Winston v. Kelly, 784 F. Supp. 2d 623

Winston was convicted in 2003 of three counts of capital murder and sentenced to death in Virginia.
He challenged his conviction and death sentences in federal habeas, raising Atkins-based mental retardation claims and ineffective assistance claims related to those claims.
The district court conducted an evidentiary hearing and admitted new evidence, including an IQ score of 66 from a 1997 evaluation.
Trial counsel did not review Winston's 1997 mild retardation records and did not pursue an Atkins defense at sentencing, relying instead on an expert.
Virginia law defines mental retardation as adaptive deficits plus an IQ two standard deviations below the mean, typically IQ 70 or below, with the burden on the defendant to prove by preponderance.
The Fourth Circuit remanded, directing de novo review of the Atkins-related ineffective assistance claim with respect to new evidence and to consider deference under 2254(e)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did counsel's failure to review the 1997 mild retardation records amount to deficient performance?	Winston	Respondent	Yes; performance deficient because counsel failed to read readily available records indicating mild retardation.
Was there a reasonable probability the outcome would differ but for counsel's failures?	Winston	Respondent	Yes; but for deficient performance, there is a reasonable probability of a different result in sentencing.
Whether Winston met Virginia’s mental retardation criteria before age 18 under Atkins for purposes of execution prohibition.	Winston	Warden	Court did not decide final MR status but held counsel's failure undermined the proceedings, warranting a retrial on the MR issue.
Should the court grant habeas relief and remand for MR determination or resentencing without death?	Winston	Respondent	Yes; grant habeas relief and require Virginia to conduct a trial on MR or resentence without death.

Atkins v. Virginia, 536 U.S. 304 (U.S. 2002) (Eighth Amendment bars execution of mentally retarded)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard; reasonableness and prejudice prongs)
Harrington v. Richter, 131 S. Ct. 770 (U.S. 2011) (prejudice inquiry; substantial likelihood standard clarified)
Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (duty to investigate; impact on Strickland analysis)
Bobby v. Van Hook, 130 S. Ct. 13 (U.S. 2009) (defining reasonable investigation and strategic choices)
Johnson v. Commonwealth, 267 Va. 53, 591 S.E.2d 47 (2004) (Virginia standard for IQ as indicator of mental retardation; age considerations)