[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 12

- 10444

________________________ D.C. Docket No. 3:07

- cv - 00474

- SLB

- JEO ALONZO LYDELL BURGESS,

Petitioner

– Appellant,

versus COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

Respondent

- Appellee.

________________________ Appeal from the United States District Cour t for the Northern District of Alabama

________________________ ( July 30, 2013 )

Before BARKETT, WIL SON and MARTIN, Circuit Judges. BARKETT, Circuit Judge: Alonzo Lydell Burgess, an Alabama prisoner under sentence of death, appeal s the district court’s order denying h is 28 U.S.C . § 2254 petition for a writ of habeas corpus, as well as the district court’ s order denying his Federal Rule of

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Civil Procedure 59 (e) motion to alter or amend that denial. The district court rejected, without conducting an evidentiary hearing, Burgess’s claim that he is mentally retarded 1 and that the Eighth Amendment to the United States Constitution categorically bars his execution pursuant to Atkins v. Virginia , 536 U.S. 304, 321 (2002). The district court also rejected Burgess’s claim that his trial counsel was ineffective in investigating, preparing for, and presenting mitigating circumstances related to his mental health in the penalty phase of his trial. After a thorough review of the record and oral argument, we reverse the district co urt’s ruling as to Burgess’s Atkins claim and remand for an evidentiary hearing. Because we remand to the district court as to Burgess’s mental retardation, we
need not resolve his claim of ineffective assistance of counsel

. Conner v. Hall , 645 F.3d 1277 , 1294 (11th Cir. 2011).

I. PROCEDURAL AND FACTUAL BACKGROUND Burgess was convicted of capital murder on March 1, 1994, for the murders of his girlfriend and two of her children. The jury recommend by a vote of 8 to 4 a

1 In referring to “mental retardation” throughout this opinion, we recognize that increasingly professionals in this field, such as the American Association on Intellectual and Developmental Disabilities (formerly the American Association on Mental Retardation), are replacing the term “mental retardation” with “intelle ctual disability” or “intellectual developmental disability.” In this opinion, however, we use the term “mental retardation” to maintain consistency with the terminology used throughout Burgess’s appeal and relevant precedent

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sentence of life without parole, but t he trial court rejected the jury’s recommendation and sentenced Burgess to death on March 21, 1994. Burgess’s conviction and sentence were affirmed on direct appeal. See Burgess v. State , 723
So. 2d 742 (Ala. Crim. App . 1997), aff’d , 723 So. 2d 770 (Ala. 1998), cert. denied , 526 U.S. 1052 (1999). Burgess subsequently sought post

- conviction relief pursuant to Alabama Rule of Criminal Procedure 32 in March, 2000, arguing , inter alia , that his trial counsel was ineffective for failing to adequa tely investigate and present evidence relating to Burgess’s mental health. During the penalty phase of Burgess’s trial,
the defense introduced some evidence regarding Burgess’s mental health as part of
its theory of mitigation , focusing on his mental diso rder and the history of mental illness in his family. At the time that Burgess filed his Rule 32 petition on March 15, 2000 , the Supreme Court had not yet granted certiorari in Atkins , and so while Burgess’s petition and his subsequent requests for funds to hire mental health experts did express the need for further expert evaluation

— i ncluding the need to “prescribe the appropriate psychological testing ” to determine the existence of disabilities and to document them

— the petition did not , of course, refere nce Atkins

. However, shortly before the hearing on Burgess’s Rule 32 petition was to take place, the Supreme Court granted certiorari in Atkins and Burgess then sought

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to amend the petition to specifically reference the Eighth Amendment claim that he

cou ld not be executed b ecause he was mentally retarded. He also asked the trial court for funds to retain a mental health expert and asked that mental health experts be granted access to him to conduct examinations. The state trial court denied both motions, and no hearing was ever held on the Eighth Amendment claim , as the
Alabama trial court found that claim to be procedural ly defaulted. Burgess v. State , 962 So. 2 d 272, 298 (Ala. Crim. App. 2005 ). Thus, the state trial court never considered the substance of Burgess’s Eighth Amendment Atkins claim.
T he Alabama Court of Criminal Appeals reversed the trial court ruling on procedural default recognizing that “the decision in Atkins

. . . applies retroactively to cases that are on collateral review .” Burgess , 962 So. 2d at 299 (quoting Clemons v. State , 55 So. 3 d 314, 319 (Ala. Crim. App. 2003)). However, the Alabama Court of Criminal Appeals rejected Burgess’s argument that “ now that Atkins has declared unconstitutional the execution of the menta lly retarded, ” he should be permitted to develop “ the record on [his] mental retardation. ” Burgess also argued that the trial record indicated that he was mentally retarded, but that he was “prevented from adequately developing these claims during his Rul e 32 hearing by the [trial c]ourt’s denial of his ex parte applications for funds for expert assistance” and the denial of his motion for experts to obtain access to him in the prison, “which prevented him from utilizing any expert that could have been

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pro cured independently of state funds.” T he Alabama Court of Criminal Appeals denied Burgess’s Eighth Amendment claim on the merits , based solely on the paper record from pre

- Atkins proceedings, and said that he was not mentally retarded. Id. Burgess sought rehearing in the Alabama Court of Criminal Appeals, and the ruling was affirmed. Burgess , 962 So. 2d at 301 . The Supreme Court of Alabama, to whom Burgess also argued he should be allowed to adequately develop the record on his mental retardation claim, denied certiorari. Ex parte Burgess , # 1050290 (Ala. Feb. 23, 2007). Burgess then sought a writ of Habeas Corpus in Federal District Court for the Nort hern District of Alabama. The district

c ourt denied Burgess’s request for a hearing on his Atki ns claim, and denied his petition in full. Because our review of the decisions of the Alabama Court of Criminal Appeal s and the district c ourt require s a careful understanding of the evidence presented and the arguments Burgess advanced at each state of the proceedings, we will discuss each stage in greater detail before addressing the merits of Burgess’s appeal

. A. Evidence Presented During the Penalty Phase The sole defense witness to testify during the penalty phase of Burgess’s trial was Dr. John Goff, a neuropsychologist. The thrust of Dr. Goff’s testimony was that he had diagnosed Burgess as suffering from a “cyclothymic disorder,” less

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severe than bi

- polar disorder but reflecting “that the pati ent has a substantial problem with fluctuating moods, going from episodes of elation and over stimulation, to episodes o f being profoundly depressed.” However, i n the course of his testimony Dr. Goff repeatedly indicated that his own assessment of Burgess had been difficult. He had met with Burgess for five hours, during which time he found it difficult to communicate with Burgess, whom he described as being in a manically excited state. He also repeated ly described the “collateral evidence” of Burgess’s educational and familial history as “sparse.” He cursorily stated that Burgess’s mother suffered from mental illness, that he had a dysfunctional family life, that at least one of his uncles beat him on a regular basis, that he had mentally retarded fami ly members , and that he d id poorly in school

. Burgess’s school
records were also introduced into evidence , demonstrating his poor academic performance ov er the course of hi s life: his need to repeat the first grade, his eventual placement into special edu cation classes where he continued to do extremely poorly, and leaving school after the completion of t he ninth grade with
all failing grade s with the exception of one D. As to Burgess’ s intellectual functioning , Dr. Goff explained that he had conducted no investigation into the matter and administered no intelligence testing

. Rather, Dr. Goff testified that he had read the reports of a Dr. Shealy , an expert for the defense, and a Dr. Maier , an expert for the state . Dr. Shealy ’s report indicated

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that he ad ministered intelligence testing after Burgess’s arrest , from which he concluded that Burgess was “borderline mentally retarded. ” 2 Dr. Goff also read into the record portions of a report written by Dr. Maier, who examined Burgess on behalf of the state. Dr. Maier did not report having administered any IQ testing, but rather “estimated” that Burgess’s intelligence was “below normal pr obably in the borderline range, IQ estimate somewhere between 70 and 80.” Dr. Maier further reported that Burgess “may even be mildly mentally retarded,” and found this to be consistent with Burgess’s “very limited educational an d/or vocational achievemen ts.”
B. The State Collateral Proceedings Prior to his Rule 32 evidentiary hearing, Burgess sought funding for a mental health expert and a neurologist or neurobiologist, as well as permission
from the court for expert s to obtain access to the prison where he was incarcerated so that a mental health expert could “prescribe the appropriate psychological testing to determine the existence of any disabilities and, if they exist, to document them.” 3 He argued that the claims related to his mental health required the presentation of additional expert evidence that was not developed at trial, and that

2 Dr. Goff did not testi fy as to the numeric score Dr. Shealy obtained , which was a Wechsler Adult Intelligence Scale

- Revised (WAIS

- R) IQ score of 66.

3 Burgess needed a court order for mental experts to enter Holman state prison, where he was housed, because the prison would not permit psychologists, psychiatrists, or other mental health professionals to evaluate him without one.

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without access to experts he would be prevented from developing the proof of his claims at the state collateral evidentiary hearing. Th e state opposed Burgess’s motions seeking to further develop the record, arguing that further mental health evaluations were no t necessary because Burgess already had th ree mental health evaluations by the time of his trial. As noted, those experts conduc ted almost no inquiry into whether Burgess was mentally retarded. The trial court denied his requests for funds for experts, and also denied his request that experts be granted access to him for the purpose of conducting further mental health evaluations. Also prior to his Rule 32 evidentiary hearing, in response to the granting of
certiorari in Atkins , Burgess filed an amended petition including a claim that the Eighth Amendment barred his execution because of his mental retardation

. 4 The Rule 32 evid entiary hearing was conducted on February 25, 2002, four months before the Supreme Court issued its opinion in Atkins

. Shortly before the evidentiary hearing on February 25, in response to the trial court’s request that the parties indicate their positions on the issues set for the hearing, Burgess’s counsel submitted a letter to the trial court stating,

I would like to e mphasize that those claims raised in Mr. Burgess’s Rule 32 petition that require the presentation of additional evidence are largely built around the need

4 In his amended petition Burgess requested (1) “a full evidentiary hearing at which [he] may offer proof concerning the allegation of [the amended] petition” and (2) that the court “provide [him] . . . with sufficient funds to present . . . experts, and ot her evidence in support of the allegations in his petition.”

Case: 12-10444 Date Filed: 07/30/2013 Page: 8 of 289 for appropriate expert assistance which was not developed at trial. Since this Court has denied Mr. Burgess’s motions for funds to procure such expert assistance, Mr. Burgess is prevented from developing many of his cla ims at the evidentiary hearing. As noted, the state consistently opposed Burgess’s requests to obtain further expert evaluation, arguin g that the prior evaluations of Drs. Goff, Shealy, and Maier, were sufficient. As the trial court had already denied Burgess’s motions to present new mental health evidence, Burgess was then left with resting his claim on the evidence already in the recor d. Thus, a t that hearing, no evidence was presented
as to B urg ess’s Eighth Amendment claim. The Supreme Court issued its opinion
in Atkins in June 2002, and six months later, in its January 1, 2003 opinion, the trial court rejected Burgess’s Atkins cla im as procedurally defaulted and dismissed the claim without addressing its merits

. See B urgess , 962 So. 2d 272

. 5 In his first court filing following Atkins , Burgess appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals, a gain asserting that his execution was barred by the Eighth Amendment and that his counsel was ineffective in failing to present the evidence sufficient to establish this fact. In addition to arguing as best he could that the existing record evidence nonet heless established that he was mentally retarded, Burgess also argued that the trial court’s

5 The trial court also denied relief as to Burgess’s ineffective assistance of counsel claim. See id . at 286

- 94.

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denial of his request for funds for expert assistance, as well as precluding mental health experts from obtaining access to him in prison, “prevented [him] from
ad equately developing [this claim] during his Rule 32 hearing.” He further maintained that “now that Atkins has declared unconstitutional the execution of the mentally retarded, this Court must permit the development of the record on Mr. Burgess’s mental re tardation.” Although the Alabama Court of Criminal Appeals ruled that the circuit court erred in finding Burgess’s Atkins claim defaulted, it denied his claim on the merits, stating that after reviewing the paper record there was “no indication that Burges s meets the definition of mental retardation adopted by the Alabama Supreme Court
in Ex parte Perkins , 851 So. 2d 453 (Ala. 2002)

. ” Burgess , 962 So. 2d at 299. Perkins held that to be considered mentally retarded for purposes of the Eighth Amendment’s prohibition on execution, a defendant “must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adapt ive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reach age 18).” 851 So. 2d at 546.
The basis of the Court of Criminal Appeals ruling was a “ finding ” that Burgess’s IQ was between 70 and 80, as well as findings that : Burges s had completed the ninth grade; had completed one year at a tra ining school; worked as

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a welder wh ile incarcerated in Mississippi; was cooperative when int erviewed by a probation officer; was a “n orma l child who was considerate, compassionate, and caring; ” had a br other who was mentally retarded; 6 and had been in a relationship with the victim. Burgess , 962 So. 2d at 299.
C. Federal Habeas Proceedings Burgess next filed a petition in federal court seekin g a writ of habeas corpus. Before the district c our t, Burgess proffered an affidavit from Dr. Bry an Hudson, a neuropsychologist, containing new expert testimony related to his Atkins claim. After conducting testing and a thorough review of Burgess’s hist ory, he concluded “to a reasonable degree of psychological certainty that Mr. Alonzo Burgess is a mentally retarded person.” The district c ourt refused to consider this affidavit, or to grant Burgess an evidentiary hearing on his Atkins claim because, “[d ]uring the

6 As noted in the affidavit of Dr. Bryan Hudson, which Burgess asked the district c ourt to consider , the fact that a family member suffers from mental retardation actually support s a finding of mental retardation in Burgess. Dr. Hudson’s affidavit explains:

Mr. Burgess’s family history is consistent with several possible etiologies of mental retardation. His family history is positive for mental illness, cognitive and learning deficits. It has been reported that Mr. Burgess’[s] uncle, Billy is significantly limited, and may even be mentally retarded. Mr. Burgess’[s] uncle, Howard has two sons who are mentally retarded. In addition, Mr. Burgess’[s] son is mentally retarded . . . . To the degree that the early learning environment plays a significant role in the phenotype or genetic expression of factors related to the developmen t o f intelligence, Mr. Burgess was not afforded the exposures that would have been conducive to appropriate development of the likely attenuated biological template of intelli gence with which he was born. Case: 12-10444 Date Filed: 07/30/2013 Page: 11 of 2812

post

- conviction proceedings, Burgess argued that all of the evidence necessary to support his mental

- retarda tion claim was located in the tr i a l court record, and he
offer ed the trial court record as the sole support for his cl aim.” Notwithstanding that Burgess had asked for an d been refused fund s to pay for a mental evaluation and been denied permission for experts to gain access to him in the prison in order

to obtain and present evidence, t he district c ourt found that Burgess had “ failed, without explanation, to develop and present [the affidavit] in the first instance to the state court.” As to the state court’s determination that Burgess was not mentally retarded, the district c ourt found that, based on the trial record, “Burges s’s IQ scores placed him in the category of borderline intellectual functioning or borderline mentally retarded,” and that “the Alabama court’s finding that Burgess was not mentally retarded is not an unreasonable finding based on the evidence.”
II. DISCUSSI ON
A. Whether the Ruling of the Alabama Court of Criminal Appeals is Entitled to Deference under AEDPA The question before us is a narrow one. Specifically, we must decide whether the Alaba ma Court of Appeals erroneously determined that Burgess was

not ment ally retarded based upon only the record before that court

. In reviewing a
district court ’s denial of a habeas petition , we review questions of law and mixed questions of law and fact de novo , and findings of fact for clear error. Conner v.

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Sec’y, Fl. De p’t of Corr. , 713 F.3d 609, 620 (11th Cir. 2013) . We review state court judgments under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id. If the state court has adjudicated the merits of a claim, we may not grant habeas relief unles s t hat decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
S tate court proceeding.” 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(e)(1), “for a writ to issue b ecause the state court made an ‘ unreason able determination of the fact,’ the petitioner must rebut ‘the presumption of correctness [of a state court’s factual findings] by clear and convincing evidence.” Ward v. Hall , 592 F.3d 1 114, 1155

- 56 (2010) (alteration in original). Although AEDPA review is highly deferential, “defere nce does not imply abandonment or abdication of jud icial review.” Miller

- El v. Coc krell , 537 U.S. 322, 340 (2003). After careful review of the record before the state court , we disagree with
the d istrict c ourt and hold that the ruling of Alabama Court o f Criminal Appeals that Burgess is not mentally retarded was an “unreasonable determination of the facts” in this case. 28 U.S.C. § 2254(d)(2). In applying Atkins and the substantive test established in Ex parte Perkins , the critical underpinning of the Alabama Court of Criminal Appeals ’ decision was its conclusion that Burgess’s IQ

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was between 70 and 80. Burgess v. State , 962 So. 2d at 299. However, t he record does not support this finding. The only evidence considered as to Burgess’s IQ

was the test imony of Burgess’s expert Dr. Goff and a Mississippi correctional record. Dr. Goff testified that he had not conducted any intellectual testing on Burgess because he saw no need to duplicate the testing of Dr. Shealy who had found Burgess to be borderline mentally retarded

. 7 Dr. Goff also reported that the state’s expert , Dr. Maier , “ estimated ” Burgess’s IQ to fall in the 70 to 80 range.
Dr. Maier conducted no intellectual tests and t here was no evidence introduced as to how this estimate was obtained. Moreover, t his “estimate ” was further qualified by Dr. Maier’s view that Burgess “may even be mildly mentally retarded, ” meaning that his IQ would be 70 or below. 8 Finally, a lthough a Mississippi state correctional record indicat ed that Burgess had an IQ of 73 , like Dr. Maier’s estimate, there was no explanation of how the score was obtained, of who had obtained and recorded the score , or why

. When the record provides both realistic indications that a defendant might be mentally retarded and no concrete, verifiable IQ score, i t is an unreasonable determination of the facts for a court to rely instead

7 As revealed in Dr. Hudso n’s affidavit presented to t he district c ourt, Dr. Shealy actually found Burgess to have a Wechsler Adult Intelligence Scale Revised (WAIS

- R) IQ score of 66

.

8 The American Psychiatric Association explains that the term “mild” mental retardation is typically used to describe people w ith an IQ level of 50

- 55 to approximately 70. Diagnostic and Statistical Manual of Mental Disorders 42

- 43 ( rev. 4th ed. 2000).

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on an “estimate” and equivocal statements to find as a fact that the defendant has an IQ of between 70 and 80. 9
It is also im

possible to reconcile with the re cord t he Alabama Court of Criminal Appeals ’ finding that Burgess fa iled to demonstrate significant defi c i ts in adaptive behavior. Citing to evidence presented in mitigation at trial which essentially amoun t ed to “good character” evidence, t he state court noted that Burgess labored as a welder while in Mississippi prison , that a prison guard described him as “industrious, orderly and obedient,” that he was “cooperative” with a prob ation officer, that he reported working as a brick mason at some point
in tim e, and that witnesses gave statements that he was a caring child. But this evidence was presented in an entirely different context and without the benefit of any explanation of how it would or would not be consistent with mental retardation, and therefore does not indicate anything substantive abo ut Burgess’s adaptive abilities as that term is used clinically . Nor does it take into account that even the state expert , Dr. Maier , specifically noted both that Burgess “ may even be

9 As the Supreme Court recognized in Atkins , mental retardation is fundamentally a “clinical” diagnosis. 536 U.S. at 308 n.3, 3 17 n.22, 318. Common sense dictates that any standard dependent upon an IQ score

— a concept that does not exist outside the context of a medical examination

—

requires verifiable expert analysis and diagnosis. When given an opportunity at oral argument to explain how a defendant might go about proving his mental retardation without expert assistance, the state conceded: “Alabama does not . . . per se require an expert. However, I imagine it would be very difficult to carry your burden of proof without an e xpert . . . .” Case: 12-10444 Date Filed: 07/30/2013 Page: 15 of 2816

mildly mentally retarded, ” a nd that that finding would be consistent with Burgess’s poor adaptive skills: his poor school performance and his lack of vocational

success. W hile the Alabama Court of Criminal Appeals found that Burgess had completed ninth grade, and that this was evidence of health y adaptive abilities , the
record before them reflected a very different picture. While it is t rue that Burgess attended school through ninth grade, his performance was very poor : he repeated the first grade, usually received failing grad es, and eventually was placed in special education classes where he still received failing grades

. In ninth grade he received all F’s but for a lone D. His standardized test scores reveal an even more striking picture, at times scoring as low as in the lowest 3% or 4% nationally. Thus, the evidence relied on by the state court in making its finding that Burgess did not
demonstrat e deficits in adaptive b ehavior either contradicted that finding or was presented in such a different context that it cannot meaningfully support the finding. See Bobby v. Bies , 556 U.S. 825, 836 (2009) (noting that a finding of
mental retardation for Atkins purposes is a fundam entally different inquiry, guided by a distinct legal standard, than a finding of mental retardation for mitigation purposes)

. Although the Atkins C ourt instructed states to develop standards for identifying mentally retarded def endants, it was also in structive regarding the Case: 12-10444 Date Filed: 07/30/2013 Page: 16 of 2817

nature of the factual inquiry to be undertaken. The Court explained that the reason those suffering from mental retardation should not be executed, even when they “meet the law’s requirements for criminal responsibility” is “[b]eca use of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious
adult cri minal conduct.” 536 U.S. at 306 . The Court highlighted the fac t that there is a difference between using mental retardation as a mitigating factor (a balancing inquiry) and categorically excluding mentally retarded persons from the death penalty altogether (a categorical prohibition) such that pre

- Atkins it could hav e been detrimental to a defendant’s case to present thorough evidence of mental retardation: “reliance on mental retardation as a mitigating factor can be a two

edged sword that may enhance the likelihood that the aggravating factor of future dangerousnes s will be found by the jury.” Id. at 320

- 21. 10 The Court reiterated the distinction between mitigation evidence and Atkins evidence in Bies : “Mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal issues.” 556 U.S. at 836

. Consequently evidence presented pre

- Atkins , may not

10 The Court also noted that a defendant’s mental retardation is likely to substantively impair their abilities to present a compelling mitigation case in the first instance: “The risk that ‘the death penalty will be imposed in spite of factors which may cal l for a less severe penalty,’ Locket v. Ohio , 438 U.S. 586 (1978), is enhanced . . . by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses . . . .” Atkins , 536 U.S. at 320

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in every case be conducive to an Atkins inquiry and may not enable a court to make reasonable factual determinations relating to mental retardation for the purposes of the Eighth Amendment

. I n deed, the Court remanded for a hearing on the question of whether Atkins was in fact mentally retarded for the purposes of the Eighth Amendment, even though a jury had already heard evidence regarding
mental retar dation during the penalty phase

. Burgess is entitled to the same relief

. The State argues that Burgess’s Atkins claim is foreclosed by Carroll v. Sec’y Fl. Dep’t Corr. , 574 F.3d 1354 (2009). We do not agree. Burgess presents a different claim than that made in Carroll and the facts here are si gnificantly different. Carroll sought habeas relief on the grounds that his due process rights had been violated by the state’s failure to conduct an evidentiary hearing on his
Atkins claim in his state post

- conviction proceedings, which it is well establ ished will not support a claim for habeas relief. Id. at 1365. Although we noted in Carroll that Atkins does not “require state courts to conduct evidentiary hearings

on every claim of mental retardation , ” Carroll , 574 F.3d at 1366 (emphasis added),
that does not mean that in every case a pre

- Atkins record will be sufficient to make a reasonable Atkins determination sufficient to survive review under § 2254(d)(2). Prior to Carroll’s request for a new evidentiary hearing, extensive evidence relating
to hi s mental health, including the testimony of numerous experts directly addressing whether Carroll was mentally retarded, had already been presented in

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three prior hearings. 574 F.3d at 1357

- 63. As explained supra , the pre

- Atkins record in this case was ina dequate to reasonably support the state court’s findings. Further, unlike Burgess, “Carroll ha[d] never attempted to proffer any additional evidence to any court

— whether it be the state courts, the district court, or this
Court

— that would undermine the ex haustive evidence already in the record indicating that he is not mentally retarded.” Id . at 1368. Thus, Carroll does not control this case.
T he State also argues that, to the extent the record is insufficient, that insufficiency should be held against B urgess. Under the narrow facts of this case,

we can not agree. At the time of Burgess’s trial, sentencing, and direct appeal, Penry v. Lynaugh , 492 U.S. 302 (1989), was the Supreme Court’s guiding decision regarding evidence of a defendant’s mental retard ation. Penry held that sentencers must be able to consider and give effect to evidence of a defendant’s mental retardation for purposes of mitigation, but it also expressly recognized that “Penry’s mental retardation . . . is . . . a two

- edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Id . at 324. Because evidence of mental retardation was a “two

- edged sword” a defendant could reasonably decide not to highlight his mental retardation. Cf. Bies , 556 U.S. at 836 (noting that “mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal

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issues,” and that “prosecutors, pre

- Atkins , had little incentive vigorously to contest evidence of retardation” because such evidence could have been beneficial to the prosecution’s case ). The intervening decision in Atkins “substantially altered the [parties ’ ] incentive[s] , ” id. at 837 , regardin g evidence of mental retardation such that it would be a gross inequity to hold Burgess to an undeveloped, pre - Atkin s record

. Cf. W illiams v. Taylor , 529 U.S. 420, 437 (2000 ) (“ [C]omity is not served by saying a prisoner has failed to develop the factual basis of a claim where he was unable to develop his claim in state court despite diligent effort.”). Additionally, prior to Ex parte Perkins , there was no substantive legal standard for Burgess to argue he met , as Penry endorsed no specific definition of mental retardation and Alabama had not adopted a legal standard of its own. Furthermore, c ontrary to the State’s assertion that Burgess at all times maintained that the trial court record, standing alone, was sufficient to prove his Atkins claim, Burgess consistently argued that to fully litigate his claim additional expert evidence was required. 11 His arguments based upon the existing record were made only after his request s to expand the record were denied , and h e clea rly

11 For example, in his brief before the Alabama Court of Criminal Appeals, the first of his post

- Atkins filings, he argued that “thorough review by this Court is precluded due to the fatally incomplete and erroneous record on appeal.” Noting that “[t]he services of mental health and neurological experts were sought to assist counsel and the cour t in discerning, documenting, interpreting, and presenting evidence in support of . . . his claim that his mental retardation renders him ineligible for the death penalty,” he further argued that “[w]ithout the assistance of expert testimony during his Rul e 32 hearing, [he] was prevented from adequately proving” his Atkins claim. Case: 12-10444 Date Filed: 07/30/2013 Page: 20 of 2821

maintained before the Alabama Court of Criminal Appeals that “now that Atkins has declared unconstitutional the execution of the mentally retarded, this Court must permit the development of the record on Mr. Burgess’s mental retardation.”
While the st ate was not required to grant Burgess’s requests to obtain and present
additional evidence , see Carroll , 574 F.3d at 13 66 , the insufficienc y of the state
record cannot now be held against Burgess in the context of a new rule of Constitutional law , made retroactive on collateral review , that was announced well after the trial record was complete and after Burgess had been denied the opportunity not only to have additional experts but also for any expert access to him while in prison.
We hold that the state court’s determination that Burgess is not mentally
retarded is an unreasonable determination of fact because it was based upon a
combination of erroneous factual findings directly contradicted by the record and a record that was insufficient to s upport its conclusions

. Accordingly , we vacate the district c ourt’s contrary finding and its denial of Burgess’s petition.
B. Whether Burgess was Entitled to an Evidentiary Hearing Because we have determined that the finding by the Alabama Court of Criminal Appeals that Burgess is not mentally retarded is not entitled to AEDPA deference, the district c ourt erred in deferring to th at conclusion. Accordingly, we

must address whether the district c ourt also erred in refusing to hold an evidentiary

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hearing. Bu rgess argues that an evidentiary hearing was necessary for him to effectively present his Atkins claim. Specifically, he argues that the district c ourt erred in failing to consider the affidavit of Dr. Bryan Hudson and refusing to grant a hearing in which Dr. Hudson could testify. 28 U.S.C. § 2254(e)(2) prohibits a district court from holding an evidentiary hearing on a claim if the petitioner has failed to develop the factual basis for the claim in state court, absent certain narrow circumstances. 12 However, because § 2254(e)(2) only prohibits hearing s where the petitioner has “failed to develop” the factual basis in state court, if the petitioner was diligent in dev eloping the record in the state habeas proceedings, “a federal court may grant an ev identiary hearing without further re gard for the provisions of § 2254(e)(2).” Ward v. Hall , 592 F.3d 1144, 1159 (11th Cir. 2010).

12 28 U.S.C. § 2254(e)(2) states in full: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary he aring on the claim unless the applicant shows that

— (A) the claim relies on

— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that cou ld not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Case: 12-10444 Date Filed: 07/30/2013 Page: 22 of 2823

In a case where the petitioner has diligently attempted to present the factual basis for his claim, w e then review the dist rict court’s denial of an evidentiary hearing in a habeas case for abuse of discretion. Schriro v. Landrigan , 550 U.S. 465, 473 (2007); see also 28 U.S.C. § 2254, Rule 8(a) (“[T]he judge must review the answer [and] any transcripts and records of state

- co urt proceedings . . . to determine whether an evidentiary hearing is warranted”). The district court abuses its discretion where “such a hearing could en able an applicant to prove the petition’s factual allegations, which, if true, would entitle the appl icant to federal habeas relief.” S c hriro , 550 U.S. at 474. Here, Burgess was diligent in presenting his Atkins claim. As the Supreme Court has explain ed: “Diligence [for purposes of § 2254(e)] depends upon whether the prisoner made a reasonable attemp t, in light of the information available at the
time , to investigate and pursue claims in state court,” Williams v. Taylor , 529 U.S. 420, 435 (2000) (emphasis added), and “will require in the usual case that prisoner, at a minimum, seek an evidentiary hear ing in state court,” id. at 437. P rior to
Atkins , Burgess sought to obtain and introduce additional evidence of his mental condition

. As discussed above, prior to Atkins , Burgess could not have been expected to necessarily present evidence sufficient to support an Atkins claim because such evidence constituted a double edged sword and, further, because Alabama had no existing legal standard for mental retardation for Burg ess to argue

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he met. The Atkins case itself was remanded for further findings as to whether Atkins was mentally retarded. 536 U.S. at 321. Even though the state would not have been required to provide Burgess with funds for an expert, it also refused t o allow access to Burgess for testing by any expert. Once Atkins was decided, Burgess renewed his efforts to introduce additional evidence into the record. He argued to the Alabama Court of Criminal Appeals that he could not fully litigate his Atkins c laim without additional expert testimony and requested that he be allowed to present that testimony in the first instance. The fact that at this point Burgess did not have an expert affidavit to proffer should not be held against him. He had been denied his request to have any expert, even one procured independently of state funds, be allowed access to him for the purposes of condu cting a full evaluation. D espite this denial, the record was clear as to what type of evidence he sought to present: expert t estimony by a witness who could conduct neurological and psychological testing and evaluate his mental health and intellectual functioning. He continued to make this argume nt in his request for rehearing and in his application for certiorari to the Alaba ma Supreme Court. The district court’s finding that Burgess had not been diligent, (“Burgess failed, without explanation, to develop and present [expert testimony] in the first instance to the state court”), was clearly erroneous. We note that other circ uits have found that petitioners in similar positions to Burgess (petitioners

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whose state collateral hearings were completed prior to Atkins but who raised colorable claims post

- Atkins ) were entitled to evidentiary hearings in federal court. See, e.g. , Al len v. Buss , 558 F.3d 657, 661

- 65 (7th Cir. 2009); Hall v. Quarterman , 534 F.3d 365, 371 (5th Cir. 2008) (“The issue of mental retardation, defined by
Atkins only after Hall was tried . . . is fact

- intensive and rests on nuanced
determinations under broadl y stated concepts such as ‘limitations in adaptive functioning.’ If Hall can prove the facts that he has consistently alleged on appeal, he will be entitled to habeas relief.”). The remaining question is whether a hearing could have enabled Burgess to
pro ve his petition’s factual allegations, and thereby entitled him to federal habeas
relief. We find that it could have. As Atkins left to the states the task of developing their own standards for determining mental retardation, 536 U.S. at 317, it is Alaba ma’s standard, announced in Ex p arte Perkins , which governs Burgess’s Atkins claim. Thomas v. Allen , 607 F.3d 749, 752

- 53 (11th Cir. 2010)

. As noted, Perkin s h eld that a defendant alleging an Eighth Amendment mental retardation claim must show that he has significantly subaverage intellectual functioning (IQ of 70 or below), significant or substantial deficits in adaptive behavior, and that these problems manife sted themselves during the developmental

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period (before the age of eighteen). 13 851 So.2d 453, 456 (Ala. 2002); s ee also Thomas , 607 F.3d at 752

- 53. Importantly, we have noted, that a range of scores ,

some above and some below 70 , will not necessarily pre clude a finding that a defendant is mentally retarded under Alabama law

. Thomas , 607 F.3d at 757

. In addition to the scant evidence already in the record, Burgess has now proffered additional evidence in the form of an affidavit from Dr. Bryan Hudson, whi ch offers several key additions to the record. First, Dr. Hudson provides an analysis of Burgess’s intellectu al functioning. Although he obtained a full scale score of 76 on the Wechsler Adult Intelligence Scale

- III test , 14 Hudson concluded that after taking into account the “ Standard Error Measurement ” 15 and “Flynn

13 Later, in Smith v. State , the Alabama Supreme Court added an additional element to the definition by stating that a defendant must exhibit significantly subaverage intellectual functioning abilities and significant deficits in adaptive behavior during three periods of his life: be fore the age of eighteen, on the date of the capi tal offense, and currently. __ So. 2d

__ , No. 1060427, 2007 WL 1519869, at *8 (Ala. May 25, 2007).

14 “ The two most widely recognized and utilized intellectual functioning assessment instruments are the Wechs ler Adult Intelligence Scales (‘WAIS’ ) and the Stanford

- Binet Intelligence Scales. ” Thomas , 607 F.3d at 753

.

15 “When considering an individual’ s intellectual functioning test score, the evaluator may consider the Standard Error of Measurement (‘SEM’), whi ch is an index of the variability of test scores produced by persons forming the normative sample. In other words, the SEM is a statistical measure that allows the evaluator to know the amount of error that could be present in any test. The AAMR acknowledg es that the SEM has been estimated to be three to five points for well

- standardized measures of general intellectual functioning. Hence, the IQ standard score is bounded by a range that would be approximately three to four points above and below the obtain ed scores.” Thomas , 607 at 753. Here, Dr. Hudson stated that a SEM of five points would be appropriate, establishing a range of 71 to 81.

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Effect” 16 Burgess’s “true IQ” “would certainly fall in the range of mild mental retardation.” 17 He also explains how Burgess’s limited intellectual functioning
can be traced over time during the necessary life stages by looking at his family history, his school records, and prison records. Second, Dr. Hudson provides expert analysis of Burgess’s behavioral deficits, placing these deficits in context and explaining their significan ce. Dr. Hudson concludes, based on an extensive review of Burgess’s family and personal history, that Burgess “has demonstrated deficits in all three areas of adaptive behavior skills:” conceptual skills, social skills, and practical skills. Dr. Hudson al so explains why Burgess’s adaptive
deficit s might not have been apparent in all aspects of his life and why that fact would not call into q uestion the diagnosis. Finally, Dr. Hudson concludes, “[I]t is my opinion to a reasonable degree of psychological ce rtainty that Mr. Alonzo Burgess is a mentally retarded person.” If the district court were to find Dr. Hudson’s test imony to be credible, combined with prior record evidence , and Dr.

16 “An evaluator may also consider the ‘Flynn effect,’ a method that recognizes the fact that IQ test scores have been increasing over time. The Flynn effect acknowledges that as an intelligence test ages, or moves farther from the date on which it was standardized, or normed, the mean score of the population as a whole on that assessment instrument increases, thereby art ificially inflating the IQ scores of individual test subjects. Therefore, the IQ test scores must be recalibrated to keep all test subjects on a level playing field.” Thomas , 607 F.3d at 753 (citations omitted). Here, Dr. Hudson stated that “when conside ration is given to the Flynn Effect, I believe that his IQ would cert ainly fall in the range of mil d mental retardation ,” which would be between 50

- 55 and approximately 70, see note 18 infra

.

17 As noted previously, the American Psychiatric Association exp lains that the term “mild” mental retardation is typically used to describe people with an IQ level of 50

- 55 to approximately 70. Diagnostic and Statistical Manual of Mental Disorders 42

- 42 (4th ed. 2000).

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Shealy’s report ed IQ score of 66 (which is contained in Dr. Hudson’s aff idavit) , Burgess would be entitled to habeas relief. It was therefore an abuse of discretion to deny Burgess’s request for an evidenti ary hearing, and we reverse the district court, and remand with instructions to grant Burgess’s request for a hearing.
III. CO NCLUSION Having determined that we must vacate the district court’s judgment denying Burgess’s petition and remand for further proceedings on his claim of mental retardation, “it is unnecessary for us to decide anything regarding the [ineffective assistan ce of counsel] claim . . . . Our remand is not limited but is instead a remand of the entire case.” Conner v. Hall , 645 F.3d at 1294. Accordingly, we VACATE the district court’s judgm e n t denying Burgess’s habeas petition and REMAND the case to the district court for further proceedings consistent with this opinion.

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