Petition for Writ of Certiorari — Byron Lewis Black, Petitioner v. Tony Mays, Warden

Supreme Court briefMar 26, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

———————

BYRON LEWIS BLACK

Petitioner,

TONY MAYS, Warden,

Respondent.

———————

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

———————

PETITIONER’S APPENDIX

———————

JOHN H. BLUME*

Cornell Law School

158 Hughes Hall

Ithaca, NY 14853

(607) 255-1030

Jb94@cornell.edu

*Counsel of Record

EMILY C. PAAVOLA

900 Elmwood Avenue, Suite 200

Columbia, SC 29201

(803)765-1044

emily@justice360sc.org

KELLEY HENRY

Supervisory Asst. Fed. Pub. Defender

FEDERAL PUBLIC DEFENDER

Middle District of Tennessee

Capital Habeas Unit

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

Kelley_henry@fd.org

Counsel for Petitioner

INDEX

Black v. State, No. M2004-01345-CCA-R3-PD, 2005 WL 2662577 (Tenn. Crim. App. Oct. 19,

2005)………………………………………………………………………………………………1

Black v. Bell, 2008 U.S. Dist. LEXIS 33908 (M.D. Tenn. April 24, 2008)……………………..14

Black v. Bell, 664 F.3d 81 (6th Cir. 2011)……………………………………………………….27

Black v. Colson, No. 3:00-0764, 2013 WL 230664 (M.D. Tenn. Jan. 22, 2013)………………..50

Black v. Colson, No. 3:00-cv-0764 (M.D. Tenn. Jan. 22, 2013), Order Granting Certificate of

Appealability……………………………………………………………………………………..81

Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017)……………………………………………….83

Black v. Mays, No. 13-5224 (6th Cir. Oct. 27, 2017), Order Denying Rehearing……………...106

School Records of Byron Black………………………………………………………………...108

Declaration of Daniel H. Grant, Ed.D…………………………………………………………..110

Declaration of Stephen Greenspan, Ph.D……………………………………………………....121

Declaration of Marc J. Tasse, Ph.D., FAAID…………………………………………………..141

Affidavit of Patti Van Eys, Ph.D……………………………………………………………….158

2005 WL 2662577

Only the Westlaw citation is currently available.

SEE RULE 19 OF THE RULES OF THE COURT OF CRIMINAL APPEALS RELATING TO PUBLICATION OF

OPINIONS AND CITATION OF UNPUBLISHED OPINIONS.

Court of Criminal Appeals of Tennessee,

at Nashville.

Byron Lewis BLACK

STATE of Tennessee.

No. M2004–01345–CCA–R3–PD.

July 19, 2005 Session.

Oct. 19, 2005.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 21, 2006.

Appeal from the Criminal Court for Davidson County, No. 88–S–1479; Walter J. Kurtz, Judge.

Attorneys and Law Firms

Donald E. Dawson, Nashville, Tennessee, and Catherine Y. Brockenborough, Nashville, Tennessee, for the appellant, Byron

Lewis Black.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle Chapman McIntire,

Assistant Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.

WEDEMEYER, JJ., joined.

Opinion

OPINION

JOHN EVERETT WILLIAMS, J.

*1 This appeal is before us following the reopening of Petitioner’s post-conviction petition for the limited purpose of

determining whether Petitioner is mentally retarded and thus ineligible for the death penalty pursuant to our supreme court’s

decision in Van Tran v. State, 66 S.W.3d 790 (Tenn.2001) and the United States Supreme Court’s decision in Atkins v.

Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The post-conviction court ultimately determined that

Petitioner had failed to prove that he was mentally retarded and that the weight of the proof was that he was not mentally

retarded. Accordingly, the court denied Petitioner’s request for a new trial and denied and dismissed the petition for

post-conviction relief. In this appeal as of right, this court must determine the following issues: (1) whether Petitioner proved

by a preponderance of the evidence that he is mentally retarded; (2) whether Tennessee Code Annotated section 39–13–203,

as interpreted by the supreme court in Howell v. State, 151 S.W.3d 450 (Tenn.2004), is constitutional in light of the principles

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outlined in Atkins v. Virginia; and (3) whether the absence of mental retardation is an element of capital murder requiring the

State to bear the burden of proof and requiring submission of the issue to a jury. After review of the record and the applicable

law, we find no errors of law requiring reversal. Accordingly, we affirm the post-conviction court’s denial of post-conviction

relief.

Byron Lewis Black was convicted in 1989 of three counts of first degree murder for the shooting deaths of his girlfriend,

Angela Clay, and her two daughters, Latoya and Lakeisha Clay. A jury sentenced Petitioner to death for the murder of

Lakeisha Clay and to two life sentences for the murders of Angela and Latoya Clay. Petitioner was also convicted of one

count of burglary, for which he received a fifteen-year sentence. The Tennessee Supreme Court affirmed Petitioner’s

convictions and sentences on direct appeal. See State v. Black, 815 S.W.2d 166 (Tenn.1991).

Petitioner subsequently filed a petition for post-conviction relief, which was denied by the trial court and affirmed by this

court on appeal. See Byron Lewis Black v. State, No. 01C01–9709–CR–00422, 1999 Tenn.Crim.App. LEXIS 324, 1999 WL

195299 (Tenn.Crim.App., at Nashville, Apr. 8, 1999). The Tennessee Supreme Court denied Petitioner’s application for

permission to appeal this court’s judgment, and the United States Supreme Court denied Petitioner’s writ of certiorari. See

Black v. Tennessee, 528 U.S. 1192, 120 S.Ct. 1249, 146 L.Ed.2d 106 (2000).

Subsequently, Petitioner filed a petition for writ of habeas corpus in the United States District Court, which was dismissed by

the grant of summary judgment on December 11, 2001. Black v. Bell, 181 F.Supp. 832 (M.D.Tenn.2001). Thereafter,

Petitioner appealed to the United States Court of Appeals for the Sixth Circuit, and the Sixth Circuit Court of Appeals is

currently holding its appeal in abeyance pending the disposition of this action.

*2 On December 4, 2001, the Tennessee Supreme Court released its opinion in Van Tran v. State, 66 S.W.3d 790

(Tenn.2001). This opinion held as a matter of first impression that the execution of a mentally retarded person violates the

Eighth Amendment to the United States Constitution and Article I, Section 16 of the Tennessee Constitution. The Van Tran

Court further held that retroactive application of this new rule of law was warranted for cases on collateral review.

Approximately six months later, on June 20, 2002, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304,

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that execution of mentally retarded persons was cruel and unusual punishment

prohibited by the Eighth Amendment to the United States Constitution. In response to these two court opinions, Petitioner

filed a motion to reopen his post-conviction petition on November 13, 2002, alleging that he was mentally retarded and thus

ineligible for the sentence of death. The post-conviction court entered a preliminary order and found that Petitioner had made

a sufficient showing for his petition to be reopened and held an evidentiary hearing.

Post–Conviction Proceedings

During the post-conviction proceedings, Petitioner presented the testimony of four lay witnesses, three expert witnesses, the

affidavit of an additional expert witness, and numerous exhibits. The State presented the testimony of two expert witnesses.

Petitioner’s experts all found that Petitioner met the criteria to be diagnosed as mentally retarded. The State’s experts found

that Petitioner did not meet the criteria to be diagnosed as mentally retarded.

The lay witnesses presented by Petitioner testified as to various aspects of Petitioner’s social and educational history. Mary

Smithson–Craighead first testified on behalf of Petitioner. Ms. Smithson–Craighead had been the coordinator of the

Nashville Education Improvement Project (NEIP) while Petitioner attended elementary school at Carter–Lawrence

Elementary School. Ms. Smithson–Craighead testified that the particular elementary school that Petitioner attended had

received funding from the NEIP because an assessment by Metro Nashville Schools had determined that the students at

Carter–Lawrence were not at grade level. Ms. Smithson–Craighead further testified that at the time Petitioner attended

elementary school, the schools in Nashville were segregated and the school Petitioner attended was made up of minority

students who were financially disadvantaged.

Ms. Smithson–Craighead testified as to the administration of achievement tests and intelligence quotient (“I.Q.”) tests during

her tenure at Carter–Lawrence. She explained that the achievement tests were given in a group setting and were administered

by the teachers. I.Q. tests, however, were administered individually by someone from the district office. Ms.

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Smithson–Craighead testified that for the most part the standardized tests were given exactly by direction, but there had been

an occasion where a teacher may have assisted a student on an exam. It was Ms. Smithson–Craighead’s opinion that teachers

can recognize students who are mentally retarded but that some students do slip through the cracks. She maintained,

however, that teachers were sensitive to the possibility that a student might be mentally retarded. During her tenure at

Carter–Lawrence, she had four students who were tested, removed from the school, and placed in another school in a

classroom designated for the mentally retarded. Although Ms. Smithson–Craighead was the kindergarten through third grade

NEIP coordinator at Carter–Lawrence while Petitioner attended school there, she never taught Petitioner.

*3 Petitioner’s sister, Melba Corley, testified that during Petitioner’s childhood, their family lived in South Nashville in an

asbestos-shingle siding home. She testified that during his childhood, Petitioner enjoyed playing outside and would at times

get so dirty in the iron rust outside their home that he required two baths a day. She explained that Petitioner also adored their

grandfather, who was the only other male in the home. She and her three sisters helped their mother and grandmother with

the chores around the house, but Petitioner only had to help bring in the wood and coal from outside and keep his area of the

room they slept in upstairs clean. Ms. Corley testified that she never considered her brother to be mentally retarded when they

were growing up nor did anyone in her family ever discuss the possibility in her presence. She explained that he did require

help with his homework and did not seem to enjoy reading like she did. He was able to keep himself clean and dress himself.

She further testified that he had pride in himself. She related that she and her siblings received a yearly check-up by a doctor.

Petitioner traveled with her and her husband to Colorado and California at different times. On those trips, Petitioner would

help with the driving, but he was not very helpful with reading the maps. She did admit that her mother smoked and drank

alcohol during pregnancy. She did not, however, testify as to the amount her mother drank while she was pregnant with

Petitioner. Further, Ms. Corley could not recall Petitioner having an injury that would have caused brain damage.

Al Dennis, Petitioner’s high school football coach, testified that he had coached Petitioner at Hume Fogg High School from

1972 through 1974. He explained that at the time Petitioner attended this school, it was a vocational school. Mr. Dennis

testified that Petitioner was an outstanding defensive player. In fact, his senior year, he was third in tackles and assists on the

team. Mr. Dennis also testified that during Petitioner’s senior year, the team won the Division A, Class A state championship

title. Although Petitioner was an outstanding defensive player, he was not a good offensive player. Coach Dennis explained

that he ran a complicated offense on the team, and Petitioner simply could not learn or remember the plays. As a result, he

would make mistakes. Therefore, he could only play on offense when the team had a significant lead. Coach Dennis testified

that based on Petitioner’s inability to remember and understand the plays, it was his belief that Petitioner had a lower

intelligence. He also distinctly remembered that Petitioner smiled all the time, even when it was inappropriate to do so.

Coach Dennis stated that even when Petitioner was being criticized, he would smile. According to the coach, Petitioner got

along well with his teammates and was respectful of the coaches. He did not remember any problems Petitioner had at school

that were brought to his attention by any of the teachers.

*4 Richard Corley became acquainted with Petitioner when Petitioner’s sister, Melba, married his brother. Mr. Corley

worked at the insurance company Caroon and Black and assisted Petitioner in acquiring a job there. It was his belief that

Petitioner worked at Caroon and Black from approximately 1974 until 1989. Mr. Corley testified that Petitioner basically

served as a courier. Petitioner would make runs in a company van to the warehouse and bank and ordered supplies. When he

went to the bank, he would deliver deposits, but he was not required to complete the deposit slips. He described Petitioner’s

job as simple and routine. When Petitioner was out, he and other employees could step in and do the job. Mr. Corley testified

that he never considered that Petitioner was mentally retarded when he recommended him for the position at Caroon and

Black. Mr. Corley further testified that Petitioner got along well with the other employees, was well-liked by the other

employees, and seemed to be a good employee.

Dr. Albert Globus testified as an expert in psychiatry and neurology on behalf of Petitioner. Dr. Globus evaluated Petitioner

in 2001 and again immediately preceding the post-conviction hearing. Dr. Globus concluded that Petitioner has a damaged

brain. He explained that Petitioner had very serious abnormalities in his mental status examination. Specifically, Petitioner

has a lack of cognitive ability and poor recent memory. Dr. Globus explained that Petitioner is very slow in his thinking and

has a disconnect between what he is talking about and his mood, which always seems euphoric. Dr. Globus opined that

Petitioner’s poor short-term memory very likely places him in the mildly mentally retarded range.

Dr. Globus opined that there were several factors in Petitioner’s early life that would cause some sort of mental ratio of

delays in life and would result in mild or severe mental retardation in many people. Specifically, Dr. Globus identified the

drinking of alcohol by Petitioner’s mother during pregnancy as the most important factor. Dr. Globus also identified several

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other potential etiological factors including playing of football, possible lead poisoning, and possible inadequate care at

home. Dr. Globus testified that the playing of football is known to produce minor brain damage in people who “tackle with

their heads.” Petitioner reported to Dr. Globus that he had been hurt on several occasions in this fashion. Dr. Globus further

explained that white paint had been made with a lead compound until it was outlawed because of its effects on development

and the blood. Petitioner’s sister had testified that there was white paint in Petitioner’s childhood home and on the family

crib, which had teeth marks on it. Dr. Globus testified that Petitioner had developed anemia during his first year or two of

life, which could have been a result of lead exposure or poor nutrition or both.

Dr. Globus testified that brain imaging confirmed that Petitioner has brain damage. Dr. Globus had determined prior to the

brain imaging that Petitioner’s brain abnormalities exist in the frontal and temporal lobes. Dr. Globus testified that the brain

imaging conducted by Dr. Robert Kessler confirmed such. Dr. Globus also testified that data gathered from Dr. Ruben Gur’s

assessment revealed that areas of Petitioner’s brain are hypometabolic, which means that they process glucose at a rate below

normal. Hypometabolism may indicate a site of a tumor, an epileptic fossa, a degeneration secondary to senile dementia or

mental retardation. Dr. Globus also reviewed the findings of Dr. Daniel Grant and concluded that the psychological results

are consistent with the other results. Finally, Dr. Globus concluded that Petitioner’s mental retardation began before he was

eighteen years old.

*5 On cross-examination, Dr. Globus explained that he was initially hired by the federal public defender’s office to determine

if the state court had erred in finding Petitioner competent to stand trial. Dr. Globus admitted that although he has opined that

one of the etiological factors in determining that Petitioner is mentally retarded is that he received brain damage from playing

football, Petitioner was never evaluated by a medical professional because of a head injury received while playing football.

Dr. Globus explained that many professional football players have cumulative minor injuries to the brain, which is probably

also true of high school players. Dr. Globus also admitted that the etiological cause of mental retardation cannot be

determined with certainty. Furthermore, it cannot be determined with certainty that the ingestion of alcohol during pregnancy

will cause mental retardation.

Dr. Daniel Grant testified on behalf of Petitioner as an expert in neuropsychology and forensic psychology. In making his

assessment, Dr. Grant interviewed Petitioner on two occasions, for a total of twelve to fourteen hours. During his testing of

Petitioner, he saw no evidence of malingering, although he did not specifically test for it. Dr. Grant explained that he

administered a battery of tests, which would in effect rule out malingering because it’s difficult to perform poorly on the

same concept areas on various tests. Dr. Grant testified that there are two major measures of adult intelligence: the Wechsler

Adult Intelligence Scale–Third edition (“WAIS–III”) and the Stanford–Binet Intelligence Test. In drawing his conclusion that

Petitioner is mildly mentally retarded, he conducted a series of tests and applied the independent living scale.

Dr. Grant testified that when psychological tests are used to meet the criteria to diagnose retardation, the standard error of

measurement must be considered. According to Dr. Grant, there is generally a one to five point standard error of

measurement with all intelligence tests. Dr. Grant explained that both the American Association of Mental Retardation

(“AAMR”) and the Diagnostic Statistical Manual for Psychiatry (“DSM”) account for a standard error of measurement

(“SEM”) in intelligence testing. Accordingly, Dr. Grant testified that a person who scored a seventy-one on an I.Q. test may

actually be classified as mentally retarded, because when adjusted by the SEM, the I.Q. score would fall within a range that

extended both below and above seventy. Dr. Grant admitted that Petitioner received I.Q. scores while in school of

eighty-three, ninety-two, and ninety-one, which are all above the range for mental retardation, even when adjusted by the

standard error of measurement. Dr. Grant, however, noted that the I.Q. tests given to Petitioner while in school were

administered in a group setting, and both the AAMR and the DSM recommend only individually administered tests.

Furthermore, Dr. Grant explained that the results could be skewed depending on how they were scored. If the tests were

scored by grade level rather than by age, Petitioner’s scores would be skewed because he repeated second grade.

*6 Dr. Grant also acknowledged that Petitioner scored a seventy-three on the WAIS intelligence test in 1993 and a

seventy-six on the WAIS–R intelligence test in 1997. However, Dr. Grant opined that Petitioner’s scores were inflated as the

result of the Flynn Effect, which recognizes that people acquire more information and knowledge over time, which in turn

requires that the I.Q. tests be renormed to reflect the gain of knowledge. Dr. Grant testified that Dr. Flynn, for whom the

Flynn Effect is named, has done research that shows that for every three years after norms are collected for an intelligence

test, the I.Q. is inflated by one point. Therefore, in nine years, the person should score three points higher on the I.Q. test. Dr.

Grant opined that although Petitioner scored a seventy-three on the WAIS in 1993, the test was published in 1980; therefore,

Petitioner’s corrected I.Q. would be sixty-nine, after adjusting for the four point increase in the population’s I.Q. between

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1980 and 1993. Furthermore, Petitioner’s corrected WAIS–R score would be seventy-one, rather than seventy-six, because

according to the Flynn Effect there would be a five-point inflation.

Dr. Grant testified that Petitioner’s results from the independent living scale revealed problems with managing money,

managing a home, transportation, and health and safety. Dr. Grant further concluded that Petitioner met the criteria for

deficits in adaptive behavior as set forth in both the DSM–IV and the AAMR. Dr. Grant testified that Petitioner never lived

independently, never cooked, never cleaned the house, never did laundry, never participated in the care of his son, never

contributed financially to his family, and never had a bank account. Dr. Grant further noted that even while he was married,

he and his wife lived with his family. Dr. Grant found that based on these factors, Petitioner had deficits in adaptive behavior.

Dr. Grant explained that Petitioner had support from his family that would enable him to blend into the general population.

Although there was testimony that his family did not see him as retarded, Dr. Grant explained that this is not inconsistent

with persons who fall into the mildly mentally retarded range.

Dr. Grant concluded that Petitioner’s mental retardation existed prior to age eighteen. As evidence of this conclusion, Dr.

Grant pointed to findings from Dr. Globus and Dr. Gur that there are abnormalities in his brain that can best be explained

through things that happened to Petitioner early in life. He also highlighted Coach Dennis’ testimony that Petitioner had

difficulty following plays. He noted that Petitioner repeated the second grade. Petitioner scored in the one percentile on a

differential aptitude test administered in the ninth grade. Dr. Grant also pointed to the fact that Petitioner attended a very

impoverished school.

The State presented two witnesses at the hearing: expert witnesses Eric Engum, Ph.D., J.D., and Susan Vaught, Ph.D. After

extensive cross-examination, Eric Engum was qualified and permitted to testify as an expert in clinical and forensic

psychology and neuropsychology. Dr. Engum opined that Petitioner did not meet the criteria to be diagnosed mentally

retarded. Dr. Engum admitted initially in his testimony that he did not conduct his own testing of Petitioner. Instead, he relied

upon the Petitioner’s previous testing. Dr. Engum further explained that he did not conduct additional testing because he

believed Petitioner was probably “test-wise” or “test-weary.” Dr. Engum further opined that he believed Petitioner has “some

sophistication in knowing how to present himself on the tests to make himself look impaired.”

*7 As to Petitioner’s present I.Q., Dr. Engum testified that he relied upon Dr. Kenneth Anchor’s testing who assessed

Petitioner near the time of his trial. At the time of the testing conducted by Dr. Anchor, Petitioner scored an overall I.Q. of

seventy-six, and Dr. Anchor indicated that he believed that despite the score of seventy-six, he suspected Petitioner actually

performed at a much higher level in the community. Dr. Engum further explained that I.Q. tests tend to underestimate the

intelligence of minorities. Dr. Engum also noted that Petitioner scored a seventy-six when tested by Pat Jaros, and he scored a

seventy-three when tested by Dr. Gillian Blair in October 1993. Based upon his review of the testing of Petitioner, Dr.

Engum testified that he could find no evidence that Petitioner had an I.Q. of seventy or less at the time he committed the

crimes at issue.

In addition to determining that Petitioner did not have an I.Q. of seventy or less, Dr. Engum also opined that Petitioner failed

to meet the second criterion for mental retardation: deficits in adaptive behavior. Dr. Engum testified that he assessed

Petitioner’s adaptive behavior according to the legal standard in Tennessee. He testified that it was his understanding that

under the Tennessee standard, the issue is whether a person can adapt his behavior to the surrounding circumstances, which is

a different standard than that set out in the DSM–IV. The question he believed he must answer was whether the Petitioner

could function within his environment in terms of going about and doing the daily activities that everyone else does. Dr.

Engum testified that he relied upon the testimony of individuals who testified during the mitigation phase of Petitioner’s trial,

and those individuals “commented very favorably upon him in terms of his ability to function within the environment.” Dr.

Engum also testified that during his childhood, Petitioner functioned like a child within his culture and community. Dr.

Engum further noted that prior to age eighteen, there was no individualized assessment by school psychologists, no indication

of significant problems with juvenile authorities, and no unusual behavioral problems. According to Dr. Engum, there simply

were no major deficits in Petitioner’s adaptive behavior. Dr. Engum also assessed Petitioner’s adult years prior to committing

the crimes for which he was convicted, and again he found no deficits in adaptive behavior. Furthermore, Dr. Engum opined

that Petitioner did not meet the standard for deficits in adaptive behavior under the Tennessee standard or under the criteria

set forth in the DSM–IV. Although Dr. Engum believed that Petitioner suffered from personality problems, delusional

problems, or psychological difficulties, those issues are separate and apart from the issue of whether Petitioner was mentally

retarded.

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On cross-examination, Dr. Engum admitted that Petitioner’s grades were certainly not optimal and were highly inconsistent,

but he determined that these problems may have resulted from motivational issues rather than mental retardation issues. Dr.

Engum also acknowledged that the testing performed by Dr. Anchor was a screening test and was not as reliable as other

testing performed. During cross-examination, Petitioner’s counsel also brought out the fact that Dr. Anchor’s license was

revoked or suspended following Petitioner’s trial because he had destroyed documents and test results. Dr. Engum reiterated

that none of the experts who assessed Petitioner prior to 2001 made any identification of mental retardation. Petitioner argues

on appeal that Dr. Engum’s testimony and opinions are completely unreliable and should be given no consideration.

*8 Dr. Susan Vaught also testified on behalf of the State as a clinical psychology and mental retardation expert. Dr. Vaught

opined that Petitioner did not meet the criteria to be diagnosed as mentally retarded. As for the first criterion, Dr. Vaught

explained that in recent testing Petitioner was “at or right at” criteria. She testified that because Petitioner’s life was at stake,

she wanted to give him the benefit of any doubt. She then explained that when he was first assessed Petitioner was above

criteria, but he fell below criteria as time progressed. It was her opinion that there were a lot of alternative explanations for

the decline other than long-standing mental retardation; therefore, she examined his history to determine onset.

Dr. Vaught testified that I.Q. tests have historically been biased against minorities. She explained that, therefore, if you have

an African–American who tests in the seventies, the clinician must be very cautious with the interpretation, especially if

mental retardation is being considered, because there is a bias in the test. Dr. Vaught also testified that she was aware of the

Flynn Effect, but it was not the standard of practice to correct for it, in terms of looking at an I.Q. score. Dr. Vaught

explained her concerns about the reliability of the recent I.Q. testing performed on Petitioner. She explained that the thumb

print of Petitioner’s scores is much more consistent with brain injury or an ongoing organic condition than it is for mental

retardation. She went on to explain that with mental retardation, you generally see a global deficit of scores or an

“elevator-down phenomenon” rather than some high scores and some very low scores. Dr. Vaught explained that she

routinely performs assessments to determine whether a person qualifies for services in the State and that a part of her

assessment must be whether the condition occurred prior to age eighteen and is, therefore, chronic or whether it is a fairly

recent problem. Dr. Vaught testified that as for Petitioner, she believed his recent I.Q. scores were a result of a motivational

problem or an organic problem. In any event, however, she testified she gave the “benefit of the doubt in [Petitioner’s]

direction.”

Dr. Vaught testified that to determine whether a person has deficits in adaptive functioning, she would first determine

whether the person could complete normal tasks of daily living that most people accomplish. Next, the health history and

school history must be reviewed. Dr. Vaught explained that it should be determined whether the milestones were met on

time. She reviews the school records and programs in the school to determine educational history. She also reviews job

history and marital history. As for Petitioner, Dr. Vaught had multiple sources of information, including but not limited to:

medical records; school records; a taped interview with the police; testing performed by other clinicians; letters written by

Petitioner; prior court testimony; and prison records. Dr. Vaught explained that in assessing deficits in adaptive functioning,

she must consider three areas: conceptual, social, and practical.

*9 Language, reading and writing, money concepts, and self-direction are the four basic areas examined to determine if there

is a deficit in the conceptual area of adaptive functioning. Dr. Vaught found that Petitioner had age appropriate functioning

within the conceptual category. Further, Dr. Vaught found Petitioner’s social skills were intact and at or above the level

suggested by current measures of intellectual functioning. Although she determined that Petitioner may have had some

mental health issues, he did not have social deficits in adaptive functioning. Finally, Dr. Vaught concluded that Petitioner had

no practical deficits in his activities of daily living.

Dr. Vaught further opined that there was no onset of mental retardation of Petitioner prior to age eighteen. Dr. Vaught

explained that Petitioner’s childhood history did not follow the pattern of a person with mild mental retardation who has

escaped diagnosis. Dr. Vaught admitted that Petitioner did not excel in school; his grades were low to average. He did,

however, test within the normal range on standardized I.Q. and achievement testing in elementary and junior high school. At

one point, the testing may have indicated a learning disability in reading, but later testing showed he had progressed.

Standardized testing in the ninth grade showed that he tested “far below age peers,” but he continued on in school. Dr.

Vaught also explained that during his high school years and in particular his ninth grade year, Petitioner suffered “multiple

stressors,” including the death of a teacher, football injury, and birth of his first child. In any event, Petitioner graduated with

a regular diploma. Dr. Vaught testified that she had “rarely, if ever, seen a person with mild mental retardation make it

through high school with no assistance like that, and they’ve managed to get a regular diploma.” Dr. Vaught further pointed

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out that Petitioner played organized sports, was engaged in age appropriate activities such as dating, faced and managed a

fairly high stress level, received his driver’s license apparently without any vocational support, and kept employment without

vocational support, training, or modifications.

Dr. Vaught candidly admitted that she neither personally interviewed nor tested Petitioner. She explained that she did neither

for several reasons. One, she had been given voluminous records to review, and after her review of the records, she did not

believe Petitioner met either the second or third criteria for mental retardation. Further, she saw a pattern of the scores on the

I.Q. tests descending. She had also reviewed Dr. Jaros’ report and believed that some organic results had occurred recently in

Petitioner’s life, and her findings would be skewed by such. It was also Dr. Vaught’s opinion that as a result of the organic

problems from which Petitioner was suffering, he would require clinical testing in the near future as a part of his diagnosis

and treatment, and it was her belief that if she tested him, it would skew the results for the next clinician. Dr. Vaught further

explained that she believed Petitioner had become savvy to the testing.

*10 On cross-examination, Dr. Vaught again reiterated that clinicians are aware of the Flynn Effect but that they do not

adjust the scores based on it. Furthermore, she explained that she is very liberal in assessing a person to qualify for services

as a result of mental retardation. She stated: “If I could possibly put somebody in for services that they need, I’m going to do

it.” She then testified that she had cautioned counsel for the State when he approached her for taking the case that if she could

find that Petitioner is mentally retarded and keep him from being executed, she was going to do it. Dr. Vaught further

admitted that Petitioner has a relatively impaired brain. Dr. Vaught referenced on several occasions in direct and

cross-examination testimony her displeasure with Dr. Grant’s comment that mental retardation was a mental illness. Dr.

Vaught explained that mental retardation and mental illness are separate issues. Dr. Vaught explained that mental illness is a

medical illness that affects a person’s ability to think like a normal person from the standpoint of thought formation and

mood. Mental retardation, however, is a developmental disability. It is something that a person is born with or acquires in

childhood. She stated that mental retardation is a structural problem in the brain or “a very bad roll of the genetic dice.” It has

nothing, however, to do with mental illness.

Following the post-conviction hearing, the video deposition of Ruben Gur, an expert in neuropsychology, was taken and filed

as part of the proof in the post-conviction proceedings. Dr. Gur concluded, after conducting an MRI and a PET scan, that

Petitioner had brain damage. Dr. Gur testified that Petitioner’s brain is damaged in the areas that control aggression and

impulses, as well as Petitioner’s ability to think about the future. Dr. Gur also testified that Petitioner had enlarged ventricles,

which indicated that a lot of brain cells had died in the middle of Petitioner’s brain. Dr. Gur explained that ventricular

atrophy was a sign of several disorders and happens during gestation. He testified that large ventricles are a cardinal sign of

schizophrenia but appear in mental retardation and in various forms of cerebral palsy or atrophy disorders. Dr. Gur testified

that due to the scope of damage he found in Petitioner, he was looking for some major brain injury or a period of a coma, but

neither of those are borne out in the record. Therefore, he found the most likely causes were fetal alcohol syndrome or a

series of minor head injuries. He later admitted on cross-examination that he could not rule out other causes including adult

alcohol and drug abuse. However, Dr. Gur testified that the results of Petitioner’s PET scan also indicated brain damage

resulting from fetal alcohol syndrome.

Dr. Gur explained that people with brain damage have “pockets of excellence” and “pockets of deficit,” which explains why

Petitioner may have performed well on some of the harder questions while missing some of the easier questions. Dr. Gur

testified that the part of the brain that needed to be used to answer the easier questions may have been damaged. Accordingly,

the fact that Petitioner correctly answered some of the harder questions while missing some of the easier questions is not an

indication of malingering. Dr. Gur further testified that he did not test Petitioner for malingering because Petitioner appeared

to be putting forth a lot of effort during the testing.

*11 Dr. Gur concluded that Petitioner is mentally retarded. He estimated that Petitioner has an I.Q. of sixty. He also opined

that Petitioner’s test results indicated he had deficits in adaptive behavior. Ultimately, Dr. Gur admitted that he could not

specify a date certain when Petitioner’s brain damage occurred. However, Dr. Gur testified that to a reasonable degree of

medical certainty, Petitioner has serious brain damage and is mentally retarded.

Patti van Eys, a clinical psychologist at Vanderbilt University, submitted an affidavit regarding her evaluation of Petitioner.

Dr. van Eys found Petitioner’s I.Q. to be sixty-nine, based on the WAIS–II intelligence test. Dr. van Eys stated that she did

not believe Petitioner was malingering. She also criticized the State’s experts for failing to personally interview Petitioner in

their assessments.

000007

Analysis

In this appeal, we must determine whether the trial court erred in finding that Petitioner was not mentally retarded and thus

eligible for the death penalty. In 1990, the Tennessee Legislature enacted Tennessee Code Annotated section 39–13–203,

which prohibited the execution of mentally retarded persons. In so doing, the legislature set forth the criteria for determining

whether a person is mentally retarded and the burden of proof to be applied. See Tenn.Code Ann. § 39–13–203(a) and (c).

This statute, however, had an effective date of July 1, 1990, and did not address its effect on defendants previously sentenced

to death. In 2001, in response to a motion to reopen a post-conviction petition filed by a defendant sentenced to death prior to

the effective date of Tennessee Code Annotated section 39–13–203, the supreme court determined that the statute does not

have retroactive application. Van Tran v. State, 66 S.W.3d 790, 798 (Tenn.2001). However, the Van Tran Court determined

that pursuant to Article I, Section 16 of the Tennessee Constitution, it was constitutionally impermissible to execute a

mentally retarded person. Van Tran, 66 S.W.3d at 800. Further, the Van Tran Court held that this newly recognized

constitutional right warranted retroactive application to cases on collateral review. Id. at 811. Approximately six months after

the Van Tran decision, the United States Supreme Court released an opinion holding that executing a mentally retarded

person violates the United States Constitution. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Since releasing the Van Tran decision, our supreme court has had another occasion to address the Van Tran holding and its

applicability. See Howell v. State, 151 S.W.3d 450 (Tenn.2004). In Howell, the supreme court elaborated on the appropriate

criteria to be applied in determining whether a petitioner is mentally retarded, set forth the standards to be applied by the

post-conviction court, set forth the appropriate burdens of proof, and determined that a petitioner is not entitled to have a jury

determine whether he is mentally retarded. Howell, 151 S.W.3d at 457–58, 463–65. Accordingly, both the Van Tran and

Howell decisions will be of paramount importance in our determination of whether the post-conviction court erred.

*12 In this appeal, Petitioner asserts that the trial court erred in determining that the evidence failed to prove that he satisfied

the criteria to be deemed mentally retarded. Petitioner further asserts that Tennessee Code Annotated section 39–13–203 is

unconstitutional as interpreted by the supreme court in Howell v. State. As a final argument on appeal, Petitioner contends

that the supreme court erred in its holdings in Howell, that the petitioner bears the burden of proof, and that the determination

of mental retardation is to be made by the court rather than a jury.

Standard of Review

The question of whether a defendant is mentally retarded and thus ineligible for the death penalty is a mixed question of law

and fact. Accordingly, in this post-conviction appeal, we must review the post-conviction court’s findings of fact de novo,

with a presumption of correctness that is to be overcome only when the preponderance of the evidence is contrary to the

court’s findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.2001). However, in reviewing the application of law to the facts,

we must conduct a purely de novo review. Id. at 457. Thus, no presumption of correctness attaches to the post-conviction

court’s conclusions of law. Id. Bearing this in mind, we will first address the issue of whether Petitioner is mentally retarded

and thus eligible for the death penalty.

Petitioner’s Eligibility for the Death Penalty

As set forth supra, in determining whether Petitioner is mentally retarded and thus ineligible for the death penalty, this court

must follow the holdings of our supreme court in Van Tran and Howell. Moreover, although Petitioner was tried and

sentenced prior to the enactment of Tennessee Code Annotated section 39–13–203, this court must apply the criteria set forth

in that statute in making our determination. See Van Tran, 66 S.W.2d at 812, which held that although Tennessee Code

Annotated section 39–13–203 did not have retroactive application, the applicable criteria to be used by a court in making a

000008

determination of mental retardation are those set forth in the statute.

Tennessee Code Annotated section 39–13–203 sets forth the definition of mental retardation as follows:

(1) Significantly sub-average general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of

seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The mental retardation must have been manifested during the developmental period or by eighteen (18) years of age.

Tenn.Code Ann. § 39–13–203(a) (2003). This definition sets forth a three-prong test, and all three of the prongs must be

satisfied to establish mental retardation. Moreover, our supreme court clarified in Howell that the demarcation of an I.Q.

score of seventy in the statute is a “bright-line cutoff” and must be met. Howell, 151 S.W.3d at 456, 458–59. “[T]he statute

should not be interpreted to make allowance for any standard error of measurement or other circumstances whereby a person

with an I.Q. above seventy could be considered mentally retarded.” Id. at 456.

*13 During the post-conviction proceedings, Petitioner presented the testimony of four lay witnesses, three expert witnesses,

the affidavit of an additional expert witness, and numerous exhibits. The State presented the testimony of two expert

witnesses. Petitioner’s experts found that Petitioner met the criteria to be diagnosed as mentally retarded. Conversely, the

State’s experts found that Petitioner did not meet the criteria to be diagnosed as mentally retarded. In determining whether

Petitioner meets the criteria to be deemed mentally retarded under Tennessee Code Annotated section 39–13–203, it will be

necessary for the court to apply the criteria to the evidence presented.

Significantly Sub-average General Intellectual Functioning As Evidenced By A Functional Intelligence Quotient (I.Q.)

of Seventy (70) or Below

The evidence in this record shows that Petitioner’s intelligence has been tested no fewer than nine times. Petitioner’s

education records show that he was tested five times during his school years. However, the proof demonstrated that it was

possible that one of the scores may have been placed on his record in error. Accordingly, the trial court did not rely upon that

test in making its determination and neither will this court. In any event, while in the second grade in 1963, Petitioner scored

eighty-three on the Lorge Thorndyke intelligence test. In 1964, Petitioner scored ninety-seven on an intelligence test. In

1967, Petitioner scored ninety-one on the Otis Beta intelligence test, and in 1969, Petitioner scored eighty-three on the Lorge

Thorndyke intelligence test.

Petitioner’s intelligence was next tested after his arrest for the murders of Angela Clay and her two daughters. Dr. Kenneth

Anchor and Pat Jaros were hired by Petitioner’s defense team in preparation for trial. Dr. Anchor and Pat Jaros determined

that Petitioner had an I.Q. of seventy-six in 1988. Dr. Anchor determined that despite Petitioner’s I.Q. of seventy-six, he

suspected that Petitioner would perform at a much higher level in the community. Pat Jaros, a psychological examiner,

testified at trial that Petitioner’s I.Q. score of seventy-six was “just about right.” Neither of Petitioner’s experts found him to

be mentally retarded. In 1993, Dr. Gillian Blair tested Petitioner’s I.Q., and she found it to be seventy-three. During the

post-conviction process, Dr. Pamela Auble also tested Petitioner. She determined his full-scale I.Q. was seventy-six. Dr.

Auble found that Petitioner had neurological impairment, but she made no finding of mental retardation.

In 2001, Petitioner scored below seventy for the first time on an intelligence quotient test. Petitioner was tested by Dr. Patti

van Eys, Ph.D., on the Wechsler Adult Intelligence Scale–Third edition (“WAIS–III”). On the WAIS–III, Petitioner scored

sixty-nine. Dr. van Eys noted in her report that Petitioner’s adult assessment results are consistently lower that his I.Q.

estimates in childhood. She found this resulted from either later acute brain damage or a slower deteriorating process such as

dementia or mental illness. She also noted that there was nothing in the records to substantiate acute brain damage. In 2001,

Dr. Daniel Grant also evaluated Petitioner. Dr. Grant’s testing showed that Petitioner scored fifty-seven on the

Stanford–Binet Fourth edition test and sixty-four on the Comprehensive Test of Non–Verbal Intelligence (“CTONI”).

*14 Based on the above testing, Petitioner’s experts at the reopened post-conviction proceedings determined that Petitioner

000009

had subaverage general intellectual functioning as evidenced by an I.Q. score of seventy or less. The experts based their

conclusions on Petitioner’s recent I.Q. scores. Petitioner’s experts, Dr. Grant specifically, also concluded that Petitioner’s

previous adult I.Q. scores fell within the mentally retarded range, seventy or below, when adjusted by the standard error of

measurement and the Flynn Effect. Dr. Grant explained that according to the Flynn Effect, people acquire more information

and knowledge over time, which in turn requires that the I.Q. tests be renormed to reflect the gain of knowledge. According

to Dr. Grant, the previous tests given to Petitioner during his adulthood had not been renormed in years, which caused

Petitioner’s I.Q. score to be inflated. Dr. Grant also opined that the tests given to Petitioner during his childhood were not

reliable measures of his I.Q. because they were administered in a group setting, and both the AAMR and the DSM

recommend only individually administered tests to measure I.Q.

Neither of the State’s expert witnesses administered their own I.Q. tests of Petitioner. Instead, they relied upon the previous

testing. Eric Engum, one of the State’s experts, testified that Petitioner failed to meet the first criteria for mental retardation

because his I.Q. was not seventy or below. In reaching this conclusion, he relied upon the testing of Petitioner conducted by

his experts at trial and the initial post-conviction proceeding. Based upon his review of the testing of Petitioner, Dr. Engum

testified that he could find no evidence that Petitioner had an I.Q. of seventy or less at the time he committed the crimes at

issue.

Dr. Susan Vaught, also a State expert, testified that Petitioner was “at or right at” criteria in recent testing. She explained that

I.Q. tests have historically been biased against minorities. She explained that, therefore, if you have an African–American

who tests in the seventies, the clinician must be very cautious with the interpretation, especially if mental retardation is being

considered, because there is a bias in the test. Dr. Vaught testified that she was aware of the Flynn Effect, but it was not the

standard of practice to correct for it, in terms of looking at an I.Q. score. She, therefore, conceded that Petitioner currently

meets the first criterion for mental retardation.

Petitioner’s test scores have decreased as he has aged. During his childhood, he tested with scores in the eighties and nineties.

Prior to trial and his initial post-conviction proceedings, Petitioner’s own experts testified that his I.Q. score was above

seventy. Only recently has Petitioner’s I.Q. score fallen below seventy. Petitioner’s experts testified that his adult scores fell

within the mentally retarded range when adjusted by the standard error of measurement and/or the Flynn Effect. However,

our supreme court has held that the I.Q. score of seventy in Tennessee Code Annotated section 39–13–203 is a “bright-line

cutoff” and must be met. Howell, 151 S.W.3d at 456, 458–59. As the Howell Court stated: “[T]he statute should not be

interpreted to make allowance for any standard error of measurement or other circumstances whereby a person with an I.Q.

above seventy could be considered mentally retarded.” Id. at 456.

Deficits in Adaptive Behavior

*15 The second criterion Petitioner must meet to prove mental retardation is that he has deficits in adaptive behavior. The

Van Tran Court explained the second prong of the test as follows:

The second part of the definition—adaptive functioning—“refers to how effectively individuals cope with common life

demands and how well they meet the standards of personal independence expected of someone in their particular age

group, socio-cultural background, and community setting.” As discussed, a mentally retarded person will have significant

limitations in at least two of the following basic skills: “communication, self-care, home living, social/interpersonal skills,

use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.” Influences on

adaptive functioning may include the individual’s “education, motivation, personality characteristics, social and vocational

opportunities, and the mental disorders and general medical conditions that may coexist with Mental Retardation.”

Van Tran, 66 S.W.2d at 795 (quoting American Psychiatric Association, Diagnostic and Statistical Manual on Mental

Disorders, 39, 40 (4th ed.1994) (citations omitted)). In 1994, our supreme court construed the term deficits in adaptive

behavior in its ordinary sense as “the inability of an individual to behave so as to adapt to surrounding circumstances.” State

v. Smith, 893 S.W.2d 908, 918 (Tenn.1994).

Both the lay witnesses and the experts testified as to how Petitioner adapted to his surrounding circumstances. The lay

witnesses testified that Petitioner grew up in a large, close-knit family in a disadvantaged area of Nashville and attended a

000010

disadvantaged school. Petitioner repeated the second grade but appears to have functioned in the school system otherwise. He

played football in high school, got along well with the other members of the team, and respected the coaches. None of the

witnesses testified that he had any behavior problems in school or at home. After high school, he obtained employment at

Caroon and Black Insurance Company where he ordered supplies, drove the company van, took deposits to the bank, ran

errands, and worked in shipping and receiving. He was well liked by the other employees. Moreover, Petitioner purchased a

car, apparently paid for the car himself, drove independently, and took great pride in keeping the car neat and clean.

Petitioner married and had a child. Although Petitioner has always lived with his family, even during his five-year marriage,

there was no testimony that he could not live independently. None of the lay witnesses ever considered Petitioner to be

mentally retarded.

Dr. Grant tested Petitioner on the independent living scale and found Petitioner had problems with managing money,

managing a home, transportation, and health and safety. Dr. Grant further concluded that Petitioner met the criteria for

deficits in adaptive behavior as set forth in both the DSM–IV and the AAMR. As support for his conclusion, Dr. Grant

pointed to the fact that Petitioner had never lived independently, cooked, cleaned the house, did laundry, participated in the

care of his son, contributed financially to his family, or had a bank account. However, there is no proof in the record that

Petitioner was unable to do these things.

*16 State expert Eric Engum opined that Petitioner failed to meet the deficits in adaptive behavior criterion. Dr. Engum

testified that he assessed Petitioner’s adaptive behavior according to the definition set out by the supreme court in Smith. He

testified that it was his understanding that under the Tennessee standard as defined by Smith, the issue is whether a person

can adapt his behavior to the surrounding circumstances, which is a different standard than that set out in the DSM–IV. The

question he believed he must answer was whether the Petitioner could function within his environment in terms of going

about and doing the daily activities that everyone else does. Dr. Engum testified that he relied upon the testimony of

individuals who testified during the mitigation phase of Petitioner’s trial, and those individuals “commented very favorably

upon him in terms of his ability to function within the environment.” Dr. Engum also testified that during his childhood,

Petitioner functioned like a child within his culture and community. Dr. Engum further noted that prior to age eighteen, there

was no individualized assessment by school psychologists, no indication of significant problems with juvenile authorities,

and no unusual behavioral problems. According to Dr. Engum, there simply were no major deficits in Petitioner’s adaptive

behavior. Dr. Engum also assessed Petitioner’s adult years prior to committing the crimes for which he was convicted and

again found no deficits in adaptive behavior. Furthermore, Dr. Engum opined that Petitioner did not meet the standard for

deficits in adaptive behavior under the Tennessee standard or under the criteria set forth in the DSM–IV. Although Dr.

Engum believed that Petitioner suffered from personality problems, delusional problems, or psychological difficulties, those

issues are separate and apart from the issue of whether Petitioner was mentally retarded.

State expert Dr. Susan Vaught testified that she routinely assesses adaptive behavior in individuals to determine if there are

deficits. She explained that to determine whether a person has deficits in adaptive functioning, she first determines whether

the person can complete normal tasks of daily living that most people accomplish. Next, she reviews the health history and

school history. It is important to determine whether the milestones were met on time. She reviews the school records and

programs in the school to determine educational history. She also reviews job and marital history. As for Petitioner, Dr.

Vaught had multiple sources of information, including but not limited to: medical records; school records; taped interview

with the police; testing performed by other clinicians; letters written by Petitioner; prior court testimony; and prison records.

Dr. Vaught explained that in assessing deficits in adaptive functioning, she must consider three areas: conceptual, social, and

practical.

Language, reading and writing, money concepts, and self-direction are the four basic areas examined to determine if there is a

deficit in the conceptual area of adaptive functioning. Dr. Vaught found that Petitioner had age appropriate functioning

within the conceptual category. Further, Dr. Vaught found Petitioner’s social skills were intact and at or above the level

suggested by current measures of intellectual functioning. Although she determined that Petitioner may have had some

mental health issues, he did not have social deficits in adaptive functioning. Finally, Dr. Vaught concluded that Petitioner had

no practical deficits in his activities of daily living. As a result, Dr. Vaught concluded that Petitioner did not have deficits in

adaptive behavior.

000011

Manifestation of Mental Retardation During the Developmental Period

*17 Finally, to prove mental retardation, Petitioner must prove that his mental retardation manifested prior to age eighteen; in

other words, he must show that he had an I.Q. below seventy and had deficits in adaptive behavior by age eighteen. The proof

in the record simply does not support such a conclusion.

None of Petitioner’s I.Q. scores were below seventy prior to age eighteen. Dr. Vaught noted that Petitioner’s I.Q. scores have

steadily decreased over the years. She explained that with mental retardation, you generally see a global deficit or

suppression of all the scores rather than some high scores and some very low scores. Dr. Vaught explained that she routinely

performs assessments to determine whether a person qualifies for services in the State, and a part of her assessment must be

whether the condition occurred prior to age eighteen and is, therefore, chronic or whether it is a fairly recent problem. Dr.

Vaught testified that as for Petitioner, she believed his recent I.Q. scores were a result of a motivational problem or an

organic problem. Dr. Vaught further testified that her findings were consistent with Pat Jaros, Petitioner’s own expert, who

testified at Petitioner’s trial.

As the United States Supreme Court has noted:

[M]ental retardation is easier to diagnose than is mental illness. That general proposition should cause

little surprise, for mental retardation is a developmental disability that becomes apparent before

adulthood.... By the time the person reaches 18 years of age the documentation and other evidence of

the condition have been accumulated for years. Mental illness, on the other hand, may be sudden and

may not occur, or at least manifest itself, until adulthood.

Heller v. Doe, 509 U.S. 312, 321–22, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citations omitted).

Although Petitioner’s experts maintain that his mental retardation is a result of his mother’s drinking of alcohol while she

was pregnant, the proof in the record simply does not support that Petitioner’s I.Q. was below seventy or that Petitioner had

deficits in his adaptive behavior prior to age eighteen. Accordingly, Petitioner cannot meet the third prong of the test for

mental retardation. Because Petitioner failed to prove that he is mentally retarded by a preponderance of the evidence, he is

not excluded from the sentence of death.

Constitutionality of Tennessee Code Annotated Section 39–13–203

Petitioner argues that the bright line test adopted in Howell that rejects an adjustment of an I.Q. score by the standard error of

measurement excludes persons who are recognized as mentally retarded in the scientific community. Petitioner further argues

that the approach adopted in Howell is in conflict with prevailing scientific practices. Petitioner contends that the prevailing

scientific norm recognizes that an I.Q. score of seventy represents a range of sixty-two to seventy-eight, which accounts for

the standard error of measurement.

Petitioner bases his argument on the Tennessee Supreme Court’s 1997 decision that set the standard for evaluating scientific

evidence, McDaniel v. CSX Transportation, 955 S.W.2d 257, 266 (Tenn.1997). In McDaniel, the supreme court held that

when determining the admissibility of scientific evidence under Tennessee Rules of Evidence 702 and 703, a trial court may

consider a potential rate of error to determine if the evidence is reliable. McDaniel does not require courts to consider a

potential rate of error when applying scientific evidence. Instead, McDaniel allows courts to consider a potential rate of error

in determining whether scientific evidence is reliable and therefore admissible. Howell does not affect the admissibility of

evidence. Indeed, evidence was presented by Petitioner’s experts in this case as to the standard error of measurement.

*18 The United States Supreme Court in Atkins left it to the states to develop an appropriate way to enforce the constitutional

prohibition of executing mentally retarded persons. Atkins, 536 U.S. at 321. The Tennessee Legislature developed such a

procedure in Tennessee Code Annotated section 39–13–203. Atkins did not require states to adopt a procedure that defined

mental retardation using a standard error of measurement.

000012

This issue is without merit.

Submission of Issue of Mental Retardation to a Jury and Burden of Proof

Finally, Petitioner contends that he has a fundamental right to life and that because the question of eligibility for the death

penalty is a substantive element of capital murder, the state must bear the burden of proving that he is not mentally retarded

and the issue must be submitted to a jury. Petitioner acknowledges that the Tennessee Supreme Court has rejected this

argument but makes the argument in order to preserve it for later review. See State v. Edwin Gomez, 163 S.W.3d 632

(Tenn.2005) (“Indeed, a defendant is never precluded from raising an issue simply because a prior decision has rejected it.”).

Petitioner is not entitled to relief on this issue.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the order of the post-conviction court denying post-conviction

relief.

All Citations

Not Reported in S.W.3d, 2005 WL 2662577

End of Document

000013

Warning

As of: March 2, 2018 3:13 PM Z

Black v. Bell

United States District Court for the Middle District of Tennessee, Nashville Division

April 24, 2008, Filed

NO. 3:00-0764

Reporter

2008 U.S. Dist. LEXIS 33908 *

BYRON LEWIS BLACK v. RICKY BELL

Subsequent History: Vacated by, Remanded by Black v. Bell, 664 F.3d 81, 2011 U.S. App. LEXIS 24798

(6th Cir.) (6th Cir. Tenn., Dec. 15, 2011)

Prior History: Black v. Bell, 2007 U.S. App. LEXIS 30798 (6th Cir., May 30, 2007)

Core Terms

mentally retarded, state court, scores, measurement, seventy, argues, tested, Amendments, sentence, court

held, concludes, requires, deficits, adaptive behavior, court's decision, summary judgment, burden of

proof, district court, death penalty, aggravating, mitigating, factors, expert witness, brain damage, jury

trial, test score, set forth, proceedings, adjusted, theories

Counsel: [*1] For Byron Lewis Black, Petitioner: Paul R. Bottei, LEAD ATTORNEY, Kelley J. Henry,

Federal Public Defender's Office, Nashville, TN.

For Ricky Bell, Respondent: Joseph F. Whalen, III, LEAD ATTORNEY, Tennessee Attorney General's

Office, Nashville, TN; Kathy Morante.

For Victor S. Johnson, III, Interested Party: Michael Alan Meyer, LEAD ATTORNEY, Eric R.

McLennan, Tennessee Attorney General's Office, Nashville, TN.

Judges: TODD J. CAMPBELL, UNITED STATES DISTRICT JUDGE.

Opinion by: TODD J. CAMPBELL

Opinion

DEATH PENALTY CASE

MEMORANDUM

I. Introduction

000014

Black v. Bell

Pending before the Court is the Respondent's Motion To Dismiss And For Summary Judgment (Docket

No. 113). Petitioner has filed a response (Docket No. 120) to the Motion, and the Respondent has filed a

reply (Docket No. 126). 1

For the reasons set forth below, [*2] the Motion is GRANTED, and this action is DISMISSED.

II. Factual and Procedural Background

A. The Federal Court Proceedings

Pursuant to 28 U.S.C. § 2254, Petitioner filed a Petition seeking habeas relief in this case on August 14,

2000. (Docket No. 1). After appointment of counsel, Petitioner filed an Amended Petition For Writ Of

Habeas Corpus (Docket No. 8) raising numerous grounds, including an Eighth and Fourteenth

Amendment claim that execution of the Petitioner would be cruel and unusual punishment because he is

mentally retarded. The Court subsequently granted summary judgment to Respondent on all claims,

including the mental retardation claim. (Docket Nos. 82, 83).

The Petitioner filed an appeal, and while the case was pending, the United States Supreme Court issued its

decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the

Supreme Court held that executing a mentally retarded person violates the Eighth Amendment's ban on

cruel and unusual punishment. The Court left to the states, however, "the task of developing appropriate

ways to enforce the constitutional restriction" upon their execution of sentences. 122 S.Ct. at 2252.

After Atkins [*3] was issued, the Sixth Circuit Court of Appeals held its appeal in this case in abeyance

pending a decision by the Tennessee courts on whether Petitioner is mentally retarded. After an

evidentiary hearing, the state trial court held that Petitioner is not mentally retarded, and that decision was

affirmed on appeal by the Tennessee Court of Criminal Appeals. Black v. State of Tennessee, 2005 Tenn.

Crim. App. LEXIS 1129, 2005 WL 2662577 (Tenn. Crim. App. Oct. 19, 2005). The Tennessee Supreme

Court denied Petitioner's application for permission to appeal. Id. The Sixth Circuit subsequently

remanded the case back to this Court for reconsideration of Petitioner's mental retardation claim in this

case in light of Atkins. (Docket No. 97).

B. State Court's Decision on Atkins Claim

As described above, the Tennessee Court of Criminal Appeals reviewed the evidence presented to the trial

court and agreed with its decision that Petitioner had failed to satisfy the criteria to be deemed mentally

retarded. Black v. State, 2005 Tenn. Crim. App. LEXIS 1129, 2005 WL 2662577, at *18 (Oct. 19, 2005).

As the court described, during the post-conviction proceedings, Petitioner presented the testimony of four

lay witnesses, three expert witnesses, the affidavit of an additional [*4] expert witness, and numerous

exhibits. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *2. The State presented the testimony of two expert

witnesses. Id.

1 Respondent has also filed a Request For Waiver Of M.D. Tenn. Local Rule 56.01(b) (Docket No. 115), which requires that a movant file a

list of undisputed material facts in support of its motion for summary judgment. Given the posture of this case and the standards applicable to

deciding the issues presented, the Court concludes that the requirements of the local rule should be waived. Therefore, the Request is

GRANTED.

Page 2 of 13

000015

Black v. Bell

After reviewing the evidence presented, the court explained that the applicable criteria to be used by a

court in making a determination of mental retardation are those set forth in Tennessee Code Annotated

Section 39-13-203:

(a) As used in this section, "mental retardation" means:

(1) Significantly subaverage general intellectual functioning as evidenced by a functional

intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The mental retardation must have been manifested during the developmental period, or by

eighteen (18) years of age.

The court pointed out that all three criteria must be satisfied to establish mental retardation. 2005 Tenn.

Crim. App. LEXIS 1129, [WL] at *12.

In considering application of the first criterion, the court noted that the Petitioner's intelligence had been

tested "no fewer than nine times," and summarized the test results as follows:

Petitioner's test scores have decreased as he has aged. During his childhood, he tested with scores in

the eighties and nineties. Prior to trial and his initial post-conviction proceedings, Petitioner's own

[*5] experts testified that his I.Q. score was above seventy. Only recently has Petitioner's I.Q. score

fallen below seventy. Petitioner's experts testified that his adult scores fell within the mentally

retarded range when adjusted by the standard error of measurement and/or the Flynn Effect. However,

our supreme court has held that the I.Q. score of seventy in Tennessee Code Annotated section 39-13203 is a 'bright-line cutoff and must be met. Howell, 151 S.W.3d at 456, 458-59 [Howell v. State, 151

S.W.3d 450 (Tenn. 2004)]. As the Howell Court stated: '[T]he statute should not be interpreted to

make allowance for any standard error of measurement or other circumstances whereby a person with

an I.Q. above seventy could be considered mentally retarded.' Id. at 456.

2005 Tenn. Crim. App. LEXIS 1129, [WL] at *13-14.

In applying the second criterion, the court explained that "adaptive functioning" refers to "'how effectively

individuals cope with common life demands and how well they meet the standards of personal

independence expected of someone in their particular age group, socio-cultural background, and

community setting.'" 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *15 (quoting Van Tran v. State, 66

S.W.3d 790, 795 (Tenn. 2001)). The court reviewed the testimony [*6] of the lay and expert witnesses on

this issue, but did not make a definitive determination about whether Petitioner had met the second

criterion.

In applying the third criterion, the court explained that Petitioner must prove that he had an I.Q. below

seventy and had deficits in adaptive behavior that manifested themselves prior to age eighteen. 2005 Tenn.

Crim. App. LEXIS 1129, [WL] at *17. Reviewing the proof, the court determined that Petitioner had failed

to make such a showing:

None of Petitioner's I.Q. scores were below seventy prior to age eighteen.

***

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Although Petitioner's experts maintain that his mental retardation is a result of his mother's drinking

of alcohol while she was pregnant, the proof in the record simply does not support that Petitioner's

I.Q. was below seventy or that Petitioner had deficits in his adaptive behavior prior to age eighteen.

2005 Tenn. Crim. App. LEXIS 1129, [WL] at *17. Thus, the court held that because Petitioner had failed

to prove mental retardation by a preponderance of the evidence, his death sentence would not be set aside.

Id.

III. Analysis

A. Scope of Remand

The Respondent seeks dismissal of certain amendments made to the petition after remand by the Sixth

Circuit as being beyond the scope of the remand order. [*7] 2

The Sixth Circuit's remand order, in its entirety, provides as follows:

On motion of Petitioner-Appellant filed September 6, 2006, this case is remanded to the district court

for the limited purpose of reconsidering Petitioner-Appellant's mental retardation claim in light of

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).

(Docket No. 97).

At the time of remand, the mental retardation claim appeared at Paragraphs 14. a. and 14. b. of Petitioner's

first Amended Petition (Docket No. 8) and stated as follows:

14. Execution of Byron Black violates the Eighth and Fourteenth Amendments, because Byron Black

is mentally retarded:

a. Byron Black's functional intelligence quotient (I.Q.) is significantly subnormal. His I.Q. is 69.

b. Byron Black also suffers from numerous cognitive deficits and deficits in adaptive

[*8] behavior, which include, but are not limited to:

1) inappropriate social behavior, including e.g., inappropriate affect and smiling;

2) perseveration;

3) dysnomia, i.e., inability to name items;

4) primitive defense mechanisms;

5) a childlike understanding of himself and lack of insight;

6) concrete thinking;

7) lack of mental flexibility;

2 In evaluating a motion to dismiss, the Court is to "construe the complaint in the light most favorable to the plaintiff, accept all of the

complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that

would entitle him to relief." Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 389 (6th Cir. 2007).

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8) memory problems; and

9) inability to organize items within his memory.

(Docket No. 8).

After remand, the Petitioner filed an Amendment To Petition For Writ Of Habeas Corpus (Docket No.

110), which added the following: a claim for ineffective assistance of counsel for failure to investigate and

properly present evidence of Petitioner's mental retardation (P 11. v. 3); several paragraphs describing the

proof supporting the Eighth and Fourteenth Amendment mental retardation claim (P 14. c., d.); a claim

based on the Sixth, Eighth and Fourteenth Amendments and Ring v. Arizona, 536 U.S. 584, 122 S. Ct.

2428, 153 L. Ed. 2d 556 (2002) that the State is required to prove the absence of mental retardation

beyond a reasonable doubt (P 14. e.); a claim based on the Sixth and Fourteenth Amendments, Ring,

Atkins and Tennessee law that the Petitioner is entitled to a jury trial on the issue of whether he [*9] was

ineligible for the death penalty because he is mentally retarded (P 14. f.); and a claim based on the Sixth,

Eighth and Fourteenth Amendments, Ring, and Atkins that the Petitioner is entitled to a new jury to decide

both the mental retardation issue and whether the death penalty should be imposed (P 14. g.).

Respondent argues that Petitioner should not be allowed to add any of these amendments to his petition

because consideration of these amendments would exceed the scope of the remand. Petitioner argues, on

the other hand, that the amendments should be considered because they all arise out of the decision in

Atkins, and were not ripe for consideration until Atkins was decided.

Based on the language of the Sixth Circuit's Order remanding this case, the Court concludes that it is

limited to "reconsidering Petitioner-Appellant's mental retardation claim" as that claim was fashioned at

the time of remand. As set forth above, Petitioner's mental retardation claim, at the time of remand, was

based on the Eighth and Fourteenth Amendments. Therefore, the paragraphs of the Amendment that

purport to add constitutional claims based on other constitutional amendments and theories are not within

[*10] the scope of the remand, and are accordingly dismissed. These include the following: PP 11. v. 3,

14. e., f., and g. (Docket No. 110, at pp. 1, 12-14). The paragraphs of the Amendment describing the proof

supporting the Eighth and Fourteenth Amendment mental retardation claim (P 14. c., d.), however, simply

describe the factual support for Petitioner's original mental retardation claim, and therefore, are within the

scope of the remand.

In summary, the claims that are within the scope of the Sixth Circuit's remand appear at Paragraphs 14. a.,

b., c., and d. All other claims set forth in the Amended Petition are dismissed as beyond the scope of the

remand.

B. Mental Retardation Claim

1. AEDPA

The Respondent seeks summary judgment as to Petitioner's mental retardation claim, 3 and takes the

position that the Court must review the claim in accordance with the standards set forth in the

3 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be rendered if "the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Abdulnour v. Campbell Soup Supply Co., LLC, 502

F.3d 496, 501 (6th Cir. 2007). In order to prevail, the movant has the burden of proving the absence of a genuine issue of material fact as to

an essential element of the opposing party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In

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Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA, which amended 28 U.S.C. §

2254, applies to all habeas petitions filed after April 24, 1996, the effective date of the Act. Mitchell v.

Mason, 257 F.3d 554, 560-61 (6th Cir. 2001). As Black's Petition was filed on August 14, 2000, and after

[*11] the effective date, this case is governed by AEDPA. 4

Under AEDPA, when a claim is addressed on the merits by a state court, a federal court may grant habeas

relief as to that claim only if the state court's adjudication "(1) resulted in a decision that was contrary to,

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

Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). With

respect to the state court's factual determinations, the factual findings of a state court are presumed to be

correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000), the Supreme Court

held that a state court decision is "contrary to" Supreme Court precedent if either the "state court arrives at

a conclusion opposite [*13] to that reached by [the Supreme Court] on a question of law" or "the state

court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable

facts."

The Williams Court held that a state court decision involves an "unreasonable application" of clearly

established law if the state court identifies the correct governing legal principle from the Supreme Court's

decisions, but unreasonably applies that principle to the facts of the petitioner's case. Id. The

reasonableness of the state court's opinion is judged by an objective rather than a subjective standard. 120

S.Ct. at 1521-22.

2. State court process

The Petitioner argues that the decision of the state courts on Petitioner's Atkins claim is due no deference

under AEDPA because the state court proceedings did not comport with due process requirements.

Petitioner cites Panetti v. Quarterman, U.S. , 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) and Rivera v.

Quarterman, 505 F.3d 349 (5th Cir. 2007) in support of his argument. In Panetti, the Supreme Court held

that a state court decision rejecting the defendant's threshold showing of insanity under Ford v.

Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) [*14] was entitled to no deference

under AEDPA because the state court failed to provide the defendant with a constitutionally adequate

opportunity to be heard as required by Ford. The state court rejected the defendant's threshold showing of

insanity under Ford after receiving reports from court-appointed experts to which the petitioner was not

given an opportunity to respond. 127 S.Ct. at 2857. The state court also refused to transcribe its

proceedings, on repeated occasions conveyed information to defense counsel that turned out not to be

true, provided at least one significant update to the state without providing the same notice to the

defendant, and failed to provide a competency hearing. 127 S.Ct. at 2856-57.

determining whether the movant has met its burden, the Court must view the evidence in the light most favorable to the nonmoving party.

Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Abdulnour, 502 F.3d at

501.

4 The Petitioner argues that AEDPA should not apply in this case because Atkins announced a new rule of substantive law which prohibits the

imposition of a death sentence [*12] as to a defendant found to be mentally retarded. Petitioner has cited no authority adopting such a theory,

and the Court is not persuaded that such a theory should be applied here.

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In Rivera, the Fifth Circuit, citing Panetti, held that the state court's rejection of petitioner's Atkins claim

for failure to make a prima facie showing of mental retardation was not entitled to deference under

AEDPA. 505 F.3d at 356-61. The court explained that the petitioner need only make a prima facie

showing of mental retardation under Atkins in order to trigger the state court's obligation to provide him

with the opportunity to develop his claim, and that the state court's [*15] summary rejection of the claim

was unreasonable. 505 F.3d at 358.

The facts of both these cases are easily distinguishable and do not support Petitioner's suggestion that the

state court ignored due process requirements in considering his mental retardation claim. In considering

the Petitioner's mental retardation claim in this case, the state trial court held a two-day evidentiary

hearing at which Petitioner was permitted to call three expert and four lay witnesses, submit the affidavit

of an additional expert witness, submit numerous exhibits, cross examine the State's witnesses, interpose

objections, and present written and oral arguments. Black v. State, 2005 Tenn. Crim. App. LEXIS 1129,

2005 WL 2662577 (Tenn. Crim. App. Oct. 19, 2005). The Court concludes that that the state court

afforded the Petitioner an adequate opportunity to be heard on his mental retardation claim.

Petitioner also argues that the state court's decision is "arbitrary, unreasonable, unfair, and flies in the face

of science" because the court refused to consider standard errors in test measurement, the "Flynn Effect,"

permitted the State's experts to testify, and placed the burden of proof on the Petitioner.

In reviewing the state trial court's [*16] decision, the Tennessee Court of Criminal Appeals considered

Petitioner's proof and argument regarding the standard error of measurement and the Flynn Effect:

Petitioner's experts, Dr. Grant specifically, also concluded that Petitioner's previous adult I.Q. scores

fell within the mentally retarded range, seventy or below, when adjusted by the standard error of

measurement and the Flynn Effect. Dr. Grant explained that according to the Flynn Effect, people

acquire more information and knowledge over time, which in turn requires that the I.Q. tests be

renormed to reflect the gain of knowledge. According to Dr. Grant, the previous tests given to

Petitioner during his adulthood had not been renormed in years, which caused Petitioner's I.Q. score

to be inflated.

Black v. State, 2005 Tenn. Crim. App. LEXIS 1129, 2005 WL 2662577, at * 14. 5 Susan Vaught, one of the

State's experts, testified that clinicians are aware of the Flynn Effect, but that they do not adjust I.Q.

scores based on it. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *8, 10. She, and the State's other expert,

Eric Engum, also testified that I.Q. tests have historically been biased against minorities in that they tend

to underestimate the intelligence of minorities. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *7, 10.

The court was ultimately unpersuaded that Petitioner's test scores should be adjusted downward based on

the Flynn Effect and the standard error of measurement. As described previously, the court explained that

the Petitioner's test scores were in the eighties and nineties during his childhood, and before trial and his

first post-conviction proceeding, his own experts testified that they were above seventy. 2005 Tenn. Crim.

App. LEXIS 1129, [WL] at *14. The court recognized that Petitioner's experts found his more recent I.Q.

5 In addition

[*17] to the expert proof introduced during the state proceeding, Petitioner also relies on the Declaration of Marc J. Tasse

(Exhibit 1 to Petitioner's Opposition To Motion To Dismiss And For Summary Judgment (Docket No. 120)), to support his argument that the

Flynn Effect should be adopted and used to reduce Petitioner's test scores. Neither Dr. Tasse's Declaration, nor the other evidence submitted

by Petitioner that was not presented to the state court persuade the Court that the state court decision regarding the issue of mental retardation

was unreasonable.

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scores to fall below seventy within the mentally retarded range by adjusting them for the standard error of

measurement and/or the Flynn Effect. [*18] Id. The court rejected this adjustment of the test scores,

however, based on the Tennessee Supreme Court's decision in Howell v. State, 151 S.W.3d at 458-59.

In Howell, the Tennessee Supreme Court held, as a matter of statutory construction, that the Tennessee

legislature intended to establish a bright-line cutoff point for determining mental retardation in the death

penalty context, rather than using a range of I.Q. scores that would take into account measurement errors

in the testing process, noting that the latter approach was used by the state in the social services context.

Id., at 458-59. 6

Other courts have considered the issue of whether to adjust test scores for the Flynn Effect or the standard

error of measurement, but none has held that Atkins requires such an adjustment. In Ledford v. Head,

2008 U.S. Dist. LEXIS 21635, 2008 WL 754486 (N.D. Ga. March 19, 2008), the District Court for the

Northern District or Georgia rejected use of the Flynn Effect as a basis for reducing the petitioner's I.Q.

scores:

There was testimony [*19] at the hearing that the Flynn effect is a 'generally recognized

phenomenon,' but experts for both petitioner and respondent agreed that it is not used in clinical

practice to reduce IQ scores. . . Both Dr. King and Dr. Zimmermann testified that they have never

seen it utilized except in capital cases. . .

2008 U.S. Dist. LEXIS 21635, [WL] at *7. The court also rejected petitioner's argument that his I.Q.

scores should be reduced to account for the standard error of measurement:

The Court recognized that 'standard error of measurement' is a generally accepted scientific concept. .

. But the standard error of measurement simply means that an IQ score can overestimate or

underestimate a person's true level of intellectual functioning. . . there is no basis for assuming that

the standard error of measurement lowered petitioner's score enough to meet Georgia's mental

retardation standard [of an I.Q. score of 70 or below]. . . Petitioner's IQ could just as likely be 80 as

68. . .

2008 U.S. Dist. LEXIS 21635, [WL] at *8. 7 Cf. Bowling v. Commonwealth of Kentucky, 163 S.W.3d 361,

375 (Ky., 2005)(Court holds that Kentucky statute defines mental retardation using a bright-line cut-off

ceiling of an I.Q. of 70 and Atkins did not discuss or require consideration [*20] of margins of error or

the Flynn Effect) with Ohio v. Burke, 2005 Ohio 7020, 2005 WL 3557641, at *12-14 (Ohio App.

2005)(Court explains that it is required to consider the Flynn Effect and the standard error of measurement

in determining mental retardation under Ohio law, but it is not required to accept those theories).

The Fourth Circuit has rejected the suggestion that Atkins requires the states to accept the Flynn Effect or

the standard error of measurement in determining mental retardation. See Green v. Johnson, 515 F.3d

290, 300 n.2 (4th Cir. 2008)(". . . neither Atkins nor Virginia law appears to require expressly that these

theories [the Flynn Effect and the standard error of measurement] be accounted for in determining mental

6 In reaching its decision, the court noted that some states have similar statutes, while other states do not include specific numerical I.Q.

scores in defining mental retardation. Id., at 459.

7 The court also implicitly rejected any upward adjustment for the test bias against minorities.

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retardation status."). See also Walton v. Johnson, 440 F.3d 160, 178 (4th Cir. 2006)(Rejecting as

speculative petitioner's argument that the standard error of measurement would lower his score rather than

increase it.)

Petitioner cites Walker v. True, 399 F.3d 315 (4th Cir. 2005) to support his argument that his scores

should have been reduced based on these theories. [*21] The court in Walker, however, held only that the

district court should have permitted expert testimony about the theories; it did not hold that the theories

should be accepted to reduce the petitioner's scores. See Green, 515 F.3d at 300 n. 2 ("To the extent that

we held in Walker that the district court was required to consider the Flynn effect on remand, that case

involved de novo consideration of the inmate's Atkins claim.").

The Court is not persuaded that the state court's failure to accept Petitioner's arguments about the Flynn

Effect and the standard error of measurement rendered the state process arbitrary, unreasonable, or less

than full and fair.

The Petitioner also argues that the process he received in state court was not full and fair because the state

court should have excluded the State's expert witnesses. Petitioner's principal objection to consideration of

the testimony of the State's experts, Dr. Vaught and Dr. Engum, is the experts' failure to personally

evaluate the Petitioner.

In recounting the testimony of Dr. Engum, the Court of Criminal Appeals noted that he did not conduct

his own testing of the Petitioner, but relied on Petitioner's previous test results. The [*22] court stated that

"Dr. Engum further explained that he did not conduct additional testing because he believed Petitioner

was probably 'test-wise' or 'test-weary.' 2005 Tenn. Crim. App,. LEXIS 1129, 2005 WL 2662577, at *6.

The court also recognized that Dr. Vaught did not personally evaluate the Petitioner:

Dr. Vaught candidly admitted that she neither personally interviewed nor tested Petitioner. She

explained that she did neither for several reasons. One, she had been given voluminous records to

review, and after her review of the records, she did not believe Petitioner met either the second or

third criteria for mental retardation. Further, she saw a pattern of the scores on the I.Q. tests

descending. She had also reviewed Dr. Jaros' report and believed that some organic results had

occurred recently in Petitioner's life, and her findings would be skewed by such. It was also Dr.

Vaught's opinion that as a result of the organic problems from which Petitioner was suffering, he

would require clinical testing in the near future as a part of his diagnosis and treatment, and it was her

belief that if she tested him, it would skew the results for the next clinician. Dr. Vaught further

explained that she believed Petitioner [*23] had become savvy to the testing.

2005 Tenn. Crim. App,. LEXIS 1129, [WL] at *9. 8

8 The state court also noted Dr. Vaught's testimony on cross examination that "she is very liberal in assessing a person to qualify for services

as a result of mental retardation:"

She stated: 'If I could possibly put somebody in for services that they need, I'm going to do it.' She then testified that she had cautioned

counsel for the State when he approached her for taking the case that if she could find that Petitioner is mentally retarded and keep him

from being executed, she was going to do it.

2005 Tenn. Crim. App,. LEXIS 1129, [WL] at *10.

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The Court is not persuaded that the state court's failure to exclude the State's witnesses rendered the

proceeding unfair. The Petitioner's criticism of the State's experts is relevant to the weight to be given to

their testimony, but does not support the total exclusion of their testimony. The court was not

unreasonable in admitting the expert proof, especially given the court's obvious consideration and

weighing of the Petitioner's criticism of the experts.

Petitioner also argues that the state court process was unfair because the court placed the burden of

proving mental retardation on the Petitioner rather than the State. The state [*24] court considered

Petitioner's burden of proof argument, but rejected it as having already been decided by the Tennessee

Supreme Court in Howell. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *18.

In Howell, 151 S.W.3d at 466, the Tennessee Supreme Court explained that neither Ring nor Apprendi

requires the state to prove the absence of mental retardation because it is not an element of the offense,

and a finding of mental retardation "works to reduce the maximum possible sentence . . . from death to

life imprisonment." Other state and federal courts agree with this conclusion. See United States v.

Webster, 421 F.3d 308, 311-12 (5th Cir. 2005)(Neither Atkins, Apprendi, nor Ring requires the

government to prove the absence of mental retardation of a federal capital defendant); Walker v. True, 399

F.3d 315, 325-26 (4th Cir. 2005)(State does not have burden to prove that a defendant is not mentally

retarded); In re Kia Levoy Johnson, 334 F.3d 403, 405 (5th Cir. 2003); State v. Lott, 97 Ohio St.3d 303,

307, 2002 Ohio 6625, 779 N.E.2d 1011, 1015-16 (Ohio 2002). See also Medina v. California, 505 U.S.

437, 449, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992)(State may presume a defendant to be competent and

may require defendant to carry burden of proving [*25] incompetence by a preponderance of the

evidence).

The Court concludes that requiring the Petitioner to bear the burden of proving mental retardation by a

preponderance of the evidence was not unreasonable or unfair, and did not violate Petitioner's due process

rights.

3. State Court Findings and Conclusions

Next, Petitioner argues that the state court's findings and conclusions are deserving of no deference by this

Court under Sections 2254(d) and (e)(1) because they are objectively unreasonable. He contends that the

state court's erroneous factual assertions entitle him to habeas corpus relief, or at a minimum, a hearing in

this Court. 9

The Petitioner argues that the state court was unreasonable in making the following statement: "However,

there is no proof in the record that Petitioner was unable to do these things." 2005 Tenn. Crim. App.

9 Petitioner also argues that Sections 2254(d) and (e) should not be construed to limit the federal court's determination of a constitutional

claim even though that claim was adjudicated on the merits in the state court. Petitioner contends that these sections merely prohibit a court

from granting habeas relief on a state-adjudicated claim, but they do not prohibit the Court from engaging in a de novo, independent analysis

of that claim.

As for factual findings, the Petitioner argues that if the federal court is reviewing the same record that was before [*26] the state court, the

federal court may review the state court's factual findings for objective reasonableness, rather under a presumption of correctness standard.

The Court finds it unnecessary to determine the validity of Petitioner's argument because even applying the analysis he suggests, the Court

concludes that the state court's factual findings are objectively reasonable. Applying Tennessee law on mental retardation, as required by

Atkins, to those facts, and the facts the Petitioner submits to augment the record in the state court, the Court concludes that Petitioner has not

established a constitutional violation.

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LEXIS 1129, 2005 WL 2662577, at *15. The statement comes at the end of a paragraph in which the court

is discussing the proof offered on the second criterion the Petitioner must meet to prove mental retardation

-- that he has deficits in adaptive behavior. In this paragraph, the court is discussing the testimony of

Petitioner's expert, Dr. Grant:

Dr. Grant tested Petitioner on the independent living [*27] scale and found Petitioner had problems

with managing money, managing a home, transportation, and health and safety. Dr. Grant further

concluded that Petitioner met the criteria for deficits in adaptive behavior as set forth in both the

DSM-IV and the AAMR. As support for his conclusion, Dr. Grant pointed to the fact that Petitioner

had never lived independently, cooked, cleaned the house, did laundry, participated in the care of his

son, contributed financially to his family, or had a bank account. However, there is no proof in the

record that Petitioner was unable to do these things.

Id.

Petitioner interprets the last sentence of the paragraph as stating there was "no proof" that the Petitioner

was unable to live independently, cook, clean, do laundry, participate in the care of his son, contribute

financially to his family, or maintain a bank account. Read in context, however, it is clear that the state

court was pointing out a limitation in the Petitioner's proof -- the proof indicated that he had not

performed these tasks, not that he could not perform these tasks. Petitioner does not point to evidence that

the state court was wrong about that conclusion. Thus, the Court is not [*28] persuaded that this

statement renders the state court's decision unreasonable.

Petitioner also argues that the state court was unreasonable in making the statement that ". . . the proof in

the record simply does not support that Petitioner's I.Q. was below seventy or that Petitioner had deficits

in his adaptive behavior prior to age eighteen." 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *17.

Petitioner argues that the state court was unreasonable in concluding that there was no proof in the record

that Petitioner's I.Q. was below seventy prior to age eighteen because he had presented proof of prenatal

brain damage, as well as a score in the first percentile on a Differential Aptitude Test ("DAT") taken

before age 18.

With respect to the proof of prenatal brain damage, the evidence before the state court was that the current

evidence of brain damage in the Petitioner may or may not indicate that such brain damage existed and

caused mental retardation in the Petitioner prior to age 18. 10 As for the DAT score, the Petitioner points

to no persuasive evidence indicating that an "aptitude" test should be considered as equivalent to an I.Q.

10 The state court pointed out that Dr. Albert Globus admitted on cross examination that Petitioner was never evaluated by a medical

professional because of a head injury received while playing football during his youth; that the cause of mental retardation cannot be

determined with certainty; and that it cannot be determined with certainty that the ingestion of alcohol during pregnancy (by Petitioner's

mother) will cause mental retardation. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at *5.

The state court also pointed out that although Dr. Ruben Gur testified that the Petitioner had suffered brain damage likely caused by fetal

alcohol syndrome or a series of minor head injuries, he was unable to rule out other causes, and could not specify a date certain when

Petitioner's brain damage occurred. 2005 Tenn. Crim. App. LEXIS 1129, [WL] at * 10-11.

The court also noted Dr. Vaught's testimony explaining the difference between mental illness and mental retardation, and her conclusion that

Petitioner's early difficulties were likely caused by mental health issues or learning disabilities, rather than [*30] mental retardation. 2005

Tenn. Crim. App. LEXIS 1129, [WL] at *8-10.

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test. Thus, the Court concludes that the state court was not unreasonable in stating [*29] that the proof in

the record did not support the conclusion, under a preponderance of the evidence standard, that

Petitioner's I.Q. was below seventy before age 18.

4. Right to Jury Trial

Finally, relying on the Supreme Court's decision in Ring, Petitioner argues that he was denied his

constitutional right to a jury trial by the state court. Although the Court finds this claim, standing alone, to

be beyond the scope of the remand, the Court will address the issue as it relates to the constitutionality of

the state court's proceedings in determining mental retardation.

In rejecting Petitioner's argument that he was entitled to submit the Atkins mental retardation issue to a

jury, the state court relied on the Tennessee Supreme Court's decision in Howell. In Howell, the court held

that Ring did not require a jury to determine mental retardation:

Under Tennessee's capital sentencing scheme, a jury determines guilt and also, in a separate

proceeding, determines whether to impose the death penalty. See Tenn.Code Ann. § 39-13-204

(2003). This sentencing scheme is qualitatively different from the Arizona statute in Ring. Under the

Arizona law at issue in Ring, the maximum penalty for murder was death; . . . however, this sentence

could only be imposed if the judge, not the jury, found aggravating factors present to support

[*31] the death penalty. . . .

In contrast, under Tennessee's capital sentencing scheme, it is the jury, the very same jury, in fact, that

found the defendant guilty, that decides whether to impose the death penalty. Tenn.Code Ann. § 3913-204 (2003). In its deliberations, the jury is instructed to consider 'any evidence tending to establish

or rebut the aggravating circumstances … and any evidence tending to establish or rebut any

mitigating circumstances.' Tenn.Code Ann. § 39-13-204(c) (2003). Diminished mental capacity is

among the mitigating factors that may by weighed against aggravating factors by the jury. See

Tenn.Code Ann. section 39-13-204(j). However, mental retardation is now a threshold issue that

determines whether a defendant is eligible for capital punishment at all. Following Van Tran and

Atkins, mental retardation completely exempts a defendant from capital punishment, rather than

simply being among the mitigating factors to be weighed against aggravating factors by the jury.

The United States Supreme Court, in Atkins, pointedly expressed that mental retardation should be

considered apart from mitigating factors. The Court stated 'mentally retarded defendants [are less

able] [*32] to make a persuasive showing of mitigation in the face of … aggravating factors.' Atkins,

536 U.S. at 320, 122 S.Ct. 2242. The Court went on to state that the demeanor of mentally retarded

defendants may give the false impression of lack of remorse. Id. at 321, 122 S.Ct. 2242. This

reasoning was also evident in Van Tran, in which we found that 'the limitations and impairments

associated with mental retardation warrant more consideration than simply allowing the evidence to

be weighed in the mix of aggravating and mitigating circumstances.' 66 S.W.3d at 810. The Tennessee

General Assembly apparently agrees, as evidenced by its placing the prohibition on executing

mentally retarded individuals in Tennessee Code Annotated section 39-13-203 rather than placing it

among the mitigating factors listed in Tennessee Code Annotated section 39-13-204(j). Accordingly,

the petitioner's reliance upon Ring is misplaced, as the issue is not one of aggravating or enhancing

factors, but of eligibility for the sentence imposed by a jury.

151 S.W.3d at 465-66.

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Other courts have considered this issue and agree that there is no constitutional right to a jury trial on the

issue of mental retardation. See In re Kia Levoy Johnson, 334 F.3d 403 at 405; [*33] Walker v. True, 399

F.3d at 325-26. See also Schriro v. Smith, 546 U.S. 6, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005)(Ninth Circuit

Court of Appeals exceeded authority in ordering Arizona courts to conduct a jury trial to resolve habeas

petitioner's mental retardation claim).

This Court agrees with this analysis, and concludes that Petitioner's jury trial argument is without merit.

IV. Conclusion

For the reasons set forth above, the Respondent's motion to dismiss and/or for summary judgment is

granted.

Should the Petitioner give timely notice of an appeal from this Memorandum and accompanying Order,

such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. § 2253(c); Fed. R.

App. P. 22(b). The Supreme Court has held that where a district court has rejected a petitioner's

constitutional claims on the merits, in order to obtain a certificate of appealability, the petitioner "must

demonstrate that reasonable jurists would find the district court's assesment of the constitutional claims

debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).

Where a district court denies a claim on procedural grounds, a certificate of appealability [*34] should

issue "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling." Id.

The Court concludes that Petitioner has made a substantial showing of the denial of a constitutional right

as to his mental retardation claim, and reasonable jurists could find the Court's assessment of the

constitutional claim debatable. See, e.g., Castro v. United States, 310 F.3d 900 (6th Cir. 2002).

Accordingly, the Court will issue a certificate of appealability on Petitioner's mental retardation claim

under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).

It is so ORDERED.

/s/ Todd J. Campbell

TODD J. CAMPBELL

UNITED STATES DISTRICT JUDGE

End of Document

Page 13 of 13

000026

KeyCite Yellow Flag - Negative Treatment

Not Followed on State Law Grounds Payne v. State, Tenn., April 7, 2016

664 F.3d 81

United States Court of Appeals,

Sixth Circuit.

Byron Lewis BLACK, Petitioner–Appellant,

Ricky BELL, Warden, Respondent–Appellee.

Nos. 02–5032, 08–5644.

Argued: Dec. 8, 2010.

Decided and Filed: Dec. 15, 2011.

Rehearing Denied Jan. 4, 2012.*

Synopsis

Background: Following denial of his petition for post conviction relief, affirmed at 1999 WL 195299, and denial of

permission to appeal to Tennessee Supreme Court, state prisoner sought writ of habeas corpus, challenging his three murder

convictions and death sentence, affirmed at 815 S.W.2d 166. The United States District Court for the Middle District of

Tennessee, Todd J. Campbell, Chief Judge, 181 F.Supp.2d 832, district court’s denied all of the claims that it decided on the

merits, and denied a certificate of appealability (COA) regarding the claims that it dismissed as procedurally defaulted, and

prisoner appealed. On remand, the district court denied prisoner’s Atkins claim, and prisoner appealed.

[Holding:] After consolidation of prisoner’s appeal of the district court’s original dismissal of his habeas claims and his

appeal of that court’s denial of his Atkins claim, the Court of Appeals, Ronald Lee Gilman, Circuit Judge, held that state

appellate court’s assessment of Tennessee capital defendant’s level of intellectual and adaptive functioning for purposes of

Atkins’ prohibition against execution of mentally retarded defendants was contrary to federal law under Coleman.

Affirmed in part, vacated in part, and remanded.

Boggs, Circuit Judge, filed dissenting opinion.

West Headnotes (14)

[1]

Habeas Corpus

Mental competency; examination

Death sentence

Federal court conducting habeas review could look to state law that had been issued after the defendant’s state

conviction had become final in order to determine how Atkins’ prohibition against execution of mentally retarded

defendants applied to defendant’s case. 28 U.S.C.A. § 2254(d).

000027

4 Cases that cite this headnote

[2]

Sentencing and Punishment

Mentally retarded persons

State appellate court’s assessment of Tennessee capital defendant’s level of intellectual and adaptive functioning for

purposes of Atkins’ prohibition against execution of mentally retarded defendants was contrary to federal law under

Coleman where court did not specify which I.Q. scores it relied on and why; state court did not explain the extent to

which its denial of Atkins claim relied on any of defendant’s various I.Q. scores nor did it consider the potential

impact of the Flynn Effect and the SEM (standard error of measurement), despite the court’s consideration of the

expert testimony that discussed the impact of those factors on defendant’s middle set of I.Q. scores. U.S.C.A.

Const.Amend. 8; West’s T.C.A. Const. Art. 1, § 16; West’s T.C.A. § 39–13–203(a).

5 Cases that cite this headnote

[3]

Habeas Corpus

Adequacy or effectiveness of state proceeding; full and fair litigation

Where a state court’s analysis contradicts the governing law, federal habeas court must conduct an independent

review of that issue, unconstrained by limitations of Antiterrorism and Effective Death Penalty Act (AEDPA). 28

U.S.C.A. § 2254(d)(1).

7 Cases that cite this headnote

[4]

Sentencing and Punishment

Mentally retarded persons

A court reviewing whether a defendant is mentally retarded for purposes of Atkins’ prohibition against execution of

mentally retarded defendants must focus on defendant’s deficits, not his abilities.

3 Cases that cite this headnote

[5]

Habeas Corpus

Competency

Sentence and punishment

Because no court had yet analyzed habeas petitioner’s Atkins claim according to the proper legal standard, reviewing

court would refrain from reaching any independent conclusions and remand case to federal habeas court for

determination of the claim. 28 U.S.C.A. § 2254(a).

4 Cases that cite this headnote

000028

[6]

Mental Health

Mental disorder at time of trial

To be competent to stand trial, a defendant must have sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings

against him.

2 Cases that cite this headnote

[7]

Criminal Law

Conduct of trial or hearing

A defendant’s competence to stand trial is a question of fact.

5 Cases that cite this headnote

[8]

Constitutional Law

Course and conduct of proceedings

Due process in a competency hearing requires that only the most basic procedural safeguards be observed. U.S.C.A.

Const.Amend. 14.

1 Cases that cite this headnote

[9]

Constitutional Law Course and conduct of proceedings

Criminal Law Conduct of trial or hearing

Process that was undertaken in defendant’s state-court competency hearing was not contrary to, nor did it involve an

unreasonable application of, the process that was due to determine defendant’s competence; court allowed both

defendant and the prosecution to present their expert testimony at defendant’s competency hearing, then, rather than

base its determination on either of those experts, court appointed its own independent expert to evaluate defendant,

and further afforded defendant a reevaluation at his attorneys’ request after the voir dire. U.S.C.A. Const.Amend.

14.

1 Cases that cite this headnote

[10]

Criminal Law

Adequacy of investigation of sentencing issues

Presentation of evidence regarding sentencing

A defense counsel’s failure to reasonably investigate a defendant’s background and present mitigating evidence to

the jury at sentencing can constitute ineffective assistance; in assessing the reasonableness of an attorney’s

mitigation investigation, the court considers not only the quantum of evidence already known to counsel, but also

000029

whether that evidence should have led a reasonable attorney to investigate further. U.S.C.A. Const.Amend. 6.

3 Cases that cite this headnote

[11]

Criminal Law

Adequacy of investigation of sentencing issues

Counsel has a duty to conduct an independent investigation regarding mitigating evidence regardless of the

defendant’s reluctance to investigate and disclose such evidence; because of that obligation, counsel cannot rely

solely on information provided by the defendant and his family in determining the extent of a proper mitigation

investigation, but a reasonably diligent counsel may draw a line when they have good reason to think further

investigation would be a waste. U.S.C.A. Const.Amend. 6.

2 Cases that cite this headnote

[12]

Criminal Law

Adequacy of investigation of mitigating circumstances

Presentation of evidence in sentencing phase

Capital defendant failed to show that his trial attorneys were ineffective in investigating and presenting mitigation

evidence at the penalty phase of his trial; there was no evidence to support the conclusion that defendant’s trial

attorneys should have been aware at the time of defendant’s trial that any further investigation into his social history

would have produced more evidence beyond that already obtained by the competency experts. U.S.C.A.

Const.Amend. 6.

1 Cases that cite this headnote

[13]

Criminal Law

Argument and comments

Even if defense counsel did make a mistake and should have objected to the argument that giving defendant a life

sentence rather than the death penalty would reward him for killings of additional victims, such error was not

prejudicial under Strickland because it was unlikely that the objection would have had any effect on the jury’s

decision; jury did not sentence defendant to death for the killing of the victim about whom the argument was made,

defendant’s death sentence was supported by six aggravating factors. U.S.C.A. Const.Amend. 6.

Cases that cite this headnote

[14]

Constitutional Law Conduct of or affecting jurors; deliberations

Criminal Law Authority or discretion of court

Tennessee defendant did not have a due process right to have the trial court answer the jury’s questions regarding his

parole eligibility and the length of his sentence where defendant could be eligible for parole based on the jury’s

000030

decision, and where defendant’s future dangerousness was not at issue. U.S.C.A. Const.Amend. 14.

Cases that cite this headnote

Attorneys and Law Firms

*84 ARGUED: Kelley J. Henry, Federal Public Defender’s Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen,

III, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J. Henry, Federal

Public Defender’s Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen, III, Office of the Tennessee Attorney

General, Nashville, Tennessee, for Appellee.

Before: MARTIN, BOGGS, and GILMAN, Circuit Judges.

Opinion

GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined. BOGGS, J. (pp. 107–08), delivered a separate

dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Byron Black, who was tried in state court and sentenced to death in 1989 for committing three murders, appeals the district

court’s denial of his petition for a writ of habeas corpus. He raises various issues related to the court’s 2001 denial of his

original habeas petition as well as the court’s 2008 denial of his amended petition based on Atkins v. Virginia, 536 U.S. 304,

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). For the reasons set forth below, we AFFIRM the district court’s denial of Black’s

habeas petition regarding his non-Atkins claims, VACATE the court’s judgment regarding his Atkins claim, and REMAND

the case for further proceedings consistent with this opinion.

I. BACKGROUND

Black was convicted on three counts of first-degree murder for the killing of his girlfriend Angela Clay and her two minor

daughters, Latoya, age nine, and Lakeisha, age six. He was also convicted on one count of burglary arising out of the same

incident. Black received a death sentence for the murder of Lakeisha, consecutive life sentences for the other two murders,

and fifteen years of imprisonment for the burglary.

A. Factual background

Black was born on March 23, 1956. He was 33 years old when the murders were committed in 1988. The Tennessee Supreme

Court, in deciding Black’s claims on direct appeal, summarized the facts of this case, in part, as follows:

It appears that these bizarre and tragic murders occurred in the early morning hours of Monday, March 28, 1988. The

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bodies of the three victims were found Monday evening around 9:30 p.m. At the time of the murders, the Defendant was

on [a] weekend furlough from the Metropolitan Workhouse in Davidson County....

The Defendant was the boyfriend of Angela Clay, who had separated from her husband, Bennie Clay, about a year before

her death. Bennie Clay was the father of Latoya and Lakeisha. Bennie Clay testified that at the time of Angela Clay’s

death, he and Angela were attempting to reconcile, but the Defendant was an obstacle to the reconciliation. He further

testified that Angela began a relationship with the Defendant after their separation and that at times she was seeing both the

Defendant and himself. In December, 1986, the Defendant and Bennie Clay had an altercation during a dispute over

Angela.... The Defendant pled guilty to the shooting [of Bennie Clay] and received the workhouse sentence, which

included weekend furloughs.

State v. Black, 815 S.W.2d 166, 170–71 (Tenn.1991).

*85 On the night of the murders, Black drove the victims to the home of Angela’s mother. Angela and her two daughters

were last seen that evening by her mother at around 11 p.m. Angela’s mother testified that Angela telephoned her at

approximately 11:20 p.m. that evening after Angela returned home. That phone call was the last time that any of the

witnesses spoke to Angela before her death. The police arrived at Angela’s apartment at approximately 9:30 p.m. the

following night. They did not find any signs of forced entry into the apartment, but they found a pool of blood on the bed and

the body of a small child on the floor. Id. The Tennessee Supreme Court continued its summary of the relevant facts, citing

the testimony of Dr. Charles Harlan, Chief Medical Examiner for Davidson County:

Investigation revealed the bodies of Angela and her nine year old daughter, Latoya, in the master bedroom. Angela, who

was lying in the bed, had apparently been shot once in the top of the head as she slept and was rendered unconscious

immediately and died within minutes....

Latoya’s body was found partially on the bed and partially off the bed, wedged between the bed and a chest of drawers.

She had been shot once through the neck and chest....

The body of Lakeisha, age six, was found in the second bedroom lying facedown on the floor next to her bed. She had

been shot twice, once in the chest, once in the pelvic area....

The receiver from the kitchen telephone was found in the master bedroom. The telephone from the master bedroom was

lying in the hallway between the two bedrooms. The Defendant’s fingerprints were the only prints recovered from the

telephones. Two of his fingerprints were found on the phone in the hallway, and one was on the kitchen telephone receiver

found in the master bedroom.

Id. at 171–72. A substantial amount of additional circumstantial evidence connected Black to the killings. Id. at 172–73.

B. Procedural history

In 1991, the Tennessee Supreme Court denied Black’s numerous claims on his direct appeal. Black then filed a petition for

post-conviction relief in the Davidson County Criminal Court. The trial court denied the petition after an evidentiary hearing,

and the Tennessee Court of Criminal Appeals (TCCA) affirmed. Black’s petition to appeal the denial of his post-conviction

claims to the Tennessee Supreme Court was denied. The United States Supreme Court subsequently denied his petition for a

writ of certiorari.

Black then filed a petition for a writ of habeas corpus in the district court, based on 28 U.S.C. § 2254, seeking relief on a

number of evidentiary, procedural, and substantive grounds relating to both the guilt and penalty phases of his trial, as well as

to issues that arose in his various state-court appeals. The district court denied all 34 of Black’s habeas claims, including

several subclaims, in December 2001. Black v. Bell, 181 F.Supp.2d 832 (M.D.Tenn.2001). It then issued Black a Certificate

of Appealability (COA) for all of the claims that it decided on the merits and denied a COA regarding the claims that it

dismissed as procedurally defaulted. Black timely appealed the court’s decision.

After the Supreme Court decided Atkins in 2002, this court granted Black’s motion to hold his case in abeyance so that Black

could exhaust his Atkins claim in the state courts. Black then filed a motion in 2002 to reopen his post-conviction proceedings

000032

in the state trial court. That court determined that Black had made a sufficient *86 showing for his case to be reopened based

on his Atkins claim. It held an evidentiary hearing, but ultimately determined that Black is not mentally retarded under the

Atkins standard. The TCCA affirmed this decision in 2006, and the Tennessee Supreme Court denied Black’s application for

permission to appeal. The United States Supreme Court again denied Black’s petition for a writ of certiorari. This court then

remanded Black’s pending appeal of the district court’s denial of his § 2254 petition back to the district court so that it could

reconsider Black’s mental-retardation claim (which was one of Black’s original 34 claims that the district court denied) in

light of Atkins.

The district court did so in 2008, ultimately dismissing Black’s Atkins claim on the basis that “the state court was not

unreasonable in stating that the proof in the record did not support the conclusion, under a preponderance of the evidence

standard, that [Black’s] I.Q. was below seventy before age 18.” It also dismissed Black’s additional claim that the issue of his

mental retardation should have been submitted to the jury, ruling that the claim was beyond the scope of this court’s remand

order, and also because the claim failed on the merits. But the district court granted Black a COA on his Atkins claim, and

Black timely filed an appeal. We then granted Black’s motion to expand his COA to include the issue of whether he had

cause to excuse the procedural default of his claim that the jury improperly weighed an unconstitutional felony-murder

aggravating circumstance. But we denied Black’s motion to have two additional issues included in his COA.

Black’s appeal of the district court’s original dismissal of his habeas claims in 2001 and his appeal of that court’s denial of

his Atkins claim in 2008 have been consolidated in the present appeal. We thus have before us the issues that are within his

COAs from both decisions. Although Black’s COAs cover many issues, he has limited his appeal to a total of five.

In addition to Black’s Atkins claim, the other four district-court determinations that Black now challenges are (1) whether he

was competent to stand trial and whether he was entitled to an evidentiary hearing on that issue, (2) whether his trial counsel

was constitutionally ineffective in failing to fully investigate, present, and argue mitigating factors against the death penalty,

(3) whether his trial counsel was constitutionally ineffective in failing to object to the prosecution’s comment during closing

argument at the penalty phase of the trial that giving Black a life sentence for all three of the murders would “reward” him,

and (4) whether the trial court erred by declining to clarify for the jury, upon its request, the effect of a life sentence.

C. Atkins background

Under Tennessee law, capital defendants are considered mentally retarded if (1) they have “[s]ignificantly subaverage general

intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) [they have

d]eficits in adaptive behavior; and (3) [t]he intellectual disability must have been manifested during the developmental

period, or by eighteen (18) years of age.” Tenn.Code Ann. § 39–13–203(a).

Each side presented conflicting evidence concerning whether Black qualifies as mentally retarded. At Black’s post-conviction

proceedings on his Atkins claim, he presented four lay and three expert witnesses, the affidavit of another expert, and

numerous exhibits in support of his claim. The State presented two expert witnesses in opposition. In addition, the state court

considered the testimony of numerous lay *87 and expert witnesses who testified during the course of Black’s pre-Atkins

proceedings.

1. Black’s numerical I.Q. scores

One major category of evidence dealt with Black’s numerical I.Q. scores. In its post-conviction opinion on Black’s Atkins

claim, the TCCA observed that Black’s intelligence has been tested numerous times, from his grade-school years through

2001. Black v. State, No. M2004–01345–CCA–R3–PD, 2005 WL 2662577, at *13 (Tenn.Ct.Crim.App. Oct. 19, 2005). These

scores can be grouped into the following three categories: (1) tests that were administered while Black was in elementary

school, with the scores ranging from 83 to 97; (2) tests that were taken in preparation for Black’s trial and during his first

round of post-conviction proceedings, from 1988 to 1997, which ranged from 73 to 76; and (3) tests that were administered in

2001 by Black’s experts who testified at his Atkins hearing, which ranged from 57 to 69. In addition, Black took achievement

tests in high school. Dr. Daniel Grant, a psychologist and one of Black’s expert witnesses, explained that Black’s scores on

the Differential Aptitude Test in the ninth grade placed his level of intelligence in the mentally retarded range.

000033

A major point of contention in the present case, and an issue that the TCCA did not resolve, is which set of scores most

accurately reflects Black’s level of intelligence by the time he was 18 years of age. Although Black’s first set of I.Q. scores

were taken during this key period of his life and are above 70, his experts challenge the accuracy of these scores based on the

sparse information concerning the testing details as well as the questionable supervision of Black’s academic progress at his

segregated elementary school.

Black’s I.Q. scores from 1988 through 1997 were also above 70, but Dr. Grant opined that, when adjusted for the “Flynn

Effect” and/or the standard error of measurement (SEM) that applies to these tests, these scores should be considered 70 or

below. As Dr. Grant explained, the Flynn Effect calls for adjusting downward the score that a subject receives on an older

I.Q. test based on the idea that the general population’s level of knowledge increases over time, thereby raising the average

score obtained on older tests. Dr. Patti van Eys, a clinical psychologist who submitted an affidavit regarding her evaluation of

Black, noted that the Flynn Effect is “broadly accepted by the psychological community and recognized by the American

Association on Mental Retardation (AAMR).”

On the other hand, State witness Dr. Susan Vaught, a clinical psychologist, testified that although the Flynn Effect is a

recognized issue that a clinician might consider when interpreting an I.Q. test, she did not think that it should be used to

adjust the numerical score that a subject received on his or her test. She explained that “[y]ou don’t apply a numerical

correction to a score that you get based on the Flynn Effect. It’s not in that kind of use amongst clinicians who test[ ].” Dr.

Eric Engum, the other clinical psychologist for the State, also rejected the practice of correcting for the Flynn Effect because

“[o]ne cannot arbitrarily ... go back in time and ‘correct’ or ‘recalculate’ a previously obtained IQ based on [subsequent]

changes in standardization.”

As for the SEM, Dr. Grant testified that because the I.Q. score achieved on any particular test is fallible, the scores generally

involve a SEM of five points up or down from the given score. Dr. Vaught similarly stated in her report that it is “typical and

expected” under the prevailing *88 standard of practice “to consider the [SEM] for any given test in order to determine if a

patient’s score could fall below 70.”

The experts also disagree about the relevance of Black’s 2001 I.Q. scores. Dr. Vaught conceded that, based on these most

recent I.Q. scores, Black “currently meets the first criterion for mental retardation.” Black, 2005 WL 2662577, at *14. But

she and Dr. Engum were suspicious of the scores’ validity based on comparisons to other indications of Black’s level of

intelligence. They suspected that Black was malingering (i.e., artificially deflating his scores) during these later tests. Black’s

experts, on the other hand, specifically determined that he was not malingering, and they were highly critical of the opinion

of the State’s experts that Black was malingering based solely on the written record, without having personally interviewed

him.

Black’s experts determined that his I.Q. fell in the mentally retarded range by the time he was age 18, but the State’s experts

disagreed. Dr. Vaught, in particular, noted that although Black’s poor academic performance was “highly suggestive of

learning disability or borderline intellectual capacity,” she found “no compelling evidence that the lower-functioning picture I

see now in Mr. Black’s intellectual testing emerged prior to 18.”

2. Black’s brain damage

Another key point of contention is whether Black suffered from brain damage at an early age. Dr. Albert Globus, an expert in

psychiatry and neurology who examined Black in 2001 in order to assess his competency to stand trial, reexamined him just

before the state court’s post-conviction hearing. In addition, Dr. Ruben Gur, an expert in neuropsychology, testified in a

video deposition taken after the hearing regarding the cause of Black’s brain damage. Both Drs. Globus and Gur concluded,

based on MRI and PET-scan images of Black’s brain, that Black has extensive brain damage that was likely caused by his

mother’s drinking alcohol while pregnant, but might also have been caused by other occurrences during his childhood.

The State does not contest that Black currently has brain damage. But the source of his condition is highly disputed. This

point is important to the assessment of Black’s level of intelligence by the time he was age 18. If his current brain damage

existed at an earlier stage of his life, then his current level of intelligence is all the more probative of his intellectual capacity

at that earlier stage because any symptoms resulting from his brain damage would have also been present earlier on.

Moreover, if Black’s brain was damaged earlier in his life, that determination would impact the credibility of the conclusion

000034

by the State’s experts—who never personally met with Black—that he was malingering on his recent I.Q. tests. Rather than

offer an alternative explanation for his brain damage, the State argues that Black did not sufficiently prove that his brain

damage was caused by the time he was age 18.

3. Expert assessments of Black’s adaptive deficits

In addition to assessing Black’s numerical I.Q. level, the various expert witnesses at his state post-conviction Atkins hearing

testified regarding his level of adaptive functioning. These experts explained how Black functions in society and when his

relevant characteristics manifested themselves. They dispute whether Black displays adaptive deficits and, if so, when these

problems arose.

Black’s experts explained that he has difficulty interacting according to ordinary social conventions and that he is paranoid,

*89 delusional, naive, and inappropriately happy. They also determined that he has deficits in his communication and

functional academic skills and that he displays symptoms of various psychiatric disorders. Based on Black’s childhood

experiences, as well as the alleged early onset of his brain damage, Black’s experts concluded that he had adaptive deficits by

the age of 18.

But the State’s experts determined that Black displayed adequate skills across a variety of practical, social, and intellectual

categories of behavior. Although they thought that Black had various personality problems and that he might suffer from

various mental disorders, they did not think that Black qualified as mentally retarded. The State’s experts also determined

that to the extent Black displayed adaptive deficits, he either strategically presented himself in that way (according to Dr.

Engum) or had deteriorated more recently and therefore did not display these characteristics by the age of 18 (according to

Dr. Vaught). After recounting some of the expert testimony on these issues, the TCCA concluded that Black did not meet his

burden of proof to show that he had sufficient deficits in his adaptive behavior by the age of 18.

4. Lay witnesses

Black presented four lay witnesses at his Atkins post-conviction hearing to testify regarding various aspects of his social and

educational history. Mary Smithson–Craighead, who started working as an administrator at Black’s elementary school in

1965 and was in charge of Black’s grade level for, at most, a year and a half, testified regarding the conditions at Black’s

school. Black’s sister, Melba Corley, talked about Black’s upbringing. Al Dennis, Black’s high school football coach,

discussed Black’s experience on the football team. Finally, Richard Corley, Black’s brother-in-law, testified about Black’s

job as a courier at an insurance company. Both sides draw on various aspects of these witnesses’ testimony to support their

respective positions concerning Black’s level of intellectual functioning and his adaptive behavior by the age of 18.

5. Prior decisions on Black’s Atkins claim

The state trial court determined that Black’s post-conviction Atkins claim merited an evidentiary hearing. At this evidentiary

hearing, Black had the burden of showing by a preponderance of the evidence that he met Tennessee’s definition of mental

retardation under Atkins. After the hearing concluded, the court summarized what it viewed as the determinative evidence

from the voluminous record and, based on this evidence, denied Black’s Atkins claim for post-conviction relief.

The TCCA affirmed the trial court’s rejection of Black’s claim. In its “Analysis” section, the TCCA mostly reviewed,

without taking a stance on, the conflicting expert assessments of the factual record. But the TCCA did recognize that,

according to Black’s experts, the Flynn Effect and/or the SEM brings his middle set of I.Q. scores into the mentally retarded

range. Based on Howell v. State, 151 S.W.3d 450, 457 (Tenn.2004), however, the TCCA determined that it was prohibited

from considering these scientific concepts in assessing Black’s numerical I.Q. score.

The TCCA’s assessment of the factual record also makes clear that it was skeptical of the opinions of Drs. Globus and Gur

regarding when Black’s brain damage occurred. But the TCCA did not go so far as to make a definitive factual conclusion

regarding the date of onset of Black’s brain damage. The court also discounted Dr. Grant’s conclusion that Black displayed

deficits in his adaptive behavior *90 because, although Dr. Grant observed that Black had never engaged in a number of

000035

commonplace activities, “there is no proof in the record that [Black] was unable to do these things.” Black, 2005 WL

2662577, at *15. It also pointed out that none of Black’s childhood I.Q. scores fell in the mentally retarded range. But the

TCCA reached its ultimate conclusion that “the proof in the record simply does not support that [Black’s] I.Q. was below

seventy or that [Black] had deficits in his adaptive behavior prior to age eighteen” without stating which pieces of evidence

were essential to its conclusion. Id. at *17.

In denying habeas relief to Black on his Atkins claim, the district court approvingly referenced the TCCA’s rejection of the

application of the Flynn Effect and the SEM based on Howell. It also concluded, based on a review of how other jurisdictions

have dealt with the Flynn Effect, that the TCCA’s rejection of these concepts did not render the state process arbitrary,

unreasonable, or less than full and fair.

The district court further rejected Black’s three remaining arguments in support of his Atkins claim. First, the court

determined that the TCCA’s discounting of Dr. Grant’s adaptive-deficits assessment did not render the state court’s decision

unreasonable. It found no basis to question the TCCA’s ruling that, although the record indicated that Black had not

performed the commonplace daily tasks mentioned by Dr. Grant, there was no showing that Black could not perform these

tasks. Second, the court concluded that because Black had not shown that an aptitude test is equivalent to an I.Q. test, his low

ninth-grade Differential Aptitude Test scores did not mean that his I.Q. was 70 or below by age 18.

Finally, the district court noted that “the evidence before the state court ... may or may not indicate that [Black’s brain

damage] existed and caused mental retardation” by the time Black was 18 years of age. The court based this observation on

its determination that Drs. Globus and Gur were unable to point definitively to the cause of Black’s brain damage or establish

that this injury was the cause of Black’s mental retardation. It also quoted the TCCA’s reference to “Dr. Vaught’s testimony

explaining the difference between mental illness and mental retardation, and her conclusion that [Black’s] early difficulties

were likely caused by mental health issues or learning disabilities, rather than mental retardation.”

II. ANALYSIS

A. Standard of review

Because Black filed his habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), AEDPA’s provisions apply to his case. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009). This court in Murphy

set out the standard of review under AEDPA as follows:

Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a “claim that was adjudicated on the

merits in state court proceedings” if the state court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A

habeas petition may also be granted if the state court’s decision “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). A state-court decision is contrary to

clearly established federal law “if the state court applies a rule that contradicts the governing *91 law set forth in [the

Supreme Court’s] cases” or “if the 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 [that] precedent.” Williams [v. Taylor, 529 U.S.

362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ]. A state-court decision is an unreasonable application of clearly

established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a

particular prisoner’s case,” id. at 407–08, 120 S.Ct. 1495, or if it “either unreasonably extends or unreasonably refuses to

extend a legal principle from Supreme Court precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th

Cir.2000).

Id. at 493–94. And, as the Supreme Court recently explained, our review under § 2254(d)(1) is “limited to the record that was

before the state court.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

B. Atkins claim

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Black claims that he is not subject to the death penalty because he is mentally retarded, so that his execution would violate

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). A few months before Atkins was decided, the

Tennessee Supreme Court also held as a matter of first impression in Van Tran v. State, 66 S.W.3d 790 (Tenn.2001), that the

Eighth Amendment to the United States Constitution and Article I, Section 16 of the Tennessee Constitution prohibit the

execution of mentally retarded individuals. Id. at 794, 812. Van Tran further held that its newly announced rule applied

retroactively to cases on collateral review. Id. at 811.

The Supreme Court held in Atkins that, in light of “our evolving standards of decency,” the Eighth Amendment prohibits the

execution of mentally retarded offenders. Id. at 321, 122 S.Ct. 2242. But the Court in Atkins did not define what it means to

be “mentally retarded,” instead “leav[ing] to the States the task of developing appropriate ways to enforce the constitutional

restriction upon their execution of sentences.” Id. at 317, 122 S.Ct. 2242 (brackets omitted) (quoting Ford v. Wainwright, 477

U.S. 399, 405, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (dealing with the issue of insanity)).

Under Tennessee law, capital defendants are considered mentally retarded for the purposes of an Atkins claim if they have an

“intellectual disability” under § 39–13–203(a) of the Tennessee Code. Howell v. State, 151 S.W.3d 450, 457 (Tenn.2004).

Defendants will meet this standard if (1) they have “[s]ignificantly subaverage general intellectual functioning as evidenced

by a functional intelligence quotient (I.Q.) of seventy or below; and (2) [they have d]eficits in adaptive behavior; and (3) [t]he

mental retardation must have been manifested during the developmental period, or by eighteen (18) years of age.” Tenn.Code

Ann. § 39–13–203(a). Under Tennessee law, defendants have the burden of showing, by a preponderance of the evidence,

that they qualify under this statutory definition. See Tenn.Code Ann. § 39–13–203(c).

In Coleman v. State, 341 S.W.3d 221 (Tenn.2011), the Tennessee Supreme Court recently issued a significant decision

explaining the Atkins standard under Tennessee law. The State argues that this “recent state-law decision can have no impact

on the reasonableness of the state courts’ application of federal law or on the reasonableness of the state courts’ factual

determinations in light of the evidence presented in state court.” This argument raises three distinct objections to our

consideration *92 of Coleman, all of which we find have no merit.

1. Application of Coleman in the present case

First, citing Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), the State argues that, under

AEDPA, Black is limited to the record that was before the state court at the time the latter rendered its decision. But Cullen

explicitly dealt with the parameters of the factual record that the district court may consider on habeas review. Id. at

1399–1400. Coleman, however, elucidates Tennessee’s interpretation of Atkins’ s legal standard. Cullen therefore does not

prevent us from considering Coleman ‘s interpretation of Atkins under Tennessee law.

The state also focuses on the fact that Coleman is a “recent state-law decision.” But the date of the Coleman decision does

not prevent us from considering its impact on the present case because Atkins “has been made retroactive to cases on

collateral review.” In re Bowling, 422 F.3d 434, 436 (6th Cir.2005).

[1]

And because “Atkins reserved for the states ‘the task of developing appropriate ways to enforce the constitutional

restriction,’ ” id. at 436–37 (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242), federal courts conducting habeas review

routinely look to state law that has been issued after the defendant’s state conviction has become final in order to determine

how Atkins applies to the specific case at hand. See Hill v. Anderson, 300 F.3d 679, 682 (6th Cir.2002) (remanding Hill’s

Atkins habeas claim to the Ohio state courts to “develop [their] own procedures for determining whether a particular claimant

is retarded and ineligible for death”); Wiley v. Epps, 625 F.3d 199, 208 (5th Cir.2010) (assessing whether the defendant

qualified for an evidentiary hearing on his Atkins claim based on the Mississippi Supreme Court’s standard even though

“Wiley was convicted before Atkins was decided, and although he filed his state post-conviction application before the

Mississippi Supreme Court established the state’s requirements for obtaining an Atkins hearing”). We will therefore consider

Coleman in our review of Black’s Atkins claim under AEDPA. See Fulcher v. Motley, 444 F.3d 791, 822 (6th Cir.2006)

(Clay, J., concurring) (explaining that even where a Supreme Court precedent applies retroactively, a federal court

conducting habeas review of a state-court decision must still determine whether the decision was “contrary to” the

retroactively applicable Supreme Court precedent).

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2. Significantly subaverage intellectual functioning

Under the Tennessee Code, the first requirement that a defendant must meet in order to be considered mentally retarded

under Atkins is that he or she must have “[s]ignificantly subaverage general intellectual functioning as evidenced by a

functional intelligence quotient (I.Q.) of seventy (70) or below.” Tenn.Code Ann. § 39–13–203(a). The Tennessee Supreme

Court has determined that the statute’s incorporation of an I.Q. score of 70 is a “bright-line cutoff” that does not account for

“a standard error of measurement in the test scores nor consideration of any range of scores above the score of seventy.”

Howell v. State, 151 S.W.3d 450, 458–59 (Tenn.2004). But even this bright-line cutoff allows for the consideration of more

than one single source in determining a defendant’s I.Q. Because the Tennessee statute “does not provide a clear directive

regarding which particular test or testing method is to be used” to determine whether an individual is mentally retarded for

purposes of death-penalty eligibility, “[a] *93 court may certainly give more weight to one test, but should do so only after

fully analyzing and considering all evidence presented.” Id. at 459.

One of the defendant’s full-scale I.Q. scores in Howell was a 73 on the WAIS—III test. Id. at 453. In support of his Atkins

claim, the defendant presented the testimony of Dr. Daniel Grant (who also testified on Black’s behalf in the present case)

that a score on an I.Q. test represents a ten-point range of possible scores based on a five-point SEM in either direction. Id.

When the SEM was considered, according to Dr. Grant, the defendant’s I.Q. score of 73 in Howell fell in the mentally

retarded range. Id. at 453–54. But the Tennessee Supreme Court determined that Tennessee law provides a “bright-line

cutoff” for determining whether a defendant’s I.Q. is 70 or below. Id. at 458–59. The Court therefore agreed with the trial

court’s refusal to interpret “the requirement of an I.Q. of seventy or below, as contained in the Tennessee statute, ... as

representing a range of scores between sixty-five and seventy-five or below.” Id. at 457. Based on this reasoning, the

defendant’s score of 73 was not in the mentally retarded range. (But the Court in Howell remanded the case for an evidentiary

because the lower court imposed an overly demanding burden of proof on the defendant. Id. at 465, 467.)

Turning now to the case at hand, Black argues that the Flynn Effect and the SEM should be considered in determining his

functional I.Q. level. Black’s experts, as explained above, applied the Flynn Effect to correct for the outdated nature of the

I.Q. test that was taken. I.Q. scores are scaled so that the average score on any test should be 100, but the Flynn Effect

postulates that the longer that an I.Q. test has been in existence, the higher the average score will be. See United States v.

Davis, 611 F.Supp.2d 472, 486 (D.Md.2009) (explaining that “the Flynn Effect means ... that over time, the test norms

become outdated, such that the average score is no longer 100, but something higher”). This increase in the general level of

factual information that leads to higher average scores on older tests explains why I.Q. test scores would increase with the

age of the test “without a corresponding increase in actual intelligence in the general population.” Wiley v. Epps, 625 F.3d

199, 203 n. 1 (5th Cir.2010). According to the Flynn Effect, scores on outdated tests thus need to be corrected for this upward

deviation in the average score. Id. The SEM, on the other hand, “is an index of the variability of test scores produced by

persons forming the normative sample” that “allows the evaluator to know the amount of error that could be present in any

test.” Thomas v. Allen, 607 F.3d 749, 753 (11th Cir.2010).

As the TCCA noted, Black’s experts testified that his adult I.Q. scores, including pre-Atkins scores, “fell within the mentally

retarded range when adjusted by the [SEM] and/or the Flynn Effect.” Black, 2005 WL 2662577, at *14. But the court refused

to consider this testimony because it concluded that Howell ‘s bright-line cutoff prohibited accounting for these adjustments

under Tennessee law. Id. Coleman directly addresses this interpretation of Howell.

a. The Coleman decision

The defendant in Coleman brought an Atkins claim to challenge his death sentence. As part of his proof that his I.Q. score

was in the mentally retarded range under Tennessee law, Coleman offered evidence regarding the impact of the Flynn Effect

and the SEM in determining his ultimate I.Q. score. But the TCCA in Coleman determined, based on Howell, *94 that

Tennessee law does not provide “for the application of any standard error of measurement, including the ‘Flynn effect,’ to

establish an IQ range rather than the bright-line cutoff of 70.” Coleman v. State, No. W2007–02767–CCA–R3–PD, 2010 WL

118696, at *18 (Tenn.Crim.App. Jan. 13, 2010).

The Tennessee Supreme Court in Coleman acknowledged that Howell correctly interpreted the Tennessee statute in holding

that “an expert’s opinion regarding a criminal defendant’s I.Q. cannot be expressed within a range (i.e., that the defendant’s

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I.Q. falls somewhere between 65 to 75) but must be expressed specifically (i.e., that the defendant’s I.Q. is 75 or is ‘seventy

(70) or below’ or is above 70).” Coleman, 341 S.W.3d at 242. But the lower state courts had misinterpreted Howell by

extending its reasoning too far. As the Tennessee Supreme Court explained,

following Howell v. State, some trial courts and the Court of Criminal Appeals have construed our

holding that Tenn.Code Ann. § 39–13–203(a)(1) provided a “clear and objective guideline” for

determining whether a criminal defendant is a person with intellectual disability to have established a

mandatory requirement that only raw I.Q. test scores may be used to determine whether a criminal

defendant has “significantly impaired general intellectual functioning” and that a raw I.Q. test score

above seventy (70) may be sufficient, by itself, to disprove a criminal defendant’s claim that he or she

is a person with intellectual disability.

Id. at 240.

The Tennessee Supreme Court noted in Coleman that the Tennessee Code “does not provide clear direction regarding how a

person’s I.Q. should be determined and does not specify any particular test or testing method that should be used. In fact, the

statute does not even employ the words ‘test’ or ‘score.’ ” Id. at 241 (citation omitted). The statute’s purpose is for the courts

to arrive at the defendant’s true functional I.Q. score. Id. But “[b]ecause the statute does not specify how a criminal

defendant’s functional I.Q. should be determined, we have concluded that the trial courts may receive and consider any

relevant and admissible evidence regarding whether the defendant’s functional I.Q. at the time of the offense was seventy

(70) or below.” Id. The practical import of this reasoning is that

if the trial court determines that professionals who assess a person’s I.Q. customarily consider a

particular test’s standard error of measurement, the Flynn Effect, the practice effect [which refers to

increasing test scores based on an individual being retested with the same or a similar test], or other

factors affecting the accuracy, reliability, or fairness of the instrument or instruments used to assess or

measure the defendant’s I.Q., an expert should be permitted to base his or her assessment of the

defendant’s “functional intelligence quotient” on a consideration of those factors.

Id. at 242 n. 55.

Allowing for the consideration of these factors was also found by the Court to be “consistent with current clinical practice,”

which may “require information from multiple sources.” Id. at 244. Intelligence tests are just one of these sources. And

because intelligence tests “are indirect rather than direct measures of intelligence, experts in the field recognize that they, like

other measures of human functioning, are not actuarial determinations, that these tests cannot measure intelligence with

absolute precision and that these tests contain a potential for error.” Id. at 245 (citations, brackets, and internal quotation *95

marks omitted). Moreover, recent practice in the Tennessee courts

reflect[s] the parties’ and the courts’ existing awareness that, as a practical matter, a criminal

defendant’s “functional intelligence quotient” cannot be ascertained based only on raw I.Q. test scores.

More importantly, they also reflect the parties’ conclusion that Tenn.Code Ann. § 39–13–203(a) does

not prevent them from presenting relevant and competent evidence, other than the defendant’s raw I.Q.

test scores, either to prove or to disprove that the defendant’s “functional intelligence quotient” when

the crime was committed was “seventy (70) or below.”

Id. at 247–48.

The Coleman decision also recognized that “[a]scertaining a person’s I.Q. is not a matter within the common knowledge of

lay persons. Expert testimony in some form will generally be required to assist the trial court in determining whether a

criminal defendant is a person with intellectual disability for the purpose of Tenn.Code Ann. § 39–13–203(a).” Id. at 241. “In

formulating an opinion regarding a criminal defendant’s I.Q. at the time of the offense, experts may bring to bear and utilize

reliable practices, methods, standards, and data that are relevant in their particular fields.” Id. at 242. These expert opinions

000039

are subject to cross-examination, and the trial court is not bound to follow any particular expert. Id. But the trial court “must

give full and fair consideration to all the evidence presented.” Id.

b. Applying Coleman to the present case

[2]

The Tennessee Supreme Court went to great lengths in Coleman to explain why its decision comported with its own prior

precedent, Tennessee statutory law, other states’ statutes, current clinical practice (which Atkins itself noted is generally

incorporated in the various statutory definitions), and current litigation practice. Id. at 240–48. Even absent the Court’s

guidance in Coleman, the TCCA in the present case clearly misinterpreted the Flynn Effect’s relevance under Howell.

Although Howell emphasized the need to reach a single functional I.Q. score under Tennessee law, the decision made no

mention whatsoever of the Flynn Effect. The purpose of adjusting for the Flynn Effect, after all, is to determine the single

specific score that most accurately reflects the subject’s I.Q. And unlike the SEM, adjusting for the Flynn Effect yields only

one score. See United States v. Davis, 611 F.Supp.2d 472, 488 (D.Md.2009) (correcting for the Flynn Effect was found

appropriate in order to more accurately determine whether the defendant met the “strict numerical cutoff”). Considering the

Flynn Effect in determining a defendant’s I.Q. score is therefore entirely consistent with Howell ‘s stated goal of assessing

whether a defendant’s single I.Q. score, rather than a range of scores, meets the statute’s “bright-line cutoff.”

Whether Coleman ‘s holding regarding the SEM clarifies Howell or deviates from Howell is more ambiguous. On the one

hand, Coleman affirmed Howell ‘s holding that the Tennessee statute requires that an expert’s assessment must be expressed

in terms of a specific I.Q. score rather than a range of scores. Coleman, 341 S.W.3d at 242. On the other hand, the Court held

that an expert should be permitted to consider “a particular test’s standard error of measurement [the SEM], the Flynn Effect,

the practice effect,” or other “reliable practices, methods, standards, and data” in assessing the defendant’s I.Q. Id. at 242 &

n. 55. Coleman might therefore best be read as clarifying that although Howell prohibits interpreting the Tennessee statute

*96 “as representing a range of scores,” Howell, 151 S.W.3d at 457, it does not prevent the SEM, as well as all other relevant

scientific evidence, from being used by an expert in determining a defendant’s single most accurate functional I.Q. score. See

Duncan v. United States, 552 F.3d 442, 444–45 (6th Cir.2009) (explaining that “a decision does not announce a new rule

when it is merely an application of the principle that governed a prior Supreme Court case” (internal quotation marks

omitted)). In any event, regardless of whether Coleman clarified Howell ‘s holding or changed it regarding the SEM, the

Tennessee Supreme Court’s recent elucidation of the Atkins standard under Tennessee law must be applied in the present case

in light of our earlier conclusion regarding Coleman ‘s retroactive applicability.

Coleman is particularly applicable because the TCCA’s decision in the present case was cited to support the TCCA’s

conclusion in Coleman (before Coleman reached the Tennessee Supreme Court) that although evidence concerning the Flynn

Effect or the SEM may be introduced into the record, neither of these factors may impact the court’s ultimate determination

of the defendant’s specific I.Q. score. Coleman v. State, No. W2007–

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