Smith v. Schriro

ordinarily preceding immunity only of the con- derive from “the delineation specific Here, clarify to further language. express language” tractual most or “such over- waiver, parties the limitation of whelming implications from the text as stated, is, only injunctive, specific “that any leave room for no other reason- [will] including enforcement of a performance, construction,” able there can be no waiver Compact requiring pay- this provision of Jordan, found here. Edelman v. 415 U.S. money to one or another of the ment of 651, 673, 1347, 94 S.Ct. 39 L.Ed.2d 662 declaratory relief is parties, or (1974) (citation quotation and internal added). (emphasis The use of sought....” omitted) (alteration original). marks “only” routinely defined to the word express language sovereign The of the im- alone, solely exclusively. The mean munity does not include suits for restitu- explicitly is therefore applicability waiver’s tion, fact, and in explicitly excludes suits to the circumstances listed. confined monetary damages for outside the context infers a waiver of sover- majority The I specific performance. find no other immunity restitution from a canon eign text, implications certainly from the in- interpretation prefers that of contract overwhelming implications, not of sover- not render other terpretations do eign immunity waiver. inexplica- “superfluous,

terms useless or reading language It

ble.” finds money to one or

“including payment parties” allowing as mone-

another

tary payment only specif- the context of

ic would render performance clause

superfluous Compact’s pay- because the provisions only run from Pauma to ment SMITH, Douglas Robert Petitioner- reading disregards the State. But this Appellant, of the clause. The clause explicit text parties “spe- makes clear intended monetary to include performance” cific Arizona, RYAN, Warden, L. Charles payments only Compact requires when the Corrections, Department of language parties’ is the clear them. This Respondent-Appellee. Massachusetts, recognition of Bowen v. 96-99025, 96-99026, 487 U.S. 101 L.Ed.2d Nos. 10-99011. (1988), monetary held that a which Appeals, Court of United States specific perform- can constitute payment Ninth Circuit. requires ance when a contractual clause fact that waiver payment. such The March 2015. Argued and Submitted payment specific performance includes Filed Feb. 2016. superfluous, not render it provisions does As Corrected Feb. inexplicable simply useless or because particular obligations only run from those helpful

Pauma to the State. It would be of that kind of breach Pauma.

the event monetary damages here do awarded qualify injunctive, specific perform- declaratory

ance or relief. Because sovereign that waivers of

law demands Young (argued),

S. Jonathan Williamson P.C., Tucson, AR; Young, & E. Ralph Ellinwood, Ellinwood, Francis & Plowman LLP, Tucson, AR, Petitioner-Appel- for lant.

Jeffrey Sparks (argued), L. Assistant General, Attorney Capital Litigation Sec- tion, Brnovich, General, Attorney Mark Ellman, General, Robert E. Solicitor Jef- Zick, Counsel, frey A. Capital Litiga- Chief Section, Phoenix, AR, tion Respon- for dent-Appellee. SCHROEDER,

Before: MARY M. REINHARDT, STEPHEN CALLAHAN, M. CONSUELO Circuit Judges. REINHARDT; by Judge

Opinion SCHROEDER; by Judge Concurrence Special by Judge Concurrence REINHARDT; by Judge Dissent CALLAHAN.

OPINION REINHARDT, Judge:1 Circuit case, This to which the Antiterrorism Penalty Death Act of 1996 and Effective (AEDPA) returns to us apply, does following remand to the Arizona state Judge Judge opinion Judge Callahan opinion 1. Reinhardt’s is the neither Schroeder nor except joins. court II.C.2. in which Section court evidentiary- November 2007. The heard court to conduct an Atkins testimony Thompson, by Dr. Thomas a hearing trial hearing. After that the state neuropsychologist prescribing psy- claim, Atkins and the court denied Smith’s Smith, who chologist opined selected Appeal special Arizona denied Court very high probability there is a relief, Supreme and the action Arizona intellectually that Smith was disabled at petition Court denied Smith’s for review. time the crime was committed The court then found At district testimony 1980. also heard The court merit and kins claim without denied Martinez, Dr. Sergio psychologist from habeas petition corpus. for a writ of We State, who selected stated that intellectually now dis hold high degree probability there is Atkins, we abled under reverse.2 that Smith was not dis- parties abled nu- entered I. AND FACTUAL PROCEDURAL evidence, merous into including exhibits BACKGROUND3 deposition transcripts lay of twelve 1982, In Smith was convicted in Robert witnesses who described their observa- Arizona court of sexual kidnapping, state tions of a child or young Smith as assault, and murder and sentenced to adult. Stewart, Lambright death. v. 167 F.3d hearing, County the Pima Following the 477, (9th Cir.1999), reh’g granted, 479 va 27, 2008, Superior Court found on March cated, (9th rev’d, Cir.1999), 177 F.3d 901 en preclude Atkins did not Smith’s exe- banc, (9th Cir.1999). 191 F.3d 1181 On Appeals cution. The Arizona Court of de- 20, 2002, Supreme June Court decided special year, nied action relief later that 304, Virginia, 536 U.S. 122 Atkins v. S.Ct. Kearney, Smith v. 2 CA-SA No. 2008- 2242, (2002), holding 153 L.Ed.2d 335 0019, 2008 (Ariz.Ct.App. July WL 2721155 of intellectually execution disabled 11, 2008), Supreme and the Arizona Court constitutes “cruel criminals and unusual petition denied Smith’s for review. In punishment” prohibited by Eighth 2010, September we remanded this case Atkins, Amendment.4 Under if was Smith purpose the district court for the limited intellectually at the disabled time he com claim. considering Smith’s Atkins The trial, the crime or at the time mitted of his claim in district court denied the Decem- he may not be executed. We suspended 2012. timely appealed. ber Smith proceedings, sup federal habeas ordered plemental briefing and to the remanded II. ANALYSIS state court to determine whether Smith disabled and ineligi thus A. Jurisdiction and Standard of Re- ble for execution under Atkins. view County Superior Pima Court re- jurisdiction We have under 28 opened discovery two-day §§ and held a ev- U.S.C. 1291 and 2253. Sivak v. Hardi Cir.2011). son, (9th hearing 898, on identiary October 29 and 658 905 F.3d We claim, grant 4.Although prior parties opin- 2. we relief on the Because Atkins both the unnecessary we to reach find it Smith’s claim ions this case use the term "mental retar- dation,” ineffective assistance of counsel. employ "intellectually we the term Florida,-U.S.-, disabled.” v. See Hall lengthy procedural Because the factual and 1986, 1990, 188 L.Ed.2d 1007 history parties of this case is known to the (2014). only We "mental use retardation” prior opinions, forth in set we recount quoting employing when material that term. only portions directly those relevant issues discussed herein. fact, for purposes federal district court tion of we assume of this de novo the review § 28 U.S.C. denying opinion pre that such is the case.5 The decision Hill, v. petition. Alvarado habeas sumption of the correctness also does not (9th Cir.2001). 1066, 1068 F.3d apply if the factual determination is based on application constitutionally im filed his federal ha Because Smith legal principles. Lafferty v. permissible April to AEDPA’s petition prior beas Cook, (10th 949 F.2d 1551 n. 4 Cir. date, pre-AEDPA standards 1996 effective 1991). though filed govern our review even subsequent to AEDPA’s petitions amended Legal Governing B. Standard Deter- Sivak, at 905 date. See 658 F.3d effective mination Intellectual Disabili- pre-AEDPA standard of re (applying ty Arizona Law Under prior was filed petition view where initial year one before Atkins was effective date and amended to AEDPA’s decided, legislature the Arizona enacted following AEDPA’s en petitions were filed Schriro, prohibiting statute the execution of intel actment); v. 595 F.3d Robinson (9th Cir.2010) (same); lectually persons creating see also disabled 320, 326, Murphy, process capital Lindh v. U.S. which defendants are (1997) 2059,138 (holding L.Ed.2d 481 S.Ct. disability. evaluated for intellectual Ariz. apply AEDPA to Congress intended (2001), Ann. Rev.Stat. 13-703.02 “only to such cases as were filed after Laws, 2;§ Ariz. Sess. Ch. State enactment”). [AEDPA’s] (Grell 1234, I), 57, Grell 205 Ariz. 66 P.3d (2003). 1240 Under the version of the law, court pre-AEDPA Under state statute in effect at the time of Smith’s findings presump factual are entitled to a 2007, hearing procedures Atkins the for correctness, subject eight excep tion of evaluating automatically a were defendant previous tions enumerated the version of triggered upon filing the State’s a notice 2254(d). Sivak, § 658 F.3d at 28 U.S.C. penalty. intent the death Ariz. to seek exceptions to the rule Among 905-06. the 13-703.02(B) (2006), § Rev.Stat. Ann. regarding presumption a correctness is Laws, 55, Ariz. by amended 2006 Sess. Ch. state court’s “factual following: the the § provides l.6 The statute that the burden fairly by supported determination is not proving disability intellectual lies with 2254(d)(8). § Be the record.” 28 U.S.C. capital prove who must defendant agree that whether parties cause the convincing evi- intellectually ques- disability by a “clear and is disabled is Dist., Gregory Longview K. v. Sch. 811 F.2d 5. The Fourth and Fifth Circuits have held that 1307, (9th Cir.1987) (whether student question person is intellectu 1310 of whether disabled, was as defined state ally constitutes an issue disabled under Atkins 319, regulations, purpose federal Kelly, for the 593 F.3d of fact. See Walker v. Thaler, Handicapped (4th Cir.2010); All Children Act Education for v. 625 323 Maldonado fact). 229, Nevada, (5th Cir.2010). question is a mixed of law and F.3d 236 Pennsylvania, Supreme and Tennessee Courts subsequently was renum- question instead a mixed 6. Section 13-703.02 have held that the Laws, State, § 13-753. 2008 Ariz. Sess. question of law and fact. Ybarra v. 247 bered as 2011, 269, 301, (Nev.2011); § Ch. the statute P.3d 276 Commonwealth v. 222, 612, the term "intellectual Crawley, A.2d 615 amended to substitute 592 Pa. 1, Strode, (Tenn. (2007); disability” "mental retardation.” Ariz. State v. 232 S.W.3d 89, 2011, 2007). § yet Ch. 5. Unless other- We have not decided the issue in Sess. Laws Circuit, stated, § are separate wise all references to 13-703.02 our but have held in a con in effect at the time of Smith’s question of intellectual to the version text hearing. evidentiary question and fact. See Atkins is a mixed of law has the burden of § which “the defendant Ariz.Rev.Stat. Ann. 13- denee.” by clear and 703.02(G). proving mental retardation Ariz.Rev.Stat. Ann. convincing evidence.” “mental re- The Arizona statute defines 13-703.02(G). law, § Arizona Under containing three elements: tardation” as convincing is that evidence “[e]lear (1) subaverage general intel- “significantly that the truth of the persuade which may (2) concurrent functioning” and lectual ” In Re Ne- ‘highly probable.’ contention is behav- “significant impairment 1297, ville, 147 Ariz. 708 P.2d (3) ior,” foregoing the onset of the “where banc). (1985) (en A determination the defendant occurred before conditions IQ is 65 or court the defendant’s age eighteen.” Ariz.Rev. reached presump- “establishes a rebuttable below 13-703.02(K)(3). “Signifi- § Stat. Ann. has mental retar- tion that the defendant subaverage general cantly § Ann. Ariz.Rev.Stat. 13- dation.” “a full in- functioning” is defined as scale “ 703.02(G). However, presumption ‘[t]he [IQ] seventy or low- telligence quotient IQ retardation based on the of mental Ann. 13- er.” Ariz.Rev.Stat. presents ... if scores vanishes the State 703.02(K)(5). de- “Adaptive behavior” is question that calls into the validi- evidence degree “the fined as effectiveness IQ scores or tends to establish ty of the meets the standards which defendant does not otherwise defendant [the] independence and social re- personal statutory definition of mental meet expected of the defendant’s sponsibility ” Boyston, v. 231 Ariz. retardation.’ State age group.” and cultural Ariz.Rev.Stat. (2013) (quoting 298 P.3d State 13-703.Q2(K)(1). Ann. Arellano, 213 Ariz. 143 P.3d procedures Arizona’s for deter- Under Arellano, (2006)); see 143 P.3d at disability, ap- mining intellectual the court (“A however, presumption, rebuttable prescreening psychological expert points provides when the state contra- ‘vanishes ” IQ “using to determine the defendant’s (citation omitted)). dictory evidence.’ “ community, nationally cultur- current point, ‘At that scores serve as ally accepted intelligence testing proce- retardation, of mental to be con- evidence § Ariz.Rev.Stat. Ann. 13- dures.” all by sidered the trial court with other ” 703.02(B). expert If the determines that Boyston, 298 P.3d at presented.’ evidence IQ Arellano, 1019). is above “the notice the defendant’s P.3d at (quoting penalty to seek the death shall of intent did not have the benefit of this Smith ground on the that the not be dismissed at procedural framework the time of his has mental retardation.” Ariz. defendant place nearly the trial took trial because 13-703.02(C). § IQ Ann. If the Rev.Stat. twenty years procedural before the frame- however, less, 75 or the court will score is Supreme The Arizona adoption. work’s appoint experts additional consultation that presenting Court has held cases parties prepare reports regard- the post-trial posture, claims in such a Atkins intellectually ing the defendant is whether guide courts should use Atkins as a § Ann. 13- disabled. Ariz.Rev.Stat. § apply pre-trial procedures the 13- (E). 703.02(D), IQ point If at this all test practical. to the extent As the Ari- 703.02 70, the defendant remains scores are above Supreme explained capital zona Court in a eligible penalty. for the death Ariz.Rev. 13-703.02, § predating passage case 13-703.02(F). §Ann. Stat. recognize procedures that the set We testing appli- If the demonstrates that the de- in section 13-703.02 are not forth case, equal score is to or less than cable in Grell’s as section 13-703.02 fendant’s 70, however, until hearing court holds a did not take effect after Grell’s 2254(d)(8) Moreover, § procedures codified at sentencing. applies. Where are contemplated by ambiguous, section 13703.02 the record is a state court’s procedures, triggered when factual pre-trial “fairly supported determination is its notice of intent to seek the State files within meaning record” 2254(d)(8). Estelle, The trial court should penalty. § death Palmer v. 985 F.2d should, (9th inso- guide Cir.1993); use Atkins as a Wainwright see v. post-trial pos- in the practical Goode, 78, 85, far as is 464 U.S. 104 S.Ct. case, procedures follow the (1983). ture of this L.Ed.2d 187 great Where the ma- established section [Ariz.Rev.Stat.] jority strongly points of the evidence 13-703.02. however, against the state finding, court’s fairly the finding supported. is not (footnote We I, omitted); 66 P.3d at Grell have held that a factual determination (“[Ariz. is Arellano, at 1017 accord 143 P.3d fairly supported by if the record even capital § to all applies 13-703.02] Rev.Stat. it supported some evidence and other sentencing proceedings, including post- equally evidence is consistent with both brought to deter- proceedings conviction contrary the state court’s conclusion and a whether a defendant meets the statu- mine conclusion, so as retardation.”). long the record as a mental tory definition of “strongly suggests” whole a different con- Presumption of Correctness C. Stewart, Carriger clusion. See 132 F.3d matter, an initial we must deter As (9th Cir.1997). 463, 473-76 presumption of correct mine whether This standard must also be read in the factual applies ness to the state court’s Supreme context of the Court’s recent de was not intellec determination — Florida, —, cision in Hall v. U.S. tually disabled at the time the offense (2014). 188 L.Ed.2d 1007 not. and trial. conclude that it does We Hall, that, emphasized In Court II.C.l, in section we hold that As discussed penalty death cases where a defendant’s factual determination is the state court’s functioning question, is a close not entitled to deference because it is “not present the defendant “must be able to fairly supported by the record.” 28 U.S.C. additional evidence of intellectual disabili- 2254(d)(8). Also, explained in section fact, in ty____” Id. at 2001. these II.C.2, Judge Reinhardt would hold situations, court must not “view a sin deference is not due for the additional and gle dispositive” given factor as the com County that the Pima independent reason plexity of intellectual assess Superior finding Court rendered its Therefore, a reviewing ments. Id. court Smith was not disabled under required by the whole record as the stan constitutionally impermissible legal stan at all dard issue must consider indications dard. of a intellectual defendant’s may not discard relevant evidence. The 1. State Court’s Factual Fairly Determination Is Not Here, we do not defer to the state Supported By the Record court’s ultimate conclusion that Smith was it provides guid Our case law some disabled because lacks a determining exception support ance for when the fair the record as whole.7 great majority the record con- clear that the of the evidence 7. The mere fact that contains trary opinions by expert opinion two witnesses does strongly Thompson's reinforces Dr. ambiguous. it Once we look be- not render contrary and that Dr. Martinez’s conclusion expert’s hind each conclusion and consider evidentiary support. lacks even fair relies, the evidence on which he it becomes 1182 information, to commu- process weigh stand and the state court’s we defer to

Nor do nicate, and learn from mistakes to abstract to its decisions where ing of the evidence engage logical rea- to experience, from similarly lack evidence discount certain to under- impulses, control soning, to le or result from evidentiary support fair others,” making reactions of stand the in this case over evidence gal error.8 The likely impulse act on rather more to them that our conclusion whelmingly supports and as followers rath- premeditation, than prongs both substantive Smith satisfied 318,122 at S.Ct. than leaders. Id. er disability significantly subav- — the individual’s These limitations diminish functioning and general intellectual erage crime, and, con- for the culpability relative behav impairment significant justification sequently, the retributive eighteen and at prior age ior—both 319, 122 id. at penalty. death See of the crime. time (“[T]he severity appropri- of the 2242 S.Ct. on the necessarily depends punishment ate Application Atkins a. offender.”); also see culpability correctly concen- The state trial court (“No Hall, legitimate at 1992 analysis on whether Smith trated its by executing penological purpose served at the time of the intellectually disabled disability.”). with intellectual person a Atkins, ensuing trial. offense and the de- They penalty’s limit the death likewise sup- two rationales the Court identified effect, impairments terrent because these First, concentrating holding. porting its likely [intellectually “also make it less offense, rec- time of the the Court on the process can the infor- disabled offenders] intellectually disabled offend- ognized that of execution as a possibility mation of the and, result, At- for their crimes. control their con- culpable penalty ers are less as a 2242; information.” At- kins, upon see duct based at S.Ct. 536 U.S. kins, 320,122 at S.Ct. 2242. 536 U.S. Hall, Specifi- at 1992-93. also S.Ct. is reason cally, noted that there the Court con second rationale Court’s justification it had doubt either whether light trial in centrates on a defendant’s recognized as a basis for the previously “[m]entally risk that re heightened and deter- penalty death aggregate —retribution defendants in the face tarded intellectually disabled of- applies to special wrongful risk of execution” because rence— 318-19, Atkins, at fenders. 536 U.S. effectively participate they are less able individuals, the Court 2242. These S.Ct. purpose defense for the their own leaving impairments from explained, persuasive showing mitiga suffer “a making 320-21, 2242; tion.” Id. at S.Ct. see capacities to under- them with “diminished Sivak, apply. correctness does not See decision to discount tion of 8. When a state court's a factual determi- certain evidence constitutes 658 F.3d at 905. nation, 2254(d)(8) may apply § to deter- we Carriger, is due. See mine whether deference applies equally to the time of the 9. Because it 473-76, (applying 132 F.3d trial, right an- crime and the constitutional 2254(d)(8) reject the state court’s ancil- provid- rights unlike nounced in Atkins is lary factual determination witness 375, 378, Robinson, 383 U.S. ed Pate v. holding, part credibility based in lacked (1966) (right to not 15 L.Ed.2d 815 S.Ct. upon our to credit that witness's decision legally incompetent), and tried while to be testimony, petitioner had satisfied the that the 399, 409-10, Wainwright, v. 477 U.S. Ford standard); Schlup "miscarriage justice” see 2595, (1986) (right 91 L.Ed.2d 335 106 S.Ct. 298, 314, Delo, Schlup v. 513 U.S. 115 also insane), which at- be executed while not to 851, (1995). Where a S.Ct. 130 L.Ed.2d 808 tach, respectively, the time of trial and certain evi- state court’s decision to discount execution. error, legal presump- dence results from 1183 753(E)(5)).11 . Hall, at 1993. Because the It must be also manifested before underlying right age announced eighteen, § rationales Ariz.Rev.Stat. Ann. 13- on the time the 703.02(E)(3), in Atkins concentrate and at the time of the crime trial, ensuing committed and the trial, Atkins, crime was 317-21, see 536 U.S. at 122 we hold that a defendant comes within S.Ct. 2242. of Atkins if he can demonstrate

protection Functioning 1. Intellectual intellectually during that he was disabled Age Eighteen Prior to periods.10 Consequently, of these either is relevant present defendant’s condition Intelligence Smith took the Otis Scale only probative to the extent that it is of his in April again Test 1964 and in October of periods. during the relevant condition year, old, he years when was fifteen 71, receiving scores of 62 and must, course, respectively. qualify defendant The score of 62 Smith received the first prong under the third as well. The onset oc- time he took the test is the of the mental must have more relevant age eigh- curred before he reached the of the two in light Thomp- scores of Dr. teen. testimony son’s unrebutted second test score of 71 was inflated why turn now to the record does not We practice effect of having taken the same fairly support the state court’s determina- just test several months earlier. Dr. intellectually tion that was not dis- Thompson explained prac- that under the so, abled. In order to do we must examine effect, tice a person higher scores on a test the evidence under the two substantive when it is readministered within a short statute, elements of the Arizona and deter- period of time because he has fa- become mine whether the evidence as a whole miliar with the test. Arizona courts and strongly to the conclusion that the points guidelines recog- most current clinical statutory two conditions existed at nize the practice effect. See State ex rel. trial, time of the crime or and whether the Duncan, 448, Thomas v. 222 Ariz. 216 P.3d onset of each condition occurred prior (“The 1194, 4 (App.2009) practice 1195 n. age eighteen. person performs effect occurs when a bet- Significantly Subaverage b. General on a ter test because he or she has taken it Functioning Intellectual before.”); (stating id. 1198 that “a de- “ may argue practice fendant that the effect ‘Significantly subaverage general intel- impacted IQ the results” of successive functioning’ lectual is the touchstone for tests); Am. Ass’n of Intellectual and De- disability] proving and means [intellectual Disabilities, velopmental Dis- Intellectual full intelligence quotient [IQ] ‘a scale (11th ed.2010) (Grell ability 38 [hereinafter seventy or lower.’” State v. Grell III), 153, 350, AAIDD 11th (describing ed.] Ariz. research 291 P.3d (2013) § (quoting showing Ariz.Rev.Stat. Ann. 13- artificial increase in scores 463, (Miss.2015); Many expressly recognize states that Atkins So.3d S.D. Codified 23A-27A-26.1; applies may Laws Tenn.Code Ann. to individuals who be deemed § 39-13-203(b); Cathey, parte § Ex 451 S.W.3d disabled at the time the crime 1, See, (Tex.Crim.App.2014); Rev.Code Wash. e.g., was committed or at trial. Smith v. - 10.95.030(2). § State, 1060427, -, -, No. So.3d 25, 2007); (Ala. May 2007 WL *8at 5-4-618(b); §Ann. Del.Code Ann. Ark.Code 11. The version of the statute in effect at the 4209(d)(3)(c); § § tit. evidentiary hearing Ga.Code Ann. 17- time of Smith’s uses an 7-131(c); State, 146 Idaho Ann. identical definition. Ariz.Rev.Stat. Pizzuto State, 13-703.02(K)(5). (2008); P.3d Chase v.

1184 Arellano, (quoting existed. Id. tion had instrument is readminis- the same when 1019).13 interval, and time within a short 143 P.3d tered is practice clinical stating that established event, test scores remain any the Otis intelli- administering the same to avoid prior condition of Smith’s highly probative year to the the same gence test within asserts that eighteen. The State age it will often lead individual because same unreliable, points to Dr. are the tests true of the examinee’s to an overestimation testimony on cross-examina- Thompson’s Ass’n, Diag- Psychiatric Am. intelligence); had not by 1964 the Otis tests tion that Mental Manual and Statistical nostic of popula- the current against “normed” been (5th ed.2013) [hereinafter Disorders that he had not forty years, tion for effect as (identifying practice the DSM-V] Otis tests the raw data from Smith’s seen scores). affecting of test capable a factor regarding the condi- any information Arizona the Atkins framework Under which those tests were admin- tions under IQ score of 62 would adopted, later contempo- Although the lack istered. of intellectual presumption entitle him to a norming may question call into some rary §Ann. 13- disability. Ariz.Rev.Stat. See results, Dr. accuracy of the test the 703.02(G). State, however, “pres The testimony gave uncontroverted Thompson question that calls into evidence ented] Effect, that, this would Flynn due to the IQ or tends to validity scores scores to be only have caused Smith’s defendant does not oth establish that [the] premise of the The basic overstated. statutory definition erwise meet IQ average Flynn effect is that because Boyston, 298 P.3d at mental retardation.” time, person who scores increase over 1019). Arellano, P.3d at (quoting recently IQan test that has not been takes the results Specifically, points the State against representative sample normed IQ administered Drs. test scores artificially receive an population will 2007, in 2005 and Thompson and Martinez IQ Flynn, R. score. See James inflated 89, 91, Smith received scores on which Cases, Elephant: Capital Tethering the scores demonstrate and 93. These IQ, Flynn Effect, Psychol. Pub. and the intellectually dis presently is not (2006) L. Pol’y [hereinafter & abled, and, IQ scores in the absence of IQ This is because scores Flynn ]. Effect IQ time the documenting Smith’s at the curve, on a normal distribution are based committed, inference raise an crime was meaning- and thus an individual’s score at that may not have been disabled that he only ful in relation to the scores of the presumption Accordingly, “[t]he time.12 same test. See people other who took the IQ vanishes” and ... on the scores based Oleson, Insanity Genius: presump- evidence as if no J.C. weigh we clear, general particularly rule in time between the is not 12. Given the substantial IQ Lewis, suggests v. tests Arizona it is low. State of the crime and commission Cf. (App.2014) Thompson and Mar- 236 Ariz. 340 P.3d administered Drs. tinez, (”[A]s strong. presumptions, the particularly with other rebuttable is not this inference Moreover, below, incompetence ‘dis presumption substantial evi- of continued as discussed any appears entirely upon that Smith’s did the introduction of dence demonstrates necessary contradicting evi fact fall below the threshold evidence and when such subaverage general significantly demonstrate is introduced the existence or non-exis dence functioning the crime presumed [incompetence] at the time is to be tence of exactly presumption committed. as if no had determined ” operative.' (quoting Sheehan ever been Cnty., overcoming 135 Ariz. 660 P.2d Pima 13. While the standard for .1982))). (App statutory presumption of intellectual

1185 tests, Right-Tail Psy- may on WAIS which have Culpability Criminal reflected chometrics, 587, Flynn elevated scores because of the 16 Geo. Mason L.Rev. 598 eff ect.”).14 (2009). referring Flynn Without Flynn the the correcting for When name, adjusted IQ effect we too have Effect, practice is to de- standard “[t]he (3 Grego scores based on out-of-date norms. IQ per year points per points duct 0.3 E, ry Here, decade) 811 F.2d at 1312 n. 2. we period to cover the between the that, light conclude of Dr. Thompson’s year normed and the year the test was testimony regarding uncontroverted the subject Flynn took the test.” which the Effect, impact Flynn of the Smith’s score Effect, supra, recog- at 173. The AAIDD of 62 on the outdated Otis test renders it Flynn nizes the existence the Effect and highly probable IQ that his at the time of correcting age recommends for the 62, the test was lower than well below the ed., AAIDD 11th norms outdated tests. cutoff demonstrating “significantly sub- 37; Am. on Mental supra, at see also Ass’n average general intellectual functioning” Retardation, Mental Retardation: Defini- under Arizona law. tion, Classification, Systems Sup- ed.2002) (10th 56 AAMR ports [hereinafter fairly support The record does not the 10th The Fourth and Eleventh Cir- ed.]. state court’s determination to afford the recognized cuits have also the existence of weight Otis test little and discount Dr. True, Flynn the Effect. v. 399 See Walker Thompson’s opinion extent that he (4th Cir.2005) 315, (reversing 322-23 F.3d relied on the Although test.15 Dr. to consider district court due its failure Thompson and Dr. Martinez each noted effect); Flynn “relevant evidence” of the regarding that additional information Allen, 1346, Holladay v. 555 F.3d 1358 administration of the test would enhance Cir.2009) (“[A]ll (11th validity, of the scores were its neither witness concluded that range approaches rejected Flynn 14. Courts have taken a er have use of the Ef courts Commonwealth, regard Flynn Bowling with to the effect. Some courts fect. See v. 163 (neither gone beyond (Ky.2005) Flynn have the Fourth and Eleventh S.W.3d 361 ef by mandating margins properly application Circuits its to de fect nor standard of error IQ Allen, State, considered); fendants’ scores. See Thomas v. 614 are Howell v. 151 S.W.3d 1257, 450, State, (N.D.Ala.2009) ("A (Tenn.2004); F.Supp.2d Neal v. 458 256 264, (“We Flynn (Tex.Crim.App.2008) court consider the effect and S.W.3d must also previously applying the standard error of in deter have refrained from measurement IQ effect, however, mining petitioner's Flynn noting that whether a score falls it is concept’ range containing 'unexamined scientific that does not within a scores that are less Parker, 70.”); provide concluding a reliable basis for that an than v. 65 MJ United States significant sub-average general (NM.Ct.Crim.App.2007); People appellant has Superi Mathis, functioning.”); In re Cal.Rptr.3d Court,-Cal.App.4th-, (5th Cir.2007) ("The (2005), Flynn F.3d 398 n. 1 on other 558-559 overruled accepted ("In Effect ... has not been in this Cir grounds determining petitioner's] [a valid.”). score, scientifically cuit as given consideration must be to the so- effect”). Flynn called Other courts have left apply expert to the trial court’s discretion whether to 15. The state court also noted that testi- Quantitative Burke, Flynn mony regarding Effect. See State v. No. Electronence- 04AP-1234, Smith, (Ohio (QEEG) phalography testing on which 2005 WL at *13 inadmissible, 2005) ("We Ct.App. played it held a role in Dr. Dec. conclude that presented Thompson’s opinion trial court must consider evidence that Smith's functional effect, but, Flynn were his frontal lobe on the consistent with its limitations related to dysfunction. testimony regarding prerogative persuasiveness Because to determine the QEEG evidence, testing played the trial court is not bound a non-essential conclusion, to, Thompson’s may, Flynn role in Dr. but conclude the effect is limited IQ score.”). opinion basis. factor in a defendant’s Still oth cannot be discounted on this tion, by [this] [C]ourt to be considered test results were invalid in the ab- ” presented.’ Boy- funda- all other evidence information. More sence of such (internal stem, quotation disregard Otis P.3d at 895 mentally, we decline omitted). is unable to on the basis that Smith tests marks of detailed evidence the same level proffer Otis test score reliable We hold the first as is avail- their administration regarding reason that it is consis- for the additional by recent tests administered able for contemporaneous poor tent with Smith’s Like most court-appointed psychologists. Arizona performance. Under academic the burden on a states, places Arizona law, perform- academic poor of evidence raising an Atkins claim to dem- defendant subaverage intellectual of ance is evidence alia, onstrate, inter significantly subaver- ex rel. Cahill Williams functioning. functioning age general [mean- intellectual Pima, Cnty. Ariz. P.3d IQ occurring 70 or before ing below] an (“[W]hen IQ no childhood (App.2013) Ann. Ariz.Rev.Stat. age eighteen. the subaverage intellec- performed, tests were (5). 13-703.02(K)(3), highly It unlike- is functioning age eighteen tual before however, administering people that the ly, other evi- may inferred from properly be IQ anticipate to a child would ever test functioning, such as dence of intellectual an Atkins proceed- of that test the use Here, the evidence performance.”). school at the time of tests the ing, and Smith’s that overwhelmingly demonstrates Smith Atkins by right provided constitutional school, exceedingly poorly in performed Consequently, not even exist. records did percentiles 2nd to 5th on the scoring rarely include IQ tests will of childhood fifteen, age Test at Stanford Achievement IQfor information collected the detailed years his him five to seven below placing supervi- court under tests administered years to five below age level and three Atkins adjudicate defendant’s sion transcripts re- grade level. Smith’s school may only claim. To discount what be nearly all “Ds” and veal that he received intellectu- subaverage general evidence subjects, and that his “F’s” in his academic on functioning prior age eighteen al beyond the progress education did not effectively deny the ground this would dropped after which he out eighth grade, afforded Atkins to individu- by protection not contest the of school. The State does substantially eigh- older than als who are Box, validity of these records. Melva Jane old, predate years or whose trials teen sister, older testified Smith Atkins, in- because it would render their grades, placed in all was held back his was disability nearly impossible tellectual learners, special education class for slow evidentiary challenges prove. Given the a special and was even transferred to arising retrospective na- so often from school “because he couldn’t learn.” claims, ture of Atkins Eighth Amend- Caperton, one of Smith’s child- Charles requires apply ment that courts a more neighbors, similarly testified that hood determining when relaxed standard placed special education Smith was documenting child- reliability of evidence together, Taken Smith’s Otis test classes. disability. intellectual hood onset poor performance scores and academic Here, there is no indication overwhelmingly demonstrate that Smith malingering when he took the Otis was subaverage gen- experienced significantly they Accordingly, although do tests. functioning prior to the eral intellectual provide presumption of intellectual dis- eighteen. The state court’s deter- age of law, ability under Arizona we find contrary not find fair mination to the does Smith’s first Otis test score nonetheless “serye[s] support in the record. as evidence of mental retarda- Functioning cognitive at the individuals like Smith whose Intellectual problems stem from environmental factors and Trial

Time of the Crime injury physical rather than and who are question in this The more fundamental given appropriate antidepressant later to suffer Smith continued case is whether placed medication and in a structured envi functioning subaverage from Certainly, ronment. Smith adduced sub only trial. The the time of the crime and a horribly stantial evidence of abusive and contrary is the test evidence to the impoverished upbringing supporting Dr. Thompson conducted Dr. scores Thompson’s opinion: routinely he was bru Dr. decades after the trial. Martinez subject talized stepfather, Thus, weight question relative ed to extreme verbal and emotional abuse fairly given pre-crime that can be to the mother, by interspersed neglect with they scores insofar as post-crime and test periods outright and abandonment. Ac evidence determinative of Smith’s provide Box, cording stepfather Smith’s would functioning at the time of the beat with was a him “whatever closest.... trial, the record crime and and whether belt, stick, hangar,” a a coat and also mo court’s conclusion fairly supports the state Gau, him. younger lested Martha Smith’s experience significantly that Smith did not half-sister, similarly testified that Smith’s functioning subaverage general intellectual stepfather tell him “he for good would was at that crucial time. nothing any and would never amount to him him subsequent thing,” whip and would kick and begin by noting that the We belt; with both ends of a she recalled IQ by Thomp- administration of tests Drs. finding Smith’s bedsheets covered in blood substantially more son and Martinez was following particularly beating one serious period from the crime remote Smith’s when he about twelve or thirteen than the administration of the Otis test years Caperton old. saw beaten Smith twenty-five twenty-seven scores: “pretty regularly,” with a belt and wit case, crime, years in the former after beating involving nessed one use of a two- years in compared to sixteen the latter. by-four. frequently Smith’s mother left valid Accepting each set of test scores as at a time the children alone when Smith IQ measures of Smith’s at the time the using high a young enough was still to be administered, discrepancy tests were this ac chair. On one occasion when she was probable assertion renders more Smith’s tually in present, engaged Smith’s mother IQ ap- time crime that his at the foreplay in the front seat of extra-marital IQ reflected in his first proximated the car sat in the backseat. her while Smith test score rather than his more re- Otis another, failed to On after the children cent, higher scores. dishes, adequately clean the she sent them issue, however, key strength is pick outside with on their heads to bowls demonstrating the of Smith’s evidence yard children weeds from the while other significant gains IQ that his probability neighborhood gathered from the around before, after, score occurred rather than laughed. them and As result of this Thompson his incarceration. Dr. testified upbringing, Thompson opined, Dr. Smith IQ improvements that score similar became disabled with frontal by possible those attained are lobe abnormalities.16 Smith legal adopted theory Smith’s error instead the state’s that 16. The state court committed poor Thompson’s opinion upbringing aca- when it Dr. abusive itself caused his discounted performance intel- upbringing demic but that he was not that Smith's abusive contributed lectually theory misap- disability, disabled. The state’s to his intellectual which was mani- poor grades, prehends definition of intellectual scores and Arizona’s fested test ability this time. Smith received improve ing can over that scores As evidence Schad, a fellow help from Ed in additional of the crime following the commission inmate, get books for Smith who would Smith’s, Thomp- Dr. similar to situations him read prison library and have from the that demonstrating son cited robust data evidence is refuted them. None of this (which Smith antidepressants the use of the State. incarcerated) significantly can took while time, over noted functioning increase brain although disagreeing with part, For his inmates have at- other death row that conclusion, Dr. Thompson’s Dr. ultimate functioning while incar- improved tained key of his agreed with several Martinez cerated, an anecdote of a provided sig- Dr. Martinez testified premises. point gain who achieved twelve patient ac- IQ gains possible, are nificant receiving medication for IQ score after IQ gains were knowledged As evidence that his just agreed months. He also precedent. not without four improved over the functioning Thompson’s level of Dr. characterization incarceration, adduced a “structured environment.” prison of his course Dr. testified significant, More Martinez testimony multiple from witnesses describ- functioning unlikely quality improved improvements dramatic ing training and edu- occur in the absence of Gau prison. of the letters he sent from (which Smith re- opportunities cational her at the that letters Smith sent testified Labrecque in from and prison ceived virtual- incarceration were beginning his Schad), no indi- and stated that there was that over the follow- ly unintelligible, but any opportuni- cation Smith received such improved ‘TOO ing years writing his had the time the crime. This prior ties a explaining that “it was like percent,” reinforces, highly renders strongly and writing it.” totally person different im- assertion that probable, Smith’s by marriage, aunt Hight, Martha Smith’s functioning did not occur provement his early letters similarly described Smith’s For until after the crime was committed. partially and prison from as unintelligible, reasons, these we hold that the state all of improvements noted in the letters he sent ex- court’s determination that no evidence years. in later also received tutor- Smith finding whether the of Smith’s low plains Labrecque, ing prison. while in Ronald IQ extrapolated to the childhood could be Department who worked for the of Correc- of the crime and trial lacks even fair time 1997, supervised until tions from 1986 in the record. support jobs maintenance over an Smith’s work on year Labrecque also tutored eight period. reports Dr. Martinez also relied on sum- Smith, helping reading him with his marizing competency three Rule evalua- reading him materials such as providing underwent each of tions Smith manuals, tri- working competent and described witness- which found-Smith to stand conclusion of specifically read- al. He cited the ing improvement” a “vast Smith’s functioning regardless pur- impaired, of its disability, which centers on indicators such as ed., impaired supra, behavior ported low scores AAIDD 11th cause. See purported etiology of these indi- and not the (describing disability 59-61 intellectual Ann. 13- cators. See Ariz.Rev.Stat. factors, arising biologi- from cultural-familial stated, 703.02(K)(1), (3), (5). Simply while factors, two, or a combination of the cal disability specific is cause of intellectual disability] stating "[b]ecause [intellectual that significant regard to whether the condi- by impaired functioning, is characterized its mutable, ques- tion is static or the threshold etiology impairment whatever caused this is whether an individual tion functioning.”). simply by presence disabled is answered LaWall, evaluator, mission of Accordingly, Dr. the crime. one view average range in the whole, functions “probably ing the record as a we hold that Dr. intelligence.” Thompson Dr. described Martinez’s conclusion is fairly sup reports as an unreliable as- the Rule ported the record. Because the re intelligence they because are sessment maining supporting evidence the state “very subjective.” “very superficial,” minimal, court’s conclusion is we hold that fo- explained reports He that because its conclusion that Smith failed to satisfy they competency, comprise on esti- cus the intellectual functioning prong of Ari subject’s functioning only of a based mates zona’s intellectual disability definition at interview, involve little review of on a brief the of the fairly crime trial is not and/or subject’s history, impor- and —more supported by the record. holdWe instead quantitative tant —include no assessment the evidence overwhelmingly demon IQ. Thompson’s critique Dr. is con- experienced strates that Smith significant highly per- with Arizona law and sistent ly subaverage general intellectual function suasive, and Dr. LaWall’s assessment of ing at dispositive time.17 intelligence weight. little carries Moreover, to hold otherwise would con 13-703.02(K)(5) Ann. § See Ariz.Rev.Stat. travene the fundamental principles the Su (determining whether an individual suffers preme recently Court laid out for the ben in- significantly subaverage general from efit of the federal courts and the state functioning requires quantita- tellectual judiciary in the landmark case of Hall IQ). The adduces tive assessment of State — Florida, U.S.—, improved no other evidence of academic (2014). case, L.Ed.2d 1007 In that other increased performance or indicia of functioning prior to the com- Court made it clear that a determination of (4th ed.2000) describing citation to cases in- [hereinafter State’s Disorders DSM- ("Mental tellectual as a static condition does necessarily Retardation IV] is not conclusion, Doe, not alter our Heller v. 509 lifelong disorder. Individuals who had Mild 312, 323, 2637, U.S. 113 S.Ct. 125 L.Ed.2d Mental Retardation earlier in their lives man- Schriro, (1993); 257 Moormann 672 F.3d by learning ifested failure in academic tasks 644, (9th Cir.2012); Arellano, State v. may, appropriate training opportu- (2006). 213 Ariz. 143 P.3d nities, develop good adaptive skills in other Heller, rely Moormann and Arellano each on may longer domains and no have the level of report proposition which cites a 1985 for the impairment required diagnosis for a of Men- disability permanent, that intellectual "is a ed., Retardation.”); supra, tal AAIDD 11th at Heller, relatively static condition.” 509 U.S. (“ID longer entirely xiii is no considered an (citing at 113 S.Ct. 2637 Samuel J. Brak- absolute, person.”). trait invariant of the al., Mentally el et Disabled and the Law contemporary understanding This clinical (3d ed.1985)). Thus, all of this case law necessarily informs the law on intellectual single study substantially pre- relies on a that Florida,-U.S.-, disability. See Hall v. developments dates in the clinical under- 1986, 1993, L.Ed.2d standing disability of intellectual as a fluid (2014) (stating legal definitions of intel- subject change. condition to See Am. Ass'n disability by lectual "are informed the work Retardation, on Mental Mental Retardation: addition, experts”). of medical unlike the Definition, Classification, Systems Sup- case, record in this none of the cases on ed.1992) (9th ports [hereinafter AAMR evidentiary which the State relies involves an ("With appropriate supports 9th over a ed.] containing expert testimony record extensive period, functioning sustained the life describing disability intellectual as a condi- person generally with mental retardation will (as tion that is neither fixed nor static where ("Mental improve.”); id. at 18 retardation case) influenced in Smith's it is environ- begins prior age may 18 but not be of Ass'n, duration.”); underlying mental factors rather than an lifelong Psychiatric Am. Diagnostic and Statistical Manual Mental medical condition. differently, 1994. Put we requires, at least in tions. Id. at disability intellectual cases, making protections consideration of cannot risk the of At- the questionable evidence, simply nullity by executing person'with not a a a significant relevant kins at a him IQ particular disability giving test without measurement of an intellectual Here, premise on which opportunity in the “fair to show the Constitu- point time. as to intellectual at prohibits court’s decision tion execution.” Id. [his] the state IQ is that tests disability is based The state court’s decision Smith’s case prior time—the time By discounting taken at a critical takes that risk. year they be discounted early IQ though Smith’s 18th tests even were the —must because, they were large part though at the time and even type used at the time taken, for such tests procedures they likely used are the most evidence that an in- recorded and the adequately intellectually were not disabled defendant of Smith’s administration of regarding prove in order to his age present formation could condition, This longer judge no available. such tests was the state court rendered only intellectually was not protection test evidence critical for the dis- effectively initial determination when Smith abled established Atkins also to the ultimate determination meaningless, precisely 15 but which is what the disability at the time of of his intellectual sought Court to avoid Hall. Such a reliability decision, by removing highly probative the crimes. To discount evi- grounds is little different person’s the tests on such of a dence consider, excluding, case, cru- failing from death-penalty only violates the only highly rele- cial evidence that is not right individual defendant’s but also' “con- n questions at issue but principal vant to the dig- travenes our Nation’s commitment to fair to-arriving is indeed critical at a decency human nity duty and its to teach just question answer to the whether Smith civilized mark as the world.” Id. capital punishment. eligible Significantly Impaired c. penalty Hall reminds us that “the death Adaptive Behavior gravest society may sentence our is the “ ‘Adaptive behavior’ means impos- impose,” 134 S.Ct. degree effectiveness or to which the de

ing punishments “harshest of on an this personal fendant meets the standards of person disabled violates independence responsibility and social ex dignity being,” a human or her inherent pected age of the defendant’s and cultur stakes, at 1992. Given these Hall id. group.” al Ariz.Rev.Stat. Ann. 13- judgments warns we must not make 703.02(K)(1). applying prong Courts this person in haste as to whether a has an of disability, intellectual but rather must con- must conduct “an overall assessment ability society’s the weighty sider all the “substantial and evi- defendant’s meet ques- expectations in him.”18 present dence” cases close State Grell 18. definition, Although generally gard aspect state courts construed to this of the clinical imposing binding Reinhardt, J., Atkins as no definition of Concurring Opinion of Ari see behavior, impaired adaptive Supreme may zona’s definition well be violative of the comply Court held in Hall that states must Hall, rules in and unconstitutional established with elements of the clinical definition about Hall not decid for that reason. Because which there a national exists consensus. had its ed until after the state court rendered S.Ct. at 1998-99. Because Arizona’s defini claim, denying decision Smith’s Atkins how adaptive tion of behavior is far more restric ever, opportunity Smith had no to make this Williams, definition, tive than the clinical argument and the state before state court (Eckerstrom, P.J., dissenting), P.3d at 548 and opportunity respond. had no In such cir because a national consensus exists with re A tellectually psy Id. at 353. disabled. (“Grell II”), Ariz. 135 P.3d consistency (en banc); opined (2006) Boyston, chologist accord functioning and poor Grell’s social behav P.3d at 895. problems presence ioral demonstrated the apply law is scant case Although there disability, problems because of intellectual Arizona Su we find the prong, this ing arising solely personality from antisocial III, 291 in decision Grell preme Court’s vary over time. Id. at disorders would (Ariz.2013), highly instructive. P.3d 350 presented expert also testi 354. Grell III, that the stipulated the State In Grell mony psychologist an educational who signifi demonstrated capital defendant concluded that general cantly subaverage impairment functioning but contested low intellec- [g]iven [Grell’s] the facts In at 352. adaptive behavior. Id. of his inability to functioning, tual his learn evidentiary rec reviewing the dependently mistakes, capacity his reduced from his that Grell ord, proceeded to hold the court communication, and self- socialization deficits significant had also demonstrated skills, history of help significant and his behavior, his and reduced adaptive education, followed failure special at to natural life. Id. sentence death and, out of school in the dropping and im significantly As evidence 357.19 significant parental support absence of behavior, consid the court adaptive paired subsequent his serious en- guidance, and alia, ered, school rec grade Grell’s inter justice sys- tanglement with the criminal placed showing that he had been ords tem, point it clear at this that Shawn classes; lay witness testi special education who has mental retar- person Grell is a impulsive, describing highly him as mony dation. of chil social cues unable to understand additionally court noted Id. at 355. The unable to age, largely dren his own home, away from history running Grell’s had; ex social skills that he use the few crimes, inability to hold committing his tendency describing testimony Grell’s pert immaturity. Id. at jobs, general and his years like children several to act more evidence, Reviewing this the court noting impulsiveness his younger, sig- had demonstrated concluded Grell skills; testimony communication poor behavior, not- nificant deficits ob and administrators who from teachers ability limited withstanding evidence of his inatten impulsive, that Grell was served at 357. adapt. Id. tive, effective and unable to communicate paints in this case a remark- The record adduced Grell also ly. Id. at 353-55. Smith, demonstrat- picture of ably similar special testimony from members traits, in child- beginning ing consistent elementary school team education through the time of continuing in hood and conclusion that Grell was stating their cumstance, mitigating circum- penalty phase of might remand to allow we stances, proven by prepon- be Su which must consider the more recent state court decision, although express We note that we of the evidence. preme Court derance however, Here, question. applied we standard of view on that III court lower no Grell claim, light apply governs Hall in of our conclusion but none- proof need not than Smith’s clearly guidepost satisfies even Arizona’s regard that Smith a useful the case as theless more onerous standard. demonstrating Supreme Court’s the Arizona prong. adaptive approach behavior to unique procedural posture of 19. Due to the Court’s most extended III contains Grell case, applied the Grell III court numer- analysis this element and identifies on finding signifi- 13-751(C). supporting a ous attributes this Ann. Under Ariz.Rev.Stat. statute, impaired adaptive behavior. cantly may present evidence at a defendant level, basically from crime, very living III court held a concrete that the Grell adaptive behavior. impaired day day acting impulse and on to a

established to (consistency of behavioral See id. at 354 (noting at great degree.” See id. 353-55 of intellec- indicates a root cause problems Atkins, 536 impulsiveness); Grell’s U.S. or disability, rather than antisocial tual (stating intellectu- that disorders). Grell, Like Smith personality ally people impulse “often act on disabled history special edu- “significant had a pursuant premeditated than to a rather cation, dropping failure and followed plan”). Specifical- id. at 355. out of school.” See communication skills were simi- Smith’s grades, back in all his ly, Smith was held that, larly Hight stunted. testified as classes, subse- placed special education adult, difficulty forming Smith had sen- special to a school for quently transferred words; correctly pronouncing tences and learn, dropped and out children unable to say days” would “weekie example, he time he eighth grade, after the which referring “weekdays.” to Gau and when years old. These facts already was sixteen in- receiving nearly each described Hight testimony provid- are consistent with other comprehensible during letters from Smith ing poor further evidence of Smith’s intel- early period of his incarceration. See functioning during his childhood. lectual III, (stating 291 P.3d at 354-55 that Grell child, Box testified that as a Smith had “unable to communicate effec- Grell was learning struggled grasp to trouble and tively” noting capacity “his reduced simple games the rules even of children’s communication”). Betty Ruth tag Knight, like and marbles. the mother neighbor another former III, lay a familiar As Grell witness wife, Lewis, of Smith’s fifth Beth stated that with intellectual concluded “always a looked like as child Smith Here, intellectually Smith was disabled. just he was lost.” Hight that she believed to be stated Smith poor According

Smith had social skills. disabled, intellectually based on her com- Long, one of Delores Elaine Smith’s parison intellectually to her own Smith a child neighbors, childhood (Grell disabled sister. See id. at 353 iden- with, with, play carry unable to interact by special tified as disabled other children. on a conversation with See experienced staff with other dis- education (“[Grell] III, Grell 291 P.3d at 353 could children). Although she was not an abled not social cues that children understand Hight’s testimony, based on her expert, understand, age largely his should and was personal experience, highly probative unable to use the few social skills that he Arellano, adaptive behavior. Smith’s See had.”). Hight young testified that as (discussing 143 P.3d at 1020 the relevance life, any social adult Smith lacked lay testimony regarding witness. Lambright, Gerald the cousin of Smith’s behavior). Lambright, described co-defendant Joe Other evidence indicates Smith did evidence re- Smith as “loner.” Other necessary the skills to take possess impulsiveness. veals Smith’s Hight care of his own needs. described reported psychiatrists who .mother lacking hygiene, Smith as basic unable during him his childhood concluded treated properly, at the table or eat and un- sit impulsiveness, problems Smith had to take care of himself without assis- able likely throughout which would continue Labrecque tance. testified that he was presentence report life. The also de- reprimand Smith on one occa- forced impulsiveness, stating that scribes Smith’s external, odor, sloppiness, body stimuli sion over his “responds he social on immature, III, adult, difficulty had Smith bathing. See Grell infrequent (“Dr. interacting age, with adults his own would Keyes’ investigation re- P.3d at 355 frequently mimic Donald Duck when he family viewed Grell as that Grell’s vealed all, many spoke preferred at to interact with caring of for of incapable ‘somewhat needs____’ Labrecque characterized He concluded that children.21 own his maturity resembling emotional adaptive his defi- Smith’s record confirmed Grell’s year-old that of a twelve to fourteen even a cits, lifelong inability as illustrated years after he had expected to the number committed ‘to conform his behavior medical aged Multiple ap and same the crimes. records of his social standards ”). pended presentence report to de Smith’s peers.’ early in his late scribe Smith teens and many in this case includes The evidence an possessing per twenties as “immature pre to the evidence parallels additional sonality” exhibiting “immature behav tormented his in Smith sented Grell. found, ior.” As the Grell III court this half-sister, sexually abusing her younger significant impairment behavior indicates twelve, he was young age: at a when in behavior under Arizona law. adaptive per after severely punished Smith was (stating tormenting at See id. 356-57 play to “doctor” when she suading Gau children, home, away running other from old, and when Gau was nine years was five crimes, committing inability to hold Smith, sixteen, brought her out to the then jobs, immaturity among are the ele perform her to oral sex garage and forced itself, history “by ments of a mental to repeated attempts him. made on Smith provides strong evidence that individu [an home after which he was away run from ‘significant impairment’ suffered a al] got jailed vagrancy. frequently He ability to standards ‘meet[] activity, including for criminal into trouble independence responsi and social personal testified that Hight numerous arrests. bility (quoting of him.” Ariz.Rev. expected’ job, unable to hold a which she Smith was (3))). 13-753(K)(1), Stat. Ann. inability “comprehend attributed to his impaired ... be Additional evidence person what a normal would able present behavior not Grell The record reveals that Smith interpret.” impaired adaptive behavior more than 100 short-term makes Smith’s cycled through McCarver, who jobs years, sixteen which even clearer. Charles period over a complex and apartment lived in Smith’s Thompson Dr. described as evidence cars, repossessing gave impairments.20 worked with Smith multiple adaptive Smith testimony describing an incident which very immaturely as an also functioned Penny jokingly along ex-girlfriend McCarver’s Long got adult. testified that Smith Lewis, their son told that he could “have” the children of Beth Smith well with wife, having and his wife were he related to because Smith Smith’s fifth because Fol- difficulty conceiving their own child. a child rather than as an adult: them as conversation, Smith called mentality they lowing like this [sic] was a lot “[H]e mean, say Penny had told him being were. I like instead of dad McCarver they he could have McCarver’s son. McCarver figure, he was kind of like were.” Undeterred, that, adamantly refused. Lambright testified as an Gerald report inability presentence lists "Duck” and 21. The 20. Dr. Martinez attributed Smith's impulsivity, jobs part itself "Crazy hold to Smith's Smith. Duck” as aliases for impaired adaptive behavior. an indicator III, 353-55; Atkins, See Grell 291 P.3d U.S. at 122 S.Ct. 2242. of condition at the time up expecting probative at MeCarver’s home Smith’s showed of Smith’s crime and trial.23 only mind boy, changing to take the his seeing happy how the child was with after Moreover, Smith demonstrated life- absurdly literal inter McCarver. Smith’s inability long to make informed decisions joke that he would pretation of McCarver’s regarding safety his own and welfare. vividly “give” Smith his son demonstrates Smith was described as hav- Specifically, ing poor judgment engag- as a child and malformed social and communica Smith’s ing dangerous behavior without general inability and his to navi tion skills adult, awareness of its risks. As gate his social world.22 accepted dares to run across the (Joe mother, Sylvia Lam- Smith’s Scott highway oncoming in front of an truck wife), bright’s Lambright, Gerald top and climb to the of a radar tower presentence report all described Smith as tall, dangled of he hundreds feet where follower, Supreme a trait Court has himself his arms. He would some- impaired an indicator of identified as go up top buildings times on the of adaptive behavior. Gerald said that Smith carpentry being per- where work was do, do whatever Joe told him to would jump along formed and the beams and adding guy that “it was almost like the any safety rafters without harness. On Atkins, could not think- for himself.” See in prison, one occasion while Smith took (“in group 536 U.S. S.Ct. along edge a walk of roof of a settings [intellectually people] disabled are two-story building, earning a rebuke leaders”). pre- followers rather than Labrecque. from Such reckless behav- report having ior, sentence describes Smith as apparently any undertaken without personality,” comprehension involved, a “borderline which is also fur- risks fairly support Hight fairly supported 22. The record does not the state witnesses than is not Hight’s testimony court’s decision to discount by the record. intellectually that Smith resembled her dis- ground abled sister on the sole that it was Thompson 23. Dr. testified that he found this testimony by inconsistent with McCarver and presentence report assessment in the credible witness, LeBlanc, lay Sidney a second who notwithstanding regard- the lack of evidence apartment building lived in Smith’s and drove because, ing training the author’s level of company for the same We trucks as Smith. experience working Department with the because, Hight’s testimony among credit Corrections, probation parole offi- witnesses, only experi- these she had firsthand reports experience who cers wrote such had diagnosed ence with someone with intellectu- prisoners diagnostic evaluations that Grell, 353; disability. al lano, See 291 P.3d at Arel- provided them a reasonable basis from which important, 143 P.3d at 1020. More to determine whether an individual has low testimony by McCarver and LeBlanc does not cognitive functioning or borderline and be- Hight’s contradict assessment of Smith as in- report’s findings cause the are corroborated tellectually testimony, disabled. McCarver's impaired substantial evidence of Smith's above, strongly as recounted reinforces functioning. agree report mental We that the conclusion that Smith was dis- probative lay testimony constitutes witness explanation abled. LeBlanc’s that he and Arellano, disability. Smith’s See P.3d at large jobs Smith held a number of short-term Accordingly, light forego- and in fancy as a result of their "footloose and free” ing discussion of the limitations of the Rule lifestyle, suggestive transient is at least as reports, we find the state court’s determi- indicating traits as of reports greater nation to afford the Rule 11 expected the standard of behavior weight presentence report, than the age and its group. Accordingly, Smith’s and cultural critique Thompson's contrary we of Dr. find the state court’s determination that conclu- sion, support McCarver and LeBlanc were more credible lacks fair in the record. Testimony by Dr. Dr. inability Thompson ther demonstrates personal expected indicating possessed standards Martinez that Smith meet the independence. adaptive some skills does not alter the highly that it probable conclusion is viewed Smith’s Although Dr. Martinez experienced significant impairment Smith as evidence of his ability to date women adaptive at behavior the relevant times. abilities, testimony clearly adaptive The evidence that Smith exhibited limited only The evidence of little worth. adaptive substantially abilities is out- mar- life is his five failed romantic weighed far-reaching evidence more a paint picture of which riages, the details note, adaptive impairments. more- We Dr. Martinez’s assess- inconsistent with over, that Arizona law does not mandate a marriages three lasted first ment. Smith’s strengths. nineteen months. complete adaptive cumulative total of absence a (“The III, notes that Smith presentence report 291 P.3d at 357 record See Grell life, wife, threatened her his fourth beat also contains some indications of Grell’s pretending to enjoyed tying up her and ability adapt. Although limited this evi- her, other occasions forced and on rape difficult, diag- dence makes our decision a against intercourse to submit to anal her retardation, statutorily nosis of mental as Lewis, Beth will. Smith married her defined, require a complete does not ab- wife, 1980, shortly be- fifth in November skills.”). sence of Lewis, According to at his arrest. fore regard reports Nor do we the Rule their relation- point she decided to end one inconsistent with our conclusion. As the very angry; he ship and Smith became Supreme Court and our own Court have and, shaking it in front of grabbed gun held, the ultimate conclusions stated in her, it? I can end it said “You want end reports these Smith understood —that life, Afraid for her Lewis said for us.” right wrong, difference between and and con- anything.” that she would “do After trial —are in competent stand offer, templating this Smith decided the disability. consistent with intellectual See pair get should married. That same eve- Atkins, at 536 U.S. S.Ct. ning, pushed Smith Lewis into the back- (“Mentally frequently persons retarded pantyhose. of her car and tore off her seat right know the difference between and cry- began screaming Lewis said she and trial.”); wrong competent and are to stand stop, which he ing begged and Woodford, v. 334 F.3d Rohan ex rel. Gates did, leading her to conclude he “[s]o (9th Cir.2003) (“Incompetence 810 n. 3 actually I me.” Follow- guess rape didn’t overlapping and mental retardation are encounter, ing this Smith drove Lewis’s Many in categories. but distinct retarded on occasions and waved a home several tri competent dividuals are still to stand her; couple married a short pistol at al.”), Ryan abrogated grounds by on other time later. fail to see how Smith’s We — Gonzales, U.S.—, v. 133 S.Ct. marriages, at least some of which serial (2013). Nor, for that 184 L.Ed.2d involved death threats as well as incidents matter, finding that Smith is Dr. LaWall’s assault, actual sexual ex- of simulated and with antisocial personality had a disorder personal indepen- hibit the “standards of our conclusion features inconsistent with responsibility expected dence and social behavior, impaired adaptive es regarding age group.” cultural the defendant’s immaturity and pecially light of Smith’s Rather, they further demonstrate III, 291 P.3d childlike conduct. See Grell affecting this and so adaptive impairments testimony that (citing expert many other areas of Smith’s childhood personali- or Grell a mere conduct life. had “[i]f adult Applied 2. The ... he would have committed State Court ty disorder against the rules and Unconstitutional Standard simply acts that were ..., did, acting, than as he of Proof deviant rather imma ways embarrassing that were factual determination The state court’s ture,” noting personali that antisocial separate is not entitled to deference for a ty is not inconsistent with intel disorder independent reason. The Pima Coun- —Cain, disability); lectual Brumfield ty Superior Court found Smith was not —, 2269, 2280, 192 U.S. by applying an in- disabled (“[A]n (2015) per antisocial L.Ed.2d 356 legal correct and unconstitutional stan- ... intel sonality is not inconsistent dard, question of law we review de novo. disability.”). lectual recognized As the Tenth Circuit has majority the evidence The vast of cases, pre-AEDPA a state court’s factual strongly points to the conclusion that determination rendered under a constitu the Smith was unable to stan- “meet[] tionally impermissible legal is not standard personal independence dards of and social presumption to a of correctness. entitled age of responsibility expected [his] Cook, Lafferty See v. 949 F.2d group,” age cultural before the of both (10th Cir.1991) (“The inquiry n. 4 initial eighteen and at the time of the crime. must be whether the court made its Utah 13-703.02(K)(1). § Ann. Ariz.Rev.Stat. findings legal fact under the correct stan Accordingly, we conclude that the state competency. dard of It is elemental that pre-ar- court’s determination that Smith’s finding fact made under an erroneous view significant impair- rest life did not show of governing presumed the law cannot be fairly in adaptive ment behavior is not Only concluding correct. after that a state supported the record. a proper court used the standard does pre court turn to the issue of the habeas sum, In conclude that under we correctness.”); sumption of accord Walker 2254(d)(8) § weight the clear of the evi- Oklahoma, Att’y v. Gen. 167 F.3d presumption dence overcomes the of cor- (10th Cir.1999) (“Mr. com Walker’s attaching rectness to the state court’s petency was determined under a constitu finding intellectually Smith was tionally impermissible proof. standard of disabled, as well as the state court’s ancil- Such a determination is not entitled to a lary necessary factual determinations correctness.”).24 presumption of Specifically, its ultimate we conclusions. grounds have on In County Supe found the which the the section of the Pima Thompson’s state court discounted Dr. rior Court’s decision entitled “Burden of Proof,” testimony support legal lack fair in the record the court described the stan product legal governing and are the of error. Smith’s Atkins claim.25 dard 24. The dissent in Lafferty finding. contended that the valid Where a state court has made additional, majority by inserting pre- finding, nothing erred an no valid there is to which a liminary step in its review of the presumption may state court's of correctness attach. determination, contrary require- factual to the introductory regarding 2254(d). its statement ments of 28 U.S.C. F.2d at review, J., the standard of the state court stated (Brorby, dissenting). 1558-59 & nn. 2-3 proving that Smith had the burden of majority clearly correct. a Because convincing claim Atkins clear and evi- factual determination rendered under an er- that, unique pro- dence. It added due to roneously legal inflated and unconstitutional case, posture cedural it also question standard does not would resolve apply preponderance whether the same of the evidence answer obtains under standard, applicable proceedings, correct lower the factual determina- standard to Rule 32 tion rendered cannot to constitute a and that its decision would be the same un- be said meaning the clear ‘highly probable’ analyzed the evi- subsequently The court standard.”). ultimate dence, convincing it set forth its which after opinion. of its final section finding in the sure, misapplication To be state’s “[a] de- “the circumstances It concluded provide own laws does not basis for its point to hearing do not at the scribed corpus.” granting a federal writ habeas any degree cer- mental retardation Hartley, 640 Roberts v. F.3d added.) A court’s (Emphasis tainty.” (9th Cir.2011). proce- A state’s Atkins governing legal proper recitation of case, present special however. dures from holding its does not insulate standard “ ‘[Bjecause for the states Atkins reserved the record demon- review where habeas developing appropriate ways the task actually applied that the court strates pro- the constitutional restriction’ enforce v. standard. See Sears unconstitutional hibiting the execution of the 945, 952, 130 S.Ct. Upton, 561 U.S. disabled, conducting habeas ‘federal courts (2010) curiam) (“Al- (per 177 L.Ed.2d 1025 routinely look to law ... review state have stated appears to though the court applies how Atkins order to determine standard, it did not proper prejudice ” case at hand.’ specific Williams how that standard correctly conceptualize Cir.2015) (6th Mitchell, 792 F.3d case.” circumstances of this to the applies (6th Bell, 81, v. 664 F.3d 92 (quoting Black omitted)). (footnote Here, because the Cir.2011)). differently, Stated Atkins no other mention of the court made state developing leaves to the states the task standard, its and because legal correct procedures to enforce the con- appropriate that the analysis no indication provides the right, stitutional but constitutionalizes legal the correct actually applied court state creates. Conse- procedures the em- than the standard rather standard analyzing an quently, where a state court facts, the applied it the law to ployed when binding to follow state Atkins claim fails in the introduc- statements boilerplate its law, violate simply its decision does not section are of no tory “Burden of Proof’ law, Eighth also violates the state but force or effect. and right provided by Atkins Amendment law, “any degree of Arizona the Under by cognizable the violation is therefore Pima by the certainty” applied standard (“[Wjhere a court. Id. federal habeas akin to the County Superior Court is more clearly ‘contrary to’ decision is state-court clear than the “reasonable doubt” standard precedent supreme court established state Ari- by mandated convincing standard and Atkins, ‘contrary the decision is applying statute, only requires Atkins which zona’s ’ of habeas review” purposes for to Atkins be under consideration that the issue Black, AEDPA); 664 F.3d see also under King, v. 158 “highly probable.” See State (“[Bjecause to the Atkins defers at 97 (1988) 419, 239, 243, 246 Ariz. 763 P.2d the standard to set out individual states errone- providing trial court for (reversing mentally re- qualify for a defendant instructions, explaining that jury and ous tarded, misinterpreta- the [state court’s] now before us utilized instruction “[t]he court’s supreme decision] state [the tion defining the clear ‘certainty’ in the term Atkins”). contrary We believe convincing and standard.... applied Here, “certainty” standard concept of ‘certainty’ is truer to the con- plainly trial court was by than to the state a reasonable doubt proof beyond meet a ing it did not body all the evidence standard. The der that lower however, opinion promise, “certainty” did not fulfill standard. but, rather, court concluded after review- 1198 determining discretion in such convincing standard checked

trary to the clear Rather, procedures, however. to be con- adopted by statute and required Arizona’s stitutional, must con- procedures a state’s supreme its court. See Ariz.Rev.Stat. ways to “appropriate stitute 13-703.02(G); at § 135 P.3d Ann. Grell enforce If (emphases restriction.” Id. constitutional (“The on defendant places 701 statute ‘the added) Ford, at 106 (quoting U.S. proving ... mental retarda- burden 2595). The citation to Ford S.Ct. Court’s in convincing evidence’ tion clear Ford, majority reinforces this view. (alteration hearing.” origi- in pretrial proce- specific of the Court found Florida’s 13-703.02(G))). nal) According- (quoting sanity of a con- determining dures for ly, proof applied by the standard of prisoner constitutionally inade- demned simply contrary was not state trial court Ford, at quate. See 477 U.S. un- state law but was also unconstitutional 2595; see also at 106 S.Ct. S.Ct. id. Atkins, Williams, 612; see 792 F.3d at der 424-25, (plurality opinion); id. Black, 97, and, accordingly, the 664 F.3d at (Powell, J., concurring part S.Ct. findings any def- state court’s are not due concurring judgment); in.the id. at Lafferty, 949 F.2d at 1551 n. erence. See (O’Connor, J., 427, 106 concur- S.Ct. Walker, 4; 167 F.3d at 1345. dissenting ring part the result the standard of There is another reason part). proof applied by the state trial court is operation the natural of a state’s When unconstitutional, even if it and would be procedures rendering factual determi- state law: a “certain- were consistent with transgresses nations a substantive consti- lim- ty” proof transgresses standard of right, procedures tutional those are uncon- authority appro- its of the state’s to craft Alabama, Bailey stitutional. See and, in priate procedures to enforce Atkins 239-44, U.S. 55 L.Ed. doing, so encroaches on the substantive (1911). elementary 191 It is that the “nat- In right. reaching constitutional this con- heightened ural a operation” applying clusion, necessary it is not to determine proof standard of can determine the out- proof what standard of the federal Consti- availability litigation, come of and thus the only tution rather requires, but whether 244, right. of a constitutional See id. at 31 applied the Arizona a it court standard (stating S.Ct. 145 that “we must consider Smith, forbids. v. at Schriro 546 U.S. Cf. operation the natural of the statute here in (state 7-8, procedures 126 7 S.Ct. Atkins question”). Supreme As the has Court subject may, application, “in their be to recognized, impossible it is often to ascer- challenge,” constitutional but the state disputed certainty. tain facts with absolute opportunity apply must first have an to Nebraska, 1, 14, Victor v. 511 U.S. 114 them). (1994). 1239, 127 S.Ct. L.Ed.2d 583 Con- Atkins, Supreme the did not Court sometimes, sequently, “the trier of fact will specific proof gov- announce a standard of efforts, despite wrong his best be in his erning disability. claims of intellectual In- Winship, factual conclusions.” In re 397 stead, Court, citing the v. Ford Wain- 358, 370, 1068, 90 25 L.Ed.2d U.S. S.Ct. wright, it “leav[ing] stated that was to the (1970) (Harlan, J., concurring). 368 “The developing appropriate States the task of proof function of a standard of ... is to ways to enforce the constitutional restric- concerning ‘instruct the factfinder the de- tion upon execution of sentences.” [their] gree society of confidence our thinks he 317, (quoting 536 at 122 2242 U.S. S.Ct. in should have the correctness of factual Ford, 405, 416-17, adjudi- 477 U.S. at 106 S.Ct. a particular type conclusions for ” 2595). Texas, 418, un- 441 Addington This did not leave the states cation.’ v. U.S.

1199 (1979) jective analysis through filtered 1804, 423, 60 L.Ed.2d 323 99 S.Ct. 370, diagnostician. This experience 397 at 90 Winship, In re U.S. (quoting very it for J., process often makes difficult (Harlan, concurring)). As a 1068 S.Ct. expert physician offer definite result, proof] serves [of standard “[t]he any particular patient. conclusions about the liti of error between allocate the risk discipline, the medical the tradi- Within 441 at 99 Addington, U.S. gants.” “factfinding” is a Oklahoma, tional standard 1804; 517 Cooper v. S.Ct. see certainty.” If a “reasonable medical 348, 362, L.Ed.2d U.S. difficulty has psychiatrist trained (1996) (“The stringent ‘more the bur categorical “beyond a reasonable bear, the more party a must proof den of standard, lay ju- doubt” the untrained bears the risk of erroneous party ” judge— indeed even a trained ror —or Director, (quoting decision.’ Cruzan rely required upon expert who is Health, 261, 283, 110 497 U.S. Dept. Mo. criminal (1990))). opinion could be forced 111 L.Ed.2d S.Ct. reject proof law standard of commit- heightened risk present Atkins claims many patients desperately ment for Unlike an erroneous factual conclusion. psychiatric need of institutionalized care. in which the basic factual determinations fact occurred—for ex- is whether a issue We have concluded that the reasonable- actually com- a defendant ample, whether inappropriate doubt standard is in civil he is accused— mitted the act of which because, proceedings given commitment disability, like intellectual determinations psychiatric diagno- the uncertainties diagnosis, depend upon psychiatric which sis, the state may impose it burden expert’s interpretation on an turn thereby cannot meet and erect an unrea- Addington, various facts. meaning of Cf. to needed medical sonable barrier treat- As the at 99 S.Ct. 1804. U.S. ment. rejecting explained Supreme Court (citations 430-32, requires the Constitution omit- argument Id. S.Ct. ted). in the also in other of a reasonable doubt standard Similar concerns arise use psychiatric diagnosis. proceedings, requiring civil commitment contexts context of Ford, diagnosis 477 U.S. at 106 S.Ct. 2595 psychiatric nature of See unique (Powell, J., concurring part and concur- uniquely renders factual determinations (sanity); ring judgment) Cooper, certainty. unsusceptible to 365, 369, (competen- 116 S.Ct. 1373 U.S. at psychiat- nuances of The subtleties and cy). virtually certainties diagnosis ric render in most situations. The

beyond Addington reach in espoused The concern re of criminal psychi standard of garding imprecision reasonable-doubt the inherent in there law functions its realm because of mental for atric determinations illness specific, applies is addressed to civil commitment purpose the standard of Psychiatric diagnosis, greater psychiatric force to de knowable facts. with even contrast, disability on of intellectual under large in is to a extent based terminations Atkins,26 proceed- Unlike civil commitment “impressions” drawn from sub- medical seeking to consequence analysis that whereas under Atkins an individual It is of no to the Addington and Atkins involve different bur- avoid execution the state must demonstrate bar, situations, proof than the case at because the dens disability. In both intellectual of effect the standard focus here is on the of heavily upon psychiatric relies determination of Addington, desiring the proof. Under a state opinion, situations a stan- and thus in both dem- civil commitment of an individual must requiring "any degree of cer- proof dard of illness, that he suffers from mental onstrate irrespective degree an indi- viduals of the of their ings, inquire into whether which mentally poses disability. ill and a presently vidual is others, age himself or of danger to only uniquely Not are Atkins claims sus- requires claims a onset element Atkins to erroneous factual determina- ceptible retrospective analysis of the individual’s tions, they capital in a but occur context— or, capacity may years be childhood punishment requiring heightened a de- — case, even decades removed from in this certainty that the decision is not gree Moreover, in the time of trial. cases like erroneous. “Because the standard this, predates in which the trial Atkins and comparative frequency of proof affects the Petitioner’s claim arises for the first time outcomes, ... erroneous the choice of the habeas, on the determination of mental in applied particular standard to be a kind at the condition time of commission should, world, in a rational litigation may crime occur not at trial but rather comparative reflect an assessment of the decades afterwards. Smith’s case illus- disutility In re Winship, social of each.” trates the difficulties inhere such (Harlan, J., 397 U.S. 90 S.Ct. 1068 below, inquiry: as discussed records concurring). Supreme Court’s re- detailing the administration of childhood holdings capital require cases peated unavailable, lay are witnesses tests certainty that heightened degree a in psychology untrained are asked to share is make clear its punishment lawful deter- distant recollections of Petitioner’s behav- “disutility” mination that of a the social Certainty young

ior as a child and adult. outweighs execution wrongful “disutili- certainty less and a is thus even attainable ty” favoring of errors defendants. See constitutionally standard is even less ac- 333, 342, Taylor, Gilmore v. 508 U.S. ceptable such cases. (“[T]he (1993) 2112, 124 L.Ed.2d 306 S.Ct. compounding Eighth requires greater Further the likelihood of Amendment de- gree accuracy factfinding error in Atkins claims is the fact that the than (85 case.”); overwhelming majority percent) of in- noncapital would be true Ford, dividuals with intellectual fall (plu- U.S. at 106 S.Ct. 2595 Ohio, category, rality “mild” for opinion); into the whom the Lockett v. 438 U.S. 604-05, misdiagnosis particularly likelihood of is 57 L.Ed.2d . (1978) (“[The] young (plurality opinion) acute. As children such individuals qualita- indistinguishable are often from children tive difference between death and other disability, penalties greater degree without and as calls for a of reli- they ability can acquire adults social and voca- when the death sentence is im- adequate posed tional skills self- .... minimum When the choice is between life 43; death, AAIDD support. heightened DSM-IV see also risk of wrongful [a (“Individuals ed., at 47 11th execution created a state [intellec- statute] disability] typically tual demonstrate unacceptable incompatible both with the strengths Eighth and limitations be- commands of the and Fourteenth havior.”). fact, Daryl Amendments.”); Atkins himself Woodson v. North Car- olina, 280, 305, 2978, only “mildly maintained that he was men- 428 96 U.S. S.Ct. 49 (1976) Atkins, 308, tally retarded.” 536 at L.Ed.2d 944 (plurality opinion). U.S. Ac- Atkins, However, where, applies cordingly, 122 S.Ct. 2242. Atkins as in the Eighth equally intellectually indi- Amendment a all disabled renders class of individuals 432,

tainty” by Addington, law will often burden. See as defined Arizona 441 U.S. at impossible party cariy render it for a its S.Ct. 1804. execution, proof “appropriate standard of is not an ineligible for categorically way[ [protec to enforce the constitutional ] a to determine whether used procedures Atkins, by mandated Atkins. tion]” may that class falls into defendant 317, short, at 122 S.Ct. 2242. In U.S. errone- nearly all of the risk of an allocate forbids a requiring Constitution defendant the defendant. ous determination intellectually disability to demonstrate to demonstrate with By requiring Smith “any degree certainty.”28 of Because intellec certainty” that he is “degree a of County Superior the Pima made Court its disabled, Arizona court disre tually intellectually is not finding that Smith dis Simply fundamental rule. garded this by applying unduly abled an incorrect and stated, highly unusual the court took standard, legal onerous its ultimate factual nearly the entire risk step27 allocating of is not determination consonant with the to Smith. an erroneous determination of A Eighth finding Amendment. is question factual determination That the legal pursuant wrong made stan certainty an issue for which concerned finding at Accordingly, dard is not a all. unattainable, Addington, may be cf. application the state court’s of unconsti 429-32, penal and a at 99 S.Ct. U.S. an in proof provides tutional standard reliability ty greater degree a which dependent ground and alternative for de Gilmore, see, at e.g., 508 U.S. required, is nying presumption its determination a 2112; Lockett, at 438 U.S. S.Ct. correctness. (1978) 604-05, (plurality viola opinion), renders the constitutional Intellectually D. is Whether Smith the Alabama tion more clear. Like even Disabled Bailey, proof the standard of statute Having determined that the state County Superior the Pima applied court’s determination is not entitled to a transgresses in this case a substan Court correctness, we must re presumption by accomplishing right tive constitutional de novo to determine view the record di indirectly may what the state not do intellec whether Smith has demonstrated rectly: the execution of individuals who disability by convincing clear and evi tual under Atkins. are disabled dence, by Arizona For all required as law. Bailey, 219 31 S.Ct. 145 See U.S. II.C.l, reasons set forth in Section we (“It apparent prohi that a constitutional in Considering that he has. hold indirectly by transgressed cannot be bition functioning test scores and his tellectual any of a [procedural rule] the creation history significantly impaired it can violated direct behavior, more than be we must under Atkins and Atkins, enactment.”); 122 Hall, 536 U.S. at case find that the record this we the sub demonstrates that Smith impairs overwhelmingly S.Ct. 2242. Because it prongs of Ari- “certainty” court’s satisfied the two substantive right, stantive state Humphrey, ponderance Hill v. Only Georgia applies a more onerous stan- standard. Cir.2011) (en (11th dard, F.3d 1365 n. 1 requiring proof J., (Barkett, contrast, banc) dissenting). By beyond a reasonable doubt. ev- proof ery a standard of other state to establish imposes "clearly standard than the a more relaxed satisfies the lower 28. Because Smith applied required by convincing” here. In addition to Ari- Arizona’s state court standard Colorado, Delaware, statute, zona, without de- only four it can be assumed Atkins states — Florida, statutory apply ciding is consti- and North even standard Carolina — standard, However, many of the concerns clearly convincing and the remain- tutional. and con- pen- expressed apply to the clear ing twenty-two imposing the death here states vincing apply pre- standard as well. alty government and the federal time committed disability eighteen of intellectual and at the zona’s definition The age eighteen capital overwhelming and at the time offense. prior both Specifically, weight compels Smith’s Otis of the evidence this result. of the crime. may poor score of combined with his Smith is disabled and test Atkins, clearly demon- not be executed. 536 U.S. at performance, academic 2242; Hall, signifi- of his 134 S.Ct. at 1992. the childhood onset strates cantly subaverage general Accordingly, intellectual we reverse Smith’s death sen- tence and remand to the district court functioning. The record further demon- with that, grant Dr. instructions to the writ as to his Thomp- strates consistent with testimony, capital sentence. experienced son’s Smith also this condition at the time of the crime: CONCLUSION in func-

improvement Smith’s intellectual incar- tioning did not occur until after his judgment of the district court is environment, in a when ceration structured reversed. We remand with instructions to began receiving appropriate antidepres- he grant respect penalty writ with to the tutoring sant medication as well as from phase and return the case to the state many Labrecque paral- and Schad. The court to reduce Smith’s sentence to life lels between Smith’s life and that of the natural life. Grell,

capital including defendant REVERSED AND REMANDED. skills, Smith’s stunted communication lack skills, personal immaturity, care severe SCHROEDER, Judge, Circuit inability employment to maintain and concurring judgment concurring in the personal relationships, signifi- reveal his part: impairment cant behavior as a Judge I concur in all of Reinhardt’s crime, child and at the time of the as does opinion except Section II.C.2. general inability navigate

his lifelong social world. REINHARDT, Judge, specially Circuit concurring:

There can no doubt that the be truly Obviously, entirely crime this case was horrific. The I concur in the ma Constitution, however, regards jority intellectual I opinion. special write this concur ly morally only disabled defendants as less cul I compelled rence because feel crimes, pable convey my for their and for this reason regarding serious concerns Atkins, prohibits constitutionality their execution. U.S. Arizona’s Atkins stat 2242; Hall, 316, 122 S.Ct. 134 S.Ct. at ute. The issue before us is not limited to whole, Rather, Viewing 1992. the record as a we the case of Robert Smith. find that infirmity Smith has demonstrated clear constitutional of Arizona’s statute convincing significantly evidence sub- a recurring problem potential creates with average general functioning ly ex far-reaching consequences: Arizona has isting Atkins,1 concurrently significant impair executed 15 inmates since and 124 behavior, row, ment in adaptive and that both inmates remain on its death prior age eighth highest any conditions were manifested number of state.2 As Statistics, figure 1. Bureau July of Justice "Prisoners exe- 2. This is current as of Center, Penalty Death authority See Information Death cuted under civil in the United State, http://www.death States, Row Inmates by year, region, jurisdiction, penahyinfo.org/death-row-inmates-state-and- (Dec. 10, 2014). 1977-2014” size-deathrow-year?scid=9&did= 188# state (last 2016). visited Jan.

1203 (9th ed.1992) issue, Support [hereinafter terns below, the presented if with detailed of ed.], v. and a second from the light that in of Hall AAMR 9th likely hold I would — 1986, U.S.—, Florida, Psychiatric 188 American 134 S.Ct. fourth edition of the (2014), (APA) substantive both Diagnostic and Statis- L.Ed.2d Association’s disability (4th intellectual Arizona’s prongs Mental Disorders tical Manual of function “intellectual governing ed.2000) Id. at 309 DSM-IV]. [hereinafter statute — the behavior”—violate “adaptive ing” and 3, n. 2242. The AAMR defines S.Ct. they permit because Amendment Eighth as characterized intellectual Atkins individuals whom the execution (1) “significantly clinical elements: two capital ineligible for categorically deems (2) functioning,” subaverage intellectual punishment.3 concurrently related limita- “existing with areas,” Atkins, the ... skill which Supreme adaptive Court cited tions in

In the disability, age for intellectual definition must “manifest before [themselves] clinical clear that this definition ed., not make supra, but did 9th at 1. The 18.” AAMR Hall, how- states. binding on the similarly defines intellectual dis- DSM-IV com- ever, held that states must (1) the Court “significantly ability consisting of the clinical definition elements ply with function- subaverage general consen- there exists a national which about (2) by significant limi- ing,” “accompanied Arizona’s substan- both of sus. Because functioning,” where tations in more restrictive than are prongs tive age ... occurs[s] onset before “[t]he definition, a national and because clinical DSM-IV, supra, at 41. The years....” perti- regard consensus exists “statutory that the states’ def- Court noted definition, of the clinical elements nent retardation are not iden- initions of mental uncon- in all likelihood statute is Arizona’s tical, to the clinical generally but conform stitutional. by the AAMR and set forth definitions” Atkins, at n. APA. 536 US. Supreme Embraces A. The Court S.Ct. 2242. of Intellectual Definition Clinical expressly state whether Atkins did not Disability a substantive definition establishing it was 314-16, Virginia, v. 536 U.S. In Atkins disability as a matter of intellectual (2002), 2242, 153 L.Ed.2d S.Ct. explained that federal law. The Court “national Supreme Court identified disagree there is serious the extent “[t]o executing the intellec against consensus” mentally re execution of ment about the disabled, survey of from its tually gleaned offenders, determining it tarded legislation exempting passing states Id. are in fact retarded.” which offenders pen from the death disabled Citing 2242. Ford at consistency of the direction alty and the 399, 106 S.Ct. 477 U.S. Wainwright, de change. The Court legislative such (1986), explained the Court 91 L.Ed.2d 335 by citing two retardation” fined “mental task of to the State[s] it “le[ft] definitions, ninth edi one from the clinical ways to enforce developing appropriate Mental Association on of the American tion exe upon [their] restriction (AAMR) constitutional Mental Retarda Retardation’s Atkins, 536 U.S. Sys- cution of sentences.” Classifications, and Definition, tion: (2006); 13-703.02(K)(3) Ariz.Rev.Stat. §Ann. of the Arizona statute The third element (2015). 13-753(K)(3) no rea- There is func- Ann. requires the onset of the intellectual element is in itself this son to believe tioning adaptive behavior deficits occur eighteen. unconstitutional. age Ariz.Rev.Stat. before Ford, twenty- courts in 317, 122 (quoting penalty, 2242 477 U.S. of the death S.Ct. (first 2595) 416-17,106 405, implied altera or that Atkins at S.Ct. three have stated added). retardation, cited sections of tion Because the mental but in- did not define issues, states.”). and only procedural Ford address left that task to individual stead regarding the substantive defi say nothing — Florida, —, In v. U.S. 134 Hall insanity, straightforward a read nition of 1986, (2014), 188 L.Ed.2d 1007 how S.Ct. it ing of the Court’s statement is ever, that, contrary held to what Court the determination of leaves to the states court had the state courts and our own only. differently, procedural issues Stated a thought, Atkins set forth substantive Atkins, did reading under this the Court disability encoih- definition of intellectual defining not leave to the states the task of clinical passing aspects those of the defini disability, merely the task intellectual but which a national consensus ex tion about capable of use determining procedures (“The question at 1993 this ists. See id. identifying per in disabled disability presents case is how intellectual majority a in sons. Because Court implement must defined in order to be specific procedures Ford found Florida’s holding and the of At principles these determining sanity for of a condemned (“The kins.”); id. at 1999 clinical defini prisoner inadequate “to achieve even the disability intellectual ... were a tions of degree reliability required minimal Atkins.”); premise fundamental oí see also protection any constitutional inter (6th Colson, 594, Tran v. 764 F.3d 612 Van est,” conclude that a it is reasonable to Cir.2014) (“In Hall, the Court reasoned in area is simi state’s discretion even this requires the courts that the Constitution 413, larly circumscribed. 477 U.S. at 106 clinical legislatures practices and to follow 2595; 418, at S.Ct. see also id. defining disability.”). in intellectual In 424-25, at (plurality opinion); 2595 id. 106 Hall, the Court held unconstitutional Flor J., (Powell, in concurring part S.Ct. 2595 IQ use of a strict score cut-off of 70 ida’s concurring judgment); in the id. at taking into account the mar without test’s 427, (O’Connor, J., 106 S.Ct. 2595 concur error, gin of known as a “standard error of ring part dissenting in the result in “SEM,” ap or this measurement” because part). proach deviated from the clinical definition Nevertheless, generally interpret- courts Atkins, and because a nation embraced Supreme ed Atkins to mean that the Court regard al consensus existed with to this did not establish a substantive definition of Hall, aspect of the clinical definition. disability, intellectual and instead included 2000; (finding see id. at 1997-98 S.Ct. the substantive definition of intellectual IQ against using consensus a strict score disability among as the tasks left to the considering of 70 without the mar cut-off Schriro, v. states. See Moormann practice because gin of error such (9th Cir.2012) (“The 644, F.3d Su- most, mandated nine states at the preme did not define men- Court Atkins legislatures all but one of the state because tal retardation as a matter of federal to have considered the issue after Atkins law.”); Cnty. ex rel. Williams Cahill interpreted by and whose law has been its Pima, 232 Ariz. 303 P.3d foregone have use of a strict cut-off courts (App.2013)(“[Ejvery other state court that 70). has addressed the issue has determined although The Court concluded that Flor- implied that Atkins allows the states to facially appeared ida’s statute consistent define mental retardation without strict Atkins, Supreme the Florida Court adherence to the clinical standards. Of thirty-three interpreted provision had more nar- permit states that still use 13-753(K)(5) (2006); Ariz.Rev.Stat. Ann. it inconsistent with At- rendering rowly, (2015). Thus, statute, like Florida’s Ari- Id. at thus unconstitutional. kins and appears zona’s statute constitutional on its the Court stated Specifically, Hall, However, high- had held face. Arizona’s Supreme Florida Court that the given above est court has the statute an unconsti- with an score that an individual Roque, tutional construction. State v. not have an 70 does (2006) Ariz. 402-03 any other P.3d presenting is barred from (en effect, banc), contrary Supreme to the the Arizona Court re- to this evidence IQ jected contention that community’s views that scores the defendant’s medical in light be test score be considered of the inherently imprecise and should are error, explaining of of that “the margin margin in of their er- test’s light considered disability] explained statute accounts for [intellectual 1994-95. The Court ror. Id. at margin by requiring multiple should be read not as of error “IQ test scores range” approach accounting a tests.” This to fixed number but as single a margin using multiple im- of tests the test’s inherent taking into account error — taking score is without into consideration the mar- and that “an individual’s precision, of for each test administered —is range gin a of scores on error understood as best Rather, by un- expressly Id. at foreclosed Hall. of the recorded score.” either side Hall, apply margin a a state must of thus held that “when der 1995. The Court range likely of meaning falls within the scores IQ test score defendant’s error — subject’s IQ margin represent actual acknowledged and inherent test’s —to Hall, error, every administered. See must be able to test the defendant (“Even when a person intellectual S.Ct. at 1995-96 has additional evidence of present tests, multiple separate taken each score testimony regarding disability, including using must be assessed the SEM.... [Be- Id. at 2001. adaptive deficits.” flawed, may be cause the test itself Definition of Intellectual 1. Arizona’s consistently in flawed man- administered a Functioning is Unconstitutional ner, in may examinations result multiple scores, so that even a repeated similar approach states’ surveying other While score is not conclusive evidence consistent assessing functioning the intellectual Thus, in functioning.”). as of intellectual disability, the Hall prong of intellectual Hall, inter- highest court has the state’s constitutionality questioned Court facially a constitutional statute preted IQ determining method for Arizona’s unconstitutionally application exclude purport but did not scores under Atkins IQ individual test admin- the SEM to each Id. at 1996-97. The decide the issue. Supreme Because Arizona’s istered. at place of Arizona’s statute version statutory requirement construes the Court hearing, like evidentiary time in a margin a test’s of error to consider statute, version of the includes the current directly contrary required to that manner pre- IQ hard cut-off score of a Hall, IQ renders unconstitutional the by it presenting from addi- cludes a defendant intellec- of Arizona’s statute —the provision disability if evidence of intellectual tional of intellectual dis- functioning prong tual scores are above all of his or her test ability. 13-708.02(F) § Ann. 70. Ariz.Rev.Stat. 13-753(F) (2006); § Ann. Ariz.Rev.Stat. Adaptive 2. Arizona’s Definition of (2015). However, also Arizona’s statute Behavior is Unconstitutional courts to “take into account

instructs not address the sec- Although Hall did margin of error for the test administered.” 13-703.02(K)(5) for intellectual disabili- requirement Ann. ond Ariz.Rev.Stat. consensus, evidence a national courts adaptive behavior—its ty—limitations consistency the direction and reasoning to this clinical element also consider applies fail to have defined change states how states equal force. Where “adaptive the clinical definition of behavior since Atkins was decid- adaptive abide adopted forth in Atkins and at If a court deter- behavior” set ed. See id. 1997-98. states, they exists, national consensus of it pro- mines that such a consensus just they Eighth Amendment step violate ceeds to the next and determines functioning in the of intellectual whether, do case independent judgment, in its they the execution of indi- permit because adaptive state’s definition of behavior ineligible for viduals whom Atkins deems or unconstitutional. Id. at constitutional Hall, capital punishment. 2000. Hall, short, if a state under There exists a clear national consensus narrowly more adaptive defines behavior the clinical definition of using favor definition, clinical and if the clini- than the in Only behavior. four states adopted by has a na- cal definition been cluding “adaptive Arizona define behavior” states, prong tional consensus of like- appears in terms.4 A fifth non-clinical Eighth wise runs afoul of the Amendment. require showing impaired adaptive no of statutory is the case with Arizona’s Such all, at in states the behavior nine behavior,” “adaptive definition of as con- adaptive definition of behavior is unclear. only by Supreme strued its Court. The nothing Because in the nine states’ stat difference is that here the constitutional suggests utes or case law that courts in violation is even clearer. adaptive those states define behavior in terms, only non-clinical the result a. A National Exists Consensus With five, fourteen, very at or the most states Regard to the Definition Clinical permit can the of a non be said use Hall, in na- As to determine whether a analyze adaptive clinical definition be tional consensus exists within the context havior under Atkins. Amendment, Eighth of the “ courts look ” contrast, thirty-six In prohibit states use ‘objective society’s indicia of standards.’ adaptive of a non-clinical definition of be- Simmons, (quoting Roper at 1996 Id. determining havior whether individu- 551, 563, 125 S.Ct. 161 U.S. intellectually al is disabled under Atkins. (2005)). so, L.Ed.2d 1 To do we must These include the nineteen states that “imple- consider the number of states that penalty, have the death one abolished by” the of protections ment Atkins follow- suspended that has its use. See id. at 1997 ing adaptive the clinical definition of be- (counting among the national consensus id., havior, by expressly either statute or those states have abolished the death by judicial interpretation, Roper, see penalty, suspended and one that has its (deeming U.S. at 125 S.Ct. 1183 use). addition, expressly sixteen states of a national consensus evidence those definition, the require use of clinical either prohibiting juvenile penal- states the death by interpretation statute or of the ty “by express provision judicial or inter- Roper, courts. See 543 U.S. at pretation”), including figure this those thirty-six prohibit- penal- states that have abolished the death S.Ct. 1183. states Hall, ty, ing see at 1997. As further use of a non-clinical definition of S.Ct. complete Appendix A states referenced in this vided in A. list of accompanying pro- section and authorities is consistency change, far the number direction of behavior exceed adaptive required Supreme has Court final in a court’s step inquiry apply states is to its See At- a national consensus. to establish independent judgment own to the constitu- (30 kins, 313-15,122 at S.Ct. 536 U.S. Arizona’s tionality adaptive definition of penalty prohibit death states behavior. See id. at 1999-2000. disabled); Roper, 543 U.S. (30 juve- 564,125 prohibit S.Ct. 1183 states b. Arizona’s Definition is Narrower execution). nile than the Clinical Definition Hall, aggre- simply it is not As in The two clinical definitions cited in At the existence gate numbers determine kins and endorsed a national consen the “[c]on- consensus also of a national but ninth edition sus—the of the AAMR change.” sistency of the direction impaired adaptive the DSM-IV—define num- (comparing at 1997-98 behavior as the existence of deficits two of states that since Atkins passed have ber among more skill areas a list of ten or or cutoff setting a strict score legislation Atkins, total such eleven areas.5 536 U.S. number to either with the of states at 70 3,n. deficits at 309 S.Ct. 2242. These penalty pass legisla- the death or abolish have clinically in themselves deemed been addi- allowing present defendants to tion impairment to show the sufficient evidence tional generally. skills Other measures IQ test is above 70 but when their score a clinical may, standpoint, from be under error). Atkins margin Since within over-inclusive, any they but in event fail decided, only passed state has one clinically recognized require to meet the defining adaptive behavior legislation ments of Atkins Hall. Courts general During peri- terms. the same non-clinieal ly adaptive prong only reach the behavior od, penalty the death six states abolished in case of individuals who demonstrate death a court invalidated the legislatively, below, IQan of 70 or a score limited seventh, in a states penalty and six other of the 9th population. about 2.3% AAMR passed legislation mandating use ed., supra, at 37. the individuals When definition, expressly either stat- clinical as functioning meet the intellectual who interpreted in the state’s statute or as ed Atkins, impairment are evaluated for of prong Since “no state that by the courts. skills under the Atkins clinical in previously adaptive adaptive behavior [defined clinical has modified its law” standards, terms] only general about 1% of the Id. at a non-clinical mandate definition. actually satisfies that standard population of and thus meets clinical definition Psychiatric disability. Am. determined a national con- Having Ass’n, Diagnostic Manual and Statistical of states use of a non-clini- sensus forbids ed.2013) (5th Mental Disorders 38 definition, by the number cal indicated DSM-Vj. short, In it is this taking approach this and the [hereinafter states resources, skills, adaptive community self- ten areas enumerated in sonal use 5. The skill skills, work, direction, edition of the are communi- functional academic the ninth AAMR health, DSM-IV, cation, self-care, skills, leisure, safety. supra, at living, home social self-direction, ah, use, community H. Atkins and health and 41. See John Blume et Of academics, leisure, safety, Men: Deviations Clinical functional Definitions of from Cases, ed., 1, 5, Penalty Retardation in Death supra, AAMR 9th at 38. The Mental work. (2009)’ Pol’y Pub. nearly forth a identical list of Cornell J.L. & DSM-IV sets areas, (describing in the consisting the clinical criteria set forth eleven skill of communica- identical”). tion, self-care, "virtually social/interper- living, home AAMR and DSM-IV as finding based sole- of mental retardation 1% who are deemed be ly proof specific the constitution on deficits deficits disabled and thus under only two areas. penalty. for the death ineligible omitted) (citation (empha- 135 P.3d determining impair- Arizona’s means of added). Construing the Arizona stat- sis differs from the adaptive ment of behavior ute, the Court then found that the Grell nationally agreed upon clinical definition sig- defendant had failed to demonstrate a substantially even more than does its behavior. impairment adaptive nificant nationally approved provision. Unlike the Id. determining impaired clinical means behavior, limita-

adaptive requires which Thus, by the Arizona as construed only minority tions in of established skill courts, determining im- Arizona’s means of areas, Arizona assesses such limitations adaptive behavior is not sim- pairment generally by examining on an overall basis the clinical means re- ply different than degree “the effectiveness or to which the quired by specifically rejects it Hall: personal defendant meets the standards of Supreme clinically Court’s based substan- independence responsibility and social ex- standard; substantially it more re- tive is age and cultural pected of the defendant’s constitutionally required strictive than the § group.” Ariz.Rev.Stat. Ann. 13- standard; and, it fails to cover numerous 703.02(K)(1) (2006); Ariz.Rev.Stat. Ann. from suffering individuals deemed to be 13-753(K)(1) (2015). impaired adaptive behavior under the Con- (Eck- Williams, stitution. 303 P.3d at 548 interpret Arizona courts the state’s stat (“Arizona’s erstrom, P.J., dissenting) entirely utory provision a manner that is [adaptive statutory requirements behavior] than that required different Atkins substantially persons narrow the class of Grell, Hall. 212 Ariz. See State mentally who are defined as retarded (2006); Boy P.3d accord State v. compared the class of when those who ston, 231 Ariz. 298 P.3d such”). clinically would be defined as This (2013). Grell, the defendant asserted because, nationally approved unlike the adaptive that he had satisfied the behavior standard, requires clinical which deficits prong of Arizona’s statute demonstrat only in a minimal number of skill ing deficits two of the eleven areas areas, definition, interpreted Arizona’s Grell, listed in the DSM-IV. 135 P.3d at courts, Arizona im- requires state claim Rejecting compli Grell’s pairments globally be considered and de- DSM-IV, ance with the which Hall makes basis, regardless termined on an overall of constitutionally required clear is the stan specific compel limitations that an indi- dard, statute, satisfies the Arizona the Ari adaptively vidual’s classification as im- zona Supreme Court held that constitutionally paired required under the clearly The defense claims to have clinical standard. shown that Grell has deficits in two departs the eleven areas listed in the DSM-IV Arizona’s from the standard ways. and therefore has mental retardation. clinical standard in two fundamental First, it requires The DSM-IV definition of mental retar- deficits both of two dation, however, general responsibility while similar in overall areas: social contrast, By meaning, personal independence. is not the same as the [Ari- statutory definition. The statute individual evaluated under the clinical defi- zona] requires an overall assessment of the nition need not manifest deficits both of areas, ability society’s any general long defendant’s to meet ex- these or other so pectations require of him. It does not a as he demonstrates deficits in at least two Thus, adaptive individu- limitations often coexist with areas. a number of skill strengths adaptive limita- in other skills or other “significant demonstrate als who (“[A]n id. at 7 personal capabilities”); under the indi- adaptive in ... behavior” tions may a in a strength particular standards based on vidual have or DSM-IV AAMR skills) responsi- adaptive (e.g., social skill area social while other than overall factors (which having difficulty (e.g. in .another skill area personal independence bility and communication); and ... an individual skill areas under either are not discreet standard) satisfy may possess strengths fail to Arizona’s less certain within will skill, particular specific adaptive The Arizona standard while at inclusive standard. having nature the same time limitations within heterogeneous ignores (e.g., a one-size- the same area functional math and imposes adaptive behavior many reading, respectively).”). indi- functional Be- that excludes fits-all definition statutory cause Arizona’s definition of im- falling under the clinical definition. viduals (“[Tjhere behavior, paired adaptive no its 9th ed. 13 is one as defined See AAMR courts, under-inclusive and would not performance. ‘retarded’ way that defines cover numerous individuals who would mental retardation will be Every person with extent, nature, severity impaired adaptive deemed to suffer from in the differ nationally recognized cur- behavior under the functional limitations.... The their definition, by requir- clinical I believe that the Ari- reflects this fact rent definition statute, properly zona when before a fed- of limitations two or ing presence court, eral will in all likelihood be held to variety adaptive skill areas more of limita- unconstitutional. require any single one be but does limita- any combination of specific tion or Although professional manuals cited tions.”). longer in Atkins are no the most current versions, equally the same conclusion is way in which Arizona’s stan- second likely respect to the more recent edi diverges from the clinical definition is dard it, definition, in- the 9th edi Although the clinical tions. Atkins cites unlike DSM-IV, tion of the AAMR and the see an “overall assessment of the defen- cludes at n. Hall ability society’s expecta- meet 536 U.S. S.Ct. dant’s Grell, defini him.” at 709. cites the DSM-V and the eleventh tions of 135 P.3d Association of Intel may that a court conclude that tion of the American This means Developmental lectual Disabilities demonstrating adaptive an individual even (11th (AAIDD) AAMR) (formerly personal areas of required deficits in the ed.2010), 1994, 1995, 2000, nev- see 134 S.Ct. independence responsibility and social editions cited in Hall adaptive meet the be- 2001. Each ertheless does not and charac premise statute be- retains the essential prong havior under the Arizona cited in strengths in certain teristic of the clinical definition cause he has rejected by the Arizona Su outweigh adaptive deficits Atkins and areas that critical, demon preme Court: an individual must others. This distinction is because in recognizes only strate deficits a number skill clinical definition list, among larger deficits are not may alongside weaknesses coexist areas adaptive any specific categories, in listed strengths, requires required adaptive categories in certain independently adaptive deficits adaptive skills be assessed in cer- are and need not be balanced prevent strengths of each other to sufficient outweighed by strengths oth outweighing against tain areas from weaknesses Williams, at 547 303 P.3d (“Specific er areas.6 See others. See AAMR 9th ed. 6 adaptive behavior are portions professional definition of 6. The relevant of each manual's (“[T]he P.J., (Eekerstrom, dissenting) n. 12 Arizona court made no assessment toas any adaptive specific revised AAIDD definition be- whether he met two of the ten [of meaningful departure any not a from or eleven elements listed in Atkins or havior] is criteria or the AAMR’s of the three domains or elements referred either the DSM-IV set in At- to in but relied prior definitional standard forth Hall instead on state’s kins.”); State, ability v. 171 So.3d 471 “overall assessment of to meet [his] Chase (Miss.2015) (“The society’s of him” expectations DSM-V which the [AAIDD disability] Supreme definitions of intellectual have Arizona Court found to be the in- materially diagnosis requirement prescribed altered the in the Arizona directly contrary ] tellectual Atkins but statute. This is to the [cited provided terminology.”); required by have new United substantive clinical standard Williams, F.Supp.3d Finally, respect, v. Atkins and Hall. in this it States (D.Hawaii 2014). that, assessed, important, appears properly 1146-47 Most evident Appeals strongly qualifies the Arizona Court of as disabled rejected questioned expressly updated Atkins and under both the initial and medical the more recent version of the clinical standards. elements, holding that Arizona is not case, right As this announced in guidelines

bound the AAIDD’s clinical may Atkins be all that stands between Grell, because, under Arizona’s definition intellectually disabled defendant and an behavior differs from the clini- However, unconstitutional execution. Ari- Williams, cal definition. 303 P.3d at 541. scheme, statutory zona’s interpreted by courts, foregoing severely

As the discussion demon- its right. erodes that Giv- strates, gravity the Arizona court denied Smith’s en the of this issue and the likeli- arise, likely cases, claim applying Atkins unconsti- hood that it will in future example tutional statute. An of how that Arizona legislature would do well to amend in practical statutory unconstitutional statute works its scheme bring it within the Smith, respect effect is that Eighth boundaries of the Amendment.

Appendix A penalty

I. that retain the death States “adaptive

and define behavior” in

non-clinical terms.

State Citation 753(F); (2006). Grell, § 1 Arizona Ariz.Rev.Stat. Ann. State 135P.3d 13— 591.003(1); Briseno, Safety parte § Texas Tex. & Health Code Ex 135 S.W.3d (Tex.Crim.App.2004). 8-9 § Ann Utah Utah Code 77-15a-102. 10.95.030(2)(d). Washington Wash. Rev.Code penalty any II. require States that retain the death but which do not show-

ing impaired adaptive behavior. Appendix set forth in B.

1211 Citation State Maestas, 21-6622(h), 12b01(i); State v. Kan. §§ 298 Ann. Kan. Stat.

1Kansas 76— (Kan.2014). 765, 783 penal- retain the death III. States

ty the definition in which

“adaptive is unclear. behavior”

State_Citation_ § 18-1.3-1101(2)._ Ann. Colorado_Colo.Rev.Stat. 1 17-7-131(a)(3)._ §Ann. Georgia_Ga.Code 2 State, (Ind. 90,108 Pruitt v. 35-36-9-2; § 834 N.E.2d 3 Indiana Ind.Code

_2005)._ Ann., 905.5.1(H)(1)(b)._ art. Proc. Louisiana_La.Code Crim. defining adaptive has no Atkins statute and no cases Montana 5 Montana _behavior._ defining no cases has no Atkins statute and Hampshire Hampshire New New behavior._ _adaptive Maynard, 3—20(C)(b)(10); Franklin S.C.Code Ann. Carolina South 16— (2003)._ 605-06 _S.E.2d § 23A-27A-26.2._ Dakota SDCL South § 7-ll-301(a)(iii)._ Ann. Wyoming_Wyo. Stat. Iowa Kansas, Wyoming 4. Hampshire, New any executions not carried out

have 5. Illinois only has carried out Colorado decades.7 6. Massachusetts and Montana one execution since Maryland 7. carried out have each South Dakota however, ap cases

three;8 none of these Maine 8. raising the involved a claim pears to have Michigan 9. These states’ defini Atkins-Hall issue. 10. Minnesota Hall, See weight. little tions thus deserve 11. Nebraska Atkins, 1997; 536 U.S. 134 S.Ct. at 2242. S.Ct. North Dakota 12. Jersey 13. New have abolished IV. States Mexico 14. New penalty.9 death 15. New York 1. Alaska Rhode Island 16. 2. Connecticut 17. Vermont 3. Hawaii Center, Center, States Penalty http:// Death Information Penalty 9. Information 7. Death (last Penalty, http:// www.deathpenaltyinfo.org/node/5741 Without the Death With and 31, 2015). July www.deathpenaltyinfo.org/states-and-without- visited 20, 2015). (last July death-penalty visited Id. 1212 Oregon at 1997. does not define S.Ct. Wisconsin Oregon statute and “adaptive behavior” Virginia

19. West courts have considered the issue. y. addition, Oregon suspended has its penalty states that retain death penalty only clinical death and has executed two but utilize the definition of “adaptive Hall, behavior.” past years. individuals in the 40 184 Citation_ State State, (Ala.Crim. CR-10-1343, 5966905, Lane v. 1 No. 2013 WL at *5 Alabama

_App.2013), ___ Norris, 959, (8th Arkansas_Jackson v. Cir.2010)._ 2 615 F.3d 961-62 Hawthorne, (Cal.2005); Campbell 40, In re v. 3 California 35 Cal.4th 47-48 Court, Cal.App.4th 635, _Superior (Cal.Ct.App.2008)._ 159 641 § Delaware_Del.Code 4209(d)(3)(d)(l)._ 4 Ann. Tit. 11 State, 515, Florida_Hodges v. 55 So.3d (Fla.2010).__ 5 534 § Idaho_Idaho 6 Ann. 19-2515A(1)(A).______ Code Commonwealth, Bowling v. 361, Kentucky (Ky. 7 n. 163 S.W.3d 369-70 & 8 _2008)._ § Missouri_Mo. 565.030(6)._ 8 Ann. Stat. State, No.2013-CA-01089-SCT, 1848126, Chase v. Mississippi 9 2015 at *1-6 WL

_(Miss.2015)._ § 10 Ann. 15A-2005(a)(l)b._ North Carolina N.C. Gen.Stat. State, Nevada_Ybarra v. (Nev.2011)._

11 247 P.3d 273-74 n. 6& Lott, (Ohio Ohio_State v. 12 2002),_ 97 Ohio St.3d 305 Ann, § Oklahoma_Okla. 701.10b(A)._ 13 tit. 21 Stat. Hackett,

14 Pennsylvania_Commonwealth v. (Pa.2014)._ 99 A.3d 27 Pruitt, Tennessee_State (Tenn.2013)._ 415 S.W.3d 203-04 Kelly, 19.2-264.3:1.1(A); § Walker v. Virginia' Ann. Va.Code 593 F.3d (4th _323 & n. Cir.2010)._ passed legislation that have VI. States defining adaptive

since Atkins be-

havior in non-clinical terms.

State Citation (West 2003). 1 Utah Utah Code Ann. 77-15a-102 VII. States that have abolished the penalty

death since Atkins.

State_Citation _ Connecticut Conn. Pub. Acts no. 12-5._ (West Comp. 2011), III. Ann. Stat. Illinois_725 5/119-1 seq. (Lexis 2008). §§ Maryland 3-901 et Ann. Corree. Servs. Md.Code 3 268 (2015)._ Laws. L.B. Neb. 4 Nebraska 2C:ll-3(b)(l) (West Jersey § Supp.2007)._ Ann. N.J. Stat. New

5 § (2009)._ 31-18-14 Mexico N.M. Stat. New 6 passed legisla- have States VIII. Appeals invalidat York Court

The New mandating under penalty use death tion since Atkins New York’s ed La People v. in 2004. Constitution State definition clinical 485, Valle, 88, 817 N.Y.S.2d N.Y.3d 783 3 adaptive behavior. (2004). has not legislature N.E.2d 341 it. to reinstate voted

State_Citation_ Hawthorne, 1376(a) (West In re 35 Supp.2003); § Ann. Cal.Penal Code 1 California 40, 47-48 (Cal.2005)._._ _Cal.4th Ann, 4209(d)(3)(d)(l) §11 (2002)._ tit. Del.Code 2 Delaware 19-2515A(1)(A) §Ann. (2003)._ Code 3 Idaho_Idaho State, 269, (2003); Ybarra v. P.3d 273-74 247 § 174.098.7 Nev.Rev.Stat. Nevada 4 _(Nev.2011)._ 701.10b(A) § (2006)._ Ann. Okla. Stat.

5 Oklahoma 319, Kelly, 19.2-264.3:1.1(A) (2003); v. F.3d Walker 593 Ann. Va.Code Virginia 6 (4th Cir.2010)._ & n. _323 v. (amended 2014); State (2003) statute amended a 2003 Louisiana Williams, 880-81 & n. 10 So.3d judicially construed had been Cain, v. F.3d (La.2009); definition, and codi the clinical adopting Brumfield on other (5th Cir.2014), overruled lan uses clinical fied a new definition Dunn, (citing State So.3d grounds has not but which from the DSM-V guage (La.2010)); Proc. Crim. La.Code See La. by courts. construed yet been (2014). 905.5.1(H)(1)(b) 905.5.1(H)(1) Ann. Art. Ann. Art. Proc. Code Crim. B

Appendix 221. 39.

1,5. at at at ed., ed., at41. at33. 11th 10th 33,37, 38. 14,42,198. 13,14. 5,38. at at at217,218,222,224. at at43. DSM-IV, DSM-V, Id. Id. Id. Id. AAMR9thed., /¿at AAMR AAH3D Id. Id. Id. 10. 11. 12. 13. 14. 15. 1. 9.Id. 3. 5. 6. 7. i.Id. 4. CALLAHAN, dissenting: majority recognizes although The Judge, Circuit petition Smith filed his federal habeas pri- thing everyone appears one or to the effective date Antiterrorism and is not agree on is Penalty Act of Effective Death tested in 2005 the ex disabled.1 When (AEDPA), findings the state court factual IQan of between perts found that he had presumption are entitled to a of correctn low-average well within the 87 and Nonetheless, majority con ess.2 range ability. Yet average cludes that the state court’s factual deter fact, majority fairly supported by mination “not despite this reverses be is Op. majority wrong record.” 1181. The intellec cause it is certain Smith was objective as an review of the record dis murdered tually disabled 1980 when he support the Ari ample closes evidence Sandy majority Owen. The reaches this zona courts’ determination that Smith did by disregarding findings the conclusion showing his burden of that he sustain courts, denying the state those courts intellectually was disabled 1980. due, they expressing are and deference ability in its supreme confidence own Judge II 2 of Reinhardt’s Section C disability despite past detect which “opinion” also contains view—for conflicting evidence and the substantial Arizona there no concurrence —that the intellectually is not now fact that Smith an “unconstitutional stan- applied courts argument This is based on proof.” I dissent. dard of Accordingly, disabled. findings opinion, are reviewed majority I use the term trict court’s factual 1. As does "intellectually disabled” rather than "mental- accept We its for clear error. therefore except ly retarded” where the term is used findings "absent a definite and firm convic- quoted material. committed.” tion that a mistake has been findings are entitled to a State court factual pre-AEDPA 2. Under law: correctness, eight subject presumption of We review the district court's decision previous exceptions enumerated in the ver- grant habeas relief de novo. We review de 2254(d). U.S.C. sion of 28 questions questions of law and mixed novo Hardison, (9th 658 F.3d 905-06 fact, Sivak v. whether decided of law and omitted). Cir.2011) (internal The dis- citations district court or the state courts. they a mountain site where all reading way of the trial court’s an unreasonable the state give raped a failure to the car and Owen got decision and out of Smith they the deference are courts’ decisions again Lambright as and Foreman had to the Judge opposition Reinhardt’s due. happened intercourse. What next was opinion in Section C his penalty death Owen, began choking that Smith nor of ruling panel is neither the of this Lambright that she must be declared the Ninth Circuit. So, “Lambright took Foreman’s killed. began sheath and stab- knife out its Adequately Supports I. The Record victim in the chest and abdo- bing the that Smith the Determination men, twisting the knife around inside of Failed to He Was Intellectu- Show held one of the victim’s her. Smith ally the Time of the Disabled at stabbed, being she arms while was Murder and His Conviction. arm.” Id. at 67 Foreman held the other majority boldly asserts 1]____After that, un- P.2d “Smith [673 that he finding that has not shown Smith successfully tried to break Ms. Owen’s at the time of was disabled Lam- by twisting neck her head. Then fairly sup- and his trial is not the murder began cutting bright, Foreman or both The ma- ported by Op. evidence. into the victim’s neck with the deeply must, jority as it there recognizes, alive, knife.... The victim remained evidence, conflicting argues but was semiconscious, at least as she at- was expert’s each conclu- “once we look behind tempted up to raise herself on one arm. the evidence on which he sion and consider Lambright picked up large rock and relies,” majority sup- of the evidence it at her Foreman testified hurled head. disability. finding of intellectual ports ‘Die, yelled rock he that as he threw the reading of Op. 1181 n.7. This is not a fair ” then off in a bitch.’ Id. The three drove the record. mood, celebratory playing piece ‘We Champions” they Are the went. See A. The Record caught, song trio’s id. Once Underlying 1. The Crime and Prior changed. Foreman turned state’s evi- Proceedings Judicial dence, given immunity, and testified opinion affirming In our en banc against her erstwhile lover and his the denial of Smith’s first federal habeas confessed, Lambright friend. but appeal, we described the crime as follows: deemed Smith to be the worst of the Lambright traveling were confessed, Smith, too, three. but he country Lambright’s across the Lambright dubbed Foreman and as the girlfriend, Kathy Foreman. Smith was real killers. fact that troubled while Lam- 1982, jury In an Arizona convicted Robert Foreman in bright and had intercourse murder, Douglas first-degree Smith of kid- anybody his he did not have presence, naping, and sexual assault. Schriro v. along satisfy part, him. For his Lam- Smith, 6,126 7, 546 U.S. S.Ct. 163 L.Ed.2d bright thought that he “would like to kill (2005). given penalty. 6 He was the death just somebody to see if he could do it.” appeals post-conviction Smith’s pro- ], [63,] Lambright v. 138 Ariz. 66 [State ceedings proved unavailing. See Stewart v. (1983)].... They decided [673 P.2d Smith, 856, 2578, 536 U.S. S.Ct. fulfilled, that both desires could be (2002). L.Ed.2d 762 It was not until after they set out with Foreman to find relief, him Supreme Court had denied They Sandy victim. found Owen and kidnaped raped alleged her. Smith her on the that around 2004 Smith for the relationships, of unstable fre- intellectually dis number time that he was first to Atkins v. Vir pursuant changes and thus quent abled residence. The state 2242, 304, 122 586 U.S. S.Ct. ginia, that those who court found knew Smith (2002), could not be executed. L.Ed.2d 335 that “he one of a group stated was Smith, 6, 126 v. 546 U.S. S.Ct. Schriro See young men included his co-defen- which (2005). In December 7, L.Ed.2d 6 dant, Lambert, Sidney LeBalanc and Joe suspending order we entered an McCarver, together, who Charles lived directing proceedings federal Smith’s together, together and traveled worked proceedings state pursue counsel “to his during times The various 1970’s.” whether the state is Arizona to determine that state court found the evidence from executing the petitioner from prohibited full the 1970’s showed that Smith was a with Atkins.” Smith Schri accordance participant his adult life. It found that (Dec. 2005). ro, 96-99025 No. Smith: Court, County, Superior Pima Arizona mechanic, garage as a diesel worked proceedings concerning held extensive mechanic, driver, car truck repossessor, issu disability before Smith’s intellectual apartment on March 2008. mainte- ing opinion its cable installer and provider, among things. nance other Concerning The Evidence Intellectu- large Defendant held a number of While Disability al jobs, consistently employed. he was was he took the when Smith indicated, in employer Defendant’s last of 62 and IQ test and received scores Otis pre-sen- a form attached to Defendant’s found that the “Otis 71. The state court report, tence that Defendant worked for developed approximately test was months approximately four as mechan- time it 1920’s and was outmoded at the repair to maintain and employed ic in 1964.” reportedly given to [Smith] was received a after equipment, he raise is no evidence importantly, More “[t]here months, three that his work was rated per- concerning qualifications of the “satisfactory” job performance, work for tests, administering the whether an sons attendance, and “excellent” skills and followed, spe- appropriate protocol cooperation employer/supervi- at the times [Smith] cific circumstances he employees, and other and that sor tests, any of the other informa- reemployment. be considered for would validity required tion to determine school record entries.” these friend, LeBlanc, who sometimes Smith’s Smith, employer for the same as worked time, Moreover, dysfunc- by this pa- had difficulties with stated Smith already tional and abusive childhood had tests, opposed age perwork At and written had an effect on his education. Similarly, on percentiles he in the 2nd to 5th hands-on or mechanical tasks. scored Test, placing Achievement the Stanford a former maintenance Lebrecque, Robert years age him seven below his level. Department Arizona of Cor- man with the Moreover, transcripts his school reveal rections, for about who worked with Smith nearly all “Fs” that he received “Ds” and years began serving after he eight Indeed, in his academic studies. Smith term, although prison commented when he was 16. dropped out of school beginning at the “was a little slow something, I him to do ... showed how [i]f he left school at the Between the time Lebrecque him only I had to show once.” years age of and his arrest some read, could “but jobs, a recalled that Smith many Smith had later arrested, pre-sentence the understanding a hard time After he was seemed to have report having characterized Smith as what the written words meant.”3 court, mentality.” The state “borderline approxi- married five times in Smith was however, weight gave description this little court, mately years. The state howev- “experience probation of this because er, poor “made noted that while Smith unknown, there no indi officer is and partners great and had difficult- choices training psycholo cation that he had as a women, ly maintaining relationships with gist professional or other mental health explained arising fact can be from this provide expertise required that would just childhood as well as it can his loveless any diagnostic for observations.”4 viewed as an indicator of the limitations be addition, profes In health retardation.” last mar- two mental of mental sionals, Levy into Dr. Martin and Dr. John riage, which was entered between arrest, LaWall, performed Rule 11 time of the offense and his “showed evaluations purposes in 1982 for of his criminal promise being quite different from the Smith despite proceedings. two incidents of violence in trial Both found Smith to be others relationship.” competent. Levy His fifth wife had Dr. noted neatly logical, and During displayed known Smith since childhood. this was dressed marriage thought.5 Smith worked as a truck driver coherent Dr. LaWall also noted performed dry-wall cooperative, and other work in that Smith “was neat and and and depressed, his mood somewhat with some apartment complex. His wife did sup- report work outside the home and Smith what blunted affect.” Dr. LaWall’s children, time, ported her arid her three indicated that Smith was oriented to loved, figure. place, person, memory, whom he was a active father and with intact and during grade Lebrecque eighth year ministered further noted that because his re- IQ 71, indicating grade-school Smith's "lack of academic vealed an that he is basic skills, stature, Lebrecque and borderline but educable.” The “Evaluation his short initial- Summary” following ly thought maturity includes the sentence: level was that of a 12 mentality probably "His borderline year makes to 14 old.” easy person manipulate him an somewhat of follower in social situa- explained: 4. The state court further tions.” Defendant’s so-called "borderline pre-sentence report contains detailed mentality” mitigating is not mentioned as a offense, descriptions including of the a reci- fact, pre-sentence circumstance —in re- tation of written information obtained from that, port noted "In view of defendant’s statements of Defendant to the court history known and the circumstances of the his statements to law enforcement officers. offense, may instant the Court feel that social, concerning Defendant's Information applicable mitigating there are no circum- marital, educational, religious, employ- likely stances.” It is at least as that the history, apparently ment was also obtained language “borderline” in the Evaluation primarily pre-sen- from Defendant. The Summary simply pre- section reflected the report any difficulty tence does not mention report knowledge sentence writer’s obtaining this information from Defen- test referenced in the school rec- "Physical dant. The section entitled ords, pre-sentence report as that the writer Health,” noting Mental while Defendant's analysis based the comment on an of Defen- depression, "veiy poor concept,” self sexual history grounded dant’s and characteristics issues, drug early psychiatric abuse and appropriate expertise. simply in the There treatment, did not mental retarda- mention way is no to know. tion. The references to retardation were section, pre- apparently complained memory two. the "education” 5.Smith report "Appended problems, sentence writer stated: but there was no evaluation for intelligence organic syndrome records indicate that tests ad- brain or seizure disorder. however, any Dr. Thompson, of was of the there “no evidence disturbance was opinion “high probability” that there was a thinking of or content his of form mentally that retarded Smith “was at the LaWall indicated that Dr. whatsoever.” 1980, in time the crime was committed but in average functions “probably Smith improved that his has functioning as a probably but has a range intelligence,” of stable, prison result structured life both passive-ag- with personality disorder appropriate Dr. Thomp- and medication.” antisocial features. gressive and heavily son relied on the Otis test scores scores, from test early the Stanford 3. The Post-2005 Evaluations grades by and recollections relatives and order, proceedings were After our 2005 concerning others Smith’s childhood and Court, Superior Arizona in the commenced early Thompson Dr. ap- adolescence. purpose County, Pima for the sole of com- “to peared view mental retardation as a order that the state court plying with our any fluid responsive condition number Arizona prohibited determine whether was environment, changes patient’s in a nu- executing from Smith accordance with trition, physical, and mental and emotional that Superior Atkins. The Court noted health.” He considered Smith’s low test “to prove on Smith burden was scores, grades, low lack of social and skills by retardation clear and claim of mental other indicators of deficits as valid mental parties and that convincing evidence” both retardation. that the court “bound acknowledged When asked about evidence Smith’s of the Arizona Su- follow the decision disability in Dr. Thomp- intellectual (Grell II), preme in State v. Grell Court IQ son referred to the 1964 tests and (2006) 135 P.3d Ariz. presentence noted evaluation indi- in this regard.” cated that he functioned a borderline However, informed range. when of the subjected to and eval- testing Smith was by Levy two Rule 11 Drs. and evaluations by by experts retained both Smith uations LaWall, acknowledged that he he would Testing August and Arizona. expected have retardation have been Martinez, Dr. Arizona’s Sergio expert, re- noted in reports. their IQ finding sulted in a that Smith “had an score of 93 on the WAIS-III and a score Dr. described Smith’s life af Thompson test, the of 89 on a second Slosson Intelli- he as “characterized ter left school Test-Revised, instability employment, personal rela gence within the low-aver- residence, tionships signs and showed age range abili- average impulsivity and deficits of func ty.” Testing by Thompson, Dr. Thomas tioning, all of mental retar characteristic utilizing appro- a different expert, Nonetheless, he acknowledged dation.” instrument, the In- priate testing Reynolds qualita that Smith to have some “seemed subtests, tellectual Assessment Scale with independent living tive skills.”6 Defendant, finding in a at the resulted testing, Martinez, time had a of 93. contrast, score giving In Dr. after Thus, experts agree him, meeting of 2005 with both tests and tes- high degree tified that there was a Smith was not disabled. anxiety prior hospital- and that included this condition reference to Smith’s depression display impulsivi- diagnosis personality which could ization and disorder features, ty job changes relationship Thompson causing the psychotic Dr. "ac- characterizing early knowledged fea- issues Defendant's adult- that this disorder included immature,' 'inadequate hood.” tures described as determined under A.R.S. 13- he not retarded at the to be probability that was that in- The court further noted that Dr. agreed the offense. He 703.02.”7 time of weight oc- on functioning Thompson placed in intellectual could considerable creases learning IQ pre-sentence a enriched envi- the highly cur within the 1964 tests and ronment, increase in 30-point but that a indication of “borderline report’s Smith’s IQ unlikely prison and he did not view that Dr. functioning.” was It also observed environment. enriching weight as an to Thompson gave little Smith’s years for 15 ability to live on his own Deci- Superior 4. The Arizona Court’s the time he left school and the between sion court concluded that Dr. murder. The 27, 2008, Superior “analysis permit Arizona not Thompson’s On March the does that Smith 19-page ruling finding, any degree accuracy, issued a with Court intellectual- had failed to show that he was ‘general Defendant’s level of ly his trial and that disabled at the time of functioning’ age either before the precluded by therefore not Thus, Arizona was period in the 1980-82.” his evalua executing from him. Atkins not the conclusion that support tion “does during pertinent period, the time Defen parties The court first held that the mentally dant retarded.” prove to intellectu- agreed that the burden Smith, pursuant al was on to Superior recognized The Court that II, 212 Ariz. at P.3d 696. Grell “dysfunctional family and troubled However, procedural in view of the differ- early undoubtedly circum- life affected his case, II ences between Grell and Smith’s way,” in an that stances adverse and he the court “considered the evidence under likely clinically cogniza- “has suffered from of evidence standard preponderance probably including person- ble conditions proceedings.” Rule 32 The applicable to However, ality disorder.” the circum- court held that Smith had failed show point stances “do mental retardation entitled to relief under either he was any degree certainty.” Based on convincing standard the clear and evidence Superior all the evidence the Court found preponderance or the of evidence stan- that:

dard. Defendant, has failed to meet his burden showing mentally expressed

The trial court serious con he was retard- Dr. ed at the time of the offense and trial in Thompson’s perspective. cerns with It noted that his view of “mental retarda this case. There was insufficient evi- responsive any tion as a fluid condition dence from which this Court could find changes patient’s “significantly number of in a environ that Defendant exhibited ment, nutrition, subaverage general physical, mental and intellectual function- health,” necessarily ing” during period emotional was not con of the offense and of mental retar his trial. While unorthodox and unsta- sistent “with definition ble, by law, provided pre-arrest dation Arizona and the Defendant’s life did not procedures “significant impairment which mental retardation is show retardation, 7. The state court commented: difficulties cause his that he got prison. prosecution’s per- better family dys- The State ... contends spective dysfunctional abuse, nutrition, is that Defendant’s faulty depres- function background prob- and other mental health anxiety sion and rather than mental retarda- scores, rather than lems mental retardation caused tion contributed to the low test low words, pointed grades signs. Thompson the factors Dr. and other In other early diagnostic view that defense Defendant's of retardation. existing concurrently behavior” with the Smith’s own written statements were general written, deficit in intellectual functioning. “lengthy, neatly logical, detailed, adequate the absence of information structured and coherent.” The appellate tests, concerning early Otis court concluded that Superior Court carefully had explanations view of alternative considered all the evidence deficits, and early for his school and social “exercised its in discretion resolving evidence, in conflicts in Defendant failed to show onset of assessing reliability results, mental retardation the test age before the of 18. and credibili ty witnesses, of the in The Court therefore FINDS that and weighing evi dence.” State of Arizona The court precluded, is not on concluded that it had no basis for grounds executing interfering Atkins from Superior Defen- Court’s discretionary judgments dant. or for re

weighing the evidence.8 5. The Appeals’ Arizona Court of 6. The District

Opinion Court’s Order Denying Habeas Relief appealed to the Arizona Court of Following the conclusion of Appeals, his state unanimously which affirmed the court proceedings, Smith pro- renewed his Superior Kearney, Court. Smith v. No. ceedings the United States 2CA-SA-2008-0019, District 2008 WL 2721155 Court for the 2008). District of Arizona. In a 21- 11, (Ariz.App. Jul. It noted that the page 3, order issued on December trial court “had considered the evidence the court found that Smith’s Atkins relat- applicable under the clear-and-convincing ed claims were without merit. standard as well as under the lesser bur- preponderance den of a of the evidence The court recognized that because Smith applies standard that to post-conviction filed his initial federal petition habeas pri- proceedings.” The appellate court re- date, or to AEDPA’s effective- pre-AEDPA viewed the evidence Superior and the applied. standards Accordingly, the court Court’s decision noting that the trial court reviewed de novo questions mixed of law (a) had found: Thompson’s opinion Dr. and fact as pure questions well as of law. was based on an approach defining to men- Schriro, See Robinson v. 595 F.3d tal retardation that (9th was inconsistent with Cir.2010). However, the court requirements law; (b) of Arizona lay held, Robinson, citing that the state court Hight’s witness Martha opinion that Smith factual findings were entitled to a pre mentally retarded was inconsistent sumption correctness, subject eight to testimony with the of witnesses who had exceptions previous enumerated in the ver (c) 1970’s; 2254(d).9 lived with Smith in the sion of 28 U.S.C. The district (4) Supreme 8. The Arizona summarily Court jurisdiction de- that the State court lacked petition nied Smith’s for review. subject person matter or over the applicant proceeding; in the State court exceptions The district court listed the as: (5) applicant indigent that the was an (1) dispute the merits of the factual court, deprivation the State of his consti- were not resolved in the State court hear- right, appoint tutional failed to counsel ing; represent proceed- him in the State court (2) factfinding procedure that the employed ing; by the State adequate court was not (6) full, applicant that the did not receive a hearing; afford full and fair adequate hearing fair and in the State court (3) that the material facts were not ade- proceeding; or quately developed at the State court hear- ing; court, and would not be used citing Lonberger, to Smith Marshall IQ. today determine individual’s 74 L.Ed.2d U.S. (1983), reject it could held that before court further commented: The district it factual determination a state court’s court, the by the state evi- noted [A]s the state have to conclude “that would presented hearing at the dence indicated support lacked even fair findings court’s just likely poor it is that Petitioner’s as further the' record.” It determined performance unstable school life- mentally “is retarded is a whether Smith severely dys- style was the result of a question fact.” upbringing personality functional it retardation. disorder as was mental noted did The district court that Smith lifestyle, Petitioner led a transient fre- dispute finding that the state court’s quently changing employment and resi- to intellectual was entitled (such dences, many jobs but of his as correctness.10 The district presumption of mechanic, installer, a a being cable and a ample there evi court concluded that was driver) a required truck at least minimal in the to the state support dence record functioning. degree of intellectual Al- that Smith had failed to court’s conclusion though agreed witnesses that Petitioner “subaverage intel general either establish smart,” quickly is not “book learns he “significant impair functioning” lectual or something. when how to do In shown age the ment behavior” before addition, supports finding the record a particular, the court of 18. district indepen- began living that Petitioner an that Otis unre agreed the 1964 tests were life dropping dent after out of school at to little It not weight. liable entitled dependent on age and was not others any that the was of ed record “devoid daily function in his to life. including concerning testing, evidence the data, test the ad The district court that Smith the raw identification of concluded the of qualifications, presumption ministrators their or had not overcome the cor- Moreover, Drs. that attached to the state protocols followed.” both rectness court’s finding intellectually that the not Thompson testified that he was dis- and Martinez at the the Otis test was outdated when administered abled time of offense. (7) (PET) applicant that was denied and his he otherwise scan assertion that was process pro- jury to due law in the court entitled determination on mental re- of State majority opinion ceeding; tardation. not The does dis- (8) Rejecting cuss either these claims. con- Smith’s or unless ... the Federal court on grounds, other the district court noted that part the rec- [the relevant] sideration of provided period lengthy the "state court a ord as a concludes whole that such factual prepare time for Petitioner to for the fairly by Atkins supported determination is not hearing expert and authorized Petitioner's record. choice, diagnostic testing requests, (1994). 2254(d) initial § 28 U.S.C. resources, investigative deposi- and numerous sought 10. Smith nonetheless de novo review lay tions of witnesses.” It noted "(1) grounds: nothing support finding for at least one of four "identifies a inadequate factfinding procedure by procedures the state factfinding the state court's were court; (2) develop adequately inadequate, the failure to that material were left facts unde- hear- veloped, provide material facts at the state court Atkins that the state failed to court full, (3) ing; provide hearing, process Petitioner failure a full and due fair that his (4) hearing; adequate rights Accordingly, fair violation were violated. district process rights.” due The dis- of Petitioner's court found that Smith had not overcome the right any rejected presumption trict court Smith's to a claim of correctness on these funding Tomography grounds. for a Positron Emission Analysis B. Also, by administered. the time that administered, the test was Smith had majority question does not the ade- school, failed in and there is nothing to quacy proceedings. of the state court’s In- suggest any that he made effort to per stead, exception invoking eighth enu- form Moreover, well on the test.11 there is merated under the 1994 version of substantial evidence that Smith had diffi 2254(d), it concludes the state culty word, with the written which indi findings fairly court’s are “not supported cates that his written test Op. simply the record.” 1181. This is results were wrong. objective likely An intelligence. review the con- underrate his flicting evidence reveals that there is sub- Other than the test scores and his aca- supporting stantial un-refuted evidence performance, demic evidence of state court’s determination that Smith was alleged pri- intellectually disabled 1980. The marily testimony lay of witness Martha majority’s preference for Dr. Thompson’s Hight compared who Smith to her sister perspective justify does not its setting who had diagnosed been intellectually all the including portions aside evidence— However, disabled. the trial court found Thompson’s testimony of Dr. sup- —that that her statement “was inconsistent with ports the determinations the state court the testimony of others who lived with and the district court that Smith has not at or period [Smith] near the same of time demonstrated that he was in the 1970’s.” disabled in 1980. evidence, There was majority as the First, majority deny cannot that as notes, of Smith’s horrendous childhood. 2005, intellectually of Smith was not dis- stepfather That his frequently belittled Thompson’s abled. Even Dr. test indicat- him and beat him. That his mother fre- IQ Thus, that ed Smith had an of 93. this quently ignored her children and was relatively case is in that unique the courts them. See promiscuous in front of Op. required are to per- determine whether a upbringing, majority 1187-88. This son now clearly intellectually who is not notes, Thompson led Dr. to that opine disabled, intellectually was disabled some intellectually Smith “became disabled with years earlier when he a mur- committed frontal lobe Op. abnormalities.” 1187. der and was fact tried. The that Smith But it 2005, Thompson’s is Dr. view of intellec- intellectually was not in disabled tual gives disability respon- rise to at least a that “as a fluid condition presumption intellectually Smith was not in any changes pa- disabled sive to number of in a environment, 1980. physical, tient’s nutrition and mental and emotional health” that renders Second, the supporting evidence the ma- diagnosis problematic. person’s his If a jority’s inherently proble- determination is fluid, ability mental is if it can in change tests, IQ matic. poor Smith’s 1964 response changes person’s in the envi- performance on the Stanford achievement ronment, nutrition, physical, mental tests, and his poor grades signs could be health, definition, by and emotional then disability. intellectual But the test admin- in even that assuming istered 1964 was out-moded and there Smith was intellectual- is in nothing ly the record as to how the in years test disabled when he was 16 importance ability "directly 11. Dr. Martinez testified to the as assess how the individual of an awareness of an individual’s behavior doing, they’re paying is whether attention or during an assessment. He noted that ain not.” group-administered you test don't have the acceptance prison old, and second on the necessarily he was disabled alone, years murder. than ex- living when he committed rather However, plains present Smith’s level. lived inde- Critically, by Smith had noted, ability to on his own as Smith’s live had been married pendently years, strong years from 1964 to is for 15 times, and had held numerous number developed if evidence even Smith had inherently as jobs. questions This raises a result of “frontal lobe abnormalities” as whether, intel- assuming that Smith was childhood, they had dissi- his horrendous lectually subsequent disabled Moreover, ability was due conclusion improvement pated of his mental 1980. this living away oppres- from his supported by to his alone the fact that the two doc- is as family years, for 15 Dr. Martinez sive competency who examined Smith for tors being from suggests, prison to his trial murder failed to stand for the in 1980 Thompson suggests. Dr. 1980 to any signs of disabili- to detect intellectual independent from to 1980 life Thompson that he ty. Even Dr. admitted strong is circumstantial evidence expected have the doctors to note would disabled, intellectually he was not sign disability. some intellectual intellectually if he disabled even had been sum, In there is substantial —if not over- in 1964. whelming the state support —evidence addition, Thompson’s perception In Dr. determination that had failed court’s of intellectual is in tension with that he to demonstrate as- Arizona’s definition. Arizona’s statute Indeed, majority disabled ability that a is person’s sumes intellectual really try does not to refute this evidence. relatively Ann. stable. See Ariz.Rev.Stat. Instead, length why pre- it it explains 13-703.02(K)(3). fact, re- the statute perspective Dr. to that of Thompson’s fers quires that disabil- the onset proper Dr. But that is Martinez. not the ity years be before an individual is 18 inquiry. question whether the state age. Thompson’s approach begs Dr. “fairly sup- factual court’s determination is question whether Smith was intellectual- Marshall, by the 459 ported record.” U.S. ly by disabled as Arizona when he defined at 843. if all the Perhaps S.Ct. lobe only was or suffered from “frontal conflicting explained evidence could be perform- that affected his abnormalities” away, majority’s approach might be he up ance but cleared once was in a less acceptable. But the evidence remains ob- is not toxic environment. It clear that in support stinate of the state court’s de- alleged result- “frontal lobe abnormalities” terminations: Smith is not intellectu- now “significant ed in intellectual subaverage disabled, “significant ally independently he lived for 15 functioning” impair- or caused murder, adaptive ment of required years behavior” as before he committed the § the Arizona See 13- statute. A.R.S. him and the doctors who examined 703.02(E). competency any in failed to detect Moreover, signs disability. of intellectual event, any

In is the critical issue here Dr. although Thompson explana- offers an intellectually not whether was dis- Smith how ability tion for mental could in abled but in 1980. Dr. Martinez’s time, change theory his own cannot over perspective was disabled that Smith never pinpoint alleged when overcame his Smith IQ certainly supported tests. disability. initial intellectual The factual Thompson’s suggestion Dr. was Smith fully supports in record the state court’s de- depends disabled on a deter- first carry mination that in 1964 terminations that Smith failed to his disabled burden, that, accordingly, he was not tual disability, including deficits in intellectually disabled 1980. adaptive functioning over his lifetime. addition, the Supreme Court’s recent Id. — Florida, U.S.—, opinion Hall Here, precisely Smith had opportu this (2014), L.Ed.2d nity. He had a full “opportunity pres

supports the denial of relief. The Su ent evidence of his disability, intellectual preme was critical of Court Florida’s over- IQ including reliance on the measurement an deficits in functioning test.12 It concluded that dis “[i]ntellectual over his However, lifetime.” Id. the state condition, ability ais not a number.” 134 courts and the district court concluded S.Ct. at 2001. It held that courts “must that the evidence did not show that he was recognize, community, as does the medical intellectually disabled It is the IQ imprecise.”13 that the test is Id. The majority Thompson and Dr. cling who Supreme concluded: Court the 1964 test results. But other evidence opposition Florida’s rule is in direct IQ results, such as Smith’s 2005 test his design, views of those who adminis- living independently on his own for 15 ter, interpret IQ By test. fail- years murder, before the and the failure of ing to into take account the standard the doctors who examined Smith for men measurement, error of Florida’s law not tal competence in any 1980 to detect sign only design contradicts the test’s own disability, intellectual strongly support but also part bars essential of a sen- the state court’s determination.14 tencing inquiry court’s into adaptive Accordingly, because the district court’s

functioning. may Lee Hall Freddie disabled, petition denial of Smith’s may not be should be af- but firmed, requires the law I oppor- that he have the dissent from majority’s opin- tunity present evidence his intellec- ion. explained: 12. The Court 14.Finally, it should be noted that the Su- preme disregards Court Florida’s rule in Hall considered the established medi- Arizona’s practice ways. cal suggested two interrelated It passed statute and that it constitu- IQ takes an score as final and conclusive tional muster. evidence aof defendant’s ca- appears Arizona’s statute to set a broad pacity, experts when in the field would con- statutory cutoff Ariz.Rev.Stat. Ann. sider other evidence. It also relies on a (F) (West 2013), pro- 13-753 but another purportedly scientific measurement of the vision instructs courts to “take into account abilities, score, defendant’s while re- margin the of error for a test adminis- is, fusing recognize that the score on its 14-753(K)(5). terms, tered.” Id. at How courts imprecise. own interpret are meant the statute in a S.Ct. at 1995. situa- altogether tion like is Hall’s not clear. The

13. The Court continued: matter, principal Arizona case on the State say IQ This is not to that an test score is Roque, 213 Ariz. 141 P.3d unhelpful. signifi- It is of considerable (2006), states that "the statute accounts for cance, community the recog- medical margin by requiring multiple of error using nizes. But in these scores to assess a tests,” and that "if the defendant achieves a eligibility penalty, defendant's for the death any full-scale score 70of or below on one of a State must afford these test scores the tests, proceeds the then the court to a hear- skepticism same studied that those who de- ing.” Id. at 403. do, sign and use the tests and understand 134 S.Ct. at 1996. IQ that represents range an test score rather than a fixed number. 134 S.Ct. at 2001. Applied Based on proceeding. the evidence at that II. The Arizona Courts evidence, Appropriate of Proof. the the FINDS Standard all of Court has to meet his that Defendant failed Superior of the A. The Court’s Use mentally that he showing burden of was any degree of cer- Words “with time of the retarded at the offense Way Sug- tainty” Any Not in Does trial case. There was insufficient this gest Applied Inappro- it an that this could evidence from which Court priate of Proof. Standard “signifi- find that Defendant exhibited concurrence, lack of Despite any the subaverage general cant intellectual Judge opinion Reinhardt includes in his an during the of the functioning” period applied argument that the Arizona courts offense his trial. While unorthodox proof. an unconstitutional standard unstable, life pre-arrest Defendant’s C.2, Accordingly, pages II 42-52. Section “significant impairment did not show inaccu- following I offer the rebuttal to his concurrently existing behavior” rate accusations. in general with the intellectual deficit adequate the functioning. 1. The Court and District Court absence of State Decisions concerning early information the Otis tests, and in view of alternative ex- noted, Superior As the Arizona Court early planations for his school and social hearings admitted con- held extensive deficits, failed Defendant to show as to siderable evidence whether Smith onset mental retardation before the time of disabled at age of 18. The FINDS Court therefore trial. agreed parties It that preclud- that the State of Arizona prove the burden to Smith, II, ed, pursuant executing was on to Grell grounds, on Adkins from However, in Ariz. 135 P.3d 696. view Defendant. procedural differences between affirmed Appeals Arizona Court case, II “con- Grell and Smith’s the court Superior It noted that the trial Court. preponder- sidered the evidence under the “had court considered evidence under ance of applicable evidence standard applicable clear-and-convincing evi- proceedings.” Rule 32 held The court that dence standard as well as under the lesser the same this lower

its decision was under a preponderance burden of of the evidence standard. applies conviction post proceedings carefully considering After all the evi- ... and concluded under either stan- dence, the Superior Court concluded: failed to dard Smith had establish he was Although dysfunctional Defendant’s mentally at the retarded time of the of- family undoubt- early and troubled life and at fense trial.” edly affected his circumstances Similarly, the district denied court likely way, adverse and while it is De- It noted petition. although clinically cog- fendant from has suffered “identify Smith did not deficiencies probably including nizable conditions ruling,” court’s he that his state contended disorder, personality the circumstances proffered “overwhelmingly estab- evidence point to hearing described at the do not subaverage lished the intellectual function- any of degree mental retardation with adaptive prongs and ing skills of Arizona’s certainty. carefully con- The Court has mental test as the time of retardation testimony presented sidered all of the at offense The court the in 1980.” district the and has and con- hearing, reviewed rejected that sidered all of the received in this contention. It noted exhibits dispute Smith did not that the 1964 Otis trial court’s decision out of context and unreliable, and commented that gives tests were then them an improper definition. presented hearing “the evidence the By attacking -definition, this incorrect the just likely indicated it is that Petition- concurrence, essence, in argues that the performance er’s school and poor unstable penalty death cannot be constitutionally lifestyle severely dys- was the result of a applied.15 functional upbringing personality dis- Both Superior the Court and the Ari- order as it was mental retardation.” The zona Appeals Court of stated that the Su- district court that concluded there was perior applied Court the prepon- lesser “ample support evidence the record to derance of the evidence standard. The the state courts’ conclusion that Petitioner concurrence dismisses their considered ‘subaverage gen- failed to establish either opinions in a footnote arguing that functioning’ ‘significant eral intellectual body Superior opinion Court’s “did impairment behavior’ before not fulfill promise, however, but, that age Accordingly, of 18.” he had “not rather, the court concluded after review- presumption overcome the of correctness ing all the evidence that it did not meet a attached to the finding state court’s that ‘certainty’ Op. standard.” 1196-97 n.25. Moreover, mentally he was not retarded.” wrong This is on a number of levels. denying a certificate of appealability the any concurrence takes “with degree ju- district court found “that reasonable certainty” context, out of it endows with

rists could not debate its resolution of meaning incorrect argues then that claims,” Petitioner’s Ai/fcms-related meaning stilted it conjured has up is question that “[t]he whether the state But, unconstitutional. considering the fac- court erred in finding Petitioner was case, tual evidence in objective this mentally not retarded under Arizona law is jurist must admit to the lack of some jurists not among debatable of reason.” precision in an evaluation of Smith’s intel- ability hand,

2. lectual Discussion 1980. On the one there are the Otis tests from 1964 and light perspective the unanimous Dr. Thompson’s testimony that in- appellate Arizona trial and courts and tellectual was not a constant. court, the district Judge how does Rein- hand, On the other Thompson both Dr. hardt conclude that the Superior Court agreed and Dr. by Martinez applied an unconstitutional standard of disabled, Smith was not proof? His concurrence does so first there is evidence that for years some 15 disbelieving the state courts’ statements school, dropping after out of and before Superior that the applied Court the pre- murder, committing the Smith lived inde- ponderance of the evidence standard. pendently dependent any- and was not on Second, ignores concurrence Thus, given one. that Smith had the bur- factual findings court’s and misconstrues prove disability, den to an intellectual Superior Court’s statement that “the Superior reasonably Court concluded circumstances described at the hearing do so, point he failed to do any prepon- to mental retardation with even had degree certainty.” Thus, words, Op. Nee 1197. derance of the evidence. In other the concurrence takes five words from the presented by the evidence as Smith did not rence, Although Judge specifically spirit clearly Reinhardt ad- its informs his concur- constitutionality dresses the of the Arizona majority opinion. rence set forth in the penalty separate death statute in his concur-

1230 assume that the any “[w]e to de- Court held must “point mental retardation [mitigation] the trial considered all this certainty.” judge Both Arizona gree For passing and the District Court evidence before sentence. Appeals Court Thus, one he said we have thing, he did.” agreed. no that the finding Superior basis for eschews the trial But the concurrence apply preponderance Court did not the ‘any that suggests court’s intent and “the the that it it did evidence standard said ... is certainty’ standard more degree of (and Appeals the Arizona Court of which doubt’ ‘reasonable standard akin the affirmed) that Superior the Court some- convincing and standard than the clear “certainty” way how in a that has applied statute, Atkins by Arizona’s mandated been since improper King Arizona only that the issue under requires which ”16 in 1988. decided ‘highly probable.’ Op. be consideration Furthermore, assertion, if there support In of this the even were some 1197. in the 27-year ambiguity Superior cites a old Arizona Court’s deci concurrence there jury instruction. sion—which is not—we would still case that involved a 419, have any ambiguity v. 158 763 to construe the King, State Ariz. P.2d 239 (1988). case, placing in the court’s language This which affirmed state favor. See 24, 19, prove the on the defendant to in v. 537 U.S. 123 burden Visciotti Woodford (2002) (“This 357, sanity, defining “clear S.Ct. 154 L.Ed.2d 279 disapproved and evidence that “is readiness to attribute error is convincing evidence” as inconsistent certain, understanding, presumption to the unam with the that state courts plain law”).17 Indeed, biguous, convincing in the sense that it know and follow the the and persuasive Supreme as to Court indicated that we is so reasonable cause has 241. The you formulary it.” Id. at court should not “demand a state believe Packer, Early by held that “the better instruction would in ment” state courts. v. 3, 9, 362, a that clear 537 123 jury convincing form evi U.S. S.Ct. 154 L.Ed.2d (2002) curiam) (an case, dence is that the (per evidence makes existence AEDPA decision, propounded highly probable.” citing pre-AEDPA but issue Lowen 546, Phelps, Id. 244. v. U.S. S.Ct. field (1988), 98 L.Ed.2d 568 of its support In proceedings, no court used admonition). Thus, ap the concurrence’s of clear convincing definition evi proach against Supreme goes both Court King. Indeed, disapproved dence our law it not Ninth Circuit case when precedent requires presume that we that only construes the trial court’s clear lan know judges the state and follow the law. guage ambiguous, then interprets as but Schriro, Lopez See 491 F.3d the ambiguity reflecting an unconstitu (9th Cir.2007). We have further held that tional standard. lightly disregard we should the trial court’s proceeds argue determinations. Id. Parker v. The concurrence then 308, 315, Dugger, that are proceedings 498 U.S. S.Ct. Atkins different. (1991), analyz- 112 L.Ed.2d 812 Supreme “Consequently, where state court course, argument only Although 16. Of this if 17. un- relevant concerned review Woodford AEDPA, indicated, determination, der Supreme court cit- ignores one trial court’s Parker, ing U.S. at 111 S.Ct. appeals, 314-16, affirmed the state court cases, presumption and other failed to had demonstrate intellectu- courts know and follow law was state preponderance al of the evi- before enactment AEDPA established dence. applies pre-AEDPA and thus cases. Wood- ford, U.S. at ing binding an Atkins claim fails to follow evidence to show that he law, simply not disabled at state its decision does vio- the time of the crime and his law, trial. Eighth Cherry-picking state but also violates the words from late the trial by court’s decision and then right provided giving Amendment Atkins and them an meaning incorrect cognizable by the violation is therefore a does not undermine the logic clear of the Op. Again by court.” 1197. decision as affirmed federal habeas appellate the state court. relying on its stilted definition of “certain- ty,” the concurrence asserts: Perhaps aware that argument its first is Here, “certainty” applied standard persuasive, less than the concurrence of-

by plainly the state trial court was con- fers a second argument: that “the stan- trary convincing to the clear and stan- proof applied by dard of the state trial by required dard Arizona’s statute and court is Op. unconstitutional.” 1198. adopted by supreme its court. See Ariz. Again, largely based on its incorrect defini- II, 13-703.02(G); § Rev.Stat. Ann. Grell tion “certainty,” the concurrence asserts (“The places 135 P.3d at 701 statute on ‘certainty’ that “a proof standard of trans- ... proving ‘the defendant the burden of gresses the limits of authority the state’s by mental retardation clear and convinc- to craft appropriate procedures to enforce and, so, ing pretrial hearing.” evidence’ Atkins in doing encroaches on the 13-703.02(G)) (alteration (quoting right.” in substantive constitutional Op. original)). 1198. Accordingly, the standard of

proof by trial applied the state court was essence, argument appears, This to be simply contrary to state law but was argument against constitutionality Atkins, also unconstitutional under see penalty. of the death majority claims Williams, Black, 606, 612; 792 F.3d 664 that it does not “need to determine what 97, and, accordingly, F.3d at the state proof standard of the federal Constitution findings any court’s are not due defer- requires,” “only but whether the Arizona Lafferty, ence. See 949 F.2d at 1551 n. applied court a Op. standard it forbids.” 4; Walker, 167 F.3d at 1345. posits It that 1198. the natural “[w]hen operation of a procedures state’s for ren First, noted, But not right. this is dering transgresses factual determinations applied the state court demanding the less a right, substantive constitutional those preponderance of the evidence test. Sec- procedures Op. are unconstitutional.” ond, nothing there is in either the trial argues 1198. The concurrence that “[i]t appellate court’s decision or the state elementary operation’ that the ‘natural court’s disposition sug- memorandum that applying heightened proof a standard of gests that “certainty” either court defined litigation, can determine the outcome of way in a that violated King, 763 P.2d 239. availability and thus the of a constitutional Third, II, cites, majority Grell which the right.”18 Op. 1198. prov- affirms Smith had the burden of ing mental retardation clear and con- objects The concurrence next to the Fourth, vincing evidence. a review of the im penalty death based on the “inherent fully record in this case supports Supe- precision psychiatric determinations of rior Court’s factual determination that Citing Adding mental illness.” Op. Texas, 418, 430-32, Smith had failed either clear and con- v. ton U.S. S.Ct. (1979), vincing preponderance evidence or a 60 L.Ed.2d 323 it comments: (1911), authority 18. The concurrence's for these as- L.Ed. which that an Ala- held opinion, Supreme presumption sertions is a 1911 Court bama statute created Alabama, Bailey injure 219 U.S. intent to violated the 13th Amendment. degree greater of re- explained penalty Court in re which Supreme “[a]s [,] the liability is ... constitu- required jecting argument the Constitution tional even more clear.” [is] violation a reasonable doubt stan requires use of 1201. Op. of civil commitment dard in the context proceedings, unique psychiat the nature of certainly Judge is entitled to Reinhardt renders determina diagnosis ric factual opinion, opinion it not the of the his but is unsusceptible certainty.” uniquely to tions or The concur- panel of the Ninth Circuit. that posits The concurrence Op. 1199. contrary position is to the of clearly rence case, when, in the of as this determination v. Supreme the Arizona Court. State ability an intellectual at the individual’s (Grell III), 516, 212 Ariz. 135 Grell P.3d years not until time of the crime is made banc) (“We 696, (2006) (en 702 find no crime, certainty the is “even less after the imposing constitutional bar to burden certainty attainable and a standard is even proving of retardation on the de- mental acceptable constitutionally in such less fendant.”). The concurrence cites no Op. 1200. cases.”19 its support perspec- Ninth Circuit case to by any supported tive. And it not deci- concurrence concludes with the as- Court, by Supreme sion the United States a capital punishment requires sertion that (Grell II which in Grell denied certiorari certainty.” Op of “heightened degree Arizona, 127 550 U.S. S.Ct. 167 Atkins, “where, in Accordingly, 1200. as (2007)), accepted L.Ed.2d and certain Amendment a class Eighth the renders provisions proceedings of Arizona’s categorically ineligible of for individuals Hall, 134 at 1996-97. S.Ct. execution, procedures the to deter- used a defendant into that sum, mine whether falls the the assertion that Arizona may nearly allocate all of the applied class courts an unconstitutional standard risk of an erroneous determination to the it proof of first because fails misconstrues It Op. decision, defendant.” 1201. reasons that the and Superior Arizona Court’s by to a requiring Smith demonstrate with Arizona ignores ruling the of the Court of certainty” that “degree of he was intel- Appeals, contrary Supreme to both Court disabled, lectually the Arizona court allo- See precedent. and Ninth Circuit Wood “nearly 357; Parker, the entire risk an 24,123 cated of erro- ford, 537 at S.Ct. U.S. 731; to Op. neous determination Lopez, Smith.” U.S. at S.Ct. Thus, according to 1201. the concur- at are (stating ways F.3d “there rence, ruling “the factual that because determination construe state court’s would the untenable,’ an make question ‘clearly concerned issue for which not it we are may a therefore courts’ certainty by be unattainable ... and bound the state inter- certainty” requiring "any degree of In footnote concurrence asserts: as de- 19. fined law will often Arizona render it consequence analysis It is of no impossible party carry a its burden. Addington and Atkins involve different bur- Addington, at See 441 U.S. S.Ct. bar, proof the case dens than because of the focus here is on the effect the stan- Again, argument on the this is based concur- proof. Addington, Under a dard state misinterpretation trial rence’s court's desiring the civil commitment of an individ- person Deciding a decision. whether has car- ual must demonstrate he suffers from showing ried his illness, burden intellectual whereas mental under Atkins an in- difficult, disability may but well be here the seeking dividual to avoid execution Indeed, carefully state court did so. it is state must demonstrate intellectual disabili- situations, telling majority that the attacks decision ty. In both the determination by giving "any degree certainty” upon psychiatric words heavily opinion, relies they proof meaning do not have. thus in both situations standard of application proce- of its pretation alleged own intellectual disability to rules.”). dissipate, dural The second arrow offers no assurance as to when it concurrence’s did so. The state quiver there is not courts took Smith’s —that claim of disability intellectual certainty impose seriously, sufficient the death gave his assertions and the evidence penalty similarly support on lacks Smith— full objective consideration. An review of Supreme from either the Court this support record will not a finding Circuit, Ninth placement Arizona’s —and certainly finding by not a this court on prove the burden on the defendant to review of a state petition habeas has not been dis- —that Smith met his burden showing that he years eight passed turbed that have disabled in I 1980. Supreme since the Arizona Court decided would affirm the district court’s denial of II in 2007. Grell petition20 and I therefore dissent.

III. Conclusion

The district court’s denial of the Smith’s

petition should be affirmed because an ob-

jective review of the extensive record re- evidence, veals that there is substantial if Leroy HAEGER; Haeger, Donna hus evidence, not overwhelming that Smith wife; Barry band Haeger; and Su failed to meet his burden of showing that Haeger, wife, zanne husband and 1980-82, he was disabled Plaintiffs-Appellees, Sandy

when he murdered Owen and was tried, convicted and sentenced. At a mini- v.

mum, compelled by this conclusion is The GOODYEAR TIRE & RUBBER (a) undeniable facts that: Smith COMPANY, corporation, an Ohio (b) 98; had an between 87 and Defendant-Appellant, lived independently supported himself years dropped for 15 after he out of school Spartan Motors, Inc., Michigan cor (c) murder; and before the the doctors poration; Coach, Inc., Gulfstream who examined Smith in 1980 to determine corporation, Defendants, Indiana competency signs to be tried found no v. Furthermore, of intellectual disability. Dr.

Thompson’s approach of considering intel- Andress, LPA; Roetzel & Basil fluid, ability lectual to be allowing while Musnuff, Movants. J. tencing. I would also affirm the Washington, district court’s See Strickland v. holding that Smith has failed to demonstrate U.S. 104 S.Ct. 80 L.Ed.2d 674 procedural cause to overcome his default of (1984). arguments Smith's other are unavail- his ineffective assistance of counsel claim. ing. He fails to demonstrate existence of Ryan, His invocation of -U.S. Martinez pervading a conflict of interest the Pima -, (2012) 132 S.Ct. 182 L.Ed.2d 272 Office; County Public Defender’s the state fails because he has not demonstrated ineffec- psychological habeas court’s denial of a exam tive assistance of counsel in his first state provide procedural does not cause for his post-conviction proceeding, and even if he default; and extent that his claim was did, this would not excuse Smith's new coun- Smith, not covered Stewart v. 536 U.S. raising sel from ineffective assistance of trial 860-61, 153 L.Ed.2d 762 post-convic- counsel in Smith's second state (2002), application the state court’s of its Moreover, proceeding. tion Smith has not post-conviction adequate waiver rule is probability shown reasonable that he re- independent. ceived ineffective assistance of counsel at sen-

Case Details

Case Name: Smith v. Schriro

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 4, 2016

Citation: 813 F.3d 1175

Docket Number: 96-99025, 96-99026, 10-99011

Court Abbreviation: 9th Cir.