good afternoon let me call the case of clemens versus the commissioner good afternoon may please the court my name is eric blum i'm here on behalf of the petitioner eugene clemens with the court's indulgence alike to first address briefly the equitable tolling issues and then i would like to move on to the atkins issue which i think will require substantially more discussion the doctrine of equitable tolling as its name commands is empirical in nature the supreme court in holland made it clear that the determination has to be made on a case by case basis it is shewed absolutely eagle rules for archaic rigidity emphasizing instead that the standard is flexible to address new fact patterns in this case we've made a submission of extraordinary circumstances on the basis of four different events each of which implicates stay conduct i'd like to very quickly take off those certainly we have a prior decision smith versus alabama that's similar to this case and we said in smith that that's the only or to pay a filing fee or to attach tavares motion to a rule thirty two petition in alabama is garden variety negligence on the part of counsel and that's not enough to constitute an extraordinary circumstance cases first in that case there was no allegation much less evidence that the clerk provided iranis information regarding the filing fee second in era case not in the smith case the clerk actually stamped a stamp and return a copy for those of us who used to practice in the old days before it was all electronic right but that's of no legal consequences even if the clerk thought he was doing it right if the clerk had improvidently done that so what well if he term of art this was never filed it was never filed as a matter of fact rather than being received and filed it was received and lost it was stuck behind a filing cabinet for four months with a couple of other unrelated pleadings and i don't think there's any question we go to the basic question that wilson is suggesting by the reference to smith why would it be appropriate for counsel i'm not talking about a petitioner on his own relying on a statement from a clerk but why would be appropriate for an attorney or sophisticated to turn me to ask the clerk of court seems odd that you'd say to your secretary figure out what the fee is she comes in and says i can't and then you just call the clerk of court and say what are my obligations what's the fee you strikes me that regardless of what a clerk says and the clerk might have been a lawyer might have been a lay person and not a lawyer there was some obligation on the lawyers part to read what appeared to me to be pretty self evident from simply looking at rules thirty two point six a which says with clarity that the petition shall not may be accompanied by two copies it shall be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and i what was ambiguous about that why would it have been difficult for counsel to simply read thirty two point six and discover that if you want to petition under thirty to six you've got to do one of two things either pay a filing fee or proceed i have paid so rule thirty two of course refers to the civil rules the civil rules provides you what the specific fees are there is nothing there specific to the b s there is a catch all provision so then the question is is it under yeah all they have to do is look at it and i went to look and the amount has changed depending on the year you look at it but if you look at the section of the alabama code twelve nineteen seventy one it says on ambiguously the docket fee which shall be collected in civil cases shall be a three one hundred forty dollars for cases filed in the circuit court right so no complexity there is there there's nothing that's specific to to a hate b s your honor so the question then is wait a minute wait a minute but the rule thirty two says it while it doesn't cite you to twelve nine seventy one it says specifically that it should be accompanied by a fee prescribed by law in civil cases in the circuit court or you had to do is look up and see what was prescribed by law and civil cases in the circuit court with and you would have seen it was one hundred forty bucks maybe i'm missing something i believe it's not unreasonable to to read rule thirty two as saying pay the fee parent any you go where does it say if any it doesn't but i'm saying just follow this through if you will you then take a look at the civil rule the civil rule doesn't say anything specific about hippias you then call the call the clerk and i want i think this is critical to our argument so i don't want this to get lost this isn't a case like like jackson where you're talking about fight if you're talking about deadlines at the end of the day this is an administrative task by by the clerk if you take a look at many of the circuit courts websites that will say you're welcome to call our offices and come by jefferson county please contact the circuit clerk's office directly with any question on filing fees mobile says if you're unsure how to calculate your fees please call this number nor do i want to get lost the fact that if you take a step out this is the perfect storm because it's not contested the district court accepted mr christie's affidavit so you again i want to come back to the strength of our argument is the totality of the circumstances we may disagree about what is required by counsel we obviously submit that it's not unreasonable to call the clerk's office especially when various clerk's offices say colas about the fees well a member letter let's suppose that mr christie was extraordinary circumstances so my question as assuming mr christie was negligence can you still prevail as far as extraordinary circumstance thank you for that question your honor that's exactly what i was getting to here is to to tell you the circumstances this was the perfect storm because i don't think anyone will disagree and certainly the state has in that under alabama code twelve deaf seventeen ninety four it is the clerk statutory duty to keep all papers books dockets and records belonging to their office with care and security so as to be of easy reference behind the filing cabinet does not satisfy that obligation it was because our petition was stuck behind a filing cabinet that there was no notice of deficiency your honor judge wilson asked about the smith case in smith when you look at the difference is the clerk's office sent counsel in that case and it's right there in the defense and in the decision advising that quote a filing fee of one hundred fifty four dollars or in pauperis is required to file the petition and then ask counsel quote to please submit the filing fee and the application for pro hockey she to our office at your earliest convenience so that we may get t petition filed also when we're looking at all the facts and circumstances let's also remember the downs versus mcneil case where this court mentioned in that case notwithstanding all the issues the petition was filed only eight days late evidentiary hearing on this issue the district court accepted that sworn representation at footnote eight of that decision saying the court does not question the reasons given by counsel for his failure to pay the filing fee at this time at the time he filed the for equitable tolling are cases that generally arise in the pro se context that is to say where a pro se petitioner is told the wrong thing by the clerk the clerk says file it here rather than there while it's there rather than here file it within this time frame rather than that time frame and for very powerful reasons the courts are going to say the petitioner is not licensed to practice law and might have some reason to rely upon what it government authority little on the clerk of court tells them but we're in a different area when we're talking about a mistake by a lawyer  mis information ever been used where the petitioner was counseled i can't find a case that says that but what i where there's ever been equitable tolling where the lawyer for the  petitioners i got bad information from a clerk or something like that or from the court nor have i ever seen the opposite where because it's to a represented to counsel c no i don't i don't doubt that there might be a case where the infamous information to a lawyer might actually amount to enough the problem that i have here and if you can just in one line help me with understanding as a general matter the supreme court has spoken of abandonment were basically the lawyer leaves his client high and dry so we look and ask whether there was some extraordinary circumstance that you couldn't navigate around by due diligence but it struck me looking at thirty two c point six a and the statu that it was very easy to navigate around anything the clerk may have told you that was erroneous all you had to do is there a little bit of research so how does this amount to an extraordinary circumstance even if i accept the assertion that the misinformation cases which come up pro se ought to be applied with the petitioners counseled and i think again there are several things the very fact that even let's assume that it's attorney error your honor clearly there was an assist your by the state when you look well there's no doubt it's attorney error has there ok so you have attorney error and you also have an assist by the state when you're looking at extraordinary circumstances you have on the one side those cases that deal with attorney banham and you also have those cases a deal with state conduct here that was misinformation take that is just a tiny piece of this you also have the representation it was filed you also had the representation and i don't want this to be lost that the petition was lost i also don't want to have be lost the fact that in this case the clerk failed to provide the notice of deficiency in rule thirty two six and a says if it's followed in the wrong form you have to advise counsel or their practice i'm told as they both call counsel up and they send it in writing none of that happened and if i may refer you to the burger versus scott case the tenth circuit case which cites to the supreme court case of baldwin county quoting now the supreme court has indicated that equitable tolling may be applied were court has led a particular plaintiff to believe that she or he has done all that is required under the circumstances and here when you get that when you do w the clerk tells you and you get that stamped copy that says it's filed you fall a month early and you still don't get a notice of deficiency that is certain we would have corrected it had we known i mean as he just one final question i will move on to the other have to give me a statistic it from the warden or an appropriate officer of the institution i would say that's not enough because that's in the rule ok thank you and i think there's enough ambiguity in the civil rules governing the fees that it merits a phone call that's the difference turning to the atkins issue focusing very importantly on twenty two fifty four d two and lead to the shoe case where relying on an unreasonable determination fact here there was an unreasonable i just so that i'm clear on this given what the supreme court said in shoot you agree you can't rely on more any more we cannot rely on more for at least not the way you did correct for purpose in saying otherwise it's an interesting argument it seems to me that you make because there's no question the state court focused on one side of the ledger and only one side of the ledger but that really they were free to do that under the operative the time at least that's what shoop tells us i think what should tells us is you cannot rely on moore's principle of long there or work a says before then and there were authorities before then that has made it clear we don't need more as the short answer in fact our first brief was done before moore was even issued so if i may run through why it's an unreasonable determination of fact three reasons number one so your central argument goes off on the fact because opposed to the contrary if you are not a reasonable application of the law correct your honor ok correct number one because the stay court itself found that mr clemens i q was as low as seventy two because the only standardized at data functioning test administered to mr clements so that he had six significant adaptive deficits and that in contested by the state and was not even mentioned by the circuit court and three and critically that this rather than being an after the fact lawyer made arguments clearly mr clement satisfies the third prong that is th condition manifested itself prior to the age of eighteen because we don't have to do a retrospective analysis or diagnosis here he was actually diagnosed as mentally retarded when he was six years old taking them in the limited time we have one at a time the circuit court at e m c six fifty seven page eighteen of its decision says when clements puts forth effort he consistently scores in the seventy to eighty range on intelligence tests these scores the circuit court found place him in the borderline range of intellectual functioning and established that he is not mentally retarded what the court did is it said he might be mentally retarded and he might not because obviously scores between seventy and seventy five clearly fall within the range of mental retardation how do we know that what was before the court at the time the a m r tenth edition  page fifty eight defined significantly sub average intellectual functioning as approximately seventy to seventy five taking into account measurement error it adds on the next page this expands the operational definition of mental retardation to seventy five the d s m says the same thing atkins at footnote five says the same thing so we don't need more or any of those other cases for that do we have to defer to the courts determination with regard to the low scores clemens was what i try to do for purposes of this argument is that absolutely simplify this so let's give alabama the benefit of those doubts there were seven tests course let's get rid of the three for purposes of this argument that they want to discard that leaves you with a seventy three on the wa that was pretty atkins that everyone agrees he was not willing to ring for clearly falls within the range of mental retardation remember the brumfiel case which was in fact a d two case very similar to that which is before your your honour's now in graham field the petitioner had a seventy five and the supreme court said that fall squarely in the d two case within the mental retardation or intellectual disability range is  has the court free to average amount or is it your view or is it your view that it's on reasonable for a court to average out not seven scores let's just assume we discount three of them the fifty one the sixty seven in the fifty eight that leaves us with four leaves us with for a score of seventy seven a score of eighty for a score of seventy three and a score of seventy seven of that only one falls beneath seventy five could according reasonably average amount come out with a mean and say the mean is above seventy five when you get into the that's the only reasonable for them to do well the problem here is you have to knock out the eighty for the beta two and whatever that's a different question and i'm happy to have you address that for me but i'm asking you a very specific question was it on reasonable for the state trial court or for that matter the federal habeas court to average out four scores and come up with a number that was seventy seven point whatever is it on reasonable to take a mean we believe in this right if it is what case law would there be out there well that would suggest that if you have multiple scores relying on more not for the d one principles but for  fact finding there were there was a score of a seventy four and a seventy eight and the majority found on the basis of the seventy four that he checked off that first prong in atkins so i would rely on that your honor but i want to go back to t souther point because if you knock out that eighty four you're left still with the seventy five point something and we've already briefed quite extensively the issues with the beta test that was the eighty four that's only a screening the supreme court and me ask you by the way on that but that's beta two score ever introduced by the state at the two thousand and four and it's never introduced at the atkins hearing raise it because it it it appears in the state court order exactly when i looked at the record i didn't see it's not there it's not there but your argument as to that is eighty four is infirm for a different reason because it was a beta score that was used well number one because it was not introduced well i didn't think i read that argument yeah i mean i missed it is in there therefore you also have no expert state or anyone else who says that that beta two can be used to diagnose mental retardation that's not in there it's nor and on the prison population it was for illiterates in the war and war the war won you take a look at cases like pruitt vs neal i ask you to take a look at that case seventh circuit it found mental retardation discarded the data of a score of ninety three the allen versus wilson test discarded the beta of one of the four rivera versus directly discarded the eighty five and ninety two and says all of the literature this court has reviewed suggested one sacrifices accuracy for speed when one administers test design for screening purposes and i see my time is up with you you may finish the point you know it thank you very much your honor in the problem field case which was again a d two case reasonable whether the diagnosis or the finding that the petitioner there was not mentally retarded the supreme court said not only was there a seventy five acknowledged that there was a screening test that had a higher score in the supreme court says there was testimony at trial regarding the possibility that the state experts attain an i q score over seventy five but the testimony was  dr jordan only did a screening test while the petitioners expert gave a standardized measure of intellectual fun functioning and then the supreme court said that screening for it was not sufficiently rigorous and it would not rely on that again that's a d two case so if you knock out that that score you've got a seventy three and what i would call too soft seventy seven's that i'd be happy to discuss now  the most appropriate what do we do with the facts only looking about whether the state trial court's application the findings of fact were under reasonable you have here is best i can tell you seven mental health experts evaluate clemens and his adult years five of them perform i q tests and of the five for all but golden opine that clemens was intellect was was not intellectually disabled only one says that he was four say he was and and the one who says he was is obviously discredited for a variety of reasons but the state trial court what would be under reasonable doubt that determination by the state trial court where you have four of five who say he was simply not mentally disabled we disagree with goldens assessment and the trial judge who sees and hears gold and says i got a bunch of problems with what gold did i don't like the way he jiggered the scores on one test and here are some other problems why was it on reasonable fully which is the ultimate question and you've got the burden for the trial court to conclude that he was not mentally disabled at least if you were looking at the who are oss cores themselves so there are two answers your honor the first is there are only two  experts the state's expert dr king mr clemens expert dr golden who testified for purposes of determining mental retardation or intellectual disability that's it two of the other experts were talking and testified regarding brain damaged then you've got certain experts grand perjure hazel rig and rivenbark where they weren't examining mental retardation they didn't testify at the atkins hearing and they were looking to determine whether or not he understood his miranda rights they were looking to see whether or not he's satisfied the competency to stand trial and there's there's case law out there that says looking at one is not sufficient to look at the other then the other issue that your honor raises if i may briefly address is the so called credibility determination miller l vs cockerell supreme court two thousand and three decision which we credibility determination and conclude that the decision was unreasonable but was the basis here for the credibility determination the court noted that dr golden only testifies on behalf of criminal defendants and never on behalf of prosecutors now remember of course this was a proposed order that the judge assigned but if you look at his test of a c but even if you accept the idea that golden was competent and qualified and rendered an opinion was mentally disabled you had a number of others on the other side of the equation who said no we disagree why couldn't the trial court opt for those who said no rather than the one who said yes without yielding a result that one reasonable because the court doesn't have to be blind as to the basis of anybody's testimony and in this case your honor if you go through the three prongs you have the state court itself acknowledge that mr clements i q could be as low as seventy you knock out that eighty four you're at about a seventy five that goes beyond any conclusory up conclusions number two you have the asked to which was administered by dr golden that the state never contested that in fact their expert when i read that this court's decision  his suppose his strengths is the fact that one he can engage in sexual relations or to the fact that he can lie anyone who's ever had a toddler knows that they lie they just don't lie very well in the third thing they pointed to is the fact that he can deliver pizzas never mind that he could not according to his boss calculate change very well or find helps and then the third prong of course is the fact that he was actually diagnosed when he was six years old as mentally retarded so we've got the underlying facts the fact that someone spelled something that doesn't mean that we don't look at the underlying facts you're on to me ask you slightly different question than you're on our time not yours and you preserved your full seven minutes and it's sort of an antecedent question and a problem two of twenty to fifty four d what's the proper standard we use we've never answered the question nor has the supreme court on the d one hundred eighty one is the standard on reasonable determination of the facts or is the standard the one that stated in the one where it says the applicant shall have the burden of  presumption of correctness by clear and convincing evidence doesn't matter here well i don't know that it matters but i do believe that that the two is the pleasurable standard at least until this circuit reconvenes in bon versus secretary for department of corrections says and again this is a quote from the in box decision when a state courts adjudication of behaviors claim results in a decision that is based on an on and unreasonable determination of the facts in light of the evidence presented in the state court proceeding which is the d two standard this court is not bound to defer to a reasonably found facts or to the legal conclusions that flow from them right but trust me when i tell you it's an open question it's an open question here as well as in the supreme court does it matter to your argument whether the standard is on reasonable and the determination of  facts as opposed to rebutting the presumption by clear and convincing evidence we believe in you either standard we do believe that we can meet the higher standard your honor given the fact that bromfield has specifically said a seventy five falls squarely the supreme court's word within the range of intellectual disability when the only standardized test for purposes of determining adaptive functioning says that mr clemens adoptive behavior should be measured with a standardize instrument that provides normative data on people without mental retardation that's the abe asked to that was done here that's the test  case it's published by the psychological corp this is an e m c nine seventeen to nine twenty one the same people who developed the wechsler the a i asked it's the only one standard i specifically for the purpose on a normal population at looking at the d s m four criteria how can we close our eyes to that i will ask you to bring your remarks to a conclusion if you want to reserve the seven minutes i'll step down o respond right away to some of the things my friend on the other side was saying field doesn't really apply here are there was a case where the louisiana state court completely denied a hearing on the atkins issue including that a seventy five alone one of the scores was a seventy three there is no precedent from this quarter any court that says that you have to credit the one lowest score and moreover you have to credit the bottom of the standard for error measurement and not to  somehow a reasonable for the state court rather this court said in ledford that the standard error measurement is not a one way ratchet and you do not have to assume that someone's i q is going to be found at the bottom of that sa rather than somewhere near the top and when there are multiple other stores that suggest that the actual i q is somewhere higher and outside of that range it is completely reasonable for the state court to conclude that the petitioner has not met  first prong of atkins and that's what we have here are ours we have for scores that fall if we are any of the court ever dop to the notion that you can come up with a mean figure by adding them all up dividing by four three or seven i believe that this court has stated in some cases that on the citation with me right now your honor the word an average has been applied in some way but even if you don't average it would be perfectly consistent and perfectly reasonable for the court to say that he has t seventy seven so were handed down decades apart which shows remarkable consistency that he is someone who is in borderline intelligence range you have the eighty four as well i would like to address in the how do we know  friend was discussing as well as the score of the fifty one that was discredited both of those were included and what we've referred to as the but in a report it was a report put together by doctors hazel rig and doctors berger who were worked at the federal facility in butner north carolina and who assessed mr clemens after he was arrested for the murder of douglas althouse in there they noted that he had scored this eighty four on the beta two test in one thousand nine hundred one and then they tried to administer the wechsler adult intelligence scale revised the ways are to handle in the vendor having a hard time figuring out how the court could even factor the beta two score into consideration if it was never clemens who introduced the butler report into evidence the butler report is what included the ways are scored fifty one and would also mention the beta two score of eighty four so they do say in their brief that the state never introduced beta to score well we didn't need to they had already introduced it so your answer is it was produced and made part of the record evidence before the state trial court it's exactly in the but in the report itself that's exactly right you are and your honor they rely on the score of the fifty one in their brief when they're trying to calculate averages three think that the fifty one is good enough to mention they were if the eighty four is also good enough for this court to consider and was good enough for a state court to consider if they were going to introduce about a report that had both of those scores in it they've got to take the better with the sweet or they have to explain why the better should not have been given some credibility they failed to do that they did not say here's the butler report and by the way the beta two don't give it much credence you should really discount that but this fifty one is somehow something that you should take as gospel so i think that's really it's really remarkable hard to understand how the court took all of these scores and the consideration when it thousands of pages of it into the record and federal and state courts every day adopt proposed orders they asked for a proposed order to mr clemens and opposed order from the state at the end of the day adopted the proposed order there's nothing unfair about that and moreover th because it's common sense the right standard in the view of the state of alabama we believe the right standard is the clear and convincing evidence standard anyone and it's somewhat hard to see what you want to do in this context if it didn't apply to an issue like this so we do think that that is the better of the arguments but i don't again i don't think we see you know i think we have to answer the question here i don't believe so your honor again there for four days of hearings as you pointed out seven different experts looked at mr clemens only one found him to be intellectually disabled and there was severe problem credibility problems with his testimony because for example the stanford benet test which he gave in october two thousand and three returned a score of fifty eight now the problem typically i think it's an expert gets a low score for a client who is having ekins hearing that's so much good news but here the problem was that just a couple years prior  cleanses other expert dr ackerson had administered the wait at the the ways our test him in november of two thousand and before actions was decided she returned a score of seventy three if you look at her test results it says borderline written beside every single scored borderline of course is above intellectually disabled so that fifty eight that he returned on stanford benet was an entire standard deviation lower than what the expert what comes other expert it found just a couple years prior so he proceeded to manipulate the numbers if you will and he said we should really add three points across the board to make this a sixty one and then he said but i think that's a quote over correction close quote so we manipulate them or some more and to fix the over correction you know adding five more points which you think if he was fixing over correction in a row to go down not go up five more and that's why the state court on the day found that the reasons he gave were quote incredible close quote and were given in an effort to make the score appear more consistent with clemens other scores so in short in trying to make the stanford benet test results look more credible he squandered his credibility so it was not just because he had mostly done work for defendants that the state court found him to be incredible it's also because of what he said before the state court and thus when you get to the a b s to test that he administered later as the district court recognized  affected by the fact that clemens was diagnosed as mentally retarded at the age of six like to trust aren't so the score he received was a seventy seven that was from the school psychologist if you look back at the reports it says recommendations medical recommendations and it says special classes or any are at one of those instances another it says holding back in first that and i think that that may have been shorthand for special classes there's no indication actually was placed in those classes at that time but rather was help back but you are despite the fact that we have one diagnosis there even if even granting them the fact of it  that may have been considered a diagnosis we have multiple other diagnoses including the seventy seven that that same practitioner gave him and i don't my friends on their side take issue with seventy seven the reliability of that test because he was only six and a half at the time but there was expert testimony from dr king that scores are stable can be stable between six and eight and moreover that they are more likely to be stable if they are particularly high scores or particularly low scores and he said seventy seven is particularly low which means there's even more reason to think that this was a stable score and then its stability is further demonstrated by the seventy seven that he got more than twenty years later when he was administered the ways three by dr king as well  can't think what else i need to respond to from my friend you know he mentioned this was a case of of two experts dr king and dr golden for only dr king's testimony really lined up with all the record evidence from hard to imagine clear evidence of a lingering for him on these tests where he scored quite low for example like when dr king assessed him before actions was decided he was active he scored seventy seven afterwards on the ways he scored a sixty there were some questions on the ways in the ways three that were quite similar including in two thousand and one he was asked to define the term winter he said cold time of the year which was full credit in two thousand and four when asked to define winter he said fall which gives no credit whatsoever in two thousand and one he knew a social security number he knew the date in two thousand and four he said he didn't know either of those things so it was frankly would've been unreasonable for the state court to conclude that he was not lingering in instances like that but the court did go along with the get this this long history of millinery and from the time he killed dug all house until all the way up until two thousand and four which more than supports the court's finding that the expert testimony coming from the state was more credible than the testimony from the other side you know just briefly to address some of the evidence in favor of well i also need to address the a b s to results now it's true this was the only test of adaptive behavior it's been i believe and i've been the only test of adaptive behavior that was handed down that it was quantified at the end of the day but there's no clear supreme court precedent that says that a test of adaptive behavior that and up with a number is somehow the gold standard or superior to more qualitative assessments of adapt behavior but what's interesting about the trial court's analysis of adaptive functioning is he looks at by my count five factors employment history the ability to have interpersonal relationships being involved extensively in criminal activity post crime craftiness and being able to use community resources all of which healed the conclusion to the trial judge that his adoptive functioning was not so limited as to fall into a mentally disabled category they don't quarrel with those findings by the trial court they simply say there is a other materials in the record that cuts the other way and what the trial court did was simply examined one side of the ledger and not the other that there was other evidence of limitations in the ability to function and he didn't say word one about any of that how do we handle that was the judge free first of all as a matter of law at the time again this is before hall before more we just have that can and we have to look at what was clearly established at the time by the supreme court of the united states was the trial court free the through thirty two court free simply to look at the positive side of the ledger and not the negative side maybe he looked at both sides all he talked about was the positive side two points of that your honor i'd say first i think he was free if that was how he wanted to proceed there was nothing clearly established as you noted acton's was the only clear the stablished federal law  state court law though that he was bound by that it comes from the supreme court of alabama what did that teach at the time and those those are cited in his order where he cites to perkins and he cites to one or two other decisions where those were the sorts of factors the five factors you just mentioned those are the sorts of factors that alabama courts had been looking to and looking at adaptive behavior so it was perfectly reasonable and not contrary to clearly established federal law at the time for him to do that and he found that quite reasonably that mr clemens satisfied or that was something that's what this survey something hard about an explication of the facts that simply says here's the plus side even though what i'm looking  that's seven twenty six f the third one one seven two that's back in twenty thirteen that when you have a final finding or final conclusion from the state court and that final conclusion is being assessed on federal h review at the demands that any implicit findings bound up in that ultimate conclusion should be implied and are entitled to the same sort of deference that an explicit finding would be entitled to that's when judge kugler here looked at it looked at what the state court and done he said well he obviously what he did was he implicitly rejected the credibility of these abs to results and there's good reason for not sure i understand the state's answer to judge marcus this question is the state's answer that judge krueger was entitled to completely disregard the deficit's in adaptive behavior  there's any evidence whatsoever there's a port that had the state court mention any of the i think there are six deficit's that were identified stay corded identified as not mentioned explicitly but the as the district court noted the implicit finding was that you just could not credit dr dr golden particularly after what he had done earlier with the stanford been a test but i'd be happy to address a couple of other reasons why it's quite reasonable for this court conclude that there was an implicit rejection of the a b s to results beyond discrediting gold and beyond just discrediting goal then written large so for example he scored a one so a ten is average on this test if he scored a one on goal directed behavior that's as low as you can get now dr goldman was then being cross examined and he admitted that the way he carried out this crime by planning acquiring a gun ahead of time getting his friends drive around to the spot of the camaro and decide you really want to get this camaro that showed goal directed behavior which again would be inconsistent with someone who scored a one on the a b s to moreover he scored a one on work an absolute bottom of the  one but his work history show that he had held several different jobs maybe not for very long but he was employed at domino's on two different occasions he lost the job the first time because he wrecked his car but the same manager hired him back a second time after car this isn't someone who had a one and there's no reason why you have to score to one just because it shows up on a piece of paper as a one it's not it's only as good as the isn't right and the state court's decision none of you know you are and it's this is on direct appeal of this might be a tougher case for us but this is at the and this court has said you imply the findings that need to be there to support the ultimate conclusion you can decide the case you could have summarily written this off and said the night not atkins and that's ok under a as long as there is there are facts in the record that support that is what he sort of won on social skills and again as low as you can get but the records showed he had multiple relationships women including one that was described as serious he fathered multiple children this is not someone who would show up with a one on the a yes it's an issue and it's not that the court disregarded deficits and  absolutely is i think commanded by this court's precedent as well so you're on to the other issues here says put your checkbook away counsel you don't need it you don't need a you don't need a reasons that you were all discussing earlier this is how do we how do we know what happened if there was no evidentiary here that's another great point your honor it was their burden to show this they submitted a threadbare affidavit from mr christie and there they had the burden on them to show that there were these extraordinary circumstances that there was this unavoidable obstacle and the evidence if you don't dispute the facts and mr christie's affidavit the fact i'm going to want to state court clerk to write i don't dispute that i haven't called the co myself to try to figure out what really happened but in the state didn't plan any of it and any evidence contrary to that evidence right there are about i'd like to draw you to what mr christie's affidavit does not say so i don't actually think what whatever happened with the clerk and i'll note too if you look at docket entry twenty eight dash ten page eight and mr christie sort of sets the scene that day it's december twenty third he was quote very busy trying to get out of the office to go on christmas vacation with his family close quote  because the clerk when they're having trouble determining what the fee is he doesn't even say what the exact words are he just said i came with the understanding that no fee was going to be required so i said go ahead and file this without a fee what he never says though is that he was told coun you can follow through third rule third to petition with no fee or with no i have p motion it made it very well may have been so and based on that alone what the clerk's office told them was literally true he did not need to file a fee to get his rule thirty two to petition on file he could file the ip motion indeed that's exactly what he did a little over a month later it just happened to come in three days too late so i don't believe he was misled this certainly isn't enough evidence in there to suggest that he  through on january twenty eighth also shows that there was no unavoidable obstacle but it did not only because they actually were able to file this but for additional reasons i was going back through the reply brief and was a little surprised when i saw that but what if emotion and that is crucial i think that's fatal to their claim but even if we assume contrary to the evidence and again it is their duty to put the evidence in to record even if we assume he was told the world on december twenty third no rule thirty two page eight clemens says that they filed the second rule thirty two petition again the one that included the ip motion to preempt any argument quote that the original petition failed to satisfy any formalistic requirements close quote so and they mailed that go he dropped it in the mail from atlanta to miami it showed up a day late and there was that said to there a big difference between that case and this one and that there was not timely filed petition that that not meet the requirements of the law the don't you don't have an improperly file a petition the case that you just start and send pick sandvik was that's correct but the point is once they knew on january twenty fourth or earlier that they didn't have something proper on file then you're squarely within problem how do we know all of this without an evidentiary hearing this is what he said to the court i think you can take counsel's representation to the court as evidence of what happened in the court clerk's they never got an affidavit from the court they don't even know who they spoke to the courts at the clerk's office your honor and again that's not the clerk's fault that's honestly this is why we have attorneys who have rules and westlaw and have a phone that's another way this is not unavoidable your honor and this is why the first approach say instances they still had twenty nine days to fix this problem they could have called a couple of times and said is this on file yet that would have fixed it moreover if you look at this case this court's recent decision in johnson that's seven thirty eight federal pen dicks one zero zero three i mean that was an instance where one of the factors this court considered was why the petitioner waited so long in the first place to try to file the writ rule thirty two petition so there was no evidence as to why he needed to wait two hundred sixty four days to even try to started thinking what we're going to put our old thirty two and then they waited another three hundred thirty six days before they filed that rule thirty two petition so that's not on the clerk your honor that's on counsel it's another reason why the counsel why the clerk's office did not do anything saying i was told no filing fee was required which again is true if an ip motion is included all we have to base all this on as well as his story conversations he was trying to get out of going for us and told this is properly i presume that was the case in jackson as well the clerks tend to use stamps and i don't see how this is really any different it's misleading for a court to stamp if i were to file a complaint tomorrow it just sort of to say which piece of paper on pacer it's going to show up with a stamp so and that's later going to be rejected so when an attorney files that petition and in alabama court and the clerk tells him that it is received and filed the attorney is not it doesn't have to rely on that representation yard when it says that the clerk and i'll read you three to wait it says the clerk upon receipt of the petition and the filing fee and or an order granting leave to proceed p the clerk shall file but only upon receipt of the fee or that he motions that he'd read the rule he would have known yes it technically has been received but the clerk will not file it until we're devoting where the rule but the clerk says don't worry about it it's far that's not an extraordinary circumstance it's not sufficient that guns in extraordinary circumstance one i don't believe it is sufficient because again we're dealing with attorneys here your honor too that's not what the record shows here the record only shows how the the law from the supreme court of the united states that if an application is erroneous lee accepted by the clerk of court without the requisite filing fee it's not verses and it had an affirmative miss representation on the part on the part of the clerk will not excuse an improper filing there was no affirmative miss representation by the clerk in our two words or not that i'm aware of your honor and i don't believe there's an apartment misrepresentation here as to the first point and second they had a second chance to get this right it was january twenty fourth they knew they hadn't got it right and so you can almost wipe the slate clean before and all they need to do is drive forty five minutes south shelby county courthouse and drop it off that were done instead the drop in the mail just like the lawyer in sandvik dead it showed up a little too late that's sort of ordinary mistake that has never constituted extraordinary circumstances and for that reason we believe that  thank you your honor so much to say so little time first with respect to the appropriate deference that should be afforded to the state court decision there's a fine line between deference and application of judicial review and i would refer you to your sister court decision pruitt versus neil seven eighty eight f thirty to forty eight seven circuit and deference applies quote only to those issues the state court explicitly addressed and quote i had be gun when i was up here initially to talk about the credibility determinations and i had mentioned that the circuit court adopting the state's proposed order found that dr goldman testifies only on behalf of criminal defendants and never on behalf of prosecutors that proposed order omitted the following q and a this is at e m c one thousand and two directed to mr to dr golden why have you never testified for the government in each of the cases in which i page eight and at page eighty three that that ought to be determined by the administration of the advantage ective standardized test normed on the normal population that's what we did the problem here is the court looking at these so called strengths and these are not strengths none of those purported strengths is inconsistent with a diagnosis of mental retardation not one but there is zero analysis as to the subjects the defendant's weaknesses zero and you cannot close your eyes the circuit court cannot close its  to really principle the principle evidentiary submission made by clemens counsel let's also now turn to when mr clemens was six years old the psychologist who evaluated him says among other things he works very slowly gives up easily no alfre recognition little math concept seems to be making little if any progress in both reading and math has great difficulty in the use of written language will just sit and do nothing work is done very slowly takes excessive time and does not complete anything that's at e m c one seven zero six zero nine and one seven twelve there was no milling growing happening when he was all of six years old dr king mild mental retardation and that can be  i'm not finding if this with me ask you the question this way since you're focusing on that score at six and a half is it unreasonable for the state court to credit the score from that date given it reasonable jurist under these circumstances could have done what he did so i understand why i was out on a reasonable particularly in light of the testimony of dr king who was asked that length about this i q at the age of six and whether it was sufficiently stable and predictable and he says there is kind of a transition in my opinion and from understanding the literature we start sometimes administering intelligence has as young as two and a half usually it's pretty well settled by six to eight and he chose to give it credit he king as an expert and there was no dispute that he was otherwise competent by background and training to opine in the field couldn't the court reach that determination that it did that it could credit this court to  that mr clements was classified as edge of complete mentally retarded when he was in first grade he says yes and you agree don't you that educationally mentally retarded is equivalent to mild memory retardation yes those terms are equivalent now to the last and that's at seven fifty five goes on thirty pages explaining that part of the brain doesn't even begin to develop until age six second to your very specific point your honor what is dr king's precise testimony he's asked and he says as you just said it starts to be stable that's his words it's usually pretty well set by six to eight so his testimony is that it will be set within that range he does not exclude the possibility that six it's not going to migrate down and when you take a look at dr gold's explication at e m c seven fifty five that the tertiary part of the brain doesn't even begin to develop it explains a seventy seven at the age of six is not the final word most importantly your honor and this is this is be a critical what does atkins teach us and if you can just bring it to a conclusion sort of go way way over the time thank you what does atkins teach us it's that the determination has to be consistent and informed with the medical community standards the clinician at the time who administered the test who had all of the data some of which i just read that clinician found that was a soft seventy seven that that seventy seven was not inconsistent with a diagnosis of mental retardation so you have in this instance something you don't have in most of the death cases that come before your honor's you've got a real time contemporaneous diagnosis of mental retardation twenty five years before atkins was ever issued the  supports that the circuit court's determination that his i q is as low as seventy is also not inconsistent with the determination that mr clements is mentally retarded thank you very much frank is very much on thank you all for your efforts