Filed: March 12, 2008

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-9

(2:05-cv-00340-RBS)

KEVIN GREEN,

Petitioner - Appellant,

versus

GENE M. JOHNSON, Director of the Virginia

Department of Corrections,

Respondent - Appellee.

-----------------------------------------

THE AMERICAN ASSOCIATION ON INTELLECTUAL AND

DEVELOPMENTAL DISABILITIES; THE ARC OF THE

UNITED STATES; THE ARC OF VIRGINIA, 

 Amici Supporting Appellant.

O R D E R

The court amends its opinion filed February 11, 2008, as

follows:

On page 16, second full paragraph, line 5 -- the phrase

“beyond a reasonable doubt” is deleted and replaced with the phrase

“by a preponderance of the evidence.”

For the Court - By Direction

 /s/ Patricia S. Connor 

 Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN GREEN, 

Petitioner-Appellant,

v.

GENE M. JOHNSON, Director of the

Virginia Department of Corrections,

Respondent-Appellee.  No. 07-9

THE AMERICAN ASSOCIATION ON

INTELLECTUAL AND DEVELOPMENTAL

DISABILITIES; THE ARC OF THE UNITED

STATES; THE ARC OF VIRGINIA,

Amici Supporting Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca Beach Smith, District Judge.

(2:05-cv-00340-RBS)

Argued: November 1, 2007

Decided: February 11, 2008

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion, in

which Judge Wilkinson joined. Judge Motz wrote an opinion concurring in the judgment. 
COUNSEL

ARGUED: Michele Jill Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for

Appellant. Matthew P. Dullaghan, Senior Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellee. ON BRIEF: Timothy M. Richardson, HUFF, POOLE &

MAHONEY, P.C., Virginia Beach, Virginia, for Appellant. Robert F.

McDonnell, Attorney General, Jerry P. Slonaker, Senior Assistant

Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. James W. Ellis, Norman C. Bay, Steven

K. Homer, April Land, Carol M. Suzuki, Albuquerque, New Mexico,

for Amici Supporting Appellant. 

OPINION

SHEDD, Circuit Judge: 

Kevin Green, a Virginia capital inmate, appeals the denial of his

petition for a writ of habeas corpus. The district court granted Green

a certificate of appealability ("COA") on two issues: (1) whether he

is mentally retarded so that his sentence is unconstitutional under the

Eighth Amendment as interpreted in Atkins v. Virginia, 536 U.S. 304

(2002), and (2) whether his trial counsel rendered ineffective assistance by failing to appeal his non-capital convictions after the first of

his two trials. In denying relief, the district court concluded that

Green failed to prove he is mentally retarded under Virginia law and

that his ineffective assistance of counsel claim is untimely under 28

U.S.C. § 2244(d). For the following reasons, we affirm.

I

We begin with a summary of the facts pertaining to the underlying

crimes, as articulated by the Supreme Court of Virginia: 

"The victim, Patricia L. Vaughan, and her husband, Lawrence T.

Vaughan, owned and operated a small grocery store in Brunswick

County. As part of their grocery store operation, the Vaughans regu2 GREEN v. JOHNSON
larly cashed checks for employees of several nearby businesses,

including a lumber company that paid its employees on Friday of

each week. Consequently, Mr. Vaughan routinely went to a bank on

Fridays to obtain sufficient currency to cash payroll checks for the

lumber company employees. And, he did so on Friday, August 21,

1998. Upon returning from the bank on that Friday, he placed $10,000

in a bank bag that he kept in a cabinet underneath the cash register,

another $10,000 elsewhere in the store, and the remaining cash in a

safe. 

"On the day in question, as Mr. Vaughan was starting to eat lunch

and to file an invoice, two men entered the store. Mr. Vaughan saw

them and recognized the taller of the two men as Kevin Green, the

defendant. Green had worked for the lumber company for approximately eight to ten weeks during the preceding spring, and had frequented the Vaughans’ grocery store at lunchtime, after work, and on

Fridays to cash his payroll checks. 

"When the two men entered the store, Mrs. Vaughan had her back

to the door and was standing five or six feet from Mr. Vaughan.

Thinking that the shorter man was going over to the ‘drink box,’ Mr.

Vaughan turned around to finish his filing. As he did so, he heard his

wife scream, ‘Oh, God.’ At trial, Mr. Vaughan described what he then

heard:

It was four bangs. Bang, bang and I was hit. I didn’t know

where I was hit, but I was hurt. I turned a complete turn and

fell on the floor, sit [sic] down on my right foot and broke

my right ankle. And about [the] time I went down, I looked

up and I realized it was a gun being fired. I could see him,

he shot toward my wife with the fourth shot. I saw his hand

with a pistol in it. He was holding [it] like he was target

practicing. 

"Mr. Vaughan testified that Green, after firing the four shots,

walked back to the door and stood there ‘as a lookout’ while the other

man came around behind the counter and tried to open the cash register. When the drawer on the cash register jammed, Green directed the

shorter man to look under the counter. Upon doing so, he found the

bank bag containing approximately $9,000 in cash and Mr.

GREEN v. JOHNSON 3
Vaughan’s pistol, which he then used to shoot through the key hole

in the cash register drawer. Taking the bank bag and the pistol, the

shorter man exited the store, but Green walked a few steps over to

where Mrs. Vaughan was lying on the floor and pointed the gun at

her again. According to Mr. Vaughan, the gun misfired, and Green

ejected a live cartridge onto the floor. Green then fired two more

shots in the direction of Mrs. Vaughan. Lowering his head, Mr.

Vaughan heard the gun ‘snap’ one more time, but he did not know

whether Green was pointing the gun at him or his wife. Only then,

when the gun was empty, did Green leave the store. 

"After Green left, Mr. Vaughan dragged himself approximately

five feet across the floor of the store to a telephone and dialed the

‘911’ emergency number, but he was too weak to reach his wife who

was still lying on the floor. One of the first police officers to arrive

at the scene testified that he observed ‘puddles of blood just pouring

out of [Mrs. Vaughan’s] nose, her mouth, [and] her head.’ A local

volunteer medical examiner determined that Mrs. Vaughan had died

at the scene of the shooting. 

"A subsequent autopsy of Mrs. Vaughan’s body revealed that she

sustained four gunshot wounds. One bullet penetrated the left side of

her head, passed through the temporal and frontal lobes of her brain,

and lodged in the inner frontal sinus of her face. Another bullet

entered the right side of her chest and went into the upper lobe of her

right lung. A third bullet penetrated the left side of her back. This was

the only non-lethal wound. The fourth bullet entered the right side of

Mrs. Vaughan’s back and penetrated two lobes of her right lung.

According to the forensic pathologist who performed the autopsy, Dr.

Jose Abrenio, this wound caused hemorrhaging in her thoracic cavity,

which led to difficulty in breathing and had the effect of suffocating

her. Dr. Abrenio also opined that Mrs. Vaughan survived ‘seconds to

minutes’ after she was first shot. 

"Four days after the murder, a warrant was issued to search Green,

his residence, and automobile. During the search of his home, six bullets were retrieved from the trunk of a tree in his yard. The bullets

were found behind a ‘makeshift target’ hanging on the tree. Forensic

testing on those six bullets and the four bullets recovered from Mrs.

Vaughan’s body during the autopsy revealed that all ten ‘caliber 25

4 GREEN v. JOHNSON
Auto full metal jacketed bullets’ had been fired from one weapon.

About 35 to 50 feet from the tree, 16 25-caliber empty cartridge casings were also recovered. 

"After Green was arrested, he executed a form waiving his Miranda

rights and agreed to be questioned by law enforcement officers. During that interrogation, Green admitted that he and his cousin, David

Green, robbed the Vaughans’ grocery store and that he selected their

store because he knew the Vaughans kept a lot of money there. Green

and his cousin had originally planned to wear masks to conceal their

faces. However, they discarded the masks after they had to wait

behind the store in their automobile for about an hour because other

people were in the grocery store. Green also admitted that he shot

both of the Vaughans, hitting Mrs. Vaughan four times." Green v.

Commonwealth, 580 S.E.2d 834, 837-39 (Va. 2003) ("Green v. Commonwealth II"). 

II

In June 2000, Green was convicted of the capital murder of Mrs.

Vaughan during the commission of robbery; and of the non-capital

crimes of robbery, malicious wounding of Mr. Vaughan, and three

counts of illegal use of a firearm. The jury fixed Green’s punishment

at death for the capital murder conviction; life imprisonment for the

robbery conviction; 20 years imprisonment for the malicious wounding conviction; and three years imprisonment for each of the firearms

convictions. On October 6, 2000, the trial judge sentenced Green in

accord with the jury’s verdict. Green’s trial counsel appealed his capital murder conviction and death sentence but not his non-capital convictions. 

In June 2001, the Supreme Court of Virginia reversed Green’s capital murder conviction and death sentence, holding that the trial judge

abused his discretion by refusing to remove two potential jurors from

the venire based on their lack of impartiality. See Green v. Commonwealth, 546 S.E.2d 446 (Va. 2001) ("Green v. Commonwealth I").

The supreme court concluded that one juror had formed a fixed opinion about the punishment Green should receive if convicted of the

capital murder, and the other juror had formed a fixed opinion about

the case based on pretrial publicity. Although this decision necessiGREEN v. JOHNSON 5
tated a new trial on the capital murder charge, it did not affect Green’s

unappealed non-capital convictions. See id. at 447 ("Green did not

appeal his non-capital convictions. Therefore, those convictions are

not before this Court and are not affected by this opinion."). 

Green’s retrial occurred in the latter part of 2001, and a jury again

convicted him of capital murder during the commission of robbery

and fixed his punishment at death. Green’s criminal record, including

the non-capital convictions and sentences he received at the first trial,

was presented to the jury during the sentencing phase of the retrial.

In January 2002, the trial judge sentenced Green in accord with the

jury’s recommendation. In June 2003, the Supreme Court of Virginia

affirmed Green’s capital murder conviction and death sentence. See

Green v. Commonwealth II. Pertinent to this appeal, the supreme

court summarized evidence presented during the penalty phase of

Green’s second trial:

The jury also heard evidence from Dr. Scott W. Sautter, an

expert in neuropsychology who had tested Green’s I.Q. on

two separate occasions using two different tests, the

"Wechsler abbreviated intelligence scale" and the "Wechsler

[A]dult [I]ntelligence [S]cale [R]evised." Dr. Sautter testified that, while the formats of the two tests are similar, the

"two tests are not exactly the same." Dr. Sautter reported

that Green had a full-scale I.Q. score of 74 on the Wechsler

Adult Intelligence Scale and a score of 55 on the "abbreviated" test. . . . 

Two clinical psychologists testified for the Commonwealth

in rebuttal to Dr. Sautter’s testimony. Dr. Lynda J. Hyatt

reported that Green had an I.Q. score of 84 on the "Ammons

& Ammons quick test," which placed Green in the category

of "low average" mental functioning. Dr. Thomas A. Pasquale evaluated Green’s personality as well as his intellectual functioning. Dr. Pasquale diagnosed depression, alcohol

dependency, drug abuse, anti-social personality disorder,

and malingering. According to Dr. Pasquale, Green had a

full-scale I.Q. score of 74 on the Weschler Adult Intelligence Scale, placing him in the "borderline range" of intellectual functioning.

6 GREEN v. JOHNSON
580 S.E.2d at 839-40 (alterations in original). On February 23, 2004,

the Supreme Court of the United States denied Green’s petition for a

writ of certiorari. See Green v. Virginia, 540 U.S. 1194 (2004). 

Green was represented by the same counsel for both of his trials

and direct appeals. However, on June 26, 2003, Green was appointed

new counsel to represent him on his state habeas petition, which was

filed April 22, 2004. In that petition, Green asserted, inter alia, the

two claims now before us: (1) he is mentally retarded and, therefore,

his sentence violates the Eighth Amendment as interpreted in Atkins,

and (2) his trial counsel rendered ineffective assistance by failing to

appeal his non-capital convictions after his first trial. 

On February 9, 2005, the Supreme Court of Virginia dismissed

Green’s state habeas petition. See Green v. Warden of Sussex I State

Prison, No. 040932 (Va. Feb. 9, 2005) ("Green v. Warden"). The

supreme court held that Green’s ineffective assistance claim was

untimely under state law:

Petitioner is challenging his counsel’s failure to appeal his

non-capital convictions that became final on October 30,

2000. The provisions of Code § 8.01-654 state that a petition

for writ of habeas corpus shall be filed within two years

from the date of final judgment in the trial court or within

one year from either final disposition of the direct appeal in

state court or the time for filing such appeal has expired,

whichever is later. Any challenges petitioner wished to

make regarding his appellate counsel’s failure to appeal his

non-capital convictions needed to be filed no later than

October 30, 2002, or two years from the date of final judgment in the trial court on those charges.

Green v. Warden, at 2-3. The supreme court also held that Green

failed to prove that his Atkins claim was not "frivolous" for purposes

of Virginia Code § 8.01-654.2, which provides that the supreme court

shall consider a claim of mental retardation filed under the statute and

"if it determines that the claim is not frivolous, it shall remand the

claim to the circuit court for a determination of mental retardation;

otherwise, [it] shall dismiss the petition." The supreme court

explained:

GREEN v. JOHNSON 7
The legislature has defined mental retardation as: 

[A] disability, originating before the age of 18 years, characterized concurrently by (I) significantly subaverage intellectual functioning as demonstrated by performance on a

standardized measure of intellectual functioning administered in conformity with accepted professional practice, that

is at least two standard deviations below the mean and (ii)

significant limitations in adaptive behavior as expressed in

conceptual, social and practical adaptive skills. 

Code § 19.2-264.3:1.1(A). 

This Court has previously held that the ceiling for a classification of mental retardation is an I.Q. score of 70. The

record shows that Green was administered four standardized

tests for measuring intellectual functioning. Green scored an

84 on the Ammons & Ammons quick test, a 74 on the

Wechsler Adult Intelligence Scale, Third Edition, a 74 on

the Wechsler Adult Intelligence Scale, Revised, and below

a 70 on the Abbreviated Wechsler Adult Intelligence Scale.

Based on these test scores, Green has failed to meet his burden of proving that his claim of mental retardation is not

frivolous.

Green v. Warden, at 9-10 (internal citation omitted). Green thereafter

filed a petition for rehearing, which the supreme court denied without

comment on April 29, 2005. The Supreme Court of the United States

denied Green’s petition for a writ of certiorari (relating to his state

habeas case) on December 5, 2005. See Green v. True, 546 U.S. 1066

(2005). 

Green filed his federal habeas petition on December 1, 2005, naming Virginia Department of Corrections Director Gene M. Johnson as

the respondent. Johnson moved to dismiss the petition, and the case

was referred to a magistrate judge for the issuance of a report and recommendation. The magistrate judge held an evidentiary hearing and

issued a thorough report, in which he recommended that the petition

be denied and the motion to dismiss be granted. See Green v. Johnson, No. 2:05cv340, 2006 WL 3746138 (E.D. Va. Dec. 15, 2006)

8 GREEN v. JOHNSON
("Green v. Johnson I"). Although the magistrate judge made several

important subsidiary rulings in Green’s favor, he ultimately concluded, inter alia, that (1) Green failed to prove that he is mentally

retarded under Virginia Code § 19.2-264.3:1.1(A) and (2) Green’s

ineffective assistance of counsel claim is untimely under 28 U.S.C.

§ 2244(d). Both parties filed objections to the report. With one minor,

irrelevant exception, the district court adopted the recommendation

and dismissed the petition. See Green v. Johnson, No. 2:05cv340,

2007 WL 951686 (E.D. Va. Mar. 26, 2007) ("Green v. Johnson II").

The district court granted Green a COA on his Atkins and ineffective assistance of counsel claims, and although Green agrees with

much of the district court’s reasoning, he challenges the ultimate dismissal of his claims. Conversely, Johnson agrees with the ultimate

dismissal of Green’s claims, but he disagrees with some of the district

court’s reasoning, and he presents several alternate bases to support

their dismissal. 

III

We begin with Green’s Atkins claim. We affirm the dismissal of

this claim on two separate grounds. 

A.

The Supreme Court held in Atkins that the Eighth Amendment prohibits the execution of the mentally retarded. The Court concluded

that a national legislative consensus against the execution of mentally

retarded offenders had developed, and it identified two reasons consistent with that consensus to justify a categorical exclusion of the

mentally retarded from execution: (1) the justifications for recognizing the death penalty (i.e., retribution and deterrence) do not apply to

mentally retarded offenders; and (2) the diminished capacity of mentally retarded offenders places them at greater risk of wrongful execution. 536 U.S. at 316-21. The Court noted that "[t]o the extent there

is serious disagreement about the execution of mentally retarded

offenders, it is in determining which offenders are in fact retarded."

Id. at 317. Continuing, the Court observed that "[n]ot all people who

claim to be mentally retarded will be so impaired as to fall within the

range of mentally retarded offenders about whom there is a national

GREEN v. JOHNSON 9
consensus;" however, instead of defining that range, the Court

expressly left to the states the "‘task of developing appropriate ways

to enforce the constitutional restriction upon [their] execution of sentences.’" Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).

The Virginia General Assembly responded to Atkins by enacting a

statutory scheme to determine capital defendants’ claims of mental

retardation. Pertinent to this case, the General Assembly mandated

that a capital defendant has the burden of proving mental retardation

by a preponderance of the evidence, Va. Code § 19.2-264.3:1.1(C),

and it defined the term "mentally retarded" as:

[A] disability, originating before the age of 18 years, characterized concurrently by (I) significantly subaverage intellectual functioning as demonstrated by performance on a

standardized measure of intellectual functioning administered in conformity with accepted professional practice, that

is at least two standard deviations below the mean and (ii)

significant limitations in adaptive behavior as expressed in

conceptual, social and practical adaptive skills. 

Va. Code § 19.2-264.3:1.1(A). Moreover, for persons such as Green

who were sentenced to death before April 29, 2003, and who had not

yet completed both their direct appeal and state habeas proceeding,

the General Assembly directed the state supreme court to consider a

claim of mental retardation and "if it determines that the claim is not

frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise, [it] shall dismiss the petition."

Va. Code § 8.01-654.2. 

Interpreting these state statutory provisions, the Supreme Court of

Virginia has held that "[a] person is not ‘mentally retarded,’ within

the meaning of Code § 19.2-264.3:1.1, unless that person meets the

comprehensive definition of this statutory term," Lewis v. Warden of

the Fluvanna Correctional Center, 645 S.E.2d 492, 507 (Va. 2007),

and that an intelligence quotient ("IQ") score of 70 is the maximum

score for a classification of mental retardation under the first prong

of the statutory definition, Johnson v. Commonwealth, 591 S.E.2d 47,

59 (Va. 2004), vacated on other grounds, 544 U.S. 901 (2005); see

also Winston v. Warden of Sussex I State Prison, ___ S.E.2d ___,

10 GREEN v. JOHNSON
2007 WL 678266, at *15 (Va. Mar. 7, 2007) ("This Court has previously held that the maximum score for a classification of mental retardation is an I.Q. score of 70."). Furthermore, for purposes of § 8.01-

654.2, "a criminal defendant who seeks to demonstrate . . . that his

claim of mental retardation is not frivolous must be able to point to

credible evidence in the record supporting the requirements set forth

in the statutory test." Johnson v. Commonwealth, 591 S.E.2d at 59. 

B.

The district court dismissed Green’s Atkins claim on the merits,

concluding on a de novo review that although he met his burden of

proof on the first prong of Virginia’s statutory definition for mental

retardation, he failed to meet his burden of proof on the second prong.

Johnson contends that the district court should have deferred to the

supreme court’s decision under 28 U.S.C. §§ 2254(d) and (e) and dismissed this claim without conducting a de novo review. We agree. 

"The federal habeas statute dictates a highly deferential standard

for evaluating state-court rulings, which demands that state-court

decisions be given the benefit of the doubt. The required deference

encompasses both the state court’s legal conclusions and its factual

findings." Lenz v. Washington, 444 F.3d 295, 299 (4th Cir. 2006),

cert. denied, 127 S. Ct. 10 (2006) (internal quotation marks and citation omitted). "The question . . . is not whether a federal court

believes the state court’s determination was incorrect but whether that

determination was unreasonable - a substantially higher threshold."

Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007). Thus, where the

state court has adjudicated a claim on the merits, federal habeas relief

is appropriate only if the state court’s judgment resulted in a decision

that is "contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States" or "based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).1

1This is the first case we have considered involving an Atkins claim

that the Supreme Court of Virginia adjudicated. We have been presented

with Atkins claims made by Virginia inmates in other cases, but those

cases involved de novo federal consideration of the merits. See Hedrick

v. True, 443 F.3d 342 (4th Cir.), cert. denied, 127 S. Ct. 10 (2006); Walton v. Johnson, 440 F.3d 160, 177-78 (4th Cir.) (en banc), cert. denied,

126 S. Ct. 2377 (2006); Walker v. True, 399 F.3d 315 (4th Cir. 2005).

GREEN v. JOHNSON 11
A decision is contrary to the Supreme Court’s clearly established

precedents if the state court applied a rule that contradicts the governing law set forth in the Court’s cases, or if it confronted a set of facts

that is materially indistinguishable from a decision of the Court but

reached a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).

A decision constitutes an unreasonable application of the Court’s

clearly established precedents if the state court applied the Court’s

precedents to the facts in an objectively unreasonable manner. Id. In

reviewing a habeas petition, federal courts must presume the correctness of a state court’s factual determinations unless the habeas petitioner rebuts the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). 

The Supreme Court of Virginia adjudicated Green’s Atkins claim

during his state habeas proceeding. The record presented to the

supreme court included, inter alia, expert testimony from Green’s two

criminal trials concerning his I.Q. Dr. Pasquale, who was an expert

witness for the Commonwealth, testified that he administered the

Wechsler Adult Intelligence Scale, 3rd Edition ("WAIS-III") test to

Green, who scored 74. Dr. Hyatt, who was also a Commonwealth

expert witness, testified that she administered the Ammons and

Ammons Quick Test to Green, who scored 84. Both of these witnesses testified that Green is not mentally retarded and that although

it is possible for a person to fake a lower I.Q. score, it is not possible

to fake a higher score. Dr. Sautter, who was an expert witness for

Green, testified that he administered two I.Q. tests to Green: Green

scored 55 on the Wechsler Abbreviated Scale of Intelligence

("WASI") and 74 on the Wechsler Adult Intelligence Scale - Revised

("WAIS-R"). Additionally, Dr. Sautter testified that Green is mentally

retarded. Based on this evidence, the supreme court concluded for

purposes of § 8.01-654.2 that Green had "failed to meet his burden of

proving that his claim of mental retardation is not frivolous." Green

v. Warden, at 10. 

The magistrate judge concluded that the "Virginia Supreme Court

correctly identified Atkins as the controlling opinion by the United

States Supreme Court, but unreasonably applied Atkins to Green’s

case." Green v. Johnson I, 2006 WL 3746138, at *39. After noting

that Green had scored below 70 on the WASI and that Dr. Sautter tes12 GREEN v. JOHNSON
tified that Green is mentally retarded, the magistrate judge - referring

to Johnson v. Commonwealth - explained:

Because Green pointed to credible evidence supporting the

requirements set forth in Virginia Code § 19.2-264:3.1.1(A),

including the result of at least one IQ test that is two standard deviations below the mean, expert testimony that he is

mentally retarded, and evidence of significant limitations in

adaptive behavior, it was objectively unreasonable for the

Virginia Supreme Court to find Green’s claim of mental

retardation to be frivolous under Atkins, and this Court will

address the merits of Green’s claim. 

2006 WL 3746138, at *39. The district court agreed, stating that the

magistrate judge "correctly concluded that the Supreme Court of Virginia unreasonably held that petitioner’s claim of mental retardation

was frivolous, which allowed the Magistrate Judge to conduct a de

novo review of this claim." Green v. Johnson II, 2007 WL 951686,

at *11.2

Applying the standard mandated by § 2254(d), we conclude that

the supreme court’s decision is entitled to deference. The supreme

court correctly applied Atkins as the controlling precedent, and Green

did not present a set of facts that is materially indistinguishable from

a United States Supreme Court decision. Thus, the supreme court’s

2

In seeking rehearing on his state habeas petition, Green argued for the

first time that his I.Q. scores should be adjusted for various theories of

I.Q. measurement error, including the standard error of measurement

("SEM") and the "Flynn effect." See generally Walton, 440 F.3d at 177-

78 (discussing these theories). Without comment, the state supreme court

denied the rehearing petition. Although the district court held that the

magistrate judge properly considered the Flynn effect and the SEM in its

de novo consideration of Green’s I.Q. scores, neither Atkins nor Virginia

law appears to require expressly that these theories be accounted for in

determining mental retardation status. Cf. Winston, 2007 WL 678266, at

*15 (rejecting ineffective assistance of counsel claim premised, in part,

on counsel’s failure to present Flynn effect evidence). To the extent that

we held in Walker that the district court was required to consider the

Flynn effect on remand, that case involved de novo consideration of the

inmate’s Atkins claim. 

GREEN v. JOHNSON 13
decision is not "contrary to" clearly established federal law. Moreover, the pertinent underlying facts identified by the supreme court

(i.e., Green’s I.Q. scores) are not disputed. We are thus left with the

question of whether the supreme court applied Atkins in an objectively unreasonable manner. 

Stated succinctly: the supreme court found that three of Green’s

four I.Q. test scores exceed the maximum score of 70, and evidence

in the state habeas record established that although a person can fake

a lower I.Q. score, a higher I.Q. score cannot be faked.3 Based on this

record, we do not believe that the supreme court applied Atkins in an

objectively unreasonable manner by discrediting, as it implicitly did,

Green’s WASI score of 55 (along with Dr. Sautter’s opinion) and then

concluding under state law that Green failed to present sufficient

credible evidence supporting the requirement in the first prong of the

Commonwealth’s statutory test for mental retardation. See Woods v.

Quarterman, 493 F.3d 580, 584-87 (5th Cir. 2007) (holding that

where the petitioner had four I.Q. scores above 70 and one score

below 70, the state court was not unreasonable in concluding that the

petitioner failed to prove that he suffered from subaverage intellectual

functioning). For this reason, Green is not entitled to relief under

§ 2254, and we affirm the dismissal of this claim.4

3We recognize that the parties dispute the relevance and/or legitimacy

of some of these tests; however, the supreme court appears to have considered all of them in its analysis. We also note that although it was not

part of the state habeas record, Green scored 71 on the Wechsler Intelligence Scale for Children - Revised ("WISC-R") when he was 13 years

old. 

4With respect for our concurring colleague’s view, we believe that the

district judge correctly stated that the magistrate judge conducted a de

novo review of Green’s Atkins claim. As set forth above, the magistrate

judge first found the state supreme court’s conclusion that Green’s Atkins

claim was frivolous under state law to be unreasonable within the meaning of § 2254. The magistrate judge based this decision on the pleadings

rather than on the evidence presented during the evidentiary hearing, and

he then proceeded to consider this evidence in the context of a de novo

review. See Green v. Johnson I, 2006 WL 3746138, at **37-39 (holding

that the supreme court’s frivolousness determination is unreasonable)

and at **39-49 (discussing the evidence produced during the evidentiary

14 GREEN v. JOHNSON
C.

As noted, the district court did not defer to the supreme court’s

decision. Instead, the district court conducted a de novo review of

Green’s Atkins claim and concluded, inter alia, that he failed to meet

his burden of proof on the second prong of Virginia’s statutory definition of mental retardation — i.e., that he has "significant limitations

in adaptive behavior as expressed in conceptual, social and practical

adaptive skills." Because Green must prove both prongs of Virginia’s

statutory definition for mental retardation in order to establish that he

is mentally retarded, Lewis, 645 S.E.2d at 507, the district court dismissed this claim. We affirm the dismissal of Green’s Atkins claim on

this basis as well.5

In considering the district court’s de novo determination on the second prong, we review its legal conclusions de novo, Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003), and its factual findings under

the highly deferential clearly erroneous standard set forth in Rule

52(a) of the Federal Rules of Civil Procedure, Walton, 440 F.3d at

173. Where, as here, the magistrate judge conducted the evidentiary

hearing, we review the district court’s findings, rather than the magistrate judge’s recommendations. Monroe, 323 F.3d at 299. In this case,

these are essentially one and the same because the district court

adopted the magistrate judge’s pertinent findings and recommendation. See Green v. Johnson II, 2007 WL 951686, at * 11 ("After

reviewing the entire record . . ., examining all of the objections filed

by respondent and petitioner, and making de novo findings with

respect to the portions objected to, this court finds no error in law or

hearing and holding that Green met his burden of proving the first prong

of Virginia’s statutory test for mental retardation). To the extent that it

is relevant, we note that Green shares our assessment on this point. See

Reply Brief of Petitioner-Appellant, at 6 ("Having found the frivolousness decision unreasonable, the district court correctly accorded Green’s

claim the de novo review it would have merited prior to AEDPA."). 

5The district court concluded that Green met his burden of proof on the

first prong of the statutory definition. Because we agree with the district

court’s determination on the second prong, which is dispositive, we need

not address the district court’s de novo ruling on the first prong. 

GREEN v. JOHNSON 15
fact in the Magistrate Judge’s thorough analysis of [the mental retardation claim]."). 

The magistrate judge correctly recognized that "[a]ssessment of

adaptive behavior shall be based on multiple sources of information,

including clinical interview, psychological testing and educational,

correctional and vocational records," Va. Code § 19.2-

264.3:1.1(B)(2), and he utilized the American Association of Mental

Retardation’s ("AAMR") standards for measuring adaptive skills. The

magistrate judge set forth in detail the expert testimony presented by

both sides at the evidentiary hearing and explained his findings and

conclusions with respect to Green’s adaptive skills. Green v. Johnson

I, 2006 WL 3746138, at **49-59. We briefly summarize these findings and conclusions. 

The magistrate judge noted that according to the AAMR, conceptual adaptive skills involve skills pertaining to language, reading and

writing, money concepts, and self-direction, and he concluded that

although the evidence suggested that Green’s conceptual adaptive

skills are below average, Green failed to prove by a preponderance of the 

evidence that he has significant limitations. The magistrate judge based

this determination on evidence that Green had: (1) conversed freely

while being interviewed and shared his opinion about his mental

health diagnosis and his understanding of the status of his case; (2)

requested sophisticated books from the prison library and completed

a form on which he effectively explained a mistake with the prison

commissary; (3) displayed an understanding of money concepts by

handling his own money, having a savings account, paying his own

rent, engaging in transactions with money orders, and profiting from

dealing drugs; and (4) engaged in self-direction by doing such things

as obtaining a driver’s license, concealing much of his criminal activity from his family, and requesting a copy of his release of medical

records (which is indicative of independent participation in the direction of his case). Id. at 58. 

The magistrate judge then noted that according to the AAMR,

social adaptive skills are measured by interpersonal skills and responsibility, self-esteem, gullibility and naivete, and ability to follow rules

and obey laws. The magistrate judge concluded that Green was

unable to show, by a preponderance of the evidence, significant limi16 GREEN v. JOHNSON
tations in his social adaptive skills because Green: (1) although

socially awkward, was nonetheless regarded as a "good guy" who

liked to joke around; (2) had girlfriends; (3) was regularly employed

and was often regarded as a good employee who showed a level of

responsibility beyond that expected of someone with significant limitations; (4) displayed personal responsibility for his financial needs by

profitably distributing drugs; and (5) was manipulative. The magistrate judge also considered Green’s propensity for ignoring rules and

the law, but found "the extent to which his behavior is attributable to

his intellectual deficits [to be] unclear." Id. at 59. 

Finally, the magistrate judge noted that according to the AAMR,

practical adaptive skills involve activities relevant to daily living,

occupational skills, and maintenance of a safe environment; and he

concluded that Green failed to meet his burden of proving significant

limitations in these skills by a preponderance of the evidence. The

magistrate judge explained:

Green’s evidence portrayed him as having mobility issues

and difficulty dressing himself appropriately, cleaning his

house, and cooking for himself. Much of this evidence was

contested, however. For instance, it is uncontroverted that

Green was able to acquire a driver’s license and navigate

public transportation systems. Also, Green’s mother and sister, who both stated in their declarations that Green had difficulty caring for himself, previously testified at trial that he

could care for himself. Finally, Green’s employment experiences in restaurants show that he was able to cook and use

the telephone. 

With respect to his occupational skills, Green showed that

his various jobs always required low-level skills and low

education and that he was usually hired with help from family and friends. He was also shown to have difficulty retaining jobs. Three former employers, however, described

Green as an average to above average employee. In fact, he

received a merit-based promotion at one job, an accomplishment that does not suggest significant limitations in occupational skills.

GREEN v. JOHNSON 17
Id.6

 (internal citations omitted).

In light of these findings and conclusions, the magistrate judge recommended denial of Green’s Atkins claim. The district court accepted

this recommendation, explaining:

Despite presenting evidence that he displays some limitations in adaptive behavior, including having below average

mental intelligence, struggling to perform some basic activities, and exhibiting anti-social behavior, petitioner has failed

to demonstrate, within the three subsets of adaptive behavior, that he suffers significant limitations. The Magistrate

Judge thoroughly considered the limitations of petitioner’s

adaptive behavior, as presented by expert testimony and evidence, yet persuasively and correctly concluded that petitioner simply failed to establish significant limitations,

based upon evidence, in part, of petitioner’s employment

history, use of language, understanding of money concepts,

self-direction, and relationships with others. 

Green v. Johnson II, 2007 WL 951686, at *12 (internal citation omitted) (emphasis in original). Having carefully considered the parties’

arguments and the district court’s ruling under the aforementioned

standard of review, we find no error in the district court’s findings

and conclusions. Indeed, we believe that the district court’s (and magistrate judge’s) consideration of the evidence was thorough, its findings are amply supported by the evidence, and Green’s challenges to

the district court’s rulings are without merit. Accordingly, we affirm

the denial of Green’s Atkins claim for this reason as well. 

IV

We now turn to Green’s ineffective assistance of counsel claim,

which is premised on his trial counsel’s failure to appeal the noncapital convictions after his first trial. That trial concluded in October

2000; Green filed his § 2254 petition on December 1, 2005. Accepting the magistrate judge’s recommendation, the district court held that

6The magistrate judge did find that Green had presented uncontested

evidence of limitations maintaining a safe environment. 

18 GREEN v. JOHNSON
this claim is time-barred under 28 U.S.C. § 2244(d), which establishes

a one-year limitation period for an inmate to file a § 2254 petition.

We agree with this conclusion.7

A.

Under § 2244(d)(1)(A)-(D), the one-year limitation period begins

to run from the latest of several potential starting dates:

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review; 

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution

or laws of the United States is removed, if the applicant was

prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

Although Green’s non-capital convictions became final on or about

November 6, 2000,8 the district court found that Green faced an

7Preliminarily, the district court rejected Johnson’s argument that this

claim is procedurally defaulted because the state supreme court held it

was untimely for state habeas review. Green v. Johnson II, 2007 WL

951686, at **4-5. In light of our disposition of this claim, we express no

opinion on this aspect of the district court’s ruling. 

8

In denying the state habeas petition, the supreme court stated that

Green’s non-capital convictions became final on October 30, 2000.

Green v. Warden, at 2. However, Johnson asserts that those convictions

actually became final on November 6, 2000. Brief of RespondentAppellee, at 53 n.18. For purposes of this case, the discrepancy is immaterial. 

GREEN v. JOHNSON 19
impediment to filing his petition until June 26, 2003, when the Commonwealth appointed new counsel to represent him in his state habeas

proceeding — the impediment being Green’s ongoing representation

by his allegedly ineffective trial counsel. Accordingly, the district

court concluded under § 2244(d)(1)(B) that the starting date for the

limitation period is June 26, 2003. Green v. Johnson II, 2007 WL

951686, at *6. 

The district court next considered whether, under § 2244(d)(2), the

one-year limitation period must be tolled for the period of April 22,

2004, to April 29, 2005, when Green’s state habeas proceeding was

pending. Section 2244(d)(2) provides that the limitation period is

tolled while "a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim

is pending." The district court determined that statutory tolling for this

period is inappropriate because § 2244(d)(2) permits tolling only

when a "properly filed application" for state habeas relief is filed, and

Green’s state habeas petition was not properly filed with respect to his

ineffective assistance of counsel claim because that claim was procedurally defaulted. Green v. Johnson II, 2007 WL 951686, at *6. Alternatively, the district court held that this claim is untimely even with

the benefit of tolling under § 2244(d)(2). Green v. Johnson II, 2007

WL 951686, at *6 n.14. 

Finally, the district court considered whether Green is entitled to

equitable tolling. We have held that § 2244 allows for equitable tolling in those "‘rare instances where - due to circumstances external to

the party’s own conduct - it would be unconscionable to enforce the

limitation period against the party and gross injustice would result.’"

Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting

Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). To be entitled to equitable tolling, a habeas petitioner must show that (1) he has

pursued his rights diligently and (2) some "extraordinary circumstance" prevented him from filing in a timely manner. Lawrence v.

Florida, 127 S. Ct. 1079, 1085 (2007).9 The district court concluded

9

In Lawrence, the Court noted that it has "not decided whether

§ 2244(d) allows for equitable tolling," but it nonetheless applied the

doctrine because the parties agreed that it was available. 127 S. Ct. at

1085. 

20 GREEN v. JOHNSON
that Green failed to establish the requisite diligence because ten

months elapsed between June 26, 2003 (when habeas counsel was

appointed), and April 22, 2004 (when he filed his state habeas petition). Green v. Johnson II, 2007 WL 951686, at *7.

B.

We review the district court’s application of § 2244(d) de novo.

Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005). Where, as here,

the relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we also review that decision de novo.

Rouse, 339 F.3d at 248. Having reviewed the district court’s decision

in this manner, we find no error. 

The alleged ineffective assistance of counsel — i.e., the failure of

Green’s trial counsel to file an appeal of the non-capital convictions

— occurred in November 2000. Likewise, those convictions became

final no later than November 6, 2000. In our view, the limitation

period started to run no later than June 26, 2003, when habeas counsel was appointed for Green. At that time, the purported impediment

that prevented Green from filing a habeas petition was removed.

Moreover, trial counsel’s failure to appeal the non-capital convictions

had been public knowledge for at least two years and therefore could

have been discovered through the exercise of due diligence. See, e.g.,

Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003) (holding that the

limitation period was triggered under § 2244(d)(1)(D) on the date that

the inmate could have discovered factual predicate of his claim

"through public sources"). 

Starting on June 26, 2003, 301 days passed until April 22, 2004,

when Green filed his state habeas petition. Because we agree with the

district court that Green is not entitled to equitable tolling, even if we

accept Green’s argument that he is entitled to statutory tolling while

his state habeas petition was pending, that tolling period would have

ended on April 29, 2005, when the state supreme court denied his

petition for rehearing.10 From April 29, 2005, when the filing clock

10Although Green’s petition for certiorari review of the denial of his

state habeas petition was pending until December 5, 2005, "§ 2244(d)(2)

does not toll the 1-year limitations period during the pendency of a petition for certiorari." Lawrence, 127 S. Ct. at 1083. 

GREEN v. JOHNSON 21
again began to run, until December 1, 2005, when Green filed his federal habeas petition, 216 more days passed. Thus, Green filed for federal habeas relief on his ineffective assistance of counsel claim well

beyond the one-year limitation period. Accordingly, the district court

correctly dismissed this claim. 

V

Based on the foregoing, we affirm the district court’s order denying

Green’s habeas petition.

AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment: 

I concur in the judgment and most of the majority opinion. I cannot

join Part III B or portions of Part III C, which hold that the district

court erred in not deferring to the opinion of the Supreme Court of

Virginia, as required by the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), (e) (2000). Although

not entirely clear, and notwithstanding the district court’s somewhat

misleading statement that the magistrate judge (whose report the district judge adopted) conducted a "de novo review," it seems to me that

the magistrate judge actually did defer to the state court. Green v.

Johnson, No. 2:05CV340, 2007 WL 951686, at *11 (E.D. Va. Mar.

26, 2007). The magistrate judge properly granted an evidentiary hearing under § 2254(e)(2) of AEDPA, recognized that the state court’s

factual findings were entitled to a "presumption of correctness," but

found them rebutted "by clear and convincing evidence" in accord

with § 2254(e)(1) of AEDPA. This conclusion required the magistrate

judge then to address additional requirements of Virginia’s statutory

definition of mental retardation that the state court had not been

required to reach. Only for that reason and in that sense did the magistrate judge conduct a "de novo review." This phrase should not hide

the fact that the magistrate judge did properly defer to the state court

in full conformity with AEDPA. 

Specifically, prior to granting any evidentiary hearing, the magistrate judge made extensive findings, as required by AEDPA, that (1)

22 GREEN v. JOHNSON
under Williams v. Taylor, 529 U.S. 420, 432 (2000), Green had diligently developed the factual basis of his claim to the extent practicable in the state habeas proceeding — by repeatedly requesting an

evidentiary hearing to develop his Atkins claim — so that

§ 2254(e)(2) did not prevent the grant of an evidentiary hearing; (2)

Green presented sufficient additional factual allegations in his habeas

petition, which, if true, would entitle him to relief; and (3) Green satisfied the requirements of Townsend v. Sain, 372 U.S. 293, 313

(1963), as to when an evidentiary hearing may properly be granted to

a habeas petitioner. See Green v. Johnson, 431 F. Supp. 2d 601, 608-

17 (E.D. Va. 2006); see also Conaway v. Polk, 453 F.3d 567, 582 (4th

Cir. 2006) (summarizing the requirements for granting an evidentiary

hearing after AEDPA). The magistrate judge’s approach in granting

the evidentiary hearing fully accorded with our past holdings regarding the appropriate deference due to state courts under AEDPA. 

The magistrate judge’s report recommending that the district court

deny Green’s habeas petition similarly accords the state court opinion

the required deference. In making his recommendation, the magistrate

judge initially and correctly recognized that, under § 2254(e)(1), the

factual determinations of the state court were presumed to be correct

unless Green "rebutt[ed] the presumption of correctness by clear and

convincing evidence." See Green v. Johnson, No. 2:05CV340, 2006

WL 3746138, at *39 (E.D. Va. Dec. 15, 2006); see also Miller-El v.

Dretke, 545 U.S. 231, 240 (2005); Lenz v. Washington, 444 F.3d 295,

300-01 (4th Cir. 2006). The magistrate judge then rejected the state

court’s finding on the "significantly subaverage intellectual functioning" prong of the definition of mental retardation. It is not completely

clear whether the magistrate judge based this determination solely on

the arguments presented by Green in his state court pleadings, but

what is entirely clear is that the magistrate judge was not restricted

to these pleadings by AEDPA, especially after having properly conducted the evidentiary hearing under § 2254(e). Certainly the extensive evidence presented during the three-day evidentiary hearing

offered a "clear and convincing" rebuttal to the presumption of correctness afforded the state court’s findings and provided the proper

basis for the magistrate judge’s decision. 2006 WL 3746138 at *38-

49. 

The magistrate judge then considered whether Green satisfied the

second prong of Virginia’s statutory definition of mental retardation,

GREEN v. JOHNSON 23
namely, that Green possess "significant limitations in adaptive behavior." Va. Code Ann. § 19.2-264.3:1.1(A) (2007). Because the

Supreme Court of Virginia had not addressed whether Green satisfied

this prong, the magistrate judge was forced to address the issue in the

first instance (and so in this respect "de novo"). For the reasons stated

by the majority in Part III C, the magistrate judge properly held that

Green had not met his burden on this prong and so the state court had

properly determined that Green did not meet the definition of mental

retardation.

24 GREEN v. JOHNSON