William Wiley v. Christopher Epps, CommissionerWilliam Wiley v. Christopher Epps, Commissioner
This is a capital case in which the district court granted habeas relief in favor of Petitioner-Appellee William Wiley, holding that Wiley is ineligible for a death sentence because he is mentally retarded as contemplated by Atkins v. Virginia, 536 U.S. 304 (2002). The State of Mississippi, acting through Respondent-Appellant Christopher B. Epps, appeals. We conclude that the district court did not clearly err in finding Wiley mentally retarded. We therefore AFFIRM the district court‘s judgment.
In 1981, Wiley shot and killed store owner J.B. Turner during the course of a robbery in DeSoto County, Mississippi. He also shot Turner‘s daughter, leaving her seriously injured and blind. Wiley was charged with capital murder and was convicted in 1982. His conviction was affirmed on direct appeal, but his death sentence was vacated and the case was remanded for a new sentencing hearing because of improper comments that had been made by the prosecutor. See Wiley v. State, 449 So. 2d 756, 763 (Miss. 1984). Wiley was again sentenced to death in 1984, and the sentence was upheld on direct appeal. See Wiley v. State, 484 So. 2d 339, 355 (Miss. 1986). In a subsequent federal habeas petition, we vacated the death sentence on the ground that the state trial court had improperly instructed the second sentencing jury. See Wiley v. Puckett, 969 F.2d 86, 91 (5th Cir. 1992). In 1995, Wiley was sentenced to death for the third time. The sentence was again affirmеd on direct appeal, see Wiley v. State, 691 So. 2d 959, 960 (Miss. 1997), and Wiley‘s subsequent efforts for state post-conviction relief were unsuccessful.
Wiley again sought federal habeas relief in a
In support of his state habeas application, Wiley relied in part on an affidavit from Dr. David Grant, who administered to Wiley in 2003 the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III). Dr. Grant reported from this test that Wiley‘s Verbal IQ was 73, his Performance IQ was 68, and his full-scale IQ was 68, placing Wiley within the mentally retarded range for intellectual functioning. Dr. Grant also indicated that Wiley had adaptive behavior deficits in at least two defined areas and that Wiley‘s mental retardation manifested by
The Mississippi Supreme Court declined to grant Wiley an evidentiary hearing on his Atkins claim because it determined that he failed to present a prima facie case. The court examined the record and held that the evidence did not support Wiley‘s claim. See Wiley v. State, 890 So. 2d 892, 897–98 (Miss. 2004). Instead, the court determined that, at best, Wiley‘s experts had shown only borderline mental retardation. Id. at 898. The court placed particular emphasis on several affidavits in the record that had been submitted by Wiley‘s family and friends as mitigating evidence during the earlier state court proceedings. In the words of the state court, those affidavits indicated that Wiley “was a good husband, father, son and grandson, that he was a good, reliable worker with steady employment at various employers, that he
Wiley filed a motion for rehearing, submitting a supplemental affidavit from Dr. Grant addressing the Mississippi Supreme Court‘s opinion. Dr. Grant indicated that the court was incorrect to rely on the affidavits from Wiley‘s friends and family as proof that Wiley was not mentally retarded. Contrary to the court‘s holding, Dr. Grant stated that it is widely accepted in the medical community that mentally retarded persons are often able to perform basic life functions and tasks, such as holding jobs, driving cars, and supporting their families. Dr. Grant reiterated his opinion that, to a reasonable degree of psychological certainty, Wiley fell within the mentally retarded range, and the retardation manifested before age eighteen. The state court denied the motion.
Wiley then raised his Atkins claim in federal court by amending his
The federal district court initially denied Wiley‘s Atkins claim but subsequently withdrew its decision after Wiley filed a motion to alter or amend the judgment under
The State now appeals.2 It contends that Wiley failed to meet the requirements for an evidentiary hearing in state court, and therefore the federal district court erroneously concluded that the state court dеnied Wiley due process. Under the State‘s view, the district court should not have granted Wiley‘s Rule 59 motion or conducted an evidentiary hearing and should have deferred to the Mississippi Supreme Court‘s holding that Wiley is not mentally retarded. The State further argues that the district court‘s conclusion that Wiley is mentally retarded is incorrect because Wiley failed to show in the federal hearing that he has subaverage intellectual ability and adaptive functioning deficits, both of which manifested before the age of eighteen. Before turning to
II. Standard of review
In an appeal from the district court‘s grant of habeas relief, we review issues of law de novo and findings of fact for clear error. Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008). Wiley‘s habeas petition is governed by the standards of the Antiterrorism and Effective Death Penalty Act (AEDPA),
“A state court decision is ‘contrary to’ clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases . . . or if the state court decide[s] a case differently than the United States Supreme Court previously decided a case on a set of nearly identical facts.” Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010) (internal quotation marks and citations omitted). A state court‘s decision is an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner‘s case.” Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (internal quotation marks and citations omitted). An unreasonable application of federal law is different from
III. Atkins and mental retardation
The Supreme Court held in Atkins that the execution of mentally retarded persons constitutes cruel and unusual punishment in violation of the Eighth Amendment. See Atkins, 536 U.S. at 321. The Atkins Court did not define who is mentally retarded for purposes of eligibility for a death sentence but it referred generally to two definitions of mental retardation from the American Association on Mental Retardation (AAMR) and the American Psychiatric Association (APA).3 Id. at 309 n.3. Clinical definitions of mental retardation
In accord with Atkins, the Mississippi Supreme Court set the standard for adjudging mental retardation in Mississippi in Chase v. State, 873 So. 2d 1013, 1028–29 (Miss. 2004), which it decided three months before it decided Wiley‘s case.4 Under Chase, the trial court is to make the determination about retardation based on a preponderance of the evidence after an evidentiary hearing. Chase, 873 So. 2d at 1028–29. A defendant may not be adjudged retarded unless he presents, at a minimum, an expert opinion, to a reasonable degree of certainty, that (1) “[t]he defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or The American Psychiatric Association“; and (2) “[t]he defendant has completed the Minnesota Multiphasic Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not malingering.” Id. at 1029.
The Mississippi Supreme Court also set out in Chase the standard for determining whether a defendant is entitled to an evidentiary hearing on his mental retardation claim. The court held that a hearing would not be granted unless a defendant files a motion to which he attaches an affidavit from at least
As noted above, Wiley‘s position is that the affidavit he submitted from Dr. Grant with his state application for post-conviction relief satisfied the Chase standards to at least obtain an evidentiary hearing in state court. The district court agreed, and it held that the denial of a hearing in state court was a due process violation such that no deference was due to the state court decision. We agree with the district court, as we now explain.
IV. Deference and a federal hearing
When a petitioner has properly presented his Atkins claim in state court, and that court rejects it on the merits, we ordinarily apply AEDPA deference to the state court‘s judgment on legal and factual grounds. Moore v. Quarterman, 533 F.3d 338, 341 n.2 (5th Cir. 2008) (en banc); see also
It is axiomatic that infirmities in state habeas proceedings under state law are not a basis for federal relief. See Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004). Indeed, we have also held that a full and fair hearing in state court is not
Thus, when a petitioner makes a prima facie showing of mental retardation, a state court‘s failure to provide him with an opportunity to develop his claim deprives the state court decision of the deference ordinarily due under the AEDPA. Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007). As we explained in Rivera, even though Atkins left to the states the job of implementing procedures for determining who is mentally retarded, “it was decided against the backdrop of the Supreme Court‘s and lower court‘s due process jurisprudence.” Id. That jurisprudence included Ford v. Wainwright, 477 U.S. 399 (1986), which required a hearing in accord with fundamental fairness and procedural due process for defendants who make a showing of ineligibility for a death sentence due to insanity. Id. (citing Ford, 477 U.S. at 424 (Powell, J., concurring in part and concurring in the judgment)).
We held in Rivera that the Texas Court of Criminal Appeals acted unreasonably by failing to conduct a full and fair evidentiary hearing in light of the petitioner‘s prima facie case of mental retardation. Id. at 357–58. We were guided by the Supreme Court‘s decision in Panetti, where the Court held that after a petitioner made a substantial showing of incompetency the state court‘s failure to provide the procedures elaborated on in Ford constituted an unreasonable application of clearly established federal law. Panetti, 551 U.S. at 948. Moreover, the state court‘s error deprived its decision of AEDPA deference. See id. (“As a result of this error, our review of petitioner‘s underlying incompetency claim is unencumbered by the deference AEDPA normally requires.“).
Although Wiley was convicted before Atkins was decided, and although he filed his state post-conviction application before the Mississippi Supreme Court established the state‘s requirements for obtaining an Atkins hearing in Chase,5 Wiley‘s affidavit from Dr. Grant (as well as other evidence) on its face met the Chase requirements for an evidentiary hearing, and the State conceded as much at oral argument.6
The State contends, however, that Wiley was not entitled to a hearing under Chase because Wiley‘s pre-Atkins tests, which showed IQs of 73 and 78, included at least one score above the threshold for a mental retardation finding.
In support of its argument that state law precludes an Atkins hearing when any single test score is above the threshold of 75, the State relies primarily on Branch v. State, 882 So. 2d 36 (Miss. 2004). In that case, the defendant‘s childhood IQ score at age five wаs 68, but post-arrest testing showed an IQ of 84. After noting the absence of evidence about adaptive skills deficits, the court held that Branch failed to make a prima facie showing of mental retardation. Id. at 51. Wiley‘s case is not substantially similar to Branch. Unlike Wiley, the defendant in Branch relied on tests done seventeen years earlier when he was a child, while a court-ordered psychologist who tested him after arrest said he had an IQ well above the threshold for mental retardation. See id. The court also found significant the absence of evidence concerning adaptive skills functioning. Id. In contrast, Wiley presented evidence of both recent and past IQ testing showing deficient intellectual functioning, as well as adaptive skills deficits. Branch does not present a situation like Wiley‘s.7
For example, in Thorson v. State, 994 So. 2d 707, 715 (Miss. 2007), which was decided after Chase and is very similar to Wiley‘s case, the record showed that the defendant‘s IQ around the time of the murder offense was 77—above the Chase threshold. At Thorson‘s trial, a doctor testified that a subsequent test showed the defendant‘s IQ to be 74. The doctor also testified that Thorson was “borderline mentally retarded.” Id. At sentencing, the same doctor testified that Thorson was “mentally handicapped” but not to the degree of the mentally retarded. Id. Nevertheless, in connection with Thorson‘s Atkins claim in his application for post-conviction relief, Thorson, like Wiley, submitted an affidavit from another doctor who opined that Thorson‘s IQ was 70, that he had adaptive behavior deficits, and that the onset of the deficits occurred before age eighteen. Id. at 715–16. The Mississippi Supreme Court held that Thorson “met the
The sequence of IQ test scores in Thorson mirrors the sequence in Wiley‘s case. In both instances the defendant had two reported IQ scores before Atkins, one above Mississippi‘s threshold of 75 and one below, and one post-Atkins IQ score that was below the threshold. In both cases, the defendant submitted an expert‘s affidavit opining that he met the definition for a mentally retarded person. The Mississippi Supreme Court granted Thorson a hearing on facts nearly indistinguishable from Wiley‘s case. The court also granted a hearing in another case involving multiple IQ scores decided before Chase in Russell v. State, 849 So. 2d 95, 148 (Miss. 2003). There the defendant received a hearing even though one of his two IQ scores, which were 68 and 76, was above the threshold for mental retardation. In light of these cases, the State‘s argument that Wiley was treated no differently from any other defendant with several IQ test scores who makes an Atkins claim is seriously undermined.8
The State also argues at some length that Wiley‘s single IQ score of 78 in 1994 automatically disqualified him from an evidentiary hearing unless that score is reduced by the Flynn effect. But it contends that neither the Mississippi
This does not end the inquiry, however, as we must next consider whether the state court decision was nevertheless entitled to AEDPA deference despite Wiley‘s satisfaction of the requirements for an evidentiary hearing. The state court in this case apparently decided that it should adjust the standards that it had established in Chase. The court stated that “evolving standards” for determining who is mentally retarded required it “to expand on the procedure to be used in reaching a determination of mental retardation.” Wiley, 890 So. 2d at 897. The court held that it would therefore “consider the entire record before it in deciding whether to grant an Atkins hearing.” Id.
We will ordinarily defer to a state court‘s interpretation of its own law, see Woodfox v. Cain, 609 F.3d 774, 816 (5th Cir. 2010), and we find no fault in the state сourt‘s use of evolving standards to make the determination whether to grant a hearing, or its consideration of the entire record. A state court‘s
It is evident from the Mississippi case law that up until the Mississippi Supreme Court decided Wiley‘s case, the court remanded Atkins claims to the trial court for an evidentiary hearing on the retardation question when the Chase requirements (or what became the Chase requirements) were met. The court has continued to follow this procedure even after deciding Wiley‘s case. But in the instant case, the court unexpectedly proceeded to a merits-based determination of factual questions and essentially required Wiley to prove his claim at the prima facie stage, pretermitting the opportunity for the hearing and the fuller development of the evidence that Chase contemplated.
By adjudicating Wiley‘s mental retardation claim without telling him that it would do so, the state court implicated the “core due process concepts” of notice and foreseeability. See Rogers v. Tennessee, 532 U.S. 451, 459 (2001). The state court applied an unexpectedly more stringent process to Wiley without notice,
Wiley‘s motion for rehearing cast material doubt on such an argument, however. In the supplemental affidavit in support of Wiley‘s motion for rehearing, Dr. Grant opined that “mentally retarded persons do indeed ‘hold jobs,’ ‘drive cars,’ and ‘support families.‘” According to Dr. Grant, there is a “widely-recognized view within the medical community that mentally retarded persons are often able to perform such tasks.” Dr. Grant supported his assertions with attached excerpts from psychiatric literature. See Bryan H. King, M.D., et al., Mental Retardation, in COMPREHENSIVE TEXTBOOK OF
This conclusion is also supported by Wiley‘s school records, which show that Wiley attended school only from first to eighth grade, that his grades consisted of Ds and Fs in all subjects, with the exception of a few Cs and C minuses, and that he was twice socially promoted despite failing marks. Dr. Grant‘s testing revealed that Wiley‘s reading and writing ability are, at best, on a fourth grade level. This evidence created at least disputed questions of fact about Wiley‘s abilities noted elsewhere in the record. See Wiley, 890 So. 2d at 896–97 (noting that Wiley‘s family affidavits suggested Wiley “did ‘pretty well in school‘” and spent his prison time studying the Bible, reading, and writing to pen pals).
V. The merits of Wiley‘s Atkins claim
We must next consider whether the district court‘s determination that Wiley is mentally retarded was erroneous. As noted above, a claim of mental retardation in Mississippi requires proof that the defendant has subaverage intellectual functioning, significant deficits in at least two areas of adaptive functioning, and manifestation prior to the age of eighteen. See Chase, 873 So. 2d at 1027–29. A defendant must also prove through appropriate testing that he is not malingering. Id. at 1028–29.
Whether a pеtitioner suffers from significantly subaverage intellectual functioning is a question of fact. Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006). We will not disturb a district court‘s factual findings unless they are implausible in light of the record considered as a whole. Rivera, 505 F.3d at 361; see Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985) (“If the district court‘s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”). “Where there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574 (citation omitted).
The Atkins Court recognized that IQ scores ranging from 70 to 75 are generally considered to be the cutoff for the intellectual functioning prong of the test for mental retardation. Atkins, 536 U.S. at 309 n.5. The Mississippi Supreme Court has adopted as its cutoff for Atkins protection an IQ score of 75. Chase, 873 So. 2d at 1029 n.20.
Wiley was administered an IQ test five times between 1987 and 2009. The testing was done on two versions of the Wechsler test—the WAIS-R and the WAIS-III—and on the Stanford-Binet Intelligence Scales, Fifth Edition (the SB5). In addition to the testing by Dr. Fox and Dr. Grant discussed above, Wiley was tested by the court-appointed expert, Dr. O‘Brien, and by the state‘s expert, Dr. Macvaugh.11
When the district court considered Wiley‘s scores, it noted that the experts’ testimony and reports indicated that they were subject to a confidence interval
| Date | Examiner | Test | FSIQ | 95% CI range | Flynn effect |
|---|---|---|---|---|---|
| 1987 | Dr. Fox | WAIS-R | 73 | 68–78 | 70 |
| 1994 | Dr. Fox | WAIS-R | 78 | 73–83 | 73 |
| 2003 | Dr. Grant | WAIS-III | 68 | 65–73 | 65 |
| 2007 | Dr. O‘Brien | WAIS-III | 70 | 67–75 | 66 |
| 2009 | Dr. Macvaugh | SB5 | 80 | 76–84 | 77 |
The State argues that the district court found Wiley mentally retarded because it erroneously applied the Flynn effect to Wiley‘s scores. It contends that without such an adjustment only Dr. Grant‘s score of 68 clearly falls within the range for mental retardation. The State urges that the Flynn effect should not be employed and that even if it is considered, Wiley‘s adjusted score on the SB5 was 77.
The State is incorrect that the district court found Wiley mentally retarded only because of the Flynn аdjusted scores. The court explicitly stated that it was
Dr. O‘Brien‘s report opined that Wiley‘s full scale IQ without any adjustments for the Flynn effect was likely to be between 67 and 75. Dr. O‘Brien testified that the score of 80 obtained by Dr. Macvaugh, as well as the score of 78 obtained by Dr. Fox in 1994, were likely “outliers” insofar as they did not fit within the overall pattern of scores obtained across the range of testing. Dr. Swanson testified that Wiley‘s scores from 1987 to 2007 were “fairly tight.” Although her report made adjustments for the Flynn effect, it also reported that the four Wechsler tests had overlapping ranges between 68 and 70, which in her opinion was Wiley‘s true IQ score.
The State argues that Dr. Macvaugh‘s score of 80 precludes a finding that Wiley is mentally retarded. It contends that the fact that a score may be аn outlier does not render it invalid. We reject the State‘s position that an IQ score above the cutoff for mental retardation automatically resolves a defendant‘s Atkins claim when the defendant has been tested as many times as Wiley has been tested and a majority of the scores fall within the mental retardation range. As discussed above, the State‘s contention is not found in the Mississippi Supreme Court‘s case law. Cf. Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010) (rejecting argument that district court clearly erred in finding defendant
To be sure, the Mississippi Supreme Court has held that a person with an IQ above 76 does not have a valid Atkins claim. Chase, 873 So. 2d at 1029 n.20 (“[D]efendants with an IQ of 76 or above do not qualify for Eighth Amendment Atkins protection.”). But we have found no state court authority indicating how to assess the defendant‘s true IQ score in the face of multiple IQ examinations. The court has said simply that a defendant must present expert evidence that he is mentally retarded and that he is not malingering. Id. at 1029. After hearing evidence from both the State and the defendant, the trial court is then to determine whether the defendant is mentally retarded from a preponderance of the evidence. Id. The state court treats Atkins hearings the same as any other evidentiary consideration. See id. (stating that after the defendant and the State present evidence as allowed by the Mississippi Rules of Evidence “the matter should proceed as other evidentiary hearings on motions”). Therefore, the district court here was not bound by a single reported IQ score, but rather was free to consider all the reported scores and testimony as part of its analysis of the evidence.
The hearing in this case was essentially a battle of the experts, who gave competing opinions as to Wiley‘s IQ and intellectual functioning. The calculation of a person‘s IQ score is imprecise at best and may come down to a matter of the examiner‘s judgment. Cf. Clark, 457 F.3d at 444 (noting that the “confidence band is designed to account for the measurement error inherent in intelligence testing”). The State‘s expert even testified that no test or examiner is perfect. Although Dr. Macvaugh disagreed with the opinions of Dr. Grant and Dr.
As noted by the district court, the record contains three expert assessments that explicitly found Wiley‘s IQ to be below 75, without any adjustments for the Flynn effect or practice effect. (Dr. Fox‘s score of 73 in 1987; Dr. Grant‘s score of 68 in 2003; and Dr. O‘Brien‘s score of 70 in 2007.) The record also contains opinions from three experts (Drs. Grant, O‘Brien, and Swanson) that Wiley has subaverage general intellectual functioning, as required by Atkins. Given the nature of IQ scoring and the presence of several IQ tests in the record, we do not believe it was clearly erroneous for the district court to place weight on these experts’ opinions when determining Wiley‘s intellectual functioning.
The State‘s argument would have us simply accept the opinion of Dr. Macvaugh over the opinions of Dr. O‘Brien, Dr. Swanson, and Dr. Grant. We will not re-weigh the facts and evidence in order to reach a decision contrary to the district court‘s conclusion. See Anderson, 470 U.S. at 574; see also Rivera, 505 F.3d at 363 (the district court is in the best position to weigh the evidence). The record supports the district court‘s assessment of Wiley‘s intellectual functioning, and we conclude that the district court did not clearly err in its finding from a preponderance of the evidence that Wiley satisfies this prong of the test for mental retardation.
2. Adaptive functioning deficits
A diagnosis of mental retardation requires not only subaverage intellectual ability but also significant deficits in adaptive functioning. See Chase, 873 So. 2d at 1028 & n.18. “Adaptivе functioning refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural
Wiley‘s adaptive functioning skills have been assessed four times: by Dr. Grant in 2003, by Dr. O‘Brien in 2008, by Dr. Macvaugh in 2008–09, and by Dr. Swanson in 2009. Dr. Grant and Dr. Swanson used standardized measures of adaptive functioning to assist in their assessments of Wiley. Dr. Grant administered to Wiley the Independent Living Scale. Dr. Swanson used the Vineland-II Adaptive Behavior Scales (Vineland), as well as the Adaptive Behavior Assessment Scale (ABAS-II). Swanson used the standardized tests to gather information retrospectively by asking Wiley‘s grandmother and his former wife to recall Wiley‘s behavior at age fifteen and eighteen, respectively. Drs. Grant, O‘Brien, and Swanson concluded that Wiley had sufficient adaptive functioning deficits to be considered mildly mentally retarded, while Dr. Macvaugh disagreed.
After reviewing the experts’ reports and considering the testimony at the hearing, the district court held that Wiley met his burden of showing by a preponderance of the evidence that he suffers from significant deficits in the areas of functional academics, communication, and self-direction. Rather than
The State first asserts that the Mississippi Supreme Court found from the affidavits of Wiley‘s family and friends that Wiley did not have deficits in adaptive behavior, and that the state court‘s decision was not unreasonable. The affidavits at issue showed that Wiley often provided money to help pay household bills, possessed skill repairing vehicles and frequently helped friends and neighbors with auto repairs, provided transportation for others, volunteered for military service, and was a reliable worker who quit school to go to work to provide for his family.
Because we have determined that the district court did not err by declining to afford deference to the Mississippi Supreme Court‘s decision, the district court was not limited to consideration of this evidence at the hearing. Moreover, Drs. Grant, O‘Brien, and Swanson all opined that mentally retarded persons could perform the types of activities noted in thе affidavits. See Thomas, 607 F.3d at 759 (rejecting State‘s argument that defendant was not retarded because he worked on a farm performing manual labor and driving a tractor and also held several other menial labor jobs where experts agreed these skills are consistent with mild mental retardation and State‘s own expert testified that mentally retarded persons can drive cars and hold menial jobs).
The State also contests the methodology used by Wiley‘s examiners, primarily Dr. Swanson. It argues that Swanson‘s retrospective use of the Vineland and the ABAS-II to ask about Wiley‘s past behavior was erroneous and that Dr. Swanson also incorrectly scored individual questions on the tests. We are unpersuaded by the State‘s rather cursory briefing of this issue.
The assessment of adaptive functioning deficits is no easy task. Because its conceptualization “has proven elusive,” adaptive functioning “historically has
Although Dr. Macvaugh disagreed with Dr. Swanson‘s use of the ABAS-II and Vineland tests, even he agreed that some experts believe standardized instruments are necessary to assist in the assessment of adaptive behavior. The tenth edition of the AAMR specifically recommends the use of standardized measures and instruments, and it notes that the ABAS-II test “can be used to identify significant limitations in adaptive behavior.” See AAMR 10th ed. аt 76, 81, 83. Furthermore, the authors of the Vineland test expressly state that retrospective interviews to obtain information about a subject‘s behavior at an earlier age is permissible in certain circumstances, including when the subject
The AAMR 10th edition recommends that because the adaptive functioning assessment typically takes the form of interviewing third-parties, the respondent should be someone who is well acquainted with the subject‘s behavior over an extended period, such as a parent, teacher, or direct-service provider. AAMR 10th ed. at 85. Here, Dr. Swanson spoke with Wiley‘s grandmother and with his former wife. She also spoke with other persons familiar with Wiley, such as his former supervisor, to probe the information about him. The State offers no evidence or even a cogent argument that the answers given by Wiley‘s grandmother and wife were incorrect or faulty. Dr. Macvaugh also admitted that speaking with Wiley‘s family members, as Dr. Swanson did, was something he also should have pursued. See Doss, 19 So. 3d at 714 (“Interviews with family members, and others familiar with an individual‘s typical behavior over an extended period of time in various settings, can supplement or aid in the interpretation of test results.”).
At bottom, the State would have us accept the opinion of its own expert as a substitute for the opinions of Dr. Grant, Dr. O‘Brien, and Dr. Swanson. But the district court, having presided over the evidentiary hearing, “is in a better position than this court to judge and weigh the credibility of the witnesses who testified on the extent, duration, and causes of [Wiley‘s] adaptive functioning limitations.” Rivera, 505 F.3d at 363. On the record before us, we cannot say that the district court erred by considering the opinions of the experts who testified that Wiley has adaptive functioning deficits as part of the totality of the evidence. See Doss, 19 So. 3d at 712.
First, all of the experts agreed that Wiley possesses significant deficits in the area of functional academics and that his functional academic ability is between the third and sixth grade levels. Dr. Grant administered to Wiley the Wide Range Achievement Test-Revision III (WRAT-III) and the Nelson-Denny Reading Comprehension Test. He concluded that Wiley was functioning on a fourth grade level.14 Dr. O‘Brien tested Wiley with the fourth edition of the WRAT (WRAT-4) and found results consistent with Dr. Grant‘s earlier report.15 Dr. Macvaugh also administered the WRAT-4 and reported similar results and conclusions.16 Dr. Swanson concluded from her own administration of the
Wiley‘s military records also support a finding that Wiley possesses limited academic skills. Wiley‘s Army record indicates that he was forced to abandon his training in radio operator school because of failing tests and “difficulty relating the information contained in technical manuals to the appropriate equipment.” The military instructors concluded that “this course of training is too difficult for him to complete in a reasonable length of time.” Wiley‘s “poor academic progress” resulted in a “resentful attitude.” Wiley was discharged from the Army when his commander determined that “[r]eassignment of this individual would not be in the best interest of the Army because of his extremely negative attitude towards the military and his physical and mental limitations” (emphasis added).
The district court also concluded that Wiley had deficits in the adaptive functioning area of communication, as evidenced by Wiley‘s oral comprehension scores on academic tests and language battery, Wiley‘s school records, the experts’ interviews of Wiley, and reports of interviews with Wiley‘s family and friends. The record and opinions of the experts supports the district court‘s conclusion.
Dr. Swanson testified that her testing showed that at the age of eighteen Wiley had the communication skills of someone six to nine years old. She concluded that Wiley could not be given verbal directions, but that he could learn
We note, as did the distriсt court, that Dr. Macvaugh found no deficits in communication skills in part because affidavits in the record from Wiley‘s family and friends indicated that he continued to correspond with them in written letters and by telephone after he was incarcerated. But Dr. Macvaugh qualified his opinion about the family affidavits by noting that because the affidavits had been prepared for the purpose of mitigation, “there is some concern with regard to their validity.” Dr. Swanson also indicated that Wiley‘s ability to write was painfully slow, as shown by his taking two minutes to write six dictated words of a nine-word sentence.
In the functional area of self direction, Dr. O‘Brien testified that self direction concerns whether a person can independently decide what to do and carry out certain activities without someone directing him. Self-direction skills are “related to making choices; learning and following a schedule; initiating activities appropriate to the setting, conditions, schedule, and personal interests; completing necessary or required tasks; seeking assistance when needed; resolving problems confronted in familiar and novel situations; and
The record shows that Wiley consistently relied on others for virtually all direction of his life and daily living, including finances, healthcare, and employment. Wiley relied on his grandmother and then his wife to handle his money. Although he was a hard worker, Wiley primarily worked manual labor jobs and relied on his in-laws to find him work. Wiley‘s grandmother stated that when Wiley‘s grandfather died, Wiley was unable to make basic decisions about the farm, and he instead sought advice from his grandfather‘s friends. He later sought help from his in-laws even after he and his wife separated. As a child, Wiley was slow to master hygiene, dressing, and toileting skills, and his older sister had to help teach him how to dress and groom. Wiley‘s grandmother bought his clothes and made selections for him when he was as old as fifteen, and then his wife took over that task when he moved in with her family. Although Wiley helped around the house with the trash and yard work, his grandmother and then his wife did all the cooking, cleaning, and laundering.
Wiley indicated in probes with Dr. Swanson that his grandmother and his wife managed his money; after he separated from his wife he would cash his paychecks at the liquor store, pay his bills, and then drink or gamble his money away. When Wiley was in the Army, the military arranged all of his travel and someone always told him where to go. Dr. Swanson reported that in order to learn a new task Wiley required many repetitions, a lot of time, and continuous drill. She opined that military and court records and interviews with Wiley and his wife substantiate his poor self-direction as an adult. We conclude from the above evidence that the district court‘s finding that Wiley had significant deficits in adaptive functioning skills was not clearly erroneous. See, e.g., Thomas, 607 F.3d at 759 (finding of limitations in self-direction was not clearly erroneous where “record indicates Thomas was immature both socially and mentally, that he required lots of repetition to follow instructions, and that he could not live independently”).
3. Onset before age eighteen
In concluding that Wiley‘s significant subaverage intellectual functioning and adaptive functioning deficits manifested prior to age eighteen, the district court relied on Wiley‘s school records, reports of Wiley‘s family members, and the adaptive assessments conducted by Dr. Swanson. The court also noted that Wiley‘s military records, which documented Wiley‘s service at age nineteen, provided a helpful snapshot of Wiley‘s intellectual functioning and adaptive skills close in time to the age of eighteen.
The State argues only that the Mississippi Supreme Court discounted Wiley‘s school records because of Wiley‘s poor attendance record at school, and that the state court‘s decision was reasonable. However, we have already decided that thе district court was not bound to defer to the state court decision.
The State is correct that Wiley‘s school records show numerous absences, and Dr. O‘Brien agreed that missing school could result in poor grades. But he also testified that having difficulty in school could affect whether a person chooses to attend school regularly. The district court noted that Wiley‘s academic struggles commenced from the beginning of his formal education when he received all Ds, except for one C-, in the first grade. Wiley‘s best year academically was in the sixth grade when he had the fewest absences, but that was also Wiley‘s second attempt at sixth grade.
We agree with the district court that evidence in addition to Wiley‘s academic performance also supports the conclusion that Wiley‘s deficits manifested before the age of eighteen. As noted by the district court, Wiley‘s grandmother reported Wiley‘s early childhood difficulties learning to speak,
4. Malingering
The final requirement for a finding of mental retardation is evidence through appropriate testing that Wiley is not malingering. The State does not address this requirement in its brief, but as noted by the district court, each of the experts who testified at the evidentiary hearing conducted testing to probe for malingering. Dr. O‘Brien, Dr. Swanson, and Dr. Macvaugh each indicated that there was no evidence that Wiley was feigning or malingering intellectual or adaptive functioning deficits.18
VI. Conclusion
Based on the foregoing, we hold that the district court‘s conclusion that Wiley is mentally retarded and therefore ineligible for a death sentence under Atkins was not clearly erroneous. The district court‘s judgment is AFFIRMED.
Judge Jolly concurs in the judgment only.
Notes
Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.
AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992) (AAMR 9th ed.).
The APA defines mental retardation similarly:
The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Critеrion C).
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4th ed. 2000). This definition is often referred to as the DSM-IV-TR definition.
In 2002, the AAMR modified its definition to read:
Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 1 (10th ed. 2002) (AAMR 10 ed.).