Respondents Brief — Karl Douglas Roberts, Petitioner v. Dexter Payne, Director, Arkansas Division of Correction
Supreme Court briefJun 18, 2025
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No. 24-6798
In the Supreme Court of the United States
KARL DOUGLAS ROBERTS,
Petitioner,
v.
DEXTER PAYNE, Director,
Arkansas Division of Correction
Respondent.
On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Eighth Circuit
BRIEF IN OPPOSITION
TIM GRIFFIN
Arkansas Attorney General
AUTUMN HAMIT PATTERSON
Arkansas Solicitor General
Counsel of Record
ASHER STEINBERG
Senior Assistant Solicitor General
PAMELA RUMPZ
Senior Assistant Attorney General
JASON MICHAEL JOHNSON
Assistant Attorney General
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
101 West Capitol Avenue
Little Rock, Arkansas 72201
(501) 682-6302
autumn.patterson@arkansasag.gov
QUESTION PRESENTED
Before the state trial court, Karl Roberts argued, among other things, that he
was ineligible for the death penalty under Arkansas’s statute prohibiting execution
of the intellectually disabled. Pet. App. 116a, 148a. But the trial court rejected that
argument, Pet. App. 116a, 128a, and the jury found he did not suffer from an intellectual deficit, Pet. App. 139a–140a. He was convicted of raping and murdering his
twelve-year-old niece and sentenced to death. Pet. App. 2a. Almost a year after Atkins v. Virginia, 536 U.S. 304 (2002), was decided, the Arkansas Supreme Court reviewed the entire record and upheld his conviction and death sentence on direct appeal. Pet. App. 3a, 5a, 116a. The question presented is:
Whether a state court decision, issued shortly after Atkins was decided,
that rejected a claim that a defendant was ineligible for the death penalty due to his intellectual disability under state law necessarily adjudicated that defendant’s claim under Atkins.
i
TABLE OF CONTENTS
Question Presented......................................................................................................... i
Table of Contents ........................................................................................................... ii
Table of Authorities ...................................................................................................... iii
Introduction ................................................................................................................... 1
Statement of the Case ................................................................................................... 3
Reasons for Denying the Petition................................................................................ 11
I.
There Is No Conflict among Circuits or with this
Court’s Precedent on the Question Presented ................................................. 11
A. The decision below does not conflict with decisions
defining the term “claim” under Section 2254(d). ...................................... 11
B. The decision below does not conflict with this Court’s
precedent that state-court decisions are reviewed for
reasonableness under § 2254(d)(1) based on federal
law that existed at the time of their issuance. ........................................... 18
C. The Eighth Circuit’s interpretive methodology does
not conflict with decisions of this Court. .................................................... 22
II.
This Case Is a Poor Vehicle. ............................................................................. 24
III. The Decision Below Is Correct. ......................................................................... 28
Conclusion .................................................................................................................... 31
ii
TABLE OF AUTHORITIES
Cases
Anderson v. State,
163 S.W.3d 333 (Ark. 2004). .................................................................. 1, 20, 28, 30
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................................1-3, 5-12, 17-22, 24-31
Baldwin v. Reese,
541 U.S. 27 (2004) .................................................................................................. 16
Bell v. Cockrell,
310 F.3d 330 (5th Cir. 2002) .................................................................................. 22
Bobby v. Bies,
556 U.S. 825 (2009) ................................................................................................ 30
Brown v. Davenport,
596 U.S. 118 (2022) ................................................................................................ 19
Brumfield v. Cain,
576 U.S. 305 (2015) ................................................................................................ 25
Burt v. Titlow,
571 U.S. 12 (2013) .................................................................................................. 26
Conaway v. Polk,
453 F.3d 567 (4th Cir. 2006) ....................................................................... 10, 17-18
Cullen v. Pinholster,
563 U.S. 170 (2011) ..................................................................................... 21-23, 25
Duncan v. Henry,
513 U.S. 364 (1995) (per curiam) ........................................................................... 16
Evans v. Ct. of Common Pleas,
959 F.2d 1227 (3d Cir. 1992) .................................................................................. 17
Falconer v. Lane,
905 F.2d 1129 (7th Cir. 1990) ................................................................................ 17
Ford v. Wainwright,
477 U.S. 399 (1986) ............................................................................................... 30
iii
Gonzalez v. Crosby,
545 U.S. 524 (2005) ........................................................................................... 12-16
Gray v. Netherland,
518 U.S 152 (1996) ............................................................................................ 27-28
Greene v. Fisher,
565 U.S. 34 (2011) ....................................................................................... 19, 21-22
Hall v. Florida,
572 U.S. 701 (2014) ...................................................................... 9-10, 12, 26, 30-31
Hamm v. Smith,
No. 24-872, 2025 WL 1603602 (June 6, 2025) ....................................................... 26
Harrington v. Richter,
562 U.S. 86 (2011) .................................................................................................. 23
Howard v. State,
238 S.W.3d 24 (Ark. 2006) ..................................................................................... 28
Howell v. Mississippi,
543 U.S. 440 (2005) (per curiam) ........................................................................... 16
Jackson v. Edwards,
404 F.3d 612 (2d Cir. 2005) .................................................................................... 16
Kearse v. Sec’y, Fla. Dep’t of Corr.,
669 F.3d 1197 (11th Cir. 2011) (per curiam) ................................................... 14, 25
Kirkpatrick v. Chappell,
950 F.3d 1118 (9th Cir. 2020) ..................................................................... 13-14, 25
Lawler v. Nara,
552 U.S. 1309 (2008) .............................................................................................. 17
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ................................................................................................ 24
Miller-El v. Dretke,
545 U.S. 231 (2005) ................................................................................................ 26
Moore v. Texas,
581 U.S. 1 (2017) .......................................................................................... 8, 26, 31
iv
Nelson v. Lumpkin,
72 F.4th 649 (5th Cir. 2023) ................................................................................... 15
Penry v. Lynaugh,
492 U.S. 302 (1989) .......................................................................................... 20, 22
Picard v. Connor,
404 U.S. 270 (1971) ................................................................................................ 16
Pouncy v. Palmer,
846 F.3d 144 (6th Cir. 2017) .................................................................................. 15
Roberts v. Norris,
526 F. Supp. 2d 926 (E.D. Ark. 2007) ...................................................................... 7
Roberts v. State,
426 S.W.3d 372 (Ark. 2013) ..................................................................................... 7
Sanders v. Ryder,
342 F.3d 991 (9th Cir. 2003) ............................................................................. 16-17
Sasser v. Hobbs,
735 F.3d 833 (8th Cir. 2013) ........................................................................ 1, 10, 12
Scarpa v. Dubois,
38 F.3d 1 (1st Cir. 1994) ......................................................................................... 17
Shinn v. Ramirez,
596 U.S. 366 (2022) ........................................................................................... 22-23
Shoop v. Hill,
586 U.S. 45 (2019) (per curiam) .................................................................. 20, 29-30
Shoop v. Twyford,
596 U.S. 811 (2022) ................................................................................................ 22
Smith v. Murray,
477 U.S. 527 (1986) ................................................................................................ 27
State v. Robbins,
5 S.W.3d 51 (Ark. 1999) ........................................................................................... 5
v
State v. Roberts,
123 S.W.3d 881 (Ark. 2003) ..................................................................................... 7
Whiteside v. State,
684 S.W.3d 588 (Ark. 2024) ................................................................................... 28
Williams v. Taylor,
529 U.S. 362 (2000) ................................................................................................ 23
Woodford v. Ngo,
548 U.S. 81 (2006). ................................................................................................. 27
Wood v. Allen,
558 U.S. 290 (2010) ................................................................................................ 26
Rules, Statutes & Constitutional Provisions
28 U.S.C. § 2244(b) ...................................................................................................... 12
28 U.S.C. § 2244(b)(1) .................................................................................................. 24
28 U.S.C. § 2254(b) ...................................................................................................... 11
28 U.S.C. § 2254(b)(1) .................................................................................................. 16
28 U.S.C. § 2254(d) .......................................................... 1-2, 9, 11-15, 17-18, 20, 24-26
28 U.S.C. § 2254(d)(1) ....................................................................................... 18-23, 25
28 U.S.C. § 2254(d)(2) ................................................................................. 10, 22, 25-26
28 U.S.C. § 2254(e)(1) ......................................................................... 2, 9, 11, 13, 24-26
Ark. Code Ann. § 5-4-618............................................................................................... 3
Ark. Code Ann. § 5-4-618(a)(1) .................................................................................... 31
Miscellaneous
Abbe R. Gluck, The Federal Common Law of Statutory
Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary
L. Rev. 753 (2013) ................................................................................................... 23-24
Kent S. Scheidegger, Habeas Corpus, Relitigation, and
the Legislative Power, 98 Colum. L. Rev. 888 (1998)............................................ 19, 21
vi
INTRODUCTION
On direct appeal, the Arkansas Supreme Court—one year after Atkins v. Virginia, 536 U.S. 304 (2002), was decided—affirmed Roberts’s conviction and sentence,
thereby rejecting Roberts’s claim that he was ineligible for the death penalty under
Arkansas’s statute prohibiting execution of the intellectually disabled. Pet. App.
128a. As the Arkansas Supreme Court explained when Roberts raised an Atkins
claim in postconviction proceedings, that 2003 adjudication of Roberts’s state-law
claim necessarily adjudicated his Atkins claim. Pet. App. 116a. That is because the
two claims are coterminous—especially in 2003, shortly after Atkins was decided.
Because “Atkins merely reaffirmed [Arkansas’s] preexisting prohibition
against executing the mentally retarded,” Arkansas courts review Atkins claims under the Arkansas statute prohibiting execution of the intellectually disabled. Anderson v. State, 163 S.W.3d 333, 354–55 (Ark. 2004). And ever since Atkins was decided,
“the Arkansas Supreme Court has consistently construed its state’s statutory right
to be concurrent with the federal constitutional right established in Atkins.” Pet.
App. 9a (quoting Sasser v. Hobbs, 735 F.3d 833, 842 (8th Cir. 2013)). The Eighth
Circuit thus held that by adjudicating Roberts’s claim that he was ineligible for the
death penalty under Arkansas law, the Arkansas Supreme Court adjudicated the
merits of Roberts’s claim that he was ineligible for the death penalty under Atkins as
well. Pet. App. 11a–12a. Applying AEDPA deference under § 2254(d), it affirmed the
dismissal of Roberts’s Atkins claim. Pet. App. 12a.
The Eighth Circuit decision is correct, consistent with this Court’s precedent,
and creates no circuit split. Roberts claims otherwise. He principally argues that the
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Eighth Circuit’s holding that the Arkansas Supreme Court’s decision adjudicated the
merits of Roberts’s Atkins claim under 28 U.S.C. § 2554(d) conflicts with decisions
that interpret “claim” in that provision to mean an asserted federal basis for relief
from a conviction or sentence. But that begs the question of what it means to assert
a federal basis for relief. Must a petitioner cite a provision of the Constitution or this
Court’s cases, or has a petitioner asserted a federal basis for relief if he raises a statelaw claim that is identical to—and is a State’s means of enforcing—the federal guarantee? Given the unique relation between Atkins and state statutes that implement
its prohibition on executing the intellectually disabled, the only two courts of appeals
to consider that question in this context have held that adjudicating a claim under
one of those statutes adjudicates an Atkins claim. And more broadly, all the courts
of appeals to consider the question have held that a petitioner has asserted a federal
claim if he asserts a state-law parallel governed by identical standards to the federal
claim. Roberts’s primary asserted conflict is thus nonexistent. His other asserted
conflicts are off base too.
In any event, even if a conflict existed, this case would be a poor vehicle to
resolve it. Regardless of whether § 2254(d) applies, Roberts’s Atkins claim still fails
because, among other reasons, the state courts’ factual finding that Roberts was not
intellectually disabled would still receive deference under § 2254(e)(1). And if Roberts is right that his Atkins claim was never adjudicated in state court, then he procedurally defaulted that claim. The Court therefore should deny the petition.
2
STATEMENT OF THE CASE
1. On May 15, 1999, Petitioner Karl Roberts raped and murdered his twelveyear-old niece Andria Brewer. Pet. App. 2a, 137a. According to his confession, he
came to her home, knowing her parents were not home at the time. Pet. App. 137a.
When she answered the door, he told her to get into his truck. Id. She “asked him
what was wrong,” and he told to “just get in the truck.” Id. She complied. Id. He
then drove her for ten miles to a remote location while she repeatedly asked him to
take her home. Pet. App. 137a–138a. When they arrived at an old logging road, he
told Andria to get out. Pet. App. 138a. “When she asked him what he was going to
do, he told her he was going to ‘fuck’ her.” Id. He then raped her as she tried unsuccessfully to get away. Id. As he later told police, he knew “when he finished raping
her” that “he could not let her live, because he had ejaculated inside her.” Id.; Pet.
App. 2a. To prevent her from identifying him to the police, he asphyxiated her to
death “by mashing his thumbs into her throat.” Pet. App. 138a. “Once the child
turned blue and passed out, he dragged her body into the woods and covered it with
limbs and brush,” and dumped her clothes in a creek. Id. Roberts was quickly identified as a suspect and initially denied knowing anything about Andria’s disappearance. Pet. App. 129a, 140a. But when police told him he had failed a polygraph test,
he confessed. Pet. App. 140a.
2. Roberts was charged with capital murder. Id. At the time, Arkansas was
one of 12 States that already prohibited executing the intellectually disabled, see Atkins, 536 U.S. at 314 & n.12 (citing Ark. Code Ann. § 5-4-618), and Roberts’s counsel
3
requested a hearing on whether Roberts was intellectually disabled and thus ineligible for the death penalty, Pet. App. 148a. They also requested a competency hearing.
Pet. App. 146a.
At a hearing on both motions, Dr. Charles Mallory, a psychologist at the Arkansas State Hospital who evaluated Roberts, testified for the State; Roberts called
no witnesses. Pet. App. 152a–198a. Dr. Mallory testified that Roberts scored a 76 on
the IQ test Dr. Mallory administered, with a 95% confidence interval of 72 to 81. Pet.
App. 161a–162a; see also Pet. App. 211a (written report). He also testified that Roberts read at a high-school level and scored in the 25th percentile on a reading test.
Pet. App. 163a. Additionally, he noted that Roberts scored 90 out of a possible 100
on the Georgia Competency Test, Pet. App. 168a, and could explain, for example, that
“in a jury trial the jury decides you’re guilty and in judge trial he decides,” Pet. App.
213a (alteration omitted), and that were he to be found not guilty by reason of insanity it would mean “I don’t understand what happened and didn’t have no control,” id.
Dr. Mallory did not formally evaluate Roberts’s adaptive functioning because
his 76 IQ, even when adjusted for the error of measurement, was above the DSM’s 70
IQ threshold for intellectual disability. Pet. App. 181a. Dr. Mallory, however, found
that Roberts functioned “adequately in the major activities of adulthood, including
holding steady, semi-skilled employment, maintaining a marriage with parental obligations over ten years.” Pet. App. 211a. Dr. Mallory ultimately concluded that Roberts’s below-average intelligence “ha[d] not affected any of his major life activities,”
id., and that he was not intellectually disabled “by any stretch of the imagination,”
4
Pet. App. 167a. The trial court found at the conclusion of the hearing that Roberts
was competent to stand trial and eligible for the death penalty. Pet. App. 198a. At
trial, Roberts offered evidence about a childhood brain injury in an attempt to prove
he lacked the requisite mental state for murder, Pet. App. 4a, but he never returned
to the issue of intellectual disability, Pet. 5.
After the trial, the jury unanimously convicted Roberts of capital murder. Pet.
App. 4a. The jury unanimously found nine mitigating circumstances, Pet. App. 139a,
including that his IQ placed him in the borderline range of intellectual functioning
and that he sustained significant brain damage as a minor, Pet. App. 231a. But not
a single juror found that Roberts suffered from intellectual disability, Pet. App. 139a,
or that his childhood brain injury had impaired his ability to control his impulses, id.
And the jury unanimously found that the cruel and depraved manner in which Roberts murdered his young niece outweighed the nine mitigators, and sentenced him to
death. Pet. App. 4a.
3. In July 2000, Roberts waived his direct appeal. Pet. App. 5a. However,
under Arkansas law the Arkansas Supreme Court automatically reviews convictions
and sentences in death-penalty cases for prejudicial errors. See State v. Robbins, 5
S.W.3d 51, 55 (Ark. 1999). Accordingly, in February 2002 the Arkansas Supreme
Court appointed an amicus to “argue any errors prejudicial to Mr. Roberts.” Pet. App.
221a. On October 30, 2002, four months after this Court’s decision in Atkins, the
court-appointed amicus filed his brief. Pet. App. 222a. He neither raised Atkins nor
5
challenged the trial court’s intellectual-disability finding under state law. Pet. App.
225a–233a.
In April 2003, almost a year after Atkins was decided, the Arkansas Supreme
Court reviewed “the entire record,” found “no error,” and affirmed Roberts’s conviction and sentence. Pet. App. 128a. In its automatic, entire-record review, the court
necessarily affirmed the trial court’s ruling that Roberts was not intellectually disabled and thus was eligible for the death penalty. Pet. App. 116a. And though it did
not explicitly discuss the trial court’s intellectual-disability ruling, the court expressly
addressed Roberts’s intellectual functioning throughout its opinion. See, e.g., Pet.
App. 130–31a, 133a, 139a. For example, in support of its holding that Roberts was
competent to waive his appeal, the court noted that his IQ “placed him within the
borderline-intellectual-functioning range,” and that he had graduated high school,
read and wrote on a high-school level, had held the same job for the last six years and
had been married for ten years. Pet. App. 130a. Similarly, in considering whether
Roberts’s confession was voluntary, the court again noted his borderline IQ score and
that Dr. Mallory testified Roberts “reads like a person who has a higher I.Q.” Pet.
App. 133a. And the court affirmed the jury’s unanimous finding that Roberts was not
intellectually disabled. Pet App. 139a. In doing so, the court noted the State’s experts’ testimony that Roberts “functioned well in society,” “could read and write on a
high school level,” and “was, as evidenced by his crimes, capable of engaging in a
complex series of actions that included his efforts to conceal his crimes.” Id.
6
4. In May 2003, after his conviction was affirmed, Roberts waived his right to
seek postconviction relief at a hearing in trial court. Pet. App. 5a. The trial court
found he was competent to waive postconviction proceedings. Id. After reviewing
that finding, the Arkansas Supreme Court affirmed it. Id. (citing State v. Roberts,
123 S.W.3d 881, 883 (Ark. 2003)). Despite his waiver of postconviction proceedings,
counsel filed a habeas petition in federal court on his behalf, which for the first time
expressly raised an Atkins claim. Pet. App. 6a. In 2007, the district court stayed the
petition to give Roberts “an opportunity to convince the state courts that he did not
competently waive his right to appeal and to seek state post-conviction relief,” notwithstanding the state courts’ rulings to the contrary. Id. (quoting Roberts v. Norris,
526 F. Supp. 2d 926, 949 (E.D. Ark. 2007)).
5. That 2007 ruling touched off over a decade of state postconviction litigation.
In 2013, the Arkansas Supreme Court held that Roberts’s competency to waive postconviction proceedings needed to be evaluated anew. Roberts v. State, 426 S.W.3d
372, 378–79 (Ark. 2013). It concluded that the pretrial examinations of Roberts’s
competency in 1999 and early 2000, which were used to make the postconviction competency finding in 2003, were not contemporaneous enough with that later competency finding. Id. Following a subsequent evaluation, the trial court again found he
was competent to waive postconviction proceedings. Roberts v. State, 488 S.W.3d 524,
526 (Ark. 2016). Relying on testimony in the later competency hearing that Roberts
now had schizophrenia, though he had not been diagnosed with that condition at the
7
time of trial 15 years prior, the Arkansas Supreme Court held he was not competent
to waive postconviction proceedings. See id. at 528–29; Pet. App. 107a–108a.
On remand, the trial court held a three-day evidentiary hearing on Roberts’s
new claims, including his Atkins claim. Pet. App. 6a. Roberts’s expert, who reviewed
only Roberts’s school records and the trial experts’ reports and never interviewed
Roberts or his family members, Pet. App. 291a, testified to what he viewed as Roberts’s adaptive deficits, Pet. 7–8. He offered no new evidence on Roberts’s intellectual
functioning, instead testifying incorrectly that intellectual disability could not be
ruled out on the basis of Roberts’s IQ because “the criteria includes other deficits that
have to be assessed.” Pet. App. 243a. 1
The trial court denied relief on Roberts’s Atkins claim, as well as his other
postconviction claims. Pet. App. 293a. It explained that the question of Roberts’s
intellectual disability was ruled on at trial and reviewed on direct appeal, and that
Arkansas postconviction proceedings do “not provide an opportunity to reargue points
that were settled on direct appeal.” Pet. App. 292a. The Arkansas Supreme Court
affirmed. It agreed with the trial court that in its “mandatory review of the record on
direct appeal,” it had previously affirmed the finding at trial that Roberts was not
intellectually disabled and was eligible for the death penalty. Pet. App. 116a. It
likewise agreed that relitigation of that issue on collateral review was barred. Id.
1 Significantly subaverage intellectual functioning is a necessary element of an intellectual-disability
diagnosis, and that functioning is generally measured by IQ scores. See, e.g., Moore v. Texas, 581 U.S.
1, 7 (2017) (noting the first “core element[ ]” of intellectual disability under clinical definitions is “intellectual-functioning deficits,” which are “indicated by an IQ score . . . of roughly 70”).
8
6. Roberts then returned to federal habeas. The district court held that the
Arkansas Supreme Court reasonably concluded on direct appeal that Roberts was not
intellectually disabled. Pet. App. 81a. In addition to deferring to the Arkansas Supreme Court’s adjudication of Roberts’s intellectual-disability claim under 28 U.S.C.
§ 2254(d), the district court held Roberts had failed to rebut the state courts’ intellectual-disability finding by clear and convincing evidence under 28 U.S.C. § 2254(e)(1),
id., which applies to any state-court factual finding, whether or not it was made in
connection with a claim in habeas that was adjudicated on the merits in state court.
7. Roberts appealed, and the Eighth Circuit unanimously affirmed. Pet. App.
20a. As relevant here, it first held that by adjudicating Roberts’s claim that he was
ineligible for the death penalty under Arkansas’s intellectual-disability statute, the
Arkansas Supreme Court adjudicated Roberts’s Atkins claim. Pet. App. 9a–12a. Second, it held that the Arkansas Supreme Court adjudicated that claim reasonably under § 2254(d). Pet. App. 12a.
In analyzing whether the Arkansas Supreme Court adjudicated Roberts’s Atkins claim by deciding his state-law intellectual-disability claim, the Eighth Circuit
explained that Atkins remitted to States “ ‘the task of developing appropriate ways to
enforce’ the constitutional restriction on executing the intellectually disabled.” Pet.
App. 9a (quoting Hall v. Florida, 572 U.S. 701, 719 (2014)). Arkansas’s intellectualdisability statute fulfilled that task by defining intellectual disability in a way that
“conform[ed] to the clinical definitions,” and the “Arkansas Supreme Court has con-
9
sistently construed its state’s statutory right to be concurrent with the federal constitutional right established in Atkins.” Id. (quoting Hall, 572 U.S. at 719, and Sasser,
735 F.3d at 842). Accordingly, the Eighth Circuit held that by adjudicating Roberts’s
intellectual-disability claim the Arkansas Supreme Court had “already decided the
merits of Roberts’s” Atkins claim in that 2003 decision. Pet. App. 11a. In reaching
that conclusion, it agreed with the Fourth Circuit approach in a similar case, Conaway v. Polk, 453 F.3d 567 (4th Cir. 2006), which held (shortly after Atkins) that adjudicating a pre-Atkins state-law intellectual-disability claim “constituted an adjudication of the Atkins claim” because deciding the former “decided ‘the dispositive issue
in the Atkins claim.’ ” Id. (quoting Conaway, 453 F.3d at 592).
Because the Arkansas Supreme Court necessarily rejected Roberts’s Atkins
claim by rejecting his underlying intellectual-disability claim, the Eighth Circuit explained that AEDPA deference applied. Pet. App. 12a. Thus, under AEDPA, it could
only grant relief if the Arkansas Supreme Court’s adjudication of that claim unreasonably applied clearly established law or “was based on an unreasonable determination of the facts.” Id. (quoting 28 U.S.C. § 2254(d)(2)). Primarily viewing the question as a factual one, it found that “[a]mple proof supports the reasonableness of the
Arkansas Supreme Court’s rejection of Roberts’s intellectual disability claim.” Id.
Most importantly, it noted that Roberts’s 76 IQ score, “[e]ven accounting for the
standard error of measurement of plus-or-minus five IQ points,” was above the “recognized . . . threshold of 70 IQ” for intellectual disability. Id. And even if Roberts
10
had shown sufficient evidence of subaverage intellectual functioning to reach the issue of adaptive deficits, the court noted the testimony at trial that “Roberts’s ‘major
life activities’ were not affected by his intelligence level,” given his educational attainment, work history, and 10-year marriage. Id.
The Eighth Circuit denied Roberts’s petition for rehearing without dissent.
Pet. App. 99a.
REASONS FOR DENYING THE PETITION
The Court should deny the petition. The Eighth Circuit’s decision does not
conflict with any of this Court’s or lower courts’ decisions; to the contrary, the only
other court to squarely address the question presented reached the same result the
Eighth Circuit did. And even if the question presented identified a true conflict, this
case presents a poor vehicle because Roberts’s Atkins claim would still fail under
§ 2254(e)(1). Furthermore, the decision below was correct, providing yet another reason the Court should deny the petition.
I.
THERE IS NO CONFLICT AMONG CIRCUITS OR WITH THIS COURT’S PRECEDENT
ON THE QUESTION PRESENTED.
A. The decision below does not conflict with decisions defining the term
“claim” under § 2254(d).
Roberts’s argument that the decision below creates a conflict with decisions
defining the term “claim” under § 2254(b) misunderstands the decision below and
overreads the decisions from this Court and other circuits. There is no conflict.
Section 2254(d) of AEDPA prohibits granting habeas relief “with respect to any
claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” “resulted in a decision that was contrary to” or unreasonably
11
applied clearly established federal law or “resulted in a decision that was based on
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The Eighth Circuit
held that provision applied to Roberts’s Atkins claim. It noted that “states have ‘the
task of developing appropriate ways to enforce’ the constitutional restriction on executing the intellectually disabled” and that “[t]he Arkansas Supreme Court has consistently construed its state statutory right to be concurrent with the federal constitutional right established in Atkins.” Pet. App. 9a (quoting Hall v. Florida, 572 U.S.
701, 719 (2014), and Sasser, 735 F.3d at 842)). It then concluded that, by deciding
Roberts was not intellectually disabled and thus was eligible for the death penalty
under Arkansas law, the Arkansas Supreme Court necessarily adjudicated Roberts’s
Atkins claim. Pet. App. 11a–12a.
Roberts says that decision conflicts with other courts of appeals’ decisions defining “claim” under § 2254(d). He first observes (Pet. 13) that this Court held that
the term “claim” in § 2244(b), which bars second or successive habeas applications
that raise new “claims,” referred to “an asserted federal basis for relief from a state
court’s judgment of conviction.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). Thus,
the Court held, “no ‘claim’ [wa]s presented” by a Rule 60(b) motion that only asserted
the district court misapplied the habeas statute of limitations, as the motion did not
raise “grounds for setting aside” the movant’s conviction. Id. at 533. Roberts next
observes that multiple courts of appeals, relying on Gonzalez, have held that the term
“claim” in § 2254(d) likewise refers to an asserted federal basis for relief from a state
conviction, and that state-court decisions on matters other than such bases for relief
12
do not receive deference under § 2254(d)—though they may receive deference under
other provisions of AEDPA. Pet. 14–15; see, e.g., Kirkpatrick v. Chappell, 950 F.3d
1118, 1131–32 (9th Cir. 2020) (holding a state court’s determination that a petitioner
voluntarily waived state habeas was entitled to a presumption of correctness under
§ 2254(e), but did not adjudicate a “claim” under § 2254(d) because the petitioner’s
argument to the contrary only went to exhaustion, not relief from his conviction).
These initial observations are uncontroversial, and Roberts appears to be correct that
every court to consider the question has held Gonzalez’s definition of “claim” applies
to that term’s use in § 2254(d). Pet. 15.
However, in arguing the decision below conflicts with the definition of “claim”
in these other cases, Roberts assumes a particular reading of the definition that none
of the decisions he cites adopted, or had occasion to consider. On his view, a claim is
not an asserted federal basis for relief unless the petitioner made a “federal argument” (Pet. 12, 16) that cited federal law. However, if asserting a federal basis for
relief includes making state-law claims that are identical to federal ones, there is no
inconsistency between the decision below and Gonzalez’s definition of claim. As it
turns out, none of the decisions Roberts relies on reject that understanding of Gonzalez. And the courts that have considered whether presenting a state-law claim that
is identical to a federal one presents a federal claim have uniformly held that it does.
Accordingly, there is no conflict.
Courts have widely applied Gonzalez’s definition of “claim” as an asserted federal basis for relief to § 2254(d). But courts have not addressed what the “federal”
13
part of that definition means. Instead, courts have applied the definition either to
distinguish procedural arguments from substantive bases for relief or to decide
whether a claim was new or old. In Gonzalez itself, the question was whether a Rule
60(b) motion attacking the application of the federal habeas statute of limitations
asserted a “claim.” See Gonzalez, 545 U.S. at 533. That contention was obviously
federal, but this Court held it was not a “claim” because it was not a basis for relief
from the conviction. Two of the four lower-court decisions Roberts cites (Pet. 14–15)
applying Gonzalez’s definition of “claim” to § 2254(d) similarly turned on the basisfor-relief component of the definition. In Kearse v. Secretary, Florida Department of
Corrections, 669 F.3d 1197 (11th Cir. 2011) (per curiam), the Eleventh Circuit held
that a state court’s finding that a postconviction motion was filed without a necessary
verification document was “a finding of fact—not ‘adjudication of [a] claim’ under
§ 2254(d)” because, as in Gonzalez, the determination went only to timeliness, not to
a substantive basis for relief. Id. at 1199. Similarly, in Kirkpatrick the Ninth Circuit
held that a state court’s finding that a petitioner knowingly waived state habeas did
not adjudicate a claim under § 2254(d) because “conclud[ing] that his waiver was invalid” would not mean he was “entitled to relief from his state court conviction,” but
only defeat the state’s exhaustion defense. 950 F.3d at 1131. Contrary to Roberts’s
suggestion (Pet. 14), neither decision turned on or even made note of the fact that the
findings at issue were made under state law, rather than federal.
The other two decisions Roberts cites that have applied Gonzalez’s definition
of claim to § 2254(d) also did not address whether state-law claims can be “claims”
14
under § 2254(d). They applied the Gonzalez definition to decide whether a claim in
habeas was the same as one a state court adjudicated or a new claim, not whether
the state court adjudicated a “claim” in the first place. In Pouncy v. Palmer, the Sixth
Circuit held that a new argument the petitioner made in support of his claim in state
court that his waiver of counsel was not knowing and voluntary did not amount to a
new claim, as it supported the same “basis for relief ” that the state court considered.
846 F.3d 144, 159 (6th Cir. 2017). And in Nelson v. Lumpkin, the Fifth Circuit held
that merely “point[ing] out more instances of trial counsel’s alleged deficient performance at sentencing” did not suffice to create a new claim that differed from the sentencing-phase ineffective-assistance claim the state courts adjudicated. 72 F.4th 649,
659 (5th Cir. 2023). Both cases took it as a given that the state court had adjudicated
a “claim” under § 2254(d), and neither turned on or considered a distinction between
state and federal claims.
Unable to point to any holding that claims under state law can never be
“claims” under § 2254(d), Roberts appears to suggest that the Gonzalez definition of
“claim” itself excludes state-law claims, no matter how closely related to federal
claims. But merely saying that § 2254(d) applies only to asserted federal bases for
relief does not do that, as courts’ understanding of the parallel exhaustion rule illustrates.
As Roberts himself argues (Pet. 25–26), the question of whether a state court
adjudicated a prisoner’s habeas claims is the flipside of the requirement that prisoners must present those claims to the state courts. Under AEDPA as interpreted by
15
this Court, prisoners must not only exhaust their state-court remedies, see 28 U.S.C.
§ 2254(b)(1), but “ ‘fairly presen[t]’ federal claims to the state courts” and “alert[ ]”
them “to the fact that [they] are asserting claims under the United States Constitution,” Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam) (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971)). If Roberts were right about the meaning of Gonzalez’s definition of claim, one would expect the identical exhaustion rule to have been
read to preclude prisoners from satisfying this exhaustion requirement by presenting
state-law parallels to federal claims.
But that is not the case: the requirement that prisoners present federal claims
to state courts has not been read to necessarily preclude prisoners from exhausting
those claims by presenting state-law claims governed by identical standards. Twice
this Court has reserved whether presenting such a claim “would necessarily ‘fairly
present’ the corresponding federal claim.” Baldwin v. Reese, 541 U.S. 27, 33 (2004)
(exercising discretion to deem the question waived because of its “complex nature”);
Howell v. Mississippi, 543 U.S. 440, 444 (2005) (per curiam) (“[a]ssuming, without
deciding, that identical standards might overcome a petitioner’s failure to identify his
claim as federal” for purposes of this Court’s appellate jurisdiction over state-court
judgments but holding the relevant standards were not identical).
Further, in decisions both before and after those reservations, every court of
appeals to consider the question has held that “[w]here state and federal claims share
the same legal standard,” a prisoner “present[s] his federal claim” by “presenting his
state claim.” Jackson v. Edwards, 404 F.3d 612, 620–21 (2d Cir. 2005); see Sanders
16
v. Ryder, 342 F.3d 991, 1000 (9th Cir. 2003); Scarpa v. Dubois, 38 F.3d 1, 7 (1st Cir.
1994); Evans v. Ct. of Common Pleas, 959 F.2d 1227, 1231–33 (3d Cir. 1992); Falconer
v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990). And the lack of a split on that question
is further confirmed by the fact that, since reserving that question, this Court has
denied certiorari to decide it. Lawler v. Nara, 552 U.S. 1309 (2008) (No. 07-733); see
Pet. for Certiorari 13–14, Lawler (alleging a split with one circuit); Br. in Opp. 15–
16, Lawler (rebutting it). Whether these decisions are correct in holding that presenting an identical state claim exhausts a federal one outside of the unique Atkins
context—a question on which the State takes no position—their unanimity confirms
both the absence of a split here, and that merely defining “claim” as an asserted federal basis for relief does not resolve whether an identical state-law claim is a “claim”
under § 2254(d).
Not only is there no split on whether a state court that adjudicates a state-law
claim that is identical to a federal claim has adjudicated a federal claim, there is no
split on the narrower question of whether a state court that adjudicated a claim that
a prisoner was intellectually disabled and ineligible for the death penalty under state
law has adjudicated an Atkins claim. As Roberts notes (Pet. 15), in holding that a
state court that has adjudicated such a claim has necessarily adjudicated an Atkins
claim, the Eighth Circuit followed the Fourth Circuit. That court reasoned that because Atkins “left to the various states ‘the task of developing appropriate ways to
enforce [its rule],’ ” Conaway, 453 F.3d at 591 (quoting Atkins, 536 U.S. at 317), a
decision that a prisoner was not intellectually disabled under state law “decid[ed] the
17
dispositive issue in the Atkins claim,” id. at 592. That is, adjudicating a state-law
intellectual-disability claim necessarily adjudicates an Atkins claim not only because
the two are governed by identical standards, but because the state-law claim is the
means of enforcing Atkins. Ultimately Roberts does not claim that any court has held
otherwise; he merely criticizes Conaway and the decision below on the merits. Pet.
16–17. The Eighth Circuit’s decision thus creates no conflict with decisions defining
the term “claim” under § 2254(d).
B. The decision below does not conflict with this Court’s precedent that
state-court decisions are reviewed for reasonableness under
§ 2254(d)(1) based on federal law that existed at the time of their issuance.
Contrary to Roberts’s arguments, the Eighth Circuit decision likewise creates
no conflict with this Court’s decisions that under § 2254(d)(1), the “clearly established
Federal law” against which state-court decisions are reviewed is only law in existence
at the time of those decisions. Pet. 17–20. Roberts claims the decision below conflicts
with those decisions because the Eighth Circuit applied Atkins to review a pre-Atkins
decision. That claim does not merit review for three reasons.
First, the Eighth Circuit did not defer to the trial court’s pre-Atkins decision;
it deferred to the Arkansas Supreme Court decision affirming the trial court, which
postdated Atkins by a year. Second, if the Eighth Circuit erred the only party that
was harmed was the State. If Roberts were right that the Eighth Circuit should not
have applied Atkins, what would follow—as Roberts himself argues—is that “nothing
the state court did could possibly be an unreasonable application” of federal law, as
18
prior to Atkins this Court had not recognized a right against executing the intellectually disabled. Pet. 19 (quoting Kent S. Scheidegger, Habeas Corpus, Relitigation, and
the Legislative Power, 98 Colum. L. Rev. 888, 949 (1998)). It would not mean the
Eighth Circuit erred in applying § 2254(d)(1) in the first place. Third, even if the
Eighth Circuit had applied Atkins to review a pre-Atkins decision, that would not still
conflict with this Court’s decisions on § 2254(d)(1). That is because this Court has
reserved whether § 2254(d)(1) bars reviewing state-court decisions under subsequent
decisions that are retroactive under Teague, which Atkins is.
1. Roberts claims that the Eighth Circuit applied § 2254(d)(1) “to examine how
a ruling that ‘occurred prior to the Atkins decision’ comported with Atkins.” Pet. 19
(quoting Pet. App. 11a). That is incorrect. To be sure, the Eighth Circuit did note
that the trial court’s finding on intellectual disability predated Atkins. Pet. App. 11a.
But it ultimately assessed “the reasonableness of the Arkansas Supreme Court’s rejection of Roberts’s intellectual disability claim,” Pet. App. 12a—consistent with
§ 2254(d)(1)’s requirement that courts “assess the reasonableness of the ‘last statecourt adjudication on the merits of ’ ” a claim, Brown v. Davenport, 596 U.S. 118, 141
(2022) (quoting Greene v. Fisher, 565 U.S. 34, 40 (2011)). As the Eighth Circuit noted,
Pet. App. 5a, that decision was rendered in April 2003, one year after Atkins was
decided, Pet. App. 124a.
Nor does it matter that the trial court’s decision predated Atkins. As the Arkansas Supreme Court explained in a 2004 decision, it applied Atkins to review preAtkins intellectual-disability findings under state law based on its understanding
19
that “Atkins merely reaffirmed [Arkansas’s] preexisting prohibition against executing” the intellectually disabled. Anderson, 163 S.W.3d at 354–55. So there is no
inconsistency between the Eighth Circuit’s applying Atkins to review whether the
Arkansas Supreme Court’s post-Atkins decision was reasonable and this Court’s precedent that § 2254(d)(1) limits review of state-court decisions to the existing law at the
time they were rendered.
2. Even had the Eighth Circuit erred in reviewing the Arkansas Supreme
Court’s decision under Atkins, that is not an error of which Roberts can complain. As
Roberts himself explains (Pet. 18–19), when a decision of this Court postdates a statecourt decision, habeas courts simply do not apply that decision in reviewing the state
court’s decision under § 2254(d)(1); they do not abstain from reviewing the state
court’s decision under § 2254(d)(1) altogether. For example, in Shoop v. Hill, 586 U.S.
45 (2019) (per curiam), a state court rejected an Atkins claim when “Atkins itself was
on the books,” but not this Court’s subsequent guidance regarding the federal right.
Id. at 49. This Court held that the federal appellate court erred by relying on a decision that “came years after the decisions of the [state] courts,” concluding that courts
should apply only “legal rules that were clearly established in the decisions of this
Court at the relevant time” when reviewing the reasonableness of a state-court decision. Id. at 50, 52. Under that rule, if the relevant state-court decision here truly
predated Atkins, the Eighth Circuit would review it under this Court’s pre-Atkins
decisions. But those decisions held that the Eighth Amendment did not prohibit executing the intellectually disabled. See Penry v. Lynaugh, 492 U.S. 302, 340 (1989).
20
And under that rule, “nothing the state court did could possibly be an unreasonable
application” of the law, Pet. 19 (quoting Scheidegger, supra, at 949), and Roberts’s
Atkins claim would fail automatically.
Roberts suggests a different result should occur here because Atkins recognized “an entirely new” federal right. Pet. 19. He reasons that § 2254(d)(1) cannot
apply at all because the fact that habeas courts may not apply Atkins to state-court
decisions predating it shows the state court must not have “adjudicate[d] a violation
of a federal right that did not exist.” Id. But that does not follow: a state court can
adjudicate whether a defendant’s federal rights have been violated before this Court
issues a decision vindicating those rights. That is what happened in Atkins itself;
there, Atkins claimed in state courts that executing the intellectually disabled violated the Eighth Amendment before obtaining a favorable decision from this Court
on direct review. See Atkins, 536 U.S. at 310. Had the Virginia Supreme Court’s
decision in Atkins been reviewed in habeas rather than on direct review, a habeas
court would have concluded that it reasonably applied existing law.
3. Finally, even if the Eighth Circuit had applied Atkins to review a pre-Atkins
decision, and even if correcting that supposed error could benefit Roberts, this Court’s
precedents do not settle whether § 2254(d)(1) would bar habeas courts from applying
Atkins to a truly pre-Atkins decision. For while § 2254(d)(1) generally “requires federal courts . . . to measure state-court decisions ‘against this Court’s precedents as of
the time the state court renders its decision,’ ” Greene, 565 U.S. at 38 (citation modified) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)), this Court has reserved
21
“[w]hether § 2254(d)(1) would bar a federal habeas petitioner from relying on a decision that came after the last state-court adjudication on the merits, but fell within
one of the exceptions recognized in Teague,” id. at 39 n.*. Atkins, which prohibited
the death penalty for a class of offenders, is unquestionably a substantive rule that
is retroactive under Teague’s first exception, and thus falls within the question this
Court reserved in Greene. See Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002)
(Jones, J.); Penry, 492 U.S. at 330 (“[I]f we held . . . that the Eighth Amendment
prohibits the execution of mentally retarded persons . . . such a rule would fall under
the first exception to [Teague’s] general rule of non-retroactivity.”). So there is no
conflict between even Roberts’s misreading of the decision below and this Court’s
§ 2254(d)(1) precedent. 2
C. The Eighth Circuit’s interpretive methodology does not conflict with
decisions of this Court.
In a passage relying heavily on quotations from this Court’s habeas opinions,
the Eighth Circuit reasoned that reading § 2254(d)(1) to apply to the state-court adjudications of Roberts’s intellectual disability, even if under state law, would be “true
to AEDPA’s intent” of prioritizing state-court adjudications. Pet. App. 11a (citing
Shoop v. Twyford, 596 U.S. 811, 820 (2022); Shinn v. Ramirez, 596 U.S. 366, 390
2 Even if all this were wrong, the Eighth Circuit’s application of § 2254(d)(1) did not affect its decision.
The Eighth Circuit held that the Arkansas Supreme Court’s decision neither unreasonably applied
clearly established law under § 2254(d)(1), nor was “based on an unreasonable determination of the
facts” under § 2254(d)(2), Pet. App. 12a, and it principally viewed the question as factual, see id. (“Ample proof supports the reasonableness of the Arkansas Supreme Court’s rejection of Roberts’s . . .
claim.”). Even if reviewing the state-court decision through the lens of § 2254(d)(1) were error, the
Eighth Circuit still could ask whether the state courts reasonably adjudicated the underlying factual
question of intellectual disability under § 2254(d)(2), and deference—at least as far as Roberts’s
§ 2254(d)(2) argument goes—would still be appropriate.
22
(2022); Harrington v. Richter, 562 U.S. 86, 103–04 (2011)). Roberts claims that this
“appeal to AEDPA’s intent” (Pet. 20) conflicts with this Court’s approach to statutory
interpretation in non-habeas cases (Pet. 21), though he concedes that “this Court’s
AEDPA precedents . . . have referenced Congress’s purposes” (Pet. 22).
Setting aside that this Court reviews only conflicts about the meanings of particular statutes, not the methodology courts use to interpret statutes generally, 3 there
is unsurprisingly no conflict between a passage of the Eighth Circuit’s opinion that
largely relied on this Court’s decisions and this Court’s decisions. Since this Court’s
first cases interpreting AEDPA, this Court has relied on AEDPA’s purposes to choose
between textually permissible interpretations. See Williams v. Taylor, 529 U.S. 362,
404 (2000) (reasoning that AEDPA should be read to depart from “the prior law of
habeas corpus,” though it could be read consistently with it, because legislative history showed “Congress wished to bring change to the field”); Harrington, 562 U.S. at
103 (appealing to Congress’s “reasons” for enacting § 2254(d)(1) and what it was “designed” to do in reading “unreasonable application” to include only “error beyond any
possibility for fairminded disagreement”); Cullen, 563 U.S. at 182 (rejecting a reading
of one AEDPA provision that would have been “contrary to th[e] purpose” of a different one, and to “Congress’ intent” in enacting “the statute as a whole”); cf. Shinn, 596
U.S. at 377 (acknowledging that this Court has “prescribed several” “limits on habeas
relief ” beyond those provided by AEDPA’s text).
3 Cf. Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes,
54 Wm. & Mary L. Rev. 753, 757 (2013) (noting that the idea of stare decisis for rules of interpretation
“has been rejected by all federal courts”).
23
Further, even if the Eighth Circuit’s method of interpreting AEDPA diverged
from this Court’s, there still would be no conflict unless the Eighth Circuit would have
reached a different result under a more textual method. Roberts does not argue that
it would have, and it is difficult to see how he could have given that every court of
appeals to consider the question has held that adjudicating a state-law claim judged
by identical standards to a federal claim adjudicates the federal claim. Finally, the
suggestion (Pet. 24) that this Court should hold Roberts’s petition pending Bowe v.
United States, No. 24-5438, a case concerning whether the second-or-successive bar
of 28 U.S.C. § 2244(b)(1) applies to motions to vacate federal convictions under § 2255,
is perplexing. Whether or not this Court holds that the lower court in that case departed from AEDPA’s text, this Court does not GVR decisions of lower courts on one
statute based merely on methodological pronouncements on how to read a different one. 4
II. THIS CASE IS A POOR VEHICLE.
Even if there were a conflict on the question presented, this case would be an
exceptionally poor vehicle to resolve it. That is for at least two reasons. First, Roberts’s Atkins claim would necessarily fail even if § 2254(d) did not apply, particularly
given that the state courts’ factual finding that Roberts was not intellectually disabled would still receive deference under § 2254(e)(1). Second, if Roberts were correct
4 The several GVRs in light of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), are the
exception that proves the rule, as Chevron was the rare case that was treated as a methodological
precedent, see Gluck, supra, at 798, as evidenced by Loper Bright’s formal overruling of it. By contrast,
this Court does not “overrule” its cases that relied on an interpretive method that the Court later rejects.
24
that the Arkansas Supreme Court’s review of his state-law intellectual-disability
claim did not adjudicate his Atkins claim, that would mean he procedurally defaulted
his Atkins claim by failing to separately present it on direct appeal.
1. Roberts’s suggestion (Pet. 28) that his Atkins claim would prevail if the
Eighth Circuit had not applied AEDPA deference under § 2254(d) is wrong. After all,
there is still AEDPA deference under § 2254(e).
Section 2254(e) presumes “a determination of a factual issue made by a State
court” is correct subject only to rebuttal by “clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). That provision still applies to “claims that were not adjudicated on the
merits in state court.” Cullen, 563 U.S. at 186. Indeed, the very lower-court decisions
on which Roberts relies to claim a conflict over § 2254(d)’s applicability hold that habeas courts owe deference under § 2254(e)(1) even when § 2254(d) does not apply. See
Kirkpatrick, 950 F.3d at 1131 (§ 2254(e)(1) “appears to apply to all factual determinations made by state courts.”); Kearse, 669 F.3d at 1198 n.1 (“§ 2254(e)(1) provides
the appropriate standard here.”). So the state courts’ determination that Roberts was
not intellectually disabled as a factual matter would still receive deference under
§ 2254(e)(1) even were the state courts deemed not to have adjudicated Roberts’s Atkins claim under § 2254(d). 5 And as the district court found, “under § 2254(e)(1),
Roberts has not rebutted the presumption of factual correctness in [the Arkansas Supreme Court’s 2003 decision] by clear and convincing evidence.” Pet. App. 81a.
5 The question of whether a defendant is intellectually disabled is principally one of fact. See Brumfield
v. Cain, 576 U.S. 305, 312–13 (2015) (applying § 2254(d)(2), not § 2254(d)(1), to decide whether a state
court’s adjudication of an Atkins claim was reasonable).
25
Although “the precise relationship between § 2254(d)(2) and § 2254(e)(1)” remains unsettled, Burt v. Titlow, 571 U.S. 12, 15 (2013), this Court has never suggested that § 2254(e)(1) is any less deferential than § 2254(d)(2). Instead, it has either suggested that the two standards merge, see Miller-El v. Dretke, 545 U.S. 231,
240 (2005) (applying § 2254(e)(1)’s standard to assess reasonableness under
§ 2254(d)(2)), or that § 2254(e)(1) is “arguably more deferential” than § 2254(d)(2),
Wood v. Allen, 558 U.S. 290, 301 (2010) (emphasis added). But even if § 2254(e)(1)
were slightly less deferential, this is not the case where any difference would matter.
Indeed, even on de novo review—which Roberts mistakenly suggests is the standard
if § 2254(d) does not apply, Pet. 28—Roberts’s Atkins claim would fail.
That is for a simple reason: Roberts’s only IQ score was a 76. Pet. App 12a.
“Even accounting for the standard error of measurement of plus-or-minus 5 IQ
points,” his IQ is, “at worst, 71, which is still above the range for intellectual disability.” Id. And though there is a split among lower courts on whether a single erroradjusted score of 70 or less can support an Atkins claim even if a defendant has multiple higher scores, see Hamm v. Smith, No. 24-872, 2025 WL 1603602 (June 6, 2025)
(granting review on this question), there is no conflict on whether a defendant whose
only scores are above that level can assert an Atkins claim. See Moore, 581 U.S. at
14 (requiring courts to “move on to consider” adaptive deficits “[b]ecause the lower
end of [an error-adjusted] score range falls at or below 70”); Hall, 572 U.S. at 723
(requiring courts to consider “additional evidence of intellectual disability” only
“when a defendant’s IQ test score falls within the test’s . . . margin of error”); Atkins,
26
536 U.S. at 309 n.5 (noting “an IQ between 70 and 75 or lower . . . is typically considered the cutoff IQ score for the intellectual function prong” of intellectual disability).
So even under de novo review, Roberts’s Atkins claim would fail.
2. Even if Roberts was right that the state courts never adjudicated his Atkins
claim, his Atkins claim would still fail because it would be procedurally defaulted.
After all, Roberts does not suggest that the Arkansas courts overlooked his Atkins
claim; his theory is that the Arkansas courts did not adjudicate his Atkins claim because it was not presented to them. On his view, “[u]nder no fair reading of this
Court’s exhaustion jurisprudence did [he] present an Eighth Amendment challenge
prior to his trial or during the course of the Arkansas Supreme Court’s mandatory
review of his conviction or sentence.” Pet. 26.
If that were correct, it would raise an obvious question: why is the claim not
defaulted? 6 Roberts apparently would say that it is because “the rule announced in
Atkins did not exist” at the time. Pet. 27. But even if that were relevant, which is
doubtful at best, 7 it is not true. That is because Atkins had been on the books for a
year when the Arkansas Supreme Court reviewed his conviction and sentence. And
the Arkansas Supreme Court specifically entertained Atkins claims at the time, even
6 The question might seem to be one of non-exhaustion, but “if state-court remedies are no longer
available,” which on Roberts’s view they would not be, “those remedies are technically exhausted.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). This technical exhaustion, however, “does not automatically
entitle the habeas petitioner to litigate his or her claims in federal court.” Id. Instead, “the procedural
bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence,” and will generally “prevent[ ] federal habeas corpus review of the defaulted
claim.” Gray v. Netherland, 518 U.S 152, 162 (1996).
7 See, e.g., Smith v. Murray, 477 U.S. 527, 536–37 (1986) (holding that a claim was defaulted, even
though Supreme Court precedent did not yet support it at the time, because “various forms [of it] had
been percolating in the lower courts” at the time).
27
when only state-law intellectual-disability claims had been raised at trial. It explained that because “Atkins merely reaffirmed [the] State’s preexisting prohibition
against executing” the intellectually disabled, raising the latter was “sufficient . . . to
preserve” the former. Anderson, 163 S.W.3d at 354. So if Roberts were correct that
his claim that he was intellectually disabled and ineligible for the death penalty under state law did not “present an Eighth Amendment challenge,” Pet. 26, it would
mean he defaulted that challenge by failing to present it when he could have on direct appeal.
Moreover, his subsequent attempt to raise Atkins in state postconviction proceedings would not avoid a default. That is because Arkansas courts do not allow
defendants to raise claims in postconviction proceedings “that could have been raised
on direct appeal.” Whiteside v. State, 684 S.W.3d 588, 592 (Ark. 2024) (citing Howard
v. State, 238 S.W.3d 24, 32 (Ark. 2006)). Thus, Roberts’s failure to raise his Atkins
claim on direct appeal—were he correct that he failed to do so—would “provide[ ] an
independent and adequate state-law ground for the . . . sentence,” and it would “prevent[ ] federal habeas review” of his defaulted Atkins claim. Gray, 518 U.S. at 162.
These vehicle problems accordingly provide yet more reason for this Court to deny
the petition.
III. THE DECISION BELOW IS CORRECT.
On top of the other reasons to deny review, the decision below is correct. Every
court of appeals to decide the question has held that adjudicating an identical statelaw parallel to a federal claim adjudicates the federal claim. But the Eighth Circuit
28
did not even have to hold that much to recognize that adjudicating a state-law intellectual-disability claim necessarily adjudicates an Atkins claim. Instead, it only
needed to recognize that under Atkins, state statutes prohibiting the execution of the
intellectually disabled were the means of enforcing the Atkins right—especially
shortly after Atkins was decided. In other words, to adjudicate a claim under one of
those statutes after Atkins was not just to adjudicate a claim parallel to an Atkins
claim, or the elements of an Atkins claim, but the Atkins claim itself.
When this Court recognized an Eighth Amendment right against executing the
intellectually disabled in Atkins, it did not say that the Eighth Amendment forbade
executing the intellectually disabled as an original matter. Nor did it say that in the
Court’s own judgment executing such offenders had become unconstitutionally disproportionate. Instead, it said that the large number of States enacting bans on executing the intellectually disabled, including Arkansas’s, which it cited, Atkins, 536
U.S. at 314, showed that “a national consensus ha[d] developed against it,” id. at 316,
making the death penalty excessive for those offenders in light of “evolving standards
of decency,” id. at 321. Thus, state bans did not merely presage the Court’s recognition of a parallel federal right; they constituted that right, forming “the content of an
evolving standard of decency” that Atkins merely recognized, id. at 322 (Rehnquist,
C.J., dissenting) (describing the majority’s view).
Accordingly, in defining that right, “Atkins gave no comprehensive definition
of [intellectual disability] for Eighth Amendment purposes”—and thus the parameters of the Atkins right—beyond those the States had given it. Shoop, 586 U.S. at 49;
29
see Bobby v. Bies, 556 U.S. 825, 831 (2009) (“Our opinion did not provide definitive
procedural or substantive guides for determining when a person . . . ‘will be so impaired as to fall within Atkins’ compass.’ ” (alteration omitted) (quoting Atkins, 536
U.S. at 317))). Acknowledging that “[t]he statutory definitions of [intellectual disability] are not identical,” Atkins, 536 U.S. at 317 n.22, the Court nevertheless “le[ft]
to the States the task of developing appropriate ways to enforce the constitutional
restriction” on executing the intellectually disabled, id. at 317 (alterations omitted)
(quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
Given the unique role of state law in enforcing the Atkins right, a state-law
intellectual-disability claim in the years after Atkins was decided was not merely parallel or even identical to an Atkins claim; it was the way Atkins claims were made. A
defendant could not make an Atkins claim without asserting he was intellectually
disabled as state law had defined the condition; conversely, in claiming he was intellectually disabled and ineligible for the death penalty under state law, he necessarily
made an Atkins claim. Citing Atkins added nothing more. See Shoop, 586 U.S. at 49
(explaining that until this Court’s 2014 decision in Hall, the content of the Atkins
right was determined by state law). And that was particularly true in Arkansas,
where the courts “review[ed] [Atkins] claims under [Arkansas’s] statute” and did not
even require formal preservation of an Atkins claim as distinct from a state-law intellectual-disability claim at trial on the view that “Atkins merely reaffirmed [Arkansas’s] preexisting prohibition.” Anderson, 163 S.W.3d at 354–55.
30
To be sure, over a decade after Roberts’s trial and direct appeal, this Court
began to give substantive content to the Atkins right beyond that which States gave
it, ultimately striking down several state definitions of intellectual disability that this
Court deemed too stringent. See Moore, 581 U.S. at 13–21; Hall, 572 U.S. at 721–23.
So it is possible today for a state-law intellectual-disability claim and an Atkins claim
to diverge. For example, adjudicating a claim that a defendant was intellectually
disabled as defined by state law would not adjudicate a claim that the definition state
law provides is unconstitutional. But no claim of that sort is presented here; Roberts
has never challenged Arkansas’s definition of intellectual disability, which mirrors
the clinical definition. Compare Ark. Code Ann. § 5-4-618(a)(1) (defining intellectual
disability as significantly below-average intellectual functioning accompanied by significant adaptive deficits that manifest no later than 18 years of age) with Moore, 581
U.S. at 7 (reciting an identical “generally accepted, uncontroversial intellectual-disability diagnostic definition”). Instead, he has claimed only that he satisfies it. See
Appellant’s Br. 45 (8th Cir. Mar. 3, 2023) (“Analysis of whether Roberts is intellectually disabled begins with the state’s definition of the condition.”). Accordingly, by
deciding whether Roberts was ineligible for the death penalty as intellectually disabled under Arkansas’s definition of intellectual disability, the Arkansas Supreme
Court decided Roberts’s Atkins claim. Review is not warranted.
CONCLUSION
The Court should deny the petition.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.