AEDPA and Mixed IQ Scores: No Clearly Established Right to an Atkins Hearing When One Valid Score Exceeds Oklahoma’s 76 Cutoff

1. Introduction

Fuston v. Quick arises from a capital murder conviction in Oklahoma. Ronnie Eugene Fuston was convicted of first-degree murder after breaking into Michael Rhodes’s home at night and shooting him multiple times while Rhodes sat on a couch next to his three-year-old daughter. Rhodes was not the intended target; he was an innocent victim swept into a gang-related dispute.

On direct appeal, Fuston argued (i) the trial court’s refusal to instruct on a lesser-included offense violated due process under Beck v. Alabama, 447 U.S. 625 (1980), and (ii) the trial court’s refusal to hold an intellectual-disability evidentiary hearing violated the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304 (2002). After the OCCA affirmed, Fuston sought federal habeas relief. The Tenth Circuit granted a certificate of appealability on both issues.

The key legal questions were:

• Beck issue: Did due process require a second-degree “depraved mind” murder instruction because the trial evidence could permit a rational juror to acquit of first-degree murder and convict of the lesser offense?
• Atkins issue: Under AEDPA, is it “clearly established” by Supreme Court holdings that a defendant who presents multiple IQ scores— including some below 70 but at least one above 75—must receive an Atkins hearing notwithstanding Oklahoma’s statutory bar?

2. Summary of the Opinion

The court affirmed denial of habeas relief on both claims.

• No habeas relief on Beck: The Tenth Circuit held that the OCCA applied the correct Beck framework—asking whether the evidence supported the lesser-included offense—and reasonably concluded it did not. Under AEDPA’s “unreasonable application” standard, the federal court could not say “all fairminded jurists” would find the OCCA’s determination wrong.
• No habeas relief on Atkins hearing: The court held that Atkins and its progeny do not “clearly establish” that a defendant is entitled to an Atkins hearing when he has mixed IQ scores, one of which is above 75, and the state applies a rule treating an IQ score of 76 or above as conclusive evidence of no intellectual disability. Because AEDPA relief requires clearly established Supreme Court holdings, uncertainty in the Court’s multi-score jurisprudence foreclosed relief.

Judge EID concurred on the Beck issue but dissented on the Atkins issue, reasoning that Brumfield v. Cain, 576 U.S. 305 (2015), clearly establishes entitlement to a hearing when a defendant raises a “reasonable doubt” as to intellectual disability, regardless of the unsettled question of how multiple scores must ultimately be weighed.

3. Analysis

3.1. Precedents Cited (and How They Drove the Result)

A. AEDPA “clearly established law” and deference

The opinion is fundamentally AEDPA-driven. The court frames both issues through 28 U.S.C. § 2254(d)(1), emphasizing that habeas relief turns on whether the OCCA unreasonably applied “clearly established Federal law, as determined by the Supreme Court of the United States.” It relies on a cluster of Supreme Court and Tenth Circuit cases to police that boundary:

• Williams v. Taylor, 529 U.S. 362 (2000): provides the baseline definitions of “contrary to” and “unreasonable application.”
• House v. Hatch, 527 F.3d 1010 (10th Cir. 2008), and Littlejohn v. Trammell, 704 F.3d 817 (10th Cir. 2013): establish the “threshold” step—if the asserted rule is not clearly established, the inquiry ends.
• Carey v. Musladin, 549 U.S. 70 (2006), and Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999): stand for the proposition that issues the Supreme Court has not addressed (or has left open) are not “clearly established.”
• Andrew v. White, 604 U.S. 86 (2025), and White v. Woodall, 572 U.S. 415 (2014): tighten the definition of “holdings” versus “logic” or “dicta,” warning lower courts not to convert reasoning into clearly established rules.
• Frost v. Pryor, 749 F.3d 1212 (10th Cir. 2014), and Burt v. Titlow, 571 U.S. 12 (2013): supply the “all fairminded jurists” / “formidable barrier” formulations that make AEDPA deference outcome-determinative.
• Klein v. Martin, 607 U.S. 213 (2026): used both as a caution against second-guessing state-court articulation of the correct rule and as the “blunder[] so badly” metric for unreasonable application.

This body of law supplies the opinion’s central move: even if a federal court might prefer a different approach on direct review, AEDPA requires the petitioner to point to a Supreme Court holding that compels the result he seeks.

B. The lesser-included instruction doctrine in capital cases

The Beck analysis is anchored in:

• Beck v. Alabama, 447 U.S. 625 (1980): requires a lesser-included instruction in capital cases when the evidence warrants it.
• Hopper v. Evans, 456 U.S. 605 (1982): clarifies that Beck applies only “when the evidence warrants such an instruction.”

But the truly dispositive “precedent” for this case is the Tenth Circuit’s internal line on how to review OCCA Beck determinations under AEDPA:

• Gilson v. Sirmons, 520 F.3d 1196 (10th Cir. 2008): treats Beck claims as reviewed under § 2254(d)(1) and holds that if one state-court rationale is reasonable, the federal court may deny relief even if other rationales are “suspect.”
• Darks v. Mullin, 327 F.3d 1001 (10th Cir. 2003), and Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009): establish that the state court applies the wrong standard when it focuses on whether the greater offense is supported rather than whether the lesser is supported.
• Richie v. Workman, 599 F.3d 1131 (10th Cir. 2010), and Phillips v. Workman, 604 F.3d 1202 (10th Cir. 2010): provide the “rational jury” framing and illustrate when failure to instruct can be an unreasonable application of Beck.
• Hogan v. Gibson, 197 F.3d 1297 (10th Cir. 1999): exemplifies non-deference where the OCCA fails to make the relevant lesser-offense findings.
• Eizember v. Trammell, 803 F.3d 1129 (10th Cir. 2015): used to support that intent to kill forecloses “depraved mind” murder under Oklahoma law.

These cases enabled the court to treat the OCCA’s opinion as having applied the correct standard (thus triggering AEDPA deference), rather than as a misapplication requiring de novo review.

C. Intellectual disability in capital sentencing (and the “multiple IQ score” gap)

On intellectual disability, the court canvasses:

• Atkins v. Virginia, 536 U.S. 304 (2002): prohibits execution of intellectually disabled defendants; leaves states “the task of developing” enforcement procedures.
• Hall v. Florida, 572 U.S. 701 (2014): invalidates rigid IQ cutoffs that ignore the standard error of measurement (SEM) and requires allowing “additional evidence” when a score falls within the margin of error.
• Brumfield v. Cain, 576 U.S. 305 (2015): recognizes that a score of 75 (with SEM) cannot conclusively establish non-disability; involves entitlement to develop the claim.
• Moore v. Texas, 581 U.S. 1 (2017): reiterates that courts must account for SEM and use an approach informed (not dictated) by medical standards.
• Hamm v. Smith, 604 U.S. 1 (2024) (per curiam): expressly notes that Hall, Moore, and Brumfield do not specify how to evaluate multiple IQ scores.
• Hamm v. Smith (Hamm II), No. 24-872, slip op. (May 21, 2026) (Sotomayor, J., concurring): emphasizes the Court’s decision not to provide “more detailed guidance” on multi-score assessment.

The majority leverages Hamm v. Smith and Hamm II as confirmation that the Supreme Court has not yet announced a controlling methodology for “mixed score” cases— a decisive point under AEDPA’s “clearly established” requirement.

3.2. Legal Reasoning

A. Beck: Deference turns on whether the OCCA asked the right question

The court first resolves a methodological dispute: whether it must defer to the OCCA or review de novo. The petitioner argued the OCCA effectively committed the classic error identified in Darks v. Mullin and Taylor v. Workman by focusing on evidence supporting first-degree murder. The panel rejects that characterization.

The OCCA’s decision included language that “the evidence clearly supports” intent to kill, but crucially it also stated the key Beck inquiry: that Fuston “did not present any evidence” showing depraved-mind conduct “without the intent” to kill and thus had not shown the evidence would permit a rational jury to return the lesser verdict. Under Gilson v. Sirmons, even if one strand of reasoning were questionable, a second, independently reasonable strand suffices to preserve AEDPA deference.

Once deference applied, the petitioner had to show the OCCA’s no-instruction ruling was not just wrong but objectively unreasonable—i.e., that “all fairminded jurists” would disagree. The panel then treats the “intent” distinction as dispositive because Oklahoma’s second-degree depraved-mind murder requires the absence of “premeditated design.”

The court emphasizes trial evidence that Fuston said he shot multiple times because the victim “was getting up or reaching for something.” The petitioner’s “startled/reflexive” theory was rejected as “inference upon inference” speculation, distinguishing Taylor v. Workman, where the defendant’s own testimony described unthinking, aimless shooting.

B. Atkins: The petition fails at the “clearly established” step

The panel’s holding is narrow but consequential: even if Hall v. Florida and Moore v. Texas strongly suggest that rigid thresholds can be unconstitutional in some circumstances, they do not clearly establish—via Supreme Court holdings—that a defendant with multiple IQ scores, including one above 75, must receive an evidentiary hearing.

Oklahoma law (as quoted by the court) states that “in no event” shall a defendant with an IQ of “seventy-six (76) or above” be considered intellectually disabled (Okla. Stat. tit. 21, § 701.10b(c) (2006)). The OCCA treated Fuston’s 81 score as conclusive and denied a hearing.

Under AEDPA, the federal question becomes whether Supreme Court holdings compel the opposite result in a mixed-score record (59, 69, 75, 81). The panel says no for three linked reasons:

• Scope of Hall and Moore: The holdings are framed in terms of accounting for SEM when a score is near the cut line; they do not announce a rule for reconciling multiple scores, and the opinions’ silence on other scores cannot be converted into a holding under Andrew v. White.
• Explicit Supreme Court acknowledgment of the gap: Hamm v. Smith (2024) and Hamm II (2026) highlight that the Court has not specified how multiple IQ scores must be evaluated, reinforcing the conclusion that the proposition is not “clearly established.”
• Clinical standards are informative but not controlling: While Hall v. Florida uses clinical practice and SEM as inputs, it also stresses that expert views “do not dictate” the outcome. Thus, the panel rejects the petitioner’s attempt to constitutionalize a particular clinical manual as the rule of decision.

3.3. Impact

A. Practical impact on capital habeas litigation

• Mixed-score Atkins claims face an AEDPA ceiling: In jurisdictions applying rigid upper cutoffs (like Oklahoma’s 76 rule), this decision supplies a roadmap for states to defend denials of hearings when at least one score exceeds the cutoff—so long as the case remains in § 2254(d)(1) posture.
• Litigation focus shifts to direct review and state post-conviction: Because the panel’s bar is “clearly established” law, defendants will have stronger incentives to build factual records and raise constitutional challenges before finality, where AEDPA deference is not the gatekeeper.
• Framing matters: The majority treated the “hearing entitlement” question as inseparable from Supreme Court holdings on multi-score methodology; the dissent treated hearing entitlement as governed by Brumfield v. Cain’s “reasonable doubt” concept (as channeled through Tryon v. Quick, 81 F.4th 1110 (10th Cir. 2023)). Future petitioners may attempt to reframe the issue similarly, but Fuston signals resistance when state law defines intellectual disability to foreclose “reasonable doubt” once a high score exists.

B. Impact on lesser-included instruction claims

• State-court articulation can preserve AEDPA deference: The panel’s reading of the OCCA opinion indicates that even if a state court notes evidence supporting the greater offense, AEDPA deference likely remains if the opinion also states (or fairly appears to state) the correct “evidence supports the lesser” inquiry.
• Speculative inference is not enough under AEDPA: The court’s reliance on cases like Darks v. Mullin and Grant v. Trammell, 727 F.3d 1006 (10th Cir. 2013), underscores that petitioners must point to concrete evidence supporting the lesser offense, not chains of conjecture.

4. Complex Concepts Simplified

AEDPA deference (28 U.S.C. § 2254(d)(1))

On federal habeas review, the question is usually not “Was the state court wrong?” but “Was the state court’s decision so wrong that it unreasonably applied Supreme Court holdings?” If the Supreme Court has not clearly decided the specific issue, the habeas claim often fails immediately.

“Clearly established Federal law”

Under Andrew v. White, “clearly established” means Supreme Court holdings—the legal rules the Court relied on to decide cases—not broader reasoning that seems persuasive.

Standard Error of Measurement (SEM) in IQ testing

SEM reflects that an IQ score is an estimate with a margin of error (the opinion assumes ±5 points). Hall v. Florida held states cannot treat a near-cutoff score as conclusive without accounting for SEM.

Beck lesser-included instruction in capital cases

Beck v. Alabama requires juries in capital cases to have a genuine “third option” (a supported lesser offense) when the evidence would allow it. The focus is whether evidence supports the lesser offense—not whether the greater offense is well supported.

Oklahoma “depraved mind” second-degree murder vs. first-degree murder

As used in the opinion, the key distinction is intent: second-degree “depraved mind” murder requires an imminently dangerous act showing extreme disregard for human life without premeditated design to kill a particular person. First-degree murder requires deliberate intent to end human life (which Oklahoma law permits to be formed instantly).

5. Conclusion

Fuston v. Quick is less a substantive redefinition of Beck or Atkins than an illustration of AEDPA’s power to narrow federal habeas relief. On the lesser-included instruction issue, the panel held that the OCCA asked the correct question and reasonably found the trial evidence did not support second-degree depraved-mind murder. On the intellectual-disability issue, the panel announced a significant practical limitation: Supreme Court decisions like Hall v. Florida, Moore v. Texas, and Brumfield v. Cain do not “clearly establish” a right to an Atkins hearing in mixed-IQ-score cases where a state treats one score above 75 as dispositive—especially in light of Hamm v. Smith.

The dissent highlights the case’s fault line: whether hearing entitlement is already clearly established by Brumfield v. Cain’s “reasonable doubt” threshold, or whether state definitional rules (like Oklahoma’s 76 cutoff) can preclude that threshold absent a Supreme Court holding condemning such a rule in the multi-score setting. Until the Supreme Court squarely resolves the multi-score question, Fuston signals that AEDPA will often decide the case before the Eighth Amendment merits do.