its judgment, it is advisable to do so. Indeed, state
courts are granted much leeway in determining when a hearing is required, but in determining whether to give deference to the state court's decision here, we must consider whether that court's application of its own standards and precedent resulted in a denial of due process under the
federal Constitution.
See Panetti, 551 U.S. at 950-51,
127 S.Ct. 2842 ("If [the failure to provide a competency hearing] did, in fact, constitute a violation of the procedural framework Texas has mandated for the adjudication of incompetency claims, the violation undermines any reliance the State might now place on Justice Powell's assertion that `the States should have substantial leeway to determine what process best balances the various interests at stake.'") (quoting
Ford, 477 U.S. at 427,
106 S.Ct. 2595). We conclude from our review of the relevant case law and the record before the state court that the state court's departure from its own
Chase standards in the face of Wiley's evidence of retardation failed to provide Wiley with the minimum constitutional protections.
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 meritsbased 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, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). The state court applied an unexpectedly more stringent process to Wiley without notice, contrary to its announced procedure in numerous cases. Cf. Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ("When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law. . . ."); see also Janecka v. Cockrell, 301 F.3d 316, 324 n. 11 (5th Cir. 2002) (noting that due process is implicated where retroactive judicial alterations of common law doctrines are "`unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue'" (quoting Rogers, 532 U.S. at 462, 121 S.Ct. 1693)); Talavera v. Waimuright, 468 F.2d 1013, 1015-16 (5th Cir. 1972) (holding that state supreme court's retrospective application of a state severance statute rather than its less stringent interpretation of the prior rule in effect at time of trial was a violation of due process). Had the state court followed its established procedures and remanded Wiley's case to the trial court for a hearing, or had it given notice to Wiley that his pleading was deficient and that it intended to adjudicate fully the Atkins claim, Wiley could have amended his state habeas application or supplemented his claim with additional evidence. See, e.g., Bishop v. State, 882 So.2d 135, 151 (Miss. 2004) (holding on direct appeal that defendant who supported his Atkins claim only with school records and family members' affidavits was not entitled to a hearing but that if he filed an affidavit that complied with Chase he could be entitled to a hearing). As it was, Wiley was left to believe that the state habeas application he filed before the Chase decision was sufficient because he had already filed an expert's affidavit in accord with Chase only to find later that the state court reached a contrary conclusion by departing from its previously announced standards for determining who gets an Atkins hearing.
Relying on its decision in Wiley's case, the Mississippi Supreme Court said in a subsequent opinion that technical compliance with the Chase requirements is insufficient to warrant a hearing if the record evidence "over-whelmingly belies" the mental retardation claim. Hughes v. State, 892 So.2d 203, 216 (Miss. 2004). In a subsequent federal habeas petition, the federal district court held that the state court's failure to conduct a hearing in the face of a prima facie case of mental retardation denied Hughes due process. See Hughes v. Epps, 694 F.Supp.2d 533, 543 (N.D.Miss. 2010). We note that the State did not appeal that holding. We also believe that the evidence in Wiley's case did not "over-whelming belie" his claim.
Moreover, a review of the state court's reasons for rejecting Wiley's claim of retardation and the specific evidence presented demonstrates the disputed nature of the facts and bears out the need for a hearing to test the arguments of both sides. Instead of granting a hearing, the state court decided the retardation question itself and held that Wiley was not retarded because, in its view, Wiley's family affidavits "did not allege or establish that Wiley is mentally retarded." Wiley, 890 So.2d at 896-97. It found compelling the State's argument based on the family affidavits that retarded people do not perform such functions as driving tractors, joining the Army, obtaining a driver's license, and supporting their families. Id.
In Chase, the State made a similar argument and offered evidence that the petitioner was never in special education classes, never failed a grade in school, played quarterback on the football team, completed a welding course and became a certified welder, performed yard work and washed cars, cooked for his mother, had a girlfriend, and had no deficits in social skills. Chase, 873 So.2d at 1022. Despite the fact that this evidence "would certainly be persuasive and interesting to the trial judge at the hearing," the Mississippi Supreme Court permitted a hearing because the petitioner had "arguably demonstrated that his IQ falls within the range of possible mental retardation, and because he has presented an affidavit which asserts that he suffers from `mild mental retardation.'" Id. at 1022, 1023.
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 PSYCHIATRY VOL. II 2598 (Benjamin Sadock, M.D. Virginia Sadock, M.D. eds., 7th ed. 2000) ("As adults, many [individuals with mild mental retardation] hold jobs, marry, and raise families. . . ."); AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 43 (4th ed. 2000) (DSM-IV-TR) ("By their late teens, [persons with Mild Mental Retardation] can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support. . . . With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings."). In light of this evidence, Wiley's ability to function vel non was the type of clearly disputed fact that could benefit from a hearing before the state court. See Thompson v. Bell,
580 F.3d 423, 436 (6th Cir. 2009) ("Regardless of whether Thompson's incompetency petition should be granted, his evidence has at least created a genuine issue about his competency, and therefore warrants an evidentiary hearing . . . . Because the Tennessee courts unreasonably applied federal law clearly established by Ford, this Court does not afford AEDPA deference to their dismissal of Thompson's petition.").
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 w7ell in school'" and spent his prison time studying the Bible, reading, and writing to pen pals).
Wiley presented a prima facie case of mental retardation in his state court habeas application under the Mississippi standards for an Atkins claim, see Chase, 873 So.2d at 1029, and his evidence and affidavits raised "serious questions about [Wiley's] possible retardation," Rivera, 505 F.3d at 357; cf. In re Henderson, 462 F.3d 413, 415 (5th Cir. 2006) (holding, albeit in another context, that a prima facie case of mental retardation "`is simply a sufficient showing of possible merit to warrant a fuller [exploration] by the district court'" (citation omitted)). Therefore, faced with the threshold question of whether to allow Wiley's claim to proceed to a hearing, it was an unreasonable application of clearly established federal law for the Mississippi Supreme Court to deny Wiley's Atkins claim without a hearing, and the district court correctly concluded that it was not bound to afford the state court's decision deference. See Rivera, 505 F.3d at 357; see also Panetti 551 U.S. at 948, 127 S.Ct. 2842.
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.
1. Subaverage intellectual functioning
Whether a petitioner 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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, 105 S.Ct. 1504 (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, 122 S.Ct. 2242. 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.
Wiley's own expert, Dr. Swanson, testified that she did not administer a standardized IQ test because Wiley had already been tested several times, and she believed the results of another test could be inflated by the so-called practice effect.
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 (CI) of 95%, meaning that due to standard errors of measurement the experts would expect with 95% confidence that Wiley's true IQ would fall within a certain range around the reported score. The district court also noted that the experts debated the application of the Flynn effect. As noted above, the Flynn effect provides a reduction in IQ scores to account for inflation in the score based on the number of years since the test was normalized. All three experts who testified at the evidentiary hearing stated that the Flynn effect is generally accepted in the scientific community, but they did not agree as to whether an individual IQ score must be adjusted to reflect the phenomenon. Drs. O'Brien and Swanson testified that an adjustment should be considered, but Dr. Macvaugh disagreed. The district court noted that Wiley's full-scale IQ scores (FSIQ), the CI interval ranges, and the Flynn adjusted IQ scores were as follows: 95% CI Flynn Date Examiner Test FSIQ range 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 adjusted scores. The court explicitly stated that it was "not holding that the Flynn effect must be applied to properly assess an individual's IQ, and it is not holding that failing to apply it is unreasonable." Instead, the court indicated only that it should be considered as one factor when interpreting Wiley's IQ scores in light of the unanimous opinion from the experts. We need not resolve the weight, if any, to be given to the Flynn effect, however, because the district court also found that even without it the evidence supported a finding that Wiley had significant subaverage intellectual functioning. On the record before us, that finding is not clearly erroneous.
In its written decision the court referred to "test obsolescence," which we interpret to be the same as the Flynn effect based on the experts' testimony at the evidentiary hearing.
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 an 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 mentally retarded where one of several IQ test scores was above the state's threshold: "There is no Alabama case law stating that a single IQ raw score, or even multiple IQ raw scores, above 70 automatically defeats an Atkins claim when the totality of the evidence (`scores) indicates that a capital offender suffers subaverage intellectual functioning.").
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 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. O'Brien, he testified that his disagreement was based on "examiner judgment" in the scoring of the IQ tests and conceded that "these things could be argued either way."
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 reweigh the facts and evidence in order to reach a decision contrary to the district court's conclusion. See Anderson, 470 U.S. at 574, 105 S.Ct. 1504; 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. " Adaptive 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 background, and community setting." DSM-IV-TR at 42. To meet this prong of the test, clinical definitions of mental retardation found in both the DSM-IV-TR and the AAMR require proof of limitations in two or more adaptive skill areas, which include communication, self-care, home living, social skills, community use, self-direction, health, safety, functional academics, leisure, and work. See Atkins, 536 U.S. at 309 n. 3, 122 S.Ct. 2242 (quoting AAMR 9th ed. at 5, and DSM-IV-TR at 41).
As noted above, the tenth edition of the AAMR revised the definition to require proof of limitations in adaptive behavior as expressed in "conceptual, social, and practical adaptive skills." The AAMR indicates that its Terminology and Classification Committee made this change because of a lack of a single standardized measure of adaptive behavior that measures all of the original skills. AAMR 10th ed. at 81. Dr. O'Brien testified that the ninth and tenth editions of the AAMR look at the same types of adaptive behavior, but the tenth edition essentially groups into three categories the individual skill areas of the ninth edition. Both Dr. O'Brien and Dr. Swanson indicated that their diagnoses of Wiley were the same under both editions.
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 challenge these findings, the State presents two arguments that concern the process by which the court and the experts reached their conclusions about Wiley's adaptive behavior.
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 the 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 been assessed on the inherently subjective bases of interviews, observations, and professional judgment." Doss v. State, 19 So.3d 690, 713 (Miss. 2009) (internal quotation marks and citation omitted). The Mississippi Supreme Court has recognized that "there is not one test to determine mental retardation, including the adaptive functioning component" and that there has been no agreement among professionals as to the proper test for assessing adaptive behavior. Id. at 712. The district court here also recognized that there is debate among clinicians as to whether retrospective assessments are valid for determining adaptive functioning in an Atkins-related context. Nevertheless, the district court found the testing by Dr. Swanson, which she corroborated with interviews of others and with direct probes of Wiley, to be sufficiently reliable for consideration. We see no clear error in the district court's findings. See, e.g., id. at 714 (holding in the face of similar expert disagreement about standardized adaptive testing and the adaptive functioning of the defendant that neither side's methodology was infallible and that the ultimate issue of whether the defendant is mentally retarded is up to the trial court after assessing the totality of the evidence and the credibility of the witnesses). The record and evidence before the district court in this case supported the court's consideration of the information obtained by Dr. Swanson.
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. at 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 is in a restricted environment, such as prison, and there is a question about the subject's adaptive functioning before coming to that environment. See SARA S. SPENCER, ET AL., VINELAND ADAPTIVE BEHAVIOR SCALES, SECOND ED., Expanded Interview Form Manual, 28 (emphasis added).
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.
As noted above, the State has failed to brief the district court's factual findings on the specific areas of functional skills deficits or explain how those findings are clearly erroneous, and we may consider that issue waived. See, e.g., Procter Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n. 1 (5th Cir. 2004) ("Failure adequately to brief an issue on appeal constitutes waiver of that argument."). For the sake of completeness, and to give the district court's decision context, however, we briefly mention some of the deficits found by the district court.
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. Dr. O'Brien tested Wiley with the fourth edition of the WRAT (WRAT-4) and found results consistent with Dr. Grant's earlier report. Dr. Macvaugh also administered the WRAT-4 and reported similar results and conclusions. Dr. Swanson concluded from her own administration of the WRAT-4, as well as the Woodcock Johnson and Kaufman Tests of Educational Achievement, that Wiley was functioning on a third to fourth grade level.
Dr. Grant reported that Wiley scored a 68 (1st percentile) on the WRAT-III, which is a grade equivalent of 4.2. Wiley scored a 64 on the reading subtest for word recognition, which is a grade equivalent of 4.3, and a 70 on spelling, which is equivalent to grade 5.1. The Nelson-Denny Reading Comprehension Test yielded a grade equivalent of 4.1.
On the WRAT-4, as reported by Dr. Grant, Wiley achieved the following scores: Word Reading standard score of 77, fifth grade level; Sentence Comprehension standard score of 74, sixth grade level; Spelling standard score 74, fourth grade level; Arithmetic standard score 76, fourth grade level.
The scores obtained by Dr. Macvaugh for the WRAT-4 were as follows: Word Reading standard score of 77 (6th percentile; grade equivalent of 5.7); Sentence Comprehension standard score of 74 (4th percentile; grade equivalent of 6.5); Spelling standard score of 72 (3rd percentile; grade equivalent of 4.3); Math Computation standard score of 81 (10th percentile; grade equivalent of 5.4); and Reading Composite standard score of 73 (4th percentile).
Dr. Swanson indicated in her report that Wiley's various test results were corroborated by his school records, which showed that he passed the fourth grade with minimal grades but had been socially promoted or retained in subsequent years. She opined that such an "academic plateau" was common in persons with mild mental retardation, who often make slow progress early but plateau between fourth and sixth grade. Wiley's school records show that he repealed both the fifth and sixth grades. Following his grandfather's death, Wiley dropped out of school in the eighth grade to work on his grandparents' farm. Some of the problems noted by Dr. Swanson involved Wiley's memory, abstract reasoning, and reading and writing skills.
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 tasks visually upon demonstration. Interviews with Wiley's grandmother and former wife revealed that Wiley had been a shy child, was "late to talk," could not remember oral instructions or give complex directions, and did not express his feelings well. Dr. Swanson concluded that Wiley had communication deficits in areas of receptive vocabulary, oral expression, listening comprehension or following directions, and written language. Dr. Grant also gave Wiley a series of tests to gauge his communication skills, including the Oral and Written Language Scale (OWLS) and the Expressive Vocabulary Test (EVT). Dr. Grant stated in his report that Wiley's Oral Composite score of 71 (third percentile) and score of 52 (less than first percentile) on the EVT "indicated significant deficits in the area of communication skills." Dr. O'Brien also found deficits in communication skills, placing weight on Wiley's school records.
We note, as did the district 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 demonstrating appropriate assertiveness and self-advocacy skills." AAMR 9th ed. at 40. The district court concluded that Wiley's deficits in self-direction skills were supported by adaptive assessments by the experts, Wiley's work history, his gambling and alcohol addictions, and reports from family and friends.
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 pay-checks 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").
4. Onsel 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 a: age nineteen, provided a helpful snapshot of Wiley's intellectual functioning and adaptive skills dose 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 the district court was not bound to defer to the state court decision.
This 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, expressing his feelings, mastering hygiene and dressing skills, performing basic skills like making his bed and putting away his possessions, and requiring help with making purchases. Wiley's wife later provided daily assistance, and the military records note physical and mental limitations just past Wiley's eighteenth year. Based on the record, we do not find clear error in the district court's determination.
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.
Dr. O'Brien tested Wiley with the 21 Word Test and found a "normal result" with "no indication of lack of motivation, dissimulation, or malingering." Dr. Swanson administered the Rey's 15-word List, which indicated "adequate effort and no signs of malingering were evident." Dr. Macvaugh administered the Test of Memory Malingering (TOMM) to Wiley and concluded that "there was no indication that he attempted to feign cognitive deficits."
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.
E. GRADY JOLLY, Circuit Judge, concurs in the judgment only.