RECOMMENDED FOR FULL

- TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0024p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

D ANNY H ILL , Petitioner

- Appellant ,

v

.

C ARL A NDERSON , Warden, Respondent

- Appellee

. ┐ │ │ │ │ │ │ │ │ ┘ Nos. 99

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- 3718

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:96

- cv

- 00795

— Paul R. Matia and John R. Adams , District Judge s

.

Argued: November 30, 2016

Decided and Filed: February 2, 2018 Before: MERRITT, MOORE, and CLAY, Circuit Judges.

_________________ COUNSEL
ARGUED: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for A ppellant. Peter T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF : Vicki Ruth Adams Werneke, Lori B. Riga, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Peter T. Reed, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ MERRITT, Circuit Judge. In this death penalty case out of Ohio, Danny Hill asserts in his habeas petition that he may not be executed because he is “intellectually disabled,” as now 

### >Nos. 99

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defined in three Supreme Court cases decided in the past fifteen years. 1 Atkins v. Virginia , 536 U.S. 304 (2002), was decided and made retroactive after Hill was convicted of murder and sentenced to death, so although Hill raised his intellectual disability as a mitigating factor in the penalty phase of his trial, he was not a fforded the constitutional protections set forth in Atkins during his original trial. Our court issued a remand order in 2002 directing the State of Ohio to assess Hill’s intellectual functioning in light of Atkins

. Hill v. Anderson , 300 F.3d 679 (6th Ci r. 2002). The issue now before us is whether that assessment comports with Atkins and the Supreme Court’s later opinions on the subject. We conclude that the courts in Ohio have unreasonably applied the Supreme Court’s three

- part standard in this case.
In its three cases on the subject of executing the intellectually disabled, the Supreme Court relies on two diagnostic manuals of the psychiatric profession to determine whether a defendant has an “intellectual disability”

— Intellectual Disability: Definit ion, Classification, and Systems of Supports , the diagnostic manual published by the American Association on Intellectual and Developmental Disabilities, and the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric As sociation. 2 Both manuals require three separate findings before a diagnosis of intellectual disability is appropriate: (1) the individual exhibits significant deficits in intellectual functioning

— indicated by an IQ score “approximately two standard devia tions or more below the mean,” or roughly 70; (2) the individual exhibits significant adaptive skill deficits

— such as “the inability to learn basic skills and adjust behavior to changing circumstances”

— in certain specified skill sets; and (3) the deficits arose while the individual was still a minor. See Moore v. Texas , 137 S. Ct. 1039, 1045 (2017); Hall v. Florida , 134 S. Ct. 1986, 1994

- 95 (2014); Atkins , 536 U.S. at 308 n.3.
The Ohio courts and the parties agree that Hill’s IQ is s o low (ranging from a low of 48 to a high of 71) that he easily meets the first element of the clinical definition of intellectual disability. They disagree, however, on the propriety of the state courts’ holdings that Hill did not

1 W e will use the medical community’s preferred term of “intellectually disabled” in place of “mentally retarded” except where the term is in quoted material.

2 Prior to 2007, the American Association on Intellectual and Developmental Disabilities (AAIDD) wa s known as the American Association on Mental Retardation (AAMR).Nos. 99

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exhibit sufficient adaptive deficits under th e second element and that Hill’s deficits did not manifest themselves before Hill reached the age of 18. Therefore, we must resolve the dispute between the parties as to these two elements.
On the question of “adaptive deficits,” we conclude that the Ohi o courts have made the same basic mistake as the Texas courts in the recent case of Moore v. Texas , in which the Supreme Court reversed the death penalty because the Texas court incorrectly ruled that the prisoner’s “adaptive strengths . . . constituted ev idence adequate to overcome the considerable objective evidence of Moore’s adaptive deficits.” 137 S. Ct. at 1050. The Supreme Court rejected that view, noting that “the medical community focuses the adaptive

- functioning inquiry on adaptive deficits .” I

d. (emphasis in original) (citing AAIDD

- 11, at 47 (2010); DSM

- 5, at 33, 38 (2013)). 3 That view is consistent with the Court’s previous observation that “intellectually disabled persons may have ‘strengths in social or physical capabilities, strengths in s ome adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.’” Brumfield v. Cain , 135 S. Ct. 2269, 2281 (2015) (quoting AAMR

- 10, at 8 (2002)). The case supporting a finding that Hill is int ellectually disabled is even stronger than in Moore . Whereas Moore’s intellectual functioning based on IQ was debatable, Hill’s IQ is so low that the Warden concedes that Hill satisfies the first element of the definition.
We recognize that Moore was decided after the Ohio Court of Appeals rejected Hill’s Atkins claim in 2008. See State v. Hill, 894 N.E.2d 108, 127 (Ohio Ct. App. 2008). Ordinarily, Supreme Court decisions that post

- date a state court’s determination cannot be “clearly establishe d law” for the purposes of AEDPA. Peak v. Webb , 673 F.3d 465, 472 (6th Cir. 2012) (Under AEDPA, the “law in question must have been clearly established at the time the state

court decision became final, not after.”). However, as discussed in more detail below, we find that Moore’s holding regarding adaptive strengths is merely an application of what was clearly established by Atkins

. In light of the Ohio Court of Appeals’ unreasonable determinations under both the adaptive

- skills and age

- of

- onset prongs of the Atkins standard, we REVERSE the judgment of

3 We will refer to the diagnostic manuals as “AAMR” or “AAIDD,” and “DSM” followed by a number identifying the referenced edition.Nos. 99

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the district court and REMAND the case with instructions to grant the petition and to issue the writ of habeas corpus with respect to Hill’s death sentence.

In addition to his Atkins claim, Hill raises an ineffective assistance of counsel claim that attacks his trial counsel’s performance during his state Atkins hearing, a Miranda claim arguing that certain statements should have been suppressed during his trial, a prosecutorial misconduct claim, and a due process claim arguing that Hill was not competent to stand trial at the time of his convictions. For the reasons set forth below, we AFFIRM the district court’s judgment denying Hill’s habeas petition with regard to the latter three claims, and pretermit the ineffective assistance of counsel claim regarding Atkins because we are granting relief on the merits of the Atkins claim.
I. Background
The facts and legal proceedings surrounding Hill’s conviction and death sentence in 1986 are set out in our earli er opinion. See Hill , 300 F.3d at 681. Because this case centers on the issue of intellectual disability, what follows is an account of the facts and proceedings relevant to that question in this case.

Several evaluations conducted around the time of Hi ll’s trial in 1986 reveal that Hill “has a diminished mental capacity,” a fact acknowledged by the state court after Hill’s Atkins hearing. See Hill, 894 N.E.2d at 112 (summarizing the testimonies of the three experts who testified during the mitigation p hase of the initial trial that Hill was “mentally retarded”). Hill’s IQ at the time of trial ranged from 55 to 68, and his moral development was “primitive”

— essentially that of a two

- year old. Id

. Hill has also demonstrated an “inability to learn basic skills and adjust [his] behavior to changing circumstances” since a very young age. Hall , 134 S. Ct. at 1994. Since his earliest days in school, Hill has struggled with academics. At the age of six, a school psychologist noted that Hill was “a slow lear ning child” and recommended that his teachers “make his work as concrete as possible” without “talking about abstract ideas.” Warren Cty. School Psychologist’s Report, dated Mar. 20, 1973. After kindergarten, Hill was placed into special education classe s for the remainder of his time in the public school system. Hill struggled to keep up academicallyNos. 99

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even in his special education classes and had difficulty remembering even the simplest of instructions. At the age of 15, Hill could barely read or write. Those problems persist today. Indeed, prison records and testimony of prison guards indicate that the prison staff believed Hill to be illiterate, that he could not remember the balance on his commissary account and would often spend more money than was in his account, and that he could not perform even the most basic cleaning tasks without close supervision. 4 See Supp. Atkins App’x at 1325, 1483

- 86, 1510

- 12, 1553, 1784. 5
Hill has also been unable to take care of his hygiene independently from a young a ge. Hill’s school psychologist recalled that, even as a kindergartener, Hill “had a problem with body odor and did not wear clean clothes to school.” Decl. of Karen Weiselberg

- Ross, Warren Cty. School Psychologist ¶¶ 4, 12. During his time in a home fo r children with behavioral issues, Hill could not remember to comb his hair, brush his teeth, or take a shower without daily reminders. Mitigation Hr’g Tr. at 88, No. 85

- cr

- 317 (Ohio Ct. of Common Pleas Feb. 26, 2986). 6 Even in the highly structured envi ronment of death row, Hill would not shower without reminders.
The Supreme Court decided Atkins in 2002 while Hill’s appeal from the district court’s denial of his habeas petition was pending before this court. We remanded the case to the district

court with instructions to remand Hill’s unexhausted Atkins claim to the state court and to stay the remaining claims pending resolution of the Atkins claim. Hill , 300 F.3d at 683. After the case was returned to the state court, three experts

— Drs. David Hammer , J. Gregory Olley, and

4 Some prison guards and officials testified in court or du ring interviews conducted by the experts that Hill properly accounted for the funds in his commissary account and filled out his own commissary forms, had no noticeable difficulties maintaining proper hygiene, and was of average abilities relative to his f ellow death

- row inmates. However, as will be discussed further below, both the Supreme Court and clinical guidelines “caution against reliance on adaptive strengths developed ‘in a controlled setting,’ as a prison surely is.” Moore , 137 S. Ct. at 1050. Thus, while we do not ignore evidence in the record of Hill’s seemingly improved adaptive functioning once he entered the highly regimented environment of death row, we find error in the state courts’ overly emphasizing such evidence without also consideri ng the contradictory evidence highlighted above and without acknowledging the diagnostic limitations associated with evaluating “improved behavior in prison.” See id.

5 The Supplemental Atkins Appendix can be found in the district court record at R. 97 in Hill v. Anderson , No. 4:96

- cv

- 00795 (N.D. Ohio Apr. 30, 2010).

6 The Mitigation Hearing Transcript can be found in the district court record at R. 31 in Hill v. Anderson , No. 4:96

- cv

- 00795 (N.D. Ohio Jan. 28, 1997).Nos. 99

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Nancy Huntsman

— examined Hill and testified over the course of several evidentiary hearings on Hill’s Atkins claim. 7 Dr. Hammer was retained by Hill, Dr. Olley acted as the state’s expert, and Dr. Huntsman was appointed by the trial court. Dr. Hammer concluded that Hill met all three prongs for a diagnosis of intellectual disability. However, Drs. Olley and Huntsman concluded that Hill was not intellectually disabled. After considering the evidence presented on Hill’s claim of int ellectual disability, the state trial court denied Hill’s petition for relief under Atkins , finding that Hill did not exhibit significant adaptive deficits and that any deficits he did have did not manifest before the age of 18. State v. Hill , No. 85

- CR

- 3 17 (Ohio Ct. of Common Pleas Feb. 15, 2006) (unreported). The Ohio Court of Appeals affirmed the trial court over a dissent. State v. Hill , 894 N.E.2d 108 (Ohio Ct. App. 2008). The Ohio Supreme Court declined to review the case, with two justices dissen ting. State v. Hill , 912 N.E.2d 107 (Ohio 2009) (table).
Hill then moved to reopen and amend his habeas petition in this case to include claims under Atkins . The district court denied Hill’s amended petition in a thorough opinion, holding that the defe rential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) mandated denial of Hill’s habeas petition. Hill v. Anderson , No. 4:96

- cv

00795, 2014 WL 2890416, at *51 (N.D. Ohio June 25, 2014). The district court denie d Hill’s petition despite its serious misgivings about the state court’s rejection of the extensive record evidence that provided important diagnostic information regarding Hill’s adaptive functioning and the age of onset of Hill’s intellectual disability. Id . Ultimately, the district court believed AEDPA required acceptance of the state court’s determinations that Hill did not exhibit sufficient adaptive deficits and that Hill’s disability did not manifest before the age of 18.

The district court was ri ght to be skeptical of the state court judgment because it amounted to an unreasonable application of the standard articulated by the Supreme Court in Atkins and as later explained by Hall and Moore

. Specifically, the state court’s determination

was unrea sonable in two ways: First, the state court departed from the requirements of Atkins

7 As part of his Atkins evaluation, Hill w as administered recognized standard tests measuring adaptive behavior by the three experts. The tests took place in a prison conference room. All three experts determined that the results of these tests were not reliable because Hill was “faking” the ans wers and in some instances did not complete the tests, instead breaking down in tears and claiming the tests were “too hard.” As these tests were deemed unreliable, the experts were forced to base their assessments on their interactions with Hill and on i nterviews with prison guards. See Hill , 894 N.E.2d at 113.Nos. 99

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when it disregarded well

- established clinical standards for assessing adaptive deficits by focusing on Hill’s adaptive strengths instead of his adaptive deficits. Second , the trial court ignored clear and convincing evidence that Hill exhibited substantial deficits in both his intellectual and adaptive abilities since long before he turned 18.

II. Standard of Review
The parties dispute the proper standard of review for Hill’s Atkins claims. Hill argues that we should review the state courts’ determinations on adaptive deficits and age of onset as legal conclusions under 28 U.S.C. § 2554(d)(1), which would have us ask whether those decisions amount to an unreasonable app lication of the Supreme Court’s precedents in Atkins and its progeny. The Warden argues that we should instead review those determinations as findings of fact under 28 U.S.C. § 2254(d)(2), which would require us to accept the state court’s findings absent “clear and convincing evidence” to the contrary. 28 U.S.C. § 2254(e)(1).
We agree with Hill that the state courts’ determination on adaptive deficits should be analyzed as a legal conclusion under 28 U.S.C. § 2254(d)(1) because it is merely the result of an application of the standard articulated by the Supreme Court in Atkins and its progeny to the facts as found by the trial court. See Van Tran v. Colson , 764 F.3d 594, 626

- 27 (6th Cir. 2014) (holding that the “state court’s application of Tennessee law with regard to whether [the defendant] is intellectually disabled under Atkins was contrary to clearly established federal law”); Black v. Bell , 664 F.3d 81, 100 (6th Cir. 2011) (“The rules governing what factors may be considered in determining whether a defendant qualifies as mentally retarded under Atkins deal with questions of law.”); Murphy v. Ohio , 551 F.3d 485, 510 (6th Cir. 2009) (reviewing state courts’ resolution of Atkins claim under 28 U.S.C. § 2554(d)(1)). As a result, our review under
AEDPA consists of determining whether the state courts’ conclusion that Hill did not exhibit deficits in two or more adaptive skill sets was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme C ourt of the United States.” 28 U.S.C. § 2254(d)(1). A state court judgment is the result of an unreasonable application of clearly established law for AEDPA purposes when the state court “correctly identifies the governing legal rule but applies it unrea sonably to the facts of a particular prisoner’s case.” Williams v. Taylor , 529 U.S. 362, 408

- 09 (2000).Nos. 99

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However, we agree with the Warden that the state court’s conclusion on the age of onset is better analyzed as a finding of fact under 28 U.S.C. § 2254(d)(2) as it is based entirely on an assessment of the evidence presented during Hill’s evidentiary hearing. Accordingly, our review is limited to the question of whether the state court’s finding that Hill’s intellectual and adaptive deficits did no t manifest before the age of 18 amounts to “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In making that assessment, we are mindful that AEDPA directs us to presume t hat facts decided by the state court are correct absent “clear and convincing evidence ” to the contrary. 28 U.S.C. § 2254(e)(1).
III. Adaptive Deficits
Hill first disputes the Ohio court’s finding that he did not exhibit “subaverage adaptive skills,” reasoning that the state court’s finding amounted to an unreasonable application of Atkins because the court’s analysis on that point disregarded established medical practice. We agree and find that Hill has deficits in at least two adaptive skillsets under Atkins

. A. Standard for Assessing Adaptive Deficits

In Atkins v. Virginia , the Supreme Court held that the Eighth Amendment prohibits the execution of i ntellectually disabled individuals after identifying a “national consensus” against the practice from a survey of state legislation exempting the intellectually disabled from the death penalty. 536 U.S. at 314

- 17. The Court defined “mental retardation” b y reference to two clinical definitions of the phrase: one from the American Association on Mental Retardation’s Mental Retardation: Definition, Classification, and Systems of Supports (9th ed. 1992), and a second from the American Psychiatric Association ’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000). Id . at 308 n.3. Both definitions consisted of three independent elements: (1) significantly subaverage intellectual functioning, (2) significant limitations in adaptive functions, and (3) the first two elements manifested themselves before the age of 18. Id.

Since Atkins , the Supreme Court has twice reaffirmed the centrality of clinical standards to the judicial inquiry regarding a defendant’s eligibility for the death penalty. Mo ore , 137 S. Ct.Nos. 99

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at 1048

- 49; Hall , 135 S. Ct. at 2000. While it is true that the states retain some discretion to “develop[] appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,” Atkins , 536 U.S. at 317 (internal quotation and citation omitted), the Court has been clear that the states’ discretion on that count is not “unfettered.” Moore , 137 S. Ct. at 1048, 1052

- 53 (quoting Hall , 134 S. Ct. at 1998). Specifically, states’ determinations on the question of whethe r an individual is intellectually disabled “must be ‘informed by the medical community’s diagnostic framework.’” Id. at 1048 (quoting Hall , 134 S. Ct. at 2000). When a court “disregards established medical practice” in assessing a criminal defendant’s cl aim of intellectual disability, the error amounts to an unreasonable application of clearly established federal law. Hall , 134 S. Ct. at 1995, 2001; see also Moore , 137 S. Ct. at 1053.

Moore v

. Texas clarified the “prevailing clinical standards” for asse ssing whether a criminal defendant possesses sufficient adaptive deficits to be constitutionally ineligible for execution. Moore , 137 S. Ct. at 1050

- 52. In Moore , the Texas Criminal Court of Appeals concluded that the prisoner did not exhibit sufficient adaptive deficits because he had previously “lived on the streets, mowed lawns, and played pool for money.” Id. at 1050. The Court rejected that approach and admonished courts not to “overemphasize[] [the defendant’s] perceived adaptive strengths.” Id. Instead, courts should follow “prevailing clinical standards,” which “focus[] the adaptive

- functioning inquiry on adaptive deficits .” Id. (emphasis in original) (citing AAIDD

- 11, at 47 (2010) and DSM

- 5, at 33, 38 (2013)). The Supreme Court further noted “even if clinicians would consider adaptive strengths alongside adaptive weaknesses within the same adaptive

- skill domain, neither Texas nor the dissent identifies any clinical authority permitting the arbitrary offsetting of deficits against unconnected strengths in which the [Texas Court of Criminal Appeals] engaged.” Id . at 1050 n.8. The Supreme Court also cautioned against “reliance on adaptive strengths developed ‘in a controlled setting,’ [like] prison” and pointed to clinical guidelines advising t hat strengths observed in prison should be compared to similar skills in general society whenever possible. Id. (citing DSM

- 5, at 38 (2013)).
Although they were decided after the state court decisions in this case, the primary holdings in Hall and Moore were compelled by Atkins . Both are illustrations of what wasNos. 99

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previously established by Atkins

. Harris v. Stovall , 212 F.3d 940, 944 (6th Cir. 2000) (“‘[C]learly established federal law as determined by the Supreme Court of the United States’ means that th e rule sought by petitioner must have been dictated or compelled by [existing precedent].”).

Atkins itself looked to the consensus of the medical community as reflected in medical texts and treatises to define “intellectual disability.” 536 U.S. at 308 n.3. In coming to its conclusion that the focus of the adaptive

- functioning inquiry should be on adaptive deficits and not strengths, the Supreme Court in Moore looked to the medical texts available to it, including the American Association on Intellectu al and Developmental Disabilities (11th ed. 2010), and a second from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). Moore , 137 S. Ct. at 1045. Neither of these editions cited by the Court woul d have been available at the time of Hill’s Atkins hearing. However, the medical literature available in 2008 also required that the focus be on adaptive deficits rather than adaptive strengths. For example, the American Association on Mental Retardation defined “mental retardation” and then provided four assumptions “essential to the application of the definition,” including that “[s]pecific adaptive limitations often coexist with strengths in other adaptive skills or other personal capabilities.” AAMR

- 9 (1992). As mentioned above, this source was cited by the Supreme Court in Atkins in order to define intellectual disability. 536 U.S. at 308 n.3. Additionally, a later edition of the American Association on Mental Retardation’s manual says that intell ectually disabled persons may have “strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.” AAMR

- 10, at 8 (2002).
Conseque ntly, the Ohio Court of Appeals was required by Atkins and the medical literature available to it in 2008 to assess whether Hill had adaptive skill deficits in two or more categories, and not to focus on Hill’s adaptive strengths. Our use of Moore and Hal l is limited to comply with AEDPA, but our conclusion regarding what Atkins clearly established is buttressed by the Court’s reasoning in Hall and Moore . In Hall , for instance, the Court stated that it “reads Atkins to provide substantial guidance on the definition of intellectual disability,” 134 S. Ct. at 1999, and the Court determined that Florida had “misconstrue[d] the Court’s statements inNos. 99

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Atkins ” in refusing to allow defendants to present evidence of intellectual disability if their IQ scores exceed ed 70. Id. at 2001. And in Moore , the Court described the Texas Court of Criminal Appeals’ “conclusion” that the defendant was not intellectually disabled as “irreconcilable with Hall .” 137 S. Ct. at 1049. Such statements indicate that Atkins dictated the holding in Hall , and Hall , in turn, dictated the holding in Moore

. In addition, the Moore Court described a 2015 case

— Brumfield v. Cain , 135 S. Ct. 2269 (2015)

— as “relying on Hall to find unreasonable a state court’ s conclusion that a score of 75 precl uded an intellectual

- disability finding.” 137 S. Ct. at 1049. Because Brumfield reached the Supreme Court on collateral review and the state post

- conviction rulings on the defendant’s Atkins claims preceded Hall , the Supreme Court’s reliance on Hall in B rumfield makes clear that Hall ’s principal holdings were compelled by Atkins . Finally, a recent decision by our court discussed Hall and Moore in reviewing a district court’s denial of an Atkins claim, even though the district court’s decision predated Ha ll and Moore

. Black v. Carpenter , 866 F.3d 734, 744 (6th Cir. 2017). Black therefore corroborates this panel’s conclusion that the holdings of Moore and Hall were required by Atkins

. B. Ohio Courts’ Application of Atkins
Contrary to Atkins , the Ohio courts overemphasized Hill’s adaptive strengths and relied too heavily on adaptive strengths that Hill exhibited in the controlled environment of his death

row prison cell. In so doing, they unreasonably applied clearly established law.
Ohio has adopted t he three

- prong standard set forth in Atkins for evaluating a claim of intellectual disability. State v. Lott , 779 N.E.2d 1011 (Ohio 2002). In Lott , the Supreme Court of Ohio specifically approved the definition of intellectual disability set forth in the then

- current editions of the diagnostic manuals. Id. at 1014. Applying the standards in those manuals, individuals had significant limitations in adaptive skills if they exhibited deficits in at least two of the following ten areas: communication, self

- care, home living, social skills, community use, self

- direction, health and safety, functional academics, leisure, and work. 8

8 The later editions of the AAIDD Manual have moved away from this scheme of categorization, instead forming three “clusters” of related skills and requiring a significant limitation in one of thos e broader domains.Nos. 99

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In this case, the Ohio appellate court correctly set forth the three

- prong Atkins standard as adopted by the Ohio Supreme Court in Lott . It also correctly noted that the second criterion under Lott requires the defendant to demonstrate “significant limitations in two or more adaptive skills, such as communication, self

- care, and self

- direction.” Hill , 894 N.E.2d at 113 (emphasis ad ded). The Ohio court then veered off track when it disregarded the prevailing clinical practice documented in the medical literature by placing undue emphasis on Hill’s adaptive strengths, as opposed to his adaptive weaknesses, and by relying too heavily on the observations of prison guards concerning Hill’s behavior in the highly regimented environment of his prison block. Id

. at 124

- 25.

1. The Ohio Courts Inappropriately Focused on Hill’s Adaptive Strengths

The Ohio courts’ conclusion that Hill did not demonstrate significant limitations in two or more adaptive skill areas was the result of an inappropriate focus on Hill’s adaptive strengths instead of the constitutionally required analysis of Hill’s adaptive weaknesses. In determining that “Hill’s ada

ptive skills are inconsistent with a mentally retarded individual,” the state trial court focused extensively on Hill’s interview with a reporter, his demeanor in interacting with law enforcement and the legal system, and the circumstances surrounding the Fife murder. State v. Hill , slip op. at 73

- 77. Those supposed adaptive strengths convinced the state trial court that Hill could not be intellectually disabled because he had “remarkable” communication and vocabulary skills and was self

- directed. Id . at 74. Even assuming the truth of those findings

— though there is substantial evidence in the record to contradict them

— they demonstrate only that communication and self

- direction may be some of Hill’s strengths, and “prevailing clinical standards” hold that such strengths cannot be used to discount demonstrated weakness in other areas of adaptive functioning. Moore , 137 S. Ct. at 1050. Even cursory analysis of the evidence from the Atkins hearing reveals that Hill has had consistent and significant limitat ions in at least two identified areas of adaptive functioning

— functional academics and hygiene/self

- care

— since

“Conceptual” skills include language skills, reading and writing abilities, self

- direction, and grasping concepts of money. These conceptual skills may be collectively labeled as functional academics. “Social” skills focus on interper sonal relationships, responsibility, self

- esteem, gullibility/naïveté, following rules/obeying laws, and avoidance of victimization. “Practical” skills focus on self

- care and daily living. Such skills include preparing and eating meals, dressing, toiletin g, personal mobility and use of transportation, occupational skills, health care, and maintenance of safe environments.Nos. 99

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childhood. The record also supports finding limitations in two additional areas

— social skills and self

- direction.
With respect to functional aca demics, Hill was considered “mentally retarded” by the Warren City Schools. He was diagnosed as mildly mentally retarded, “trainable mentally retarded,” or “educable mentally retarded” several times before he turned 18, beginning with the recognition that he was a “slow learning child” when he began formal schooling at age 6.
He scored below 70 on every IQ test administered during his school years. He attended special education classes for the entirety of his school career, which meant that all of his ac ademic classes were taught at a very basic level. He was “mainstreamed” only in physical education and music, and struggled even there to keep up with and socialize normally with his peer group.
T here is no record of him taking “mainstream” classes in an y academic subject area, i.e., math, reading, or history. At age thirteen, he was sent to a school for intellectually disabled children, and was transferred to another, similar school at fifteen because of poor academic achievement and behavior. At seven teen years old, after being arrested for, and pleading guilty to, two felony rape charges, the juvenile court placed Hill in a facility that housed youth offenders with mental disabilities or emotional problems. There, Hill completed ninth grade in specia l education classes at age 18. After being released, he returned to high school, but Fife’s murder occurred six months later.
At age six, Hill did not know his age, but thought he was nine. His reading and verbal skills were at the five

- year

- old level an d he had a mental age of four years and six months. At age 8 and 8 months, Hill was considered functioning at a “high kindergarten level.” At age 13, he was functioning at the “mid

- 2nd grade level” in reading and the “mid

- 1st grade level” in arithmetic. Also when Hill was 13

- years

- old, a school psychologist set out “special instructional recommendations” that included teaching Hill his address and phone number, as well as how to tell time. He exhibited weaknesses in reasoning ability, originality, verba l interaction, and a lack of intellectual independence. By 14, he was reading at a first

- grade level and his math skills were at a third

- grade level, and he still had not mastered writing his own signature. His teacher was working on self

- control skills that would generally be mastered by a kindergarten student, including “working without being disruptive” and not touching other students inappropriately.Nos. 99

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Teachers set academic objectives like learning to: tell time in five

- minute intervals; write his

own signature; shower regularly; put soiled clothing in the appropriate place; and eat and drink in a manner appropriate in a school setting. Hill was described as hyperactive and needing to complete tasks “one step at a time.”
The record also demonstrates that Hill was deficient in hygiene and self

- care. At the age of 14, he still needed to be told to shower regularly, brush his teeth, and apply deodorant every day. He would not independently follow through and take care of hi s hygiene unless he was told to do so. At approximately age 16, a group home officer noted that although Hill was “improving in his personal hygiene,” he still “need[ed] constant reminder[s] to shower, brush his teeth, etc.[.]” Hill continued to have pro blems with his hygiene in prison and had to be reminded frequently to groom himself.

The record also demonstrates Hill had limitations in the area of social skills. For example, the district court pointed to the testimony of psychologists who spoke to H ill’s “ poor self

- esteem, inability to interpret social situations and create positive relationships, and [the fact] that he was easily influenced by people, gravitated toward an antisocial peer group, and did not respond appropriately to authority figures. ” Hill , 2014 WL 2890416, at *38. Hill’s school and court records demonstrate that he had trouble making friends. At 17, Hill was described as “socially constricted” and possessing “very few interpersonal coping skills.”

Hill also showed limitations in at least one more area

— self

- direction. Hill was described as “easily led” in both his school and court records, and from periods both before and after he committed serious crimes while apparently acting alone. In school, Hill was described as immature a nd “easily led by others into trouble around school,” like fighting. He was vulnerable to exploitation by older individuals, displayed inappropriate and immature behaviors in class, rarely considered the consequences before acting, and had trouble conform ing his behavior to the rules or the law. When Hill was 13, he was described as exhibiting a “great deal of impulsivity.” When Hill was 17, he was evaluated by a psychologist who concluded that he had poor judgment, “d[id] not think of consequences,” was “highly suggestable,” and “was ‘likely to be exploited’” if placed in halfway home for adults “because of his ‘passivity and limitedNos. 99

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intellectual ability.’” Another report from that same time expressed concern about his tendency to follow others.

In addi tion to his significant limitations in functional academics, self

- care, social skills, and self

- direction, the record also demonstrates that Hill has never lived independently, never had a driver’s license or a bank account, never been able to perform a jo b without substantial guidance from supervisors, was labeled “functionally illiterate” at school and in prison, could never read or write above a third

- grade level, and could never adequately sign his own name.
In sum, the record is clear that Hill was u niversally considered to be intellectually disabled by school teachers, administrators, and the juvenile court system, and that those same authorities documented deficits in several adaptive skills areas. Hill consistently performed very poorly in school (functional academics); there was consistent documentation that he had trouble maintaining proper hygiene despite reminders (self

- care); he had trouble making friends and responding appropriately to authority figures (social and communication); and he was described as a follower, easily led, and vulnerable to exploitation by adults (self

- direction). The record shows that these deficits largely continued into adulthood, particularly with respect to self

- care and functional academics. When these facts are applied to the clinical standards articulated by the Supreme Court in Atkins and by the Supreme Court of Ohio in Lott , they overwhelmingly indicate that Hill had significant limitations in at least two, and probably four, adaptive skill areas. Any apparen t strengths are not relevant to the inquiry.
The Ohio court’s finding to the contrary does not comport with the clinical guidelines ratified by the Supreme Court for assessing adaptive deficits. Hill’s ability to communicate effectively and to direct his actions to a specified goal does not mean that he did not have significant limitations in other adaptive skill areas. Instead of marshalling facts in opposition to the clear conclusion from the record evidence that Hill had significant limitations in at l east functional academics and self

- care, the Ohio court rested its conclusion on Hill’s relative strengths in communication and self

- direction. And even within those two areas, the Ohio courts failed to grapple with the evidence in the record indicating t hat Hill’s perceived strengths were actually weaknesses.Nos. 99

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To the extent the Ohio courts addressed evidence in the record pointing to adaptive deficits, they turned to inapposite or irrelevant facts to “arbitrar[ily] offset[]” such evidence of deficits

— a p ractice Moore expressly rejects. See 137 S. Ct. at 1050 n.8 (“[E]ven if clinicians would consider adaptive strengths alongside adaptive weaknesses within the same adaptive

- skill domain, neither Texas nor the dissent identifies any clinical authority permi tting the arbitrary offsetting of deficits against unconnected strengths in which the [Texas Court of Criminal Appeals] engaged.”). For instance, the state trial court discounted evidence of Hill’s “consistently poor” academic performance by pointing to e vidence in the record that Hill was “a healthy boy described frequently by his teachers as lazy, who admits to experimenting with drugs and alcohol, who assaults the defenseless, steals frequently and lies a lot,” and who, by age 18, could “write in cursiv e, but prefer[red] to print.” Hill , slip op. at 70. The trial court then pointed to a teacher’s note, written in October 1981, describing Hill as “a bright, perceptive boy with high reasoning ability.” Id. The Ohio appellate court summarized the eviden ce regarding Hill’s childhood academic performance in similar terms, stating that “Hill’s public school records amply demonstrate a history of academic underachievement and behavioral problems,” and noting that he “was described by at least one of his spec ial education teachers as ‘a bright perceptive boy with high reasoning ability.’” Hill , 894 N.E.2d at 124. The court also noted that while there “are references to Hill’s being easily led or influenced by others, the trial court noted that much of Hill’s serious misconduct, including two rapes committed prior to Fife’s murder, occurred while he was acting alone.” Id

. The problems with the courts’ analyses of Hill’s academic performance are manifold. As the district court noted, “the court’s finding that Hill ‘underachieved’ academically or in any other adaptive skill as a child is squarely contradicted by the record. This Court could not find one reference in Hill’s school records by a teacher, school administrator, psychologist, psychiatrist, or anyone else suggesting that Hill was capable of performing at a substantially higher level but chose not to.’” Hill , 2014 WL 2890416, at *26. And as clinical guidelines have long recognized

— and as the experts in this case testified

— evidence of behavioral probl ems or a conduct disorder simply does not undermine a simultaneous finding of intellectual disability.
See Atkins Hr’g Tr. at 475 (Hammer test.); id. at 959

- 60 (Huntsman test.); id. at 573 (Olley test.) (“[I]f he’s having conduct problems in school, that’s neither here nor there to a diagnosis ofNos. 99

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mental retardation.”). The courts incorrectly discounted the fact that Hill was easily led because he committed crimes on his own. Under prevailing medical standards, however, Hill’s prior criminal behavior shoul d not be given weight in this analysis. Finally, the Ohio courts’ focus on a note drafted by a teacher in a school for intellectually disabled children describing Hill as “‘bright’ and ‘perceptive,’ with ‘high reasoning ability’” was, as the district cour t put it, “almost cynical in its selective misrepresentation of the facts.” Hill , 2014 WL 2890416, at *27. Throughout its opinion, the district court referred to certain findings and inferences by the Ohio courts as “troubling,” “irrelevant,” “problematic ,” and “squarely contradicted by the record.” Id

. at **24

- 27.
The Ohio courts’ handling of evidence regarding self

- care is equally troubling. The Ohio Court of Appeals’ sole reference to Hill’s deficits with regard to self

- care was its summary of testi mony provided by a prison official “that Hill’s self

- care was ‘poor but not terrible’ and that Hill had to be reminded sometimes about his hygiene.” Hill , 894 N.E.2d at 125. Such a statement downplays the record’s extensive chronicling of Hill’s struggle s with hygiene, including the fact that an individual education plan established for Hill when he was nearly fourteen years old included an “[a]nnual [g]oal and [o]bjective” of helping Hill “learn to shower when necessary” and to “put soiled clothing in th e appropriate place.” Atkins Hr’g Tr. at 147, 193 (Hammer test.).
The state trial court also unduly relied on Hill’s “initiative in coming to the police” after Fife’s death, as well as his alleged efforts to misdirect the investigation and fabricate an al ibi while under interrogation, as “evidence of Hill’s ability concerning self

- direction and self

- preservation.” See Hill , 2014 WL 2890416, at *33. As the district court noted, “‘[s]elf

preservation’ is not among the adaptive skills measured under the cli nical definitions of intellectual disability,” and “self

- direction” covers a host of behaviors

— including “initiating activities appropriate to the setting” and “demonstrating appropriate assertiveness and self

advocacy skills”

— either unrelated or directly contrary to Hill’s decision to make contact with the police. Id. Contrary to the Ohio courts, the district court found Hill’s “performance” during the police interrogation revealed him to be “childlike, confused, often irrational, and primarily self

- defe ating,” and characterized Hill’s attempts to change his story under pressure as failing toNos. 99

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“skillfully hid[e] his part” in Fife’s death. Id. at *34. These actions were “quite the opposite of adaptive.” Id. This is especially true where Hill’s decision to approach the police did not “resolve his problems,” but “succeeded only in immediately drawing the police’s attention to himself.” Id

. Hill’s behavior during questioning also undermines the conclusion that he had strengths in self

- direction. For exa mple, Hill often changed his story or embellished his statements “at the slightest suggestion by the police, even when the information at issue was irrelevant or incriminating.” Id . at *35. While the Ohio court focused on what it saw as Hill’s abilities in the area of “self

- direction” from around the time of the crime, it also ignored other evidence from around the same time illustrating that Hill had adaptive deficits. For example, at Hill’s mitigation hearing, three psychologists testified that Hill wa s intellectually disabled at that time and had extremely poor adaptive functioning. On appeal, the Ohio Supreme Court and Court of Appeals found these psychologists’ testimony credible and concluded that Hill was disabled. See State v. Hill, 595 N.E.2d 8 84, 901 (Ohio 1992); State v. Hill, Nos. 3720, 2745, 1989 WL 142761, at ** 6, 32 (Ohio Ct. App. Nov. 27, 1989).
It is true, of course, that the state trial court expressly “relie[d] upon the expert opinion of Drs. Huntsman, Hancock and Olley to conclude” that Hill had failed to demonstrate adaptive deficits. Hill , slip op. at 81. We have previously denied Atkins r elief in an AEDPA case arising out of Ohio where, as here, two of the three mental health experts testified that the petitioner was not intellectually disabled. O'Neal v. Bagley , 743 F.3d 1010, 1023 (6th Cir. 2013) (“With expert testimony split, as it oft en is, the state court chose to credit Dr. Chiappone and Dr. Nelson over Dr. Tureen, and we cannot say from this vantage that it was unreasonable to do so.”). However, O’Neal is distinguishable on its facts and Hill’s claim for Atkins relief is much stron ger than the petitioner’s claim in O’Neal . For example, in O’Neal there was insufficient evidence to prove that the petitioner met the first prong in demonstrating “significantly subaverage intellectual functioning.” Id . at 1022. Here, by contrast, Hill ’s IQ is so low that the Warden concedes that Hill satisfies the first prong. Additionally, O’Neal’s claim for Atkins relief also failed because his adaptive deficits may well have been better explained by his drug abuse and personality disorder rather th an organic mental illness. Id . at 1022

- 23.Nos. 99

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Even though Atkins requires that determinations regarding intellectual disability be informed by the medical community, as discussed above, the Ohio courts should have rejected the expert testimony in this case

. Requiring courts to be “informed by the medical community’s diagnostic framework,” Moore , 137 S. Ct. at 1048 (quoting Hall , 134 S. Ct. at 2000), does not authorize courts to tether their decisions to expert opinions that depart from that “diagnostic fra mework.” As Dr. Olley recognized, and as the clinical guidelines make clear, “the AAMR manual specifically says you would expect that individual[s] would have some relative strengths and some relative weaknesses.” Atkins Hr’g Tr. at 557 (Olley test.). A nd yet neither Dr. Olley nor Dr. Huntsman appeared to apply this crucial aspect of the clinical guidelines in assessing Hill’s adaptive deficits. 9 Consequently, many of the same criticisms we have of the trial court’s analysis of Hill’s Atkins claim apply equally to Dr. Olley’s and Dr. Huntsman’s testimony.
Dr. Huntsman’s report focuses almost exclusively on Hill’s perceived adaptive strengths

—

his “remarkable memory for the history of his case,” his detailed and “very complex explanation for how Raymond Fi fe came to be killed,” and the “competencies” observed by staff members in prison. Supp. Atkins App’x at 1141. (Huntsman Report at 16.) Her testimony at the Atkins hearing was no different. Atkins Hr’g Tr. at 907 (“[I]t’s my opinion that he clearly demo nstrates behavioral capacities that are beyond retarded level.”) (emphasis added). Dr. Olley’s report and testimony suffer the same defects. See Supp. Atkins App’x at 1125 (Olley Report at 8) (“The available information on Mr. Hill’s current functioning does not allow a diagnosis of mental retardation .

. . . Mr. Hill’s memory was very good in court on April 15, 2004, when he provided details of events. In [a n] interview during this evaluation, Mr. Hill showed good memory of 20

- year old events and the ability to express a complex explanation of the crime in order to support his claim of innocence.”); Atkins Hr’g Tr. at 586 (defending his opinion, in part, beca use of the way in which Hill exhibited “a kind of thinking and planning and integrating complex information that is a higher level than I have seen people with mental retardation be able to do”).

9 Dr. Hancock, the third expert on whom the state trial court expressly relied, did not assess Hill’s adaptive deficits. Instead, he was called upon “to review the test equating method used [by yet another expert, Dr. Sara Sparrow, whose opinion Hill wished the court to consider] to interpret scores in adaptive behavior testing of Danny Lee Hill and to examine other psychometric issues tha t may affect appropriate diagnostic process in the case.” Supp. Atkins App’x at 3093. (Hancock Supp. Report at 1.)Nos. 99

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In short, Drs. Olley and Huntsman adopted precisely the so rt of analysis the Supreme Court has foreclosed. Courts cannot bypass the Supreme Court’s clear instruction not to “disregard[] established medical practice,” Hall , 134 S. Ct. at 1995, by relying on experts who have done just that. Consequently, it was u nreasonable under the circumstances of this case for the Ohio courts to rely on Dr. Olley’s and Dr. Huntsman’s expert opinions in finding that Hill was not intellectually disabled. The state courts’ failure to consider adequately Hill’s adaptive deficits amounts to a sufficiently unreasonable application of the Supreme Court’s decisions in Atkins , Hall , and Moore to warrant issuance of the writ.

2. The Ohio Courts Gave Undue Weight to Hill’s Behavior in Prison
Although the Ohio courts’ reliance on Hill’s adaptive strengths without addressing the overwhelming evidence of his weaknesses in the areas of functional academics and self

- care would be enough to justify issuance of the writ, we also hold that the Ohio courts unreasonably applied clearly established law by placing undue weight on a criminal defendant’s behavior in prison when assessing his or her adaptive skills.
As mentioned above, Atkins drew from the consensus of the medical community as reflected in medical texts and treatises to define intelle ctual disability. 536 U.S. at 308 n.3. The medical literature available in 2008 prohibited the assessment of adaptive skills in atypical environments like prison. For example, the 2002 American Association on Mental Retardation says “[l]imitations in pr esent functioning must be considered within the context of community environments typical of the individual’s age peers and culture.” AAMR

- 10, at 8. It continues: “This means that the standards against which the individual’s functioning must be measured are typical community

- based environments, not environments that are isolated or segregated by ability.” Id . As the district court correctly noted, “death row is a segregated, highly structured and regulated environment” and reliance on Hill’s prison reco rds is problematic because they evaluate Hill’s adaptive skills against those of other inmates on death row. Hill , 2014 WL 2890416, at *42.
Further, the district court noted that the weight of the testimony from various death row prison officials was limi ted by their potential bias against the inmates they were charged withNos. 99

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guarding, as well as the shortcomings affecting lay opinions about intellectual disability generally. Id. at **42

- 43. And in any event, as the district court noted, many of the prison officials’ statements were “rife with contradictions, with themselves and each other.” Id . at *43.
Assessing Hill’s adaptive deficits as an adult is particularly challenging given the absence of any reliable testing to measure Hill’s adaptive functioning and the lack of reliable evidence of how Hill would have functioned as an adult in general society as he has been incarcerated for all but six months of his adult life. Evidence of adaptive functioning in this kind of controlled setting is of limited val ue because inmates do not have the same opportunities to acquire new skills or show weaknesses in existing skills. Given the lack of evidence regarding Hill’s likely adaptive performance as an adult in the general community, the Supreme Court and establis hed clinical guidelines require consideration of all available evidence. Specifically, the testimony of prison guards who have known Hill only in a correctional setting should lead the court to treat their observations with a degree of skepticism. United States v. Hardy , 762 F. Supp. 2d 849, 899

- 900 (E.D. La. 2010) (“An institutional environment of any kind necessarily provides ‘hidden supports . . . .’”) (citing AAIDD

- 11, at 45 (2010)).
Here, the state court assessed Hill’s adaptive skills almost exclusi vely by reference to the testimony of prison guards about Hill’s behavior in a “controlled” prison environment, without mention of documentary evidence of Hill’s deficits in a number of adaptive skill areas both before and after his incarceration. It did not mention any review of prison records, which reflect that prison officials always recognized Hill to be mentally incapacitated or “slow.” As when he was in school, Hill was considered to be illiterate in prison. He was understood to have a “very limit ed writing ability,” and he had other inmates write for him. Notes written from Hill to prison officials make clear that he had trouble keeping track of his prison account balance. According to fellow inmates, when Hill was given a task, he had to be car efully supervised because he could not remember how to complete the assigned task. At least one prison official reported that Hill was able to perform his job as a porter because the cleaning supplies were sorted by color, so Hill was not required to read the supplies’ instructions.
The state courts’ emphasis of and reliance upon prison guard testimony about Hill’s behavior in prison without consideration of record evidence suggesting Hill had significantNos. 99

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limitations even in the “controlled setting” of his cell block goes against both the Supreme Court’s precedent and long

- established clinical practice. That error compounds the trouble with the state court’s emphasis of Hill’s strengths without independent consideration of his adaptive weaknesses because m uch of the evidence supporting the court’s finding of Hill’s adaptive strengths was based on observations of and testimony about Hill’s behavior in a “controlled setting” as opposed to in the general community. Because that analysis disregards prevailing clinical standards, it amounts to an unreasonable application of the Supreme Court’s decisions in Atkins , Hall , and Moore

. Because “[t]he medical community’s current standards supply one constraint on States’ leeway” in defining who is “intellectually disabled,” the Ohio courts were not free to disregard the medical consensus on the appropriate standard for assessing whether H ill exhibited adaptive deficits. Moore , 137 S. Ct. at 1053. Application of the correct standard to the record evidence overwhelmingly supports the conclusion that Hill exhibited substantial deficits in at least two adaptive skillsets ; consequently we dis regard the state court’s determination because it was the result of an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States” under 28 U.S.C. § 2254(d)(1).
IV. Age of Onset
We also reject th e state court’s finding that Hill’s intellectual and adaptive deficits did not manifest themselves prior to the age of 18 because clear and convincing evidence suggests otherwise. See 28 U.S.C. § 2254(e)(1). In fact, as noted above, Hill’s disability was extensively documented before he turned 18 because he spent all of his school years in programs for the intellectually disabled and the juvenile justice system. The record is replete with comments from teachers concerning Hill’s lagging academic performa nce, his poor memory, his lack of personal hygiene, his immature and inappropriate behavior in relation to his peers, and his tendencies as a follower. Hill , 894 N.E.2d at 128

- 29 (O’Toole, J., dissenting). In addition to school records, the

state court r ecord contains testimony to similar effect from several staff members at a halfway house in which Hill resided as a teenager, as well as a counselor at the juvenile correction facility where he was placed.Nos. 99

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All the of these significant adaptive skill defic its manifested themselves before Fife was killed in 1985 and, as noted by the experts, there was no reason to suspect that Hill was malingering as a child despite his apparent malingering on the assessments administered in April 2004. The records cover th e time frame from 1973 to 1984, six months before the murder for which Hill was sentenced to death, and 20 to 30 years before the Supreme Court decided Atkins . Hill could not have been faking intellectual disability to avoid the death penalty. Accordingl y, we reverse the state courts’ conclusion on the age

- of

- onset prong as it is contradicted by clear and convincing evidence.
We recognize, of course, that state court determinations of fact are entitled to a great deal of deference. But “[e]ven in the con text of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller

- El v. Cockrell , 537 U.S. 322, 340 (2003). Rather than address the abundant evidence in the record of Hill’s adaptive deficits as a child and teenager, the state trial court focused on his ability to engage in “a one

- man crime spree at the age of 17” and his ability to “hold his own during police interrogation of the Fife murder.” Hill , slip op. at 82. In so doing, the trial court inappropriately focused on perceived adaptive strengths, ignored clinicians’ warnings not to conflate criminal behavior with adaptive functioning, see, e.g. , Atkins Hr’g Tr. at 208

- 09 (Hammer test.), and failed to acknowledge that Hill’s performance during the police interrogations was, in the words of the district court, “childlike, confused, often irrational, and primarily self

- defeating.” Hill , 2014 WL 2890416, at *34. In a three

- sentence summary, the state appellate court affirmed the trial court’s findings. Hill , 894 N.E.2d at 126. Such selective reliance on mostly irrelevant pieces of evidence to find that Hill lacked adaptive deficits before the age of 18 constitutes “an unr easonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
Consequently, we conclude that the state court’s finding that Hill’s intellectual and adaptive deficits did not manifest before the age of 18 amounts to “a n unreasonableNos. 99

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determination of the facts in light of the evidence presented in t he State court proceeding.” 28 U.S.C. § 2254(d)(2). 10

V. Suppression of Pretrial Statements to the Police
In addition to challenging his eligibility for the death penalty aft er Atkins , Hill raised several challenges to his conviction in his habeas petition. Because we remanded his case to the state court after Atkins was decided in 2002, we did not reach the merits of those claims. Hill v. Anderson , 300 F.3d 679 (6th Cir. 20 02). We do so now and AFFIRM his conviction.
Hill contends that the Ohio courts unreasonably applied clearly established federal law in determining that Hill’s statements to police were admissible. Hill maintains that his statements were “involuntary a nd false” because: his intellectual disability made him especially vulnerable to police coercion; his intellectual deficiencies were known by the police, including interrogators Sergeant Thomas Stewart, Sergeant Dennis Steinbeck, and his physically abusiv e uncle, Detective Morris Hill; the police made statements to Hill that led him to believe that denying guilt was “hopeless”; and Hill lacked the intellectual capacity to understand the legal consequences of the statements he made (and the police recorded) while he was at the Warren police station.
Because the Ohio courts rejected this claim on the merits as part of Hill’s direct appeal, see Hill , 595 N.E.2d at 890

- 91; Hill , 1989 WL 142761, at **5

- 8, Hill must show that the state courts’ decisions involv ed an unreasonable application of clearly established federal law, as determined by the Supreme Court. S ee 28 U.S.C. § 2254(d)(1). “[A]n unreasonable application of th[e Supreme Court’s] holdings must be objectively unreasonable, not merely wrong; even

c lear error will not suffice.” White v. Woodall , 134 S. Ct. 1697, 1702 (2014) (citation and quotation marks omitted).

In Miranda v. Arizona , 384 U.S. 436 (1966), the Supreme Court held that “[a] suspect in custody must be advised

. . .[,] ‘prior to any que stioning[,] that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the

10 As we have decided the merits of Hill’s Atkins claim in his favor, we pretermit discussion of Hill’s claim of ineffective assistance of coun sel during his Atkins proceedings in state court.Nos. 99

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presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any q uestioning if he so desires.’” Berghuis v. Thompkins , 560 U.S. 370, 380 (2010) (quoting Miranda , 384 U.S. at 479). This holding was necessitated by the Supreme Court’s acknowledgement that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself.” Dickerson v. United States , 530 U.S. 428, 434

- 35 (2000) (citation, quotation marks, and ellipses omitted). Thus, “[w]hen police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evid ence at trial in the State’s case in chief.” Oregon v. Elstad , 470 U.S. 298, 317 (1985); see also Lego v. Twomey , 404 U.S. 477, 487

- 88 (1972) (“[ Miranda ] excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained.”).
In this case, it is undisputed that Hill was given Miranda warnings and signed a waiver prior to making the recorded statements that he sought to suppress at trial. Hill’s challenge, then, is to the validity of that waiver. He argues that because his waiver was not knowing, intelligent, and voluntary, it was invalid.
A suspect may waive his Miranda rights only if “the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine , 475 U.S. 412, 421 (1986) (cit ation and quotation marks omitted). The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or dece ption. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation [reveals] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Id. (citations and quotation marks omitted). For a waiver to be knowing and intelligent, the suspect must be “fully advised of [his] constitutional privilege[s].” Colorado v. Spring , 479 U.S. 564, 574 (1987). To be voluntary, a confession may not be “the pr oduct of coercion, eitherNos. 99

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physical or psychological.” Rogers v. Richmond , 365 U.S. 534, 540 (1961). However, “[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda ’s concerns.” Illinois v. Perkins , 496 U.S. 292, 297 (1990); see, e.g. , Oregon v. Elstad , 470 U.S. 298, 317 (1985) (“[T]he [Supreme] Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily.”) (citation omitted).
“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary . . . .’” Colorado v. Connelly , 479 U.S. 157, 167 (1986). Although a suspect’s mental condition may be a “significant factor in the ‘voluntariness’ calculus,” that “mental condition, by itself and apart from its relation to official coercion, should [n]ever dispose of the inquiry into constitutional ‘voluntariness.’” 11 Id. at 164.

O n December 16, 1985, the Ohio state trial court held a hearing on Hill’s motion to suppress his audio

- and video

- taped statements to the police. 12 At the suppression hearing, witnesses testified to the following facts.
On September 12, 1985, two days after Fife was attacked, Hill went to the Warren Police Department and approached Sergeant Stewart to talk about that “boy being beat up in the field.” R. 28, PageID# 2748

- 49. Stewart, who was a friend of Detective Hill an d had known (Danny) Hill since he was approximately six years old, agreed to talk to Hill in the “Narcotics Room.” Id

. at 2750

- 51, 2782. Stewart testified that Hill had come to the police station voluntarily, i.e., that no one had “brought him in,” and H ill’s testimony corroborated this assertion. Id. at 2751; R. 29, PageID# 3130.

11 Under Supreme Court precedent, a person who meets the standard for intellectual disability may not be executed. As discussed extensively above, we find that Hill is intellectually disabled and is entitle d to have the writ issue with respect to his sentence. However, the requirements for determining whether someone is intellectually disabled under Atkins and Lott are different from the requirements for determining whether a waiver is knowing and voluntary under Miranda . And a person who is intellectually disabled may still be able to knowingly and voluntarily waive his Miranda rights.

12 The transcript of the suppression hearing can be found in the district court record at R. 28 and R. 29 in Hill v. Anderso n , No. 4:96

- cv

- 00795 (N.D. Ohio Jan. 28, 1997). Because the pagination in the original transcript is unclear, we will cite to the pagination used by the district court.Nos. 99

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Once in the Narcotics Room, Hill told Stewart that he had seen another boy, Reecie Lowery, riding the bike of the boy “who was beat up.” R. 28, PageID# 2751

- 52. When Stewart asked Hill, “How do you know it’s the boy’s bike?”, Hill responded, “I know it is.” Id . at 2752

. Hill then told Stewart about the bike’s location and encouraged Stewart to “go out and get the bike” before Lowery put it back in the wooded field where Fif e was attacked. Id. After Hill told Stewart that he was willing to show him where the bike was located, Stewart and Hill began talking about various persons, including Tim Collins and Tim Combs (Hill’s co

- defendant). Hill insinuated that both Collins an d Combs liked boys and might have been the ones who attacked Fife. At some point during their talk, Hill mentioned that Fife was choked with his underwear. Id . at 2756

- 57.
Eventually, Stewart drove Hill to look for the bike, but because it was raining a nd visibility was poor, Stewart and Hill did not go to the wooded field. Instead, Hill showed Stewart where Combs lived. Id . at 2753

- 54. After dropping Hill off at his house, Stewart compiled a report that he shared with his fellow officers, including S ergeant Steinbeck. Id . at 2755, 2757

- 58.
The next day, September 13, 1985, Steinbeck went to Hill’s home around 9:30 or 10:00 in the morning to follow

- up on the information that Hill had given to Stewart. Steinbeck asked Hill to come talk to him at the p olice station and Hill agreed. Id . at 2762

- 63, 2881. Hill was driven to the police station in the front seat of Steinbeck’s police cruiser and was not booked, fingerprinted, or placed under arrest. Steinbeck read Hill his Miranda rights aloud, asked Hil l if he understood those rights, and had Hill sign a waiver of his Miranda rights before questioning Hill off and on for approximately three hours. Id . at 2863

- 64, 2882

- 84. During those three hours, Hill never asked for the questioning to stop, tried to leave, or asked to see an attorney. Id

. at 2865

- 66, 2885

- 89. After talking to Hill, Steinbeck transcribed a copy of Hill’s statement, which also included a recital of his Miranda rights. However, Hill did not sign the statement that day because Steinbec k had forgotten to ask him to do so after telling Hill he could go home with his mother. Id . at 2866

- 69, 2889

- 90.
On September 16, 1985, both Steinbeck and Detective Hill went to Hill’s home, ostensibly to ask Hill to sign his statement from September 13 and to ask Hill’s mother for aNos. 99

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written statement regarding Hill’s alleged alibi. After putting up some initial resistance to speaking to the police again, Hill, at the behest of his mother, agreed to come down to the police station, this time accompanied by his mother. Hill was not placed under arrest, booked, fingerprinted, or handcuffed. Id . at 2869

- 70, 2890

- 92, 2899

- 2901, 2930

- 32.
In the interrogation room, and apparently separated from his mother, Hill was verbally advised of his Miranda rights by D etective Hill. Id . at 2871, 2901

- 02, 2933. Hill indicated that he understood his rights. Id . at 2902. Although not initially present, Sergeant Stewart eventually encountered Sergeant Steinbeck and Detective Hill in the interrogation room with (Danny) H ill. Id . at 2758, 2872, 2908. At some point, officers told Hill they did not believe he was telling the truth, and Stewart told Hill that he needed to be honest if he had “anything to do with [Fife’s murder].” Id . at 2872, 2909

- 10. Officers also told Hill that it would “benefit him” to tell them the truth, believing that Combs would likely blame the attack on Hill alone. Id . at 2909.
Apparently at Hill’s request, Detective Hill was left alone with his nephew. According to (Danny) Hill, while he and Detective Hill were alone, Detective Hill “threw [him] against the wall,” slapped him across the face, and told him that he “better tell” the police what happened. Id . at 2759, 2810

- 11, 2859, 2910, 2936

- 37, 2953. Hill also testified t hat his uncle kicked him under the table in order to prompt Hill to (1) consent to his statement being taped and (2) begin talking to police at the beginning of the taping.
Detective Hill, unsurprisingly, described the time he spent alone with his neph ew very differently, testifying: At that point in time, you know, I set [sic] there, and I tried to let Danny know that wasn’t anyone [sic] going to hurt him. No one was going to do anything to him, but [I also told him] the fact that I kn[e]w that he was involved in the homicide, and I wanted to get the truth out of him. At that point in time, he looked at me and tears started to come from his eyes. When tears started coming from his eyes, he told me

. . . , “I was there. I was in the field when he got murdered.” When the young Fife kid got murdered. 13
R. 28, PageID# 2937. When Detective Hill emerged from the interrogation room a few minutes later, he told the other officers that Hill was going to cooperate and tell them what happened. At

13 Detective Hill also denied kicking his nephew.Nos. 99

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the time Det ective Hill made this announcement, Hill was either crying or had tears in his eyes. Id . at 2759, 2811, 2839, 2873, 2937

- 38.
At Stewart’s suggestion, Hill gave the police permission to tape his statement. Id . at 2759

- 60, 2873

- 76, 2912. Sergeant Steinbec k, Sergeant Stewart, and Detective Hill were all present when Hill gave this initial audiotaped statement, as well as when Hill gave a second statement that was videotaped by Detective James Teeple. Id . at 2874

- 75. According to Stewart, Hill was not cryi ng during the taped statement itself. About halfway through the audio

- taping, the police asked Hill to sign the statement he had given to Steinbeck on September 13. Id . at 2903. Hill was also read his Miranda rights once more at some point prior to givi ng the second, videotaped statement. Id . at 2876, 2923, 2963

- 64. While giving his statements, Hill never asked to stop the interrogation, requested an attorney, or asked to leave. Sometime after the interrogation, Hill was placed under arrest based on t he details included in his statements. Id . at 2776.
When asked questions about the nature of the interrogation generally, both Detective Hill and Sergeant Stewart denied that the police threatened or made promises to Hill during the interrogation, and asserted that Hill never asked for a lawyer. Id . at 2760, 2772, 2935, 2938. When prompted by the prosecutor about Hill’s previous encounters with the police, Detective Hill estimated that by the date of the September 16, 1985 interrogation, Hill had bee n arrested by the Warren Police Department “[a]pproximately 15 to 20 times.” Id . at 2929. Both Detective Hill and Sergeant Steinbeck testified that they had arrested Hill on prior occasions and had read him his Miranda rights “[m]any times.” Id . at 2876 , 2928

- 29. And two of the prosecution’s exhibits at the suppression hearing included a waiver form and voluntary statement

— both of which included a recitation of Miranda rights

— signed by Hill on March 6, 1984, which was approximately a year

- and

- a

- half bef ore the September 16, 1985 interrogation.
In adjudicating this claim, the state appellate court rejected Hill’s argument that his waiver of his Miranda rights was invalid. Hill , 1989 WL 142761, at *5. Acknowledging that it needed to make “discrete inquir ies” as to both the “knowing and intelligent” and “voluntary” aspects of Hill’s waiver, the appellate court considered these criteria in turn.Nos. 99

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With regard to the knowing and intelligent factor, the appellate court noted that although the “lack of mental acuity

. . . can interfere with an accused’s ability to give a knowing and intelligent waiver,” there is no bright line rule for distinguishing between “those capable of an intelligent waiver from those who lack the ability to do so.” Id. The appellate c ourt also acknowledged the Supreme Court’s admonition in Connelly that a suspect’s mental condition, by itself, does not necessarily prevent him from effectively waiving his Miranda rights. Id. In analyzing the facts of Hill’s case specifically, the appe llate court opined:

[Hill] admittedly suffers from some mental retardation (although the evidence presented is divergent as to the severity of the handicap) and has had concomitant difficulties in language comprehension throughout his formal education. [H ill] is categorized as being mildly to moderately retarded. Evidence was presented which indicates that appellant is illiterate and this court acknowledges that literal recognition of each word contained in the “ Miranda Rights” and/or “waiver form” may be beyond [Hill’s] mental comprehensive capacity. However, from the record here, particularly during the suppression hearing, this court is also aware (as was the trial court below) of the long and multi

- faceted exposure [ Hill] has had with the sta te’s criminal justice system. The evidential table in this case also demonstrates that [Hill] exhibited a functional capacity to understand these rights, including the right to appointed counsel. This was evident from the exchan ge that occurred during the audio and video tape sessions. The officers who interrogated [Hill] had either significant contact with him and/or had questioned him on prior occasions and had developed informed estimates as to [Hill’s] ability to understand, albeit in a vernacular sense, all aspects of the Miranda warning. The audio and video tapes of [Hill’s] interrogations disclose that [Hill] was capable of understanding the questions put to him and of responding intelligently. Moreover, the behavior of [ Hill] during the police investigation belies the notion that he was no more than a malleable victim of police suggestion. [Hill] possessed the requisite intelligence to implicate other persons in the murder and was capable of modifying his story when inco nsistencies were demonstrated to him. Additionally, [Hill] qualified and corrected the police officers’ misstatements of the factual scenario which he had related to them. He also was able to follow “verbal concepting,” displaying an understanding of the officers’ direction of questioning and the dialogue utilized during the interrogation.

Hill , 1989 WL 142761, at *6. Based on the aforementioned concerns, and citing the Supreme Court’s decisions in Miranda and Lego in support, the state appellate conclud ed that Hill’s waiver was knowing and intelligent. Id.Nos. 99

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In addressing voluntariness, the appellate court rejected Hill’s argument that his waiver was involuntary “as a result of his mental [infirmities] and the coercive action of the police.” Id. First, the court noted that Hill’s IQ was not necessarily dispositive as to whether he was incapable of voluntarily waiving his Miranda rights, particularly since he had been read those rights in his many prior encounters with police. Id. at **6

- 7. In addressi ng Hill’s argument that his intellectual deficiencies made him vulnerable to the police officers’ “psychological ploys,” the appellate court noted that Hill was read his Miranda rights multiple times on September 13 and 16, 1985, and “appeared articulate a nd coherent as he answered questions.” Id. at *8. Finally, in concluding that the record was “devoid of evidence indicating that the custodial interrogation of [Hill] violated his constitutional rights,” the appellate court reasoned that because (among o ther things): (1) Hill originally approached the police on September 12 of his own accord; (2) Hill was read his Miranda rights numerous times without ever being placed under arrest; and (3) “[t]he recorded conversations [between Hill and the police] d[id] not suggest the use of any improprieties by the police,” Hill’s Miranda claim was without merit. Id. at **9

- 10.
The Ohio Supreme Court ruled similarly, stating: “Upon a careful review of the record, we can discern no coercive or overreaching tactics emp loyed by the police during questioning.” Hill , 595 N.E.2d at 890. In making this finding, the court explicitly acknowledged that before Hill turned 18, Detective Hill “would at times physically discipline [his nephew] at the request of [Hill’s] mother.” 14 Id. In fact, the court appeared to credit Detective Hill’s version of events

— i.e., that “[Hill] stated to [Detective] Hill that he was ‘in the field behind Valu King when the young Fife boy got murdered.’” Id. The court also found, based on the Suprem e Court’s ruling
in Connelly and Hill’s “his prior dealings with the criminal process as a juvenile,” that Hill’s “mental aptitude did not undercut the voluntariness of his statements or his waiver of Miranda rights.” Id . Finally, the Ohio Supreme Court rejected Hill’s contention that his waiver was rendered involuntary by virtue of the police’s tactics during the interrogation. Id. at 891 (“Upon a careful review of the testimony and the audiotape and videotape statements, we do not find that

14 Hill was 18 at the time of the Septe mber 16, 1985 interrogation, and Detective Hill testified at the suppression hearing that he had not physically disciplined his nephew since at least six to eight months prior. R. 28, PageID# 2976.Nos. 99

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the interro gation tactics used by the police officers, even in light of [Hill’s] mental capacity, rendered the statements involuntary, or that the officers improperly induced [Hill] to make incriminating statements.”).
Reviewing the state courts’ decisions under § 2 254(d)(1), the district court found that Hill’s arguments that he should be granted habeas relief on this claim were without merit. Hill v. Anderson , No. 4:96

- cv

- 00795, 1999 U.S. Dist. LEXIS 23332, at **78

- 92 (N. D. Ohio Sept. 29, 1999).
Applying AEDPA’ s deferential review standard, we ask whether the state courts unreasonably applied Supreme Court precedent in finding that Hill’s waiver of his Miranda rights was voluntary, knowing, and intelligent. See 28 U.S.C. § 2254(d)(1). Connelly tells us that a compromised mental state does not, “by itself and apart from its relation to official coercion,” vitiate a defendant’s ability to waive his Miranda protections. See 479 U.S. at 164. And Miller v. Fenton , 474 U.S. 104 (1985), directs us to treat state

- cou rt findings on “subsidiary questions, such as the length and circumstances of the interrogation, the defendant’s prior experience with the legal process, and familiarity with the Miranda warnings” as “conclusive” on habeas review if they are “fairly suppor ted in the record.” Id. at 117.
In light of these admonitions, the state courts’ conclusion that Hill effectively waived his Miranda rights was not “unreasonable” as that term has been defined by the Supreme Court. The state courts could plausibly credit Detective Hill’s account of his interrogation techniques over Hill’s allegations of physical abuse to find a lack of undue coercion a nd could point to Hill’s prior experiences with the criminal justice system and the Miranda process as evidence that Hill understood the nature of his waiver.
Although the required deference to the state courts’ finding compels our holding on this issue, w e wish to express our consternation with this result. The record contains ample evidence demonstrating that Hill’s waiver was neither voluntary nor knowing. Hill was interrogated, in private, by a police

- officer uncle who admitted to disciplining Hill ph ysically in the past, and who allegedly “‘threw [Hill] against the wall,’ slapped him across the face, and told him that he ‘better tell’ the police what happened” during the course of the interrogation. Supra p. 28 . Hill’sNos. 99

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uncle then purportedly kicked Hill under the table to induce his consent to a videotaped confession and kicked Hill again when he was reluctant to begin the confession. When considered alongside Hill’s intellectual disabilities, Detective Hill’s behavior raises grave questions about t he voluntariness of Hill’s waiver.
And while Hill was certainly exposed several times to Miranda warnings, we are not convinced that he ever registered the warnings’ meaning. During the suppression hearing the state trial court held in 1985, Hill’s attorn ey asked Hill a number of basic questions about his understanding of Miranda : Q: [W]hat are your Constitutional Rights? A: I don’t know. Q: What’s the word constitution mean? A: I don’t know. Q: What’s the word appointed

— A: When you point at somebody. Q: You point at somebody? A: Yeah.

. . . . Q: When the police talked to you, did you go ahead and talk to them? A: Yes. Q: Why? A: They police. [sic] You’re supposed to talk to them. Q: You have to talk to them? A: Yep! Q: Do you know what’s an attorney? [si c] A: I don’t know. R.29, PageID# 3114

- 16.
It is difficult, in light of this testimony, to accept the state courts’ determination that Hill “exhibited a functional capacity to understand [his] rights.” Hill , 1989 WL 142761, at *6. Nevertheless, because of the procedural posture of this case, we are compelled to affirm the district court.
Accordingly, we AFFIRM the district court’s denial of habeas relief as to his suppression claim.Nos. 99

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VI. Inflammatory Statements by the Prosecutor During Hill’s Bench Trial
Hill also makes a prosecutorial misconduct claim based on the prosecutor’s allegedly inflammatory statements to the three

- judge panel that convicted Hill and sentenced him to death.
This claim is governed by § 2254(d)(1). As indicated above, Hill mu st show that the state court’s decision “involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

The full

- text of the “inflammatory statements” challenged by Hill may be found in his opening brief. Some of those comments included:

 A reference to Raymond Fife being a 12

- year

- old boy from the community who had a “right to live,” a right to “be in school,” and a right “to be here today”;

 Statements that Hill was an “animal,” who “ destroyed and devoured” Fife, and “would make the Marquis de Sade proud”;

 A statement that “you don’t necessarily have fingerprints on everything” with reference to the apparent lack of Fife’s fingerprints on his bike;

 The prosecutor’s opinion about which expert witness on a particular issue was “more qualified”;

 A statement that Detective Hill did not want to testify against his nephew;

 A reference to Hill being a “poor, dumb boy” who nonetheless violently raped two women and therefore “relishe[d]

. . . in flicting pain and torture [on] other human beings”;

 A statement that Hill put Fife through a “living hell,” that Fife “had no justice while he was living,” and that justice demanded a guilty verdict;

 The prosecutor’s opinion that defense counsel had not s hown “any mitigating factors” and that the aggravated factors “clearly outweigh[ed] the absence of any mitigation”;

 Two more references to Hill’s history of sexual assault, which the prosecution argued belied the idea that Hill had “difficulty with his mot ors skills”;

 A rambling soliloquy about how the prosecution would have liked to called Fife as a witness so he could describe the beating, strangulation, and sexual assault he endured, but Fife was “not here to testify about that thanks to [Hill].” The pr osecutor also stated that Fife, if alive, would have testified about how he missed his family and his friends;

 A reference to Hill as “this manifestation of evil, this anomaly to mankind, this disgrace to mankind.”Nos. 99

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- 3718 Hill v. Anderson Page 35

In adjudicating this claim as part of Hil l’s direct appeal, the Ohio Supreme Court (1) noted that trial counsel never objected to any of the “complained

- of comments,” (2) opined that those comments were therefore subject to plain error review only, and (3) concluded that the prosecutor’s statemen ts amount to “neither prejudicial error nor plain error[.]” Hill , 595 N.E.2d at 898. The Ohio Supreme Court also noted that in Ohio, “[courts] indulge in the usual presumption that in a bench trial in a criminal case the court considered only the relevan t, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.” Hill , 595 N.E.2d at 898 (quoting State v. White , 239 N.E.2d 65, 70 (1968)).
The district court rejected Hill’s prosecutorial misconduct clai m as well, reasoning that: [Hill’s] case was tried before a three judge panel [that] presumably was able to remember the evidence presented at trial and not be misled by any of the prosecutor’s statements. Most of the statements were harmless

. . . . Thr ee judges should have been able to disregard any intended undue influence. 15
1999 U.S. Dist. LEXIS 23332, at *110. Accordingly, the district court concluded that the Ohio Supreme Court’s determination that “no prejudicial or plain error occurred

. . . was not an unreasonable application of clearly established law.” Id. at **110

- 1 1.
In assessing whether the Ohio Supreme Court’s decision involved an unreasonable application of federal law, the relevant Supreme Court holding is the Court’s decision in Darden v. Wainwright , 477 U.S. 168, 181 (1986), which held that “a prosecutor’s im proper comments will be held to violate the Constitution only if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Parker v. Matthews , 576 U.S. 37, 45 (2012) (quoting Darden , 477 U.S. at 181). The Supreme Court has also held that “the Darden standard is a very general one, leaving courts ‘more leeway in reaching outcomes in case

- by

- case determinations.’” Id. at 48 (citation, quotation marks, and ellipses omitted).

In Darden , the Supreme Court foun d that comments similar to some of those made by the prosecutor in this case

— particularly allusions to the death penalty and the defendant being an

15 The state appellate court, in adjudicating this claim, s imilarly noted that although some of the prosecutor’s comments would have “perhaps [been] prejudicially erroneous in a jury trial, [that] was not so [in Hill’s case].” Hill , 1989 WL 142761, at *15.Nos. 99

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“animal”

— were improper. 477 U.S. at 179

- 80. Those comments, unlike the comments in this case, were made be fore a jury, not a three

- judge panel. Id. at 170

- 71. Nonetheless, the Supreme Court noted that these improper statements did not “manipulate or misstate the evidence, [or] implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. at 182.
In this case, it is clear that the prosecutor’s comments were emotionally charged and designed to paint Hill in a bad light. However, it does not appear that they misstated the evidence in the case or implicated Hi ll’s constitutional rights. Further, any efforts to play on the emotions of the three

-

judge panel would likely have been futile. Although they may not adopt a presumption as strong as the one “indulged” by the Ohio courts, federal courts similarly presum e that a judge, as the trier of fact, can readily identify credible evidence, United States v. Thomas , 669 F.3d 421, 425 (4th Cir. 2012), give proper weight to the evidence, Caban v. United States , 728 F.2d 68, 75 (2d Cir. 1984), and understand what law is relevant to his or her deliberations, United States v. Curtis , 782 F.2d 593, 599 (6th Cir. 1986). And Hill has put forth no evidence indicating that the three

- judge panel that tried his case was incapable of discerning what constitutes admissible evidenc e and parsing such evidence out from any inflammatory or irrelevant 16 comments by the prosecutor. 17 For these reasons, we conclude that the decision by the Ohio Supreme Court was not an unreasonable application of clearly established law.

We AFFIRM the dis trict court’s denial of habeas relief as to Hill’s prosecutorial misconduct claim.

16 For example, the three

- judge panel disclaimed any relian ce on Hill’s “prior crimes

. . . in reaching its verdict.” See Hill , 595 N.E.2d at 893.

17 Hill’s reference to a single line in the panel’s opinion that referred to Hill and Combs’ “blood lust characterized by a series of acts of torture, rape, and murder,” does not change this conclusion. The rest of the opinion describes Fife’s injuries, and the means by which they were inflicted (based on the evidence at trial), in great detail. The opinion also indicates that the judges were struck by the “total lack o f remorse” shown by Hill appearing at the police station to seek a reward after Fife’s death. Looking at the document as a whole, there is no indication that the comment with which Hill takes issue was derived from the prosecutor’s statements rather than the judges’ own assessments of the offenses.Nos. 99

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VII. The Trial Court’s Failure to Hold a Pretrial Competency Hearing
Lastly, Hill argues that the trial court’s failure to inquire about Hill’s competency denied him a fair trial under the due process clause of the Fourteenth Amendment. Here, the term “trial court” refers to the court that tried Hill’s underlying offenses in 1985 and 1986.
This claim is governed by § 2254(d)(1). As indicated above, the Supreme Court has held that to obtain relief under § 2254(d)(1), the petitioner “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 103 (2011). In assessing competence, the relevant question is wh ether the defendant’s “mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Indiana v. Edwards , 554 U.S. 164, 170 (2008). If the defendant’s mental condition meets this description, the courts may not try him. 18 Id

. Hill maintains that because the trial court knew that he had “limitations in vocabulary, ability to calculate, and ability to draw” and “could not recognize or understand a majority of the words on the Miranda waiver form,” the trial court should have “conduct[ed] further inquiry into [Hill’s] competency to stand trial.” Hill’s Br. at 124

- 25. With regard to this final issue, Hill requests that this Court deter mine “not whether the state court was unreasonable in finding Danny competent to stand trial, but whether it was unreasonable under Pate 19 and Drope 20 not to make such an inquiry in the first instance.” Id . at 124. Hill also argues, with no elaboration and

18 Again, our conclusion that Hill is intellectually disabled and thus ineligible for execution under Atkins does not mean that Hill was incompetent to stand trial or that the trial court should have presumed his incompetence and ordered a competency hearing sua sponte . The two inquiries are different, and even Atkins recognizes that “[m]entally retarded persons frequently . . . are competent to stand trial.” 536 U.S. at 318.

19 Pate v. Robinson , 383 U.S. 375 (1966)

. 20 Drope v. Missouri , 420 U.S. 162 (1975).Nos. 99

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minimal citation to the record, 21 that the Ohio Supreme Court “unreasonably applied Pate and Drope ” in determining that Hill was competent to stand trial. Id . at 125.
The Warden, for his part, asserts that “[a]lthough Hill is intellectually limited, his demeanor at trial was such that the trial court had no reason to sua sponte assess Hill for competence to stand [trial].” The Warden also argues that: The trial record gives every indication that Hill was compliant, cooperative and appropriately attentiv e to the proceedings. Moreover, the trial judge had ample opportunity to assess Hill’s ability to navigate through the trial proceedings, where Hill testified extensively during a pre

- trial suppression hearing, and also had a direct colloquy with the tria l court for acceptance of the jury waiver. In addition, none of the three mental health experts who testified for the defense at trial expressed a concern about Hill’s competence to stand trial.
Warden’s Br. at 97. Hill’s reply brief does not address t hese contentions.
Neither the state appellate court nor the Ohio Supreme Court opinions from Hill’s direct appeal noted Hill’s competency argument as one of his nineteen assignments of error and twenty

- five propositions of law, respectively. See generall y State v. Hill , 595 N.E.2d 884 (Ohio 1992); State v. Hill , Nos. 3720, 3745, 1989 WL 142761 (Ohio Ct. App. Nov. 27, 1989). Instead, the only similar claims addressed by these courts pertained to Hill’s arguments that he could not knowingly and voluntarily waive his right to counsel or his right to a jury trial due to his alleged intellectual disability. See, e.g. , Hill , 595 N.E.2d at 890

- 91, 895; Hill , 1989 WL 142761, at **3, 5

- 7, 13

- 14. The district court found that Hill raised the issue of competency o nly under state law, not federal law, and that Hill did not raise the competency claim under federal law until filing for state post

- conviction relief. Hill , 1999 U.S. Dist. LEXIS 23332, at **92

- 93. On this basis, the district court concluded that Hill’s competency claim was procedurally defaulted. Id. at **93

- 94 (citing State v. Hill , No. 94

- T

- 5116, 1995 WL 418683 (Ohio Ct. App. June 16, 1995)). The Warden argues that even if Hill’s claim was not procedurally defaulted, it fails on the merits. We agre e.

21 This issue occupies three pages in Hill’s opening brief and just over a page in his reply brief. The only record citation in the opening brief seeks to demonstrate that Hill “could not recognize or understand a majority of the words on the Miranda waiver form.”Nos. 99

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On December 16, 1985, the trial court held a hearing on Hill’s motion to suppress his statements to the police. Defense counsel called Hill as a witness to testify with respect to “the circumstances under which [he] gave statements to the police depar tment.” R. 29, PageID# 3101. In response to the trial court’s questions, Hill indicated that he understood the purpose and nature of the hearing. Id. at 3103

- 04. He went on to testify about the means by which he arrived at the police station, as well a s his inability to leave police custody prior to the arrival of his mother on Friday, September 13, 1985. On Monday, September 16, 1984, Hill returned to the police station at his mother’s behest with his uncle, Detective Hill, and another police officer, Sergeant Steinbeck. As discussed earlier, Hill testified that while he and Detective Hill were alone, Detective Hill threw Hill against the wall, slapped him, and told him to tell the police what had happened. Hill also claimed that after being physical ly abused by his uncle, he told the police what they wanted to hear because he was afraid of both Detective Hill and the other officers. Id . at 3114, 3118

- 19.
Defense counsel, for his part, attempted to demonstrate that Hill could neither read nor writ e and that Hill signed the Miranda waiver without understanding its contents or knowing what it meant; meanwhile, the prosecutor attempted to demonstrate that Hill had been to the Warren police department many times before based on theft

- related crimes and was therefore familiar with the de partment’s Miranda form. Id . at 3107

- 09, 3115, 3121

- 23, 3152

- 53, 3155. On cross

- examination, Hill testified that he signed the Miranda waiver because the police told him to do so. Id . at 3135

- 37. Hill’s testimony ended following questions from the tria l court about Hill’s alleged physical abuse at the hands of Detective Hill.
Hill appeared before the trial court once more on January 7, 1986, this time to waive his right to a jury trial. See Hill , 595 N.E.2d at 889. The trial court’s colloquy with H ill, which was designed to determine whether Hill’s waiver was knowing and voluntary, included an explanation of the jury selection system, the role of the jury, the jury waiver’s effect on some of Hill’s pending motions, defense counsel’s possible motives for seeking to waive Hill’s right to a jury trial, and the differences between a jury and three

- judge panel in terms of number of persons, familiarity with the law and the facts of the case, and demographic composition. The trial court read the waiver al oud to Hill and suggested the Hill go over the waiver with hisNos. 99

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attorney. Waiver of Jury Trial Hr’g Tr. at 10

- 11. 22 Hill indicated that he had discussed the issue of waiver with both his attorney and his mother, and there was a 25

- minute recess in which th e attorney and Hill’s mother apparently discussed the waiver with him further. Id . at 5

- 6. After the recess, Hill affirmatively stated that he wanted to be tried by the three

- judge panel. Id . at 12.
A review of Hill’s testimony during the December 16, 1 985, suppression hearing reveals that Hill claimed to understand the nature of the hearing and was able to answer questions posed by the prosecutor, defense counsel, and the trial court. Hill stated more than once when he did not understand or did not kno w the answer to a question, either on his own or with attorney prompting. He also appeared to understand the role of the trial judge. Hill’s interactions with the trial court at the January 7, 1986 hearing on his waiver of jury trial also failed to raise any red flags regarding competence. Although the trial court did most of the talking, Hill did not express any confusion about the nature of the waiver, and was given an opportunity to go over the considerations discussed by the trial court with his atto rney and mother before and during the hearing. After Hill conferred with his attorney, the following exchange took place:

CO URT: All right. Danny, you’ve been talking with your lawyer now , have you

not, for the last 25 minutes or so? DEFENDANT HILL: Yeah. COURT: And did he go over this matter of a jury trial with you? DEFENDANT HILL: Yeah. COURT: And you want to tell me now what decision you’ve made after talking

this over. DEFENDANT HILL: I want to have

— COURT: What do you want to do? Who do you want to try it? Three judges

— DEFENDANT HILL: Three judges. COURT:

— or do you want the jury? DEFENDANT HILL: You. COURT: I hope you understand

— you mean myself and two other judges? DEFENDANT HILL: (Nods head affirmatively.)

Id . At no point during th e hearing did Hill behave in a manner, or make a statement indicating, that he did not understand the nature of the waiver.

22 The transcript of the jury waiver hearing can be found in the district court record at R. 30 in Hill v. Anderson , No. 4:96

- cv

- 00795 (N.D. Ohio Jan. 28. 1997).Nos. 99

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- 3718 Hill v. Anderson Page 41

On this record, there is no indication that Hill did not understand the nature of the proceedings against him or that he could not c onsult with defense counsel to assist in his case. See Edwards , 554 U.S. at 170. Although Hill is correct that the record suggests that he was functionally illiterate at the time of the suppression hearing, Hill cites no authority for the proposition tha t trial courts should equate illiteracy to incompetence. He also cites no authority for the proposition that because there were other signs that he was intellectually limited, i.e., his limited vocabulary or “ability to draw similarities,” the trial court should have doubted his competence to stand trial and ordered a competency hearing sua sponte

. As indicated above, the trial court had at least two opportunities to observe Hill and interact with him directly, and these incidents did not suggest that Hil l was incompetent to stand trial under Pate , Drope , or the more recent Supreme Court case, Edwards

. For the aforementioned reasons, we AFFIRM the district court’s denial of habeas relief as to Hill’s due process claim.

VIII. Conclusion
For the reasons articulated above, we REVERSE the district court’s denial of habeas relief with regard to Hill’s Atkins claim and we REMAND with instructions to grant the petition and to issue the writ of habeas corpus with respect to Hill’s death sentence . We pretermit Hill’s ineffective assistance of counsel claim based on Atkins , and AFFIRM the district court’s denial of habeas relief with regard to his ot her three claims.