[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-10721

________________________

D.C. Docket No. 1:05-cv-00474-CG-M

JOSEPH CLIFTON SMITH, 

Petitioner-Appellant,

versus

DONAL CAMPBELL, 

COMMISSIONER KIM TOBIAS THOMAS, 

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(August 3, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

HULL, Circuit Judge: 

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Petitioner Joseph Clifton Smith, a death-row inmate, appeals the district 

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves 

only Smith’s Atkins claim—that he is intellectually disabled and cannot be 

executed under the Eighth and Fourteenth Amendments to the United States 

Constitution.

1

 See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). The 

Alabama state courts denied Smith’s Atkins claim without an evidentiary hearing, 

as did the district court. We review the history of Smith’s case and then the narrow 

issue in this appeal.

I. FACTUAL BACKGROUND

A. Murder of Durk Van Dam

On Friday, November 21, 1997, Smith was released from a state prison and 

transferred to a community-custody program to complete the remainder of his 10-

year sentence for his burglary and theft convictions. Smith v. State (“Smith I”), 

795 So. 2d 788, 796, 797 n.1 (Ala. Crim. App. 2000). Two days after his release

from prison, Smith murdered the victim Durk Van Dam on November 23, 1997.

Police discovered Van Dam’s body near his pick-up truck in an isolated area 

in southern Mobile County. Van Dam suffered approximately 35 separate, distinct 

exterior injuries. His head, face, and torso were beaten; his corpse revealed a 

 

1Although courts formerly employed the term “mental retardation,” we now use the term 

“intellectual disability” to describe the same condition. Accord Brumfield v. Cain, 576 U.S. ___, 

___ n.1, 135 S. Ct. 2269, 2274 n.1 (2015). However, we sometimes use the terms “mental 

retardation” and “mentally retarded” when quoting or discussing earlier judicial opinions, court 

orders, trial testimony, or other items that used those terms at the time.

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number of blunt force injuries; and his body was mutilated by a saw or a saw-like 

device. Van Dam was robbed of $150 in cash and the boots off his feet. His tools 

were stolen from his pickup truck, which was mired in mud. 

B. Smith’s Statements to Police

On the day Van Dam’s body was discovered, two police officers interviewed 

Smith, who confessed. In his first statement to the police, Smith admitted that he 

was at the scene when Van Dam was beaten and robbed but claimed that he was 

merely a bystander as Larry Reid beat Van Dam. See id. at 796. 

When police questioned Reid, Smith repeatedly knocked on the 

interrogation-room door and requested to speak with the officer who took his first 

statement. Id. Smith gave a second statement, admitting he participated in the 

homicide but denying an intent to kill Van Dam. See id. 

In his second statement, Smith said that he, Reid, and Van Dam left a motel 

in Van Dam’s red pick-up truck on the evening of November 23, 1997. Id. Van 

Dam was drinking and driving the truck, and Reid directed Van Dam to an isolated 

location. Id. Smith asserted that, once they arrived at the location, Reid began 

hitting Van Dam. Reid kicked Van Dam in the face, at which point Smith thought 

Van Dam was dead. Id. However, Van Dam got up, and Smith hit him on the 

head with his fist, kicked him in the ribs several times, threw a handsaw at him, 

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and might have hit him with a hammer. Id. Smith wasn’t entirely sure if he hit 

Van Dam with a hammer because he suffers from blackouts. Id.

Smith stated that Reid got a power saw from Van Dam’s truck and ran the 

saw against Van Dam’s neck. Id. Smith said he held down Van Dam while Reid 

took money from Van Dam’s pockets. Id. Reid kept $100, and Smith kept $40. 

Id. Toward the end, Smith kicked Van Dam in the ribs several times. Van Dam 

was alive at that point, Smith said, but Reid subsequently hit the victim in the head 

several times with boards and sticks and dragged a mattress on top of him. Smith 

and Reid left, and Smith thought Van Dam was alive as they walked away. 

Smith and Reid attempted to steal Van Dam’s truck, but it was stuck in the 

mud. Id. Smith admitted to taking Van Dam’s boots and tools. Id. Smith and 

Reid discussed what to do with Van Dam’s body. Id. Smith suggested taking it to 

a nearby lake, but they left the body under a mattress near Van Dam’s truck. Id.

II. SMITH’S TRIAL AND VERDICT

On May 22, 1998, a Mobile County grand jury indicted Smith for capital

murder, charging that Smith intentionally killed Van Dam during a first-degree 

robbery. The case went to trial. 

At trial, Dr. Julia Goodin, a forensic pathologist, testified that Van Dam died 

as a result of 35 different blunt-force injuries to his body. Id. Dr. Goodin found 

marks on Van Dam’s neck, shoulder, and back that were consistent with Van Dam 

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being cut by a saw. Id. Van Dam had a large hemorrhage beneath his scalp, brain 

swelling, multiple rib fractures, a collapsed lung, abrasions to his head and knees, 

and defensive wounds on his hands. Id. The most immediate cause of death was 

probably Van Dam’s multiple rib fractures, which caused one lung to collapse. Id. 

The prosecution introduced Smith’s two statements to police and called 

Russell Harmon, who saw Smith on the day of the murder at a motel in Mobile 

County. See id. at 796–97. Harmon testified that Smith told him that Smith and 

Reid were going to rob Van Dam, and Smith asked if Harmon wanted to join them. 

See id. at 797. Harmon declined. Id. When Smith returned to the motel later that 

night, Smith admitted to Harmon that he participated in the beating of Van Dam 

and cut Van Dam with a saw before fleeing the crime scene—and leaving Van 

Dam for dead. Id. Smith told Harmon that he hid Van Dam’s tools on the side of a 

road, and Smith asked Harmon to retrieve them. Harmon did. Smith sold the tools 

for $200. Id. 

Joey Warner, an employee of a pawnshop, testified that (1) on November 23, 

1997, Smith pawned several tools, including saws, drills, and a router; (2) Smith 

was given $200 for the tools; and (3) Smith showed his Alabama Department of 

Corrections identification card to complete the transaction. Id.

Another witness, Melissa Arthurs, testified that she saw Smith on the night 

Van Dam disappeared and noticed blood on Smith’s shirt. Id. Smith told Arthurs

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that he hit, cut, and stabbed Van Dam in the back; he and Reid robbed Van Dam; 

and Smith would have taken Van Dam’s truck had it not been stuck in the mud.2 

See id. 

On September 16, 1998, the jury found Smith guilty of capital murder. The 

penalty phase began the next day. 

III. PENALTY PHASE BEFORE THE JURY

A. The State’s Evidence

In the penalty phase, the State presented evidence that established three 

statutory aggravating factors: (1) Smith committed the capital offense while under 

a sentence of imprisonment, see Ala. Code § 13A-5-49(1); (2) Smith committed 

the capital offense while engaged in the commission of a robbery, see id. § 13A-5-

49(4); and (3) the murder of Van Dam was especially heinous, atrocious, or cruel, 

see id. § 13A-5-49(8).

As to the first aggravating factor, the State called Betty Teague, the director 

of the Alabama Department of Corrections’ central records office. Teague testified 

that Smith was in the custody of the Alabama Department of Corrections and 

placed on “prediscretionary leave” on November 21, 1997—two days before Van 

Dam’s murder. Smith was still under a sentence of imprisonment during that 

leave, including the date of Van Dam’s murder. 

 

2

Smith chose not to testify, and the defense rested without calling any witnesses. 

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As to the second aggravating factor, the trial judge noted the jury’s verdict 

established that the capital offense was committed during the course of a robbery. 

As to the third aggravating factor of a heinous murder, the State recounted 

the trial evidence, including (1) Smith’s own statements to the police; (2) Smith’s 

actions kicking and beating the victim; and (3) Dr. Goodin’s testimony about the 

victim’s injuries, including eight broken ribs and many internal and external 

injuries caused by 35 to 45 blows. The State then rested. 

B. Defense Evidence

As part of his penalty-phase defense, Smith called a number of witnesses to 

establish mitigating circumstances, including that the “offense was committed 

while the defendant was under the influence of extreme mental or emotional 

disturbance.” See id. § 13A-5-51(2).

Smith first called his mother, Glenda Kay Smith (“Glenda Kay”). Glenda 

Kay testified that Smith’s father, Leo Charles Smith (“Leo Charles”) got drunk 

almost every day and verbally and physically abused Smith. Leo Charles would 

“try to whoop” Smith and his brothers “with fan belts or water hoses.”

When Smith was about 10 years old, Glenda Kay divorced Leo Charles, and 

she subsequently married Hollis Luker (“Luker”). Luker got drunk three or four 

times a week and drank with Smith when Smith was about 16 years old. Smith and

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Luker would fight, and Luker once injured Smith’s ear by hitting him in the head 

with a bat-like object. 

According to Glenda Kay, Smith had educational problems, including 

dyslexia. Smith was in special education classes and classes for students with 

“emotional conflicts.”

3

 

Smith next called Dr. James F. Chudy (“Dr. Chudy”), a clinical psychologist 

who met with Smith three times, reviewed his school and jail records, and 

evaluated Smith. Dr. Chudy described Smith’s childhood as “at the least, . . . very 

abusive, probably tormenting at times, [and] extremely unstable.” 

After administering a Wechsler Adult Intelligence Scale–Revised (WAIS-R)

test,

4 Dr. Chudy found Smith had a “full scale IQ of 72, which placed him at the 

third percentile in comparison to the general population.” Dr. Chudy testified that 

“there actually is what we call a standard error of measurement of about three or 

four points. So, you know, taking that into account you could -- on the one hand 

he could be as high as maybe a 75. On the other hand[, Smith] could be as low as 

a 69. [Sixty-nine] is considered clearly mentally retarded.” Dr. Chudy testified 

that his findings about Smith’s intellect were consistent with the school records Dr. 

 

3

The State did not cross-examine Glenda Kay. 

4Dr. Chudy also assessed Smith using these diagnostic tools: (1) the Wide Range 

Achievement Test–Revised 3; (2) the Bender Gestalt Visual-Motor Integration Test; (3) a 

Rorschach test; (4) the Mooney Problem Checklist; (5) the Minnesota Multiphasic Personality 

Inventory–2; (6) the Millon Clinical MultiAxial Inventory–III; (7) the Subtle Alcohol Screening 

Survey Inventory–2; and (8) the Jesness Inventory. 

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Chudy examined and that “all the scores are very much the same.” The defense 

introduced school records, which indicated Smith at age 12 obtained IQ scores of 

74 and 75. 

Dr. Chudy also testified that “almost all the time people at this level of IQ, 

and with [Smith] in particular, what I saw in this testing, he does not look like 

much of a planner. He’s more of a reactor. And I would see him more as a 

follower than a leader.” 

As to his learning disorder diagnosis, Dr. Chudy testified that, “in spite of 

his IQ of 72,” Smith “did arithmetic at the kindergarten level, which is a standard 

score of 45. And in the State of Alabama what meets the criteria for a learning 

disability is a fifteen point difference between your IQ and your standard score.” 

Accordingly, Smith was “even more limited in math than you would expect,”

given his IQ score of 72. 

Based on Smith’s full-scale IQ score of 72, Dr. Chudy diagnosed Smith as 

having “borderline intellectual functioning.” Dr. Chudy stated that an individual 

functioning in this borderline range has the ability to appreciate the consequences 

of his actions, though the functioning limitation would “minimize” the appreciation 

“considerably.”

5

 

 

5Dr. Chudy testified that Smith was not “insane” and that his level of intellectual 

functioning did not prevent Smith from knowing “right from wrong.” Rather, Smith’s level of 

functioning resulted in Smith not “learn[ing] very well or profit[ing] much from experience.” 

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Dr. Chudy testified that the “emotionally conflicted” classes in which Smith 

enrolled were special education classes “for kids that are not adjusting to regular 

classroom[s].” 

Based on his evaluation, Dr. Chudy made these six diagnoses of Smith: (1) 

major depression, severe without psychotic features; (2) post-traumatic stress 

disorder; (3) alcohol dependence; (4) learning disorder; (5) schizotypal or antisocial personality disorder; and (6) borderline intellectual function. 

On cross-examination, Dr. Chudy testified that Smith did not “think things 

through” and was “impulsive.” When the State’s prosecutor asked whether “there 

are a lot of folks who have higher IQ’s [sic] and don’t have all this so-called 

baggage who are impulsive,” Dr. Chudy said there were. Dr. Chudy testified that 

his evaluation “did not find a pattern that would show that he had major 

neurological problems that would be inconsistent with a 72 IQ.” When asked 

whether “[t]here are people with low IQ’s [sic] who are what we call ‘streetwise,’”

Dr. Chudy assented. 

Smith called three more witnesses: two sisters and a neighbor. His sister, 

Rebecca Charlene Smith (“Rebecca Charlene”), testified that their step-father 

Luker drank “all the time” and getting drunk “was an everyday routine for him.” 

Luker treated the members of her family “[l]ike dirt.” Luker hit Smith on the side 

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of the head with a baseball bat, beat Smith’s brother Jason with a 2-by-4 piece of 

wood, and physically abused their mother Glenda Kay. 

Shirley Stacey (“Stacey”) was a former neighbor of the Smith family during 

Glenda Kay’s marriage to Luker. Stacey testified that Luker was drunk “just about 

every day.” Stacey saw Luker beat the Smith children “with water hoses or 

whatever he could grab.” On multiple occasions, Glenda Kay brought the Smith 

children to Stacey’s house to escape or avoid Luker. On one occasion, Glenda Kay 

ran to Stacey’s house with the Smith children because Luker “had beat [Glenda 

Kay] and ripped her clothes and she . . . had to get away from him.” 

Another sister, Lynn Harrison, testified that their father Leo Charles got 

drunk “a lot” and was physically abusive toward her brothers. Leo Charles once 

chased Smith with a garden hose and, on another occasion, tried to hit Smith with a 

fan belt. Harrison saw Luker abuse Smith in ways similar to those that Leo 

Charles abused Smith. The Smith children had to “run several times just to get 

away” from Luker’s beatings of Glenda Kay.6

C. The Jury’s Advisory Sentence of Death

The jury returned an advisory verdict recommending that Smith be 

sentenced to death by electrocution. Eleven jurors voted for a death sentence; one 

voted for life imprisonment without the possibility of parole. 

 

6

Smith’s two sisters and neighbor Stacey did not testify about Smith’s intellectual 

functioning, adaptive abilities, or performance in school. The State did not cross-examine them. 

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IV. PENALTY HEARING BEFORE THE TRIAL COURT

A. Evidence in Penalty Hearing

On October 16, 1998, the trial court held a penalty hearing. The trial court 

admitted evidence of: (1) Smith’s 1990 convictions for burglary and theft, (2) a 

pre-sentence report from the Alabama Board of Pardons and Paroles (the 

“Alabama Report”), and (3) Dr. Chudy’s 1998 report, labeled a “psychological 

evaluation” of Smith. 

For his 1990 convictions, Smith was sentenced to 10 years in prison,

released on parole in 1996, and sent back to prison in 1997 when he violated his 

parole terms. According to the Alabama Report, Smith was arrested nine times 

between 1986 and 1997 for suspicion of minor crimes, including harassment (three 

times), menacing (twice), and disorderly conduct (once).

As to Smith’s personal and social history, the Alabama Report stated that 

Smith “dropped out of school in the eighth grade” when Glenda Kay “withdrew 

him from school on the recommendation of his teachers who described [Smith] as 

being disrespectful and disruptive in class.” According to the Alabama Report, 

Smith “was a slow learner and was placed in special education classes.” Smith 

“failed both the seventh and eighth grades[,] and all of his grades, with the 

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exception of physical education, were below average.” Smith “has had no further 

education or training since that time.”7 

Dr. Chudy’s 1998 report included the following conclusions about Smith’s 

mental health.

Evidence of Competency.8 The report stated that, during Dr. Chudy’s 

interviews, Smith “was alert and oriented,” was “able to recount the charges 

against him and ultimately what could happen to him if he were found guilty,” and 

“accurately define[d] the role and purposes of all the parties involved in the trial 

proceedings.” Dr. Chudy concluded Smith was mentally competent and capable of 

assisting his defense attorney. 

Evidence of Subaverage Intellectual Functioning. The report stated that 

Smith took the WAIS-R IQ test, and that he earned a verbal IQ score of 73, a 

performance IQ score of 72, and a full-scale IQ score of 72. According to Dr. 

Chudy’s report, those full-scale scores “place[d Smith] at the 3rd percentile in 

comparison to the general population.” These scores placed him “in the Borderline 

range of intelligence[,] which means that he operates between the Low Average 

and Mentally Retarded range.” According to Dr. Chudy, “[a]ctually[,] these scores 

 

7

In a section titled “Evaluation of Offender,” the Alabama Report stated that several 

people at the motel, where Smith stayed prior to Van Dam’s murder, “stated they believe [Smith] 

has a mental problem.” According to the Alabama Report, in early 1997, Smith got into a fight 

with an elderly man and bit off the tip of one of the elderly man’s fingers. 

8

These subheadings are not included in Dr. Chudy’s report itself but are created to 

organize the information in his report.

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place him at a level closer to those individuals who would be considered mentally 

retarded.” 

Evidence of Communication Limitations. Dr. Chudy’s report indicated that 

Smith had some communication problems, but was generally coherent. The report 

stated that (1) at times, it “was necessary to re-state questions in more elementary 

forms so that [Smith] could understand them,” (2) Smith’s “comprehension is 

limited,” and (3) Smith “lacks much insight or awareness into his behavior.” 

Evidence of Limitations in Daily Functioning. Dr. Chudy’s report noted that 

Smith had “emotional problems, which seem to be largely due to an extremely 

dysfunctional life . . . [and] compounded by his mental dullness.” The report 

stated that Smith’s emotional problems limit his “ability to deal with everyday 

stresses and demands.” Dr. Chudy characterized Smith’s state of mind as 

“indifferent and ineffectual,” and concluded that Smith’s “thinking [was] not real 

clear” and that Smith “lacks any direction or goal in life.” Dr. Chudy concluded

that Smith generally “takes little notice of things around him” and “does not think 

through things.” 

Evidence of Deficits in Learning from Experience. Dr. Chudy concluded 

that Smith’s “indifferent and ineffectual” mindset “provides little basis for [Smith] 

[to act] in a consistently sensible manner or learn[ ] from experience . . . even when 

it involves bringing on pain to himself or those closest to him.” Smith’s “thinking 

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is vague” and “easily confused,” and he “is often overwhelmed with 

incomprehensible feelings or impulses that he does not understand.” Smith 

“possesses extremely limited insight and judgment.” 

Evidence of Social Deficits. Dr. Chudy’s report indicated that Smith’s 

“personality functioning is equally dysfunctional.” As a result of his emotional 

problems, Dr. Chudy found, Smith often “withdraws from others” and only 

“[o]casionally . . . will become desperate enough that he will set out to find people 

to be with.” But “poor judgment causes [Smith] to end up with the wrong people.” 

Dr. Chudy found that Smith had “anger about being rejected and ‘getting a raw 

deal in life.’” “Fortunately, [Smith] has been successful at repressing his anger[,] 

but there is a down side to that. Sooner or later when his anger builds up, it will 

come out and it will probably come out explosively.” Dr. Chudy concluded that 

Smith “fails to use good judgment because he never learned how to incorporate 

successfully into societies [sic] norms.” 

Evidence of Varied Deficits. Dr. Chudy’s report examined the particulars of 

Smith’s WAIS-R test results. The report stated that (1) “Smith displayed major 

deficiencies in areas related to academic skills”; (2) he “functioned well below 

average in his recall of learned and acquired information (Information)”; and (3) he 

“was also quite weak in word knowledge and usage (Vocabulary) and mental 

mathematical computation (Arithmetic).” 

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 Other areas of weakness noted by Dr. Chudy had to do with Smith’s social 

skills. Smith “scored well below average in skills having to do with social 

reasoning and learning how to respond effectively in social situations 

(Comprehension).” Smith “also showed a major deficiency in his ability to predict 

social sequences of action (Picture Arrangement).” Dr. Chudy stated that Smith is 

“ineffective in problem-solving.” 

B. Imposition of a Death Sentence

After considering the evidence and arguments, the state trial judge found 

that the aggravating circumstances outweighed the mitigating circumstances in this 

case, accepted the jury’s advisory death sentence, and ordered that Smith be put to 

death by electrocution.9

The state trial court found these three aggravating circumstances: (1) Smith 

committed the capital offense while under a sentence of imprisonment at the time 

of the offense, Ala. Code § 13A-5-49(1); (2) Smith committed the murder while 

engaged in the commission of a robbery, id. § 13A-5-49(4); and (3) the capital 

offense was especially heinous, atrocious, or cruel compared to other capital 

offenses, id. § 13A-5-49(8). 

 

9

In 2002, the Alabama Legislature changed the State’s standard method of execution 

from electrocution to lethal injection. See Ala. Code § 15-18-82.1 (2006 Cumulative Supp.). 

Those inmates who were sentenced to death and whose certificates of judgment were issued after 

July 1, 2002, had a time-limited option to elect electrocution instead of death by lethal injection. 

Id. § 15-18-82.1(b). At oral argument, it was confirmed that Smith did not so choose. 

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The state trial court found that no statutory or non-statutory mitigating 

circumstances existed. Specifically, the trial court found (1) the capital offense 

was not committed while Smith was under the influence of extreme mental or 

emotional disturbance and (2) Smith “was not mentally or emotionally disturbed” 

to an “extreme extent” or “to the extent that this mitigating circumstance exists.” 

See id. § 13A-5-51(2). The trial court reached this conclusion after “carefully 

review[ing] and weigh[ing] both the report and testimony of Doctor James Chudy, 

a clinical psychologist, in the context of the facts underlying the offense charged 

and proven.” 

C. Smith’s Direct Appeal 

The Alabama Court of Criminal Appeals affirmed Smith’s conviction and 

death sentence. Smith I, 795 So. 2d at 842. The Alabama Supreme Court denied 

Smith’s petition for a writ of certiorari. Ex parte Joseph Clifton Smith, 795 So. 2d 

842 (Ala. 2001) (mem.). The United States Supreme Court denied Smith’s petition 

for a writ of certiorari. Smith v. Alabama, 534 U.S. 872, 122 S. Ct. 166 (2001).

V. POST-CONVICTION PROCEEDINGS IN STATE COURT

A. 2002 Rule 32 Petition

In 2002, Smith filed a pro se petition in the state trial court, seeking postconviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. 

After the State objected on timeliness grounds, the state trial court dismissed

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Smith’s Rule 32 petition as untimely. The Alabama Court of Criminal Appeals 

affirmed, Smith v. State, 897 So. 2d 1246 (Ala. Crim. App. 2003) (table), and 

denied rehearing, Smith v. State, 910 So. 2d 831 (Ala. Crim. App. 2004) (table). 

In 2004, the Alabama Supreme Court reversed and remanded, holding that 

Smith’s Rule 32 petition was timely. Ex Parte Joseph Clifton Smith, 891 So. 2d 

286 (Ala. 2004). The Alabama Court of Criminal Appeals remanded the case to 

the state trial court for further proceedings. Smith v. State, 891 So. 2d 287 (Ala. 

Crim. App. 2004). 

B. 2004 Second Amended Rule 32 Petition

In 2004, Smith filed an amended Rule 32 petition for post-conviction relief. 

After the State moved to dismiss, Smith filed a second amended Rule 32 petition. 

Both petitions alleged that Smith was intellectually disabled and his death sentence

violated the Eighth and Fourteenth Amendments. Smith requested “a full 

evidentiary hearing” and funds to present witnesses, experts, and other evidence. 

C. 2005 Dismissal of Second Amended Rule 32 Petition

The State moved to dismiss again. In 2005, the state trial court dismissed 

Smith’s second amended Rule 32 petition. The court rejected Smith’s Atkins

claim without an evidentiary hearing. The court reviewed the Alabama Supreme 

Court’s decision in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), which identified 

three requirements to establish mental retardation “under the broadest definition”

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of that term: (1) “significantly subaverage intellectual functioning (an IQ of 70 or 

below),” (2) “significant or substantial deficits in adaptive behavior,” and (3) 

manifestation of the first two elements “during the developmental period (i.e., 

before the defendant reached age 18).” Id. at 456. 

As to Smith’s intellectual functioning, the state trial court concluded that (1) 

“[t]he evidence admitted at Smith’s trial refutes any assertion that Smith’s 

intellectual functioning is significantly subaverage,” and (2) “Smith proffer[ed] no 

facts in his second amended Rule 32 petition that would in any way dispute the 

facts contained in the record.” As to Smith’s adaptive behavior, the state trial court 

concluded that the record “indicates [few], if any, deficits in Smith’s adaptive 

functioning.” 

The state trial court found that Smith was not mentally retarded, rejected his

Atkins and other claims, and denied his second amended Rule 32 petition in full. 

D. Appeal of Dismissal of Second Amended Rule 32 Petition

In 2008, the Alabama Court of Criminal Appeals affirmed the dismissal of 

Smith’s second amended Rule 32 petition, including his Atkins claim. Smith v. 

State (“Smith II”), 71 So. 3d 12 (Ala. Crim. App. 2008). As to mental retardation, 

the Alabama appellate court discussed Atkins; how Atkins left it to the states to 

define “mental retardation”; and Alabama’s three requirements for “mental 

retardation,” identified in Perkins. Id. at 17.

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Turning to Smith’s Atkins claim, the Alabama Court of Criminal Appeals 

concluded that Smith failed to meet his burden of pleading the facts relied upon in 

seeking relief, as required by Rule 32.6(b) of the Alabama Rules of Criminal 

Procedure. See id. at 18–19. The Alabama appellate court found that “[t]he only 

grounds offered in support” of Smith’s claim were his conclusory allegations that 

he met the three requirements of mental retardation under Atkins and Perkins. Id.

at 19. 

Alternatively, the Alabama appellate court turned to the merits of Smith’s

Atkins claim based on the trial evidence. The Alabama appellate court concluded 

that Smith’s mental retardation claim failed on the merits because the trial record 

shows “Smith does not meet the broadest definition of mentally retarded adopted 

by the Alabama Supreme Court.” Id. The Alabama appellate court reviewed the 

evidence of Smith’s full-scale IQ scores of 74 at age 12 and 72 before trial. Id. at 

19–20. The Alabama appellate court noted that Dr. Chudy testified “that[,] 

because of the margin of error in IQ testing[,] Smith’s IQ score could be as high as 

75 or as low as 69.”10 Id. at 19. The Alabama appellate court did not apply a 

“margin of error” to Smith’s above-70 IQ scores. Id. at 20. 

As to Smith’s adaptive behavior, the Alabama appellate court concluded that 

there was “no indication that Smith had significant defects in adaptive behavior.” 

 

10The Alabama Court of Criminal Appeals referred to the standard error of measurement 

as a “margin of error.”

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Id. at 20. The Alabama appellate court recounted evidence of Smith’s participation 

in the murder and other evidence relevant to Smith’s adaptive behavior, including 

his ability to communicate with police and his having a girlfriend.11 Id.

The Alabama Supreme Court denied Smith’s petition for a writ of 

certiorari.

12

 

VI. SECTION 2254 PETITION IN FEDERAL COURT

A. 2005 Petition

In 2005, Smith filed this petition for a writ of habeas corpus in the United 

States District Court for the Southern District of Alabama, pursuant to 28 U.S.C. 

§ 2254. In 2006, the district court stayed the § 2254 proceedings pending the 

Alabama state courts’ resolution of Smith’s Rule 32 petitions. In 2011, the district 

court lifted the stay and granted Smith’s motion to amend his § 2254 petition. 

Smith filed an amended petition on July 25, 2011. 

B. 2011 Amended Petition

Smith’s amended § 2254 petition alleged, inter alia, that he is intellectually 

disabled and his execution would violate the Eighth and Fourteenth Amendments. 

Smith requested discovery and an evidentiary hearing. 

 

11In 2009, the Alabama appellate court also denied Smith’s application for rehearing. 

12The Alabama Supreme Court initially granted the writ as to Smith’s ineffective-counsel 

claims, but it denied the writ as to all other claims. Following more briefing, the Alabama 

Supreme Court quashed the writ. 

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22

In the district court, Smith argued that the Alabama Court of Criminal 

Appeals’ decision—rejecting his Atkins claim—was both an unreasonable 

application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and an 

unreasonable determination of the facts, see id. § 2254(d)(2). 

C. 2013 Order Denying Amended § 2254 Petition

On September 30, 2013, the district court denied Smith’s amended § 2254 

petition without discovery or an evidentiary hearing. Smith v. Thomas (“Smith 

III”), No. CIV.A.05-0474-CG-M, 2013 WL 5446032, at *38 (S.D. Ala. Sept. 30, 

2013). The district court concluded that Smith’s Atkins claim was not 

procedurally defaulted and was properly before the federal habeas court because 

Smith raised it in his second amended Rule 32 petition. Id. at *27. The district 

court examined the reasonableness of the Alabama appellate court’s rejection of 

Smith’s Atkins claim based upon Smith’s allegations in his first and second 

amended Rule 32 petitions and the trial record considered by the state courts. Id. at 

*27–29.

The district court concluded that the only evidence of Smith’s IQ presented 

to the state trial court was Dr. Chudy’s testimony that Smith’s full-scale IQ score 

was 72 in 1998, and the school records indicating that Smith’s IQ scores were 74 

and 75 in grade school. Id. at *28. The district court agreed with the State’s

position that Dr. Chudy’s finding—that Smith is “in the Borderline range of 

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intelligence[,] which means that he operates between the Low Average and 

Mentally Retarded range”—establishes that Smith is not mentally retarded and not 

exempt from the death penalty. Id.

The district court acknowledged (1) that Dr. Chudy’s testified “that, in 

Smith’s case, ‘a standard error of measurement of about three or four points’ could 

result in an IQ ‘as high as maybe a 75 [or] . . . as low as a 69,’” and (2) the “Flynn 

effect,” which artificially inflates IQ scores.13 Id. The district court, however,

observed that the Alabama appellate court had refused to downwardly modify 

Smith’s most recent IQ score of 72 to produce an adjusted score within the mental 

retardation range of 70 or below. Id. at *28–29. The district court concluded that

the Alabama appellate court did not unreasonably refuse to apply a “margin of 

error” to Smith’s IQ score of 72 such that his score would be reduced and fall 

within the “mental retardation range.” Id. at *29. 

Because the district court concluded Smith “failed to prove that his 

intellectual functioning was or is significantly subaverage,” it did “not explore 

whether Smith suffers from deficits in adaptive behavior and whether any such 

deficits manifested themselves before Smith reached the age of 18.” Id. at *29

n.26. The district court denied Smith’s § 2254 petition as to all claims, id. at *6–

 

13The “Flynn effect” is the phenomenon by which “IQ test scores have been increasing 

over time” because, “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.” Thomas v. Allen, 607 F.3d 749, 753 (11th Cir. 2010). 

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26, *29–38, denied Smith a certificate of appealability, id. at *38, and later denied 

Smith’s motion to reconsider, Smith v. Thomas (“Smith IV”), No. CIV.A.05-0474-

CG-M, 2014 WL 217771, at *5 (S.D. Ala. Jan. 21, 2014). 

D. Smith’s Certificate of Appealability

In 2014, this Court granted Smith a certificate of appealability as to these 

three issues:

1. Whether the Alabama state courts’ procedural ruling—that in his 

Rule 32 post-conviction pleadings as to his mental retardation claim, 

Smith failed to comply with the specificity pleading requirements in 

Rule 32.6(b) of the Alabama Rules of Criminal Procedure—was 

contrary to or an unreasonable application of Atkins v. Virginia, 536 

U.S. 304 (2002)?

2. Whether the Alabama state courts’ merits determination—that 

Smith did not show significant deficits in adaptive behavior 

manifested before age 18—is an unreasonable determination of the 

facts or an unreasonable application of Atkins?

3. Whether the Alabama state courts’ merits determination—that 

Smith did not show subaverage intellectual functioning—is an 

unreasonable determination of the facts or an unreasonable application 

of Atkins?

14

 

 

14With the benefit of the parties’ briefs, oral argument, and our examination of the record, 

it has become clear that the first issue is also properly a question of whether the Alabama Court 

of Criminal Appeals’ procedural ruling is an unreasonable determination of the facts or an 

unreasonable application of Atkins. Accordingly, we sua sponte expand the certificate of 

appealability (“COA”) to address whether the Alabama appellate court’s decision, including its 

Rule 32.6(b) ruling, was based on an unreasonable determination of the facts under 28 

U.S.C. § 2254(d)(2). See Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013), cert. 

denied, 134 S. Ct. 1508 (2014) (noting this Court has “expanded a COA sua sponte on 

exceptional occasions, even after oral argument”); see also 11th Cir. R. 27-1(g) (“A ruling on a 

motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding 

upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, 

amend, or vacate it.”).

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VII. STANDARD OF REVIEW

We review de novo a district court’s ultimate decision to deny a habeas 

corpus petition brought by a state prisoner. McNair v. Campbell, 416 F.3d 1291, 

1297 (11th Cir. 2005). As part of that task, we review the district court’s factual 

findings for clear error, and we review mixed questions of fact and law de novo. 

Id. 

VIII. AEDPA

A. AEDPA Deference

A state prisoner’s habeas petition is governed by 28 U.S.C. § 2254, as 

amended by the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”). “AEDPA recognizes a foundational principle of our federal system: 

State courts are adequate forums for the vindication of federal rights.” Burt v. 

Titlow, 571 U.S. ___, ___, 134 S. Ct. 10, 15 (2013). AEDPA thus “erects a 

formidable barrier to federal habeas relief for prisoners whose claims have been 

adjudicated in state court.” Id. at ___, 134 S. Ct. at 16. Indeed, the purpose of 

AEDPA’s amendments to § 2254 “is to ensure that federal habeas relief functions 

as a guard against extreme malfunctions in the state criminal justice systems, and 

not as a means of error correction.” Greene v. Fisher, 565 U.S. ___, ___, 132 S. 

Ct. 38, 43 (2011) (quotation marks omitted). 

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Accordingly, federal review of final state court decisions under § 2254 is 

“greatly circumscribed” and “highly deferential.” Hill v. Humphrey, 662 F.3d 

1335, 1343 (11th Cir. 2011) (en banc) (quotation marks omitted). Where a state 

court denied a petitioner relief on alternative grounds, AEDPA precludes the 

petitioner from obtaining federal habeas relief unless he establishes that each and 

every ground upon which the state courts relied is not entitled to AEDPA 

deference. See Wetzel v. Lambert, 565 U.S. ___, ___, 132 S. Ct. 1195, 1199 

(2012) (stating § 2254 petition at issue should not be granted “unless each ground 

supporting the state court decision is examined and found to be unreasonable under 

AEDPA”).

B. Section 2254(d)(1) & (2)

As a general rule, a § 2254 state petitioner may not obtain federal habeas 

relief “with respect to any claim that was adjudicated on the merits” by a state 

court. 28 U.S.C. § 2254(d). However, a petitioner may avoid that general rule if 

one of two conditions exist: either (1) that the state court’s adjudication “resulted 

in a decision that was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the United 

States,” id. § 2254(d)(1); or (2) that the state court’s adjudication “resulted in a 

decision that was based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding,” id. § 2254(d)(2). The 

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petitioner carries the burden of proof under § 2254(d)(1) & (2), and our review is 

limited to the record before the state court. Cullen v. Pinholster, 563 U.S. ___, 

___, 131 S. Ct. 1388, 1398 (2011).

Pursuant to § 2254(d)(1), the phrase “clearly established Federal law” means

“the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the 

time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 

123 S. Ct. 1166, 1172 (2003) (quotation marks omitted). A state court’s 

application of federal law is not unreasonable under § 2254(d)(1) “so long as 

fairminded jurists could disagree on the correctness of the state court’s decision.” 

Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (quotation 

marks omitted).

As to § 2254(d)(2), “a factual determination will not be overturned on 

factual grounds unless objectively unreasonable in light of the evidence presented 

in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 

1029, 1041 (2003). “We may not characterize . . . state-court factual 

determinations as unreasonable merely because we would have reached a different 

conclusion in the first instance.” Brumfield v. Cain, 576 U.S. ___, ___, 135 S. Ct. 

2269, 2277 (2015) (quotation marks omitted). The Supreme Court has found a 

state court’s factual finding to be unreasonable where the record before the state 

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court did not support the factual finding. See Wiggins v. Smith, 539 U.S. 510, 

528–29, 123 S. Ct. 2527, 2539 (2003). 

IX. ALABAMA’S APPLICATION OF ATKINS

In 2002, the United States Supreme Court held in Atkins that the execution 

of “mentally retarded” individuals violates the Eighth Amendment of the 

Constitution. 536 U.S. at 321, 122 S. Ct. at 2252.

15

 The Supreme Court pointed 

out 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, 122 S. Ct. at 2250. The Atkins Court, however, left “to the 

States the task of developing appropriate ways to enforce the constitutional 

restriction upon their execution of sentences.” Id. (quotation marks omitted and 

alterations adopted). 

As recounted above, the Alabama Supreme Court in Perkins identified three 

requirements to establish intellectual disability “under the broadest definition” of 

mental retardation: (1) “significantly subaverage intellectual functioning (an IQ of 

70 or below),” (2) “significant or substantial deficits in adaptive behavior,” and (3) 

 

15Prior to Atkins, Alabama, along with most other states, had not outlawed the execution 

of intellectually disabled individuals. See Atkins, 536 U.S. at 314–15 & n.20, 122 S. Ct. at 

2248-49 & n.20; id. at 342, 122 S. Ct. at 2261–62 (Scalia, J., dissenting).

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manifestation of “these problems . . . during the developmental period (i.e., before 

the defendant reached age 18).” Perkins, 851 So. 2d at 456.16

Neither the Alabama legislature nor the Alabama Supreme Court has defined

what constitutes “significant or substantial deficits in adaptive behavior.” See id. 

But the Alabama Supreme Court has applied generally the “most common” or 

“broadest” definition of mental retardation, which reflects “the clinical definitions 

considered in Atkins.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL 

1519869, at *7 (Ala. May 25, 2007). And “significant or substantial deficits in 

adaptive behavior” means, under the clinical definitions considered in Atkins, a 

petitioner must show limitations in two or more of the following applicable 

adaptive-skill areas: communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, health and safety, functional 

academics, leisure, and work.” Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3

(citing the American Association on Mental Retardation and American Psychiatric 

 

16In Perkins, decided shortly after Atkins, the Alabama Supreme Court noted that 

Alabama lacked statutorily-prescribed procedures for identifying intellectually disabled 

individuals and “urge[d] the Legislature to expeditiously develop procedures for determining 

whether a capital defendant is mentally retarded and thus ineligible for execution.” Perkins, 851 

So. 2d at 457 n.1. In the absence of a legislative definition, the Alabama Supreme Court 

continued to apply “the ‘most common’ or ‘broadest’ definition of mental retardation, as 

represented by the clinical definitions considered in Atkins and the definitions set forth in the 

statutes of other states that prohibit the imposition of the death sentence when the defendant is 

mentally retarded.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL 1519869, at *7 

(Ala. May 25, 2007). 

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Association’s definitions of mental retardation).17 Thus, we use that common 

clinical definition in considering this case. Cf. Lane v. State, ___ So.3d ___, ___ 

No. CR-10-1343, 2013 WL 5966905, at *5 (Ala. Crim. App. Nov. 8, 2013) (“In 

order for an individual to have significant or substantial deficits in adaptive 

behavior, he must have concurrent deficits or impairments in . . . at least two of the 

following skill areas: communication, self-care, home living, social/interpersonal 

skills, use of community resources, self-direction, functional academic skills, 

work, leisure, health and safety.” (quotation marks omitted)).

X. ANALYSIS OF SMITH’S CLAIMS

A. Rule 32.6(b) Determination

Our first task is to review the Alabama Court of Criminal Appeals’

procedural ruling—that Smith failed to meet the pleading requirements of Rule 

32.6(b).18 The Alabama Court of Criminal Appeals’ Rule 32.6(b) ruling was based 

on its underlying factual determination that “[t]he only grounds offered in support” 

of Smith’s claim were his conclusory allegations that he met the three requirements 

of intellectual disability under Atkins and Perkins. See Smith II, 71 So. 3d at 19. 

 

17The American Association on Mental Retardation is now known as the American

Association on Intellectual and Developmental Disabilities.

18The parties agree that we should review the decision of the Alabama Court of Criminal 

Appeals on Smith’s Atkins claim. 

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Here, we do not examine whether the petition was sufficient to meet 

Alabama’s pleading requirement.19 Rather, our narrow review is only the 

underlying factual determination about whether Smith’s second amended petition 

recounted any facts at all or only conclusory allegations.

Smith’s second amended Rule 32 petition included at least seven factual 

grounds that support his Atkins claim: (1) there “was testimony at trial that Mr.

Smith functioned intellectually at the bottom 3rd percentile of all adults”; (2) 

“[s]chool records indicate that Mr. Smith never progressed beyond the 5th grade”; 

(3) when Smith enrolled in a junior high school in Monroe County, “the county 

board of education classified Mr. Smith as ‘Educable Mentally Retarded’ (EMR), 

based on his ‘psychological and educational evaluations, academic history, and 

other pertinent information’”; (4) “even though he was in EMR classes while in the 

Monroe County school system, [Smith] either failed or performed at the ‘D’ level 

in all subjects”; and “testimony at sentencing . . . showed [Smith’s] inability to 

adapt because” (5) “he often acts out impulsively,” (6) he “lacks the ability to 

formulate a pre-meditated plan,” and (7) he “acts as a follower in groups”

(alterations adopted). These factual allegations relate to the three requirements of 

intellectual disability under Perkins: significantly subaverage intellectual 

 

19Under Rule 32.6(b), each claim in a petition for post-conviction relief “must contain a 

clear and specific statement of the grounds upon which relief is sought, including full disclosure 

of the factual basis of those grounds.” Ala. R. Crim. P. 32.6(b). “A bare allegation that a 

constitutional right has been violated and mere conclusions of law shall not be sufficient to 

warrant any further proceedings.” Id.

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functioning, significant or substantial deficits in adaptive behavior, and 

manifestation before age 18. 

In short, the Alabama appellate court’s factual determination—that the “only 

grounds” Smith pled were conclusory allegations that he met each of the three 

requirements—is unsupported by the record and therefore unreasonable.

20

 See

Wiggins, 539 U.S. at 528–29, 123 S. Ct. at 2539; cf. Brumfield, 576 U.S. at ___, 

135 S. Ct. at 2276–77 (reviewing under § 2254(d)(2) a state court’s factual 

determination that the record included “no evidence” of adaptive impairment).21

 

20We reach this conclusion based on our review of the state court’s factual determination 

about what was alleged in Smith’s second amended Rule 32 petition; by contrast, where a state 

court accurately identifies what allegations were included in a petition and concludes that those 

allegations failed to meet a pleading requirement, that is a legal conclusion, which is subject to 

review under § 2254(d)(1). See Brumfield, 576 U.S. at ___ n.3, 135 S. Ct. at 2277 n.3 (“[W]e 

subject these determinations to review under § 2254(d)(2) instead of § 2254(d)(1) because we are 

concerned here not with the adequacy of the procedures and standards the state court applied in 

rejecting [the petitioner’s] Atkins claim, but with the underlying factual conclusions. . . .”). 

21Although not squarely on point, Brumfield is instructive. Following Atkins, the deathsentenced Brumfield amended his state post-conviction petition to raise a mental-retardation 

claim. 576 U.S. at ___, 135 S. Ct. at 2274. Brumfield alleged that he read at a fourth-grade level 

and obtained an IQ score of 75. Id. at ___, 135 S. Ct. at 2274–75. The state court dismissed his 

petition. Id. at ___, 135 S. Ct. at 2275. 

Later, the district court granted Brumfield’s § 2254 petition, holding, inter alia, the state 

court’s dismissal was based on an unreasonable determination of the facts. Id. Reversing, the 

Fifth Circuit held that the state court’s dismissal decision did not rest on an unreasonable 

determination of the facts. Id. at ___, 135 S. Ct. at 2276.

The United States Supreme Court vacated the Fifth Circuit’s opinion and concluded that 

the state court’s dismissal decision was based on two separate factual determinations that were 

unreasonable. Id. at ___, 135 S. Ct. at 2276–77. First, the state court unreasonably determined 

that Brumfield’s evidence of intellectual functioning precluded him from obtaining an Atkins

hearing under Louisiana law. Id. at ___, 135 S. Ct. at 2277–79. Contrary to the state court’s 

decision, Brumfield’s proffered IQ score of 75 “was squarely in the range of potential 

intellectual disability” after accounting for the standard error of measurement. Id. at ___, 135 S. 

Ct. at 2278. 

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Thus, the Alabama Court of Criminal Appeals’ conclusion that Smith failed to 

meet Rule 32.6(b) was based on an unreasonable determination of the facts. See

28 U.S.C. § 2254(d)(2).

B. Merits Determination

We must also consider the alternative basis the Alabama appellate court used 

for its affirmance of the dismissal of Smith’s Rule 32 petition: its merits 

determination that the trial evidence conclusively showed that Smith is not 

“mentally retarded” and thus his Atkins claim fails. 22 See Crawford, 311 F.3d at 

1326. That merits determination was a finding of fact. See Fults v. GDCP 

Warden, 764 F.3d 1311, 1319 (11th Cir. 2014) (“A determination as to whether a 

person is mentally retarded is a finding of fact.”). We review the Alabama 

appellate court’s merits ruling first on Smith’s intellectual functioning and then on 

Smith’s adaptive behavior.

As to Smith’s intellectual functioning, we agree with the State that Alabama 

law generally does not contain a strict IQ cut-off of 70 to establish intellectual 

 

Second, the state court unreasonably concluded that Brumfield “presented no evidence of 

adaptive impairment.” Id. at ___, 135 S. Ct. at 2277, 2279. The Supreme Court concluded that 

the state court’s factual determination—that the record failed to raise any question as to 

Brumfield’s impairment in adaptive skills—was unreasonable because “the evidence in the statecourt record provided substantial grounds to question Brumfield’s adaptive functioning.” Id. at 

___, 135 S. Ct. at 2280. 

22In reviewing Smith’s intellectual functioning and adaptive behavior, the Alabama Court 

of Criminal Appeals considered both Smith’s first and second amended Rule 32 petitions and the 

evidentiary record from Smith’s trial. Accordingly, we do the same. See Pinholster, 563 U.S. at 

___, 131 S. Ct. at 1398.

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disability. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010) (“There is no 

Alabama case law stating that a single IQ raw score, or even multiple IQ raw 

scores, above 70 automatically defeats an Atkins claim when the totality of the 

evidence (scores) indicates that a capital offender suffers subaverage intellectual 

functioning.”). 

But the problem for the State here is that the trial evidence showed that 

Smith’s IQ score could be as low as 69 given a standard error of measurement of 

plus-or-minus three points. There was also other trial evidence of deficits in 

intellectual functioning, including that Smith (1) did arithmetic at a kindergarten 

level, which was consistent with an IQ of 45; (2) suffered from dyslexia; (3) failed 

seventh grade and dropped out of school in the eighth grade;

23 (4) struggled to 

recall learned and acquired information; and (5) was “quite weak in word 

knowledge and usage.” 

Despite this trial evidence pointing to significant deficits in Smith’s 

intellectual functioning, and even though the state trial court had not conducted an 

evidentiary hearing, the Alabama Court of Criminal Appeals held that the record 

conclusively established Smith was not mentally retarded and could never meet 

Perkins’s intellectual-functioning requirement. Considering the record evidence

before the Alabama Court of Criminal Appeals and the fact that Alabama does not 

 

23In Smith’s second amended Rule 32 petition, he also alleged that school records show 

he never successfully completed any grade beyond the fifth grade. 

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employ a strict IQ cut-off score of 70, the factual determination that Smith 

conclusively did not possess significantly subaverage intellectual functioning was 

an unreasonable determination of the facts. See Burgess v. Comm’r, Alabama 

Dep’t of Corr., 723 F.3d 1308, 1319 (11th Cir. 2013) (“We hold that the state 

court’s determination that [the petitioner] 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 support its conclusions.”); cf. Brumfield, 576 U.S. at ___, 135 S. Ct. 

at 2278 (“To conclude, as the state trial court did, that [the petitioner’s] reported IQ 

score of 75 somehow demonstrated that he could not possess subaverage 

intelligence . . . reflected an unreasonable determination of the facts.”).

The Alabama Court of Criminal Appeals also determined conclusively that 

Smith did not suffer from significant or substantial deficits in adaptive behavior. 

See Smith II, 71 So. 3d at 20. This conclusion was similarly based wholly on the 

Alabama appellate court’s factual determination that there was “no indication” 

from the trial record “that Smith had significant defects in adaptive behavior.” See

id.; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2276–77 (reviewing under 

§ 2254(d)(2) a state court’s factual determination that the record included “no 

evidence” of adaptive impairment). In other words, there was no record evidence 

at all of adaptive-behavior impairment.

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Even assuming that a petitioner must show deficits areas that are identified 

in both of the clinical definitions in Atkins, the Alabama Court of Criminal 

Appeals’ conclusion that the record provided “no indication” that Smith had 

significant deficits in adaptive behavior was an objectively unreasonable 

determination of the facts. See Miller-El, 537 U.S. at 340, 123 S. Ct. at 1041. 

Indeed, the record affirmatively contradicts this conclusion that there was “no 

indication” of significant deficits in Smith’s adaptive behavior. There was 

evidence in the record before the Alabama Court of Criminal Appeals that would 

support a fact finding that Smith had significant limitations in at least two of the 

adaptive skills identified by both clinical definitions: (1) social/interpersonal skills

and (2) self-direction. 

First, as to social/interpersonal skills, Dr. Chudy concluded that Smith 

“never learned how to incorporate successfully into [society’s] norms.” Dr. Chudy

classified Smith’s “personality functioning” as “dysfunctional,” noted that Smith 

“scored well below average in skills having to do with social reasoning and 

learning how to respond effectively in social situations,” and stated that Smith 

“showed a major deficiency in his ability to predict social sequences of action.” 

Also relevant to this social-skills inquiry, Dr. Chudy found that Smith’s emotional 

problems limited his “ability to deal with everyday stresses and demands” and 

caused him to “withdraw[ ] from others.” Furthermore, Dr. Chudy concluded that 

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Smith “takes little notice of things around him” and “does not think through 

things.”

Second, as to self-direction, Dr. Chudy concluded that Smith “lacks any 

direction or goal in life.” Dr. Chudy found that Smith’s “indifferent and 

ineffectual” mindset provided “little basis for [Smith] acting in a consistently 

sensible manner or learning from experience . . . even when it involves bringing on 

pain to himself or those closest to him.” Dr. Chudy also concluded that Smith “is 

often overwhelmed with incomprehensible feelings or impulses that he does not 

understand” and “possesses extremely limited insight and judgment.” In addition, 

Smith’s Rule 32 petition alleged that Smith (1) is prone to impulsive behaviors, (2) 

lacks the ability to formulate premeditated plans, and (3) acts as a follower in 

groups. 

Considering all the foregoing, the Alabama Court of Criminal Appeals’

finding that there was “no indication that Smith had significant defects in adaptive 

behavior,” Smith II, 71 So. 3d at 20, is unsupported (and, in fact, contradicted) by 

the record and therefore unreasonable, see Wiggins, 539 U.S. at 528–29, 123 S. Ct. 

at 2539; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2279–82 (holding a state 

court’s “conclusion that the [trial] record failed to raise any question” as to the 

petitioner’s adaptive behavior was an unreasonable determination of the facts). 

Accordingly, its merits determination (at the early dismissal stage) as to Smith’s 

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adaptive behavior functioning was based on an unreasonable determination of the 

facts. 

C. Evidentiary Hearing

Smith requests that we reverse and remand this case to allow Smith on his 

own to present an expert witness on his behalf. Smith should be allowed to do 

that. 

Smith also included in his prayer for relief a request for discovery and an 

evidentiary hearing. Neither he nor the State has fully briefed the propriety or 

usefulness of discovery or of an evidentiary hearing at this stage of the litigation. 

Accordingly, we do not decide whether the district court should order discovery or 

an evidentiary hearing, and we leave that issue for the district court to decide in the 

first instance.

However, in considering whether to grant Smith discovery or an evidentiary 

hearing, the district court should note that Dr. Chudy’s diagnosis of “borderline 

intellectual functioning” does not ipso facto preclude Smith from attempting to 

establish that he is intellectually disabled, especially given Dr. Chudy’s testimony 

about the standard error of measurement applicable to Smith’s IQ score of 72. See

Burgess, 723 F.3d at 1313, 1322 (ordering the district court to conduct an 

evidentiary hearing to determine whether the petitioner, who had been diagnosed 

as “borderline mentally retarded,” was intellectually disabled under Alabama law).

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XI. CONCLUSION

In conclusion, we reverse and remand for further proceedings consistent 

with this opinion. In doing so, we express no opinion as to whether Smith is 

intellectually disabled. Upon remand, the district court should consider in the first 

instance Smith’s requests for discovery and an evidentiary hearing.

REVERSED AND REMANDED.

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