Aleksey: Developmental-Period Evidence and Cross-Examination Constraints in Atkins PCR Proceedings

Case: Bayan Aleksey v. State of South Carolina (S.C. Sup. Ct., Opinion No. 28333, filed May 20, 2026)
Posture: Certiorari review of a PCR court’s denial of relief under Atkins v. Virginia.

I. Introduction

This capital post-conviction case asked whether Bayan Aleksey—sentenced to death for the 1997 murder of South Carolina Highway Patrol Sergeant Franklin Lingard during a traffic stop—proved he is intellectually disabled and therefore constitutionally ineligible for execution. After his conviction and death sentence were affirmed on direct appeal (State v. Aleksey), and after a first PCR action failed, Aleksey filed a second PCR application asserting an Atkins claim. The PCR court held an intellectual-disability hearing “pursuant to Franklin v. Maynard.”

The litigation centered on (1) how to weigh childhood (developmental-period) IQ scores that are materially higher than later adult scores, (2) whether later low scores were undermined by malingering/poor effort and psychometric interpretability concerns, (3) whether deficits in adaptive functioning were proved, and (4) whether the PCR court could exclude the petitioner’s only adaptive-functioning expert evidence when offered solely by affidavit and the expert was unavailable for cross-examination.

II. Summary of the Opinion

The Supreme Court of South Carolina affirmed. It held the record supported the PCR court’s finding that Aleksey failed to prove intellectual disability by a preponderance of the evidence. The Court emphasized that all three prongs must be established—(1) significantly subaverage intellectual functioning, (2) deficits in adaptive functioning, and (3) onset during the developmental period—and concluded the PCR court’s findings were supported by the evidence and not against its preponderance.

The Court also affirmed the exclusion of Marjorie Hammock’s affidavit (Aleksey’s sole expert evidence on adaptive functioning). It held that, given adaptive functioning’s contested and subjective nature, the PCR court did not abuse its discretion in requiring live testimony (or cross-examination) to assess credibility and methodology, and in excluding the affidavit when the affiant was unavailable.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

  • Atkins v. Virginia, 536 U.S. 304 (2002): The constitutional anchor—executing intellectually disabled persons violates the Eighth Amendment. The Opinion relies on Atkins both for the general rule and for its description of IQ cutoffs (“typically” 70–75) while recognizing that states implement procedures.
  • Ford v. Wainwright, 477 U.S. 399 (1986): Quoted via Atkins to support the principle that states develop “appropriate ways to enforce” constitutional restrictions in the capital context.
  • Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604 (2003): The foundational South Carolina procedural vehicle for litigating Atkins claims in PCR and the source of the adopted three-part definition (borrowed from the statutory mitigating circumstance) and the preponderance burden.
  • State v. Blackwell, 420 S.C. 127, 801 S.E.2d 713 (2017): The Opinion’s principal in-state comparator. Blackwell is used to justify giving heavy weight to developmental-period indicators (including school IQ testing and functional academic levels) and to reinforce deference to PCR credibility determinations.
  • Moore v. Texas, 581 U.S. 1 (2017) and Hall v. Florida, 572 U.S. 701 (2014): These U.S. Supreme Court cases prevent rigid reliance on a single IQ number above 70 when measurement error could put the lower bound at or below 70, and require consideration of adaptive functioning evidence. The Opinion cites them to show it is applying modern constitutional constraints (standard error of measurement; no bright-line cutoff).
  • Brumfield v. Cain, 576 U.S. 305 (2015): Cited for rejecting the proposition that an IQ score like 75 automatically bars an intellectual-disability claim.
  • State v. Stanko, 402 S.C. 252, 741 S.E.2d 708 (2013) (and note to State v. Burdette, 427 S.C. 490, 832 S.E.2d 575 (2019)): Used for the adaptive-functioning formulation (“significant limitations in adaptive skills… manifested before age eighteen”), while acknowledging subsequent doctrinal adjustments (overruled “on other grounds”).
  • State v. Laney, 367 S.C. 639, 627 S.E.2d 726 (2006): Supplies the appellate posture: in criminal matters the Supreme Court reviews errors of law and defers to factual findings absent abuse of discretion.
  • Simpson v. Moore, 367 S.C. 587, 627 S.E.2d 701 (2006), abrogated on other grounds by Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018): Central to the affidavit issue. Simpson confirms a PCR court may admit affidavit/deposition evidence and that admissibility is discretionary; the Opinion distinguishes Simpson by stressing cross-examination and credibility needs when the affidavit is the sole proof on a contested, subjective prong.
  • McKnight v. State, 378 S.C. 33, 661 S.E.2d 354 (2008): Provides the prejudice requirement for reversal of discretionary evidentiary rulings.
  • United States v. Candelario-Santana, 916 F. Supp. 2d 191 (D.P.R. 2013): Used to underscore that adaptive functioning assessments call for judicial evaluation of expert judgment and credibility because the topic is “subjective and more amorphous” than IQ testing.
  • Green v. Johnson, 515 F.3d 290 (4th Cir. 2008): A functional-independence comparator for adaptive functioning, supporting reliance on evidence of paying bills, using money orders, navigating systems, and similar life skills.
  • Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017) and State v. Morrison, 236 So. 3d 204 (Fla. 2017): Out-of-state persuasive authorities reinforcing the court’s comfort with treating materially higher childhood IQ scores as powerful evidence against the “significantly subaverage” prong, notwithstanding later low adult scores.
  • Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999) and I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000): Cited for judicial restraint—declining to reach additional arguments once a dispositive ground exists, and declining to address the State’s alternate sustaining ground (timeliness/successiveness).
  • Ex parte S.C. Dep't of Disabilities & Special Needs v. Linkhorn, 420 S.C. 1, 800 S.E.2d 777 (2017): Cited for the statutory terminology change from “mental retardation” to “intellectual disability,” reflecting modern usage.

B. Legal Reasoning

1. The governing test and burden

Following Franklin v. Maynard, the Court reiterated that a PCR applicant must prove by a preponderance of the evidence: (1) significantly subaverage intellectual functioning; (2) deficits in adaptive functioning; and (3) onset during the developmental period. Failure on any prong defeats relief.

2. Prong One: Intellectual functioning—why developmental-period IQ carried the day

The Opinion accepted modern constitutional guardrails against a rigid cutoff—citing Hall v. Florida, Moore v. Texas, and the standard error of measurement—yet concluded the record still supported denial because Aleksey’s developmental-period IQ scores were 96, 82, and 90. The Court treated these as highly probative that Aleksey did not have significantly subaverage intellectual functioning during development, and that the later divergence did not satisfy the requirement that the condition manifested in that period.

The Court then deferred to the PCR court’s credibility choices on why later adult scores were discounted: malingering/poor effort indicators (Tests #4–#6) and interpretability concerns (Test #5’s index variability). It also approved Dr. Hall’s use of the General Ability Index (GAI) as a “standard ‘fail safe’” when the Full-Scale IQ is clinically unreliable due to index scatter, noting her testimony that the WAIS manual directs that approach.

3. Prong Two: Adaptive functioning—why the record was deemed insufficient

Although Aleksey offered lay affidavits describing academic and social struggles, the Court held the PCR court could reasonably find he failed to present a formal evaluation establishing significant adaptive deficits, especially where the State’s expert (Dr. Hall) provided a detailed DSM-5–based assessment showing functional skills inconsistent with significant limitations. The Court highlighted evidence that Aleksey paid rent and utilities, used money orders, maintained a household, learned tasks after instruction, and produced organized prison requests demonstrating system-navigation and problem-solving.

Importantly, Dr. Hall attributed certain difficulties to ADHD, emotional disturbance, trauma, and attendance problems rather than intellectual disability; the Supreme Court treated this as a permissible, evidence-supported causal account that the PCR court was entitled to credit.

4. Prong Three: Onset during the developmental period—manifestation, not diagnosis

The Court acknowledged (citing a point raised in the Blackwell dissent) that a lack of childhood diagnosis is not itself dispositive. Still, it found the combination of above-range developmental IQ scores and the absence of any contemporaneous suspicion of intellectual disability—despite multiple evaluations—supported the PCR court’s finding that Aleksey did not carry his burden on onset.

5. Evidentiary ruling: Excluding the sole adaptive-functioning expert affidavit

The Opinion’s most practically significant procedural holding is its approval of excluding the Hammock affidavit. While South Carolina PCR statutes permit proof by affidavits (S.C. Code Ann. § 17-27-80) and Simpson v. Moore confirms broad discretion, the Court emphasized:

  • Adaptive functioning is contested, subjective, and “more amorphous” than IQ testing, making credibility and methodology assessment central.
  • Cross-examination mattered because the affidavit went to a contested issue and was the petitioner’s only expert adaptive evidence.
  • The PCR court’s need to make “independent determinations” of clinician judgment and credibility (relying on United States v. Candelario-Santana) justified exclusion when the expert was unavailable.
  • Even if exclusion were error, there was no prejudice because Aleksey failed on other prongs (especially prong one).

C. Impact

  • Affidavit practice in Atkins-PCR hearings: The decision signals that when an affidavit is the only expert evidence on adaptive functioning—and the State has had no meaningful opportunity for cross-examination—the PCR court may exclude it without abusing discretion, particularly given the trial-level responsibility to assess expert credibility.
  • Developmental-period evidence as an anchoring reference point: While recognizing Hall and Moore (no bright-line cutoff; consider measurement error and additional evidence), the Court reaffirmed that comparatively strong childhood IQ scores and development-period records can be “dispositive” in practice, especially when adult scores are clouded by effort/malingering disputes or interpretability problems.
  • Deference to PCR credibility determinations: The Opinion continues the Court’s pattern (as in Blackwell) of substantial appellate deference to PCR courts on expert credibility, malingering inferences, and weighting of psychometric data—making record-building and live testimony strategy critical for petitioners.
  • Clinical methodology in litigation: The approval of GAI usage where Full-Scale IQ is “uninterpretable” due to index scatter may influence how experts structure WAIS-based opinions in future South Carolina Atkins litigation.

IV. Complex Concepts Simplified

  • “Atkins claim”: A post-conviction claim that the Eighth Amendment forbids executing the person because they are intellectually disabled.
  • Three prongs of intellectual disability: (1) low intellectual functioning (often measured by IQ), (2) meaningful deficits in everyday adaptive skills (conceptual/social/practical), and (3) the condition began during development (childhood/early adulthood).
  • Standard error of measurement (SEM): IQ tests are imperfect; a score is best viewed as a range. A recorded 74 may be treated as roughly 69–79 (as the Opinion notes via Hall/Moore).
  • Malingering vs. poor effort: Malingering is intentional exaggeration or feigning of deficits; poor effort can reflect non-intentional low engagement. Courts often must decide, based on expert testimony, whether low scores reflect true impairment.
  • GAI (General Ability Index): An alternative score derived from select WAIS components (typically verbal comprehension and perceptual reasoning) used when the Full-Scale IQ is distorted by uneven subtest performance.
  • Flynn effect: A debated adjustment reflecting that population IQ scores tend to rise over time; older test norms may inflate scores if not adjusted.
  • Adaptive functioning domains (DSM-5): Conceptual (language, academics, money, judgment), Social (relationships, communication, emotional regulation), Practical (self-care, work, living independently).

V. Conclusion

Bayan Aleksey v. State reinforces two core themes in South Carolina Atkins-PCR litigation: (1) developmental-period evidence—particularly childhood IQ testing and contemporaneous educational/clinical records—may decisively undercut an intellectual-disability claim even when later adult IQ scores are lower; and (2) because adaptive functioning is highly judgment-dependent, PCR courts retain wide discretion to require cross-examination and to exclude affidavit-only expert proof on contested adaptive-deficit issues, especially when it is the petitioner’s sole expert evidence. The Opinion thus tightens the practical demands of proof and presentation in intellectual-disability capital PCR proceedings, while remaining formally consistent with U.S. Supreme Court constraints against rigid IQ cutoffs.