Reply Brief — Arthur Lee Burton, Petitioner v. Texas

No. 24-5221

ARTHUR LEE BURTON,

Petitioner,

v.

STATE OF TEXAS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

PETITIONER’S REPLY BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

DORSEY & WHITNEY LLP

STEVEN J. WELLS*

KATHRYN A. JOHNSON

50 South 6th Street, Suite 1500

Minneapolis, MN 55402

(612) 340-2600

*Counsel of Record

Attorneys for Petitioner

TABLE OF CONTENTS

REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI ........................ 1

A.

Respondent’s Improper Reliance on Extra-Record Evidence is a

Concession that Mr. Burton Met his Burden of Pleading a Prima Facie

Case. .................................................................................................................... 1

B.

Respondent’s Incorrect Arguments Regarding the Clinical Diagnostic

Standards Further Demonstrate the State of Texas’s Disregard for this

Court’s Precedents .............................................................................................. 5

1.

Respondent’s arguments that Mr. Burton has not pled a prima

facie case that he meets Criterion A (deficits in intellectual

functioning) are factually and legally incorrect. ..................................... 5

2.

Respondent’s arguments that Mr. Burton has not pled a prima

facie case that he meets Criterion B (deficits in adaptive

functioning) are factually and legally incorrect. ................................... 10

CONCLUSION............................................................................................................. 15

INDEX TO APPENDICES

PETITIONER’S SUPPLEMENTAL APPENDIX

Report of Dr. DeRight

The Appendix is cited below as “Pet. Supp. App., DeRight Report at X,” with “X”

referring to the page number.

i

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Black v. Bell,

664 F.3d 81 (6th Cir. Tenn. 2011) ............................................................................ 9

Brumfield v. Cain,

808 F.3d 1041 (5th Cir. 2015) .................................................................................. 8

Busby v. Davis,

925 F.3d 699 (5th Cir. 2019) .................................................................................... 7

Dunn v. Reeves,

594 U.S. 731 (2021) .................................................................................................. 9

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................................................................ 10

Green v. Lumpkin,

860 F. App'x 930 (5th Cir. 2021) .............................................................................. 7

Hall v. Florida,

572 U.S. 701 (2014) .........................................................................................passim

Holladay v. Allen,

555 F.3d 1346 (11th Cir.2009) ............................................................................... 10

Moore v. Texas,

581 U.S. 1 (2017) .............................................................................................passim

Smith v. Ryan,

813 F.3d 1175 (9th Cir. 2016) .................................................................................. 9

Thomas v. Allen,

614 F.Supp. 2d 1257 (N.D. Ala. 2009) ................................................................... 10

U.S. v. Davis,

611 F.Supp. 2d 472 (D. Md. 2009) ......................................................................... 10

U.S. v. Hardy,

762 F.Supp. 2d 849 (E.D. La. 2010) ......................................................................... 9

United States v. Lewis,

No. 1:08 CR 404, 2010 WL 5418901 (N.D. Ohio Dec. 23, 2010) ........................... 10

ii

United States v. Shields,

No. 04-20254, 2009 WL 10714661 (W.D. Tenn. May 11, 2009) ............................ 10

United States v. Wilson,

170 F.Supp. 3d 347 (E.D.N.Y. 2016) ........................................................................ 9

Walker v. True,

399 F.3d 315 (4th Cir. 2005) .................................................................................... 9

Winston v. Kelly,

592 F.3d 535 (4th Cir. 2010) .................................................................................... 9

State Cases

Atkins v. Virginia

160 S.W.3d at 63 ....................................................................................................... 2

Ex parte Blue,

230 S.W.3d 151 (Tex. Crim. App. 2007)............................................................... 2, 3

Ex parte Cathey,

451 S.W.3d 1 (Tex. Crim. App. 2014)....................................................................... 9

Ex parte Staley, 160 S.W.3d 56, 63 (Tex. Crim. App. 2005) ........................................ 2

Moore v. Texas,

No. 15-797 (Aug. 4, 2016) ....................................................................................... 13

Ex parte Moore,

548 S.W.3d 552 (Tex. Crim. App. 2018), judgment rev’d sub nom. Moore

v. Texas, 586 U.S. 133 (2019) ................................................................................... 1

Reeves v. State,

226 So. 3d 711, 722, 730-31 (Ala. Crim. App. 2016)................................................ 9

Federal Statutes

28 U.S.C. § 2254(d) .................................................................................................... 7, 8

Rules

Supreme Court Rule 14(i)(vi) ........................................................................................ 4

Constitutional Provisions

Eighth Amendment ................................................................................................... 2, 3

iii

REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

Texas continues to flout this Court’s clear directives in Hall, Moore I, and

Moore II in service of sending Mr. Burton to the execution chamber before any court

conducts an actual review of his categorical ineligibility for the death penalty.

Respondent concedes that the Texas Court of Criminal Appeals’ summary denial of

Mr. Burton’s subsequent application for writ of habeas corpus was a merits decision.

See Resp. Br. in Opp. at 8. Respondent’s sole argument in opposition is therefore that

Mr. Burton failed to plead a prima facie case that he is intellectually disabled. In so

arguing, Respondent (1) relies on improper, extra-record evidence that is, in itself, a

concession that Mr. Burton pled a prima facie case of intellectual disability; and (2)

misstates, misconstrues, and misapplies the applicable legal and clinical diagnostic

criteria, further demonstrating the need for this Court’s intervention.

For these reasons, in addition to those in Mr. Burton’s Petition for Writ of

Certiorari, this Court’s intervention is necessary to yet again compel Texas’s

compliance with Hall, Moore I, and Moore II and to stop the execution of an

intellectually disabled man.

A.

Respondent’s Improper Reliance on Extra-Record Evidence is a

Concession that Mr. Burton Met his Burden of Pleading a Prima

Facie Case.

As Respondent purports to recognize, Mr. Burton was required only to make a

prima facie showing that he is intellectually disabled and entitled to relief under the

Eighth Amendment. Under TCCA precedent, this standard merely required him to

plead “specific, particularized facts which, if proven true, would entitle him to habeas

1

relief.” Ex parte Staley, 160 S.W.3d 56, 63 (Tex. Crim. App. 2005); id. at 64 (“[A] deathrow inmate may file a subsequent writ application based upon the newly available

legal claim of mental retardation under Atkins v. Virginia, but if his application

states that his I.Q. has repeatedly been tested at 120-130, he has failed to state

sufficient specific facts establishing a cognizable claim under Atkins[.]”)). These facts

must be “sufficient to enable a court to determine, from the face of the application

itself, whether the application merits further inquiry.” Id. at 63. Specifically, to obtain

authorization to file a subsequent state habeas application under the Texas Code of

Criminal Procedure on the basis that Moore was newly available law—as the TCCA

has repeatedly recognized—Mr. Burton was required only to plead facts sufficient to

“bring [his] constitutional claim under the umbrella” of Moore. 160 S.W.3d at 63.

Under either procedural gateway for subsequent state habeas applications in

Texas, at the authorization stage, the TCCA’s role is limited “to review[ing] the

adequacy of [Mr. Burton’s Atkins] pleading,” and making a threshold determination

only. Ex parte Blue, 230 S.W.3d 151, 162-63 (Tex. Crim. App. 2007) (“[The Code] does

not authorize this Court to grant relief on a subsequent writ application, but only to

review the adequacy of the pleading. The statutory scheme as a whole does not call

upon us to make a determination of the merits of a subsequent writ application at

this juncture. All we can do at this stage of the proceeding is to issue an order, either

finding that the requirements under Subsection 5(a)(3) have been met, and the writ

should issue and proceed in the ordinary course as an initial writ would, or that the

requirements have not been met, and the writ should be dismissed.”). Mr. Burton was

2

not required, at this stage, to “actually convince [the TCCA]” of the underlying merits

of his claim. Id. at 163.

Despite this recognition, Respondent ignores the limited purpose of this prima

facie threshold stage under binding state law, and instead asks this Court to consider

whether Mr. Burton has proven his Eighth Amendment claim on the merits. For

example, Respondent argues that Mr. Burton’s expert and the lay witnesses who

submitted declarations are not credible. Resp. Br. in Opp. at 14 n.8, 17. This type of

credibility dispute is precisely what should be adjudicated at an evidentiary hearing,

not the authorization stage, and is not relevant or proper in determining the

sufficiency of Mr. Burton’s prima facie showing at the authorization stage.

Respondent also attempts to introduce in this Court new facts, never

considered by the TCCA, in an effort to rebut Mr. Burton’s prima facie case.

Respondent’s Appendix consists solely of an August 1, 2024, ten-page letter from Dr.

Thomas Guilmette. See Resp. App’x at 2-11. Respondent acknowledges that this

letter was never submitted to the TCCA, in which proceedings the State chose not

even to participate. This letter was not part of the record below, and cannot have been

a basis for the TCCA’s summary denial of Mr. Burton’s subsequent application. If

there were facts in the record before the TCCA that overcame Mr. Burton’s prima

facie case, Respondent would have invoked those facts, instead of improperly

injecting extra-record information in this forum. See Br. in Opp. at 17.1

In addition to the extra-record expert report, Respondent injects information

purportedly seized from Mr. Burton’s cell, from his correspondence, and from his

1

3

Respondent’s submission of, and reliance on, extra-record information is not

only improper, it implicitly concedes that Mr. Burton pled a prima facie case of

intellectual disability. If contrary evidence–including a competing expert opinion–

was necessary to “refute[]” Mr. Burton’s claim, see Opposition at 1 fn. 2,2 then Mr.

Burton necessarily has pled facts that, if true, establish a cognizable claim.3 That is,

the State’s need to go outside of the record before the TCCA to attempt to defeat Mr.

Burton’s claim is a clear indication that the record before the lower court supported

a facial claim of intellectual disability.

There can be no question that Mr. Burton alleged facts which, if proven true,

would

entitle

him

to

relief.

He

presented

factual

allegations

that

two

neuropsychologists concluded he meets the first criteria of intellectual disability and

that one of those psychologists, who was the only expert to evaluate Mr. Burton’s

adaptive functioning, also concluded that he meets the second and third criteria of

intellectual disability. The expert report and Mr. Burton’s subsequent state habeas

prison mental health records. None of that information is properly before the Court

either, as it has never been introduced or submitted in any lower court.

2 Pursuant to Supreme Court Rule 14(i)(vi), materials “essential to understand the

petition” may be included in an appendix; there is no other applicable basis for its

inclusion in an appendix.

3 It should be noted that the opinions in the extra-record letter contravene the medical

community’s diagnostic framework and best practices for diagnosing ID, and thus,

further demonstrate that the State’s position rests on a disregard for current clinical

standards. As just one of several examples, the letter—from an expert who has never

met or evaluated Mr. Burton, nor interviewed anyone who knows him—relies heavily

on Mr. Burton’s functioning in prison, despite Moore I’s and the clinical standards’

clear admonition that adaptive functioning is difficult to assess “in a controlled

setting.” Moore I, 581 U.S. at 16 (quoting DSM-5, at 38).

4

application clearly applied the current clinical diagnostic framework to the evidence

of his intellectual and adaptive functioning. This was the only evidence regarding

intellectual disability in the court below. There was no contrary evidence before the

TCCA. Therefore, the only conclusion that can be drawn from the TCCA’s dismissal

of Mr. Burton’s intellectual disability claim is that the TCCA blatantly failed to heed

this Court’s precedent.

B.

Respondent’s Incorrect Arguments Regarding the Clinical

Diagnostic Standards Further Demonstrate the State of Texas’s

Disregard for this Court’s Precedents

Respondent argues at length that Mr. Burton did not plead a prima facie case

that he is intellectually disabled and therefore ineligible for the death penalty. Resp.

Br. in Opp. at 11-21.

Respondent’s arguments are based on inapposite legal

standards, unfounded attacks on Mr. Burton’s expert witness, and incorrect clinical

diagnostic standards. Each of its arguments should be rejected.

1.

Respondent’s arguments that Mr. Burton has not pled a

prima facie case that he meets Criterion A (deficits in

intellectual functioning) are factually and legally incorrect.

Respondent’s arguments that Mr. Burton failed to make a prima facie showing

of deficits in intellectual functioning ignore or misapply the current medical and

clinical standards. In so doing, Respondent only highlights its disagreement with the

controlling standards for diagnosing ID—a disagreement this Court already resolved

in favor of current medical standards in Moore I.

At the outset, Respondent ignores the reality that neither the DSM-5-TR nor

the AAIDD imposes a strict IQ cutoff. DSM-5-TR, at 37, 42 (“IQ test scores are

5

approximations of conceptual functioning but may be insufficient to assess reasoning

in real life situations and mastery of practical tasks.”). Indeed, the DSM-5-TR

recognizes that individuals with IQ scores above 65-75 may qualify for an ID

diagnosis, depending on their level of adaptive functioning. DSM-5-TR, at 42. See also

Hall v. Florida., 572 U.S. at 723 (quoting the DSM-5’s recognition that persons with

IQ scores above 70 may qualify for an ID diagnosis). Thus, “clinical judgment is

important in interpreting the results of IQ tests, and using them as the sole criteria

for the diagnosis for an intellectual developmental disorder is insufficient.” Id. See

also Hall, at 723 (“Intellectual disability is a condition, not a number.”). In this case,

the only expert who has exercised clinical judgment4 in interpreting Mr. Burton’s IQ

scores is Dr. DeRight, who—after conducting an in-person examination of Mr. Burton

and reviewing information from multiple sources—determined Mr. Burton has

sufficient deficits in intellectual functioning to qualify for an ID diagnosis.

Respondent does not identify any authority—legal, clinical, or otherwise—that

an IQ score above 75 precludes an ID diagnosis. The State’s reliance on Busby v.

Davis, 925 F.3d 699 (5th Cir. 2019), and Green v. Lumpkin, 860 F. App'x 930 (5th Cir.

2021), is unavailing. Those cases are inapplicable because they resolved only whether

4 The AAIDD defines “clinical judgment” as “a special type of judgment built upon

respect for the person. Clinical judgment emerges from the clinician’s specialized

training and experience, specific knowledge of the person and his/her environments,

extensive data, and use of critical thinking skills.” AAIDD, Clinical Judgment (2nd

ed.2014), 7. Exercising critical judgment necessarily requires having information

based on “interviews and conversations with the person,” along with information from

other sources. Id., at 11 (emphasis added). Dr. DeRight is the only expert who

conducted an in-person evaluation of Mr. Burton.

6

a state court’s assessment of ID claims was contrary to or an unreasonable

application of clearly established federal law within the meaning of 28 U.S.C. §

2254(d).

Respondent’s arguments regarding the Flynn Effect fare no better. As an

initial matter, Dr. DeRight opined that Mr. Burton meets the Criterion A standard

even without considering the Flynn Effect.5 Thus, even if there were some debate in

the medical community about the Flynn Effect, that would not preclude Mr. Burton

from demonstrating prima facie eligibility for relief under Atkins.

But Respondent’s arguments about the Flynn Effect are also wrong.

Respondent cannot deny that pursuant to current medical and clinical standards,

best practices require consideration of the Flynn Effect. AAIDD-12, at 42 (“Current

best practice guidelines recommend that in cases in which an IQ test with aged norms

is used as part of a diagnosis of ID, a correction of the full-scale IQ score of 0.3 points

per year since the test norms were collected is warranted.”); AAIDD-11, at 37: (“best

practices require recognition of a potential Flynn effect when older editions of an

intelligence test (with corresponding older norms) are used in the assessment or

interpretation of an IQ score”); AAIDD, Clinical Judgment (2nd ed.2014), at 30 (“Use

the most recent norms of the assessment instruments selected, and consider Flynn

effects.”); DSM-5-TR at 38 (recognizing that the Flynn Effect may affect test scores).

5 Pet. Supp. App., DeRight Report at 22.

Dr. DeRight’s report was cited in, but not

attached to, Mr. Burton’s Petition for Writ of Certiorari. In light of Respondent’s

misrepresentations regarding the contents thereof, Mr. Burton attaches Dr.

DeRight’s report hereto.

7

Respondent appears to argue that the DSM-5-TR does not mandate adjusting scores

downward for the Flynn Effect, and that the DSM is more controlling than the AAIDD

manuals. Resp. Br. in Opp. at 11, 14. But this Court made clear in Moore I that both

the AAIDD and the DSM “supply one constraint on States’ leeway” in enforcing

Atkins. Moore I, 581 U.S. at 20. And even to the extent that the DSM-5-TR does not

require application of the Flynn Effect, it certainly does not forbid a psychologist,

exercising his clinical judgment, from applying the Flynn Effect when evaluating a

patient.

That is precisely what Dr. DeRight did here; any disagreement that

Respondent has with Dr. DeRight’s clinical judgment is a question of fact for an

evidentiary hearing, and does not invalidate Mr. Burton’s prima facie case of

intellectual disability.

The case law that Respondent relies upon to argue that the Flynn Effect should

not be considered is outdated and inapplicable. For example, in Brumfield v. Cain,

808 F.3d 1041 (5th Cir. 2015), the Fifth Circuit did not address the Flynn Effect

because the petitioner’s scores satisfied the intellectual deficits requirement without

a Flynn adjustment. Moreover, that case decided the merits of a claim in § 2254

proceedings, and thus has no bearing on whether Mr. Burton made a prima facie

claim of intellectual disability in his state habeas application. Moreover, this Court’s

reference to the Flynn Effect in Dunn v. Reeves, 594 U.S. 731, 736–37 (2021) was

dicta, made in the context of assessing whether Reeves’ counsel was ineffective for

failing to know about the Flynn Effect at the time of his 1998 trial, and describing

the evidence at a state habeas evidentiary hearing in 2006. See Reeves v. State, 226

8

So. 3d 711, 722, 730-31 (Ala. Crim. App. 2016). Contrary to Respondent’s suggestion

that the Flynn Effect is some untested theory with a questionable scientific basis,

multiple courts (in addition to controlling medical and clinical authorities) now rely

on it as a valid, scientifically-established phenomenon that cannot be ignored. Indeed,

even the TCCA has held that “factfinders may consider the Flynn Effect and its

possible impact on IQ scores generally.” Ex parte Cathey, 451 S.W.3d 1, 18 (Tex. Crim.

App. 2014).6

Respondent misconstrues Dr. DeRight’s report as suggesting the Flynn Effect

should only be applied in death penalty cases. Resp. Br. in Opp. at 14, fn.8. In fact,

6 See also Smith v. Ryan, 813 F.3d 1175, 1185 (9th Cir. 2016) (applying the Flynn

Effect to the petitioner’s IQ score in light of the AAIDD’s recognition of the

phenomenon and “uncontroverted” expert testimony that it should be applied);

United States v. Wilson, 170 F.Supp. 3d 347, 353 (E.D.N.Y. 2016) (applying the Flynn

effect to a full-scale IQ score of 78, and finding that the Flynn-adjusted score of 76.68

satisfies the intellectual deficits requirement for an ID diagnosis); Black v. Bell, 664

F.3d 81, 96 (6th Cir. Tenn. 2011) (“allowing defendants to present evidence regarding

the Flynn Effect and the SEM is not enough. Tennessee courts must also consider

this evidence in assessing a defendant’s ultimate functional I.Q.”); Winston v. Kelly,

592 F.3d 535, 557 (4th Cir. 2010) (instructing district court to address evidence of the

Flynn Effect on remand); Walker v. True, 399 F.3d 315, 322-23 (4th Cir. 2005)

(directing the district court to consider the Flynn Effect on remand); U.S. v. Hardy,

762 F.Supp. 2d 849, 862-866 (E.D. La. 2010) (finding the Flynn effect “well

established scientifically”); United States v. Lewis, No. 1:08 CR 404, 2010 WL

5418901, at *5 (N.D. Ohio Dec. 23, 2010) (recognizing the Flynn Effect as a “best

practice”); United States v. Shields, No. 04-20254, 2009 WL 10714661, at *12 (W.D.

Tenn. May 11, 2009) (the Flynn Effect “is a valid scientific phenomenon”); U.S. v.

Davis, 611 F.Supp. 2d 472, 485-488 (D. Md. 2009) (considering the defendant’s

“Flynn-adjusted” IQ score); Holladay v. Allen, 555 F.3d 1346, 1358 (11th Cir.2009)

(noting that “all of the scores were on WAIS tests, which may have reflected elevated

scores because of the Flynn effect.”); Thomas v. Allen, 614 F.Supp. 2d 1257, 1281

(N.D. Ala. 2009) (requiring consideration of the Flynn effect and the SEM).

9

Dr. DeRight noted that while scores are not typically adjusted per se (i.e., one does

not simply plug the numbers into a formula and consider the results to be the true

IQ score), the Flynn Effect should be considered as one of several factors that might

affect the reliability of an IQ score, in the proper exercise of clinical judgment.7 This

is consistent with the medical and clinical authorities that require consideration of

the Flynn Effect in all clinical settings—not just in death penalty cases. AAIDD-12,

at 42; DSM-5-TR at 38; AAIDD, Clinical Judgment, at 30. The fact that clinicians

may be more concerned about reliability of IQ scores in a death penalty case (or in

other high-stakes decisions, such as decisions related to eligibility for Social Security

Disability or special education services, as expressly noted by Dr. DeRight) is hardly

surprising, and does not negate the scientific understanding that the Flynn Effect is

real. See Ford v. Wainwright, 477 U.S. 399, 411 (1986) (factfinding procedures in

capital cases must “aspire to a heightened standard of reliability.”).

Respondent’s arguments—to the extent that they are not contrary to legal and

clinical standards—at most establish that Respondent would present evidence

contrary to Mr. Burton’s at an evidentiary hearing on the merits. They do not

establish that Mr. Burton did not plead a prima facie case.

2.

Respondent’s arguments that Mr. Burton has not pled a

prima facie case that he meets Criterion B (deficits in adaptive

functioning) are factually and legally incorrect.

Respondent claims that “Burton provides insufficient testing of his adaptive

behavior to satisfy contemporary professional norms.” Resp. Br. in Opp. at 16. As an

7 Pet. Supp. App., DeRight Report at 22.

10

initial matter, Dr. DeRight is the only clinician who provided evidence to the court

below about what the current diagnostic standards require and how they apply to the

evidence of Mr. Burton’s functioning. This Court should reject Respondent’s lay

interpretation of the clinical standards to attempt to overcome the prima facie case

Mr. Burton presented to the TCCA. Moreover, in claiming that Mr. Burton’s prima

facie case of adaptive deficits did not satisfy current diagnostic criteria, Respondent

misstates the relevant clinical standards recognized by this Court and makes

material omissions about the evidence before the state court.

The clinical diagnostic criteria are set out in the most current version of both

the DSM and the AAIDD Manual. Moore v. Texas, 581 U.S. 1, 13 (2017) (In Hall “[w]e

relied on the most recent (and still current) versions of the leading diagnostic

manuals—the DSM-5 and AAIDD-11.”). Respondent appears to make up out of whole

cloth its own criteria that a clinician must administer more than one adaptive

behavior scale to return a diagnosis of intellectual disability. Resp. Br. in Opp. at 17

(“Dr. DeRight’s clinical judgment to only administer one [Vineland Adaptive Behavior

Scale-3] violates the requirements of the DSM-5-TR. . . .”). That requirement appears

nowhere in the DSM-5-TR. The citation relied on by Respondent in the DSM-5-TR

simply identifies, in general, sources of information on which diagnosis of intellectual

disability is based. DSM-5-TR at 38. Indeed, the DSM-5-TR also states:

Adaptive functioning is assessed using both clinical evaluation and

individualized, culturally appropriate, psychometrically sound

measures. Standardized measures are used with knowledgeable

informants (e.g., parent or other family member; teacher; counselor; care

provider) and the individual to the extent possible. Additional sources of

11

information include educational, developmental, medical, and mental

health evaluations.

DSM-5-TR at 42 (emphasis added). There is no mention of adaptive behavior scales

specifically.

In Hall, this Court interpreted language in the DSM-5 which was very similar

to that relied on by Respondent in the DSM-5-TR. See DSM-5 at 37 (diagnosis of

intellectual disability “is based on both clinical assessment and standardized testing

of intellectual and adaptive functions”). The Hall Court went on to note that

assessment of adaptive behavior included evidence from “medical histories,

behavioral records, school tests and reports, and testimony regarding past behavior

and family circumstances.” Hall v. Florida, 572 U.S. 701, 711 (2017). Neither Hall

(nor Moore) identified adaptive behavior scales as a part of the diagnostic criteria.

Respondent also fails to make any mention of the AAIDD’s guidelines for

assessing adaptive behavior, which is the other source of diagnostic criteria as

recognized by this Court. Under the AAIDD-12, making a retrospective diagnosis of

intellectual disability involves “[u]sing a thorough social, medical, and educational

history,” [b]asing the diagnosis on multiple valid data points,” and interpreting

previously administered testing to the extent possible. AAIDD-12 at 41-428; see also

Brief of Amici Curiae, the American Association on Intellectual and Developmental

Disabilities (AAIDD), and the ARC of the United States, In Support of Petitioner,

8 See also Pet. Sup. App., DeRight Report at 23 (noting that the adaptive behavior

assessment of Mr. Burton “is based on multiple data points including information

from various individuals, school records, and standardized testing.”)

12

Moore v. Texas, No. 15-797, at *15 n.17 (Aug. 4, 2016) (“Clinicians have developed

sophisticated and detailed methods for objectively answering the question of what

deficits or limitations an examined individual may have. These methods include, but

are not limited to, psychometric instruments known as adaptive behavior scales.”)

(emphasis added). Nowhere does the AAIDD-12 require administration of multiple

adaptive behavior scales to properly assess adaptive functioning. Indeed, it

contemplates that a single in-range adaptive behavior score would satisfy the second

diagnostic criterion. AAIDD-12 at 31 (“For a diagnosis of ID, the ‘significant

limitations in adaptive behavior’ criterion is an adaptive behavior score that is

approximately 2 standard deviations or more below the mean in at least one of the

three adaptive behavior domains[.]”).

Respondent also mischaracterizes the facts before the state court. First, Dr.

DeRight did, in fact, administer several tests that measured Mr. Burton’s adaptive

functioning. One was the Vineland adaptive behavior scale administered to Mr.

Burton’s mother on which Mr. Burton scored a composite score of 54—a score worse

than 99 percent of his peers.9 But DeRight also administered standardized testing to

Mr. Burton himself that measured both intellectual and adaptive functioning.10 . Mr.

Burton scored “exceptionally low” on several NAB Daily Living Modules, the Test of

9 Pet. Supp. App., DeRight Report at 19.

10 Pet. Supp. App., DeRight Report at 16 (“As stated in the AAIDD manual (Tables

3.1 and 3.3), there is some overlap between measures of intellectual and adaptive

functioning. For example, both domains might include problems with social problem

solving/decision-making, problems with language comprehension, suggestibility, and

a desire to please authority figures.”)

13

Practical Judgment, and the Gujonsson Suggestibility Scale. His results on these

tests reflected significant deficits in adaptive behaviors like the ability to read a map,

write a check to pay a bill, follow simple instructions, and judge the safety of various

scenarios.11

In addition to failing to address the totality of the testing administered by Dr.

DeRight, Respondent omits mention of Mr. Burton’s school records and the witness

declarations explaining the significance of those records. Mr. Burton’s school records

demonstrate that he failed—and was required to repeat—two grades, that he was in

special education throughout high school, and that his ability to graduate (and his

ostensible class rank) was due to the school’s policy of grading special ed students

based on their relative—rather than scholastic—ability and graduating as many

students as possible. These records evidence significant deficits in both intellectual

functioning and the conceptual domain of adaptive behavior.

Mr. Burton presented a prima facie case that he had deficits in adaptive

behavior as analyzed under current clinical criteria. Moreover, Mr. Burton’s expert

report was the only evidence before the TCCA evaluating his adaptive functioning.

In dismissing his claim of intellectual disability, the TCCA necessarily flouted

current clinical standards and this Court’s precedent, and Respondent continues

those errors in its opposition. This Court’s intervention is necessary.

11 Id.

14

CONCLUSION

For the reasons set forth above and in Mr. Burton’s Petition for Writ of

Certiorari, the petition for writ of certiorari should be granted. At a minimum, this

Court should grant the petition, vacate the judgment below, and remand for the

TCCA to consider Mr. Burton’s intellectual disability claim in compliance with Hall,

Moore I, and Moore II.

Respectfully submitted,

Dated: August 7, 2024

By /s/ Steven J. Wells

Steven J. Wells

Counsel of Record

Member, Supreme Court Bar

DORSEY & WHITNEY LLP

Steven J. Wells

wells.steve@dorsey.com

Kathryn A. Johnson

johnson.kate@dorsey.com

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

Telephone: (612) 340-2600

Facsimile: (612) 340-2868

Attorneys for Petitioner

15