’” of

“whether or not a rule is clearly established at the time a state court renders its

final judgment of conviction.”64 A state court decision is contrary to clearly

established federal law in two instances – first, where it is “diametrically

different, opposite in character or nature, and mutually opposed to [the Supreme

Court’s] clearly established precedent,”65 and second, where a “state court

confronts a set of facts that are materially indistinguishable from a decision of

[the Supreme Court] and nevertheless arrives at a result different from our

precedent.”66 Under AEDPA, “state-court judgments must be upheld unless,

after the closest examination of the state-court judgment, a federal court is

firmly convinced that a federal constitutional right has been violated.”67

We must decide whether the state court’s decision to deny Hall the right

of confrontation and cross examination in determining whether he was mentally

retarded under Atkins was contrary to federal law. Looking to federal law of due

process and the right of cross examination and confrontation as announced by

the Supreme Court, I am persuaded that the relevant law is clear, and dictates

the conclusion that the state court’s decisional process was contrary to this

clearly-established law. The life or death of a defendant, determined without

hearing cross examination to resolve disputed material facts, here violates the

63

Williams v. Taylor, 529 U.S. 362, 377 (2000).

64

Id. at 382 (quoting Wright v. West, 505 U.S. 277, 305 (1992) (O’Connor, J., concurring

in judgment)).

65

Id. at 406 (quotations omitted).

66

Id.

67

Id. at 388.

26

No. 06-70041

core principles of due process and Hall’s right of confrontation as announced by

the Court.

It is helpful to lift up the questions that either are not presented or have

otherwise been dispositively decided. I accept here the state’s refusal to grant

a jury trial on the issue of mental retardation. Hall asked for a jury trial, but he

also maintained that given the posture of the case, due process assured him

more than a submission “on the papers.” I also give full force to the Supreme

Court’s holding in Atkins and in Ford v. Wainwright leaving “‘to the State[s] the

task of developing appropriate ways to enforce the constitutional restriction

upon [their] execution of sentences,’”68 while addressing the constitutional

minimum required of the state proceeding. The relevant question to my eyes is

the process required by federal law for the death eligibility determination made

here, and whether the state court’s process directly conflicts with this law.69

The inquiry could begin and end with Ford, but it is helpful to ground this

case in its place within the larger stream of due process precedent. Atkins holds

that “the mentally retarded should be categorically excluded from execution”70

and that “death is not a suitable punishment for a mentally retarded criminal”;71

68

Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17

(1986)).

69

See Williams, 529 U.S. at 382 (holding that “rules of law may be sufficiently clear for

habeas purposes even when they are expressed in terms of a generalized standard rather than

as a bright-line rule. . . . ‘If the rule in question is one which of necessity requires a

case-by-case examination of the evidence, then we can tolerate a number of specific

applications without saying that those applications themselves create a new rule. . . . Where

the beginning point is a rule of this general application, a rule designed for the specific purpose

of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so

novel that it forges a new rule, one not dictated by precedent.’” (quoting Wright, 505 U.S. at

308-09 (Kennedy, J., concurring in judgment))).

70

536 U.S. at 318.

71

Id. at 321.

27

No. 06-70041

Ford establishes a “bar against executing a prisoner who has lost his sanity.”72

While the factors establishing insanity and mental retardation differ and, under

each case, are established by the state,73 the result of the constitutional

determinations required by Ford and Atkins is identical: both determinations,

if established in the affirmative, render a defendant ineligible for a death

sentence.

Ford was convicted of murder and sentenced to death in Florida.74

Following trial and sentencing, Ford began to exhibit strange behavior and

eventually became incomprehensible, speaking in a code known only to him. A

psychiatrist diagnosed him with paranoid schizophrenia.75 His counsel

requested that the state determine Ford’s competency. The Governor appointed

a panel of three psychiatrists to make this determination. Ford had one, thirty-

minute meeting with the psychiatrists who collectively questioned him. Each

then wrote a short report concluding that he had some form of psychosis but was

competent to understand the death penalty and its consequences. Armed with

these reports, the Governor decided that Ford was not insane and signed Ford’s

death warrant.76 The state court denied Ford’s request for a hearing on his

insanity. A district court, on habeas review, denied Ford’s petition for an

evidentiary hearing on insanity.77

72

477 U.S. at 406.

73

The Florida standard for insanity in Ford, for example, was whether “‘the convicted

person has the mental capacity to understand the nature of the death penalty and the reasons

why it was imposed on him.’” Id. at 412 (quoting FLA.STAT. § 922.07 (1985 and Supp.1986)).

74

477 U.S. at 401.

75

Id. at 402-03.

76

Id. at 403-04.

77

Id. at 404.

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No. 06-70041

The Supreme Court found that since “the Eighth Amendment has been

recognized to affect significantly both the procedural and the substantive aspects

of the death penalty,” the adequacy of the procedures for determining Ford’s

insanity rested on whether or not the Constitution barred the execution of an

insane prisoner.78 In other words, a determination that the Constitution

substantively bars the execution of certain types of people brings due process

concerns to the forefront – with the substantive guarantee came assured

procedures.79 Having determined that the Eighth Amendment was a

constitutional bar to the execution of insane prisoners, the court turned to

“whether the [court] was under an obligation to hold an evidentiary hearing on

the question of Ford’s sanity.”80 The plurality held,

The adequacy of a state-court procedure . . . is largely a function of

the circumstances and the interests at stake. In capital proceedings

generally, this Court has demanded that factfinding procedures

aspire to a heightened standard of reliability. This especial concern

is a natural consequence of the knowledge that execution is the most

irremediable and unfathomable of penalties; that death is different.

Although the condemned prisoner does not enjoy the same

presumptions accorded a defendant who has yet to be convicted or

sentenced, he has not lost the protection of the Constitution

altogether; if the Constitution renders the fact or timing of his

execution contingent upon establishment of a further fact, then that

fact must be determined with the high regard for truth that befits a

decision affecting the life or death of a human being. Thus, the

78

Id. at 405 (emphasis added) (“The adequacy of the procedures chosen by a State to

determine sanity . . . will depend upon an issue that this Court has never addressed: whether

the Constitution places a substantive restriction on the State’s power to take the life of an

insane prisoner.”).

79

See id. at 410 (plurality opinion) (“Once a substantive right or restriction is recognized

in the Constitution, therefore, its enforcement is in no way confined to the rudimentary process

deemed adequate in ages past.”).

80

The Ford Court asked whether the “District Court” was required to hold an

evidentiary hearing. Id. (plurality opinion). Guided by AEDPA, we look to the state court’s

failure to hold such a hearing.

29

No. 06-70041

ascertainment of a prisoner’s sanity as a predicate to lawful

execution calls for no less stringent standards than those demanded

in any other aspect of a capital proceeding. Indeed, a particularly

acute need for guarding against error inheres in a determination

that in the present state of the mental sciences is at best a

hazardous guess however conscientious.81

Justice Powell, concurring in Ford in the narrowest opinion,82 rejected the

need for a full “sanity trial” but required procedural protections and a “fair

hearing,” holding that

At least in the context of competency determinations prior to

execution, the [due process] standard is no different from the

protection afforded by procedural due process. It is clear that an

insane defendant’s Eighth Amendment interest in forestalling his

execution unless or until he recovers his sanity cannot be deprived

without a “fair hearing.” Indeed, fundamental fairness is the

hallmark of the procedural protections afforded by the Due Process

Clause.83

I am persuaded that the state court acted contrary to this clearly-established

Supreme Court precedent. Like Ford, Hall challenged the adequacy of the

process afforded to determine the crucial fact underlying a substantive

constitutional right, the right against cruel and unusual punishment. Just as

the state and district courts denied Ford an evidentiary hearing when he

requested one, both the state court and the district court denied Hall a

meaningful hearing. Neither Ford nor Hall received a determination of insanity

or mental retardation at trial – in Ford, this was denied because insanity is a

81

Id. at 411-12 (plurality opinion) (quotations and citations omitted, emphasis added).

82

Panetti v. Quarterman, 127 S. Ct. 2842, 2856 (2007) (“Justice Powell’s concurrence,

which also addressed the question of procedure, offered a more limited holding. When there is

no majority opinion, the narrower holding controls. Under this rule Justice Powell’s opinion

constitutes ‘clearly established’ law for purposes of § 2254 and sets the minimum procedures

a State must provide to a prisoner raising a Ford-based competency claim.” (citations omitted)).

83

Ford, 477 U.S. at 424 (Powell, J., concurring).

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No. 06-70041

pre-trial question, or a post-trial question for condemned prisoners; here,

because mental retardation at the time of his trial was solely a mitigating factor

and yet to be defined by the constitutional strictures of Atkins. Both Ford and

Hall were denied the minimal due process afforded for the determination of a

substantive constitutional right, process with a “high regard for truth that befits

a decision affecting the life or death of a human being.”84 Instead, they were

afforded only a minimal process void of any guarantees afforded by an

adversarial hearing, such as confronting and cross examining witnesses to

question their credibility. Ford lacked even the guarantees of the judicial system

and received only a “cursory form of procedural review” in an executive forum.

Hall had the benefit of a judicial system but received the same administrative-

style review.

Cases defining due process, while not treating eligibility, bear on the

clarity of Supreme Court precedent. Sentencing decisions on the elements of an

offense and aggravating factors of course affect whether a death sentence is

“appropriate,” but they do not reach the determinative question of whether the

defendant is eligible for the death penalty. While sentencing decisions with

respect to the underlying offense and accompanying factors involve a range of

gradation and substantial discretion, the question of eligibility as determined by

mental retardation or insanity is not a sentencing “factor.” As the Court

determined in Atkins and Ford, the determination of eligibility is itself a

substantive, constitutional guarantee governed by higher standards. The Ford

Court alluded to this distinction between elements of death penalty offenses and

sentencing factors on the one hand, and the determination of death eligibility

based on a defendant’s mental abilities on the other, holding that heightened

constitutional protections apply to the determination of insanity where the

84

Id. at 411 (plurality opinion).

31

No. 06-70041

“ultimate decision will turn on the finding of a single fact, not on a range of

equitable considerations.”85

In Enmund v. Florida, the Court held that under the Eighth Amendment,

a defendant could not be sentenced to death for aiding and abetting a felony

murder if there was no determination that the defendant himself killed or

attempted to kill the victim.86 The circuits differed over the constitutionally

secured process for making this determination. The Fifth Circuit held that the

guilt-innocence or sentencing phase of the trial must establish whether a

defendant participated in murder or attempted murder, and the Eleventh

Circuit held that a judge could make the finding.87 The Court in Cabana v.

Bullock resolved the split, agreeing with the Eleventh Circuit and holding that

“the Eighth Amendment is satisfied so long as the death penalty is not imposed

upon a person ineligible under Enmund for such punishment. . . . The Eighth

Amendment is not violated . . . regardless of who makes the determination of the

requisite culpability.”88 Cabana addressed only whether a jury trial was

necessary for a finding of an element of a death-eligible offense and did not

address the level of factfinding necessary for due process, holding,

[T]he question whether the defendant killed, attempted to kill, or

intended to kill might in a given case turn on credibility

determinations that could not be accurately made by an appellate

court on the basis of a paper record. . . . We shall not now attempt

to determine what factfinding procedures would be adequate in the

particular case before us, for, as we shall see, the state courts have

not yet purported to engage in the requisite factfinding, and we

85

Id. at 412 (plurality opinion) (emphasis added).

86

458 U.S. 782, 798 (1982).

87

Cabana v. Bullock, 474 U.S. 376, 382, 382 n.1. (1986).

88

Id. at 386.

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No. 06-70041

decline to decide the hypothetical question of the adequacy of that

which has not yet occurred.89

...

The State argues that the Mississippi Supreme Court itself made a

finding sufficient to satisfy Enmund in the course of its direct review

of [defendant’s] conviction and sentence. . . . We are very doubtful,

however, that these assessments of the record were sufficient in

themselves to constitute a finding that Bullock killed, attempted to

kill, or intended to kill Dickson. The Mississippi Supreme Court

obviously was not addressing the specific requirements set forth in

Enmund, for that case had not yet been decided.90

Cabana’s core holding that an element of a death-eligible offense may be

determined by a judge has since been eroded. Walton v. Arizona relied on

Cabana and similar cases in holding that a jury need not determine the

“aggravating circumstances ‘elements’ of . . . [a death-eligible] offense.”91 The

Court in Ring v. Arizona compared Walton’s holding to Apprendi v. New Jersey,

which held that a sentencing judge’s determination that a crime had been

committed because of racial animus – a determination that triggered the

application of the Hate Crimes Statute – violated the requirement that “a jury

determin[e] that [defendant] is guilty of every element of the crime with which

he is charged, beyond a reasonable doubt.”92 Ring found the two cases

irreconcilable and “overrule[d] Walton to the extent that it allows a sentencing

judge, sitting without a jury, to find an aggravating circumstance necessary for

imposition of the death penalty.”93 The primary distinction between Cabana and

89

Id. at 388 n.5 (internal citations omitted).

90

Id. at 389 (emphasis added).

91

497 U.S. 639, 649 (1990).

92

530 U.S. 466, 477 (2000) (quotations omitted).

93

536 U.S. 584, 609 (2002).

33

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Walton was that Cabana permitted a judge to determine a requisite element of

a capital offense, whereas Walton found the same for the determination of an

aggravating circumstance leading to a capital offense determination. Little

remains of Cabana after Ring.

In Williams v. New York, the Court upheld judicial discretion to impose

a death sentence where a jury found first-degree murder but recommended a life

sentence.94 The Court denied the invitation to “draw a constitutional distinction

as to the procedure for obtaining information where the death sentence is

imposed.”95 Much has changed since 1949. The Court in Woodson v. North

Carolina, striking down North Carolina’s mandatory death penalty statute, held,

[T]he penalty of death is qualitatively different from a sentence of

imprisonment, however long. Death, in its finality, differs more

from life imprisonment than a 100-year prison term differs from one

of only a year or two. Because of that qualitative difference, there

is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a

specific case.96

The Court also held,

[W]e believe that in capital cases the fundamental respect for

humanity underlying the Eighth Amendment . . . requires

consideration of the character and record of the individual offender

and the circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of death.”97

Regardless of what remains of Cabana, Walton, and Williams after Ring’s

holding, Apprendi, Woodson, Cabana, and Walton all addressed the question of

94

337 U.S. 241, 243-44 (1949).

95

Id. at 251.

96

428 U.S. 280, 305 (1976).

97

Id. at 304.

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whether a jury must determine a necessary element or aggravating

circumstance of a capital offense, a question that I do not here ask or answer.

This brings me to other cases that do not speak to the due process afforded

a determination of mental retardation or insanity but set heightened due process

requirements for similar determinations. In Specht v. Patterson the Supreme

Court held that a defendant who was convicted under the Sex Offenders Act but

not sentenced under the Act could not be sentenced without a hearing or the

“right of confrontation and so on.”98 That Act allowed a district court to order

punishment for “one day to life,” including life imprisonment, if the defendant

had been convicted of a sex offense, if the court received a written report arising

from a full psychiatric examination of the patient, and if the court determined

that the defendant “constitutes a threat of bodily harm to members of the public,

or is an habitual offender and mentally ill.”99 The court that sentenced Specht

did not afford him a hearing, and the Court held that this violated due process,

stating,

[The Act] makes one conviction the basis for commencing another

proceeding under another Act to determine whether a person

constitutes a threat of bodily harm to the public, or is an habitual

offender and mentally ill. That is a new finding of fact that was not

an ingredient of the offense charged.100

Similarly, Atkins came after Hall’s trial, and demanded a new finding of

fact. Of course, Almendarez-Torres v. United States101 and McMillan v.

Pennsylvania102 have, since Specht, held that certain sentencing factors are not

98

386 U.S. 605, 608 (1967).

99

Id. at 607 (quoting COLO. REV. STAT. ANN. §§ 39-19-1 to 2 (1963)).

100

Id. at 608 (citations omitted).

101

523 U.S. 224 (1998).

102

477 U.S. 79 (1986).

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No. 06-70041

to be treated as elements of an offense and thus do not require a jury

determination; and that “a sentencing factor that comes into play only after the

defendant has been found guilty . . . of [a] crime[] beyond a reasonable doubt”103

does not prevent a state court from “pursuing its chosen course in the area of

defining crimes and prescribing penalties.”104 But those cases both recognized

that the “defendant in Specht was ‘confronted with a radically different situation

from the usual sentencing proceeding.’”105 In McMillan, for example, a judge

could increase a defendant’s sentence if the judge found visible possession of a

firearm. The Court held, “The finding of visible possession of a firearm of course

‘ups the ante’ for a defendant . . . but it does so only in the way that we have

previously mentioned, by raising the minimum sentence that may be imposed

by the trial court.”106 Similarly, in Almendarez-Torres, where a penalty provision

authorized an enhanced sentence for a recidivist, the sentence was “up to, but

no more than, 20 years.”107 Neither of these cases rise to the level of life

imprisonment, as in Specht, or to the potential for a life sentence. Nor do they

undermine Specht’s holding, as they expressly distinguish their facts as

“radically different” from Specht’s.

Other Supreme Court cases, like Specht, require an evidentiary hearing

or similarly strict due process safeguards for findings far less weighty than

mental retardation. Kennedy v. Mendoza-Martinez requires a full trial to “strip

an American of his citizenship.”108 Mendoza-Martinez was convicted of draft

103

Id. at 86.

104

Id.

105

Almendarez-Torres, 523 U.S. at 241-42 (quoting McMillan, 477 U.S. at 89).

106

477 U.S. at 89.

107

523 U.S. at 226.

108

372 U.S. 144, 166 (1963).

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evasion prior to the deportation proceedings that deprived him of citizenship.109

This did not change the Court’s due process conclusions. Mendoza-Martinez was

“never tried for any crime the elements of which are identical with or totally

inclusory of those” that led to his loss of citizenship,110 just as Hall never had the

chance to address the question of mental retardation – the very question

determining his life or death – in a live hearing. In Oyler v. Boles, the Court

held that “[e]ven though an habitual criminal charge [under a recidivist

sentencing statute] does not state a separate offense, the determination of

whether one is an habitual criminal is ‘essentially independent’ of the

determination of guilt on the underlying substantive offense.”111 Thus, “a

defendant must receive reasonable notice and an opportunity to be heard relative

to the recidivist charge.”112 As in Oyler, the determination of mental retardation

in Hall is not a separate offense; it is a separate fact, and it determines whether

or not Hall is a certain type of criminal – in Hall’s case, a death-eligible criminal.

When Atkins prohibited the execution of mentally retarded defendants, it

did not add an element to a death-eligible offense or change a sentencing factor

that could increase a defendant’s punishment from imprisonment to death. It

established a core and freestanding constitutional principle, that determined

whether a defendant would face life or death. A determination of mental

retardation under Atkins implicates the due process principles established by

Ford. “‘If there is one ‘fundamental requisite’ of due process, it is that an

individual is entitled to an ‘opportunity to be heard.’”113 The question before that

109

Id. at 167 n. 21.

110

Id.

111

368 U.S. 448, 452 (1962) (emphasis added).

112

Id. (emphasis added).

113

477 U.S. at 424 (Powell, J., concurring) (quoting O’Connor, J., concurring in the

result in part and dissenting in part).

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Court was whether a lower court – in that case the district court – “was under

an obligation to hold an evidentiary hearing on the question”114 that determined

Ford’s life or death, and it concluded that it was. I find no dearth of clarity in

these basic principles of due process.

III

In applying the Supreme Court’s due process precedent in Ford and

subsequent cases to the process here, it bears explaining that the CCA was not

itself willing to decide the factual question of retardation on the trial record

alone – that is, it conceded that it needed the written, and, I note, untested,

statements “supplementing” the trial record.

Just as we must give deference to a lower court when it has appropriately

addressed a habeas issue, the Court left to the states “the task of developing

appropriate ways to enforce the constitutional restriction” in sentencing.115

Under Briseno,116 decided after the CCA concluded that Hall was not retarded,

Texas elected to follow the American Association on Mental Retardation

definition, which requires: “(1) significantly subaverage general intellectual

functioning [‘defined as an IQ of about 70 or below’117]; (2) accompanied by

related limitations in adaptive functioning; (3) the onset of which occurs prior to

the age of 18.”118 The process for determination of these three elements must of

course meet constitutional standards. Evidence of mental retardation presented

outside this framework as a mitigating factor of a capital sentence at trial,

viewed retrospectively without a hearing, was contrary to the minimum due

114

Id. at 410 (plurality opinion).

115

Atkins, 536 U.S. at 317.

116

Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004).

117

Id. at 7 n. 24.

118

Id. at 7 (internal quotations and citations omitted).

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process required by federal law to determine Hall’s mental capacity under

Atkins, as Texas has defined it.

It bears accenting that Hall’s claim was decided on the fly,119 and was

decided before Briseno and subsequent cases that consistently allowed

defendants to present live Atkins evidence at various stages of trial. The

difference in process deployed in Hall as compared to Briseno and later Atkins

cases says a great deal: Texas courts quickly found their footing post-Atkins,

proceeding in a strikingly different way than they had with Hall’s claim of

retardation. Briseno was also convicted before Atkins but, unlike Hall, received

a five-day evidentiary hearing on his post-Atkins habeas claim of mental

retardation.120 Similarly, in Morris v. Dretke, we remanded a defendant’s federal

habeas claim to the district court for an evidentiary hearing to address his

Atkins claim.121 In Briseno, when Texas set forth the Atkins test, the CCA’s

language implied that an oral evidentiary hearing was necessary for a

determination of mental retardation, finding that factors “which factfinders in

the criminal trial context might . . . focus upon in weighing evidence as indicative

of mental retardation” included evidence such as whether the defendant

responds “coherently, rationally, and on point to oral or written questions or do

his responses wander from subject to subject” and whether “those who knew the

person best during the developmental stage – his family, friends, teachers,

employers, authorities – think he was mentally retarded at that time, and, if so,

act in accordance with that determination.”122 Although these evidentiary

standards could be ascertained to a limited degree on paper, the factfinder’s

119

The Supreme Court had not ruled on Hall’s direct appeal when the parties submitted

their habeas affidavits on mental retardation in the state trial court.

120

Briseno, 135 S.W.3d at 4.

121

413 F.3d 484, 499 (5th Cir. 2005).

122

Briseno, 135 S.W.3d at 8 (emphasis added).

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burden of making the final determination “based upon all of the evidence and

determinations of credibility”123 cannot be met by a judge’s credibility

assessment of conflicting affidavits. And in the Atkins case itself, the Virginia

court on remand, considering “what type of proceeding is necessary and

consistent with the Supreme Court’s opinion”124 and the fact that “the question

of Atkins’ mental retardation has never been answered,”125 determined that the

case should be sent to the county court “for a hearing on the sole issue of

whether Atkins is mentally retarded”126 as defined by the Virginia Code.

Further, the court explicitly found that in a trial where the jury was “required

to consider evidence of mental retardation in mitigation of capital murder but

. . . not required to make a definitive determination whether [defendant] suffers

from mental retardation,” the issue of mental retardation has not been fully

addressed.127

Atkins both clarified the definition of mental retardation and moved it

from a mitigating circumstance to a complete bar to execution after a hearing.

And while that may not require another hearing where “[t]he question whether

[defendant] is mentally retarded” was “highly contested” at trial,128 suggesting

both that the defendant had ample opportunity for confrontation and cross

examination, it is not this case. Here, mental retardation was solely a

mitigating factor at trial, and the trial did not afford adequate process for

reaching mental retardation, a technical, three-part test in Texas. In Louisiana,

123

Id. at 9.

124

Atkins v. Commonwealth, 266 Va. 73, 79 (2003).

125

Id.

126

Id. (emphasis added).

127

Id. at 77.

128

United States v. Webster, 421 F.3d 308, 314 (5th Cir. 2005).

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the courts have recognized their inability to rely upon mental retardation

evidence presented for mitigation as evidence of Atkins mental retardation,

stating, “Atkins changed what would be considered relevant. Prior to the trial,

mental retardation was merely a factor in mitigation. Post Atkins, mental

retardation is a complete prohibition against imposition of the death penalty .

. . .”129

The reality is that determining mental retardation in general and

certainly under Atkins engages assessments of testifying witnesses as well as

relevant records. As the CCA stated in Briseno when establishing the Atkins

mental retardation standard for Texas:

[A]lthough experts may offer insightful opinions on the question of

whether a particular person meets the psychological diagnostic

criteria for mental retardation, the ultimate issue of whether this

person is, in fact, mentally retarded for purposes of the Eighth

Amendment ban on excessive punishment is one for the finder of

fact, based upon all of the evidence and determinations of

credibility.130

There is nothing new here. The Supreme Court has consistently held that

evidentiary hearings are essential for determinations of credibility.131 The

Advisory Committee to the Standing Committee on Federal Rules has agreed,

stating: “When the issue is one of credibility, resolution on the basis of affidavits

can rarely be conclusive, but that is not to say that they may not be helpful.”132

129

State v. Williams, 831 So.2d 835, 856-57 (La. 2002).

130

Briseno, 135 S.W. 3d at 9 (emphasis added).

131

See, e.g., United States v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989) (“If the district

court’s factual findings rest upon credibility determinations after an evidentiary hearing, this

court will not substitute its reading of the evidence for that of the district court.”); see also

Richardson v. Wright, 405 U.S. 208, 219 (1972) (Brennan, J., dissenting) (citing Goldberg v.

Kelly, 397 U.S. 254 (1970)) (the right to cross examination rests largely on “credibility and

veracity,” i.e., where “facts are at issue”).

132

Advisory Committee note to Rule 7, Rules Governing Habeas Corpus Cases (quoting

Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970)).

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Indeed, affidavits can be helpful, but the credibility of the writer of an affidavit

can be fairly tested only in a hearing.

Reciting the rote that oral hearings test credibility is an anemic and

inadequate statement of their force. It is the hearing in open court which offers

the opportunity to expose the very core of the evidence, its accuracy, and its

weight. Our faith in live hearings is a judgment made at least two centuries ago,

reaffirmed for so long as to become a central part of this country’s democratic

tradition and of a piece with its sense of fairness, and its defining of the

relationship of citizen and state. The examples are many. I pause only to

remind of a few. The Supreme Court’s extensive examination of the role of

magistrate judges in holding fact-finding hearings, which the trial judge then

accepts on paper, demonstrates well the limits of the paper record. In holding

that a magistrate under the Federal Magistrate Act cannot preside over jury voir

dire, and reserving that function for a trial judge, the Supreme Court in Gomez

v. United States spoke to the importance of the judicial function and the trial

judge’s responsibility, which rises far above simple document review:

Like motions to suppress evidence, petitions for writs of habeas

corpus, and other dispositive matters entailing evidentiary

hearings, jury selection requires the adjudicator to observe

witnesses, make credibility determinations, and weigh contradictory

evidence. Clearly it is more difficult to review the correctness of a

magistrate’s decisions on these matters than on pretrial matters,

such as discovery motions, decided solely by reference to

documents.133

As the Gomez Court further explained, the nature of voir dire requires the

court to “scrutinize not only spoken words but also gestures and attitudes of all

participants . . . But only words can be preserved for review; no transcript can

recapture the atmosphere of the voir dire, which may persist throughout the

133

490 U.S. 858, 874 n. 27 (1989) (emphasis added, internal citation omitted).

42

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134

trial.” Peretz’s holding after Gomez – allowing a magistrate to preside over

voir dire when the defendant waives his right to voir dire in the trial court – does

not diminish Gomez’s findings. When the Court upheld this waiver for felony

trials, it emphasized that “the duties that a magistrate may perform over the

parties’ objections are generally subsidiary matters not comparable to

supervision of jury selection. However, with the parties’ consent, a district judge

may delegate to a magistrate supervision of entire civil and misdemeanor

trials.”135 The Court in United States v. Raddatz, in examining the ability of the

magistrate to conduct a hearing on suppression of evidence, discussed this

country’s deep-rooted belief in the value of live trials:

More than 100 years ago, Lord Coleridge stated the view of the

Privy Council that a retrial should not be conducted by reading the

notes of the witnesses’ prior testimony: “The most careful note must

often fail to convey the evidence fully in some of its most important

elements. . . . It cannot give the look or manner of the witness: his

hesitation, his doubts, his variations of language, his confidence or

precipitancy, his calmness or consideration; . . . the dead body of the

evidence, without its spirit; which is supplied, when given openly

and orally, by the ear and eye of those who receive it.”136

And as English scholars have aptly commented, “an artful or careless

scribe may make a witness speak what he never meant, by dressing up the

depositions in his own form at language; but the witness is here at liberty to

correct and explain his meaning, if misunderstood, which he can never do after

a written deposition is once taken.”137 There are markers of the need for live

134

Id. at 874-75 (emphasis added).

135

Peretz v. United States, 501 U.S. 923, 933 (1992).

136

447 U.S. 667, 679 (1980) (quoting Queen v. Bertrand, 4 Moo. P. C. N. S. 460, 481, 16

Eng. Rep. 391, 399 (1867)).

137

Henry John Stephen and James Stephen, New Commentaries on the Laws of

England (partly founded on Blackstone) (1863).

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hearings along the way of this country’s entire history. In discussing the

importance of jury voir dire and deference to a trial court’s findings on

challenges to members of a venire during voir dire, the Supreme Court one

hundred twenty-eight years ago highlighted the types of findings that cannot be

simply drawn from written evidence:

The reading of the evidence leaves the impression that the juror had

some hypothetical opinion about the case, but it falls far short of

raising a manifest presumption of partiality. In considering such

questions in a reviewing court, we ought not to be unmindful of the

fact we have so often observed in our experience, that jurors not

unfrequently seek to excuse themselves on the ground of having

formed an opinion, when, on examination, it turns out that no real

disqualification exists. In such cases the manner of the juror while

testifying is oftentimes more indicative of the real character of his

opinion than his words. That is seen below, but cannot always be

spread upon the record.138

More recently, the Court has focused on the importance of deference to the

findings of a trial judge, since the parties at trial are “forced to concentrate their

energies and resources on persuading the trial judge that their account of the

facts is the correct one,” and “only the trial judge can be aware of the variations

in demeanor and tone of voice that bear so heavily on the listener’s

understanding and belief in what is said.”139 Justice Powell in Ford discussed

how the “competency determination depends substantially on expert analysis in

a discipline fraught with subtleties and nuances.”140 And although Justice

Powell’s opinion did not conclude that this determination required a full trial,

just as I do not maintain that a formal trial would be necessary for an Atkins

138

Reynolds v. United States, 98 U.S. 145, 156-57 (1878).

139

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

140

Ford, 477 U.S. at 426 (Powell, J., concurring) (quoting Addington v. Texas, 441 U.S.

418, 430 (1979)).

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determination, he recognized the basic need for the parties to introduce

arguments before an impartial decisionmaker.141

Courts’ emphasis, both historical and modern, on the need for a trial judge

or an impartial decisionmaker to hear the most important issues in a case

speaks directly to the necessity of a hearing to determine mental retardation

under Atkins, a hearing that tolerates confrontation and cross examination.

Without such a hearing, the judge lacks the most essential aspects of a mental

retardation determination – observation of the witnesses, with the credibility of

experts’ motivations and the confidence of the affiants exposed to cross

examination in an open courtroom.

IV

Blind deference to the state’s decision in this case would deprive Hall of

his most basic due process rights. The trial court’s examination of the mental

retardation claim as one potential mitigating factor to a capital sentence, before

Atkins was decided, tells us little about the evidence that is relevant to an Atkins

claim. Nor do the criminal and district courts’ re-examinations of the mental

retardation evidence presented for mitigation, as well as post-conviction

affidavits which presented new and important evidence of mental retardation,

serve as “hearings” on the Atkins claim to which we must apply a presumption

of correctness and give deference. There is a backdrop to this deficient hearing

that cannot be ignored and that is the state trial courts’ consistent and complete

adoption of all of the state’s findings throughout this process:142 this creates a

141

Id. (Powell, J., concurring).

142

This practice is by no means uncommon and is, in fact, the overwhelming norm. See,

e.g., Texas Defender Service, A State of Denial: Texas Justice and the Death Penalty at 125

(observing that “the ‘paper hearing’ is especially questionable when combined with the

pervasive practice, followed by the vast majority of Texas trial courts reviewing capital cases

in state habeas proceedings, of resolving the disputed facts by adopting the prosecutor’s legal

arguments and characterizations of the evidence wholesale”). The authors reviewed “over one

hundred post-1995 state habeas proceedings” and found “that the trial court’s findings were

identical or virtually identical to those submitted by the prosecutor in 83.7% of the cases

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black hole of deference and assumption that is not defensible. Both courts

attempted to weigh the mitigation evidence themselves, guessing as to the

credibility, reliability, and accuracy of the purveyors of that evidence and the

Atkins affidavits, and finally deciding who to believe by reading works not

necessarily and likely not crafted by the “witness.”143 But in doing so, they

demonstrated the very flaws that render its paper determination of mental

retardation, made without a hearing, an inadequate purveyor of due process.

The only mental retardation evidence heard live in this case is the limited

testimony and cross examination on mitigation from Hall’s trial, which occurred

before the Supreme Court’s Atkins decision. Many of the affiants have only been

“heard” on paper – including two new experts (Dr. Church and Dr. Denkowski)

who have never been cross examined. And none of the witnesses, expert or lay,

have been cross examined on the issue of mental retardation as defined by

Atkins. The CCA relied wholly on the paper evidence from this trial court record

and additional affidavits submitted by both parties in rejecting Hall’s Atkins

claims. In the initial hearing, Hall and the state addressed mental retardation

as a potential mitigating factor in Hall’s death sentence and not in light of the

three specific Briseno factors that define Atkins mental retardation in Texas.

Much of the testimony focused on Hall’s family life, emotional abuse, and the

examined.” Id. at 127. For capital cases, the authors are not aware of any case where “a

Texas trial court has ever adopted the findings proposed by the defendant seeking a new trial.”

Id. at 126 n. 30.

143

The affidavits are repetitive and phrased similarly (stating, for example, “Michael

Hall is just a normal inmate to me,” “Michael Hall acts . . . as normal as anyone in his pod,”

“Michael Hall’s behavior is normal and does [sic] what he is supposed to do”), suggesting that

one individual asked guards identical questions, wrote down their responses, and then

requested the guards to verify the accuracy of the written responses. The end of each prison

guard affidavit reads: “I have read each of the [applicable number of] sections of this document

and I find it to be a true and correct account of what I have told Investigator David

Whisenhunt of the Tarrant County District Attorney’s Office . . . .”). This method of affidavit

preparation is of course acceptable, but it suggests the deficiency of a court’s relying solely

upon affidavits and barring cross examination based on the affidavits.

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question of Hall’s understanding of culpability and the “wrongness” of his acts,

rather than on whether or not he was in fact mentally retarded according to

Briseno’s “scientific” definition of that term. The question to which all of this

evidence was directed did not even mention the word “mental retardation.”

Rather, the question on mitigation (Special Issue Number 3) asked:

Whether, taking into consideration all of the evidence, including the

circumstances of the offense, the Defendant’s character and

background, and the personal moral culpability of the Defendant,

there is a sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment rather than a death

sentence be imposed.

The testimony and cross examination addressing Hall’s IQ showed that

the issue was controversial and muddled,144 and the state’s only expert discussed

Hall’s adaptive knowledge, not functioning. The closing arguments from the

trial record most strongly illuminate the dearth of sufficient Atkins evidence in

the trial court’s paper hearing, as shown by the state’s sweeping assertion that

mental retardation was only for “labeling purposes” and had little relevance to

the question of mitigation.

Ironically, the CCA, in finding that Hall was not mentally retarded for a

second time and relying upon the paper trial record and habeas affidavits,

stated: “At no point did appellant [during trial] request that the trial judge or

the jury make a specific fact-finding as to whether appellant was in fact mentally

retarded.”145 Had Hall and his attorneys possessed extrasensory abilities – and

had they known that Hall’s initial trial would be their only opportunity to

present live evidence of the very issue of Atkins mental retardation that would

determine Hall’s fate – they would have of course seized the opportunity to

present their proof of mental retardation in open court and not by mail. The

144

The experts addressed the confusion over the IQ tests’ standard error but did not

resolve or fully clarify the issue.

145

Hall, 160 S.W.3d at 26.

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state, in turn, would have offered rebuttal evidence and cross examined

defendants’ witnesses and experts on their credibility as it specifically related

to the three Briseno factors of mental retardation in Texas. But neither side did

so, because neither could have known that the Court would declare a new

constitutional standard in Atkins. Further, neither side could have predicted

that the state and district courts would have refused the parties an opportunity

to confront and cross examine the expert witnesses who offered conflicting

opinions. And the brief opportunity afforded to present Atkins evidence on paper

failed to remedy the absence of genuine adversarial contest. Between Hall’s

state application for habeas, which claimed that it was unconstitutional to

execute a mentally retarded defendant in light of the pending Atkins case, and

the state’s reply, the Supreme Court decided Atkins. Therefore, both the habeas

application and the reply contained Atkins-type arguments, and both Hall and

the state relied upon the Texas Health and Safety Code’s definition of mental

retardation, which is similar but not identical to the AAMR test for mental

retardation under Atkins that the Briseno court later adopted. The Code’s

definition of a mental retardation is “significantly subaverage general

intellectual functioning that is concurrent with deficits in adaptive behavior

146

and originates during the developmental period.” Briseno’s AAMR test

requires “limitations” in adaptive functioning that are “related” to the

subaverage intellectual functioning, with onset before age 18. Although the trial

court’s paper habeas hearing, which occurred just after Atkins was decided,

ostensibly allowed the parties to “argue” the issue of mental retardation under

a definition similar to the Briseno standards, the arguments put forth on paper

left gaps in the focus demanded by Atkins. At best, the experts reiterated prior

arguments over IQ and failed to resolve them, bickering over standard error and

citing incorrect IQ results. Two new experts presented affidavits and neither of

146

TEX. HEALTH & SAFETY CODE § 591.003(13) (West 2008).

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these experts were ever cross examined as to their competency. They asserted

their own views on the proper means for testing IQ and adaptive functioning, as

well as the proper measurement of margins of error and application of test

results to the Atkins factors, yet they never debated these views live.

Significantly, Dr. Denkowski pointed out potentially major flaws in some of the

analyses relied upon by Dr. Price and others (that the TONI test, for example,

does not even technically measure IQ), yet most of these flaws have not been

tested in a courtroom. And the lay affiants presented broad claims that would

have likely been pierced, or substantially altered in strength, upon cross

examination. The judges in each step of Hall’s case and collateral review

decided they could sort through the complicated scientific evidence and

conflicting lay opinions themselves, without the aid of adversarial truthseeking.

This occurred despite the failure of the trial record or the supplemental

affidavits to sufficiently address any of the Briseno factors. Regarding the

question of onset before the age of 18, the state’s only argument directly

addressing this issue covered less than one page of its reply to Hall’s habeas

application and relied upon the controversial school IQ scores of 71 on the WISC-

R and 84 on the TONI, the faults of which Dr. Cunningham had raised in trial

and Dr. Denkowski further explored on paper.147 In alleging that Hall did not

have significant limitations in adaptive functioning, the state relied wholly on

descriptions of Hall’s participation in the murder (alleging that this

demonstrated his ability to function competently), the testimony of his family

from the trial testimony, lay affidavits from prison guards, and on Dr. Price’s

description of the Street Survival Skills Questionnaire that he administered on

Hall – a test for adaptive knowledge, not functioning. We expect a reasonable

level of detail in determining whether a defendant meets the Briseno factors. As

147

The state’s attorney also suggested in trial that the multiple head injuries suffered

by Hall as a child were insignificant, as demonstrated by his mother’s failure to take him to

the hospital for some of the incidents.

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the Court in Atkins explained, “To the extent there is serious disagreement

about the execution of mentally retarded offenders, it is in determining which

offenders are in fact retarded.”148 This type of controversial determination

requires a careful and reasoned investigation of relevant facts, and the general

allegations of parties on paper fail to come close to the level of relevance required

for an Atkins determination.

In mental retardation cases, the CCA has specifically found that when a

trial court determines an Atkins claim, “the trial court must not rely so

extensively upon . . . expert testimony as to commit the ultimate decision of

mental retardation to the experts.”149 The state’s post-Atkins argument that

Hall is not retarded rests in part on the affidavits of prison guards. These

witnesses, given the nature of their job and its accompanying dangers, may not

be inclined to volunteer evidence of mental retardation to state prosecutors.

Additionally, as the dissent to the opinion of the CCA observes, the guards

demonstrated only vague and largely irrelevant understandings of mental

retardation150 while simultaneously asserting that Hall appeared normal. The

Supreme Court has observed – in civil cases – that an individual’s knowledge of

the nature of the Government’s argument, protected by “the requirements of

confrontation and cross-examination,” is “important in the case of documentary

evidence,” but “even more important where the evidence consists of the

testimony of individuals whose memory might be faulty or who, in fact, might

be . . . persons motivated by malice, vindictiveness, intolerance, prejudice, or

148

Atkins, 536 U.S. at 317.

149

Briseno, 135 S.W.3d at 13 n. 30 (citing State v. Williams, 831 So.2d 835, 859 (La.

2002)).

150

One prison guard “knew some kids in school with Down’s syndrome,” while another

had one uncle who was mentally retarded. Some of the guards only observed Hall sporadically,

when they happened to be assigned to his prison unit.

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151

jealousy.” While the right to cross examination rests largely on questions of

“credibility and veracity,” “[a]n individual has those rights because facts are in

issue.”152 And we know little about how the other lay witnesses actually

“understood” mental retardation, or whether they observed Hall for a sufficiently

long period of time to accurately observe his mental capacity. Many statements

in affidavits from both the state and the defense indicate precisely how these

issues begged for oral hearing. The affidavit of a waitress who served him once,

for example, would not likely carry much weight in an Atkins hearing. Prison

guards repeatedly made broad, sweeping allegations, such as “Michael Hall is

just a normal inmate to me,” “I have never heard Michael Hall referred to as

‘Half Deck’ by anyone,” and “I had the usual contacts and conversations with

Hall and observed nothing unusual,” while teachers claimed that Michael

“demonstrated behaviors similar to those of a child with a diagnosis of Mental

Retardation” and his trial counsel indicated that “Michael tried to mask his

retardation . . . he bitterly did not want people to think him ‘dumb’. . . .”

As Hall argued in his habeas application:

For any fact-finder to make a determination as to whether Applicant

is mentally retarded, it will be necessary to hear the testimony [of]

people such as teachers, counselors, and mental health providers

who had contact with Applicant before and after his incarceration

concerning Applicant's adaptive functioning. Additionally . . . the

fact-finder will be required to weigh the testimony of witnesses from

both sides – psychologists who had interviewed Applicant . . . The

fact-finder will also have to hear from experts in the field of mental

retardation so that the fact-finder [will] be able to gain an

understanding of exactly what mental retardation is, and the

variety of ways that it is manifested in those afflicted with it. It will

be impossible for any fact-finder to make an informed and

intelligent decision about which experts are most qualified and most

credible in making their respective conclusion without hearing from

151

Richardson, 405 U.S. at 218 (Brennan, J., dissenting) (quoting Goldberg, 397 U.S.

254, 270 (1970), emphasis added).

152

Id. at 219.

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the experts in court and subjecting them to the rigors of a

Daubert/Rule 702 hearing and cross-examination.

A judge presiding in court at an oral hearing has “the superior opportunity

of an observer of witnesses to comprehend their testimony,”153 an advantage in

“essaying the truth of a matter when the facts are caught up with a witness’s

manner of expression.”154 Our principles of deference to trial courts are clear,

and we follow these principles because of the trust that we place in the trial

process to do justice to the evidence placed before it.

Returning to basics, an oral hearing with cross examination of experts

allows the trier to evaluate not only the raw contents of that evidence but the

way in which the evidence plays out as presented live: the inconsistencies that

arise, the phrases that went unnoticed yet carry great weight, and the responses

to cross examination that may bring out weaknesses in an assertion that

appears bullet proof on paper. It is sometimes the silences in the courtroom that

confess a realization of truth but are not preserved for reading by judges at

another place and another time. Hearings in open court, or “little” trials, are

not perfect but they are the best that we do in a system that remains as fair as

any in the world. And they must not be jettisoned in the elusive and illusive

pursuit of “efficiency.” Of course efficiency is an important component of a fair

system, at least as much as the system can stand. The reality is that far less

time would have been taken by a hearing than the time consumed in the

struggle over its absence. Submissions on paper are the staple of the

administrative state. I do not gainsay the role of our administrative state in

saying that whether a man lives or dies at the hand of his government for his

conduct is not to be decided by administrative agencies. Nor, I say, with all

respect, by courts who unwittingly ape them by accepting the adequacy of

153

O’Bryan v. Estelle, 714 F.2d 365, 392 (5th Cir. 1983) (Higginbotham, J., concurring).

154

Id. at 393 (Higginbotham, J., concurring).

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administrative manners not prescribed for courts of law but as an alternative to

them.

Here, judges distant from any live testimony or cross examination

attempted to decipher the evidence for themselves, despite differing accounts of

the accuracy of IQ tests and standard error, despite conflicting lay opinions on

Hall’s mental abilities, and, most importantly, despite the state expert’s

admission that the determination of mental retardation is a “judgment call” in

this case and can “literally turn on a word or a number.” When a constitutional

issue turns on a word or number – particularly here, where the first prong of

Briseno’s mental retardation test requires an IQ of 70 or below for a finding of

mental retardation – a judge’s analysis of paper arguments over the accuracy of

IQ tests and complicated standard of error ranges cannot do justice to a

defendant’s right to a determination of mental retardation. I have little doubt

that the state trial judge would have never relied upon the erroneous

misstatement of Hall’s IQ made in an affidavit of one of Hall’s expert witnesses

had there been a hearing in more than name. It is the risk of just such errors

that underpins the assurances of the procedural protections of due process. That

a state is free to allocate the adjudicatory responsibility to trial or appellate

courts does not reduce the constitutionally secured minimum for deciding a

substantial claim of retardation under Atkins, bristling with sharply contested

facts.

I have not invoked the familiar and reminded of primer rules and common

understandings that came with the founding and have clung to our national

psyche, powerfully informing our present elaboration because they have not been

learned, but because in the daily mix of affairs they are occasionally forgotten.

This panel has unanimously concluded that the state did not afford Hall’s

claim of retardation a full and fair hearing. It follows that we vacate the

decision of the federal district court and remand for an evidentiary hearing.

Here I would chart a different path. We should also make clear that because the

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finding that the state denied Hall a full and fair hearing on a claim of

retardation is constitutionally footed, the state’s adjudication is constitutionally

flawed and has resulted in a decision that was contrary to and an unreasonable

application of federal law as determined by the Supreme Court. Refusing to

allow confrontation and cross examination was an error of law, one that violated

the federal law as established by the Supreme Court. We should vacate the

decision of the district court with instructions to that court to enter an order that

unless the state shall provide a constitutionally adequate evidentiary hearing

on Hall’s claim within 120 days of the issuing of the mandate, Hall shall not be

eligible for death.155 To do otherwise does not give Hall his due – a hearing that

not only affords the opportunity to confront and cross examine the state

witnesses but also a hearing free of the deference the federal district court must

give to the state adjudication of retardation – and passes over the reality that

the state adjudication here was constitutionally flawed.

155

Indeed, Texas allows the Texas Court of Criminal Appeals to utilize the state trial

courts for hearings requiring evidentiary presentations. See TEX. CODE CRIM. PROC. art.

11.071 § 8 (“If the convicting court determines that controverted, previously unresolved factual

issues material to the legality of the applicant’s confinement exist, the court shall enter an

order, not later than the 20th day after the last date the state answers the application,

designating the issues of fact to be resolved and the manner in which the issues shall be

resolved. To resolve the issues, the court may require affidavits, depositions, interrogatories,

and evidentiary hearings and may use personal recollection. . . . (f) The clerk of the convicting

court shall immediately transmit to: (1) the court of criminal appeals a copy of: (A) the

application; (B) the answers and motions filed; (C) the court reporter’s transcript; . . . (2) (C)

findings of fact and conclusions of law entered by the court.”).

54