[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-13020

________________________

D.C. Docket No. 2:10-cv-02218-LSC

EUGENE MILTON CLEMONS, II, 

 Petitioner - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, 

WARDEN, HOLMAN CF,

 Respondents - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(July 30, 2020)

Before WILSON, JILL PRYOR and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

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In 1994, an Alabama jury convicted Eugene Clemons for the capital murder 

of Drug Enforcement Administration Special Agent George Douglas Althouse. 

Thereafter, a unanimous jury recommended that Clemons be sentenced to death; 

the state trial court followed the jury’s recommendation and sentenced the 

petitioner to die. Nearly a decade later, the Supreme Court held it unconstitutional 

to execute intellectually disabled people. See Atkins v. Virginia, 536 U.S. 304 

(2002). After Atkins, Clemons timely brought a claim of intellectual disability in

Alabama state court. The Alabama courts concluded that Clemons had failed to 

demonstrate either significant subaverage intellectual functioning or significant 

deficits in adaptive functioning, as required by Atkins and Alabama case law, and 

denied the petition. Because the state court’s decision was neither contrary to nor 

an unreasonable application of clearly established Supreme Court law, nor was it 

based on an unreasonable determination of the facts in light of the evidence 

presented, we are obliged to deny his federal habeas petition.

Clemons also attempts to bring thirty-one other claims in his federal habeas 

petition, but those claims are untimely. The Antiterrorism and Effective Death 

Penalty Act (“AEDPA”) requires most claims to be brought within one year of a 

conviction becoming final on direct review. A “properly filed” state-court petition 

tolls the one-year federal limitations period. But Clemons’s state petition was not 

“properly filed” -- because his attorneys neither paid the filing fee nor filed a 

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motion to proceed without paying the fee -- until more than one year after his 

conviction had become final. Clemons now says his lawyer received 

misinformation from the state court clerk’s office, so the federal limitations period 

should be equitably tolled. But the extraordinary remedy of equitable tolling 

cannot excuse the simple negligence of an attorney. We affirm the district court’s 

determination that those thirty-one claims are untimely and must be dismissed.

I. Background

On May 28, 1992, Eugene Milton Clemons II shot and killed DEA Special 

Agent George Douglas Althouse during a carjacking. That evening, Althouse and

Naylor Braswell, a Jefferson County Sheriff’s Department officer with whom 

Althouse was working and sharing an apartment, drove a black Camaro to meet 

another narcotics officer. On the way, they pulled into a service station. Braswell 

went inside to borrow a telephone book while Althouse remained in the 

passenger’s seat of the car. Braswell looked outside and saw a man get into the 

driver’s seat of the car, armed with a revolver. At trial, he identified Clemons as 

looking like the man he saw behind the steering wheel. He then heard two shots 

and saw Althouse dive out of the car. Althouse had been shot, and although he 

initially returned fire, he eventually succumbed to his injuries and died. Braswell 

added that a bulletproof vest and a shotgun had been in the Camaro’s trunk. 

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One of Clemons’s accomplices, Kenny Reed, also testified at trial. Clemons 

called him at their mutual friend Herman Shannon’s house and asked Reed to pick 

him up to get “a car.” Reed said they drove to an area near a service station and 

Clemons got out of the car. Reed later heard two gunshots, followed a short time 

later by several more shots. Clemons then drove off in a black Camaro. When 

Reed returned to Shannon’s house, Clemons was there and said that “no one better 

open their mouths” because he had killed a DEA agent. Clemons had previously 

told Reed that Clemons’s car needed a new motor.

The following day, on May 29, 1992, the black Camaro was recovered near 

Shannon’s house and the shotgun that had been in the trunk of the car was 

discovered near Clemons’s home. Shortly thereafter, Clemons was arrested in 

Cleveland, Ohio. His uncle who lived there testified that Clemons’s sister had 

called to say Clemons was coming to Cleveland. Clemons told his uncle that he 

shot a police officer because the officer was trying to kill him and that he stole the 

car to get away.

Because Althouse was a federal narcotics officer, Clemons was first tried for 

murder in federal district court. He was convicted in April 1993 and sentenced to 

life without parole. The federal conviction was upheld on direct appeal. United 

States v. Clemons, 32 F.3d 1504 (11th Cir. 1994), cert. denied, 514 U.S. 1086 

(1995). In a parallel proceeding, Alabama indicted Clemons for capital murder in 

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March 1993. He was tried and convicted on September 25, 1994, and sentenced to 

death soon thereafter. Clemons’s direct appeals from his state-court conviction 

and death sentence became final when the United States Supreme Court denied his 

petition for certiorari on January 25, 1999. Clemons v. Alabama, 525 U.S. 1124 

(1999).

On December 27, 1999, Clemons submitted his petition for post-conviction 

relief, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, in Shelby 

County Circuit Court. At that time, however, he neither paid a filing fee, nor 

moved to proceed in forma pauperis, nor finally did he include a certified copy of 

his prison account showing his indigency. Clemons says the clerk of the court 

advised his counsel that there was no filing fee required for a Rule 32 petition. On 

January 28, 2000, Clemons refiled his Rule 32 petition, only this time along with a 

request to proceed in forma pauperis and a certified copy of his prison account and 

a completed nine-page form that is contained in the Rule 32 appendix. After 

allowing Clemons to amend his petition twice, the circuit court held a limited 

evidentiary hearing, allowing each party to depose only one witness. The circuit 

court denied relief on all claims. 

At the time of Clemons’s trial and the initial filing of his Rule 32 petition, 

Supreme Court precedent had held that the execution of intellectually disabled 

persons was not per se unconstitutional. See Penry v. Lynaugh, 492 U.S. 302, 340 

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(1989) (plurality opinion). But on June 20, 2002, the Court decided Atkins v. 

Virginia, holding that it is categorically unconstitutional to execute someone who 

is intellectually disabled.1 536 U.S. at 321. The substantive constitutional rule 

announced in Atkins applies retroactively on collateral review. See, e.g., In re 

Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“At this point, there is no 

question that the new constitutional rule . . . formally articulated in Atkins is 

retroactively applicable to cases on collateral review.”).

Because Atkins was decided after the circuit court’s denial of his Rule 32 

petition, but before his appeal to the Alabama Court of Criminal Appeals, Clemons 

argued for the first time on appeal that his death sentence was unconstitutional 

because of his intellectual disability. However, Clemons had advanced a related 

argument, based on the same underlying facts, in his initial Rule 32 petition, 

claiming that his counsel was ineffective at trial for having failed to present 

mitigating evidence of his limited mental capacity. 

On August 29, 2003, the Alabama Court of Criminal Appeals remanded 

Clemons’s case to the circuit court with instructions to conduct an evidentiary 

hearing and make written findings on both his Atkins claim and the ineffective1 Although Atkins uses the term “mentally retarded,” the Supreme Court has since adopted the 

term “intellectually disabled” to describe the same condition. See Hall v. Florida, 572 U.S. 701, 

704 (2014) (“Previous opinions of this Court have employed the term ‘mental retardation.’ This 

opinion uses the term ‘intellectual disability’ to describe the identical phenomenon.”). We too 

now use the term “intellectually disabled.” Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 

1303 n.1 (11th Cir. 2015).

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assistance-of-counsel claim based on his trial attorneys’ failure to present 

mitigating evidence of his intellectual disability. See Clemons v. State, 55 So. 3d 

314, 322 (Ala. Crim. App. 2003). 

The circuit court conducted an extensive evidentiary hearing on Clemons’s 

Rule 32 petition from June 15 to June 18, 2004. Over the four-day hearing, the 

court heard testimony from four witnesses: Dr. Charles Golden (Clemons’s 

medical psychological expert); Joseph Chong-Sang Wu (Clemons’s PET brain 

scan expert); Dr. Helen Mayberg (Alabama’s PET brain scan expert); and Dr. 

David Glen King (Alabama’s medical psychological expert).

The evidence pertinent to Clemons’s Atkins claim included seven 

intelligence quotient (“IQ”) tests. His scores on those tests, discussed in more 

detail in section III.B.1 of this opinion, varied widely from a score of 84 to a score 

of 51, and in several instances the administrators of the tests opined that the scores 

were invalid because Clemons was “malingering,” that is, he intentionally

frustrated the efficacy of the IQ test. As for adaptive functioning, only Clemons’s 

medical expert testified. He had administered a test of adaptive functioning -- the 

Adaptive Behavior Assessment System test -- and found Clemons severely 

deficient in six of the ten behavioral areas the test covers. 

On October 28, 2004, the Shelby County Circuit Court denied Clemons’s 

petition, adopting nearly verbatim a 90-page proposed order submitted by the state. 

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On June 24, 2005, the Alabama Court of Criminal Appeals affirmed. See Clemons 

v. State, 55 So. 3d 314, 322–32 (Ala. Crim. App. 2005). The Court of Criminal 

Appeals laid out the circuit court’s findings and analysis on the Atkins claim

verbatim, and adopted them:

We have reviewed the record in light of [relevant Alabama precedents], and 

we conclude that it supports the circuit court’s findings. Therefore, we adopt 

those findings as part of this opinion. Based on the record before us, we 

conclude that, even under the broadest definition of mental retardation, the 

appellant is not mentally retarded and that imposition of the death penalty in 

this case would not be unconstitutional.

Id. at 332.

Intervening appeals relating to procedural bar on the ineffective-assistanceof-counsel claim (which are not relevant here) took the case back and forth 

between the Court of Criminal Appeals and the Alabama Supreme Court for 

several years. Finally, on August 13, 2010, the Alabama Supreme Court denied 

Clemons’s petition for certiorari without opinion. Ex parte Clemons, No. 1070535 

(Ala. Aug. 13, 2010) (per curiam).

Three days later, on August 16, 2010, Clemons set his sights on the federal 

district court, filing the instant habeas petition in the United States District Court 

for the Northern District of Alabama, pursuant to 28 U.S.C. § 2254. On the same 

day, he filed a successive Rule 32 petition in Alabama circuit court. See Clemons 

v. State, 123 So. 3d 1, 3 (Ala. Crim. App. 2012). The federal petition was stayed 

and held in abeyance while Clemons exhausted his successive state petition. The 

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Court of Criminal Appeals rejected Clemons’s successive petition and found that 

the claim he raised -- the jury must be allowed to consider his low IQ as part of 

mitigation evidence -- was procedurally defaulted. Id. at 12. That petition was 

resolved on March 22, 2013, when the Alabama Supreme Court denied certiorari. 

Ex parte Clemons, No. 1120150 (Ala. Mar. 22, 2013). Thus, the only reasoned 

state court opinion relevant to this appeal is the Alabama Court of Criminal 

Appeals’s June 24, 2005 ruling, affirming the state court’s determination that 

Clemons was not intellectually disabled, and thus that the imposition of the death 

penalty was not unconstitutional. 

With the federal habeas action no longer stayed, Alabama moved to dismiss 

it, arguing that it had been filed untimely because it was past AEDPA’s one-year 

limitations period. The district court denied the motion as to Clemons’s Atkins

claim, but granted it as to all the other claims he made because they were untimely 

and equitable tolling was not warranted. The court reached this conclusion 

because Clemons had established nothing more than negligence on the part of his 

counsel. In a subsequent order, the district court denied relief on the Atkins claim, 

concluding that the state court’s determinations were neither contrary to nor an 

unreasonable application of clearly established law, nor were they based on an 

unreasonable determination of the facts in light of the evidence presented. The 

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district court highlighted the credibility determinations made by the state circuit 

court and found that those determinations were not objectively unreasonable. 

II. Standard of Review

“We review de novo a district court’s grant or denial of a habeas corpus 

petition.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Because 

Clemons filed his federal habeas petition after April 24, 1996, this case is governed 

by AEDPA. “Under AEDPA, if a state court has adjudicated the merits of a claim 

-- as the state court did here -- we cannot grant habeas relief unless the state court’s 

decision ‘was contrary to, or involved an unreasonable application of, clearly 

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

or ‘was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.’” Kilgore v. Sec’y, Fla. Dep’t of 

Corr., 805 F.3d 1301, 1309 (11th Cir. 2015) (quoting 28 U.S.C. § 2254(d)).2

2 Pursuant to § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant 

to the judgment of a State court shall not be granted with respect to any claim that 

was adjudicated on the merits in State court proceedings unless the adjudication of 

the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding.

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“Under § 2254(d)(1)’s ‘contrary to’ clause, we grant relief only ‘if the state 

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 

question of law or if the state court decides a case differently than [the Supreme 

Court] has on a set of materially indistinguishable facts.’” Jones v. GDCP 

Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations in original) (quoting 

Williams v. Taylor, 529 U.S. 362, 413 (2000)). “Under § 2254(d)(1)’s 

‘unreasonable application’ clause, we grant relief only ‘if the state court identifies 

the correct governing legal principle from [the Supreme] Court’s decisions but 

unreasonably applies that principle to the facts of the prisoner’s case.’” Id.

(alteration in original) (quoting Williams, 529 U.S. at 413). Here, there is no 

dispute that the state court identified the correct legal principle applicable to the 

only timely claim before us (Atkins itself), so this case implicates the 

“unreasonable application” clause of § 2254(d)(1).

Section 2254(d)(2) requires that we afford a state trial court’s fact-finding 

substantial deference. Brumfield v. Cain, 576 U.S. 305, 314 (2015). “If 

‘[r]easonable minds reviewing the record might disagree about the finding in 

question, on habeas review that does not suffice to supersede the trial court’s . . . 

determination.’” Id. (alteration and ellipsis in original) (quoting Wood v. Allen, 

558 U.S. 290, 301 (2010)). 

III. Analysis

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A. Thirty-One of Clemons’s Claims are Untimely

The district court dismissed thirty-one of Clemons’s federal habeas claims as 

untimely pursuant to AEDPA’s one-year statute of limitations. 28 U.S.C.

§ 2244(d)(1). The one-year limitations period ran out when Clemons failed to 

properly file his state habeas petition, which would have tolled the federal 

limitations period under AEDPA, within one year of his judgment of conviction 

becoming final on direct review. Although Clemons filed his state petition within 

one year, he failed to either pay a filing fee or move to proceed in forma pauperis

(“IFP”). Thus, his petition was not “properly filed” in accordance with Alabama 

law. By the time he properly filed the petition with the required motion to proceed 

IFP, the one-year federal limitations period had run. 

Clemons concedes that all of the claims in his habeas petition, but for his 

Atkins claim, are barred from consideration under AEDPA’s one-year limitation. 

He argues, however, that the federal limitations period should be equitably tolled

because his counsel received misinformation from an unnamed person working in 

the state court clerk’s office. That employee allegedly told Clemons’s counsel he 

was neither required to pay a filing fee nor required to file a motion to proceed IFP. 

But because Clemons was represented by counsel, and because a petitioner is 

bound by the negligence of his attorney, Clemons is not entitled to equitable 

tolling. Thus, we affirm the district court’s dismissal of those thirty-one claims.

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Under § 2244(d), “[a] 1-year period of limitation shall apply to an 

application for a writ of habeas corpus by a person in custody pursuant to the 

judgment of a State court.” 28 U.S.C. § 2244(d)(1). For claims that could have 

been brought immediately -- because the constitutional right existed at the time and 

the factual predicate was discoverable through the exercise of due diligence -- the 

limitations period runs from the date the conviction becomes final on direct review. 

See id. § 2244(d)(1)(A)–(D). Clemons’s conviction became final on January 25, 

1999, when the United States Supreme Court denied certiorari. 

However, “[t]he time during which a properly filed application for State 

post-conviction or other collateral review with respect to the pertinent judgment or 

claim is pending shall not be counted toward any period of limitation under this 

subsection.” Id. § 2244(d)(2). Put more plainly, a “properly filed” state habeas 

petition pauses the clock on the one-year limitations period until that state petition 

is resolved. If, for example, a petitioner properly files a state habeas petition six 

months after his conviction becomes final on direct review, he still has six months 

to file his federal habeas petition after the state courts finally resolve the petition.

But Clemons’s state petition was not “properly filed” until after the federal 

habeas limitations period had expired. Rule 32.6 of the Alabama Rules of 

Criminal Procedure sets forth the requirements for properly filing a postconviction 

petition, including these:

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“[The petition] shall . . . be accompanied by the filing fee prescribed by law 

or rule in civil cases in the circuit court unless the petitioner applies for and is 

given leave to prosecute the petition in forma pauperis. If the petitioner 

desires to prosecute the petition in forma pauperis, he or she shall file the “In 

Forma Pauperis Declaration” at the end of the form. In all such cases, the 

petition shall also be accompanied by a certificate of the warden or other 

appropriate officer of the institution in which the petitioner is confined, stating 

the amount of money or securities on deposit to the petitioner’s credit in any 

account in the institution for the previous twelve (12) months, which 

certificate may be considered by the court in acting upon the petitioner’s 

application for leave to proceed in forma pauperis. If the application to 

proceed in forma pauperis is granted, the filing fee shall initially be waived, 

but may be assessed as provided in Rule 32.7(e). Upon receipt of the petition 

and the filing fee, or an order granting leave to the petitioner to proceed in 

forma pauperis, the clerk shall file the petition and promptly send a copy to 

the district attorney (or, in the case of a petition filed in the municipal court, 

to the municipal prosecutor).

Ala. R. Crim. P. 32.6(a) (emphases added). In 1999, there was a $140 filing fee for 

civil cases filed in circuit court in Alabama. See 1999 Ala. Laws Act 99-427 (H.B. 

53), Ala. Code § 12-19-71 (1999); see also Ex parte Hurth, 764 So. 2d 1272, 1274 

(Ala. 2000) (“The docket fee for the filing of a petition for post-conviction relief is 

$140.00.”). 

Clemons admits that he attempted to file his Rule 32 petition on December 

27, 1999 without either a filing fee or a motion to proceed IFP. The initial filing 

contained the following request for relief: “Provide Mr. Clemons, who is indigent 

and incarcerated, funds sufficient to present witnesses, experts, and other evidence 

in support of the allegations in this Petition and any amendments thereto.” But this 

request did not mention a filing fee or request any kind of waiver of the fee, and 

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though it did reference Clemons’s indigent status, it did not provide the required 

certified copy of his prison account necessary for an IFP request. Notably, the 

omission was not remedied by counsel until the following month, when Clemons 

filed another copy of the Rule 32 petition with an explicit request to proceed IFP 

on January 28, 2000, accompanied by a certified copy of his prison account -- three 

days after the federal limitations period had expired. The circuit court noted in its 

case action summary that Clemons’s petition was “filed” on January 28, 2000. On 

March 14, 2000, Clemons filed a motion in state court to correct what he termed a 

“clerical error” in the notation, asking the court to direct the clerk to docket his 

Rule 32 petition as having been filed on December 27, 1999, obviously

anticipating the timeliness issues in federal habeas proceedings. Alabama at the 

time had a two-year statute of limitations, so the petition was timely in the 

Alabama courts. 

In an accompanying affidavit and at a state court hearing on the motion, 

local counsel for Clemons at the time, James S. Christie, Jr., associated with the 

law firm of Bradley Arant, explained that he was prepared to file the petition on 

December 23, 1999. Because it was proving difficult to have the prison process 

the paperwork to execute Clemons’s IFP motion, he told Clemons’s out-of-state 

counsel at the law firm of Winston & Strawn, that he would pay the fee and file the 

petition. Christie’s secretary could not determine the amount of the fee, so Christie 

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called the circuit court clerk’s office to ask. He thought it was reasonable to call 

the clerk’s office because filing fees differ from county to county, in part because 

of a library tax that is assessed differently in each court, making it impossible to 

determine the exact amount of the fee from statute alone. When he called, he 

spoke to a woman in the clerk’s office, though he could not remember her name or 

the precise words of their conversation. Christie said at the hearing that he was 

familiar with the people in the clerk’s office and that his understanding was that 

“nobody down there remembers talking to” him. He claimed, however, that he 

“understood” from their conversation that a fee was not necessary to file the 

petition, so he had his firm’s runner file it without a fee. It “made sense” to him 

because Clemons had already been granted IFP status in the underlying case. In 

early January, he saw a copy of the petition stamped “Dec 1999 received & filed,” 

so he believed it had been properly filed. 

According to Clemons’s counsel, later investigation revealed not only that 

the petition was not filed by the clerk, but also that the clerk’s office apparently 

lost it for approximately four months, and the petition was never docketed. On 

January 24, 2000, one day before the AEDPA one-year limitation period would 

expire, Clemons’s counsel mailed to the state court an IFP motion in anticipation 

of other fees expected in the litigation. He also submitted an amended Rule 32 

petition, which contained no substantive changes but merely inserted the identical 

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petition into the state court’s Rule 32 template. Clemons says the petition was 

mailed rather than hand-delivered because counsel had no notice of any filing 

deficiencies in the December 1999 petition. The clerk of court received the IFP 

petition and the amended Rule 32 petition on January 28, 2000 and docketed them 

on that date. Months later, in April 2000, the original filing was found, and it was 

docketed as though it had also been filed on January 28, 2000. The Shelby County 

Circuit Court issued a minute order on the docket in May 2000 that read: 

“Petitioner’s Motion to Correct Clerical Error: Denied, as the Court finds the 

Defendant’s Rule 32 petition was properly filed on January 28, 2000.” The 

Alabama Court of Criminal Appeals affirmed the denial of the motion.

Clemons’s counsel does not dispute that Alabama law required his Rule 32 

petition to be accompanied by a filing fee or a motion to proceed IFP -- that is, he 

does not dispute that the petition was not “properly filed” until January 28, 2000. 

Thus, it is crystal clear that statutory tolling pursuant to § 2244 is unavailable to 

Clemons. Rather, Clemons says he is entitled to equitable tolling because of the 

misinformation his attorney allegedly received when he called the clerk’s office.

Equitable tolling “is an extraordinary remedy limited to rare and exceptional 

circumstances” and typically should be “applied sparingly.” Cadet v. Fla. Dep’t of 

Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quotations omitted); see also Holland

v. Florida, 560 U.S. 631, 649 (2010); Lawrence v. Florida, 549 U.S. 327, 336

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(2007); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam); Steed 

v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). Indeed, equitable tolling may only

be applied where there are “extraordinary circumstances that are both beyond [the 

petitioner’s] control and unavoidable even with diligence.” Lawrence v. Florida, 

421 F.3d 1221, 1226 (11th Cir. 2005) (quoting Sandvik v. United States, 177 F.3d 

1269, 1271 (11th Cir. 1999)), aff’d, 549 U.S. 327. Moreover, the petitioner 

seeking equitable tolling bears the burden of demonstrating that he is entitled to it. 

Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002), overruled on other 

grounds as recognized by Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339, 1351 

(11th Cir. 2018). Under Supreme Court law, “a petitioner is entitled to equitable 

tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) 

that some extraordinary circumstance stood in his way and prevented timely 

filing.” Holland, 560 U.S. at 649 (quotations omitted); see also Helton v. Sec’y for 

Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001) (per curiam) (“Equitable 

tolling can be applied to prevent the application of the AEDPA’s statutory deadline 

when extraordinary circumstances have worked to prevent an otherwise diligent 

petitioner from timely filing his petition.” (quotation omitted)). Clemons has not 

met his burden.

We begin with the critical fact that Clemons was represented by counsel 

when he failed to properly file his Rule 32 petition within the one-year AEDPA 

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statute of limitations. Put another way, this is a case in which an attorney made a 

mistake. As we have held, “attorney negligence, even gross or egregious 

negligence, does not by itself qualify as an ‘extraordinary circumstance’ for 

purposes of equitable tolling; either abandonment of the attorney-client 

relationship, such as may have occurred in Holland, or some other professional 

misconduct or some other extraordinary circumstance is required.” Cadet, 853 

F.3d at 1226–27 (emphases omitted)); see Maples v. Thomas, 565 U.S. 266, 281 

(2012). Whatever can be said about the negligence of Clemons’s attorney, it is 

clear it was just that, negligence. Clemons nonetheless argues that the negligence 

of his counsel should be excused and the limitations period equitably tolled 

because he received misinformation from an unnamed clerk. While we have 

extended the extraordinary remedy of equitable tolling in limited cases where 

misinformation from the state causes a pro se petitioner to miss a filing deadline, 

Clemons was not a pro se petitioner. He had counsel. And although his counsel 

negligently relied on the advice of an unnamed person in the clerk’s office in the 

face of clear statutory filing requirements, this brings us to the end of the analysis: 

Clemons is bound by the negligence of his counsel and thus, he is not entitled to 

equitable tolling. 

The cases implicating attorney negligence or mistake are clear: negligence is 

not enough to warrant equitable tolling. The Supreme Court has repeatedly held 

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“that ‘a garden variety claim of excusable neglect,’ such as a simple 

‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant 

equitable tolling.” Holland, 560 U.S. at 651–52 (quoting Irwin v. Dep’t of 

Veterans Affairs, 498 U.S. 89, 96 (1990) and Lawrence, 549 U.S. at 336); see also

Smith v. Comm’r, Ala. Dep’t of Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (per 

curiam) (“As to exceptional circumstances, the general rule is that ‘when a 

petitioner’s postconviction attorney misses a filing deadline, the petitioner is bound 

by the oversight and cannot rely on it to establish cause.’” (quoting Maples, 565 

U.S. at 281)). 

“[T]here are circumstances where ‘an attorney’s unprofessional conduct can 

. . . count as an “extraordinary circumstance” justifying equitable tolling.’” Smith, 

703 F.3d at 1271–72 (quoting Maples, 565 U.S. at 281); see also Holland, 560 U.S. 

at 649–52 (rejecting a per se rule that “grossly negligent” attorney conduct can 

never amount to a showing of extraordinary circumstances). But the controlling 

case law is clear on this point: attorney mistakes are generally attributable to a 

client by agency principles; because the attorney acts as his client’s agent, the 

client is bound by the mistakes of the attorney. 

In Holland, for example, the petitioner’s attorney waited until there were 

twelve days remaining of the one-year limitations period to file the state petition;

he failed to communicate with his client despite his client’s repeated attempts to 

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address the timing problem; and he failed to inform his client of the state court’s 

ultimate denial of his state petition, despite the client having written repeatedly to 

plead for information, including citing AEDPA in his correspondence and 

expressing specific concerns about timeliness. See Holland, 560 U.S. at 635–43. 

The attorney in Holland finally responded to his client but only weeks after the 

limitations period had expired telling him -- incorrectly -- that the AEDPA 

limitations period had expired before the attorney’s appointment. Id. at 641. And, 

in Maples, the petitioner’s pro bono counsel left their New York law firm while the 

state petition was pending, were unable to represent Maples under the terms of 

their new employment, and failed to either inform Maples or seek leave of court to 

withdraw. 565 U.S. at 270–71. The state court clerk sent notice of the denial of 

Maples’s state petition to those attorneys, but it was returned as undeliverable, and 

Maples consequently failed to timely appeal the denial. Id. at 271. There, the 

Supreme Court concluded that Maples had been “left without any functioning 

attorney of record.” Id. at 288. In other words, he had been abandoned.

Applying this standard, we have refused to equitably toll statutes of 

limitations where there was even gross negligence on the part of counsel. In 

Cadet, we refused to equitably toll a limitations period where the petitioner’s 

lawyer had misinterpreted the language of § 2244 and failed to do even 

rudimentary research after his client repeatedly questioned his calculation. 853 

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F.3d at 1219–20. We explained that while the attorney’s conduct was grossly 

negligent, “he did not withdraw from representing Cadet, renounce his role as 

counsel, utterly shirk all of his professional responsibilities to Cadet, or walk away 

from their attorney-client relationship.” Id. at 1234; see also Thomas v. Att’y 

Gen., Fla., 795 F.3d 1286, 1293–94 (11th Cir. 2015) (noting that the relevant 

inquiry “is not whether an attorney’s mistake or oversight was egregious,” but 

rather “whether the attorney, through her conduct, effectively abandoned the 

client,” and remanding for the district court to apply the correct standard). 

In this case, it was clearly negligent for Clemons’s attorneys to fail to 

investigate the statutory filing fee and rely simply on the representations of an 

unnamed person in the clerk’s office. For starters, the requirements set forth in 

Rule 32.6(a) of the Alabama Rules of Criminal Procedure are clear and 

unambiguous. The petition “shall . . . be accompanied by the filing fee prescribed 

by law or rule in civil cases in the circuit court unless the petitioner applies for and 

is given leave to prosecute the petition in forma pauperis.” Ala. R. Crim. P. 

32.6(a) (emphases added). And if the petitioner seeks to prosecute the petition in 

forma pauperis, he is required to file the “In Forma Pauperis Declaration” at the 

end of the form, along with a statement concerning his prison account. Id. 

Counsel for Clemons easily could have paid the filing fee or could have filed an in 

forma pauperis motion along with a certified copy of the petitioner’s prison 

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account when he filed the Rule 32 petition on December 27, 1999. In fact, he filed 

these same documents on January 28, 2000. While it may be true that filing fees 

differ from county to county because the Alabama Code authorizes local courts to 

assess local fees above the statutory filing fee, a diligent lawyer could plainly see 

that the filing fee was at minimum $140, as set forth in the Alabama Code, and that 

the only way to avoid paying the fee was to file a properly supported motion to 

proceed IFP. 

What’s more, even a rudimentary inquiry would have revealed that the 

duties of the circuit clerk’s office in Alabama as defined in Rule 4 of the Judicial 

Administration Rules and in sections 12-17-93 and -94 of the Code of Alabama do 

not include the requirement that the clerk inform counsel how to file a document 

that complies with Alabama’s rules of procedure. Alabama’s case law has made 

that point crystal clear. See Smith v. Cowart, 68 So. 3d 802, 812 (Ala. 2011); Ex 

parte Strickland, 172 So. 3d 857, 859–60 (Ala. Civ. App. 2014). 

Clemons nevertheless urges us to apply our law equitably tolling statutes of 

limitations for pro se litigants who rely on misinformation from court or state 

officials. See Spottsville v. Terry, 476 F.3d 1241, 1245–46 (11th Cir. 2007) 

(equitably tolling AEDPA’s statute of limitations where the state habeas court 

advised a pro se petitioner to file his appeal in the wrong state court, and the 

petitioner followed the state court’s misleading advice); Knight v. Schofield, 292 

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F.3d 709, 710–11 (11th Cir. 2002) (per curiam) (equitably tolling AEDPA’s statute 

of limitations where a pro se petitioner did not receive notice of the Georgia 

Supreme Court’s denial of his habeas petition for eighteen months after the court’s 

clerk inadvertently sent notice to the wrong person). 

But these cases take Clemons no further because they are limited to pro se 

litigants, and Clemons was represented by counsel. Clemons has pointed us to no 

case that extended equitable tolling to a represented party based on his attorney’s 

receipt of misinformation from the state, and our research has turned up none. 

Indeed, it is not unusual for us to treat pro se litigants leniently while holding

represented parties to a higher standard. See, e.g., Erickson v. Pardus, 551 U.S. 89, 

94 (2007) (per curiam) (“A document filed pro se is ‘to be liberally construed,’ and 

‘a pro se complaint, however inartfully pleaded, must be held to less stringent 

standards than formal pleadings drafted by lawyers.’” (quoting Estelle v. Gamble, 

429 U.S. 97, 106 (1976))). Here, the misinformation purportedly provided by 

someone in the clerk’s office was plainly contradicted by the Alabama Code, 

which, as we have noted, Clemons’s attorney should have consulted. We can 

discern no sound basis to apply the extraordinary remedy of equitable tolling to 

excuse the negligent conduct of Clemons’s attorneys.

B. The State Court Properly Denied Clemons’s Atkins Claim

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Unlike his other thirty-one claims, Clemons’s claim based on Atkins v. 

Virginia was timely. At the time of Clemons’s trial and the initial filing of his 

Rule 32 petition, Supreme Court precedent had held that it was not per se

unconstitutional to execute intellectually disabled persons. See Penry, 492 U.S. at

340. But on June 20, 2002, the Court decided Atkins v. Virginia, holding for the 

first time that the execution of an intellectually disabled person categorically 

violates the Eighth Amendment’s guarantee against cruel and unusual punishment. 

536 U.S. at 321. And as we’ve said, the substantive constitutional rule announced 

in Atkins applies retroactively to cases on collateral review. See, e.g., Holladay, 

331 F.3d at 1173. Because Clemons properly raised his Atkins claim in the state 

courts in a timely manner after the decision and pursued it in this timely federal 

habeas petition thereafter, Clemons’s Atkins claim is properly before us. 

1. The State-Court Proceedings

Clemons first argued his Atkins claim before the Alabama Court of Criminal 

Appeals, which remanded the matter to the state trial court for an evidentiary 

hearing. After conducting an extensive hearing, the state court denied the claim. 

Clemons now says the state courts’ denial of his claim was either contrary to or an 

unreasonable application of Atkins, or was based on an unreasonable determination 

of the facts in light of the evidence presented. We are unpersuaded.

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Although the Court suggested in Atkins that an evaluation of intellectual 

disability should conform to current medical standards -- and embraced two 

clinical definitions, that of the American Association on Mental Retardation and 

the American Psychiatric Association, which both set forth the three-part test we 

use today -- it expressly left “to the State[s] the task of developing appropriate 

ways to enforce the constitutional restriction upon [their] execution of sentences.” 

536 U.S. at 317 (quotation omitted and alterations in original). The Alabama 

Supreme Court took up this task in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002). 

To show intellectual disability under Alabama law, the petitioner is required to 

prove three things: “(1) significantly subaverage intellectual functioning (i.e., an 

IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and

(3) the manifestation of these problems during the defendant’s developmental 

period (i.e., before the defendant reached age 18).” Smith v. State, 213 So. 3d 239, 

248 (Ala. 2007) (emphasis in original) (citing Perkins, 851 So. 2d at 456). 

The evidence adduced in the state court on Clemons’s intellectual 

functioning included seven IQ tests Clemons received over the course of his life,

beginning at age six. The scores varied widely, from suggesting that he is highly 

disabled (51) to suggesting that he has a functioning ability falling within the range 

of ordinary (84). In two of the seven, the test administrators explicitly found 

evidence of Clemons’s “malingering,” a term psychologists use to describe an 

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examinee’s intentional frustration of a test, further complicating the state court’s 

task of determining Clemons’s level of intellectual functioning. 

When Clemons was six years old, a school psychologist administered the 

Stanford-Binet intelligence test, and although school records following the test 

labeled Clemons “educable mentally retarded,” his full-scale score on the test was 

a 77. In 1991, while in prison on unrelated charges at the age of 19, one year 

before the Althouse murder, Clemons took the BETA-II intelligence test and 

received a full-scale score of 84. This was the highest score Clemons would 

receive on any intelligence test. The state court’s order referred to this test, but 

because it was not introduced at the evidentiary hearing, Clemons argues it should 

be disregarded. 

Five additional intelligence tests were administered following Clemons’s 

arrest for the Althouse murder. In 1992, Drs. Mark Hazelrigg and Bruce Berger

administered the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”) at the 

federal prison where Clemons was then held. Clemons obtained a full-scale IQ 

score of 51, which was by far the lowest score he would receive on any 

intelligence test. The doctors noted that people in the low-50s IQ range are “often 

in need of structured living and may be institutionalized” and are typically unable 

to care for themselves. They also observed that it would be virtually impossible to 

validly score an 84 on BETA-II and one year later validly score a 51 on WAIS-R, 

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in the absence of some intervening traumatic injury. Because Clemons could care 

for himself before his arrest and had scored an 84 on the BETA-II test 

administered the year before, Hazelrigg and Berger concluded that the score was

invalid because Clemons was malingering. 

In 2000, Dr. Kimberly Ackerson, who had been retained by defense counsel,

again administered the WAIS-R. Clemons received a full-scale score of 73 this 

time, and Dr. Ackerson said this score placed Clemons in the “borderline” range 

for intellectual disability. In contrast to the previous administration of WAIS-R, 

Dr. Ackerson opined that Clemons did not appear to be malingering; rather, he 

“appeared motivated,” was “cooperative,” “deliberate in responding,” and 

“interested in performance.” Then, in 2001, the state’s expert, Dr. King,

administered the Wechsler Adult Intelligence Scale-Third Edition (“WAIS-III”). 

Clemons obtained a full-scale score of 77. 

In 2003, the defense expert, Dr. Golden, administered the Stanford-Binet 

Intelligence Scale-Fourth Edition. Clemons obtained a full-scale score of 58. Dr. 

Golden testified that because Stanford-Binet uses a slightly different scoring 

system, the full-scale score should be adjusted to be comparable with other tests

such as the WAIS. Thus, he said the full-scale score of 58 should be adjusted to 

61. Then he testified that even 61 was too low and the “better estimate of the Binet 

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IQ is to average [the] four scores” on the different portions of the exam, which in 

Clemons’s case would yield a total score of 66. 

Finally, in 2004, the state’s expert, Dr. King, administered the original, 

unrevised WAIS, on which Clemons obtained a full-scale score of 67. King 

testified that WAIS is considered an easier test than WAIS-III, and he adjusted the 

score to 60 to bring it in line with the contemporary test scores. Dr. King also

testified that he suspected Clemons was malingering on this test. He explained that 

Clemons appeared more indifferent than when he had evaluated him in 2001 (preAtkins), and that Clemons gave incorrect answers on several questions that he had 

previously gotten right. King opined that without an intervening medical event, 

such as a stroke, a 17-point drop in a three-year period would be difficult to 

explain. Thus, King concluded that Clemons must have been malingering on the 

2004 test. To substantiate this hypothesis, King administered a Test of Memory 

Malingering (“TOMM”), which is a 50-item recognition test intended to assess 

malingering in psychological examinations. King testified that Clemons’s score of 

44 indicated that he was, in fact, malingering.

Moreover, the record contained additional evidence suggesting that Clemons

was malingering when he was psychologically evaluated. Thus, for instance, Dr. 

Wilburn Rivenbark examined Clemons in 1992 and 1994 for his competency to 

stand trial. In the 1992 test, Rivenbark suspected that Clemons was malingering 

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for psychosis, because Clemons reported “seeing and hearing a ‘little green 

friend,’” and several times smiled or laughed inappropriately but stopped acting 

this way when confronted. Moreover, Clemons insisted that he had a history of 

mental illness despite the absence of any documentation supporting the claim. 

When Rivenbark evaluated Clemons again in 1994, Clemons refused to speak with 

him or make eye contact, leading Rivenbark again to opine that Clemons was 

malingering. In both evaluations, Rivenbark concluded that Clemons was 

competent to stand trial. 

In 1993, Clemons was evaluated for competency by Dr. William Grant at the 

request of defense counsel. Dr. Grant similarly believed Clemons to be 

malingering. Like Rivenbark, Grant noted that Clemons would laugh 

inappropriately but stop when confronted. Grant also said that Clemons asked for 

Valium, and that Grant told him that the drug was unlikely to be available to 

inmates. Grant did mention twice that a different anti-depressant, Sinequan, was 

sometimes available. He was later informed that Clemons then asked prison staff 

for Sinequan by name on multiple occasions. Grant added this: “I mention these 

events because they are discordant with the Defendant’s inability to repeat” simple 

phrases on the test. Thus, the record evidence on Clemons’s intellectual 

functioning was contradictory but shadowed by a pattern of malingering on 

psychological examinations.

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As for adaptive functioning, the second prong of Perkins, the only evidence 

of Clemons’s deficits came from the testimony of Dr. Golden. Dr. Golden 

administered the Adaptive Behavior Assessment System test (“ABAS-II”). The 

ABAS-II assesses adaptive functioning in ten areas: communication, use of 

community resources, functional academics, health and safety, home living, 

leisure, self-care, self-direction, social skills, and work skills. Dr. Golden 

concluded that Clemons was severely deficient in self-direction, social skills, work

skills, home living, health and safety, and leisure. 

Ultimately, the state court concluded that Clemons had not carried his 

burden to show that he is intellectually disabled under Perkins or Atkins because 

he had shown neither that his intellectual functioning was significantly subaverage,

nor that he had substantial deficits in adaptive functioning. The state trial court 

thoroughly recounted the testimony of Dr. King and Dr. Golden at the evidentiary 

hearing, as well as the intelligence tests submitted into the record. The court 

discounted those scores for which the test administrators noted evidence of 

malingering -- that is, the 1992 score of 51 on the WAIS-R and the 2004 score of 

67 (adjusted to 60) on the WAIS. It further discounted the Stanford-Binet test 

administered by Dr. Golden, where Clemons received a full-scale score of 58, 

which Dr. Golden adjusted to a 66. The state court noted that Dr. Golden did not 

satisfactorily explain why the additional calculations were necessary to accurately 

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assess Clemons’s score, nor why the Stanford-Binet test was a better measure of 

intellectual functioning for those with intellectual disabilities. Ultimately, the 

court discounted this score -- originally a full-scale score of 58, which was at least 

15 points lower than Clemons’s remaining test scores -- because of his extensive 

history of malingering. Having discounted the very low scores, the state court was 

left with four IQ scores: a 77 on the Stanford-Binet when Clemons was a child; an 

84 when the BETA-II was administered in 1991; a 73 on the WAIS-R in 2000; and 

a 77 on the WAIS-III in 2001. The state court concluded, based on the tests, the 

evidence of malingering, and the fact that, of all of the doctors who evaluated 

Clemons over the years, only Dr. Golden ever opined that Clemons was 

intellectually disabled, that Clemons had failed to establish significant subaverage 

intellectual functioning. The court explained its finding this way: “when Clemons 

puts forward some effort he consistently scores in the 70-80 range on intelligence 

tests” and “when Clemons malingers he consistently scores in the 50-60 range.” 

The state trial court likewise found insufficient evidence of adaptive 

functioning deficits to support a finding of intellectual disability. The state court 

did not discuss Dr. Golden’s testimony or the ABAS-II test. Instead, it relied on 

evidence of Clemons’s adaptive strengths, including his employment history, his 

ability to form intimate relationships, his extensive involvement in criminal 

activity, his “post-crime craftiness,” and his ability to use community resources. 

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Clemons, 55 So. 3d at 329. In particular, the state court discussed Clemons’s job 

as a pizza delivery worker and his relationships with women, including the fact

that he had fathered two children. The court also highlighted Clemons’s efforts to 

evade law enforcement and his false statements following the Althouse murder.

The court found that this established a certain degree of criminal sophistication.

Finally, it noted Clemons’s ability to use community resources, as evidenced by 

his ability to take a bus to Cleveland in order to elude capture. Id. at 331. 

The Alabama Court of Criminal Appeals affirmed, adopting the state trial 

court’s findings and decision as its own. See Clemons, 55 So. 3d at 322–32. 

Finally, on August 13, 2010, the Alabama Supreme Court denied Clemons’s 

petition for certiorari without an opinion. Ex parte Clemons, No. 1070535 (Ala. 

Aug. 13, 2010) (per curiam). Clemons claims that the Alabama Court of Criminal 

Appeals unreasonably applied Atkins and unreasonably determined the facts in 

light of the evidence. 

2. Intellectual Functioning

Clemons says that the state court unreasonably discounted certain valid IQ 

scores and unreasonably credited other invalid scores. As we’ve elaborated, there 

are seven IQ scores in the record: 77 in childhood; 84 in 1991; 51 in 1992; 73 in 

2000; 77 in 2001; 58 (adjusted to 66) in 2003; and 67 (adjusted to 60) in 2004. 

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The parties dispute several of these scores. But regardless of those specific 

disputes, the state court’s factual determinations were not unreasonable. 

First, it is abundantly clear that a state court may discount IQ scores where 

there is evidence of malingering. See Carroll v. Sec’y, DOC, 574 F.3d 1354, 1359, 

1367–68 (11th Cir. 2009) (holding that it was not objectively unreasonable to 

discount low IQ scores in the face of evidence of malingering). It was not 

unreasonable for the state court to discount an IQ score of 51 obtained in 1992 and 

a score of 67 (adjusted to 60) obtained in 2004. Both tests were rendered infirm 

because, the state court found, Clemons was malingering. Moreover, there was a 

substantial body of additional evidence suggesting that Clemons had engaged in a

pattern of malingering, including the reports of several other doctors who had 

evaluated Clemons over the years.

Second, as the trier of fact considering the Rule 32 petition, the state court 

was entitled to make credibility determinations. There was nothing objectively 

unreasonable about the state court having discounted the testimony of Dr. Golden 

and the 2003 Stanford-Binet test he administered. In that one, Clemons received a 

full-scale score of 58, but Dr. Golden adjusted it to a 66. Golden’s testimony about 

the reliability of the Stanford-Binet test and the need to adjust Clemons’s score was

contradicted by the testimony of the state’s expert, Dr. King. The state court was 

entitled to believe Dr. King and discount Dr. Golden’s opinion. 

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Discounting three scores on account of malingering left the state trial judge

with four to consider: a 77 in childhood; an 84 in 1991; a 73 in 2000; and a 77 in 

2001. Based on all the evidence it heard, the court found that “when Clemons puts 

forward some effort he consistently scores in the 70-80 range on intelligence tests” 

but that “when Clemons malingers he consistently scores in the 50-60 range.” The 

valid scores placed Clemons in the 70–80 IQ range; therefore, the state court 

determined that Clemons failed to show significantly subaverage intellectual 

functioning. 

At the time the state court denied Clemons’s petition, no clearly established 

federal law prohibited state courts from using a bright-line cutoff for IQ scores 

above 70. IQ scores at 70 and below indicate intellectual disability, while typically 

those above 70 do not. The state court tellingly cited Alabama precedent which, at 

the time, explained that a full-scale score of 72 “seriously undermines any 

conclusion that [a petitioner] suffers from significantly subaverage intellectual 

functioning as contemplated under even the broadest definitions.” Ex parte Smith,

213 So. 3d 214, 225 (Ala. 2003). 

Years after Alabama’s denial of Clemons’s Atkins claim, however, the 

Supreme Court decided Hall v. Florida, 572 U.S. 701 (2014). There, the Court 

held for the first time that “when a defendant’s IQ test score falls within the test’s 

acknowledged and inherent margin of error [+/- 5], the defendant must be able to 

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present additional evidence of intellectual disability, including testimony regarding 

adaptive deficits.” Id. at 723; see also Kilgore, 805 F.3d at 1308. “Hall explained 

that a state’s assessment of a defendant’s intellectual disability should focus on 

whether he has evidenced, beginning ‘during the developmental period,’ both (1) 

‘significantly subaverage intellectual functioning,’ and (2) ‘deficits in adaptive

functioning (the ability to learn basic skills and adjust behavior to changing 

circumstances).’” Kilgore, 805 F.3d at 1308 (quoting Hall, 572 U.S. at 710). 

Because these criteria are “interrelated” and no “single factor [is] dispositive,” “an 

individual with an IQ test score between 70 and 75 or lower may show intellectual 

disability by presenting additional evidence regarding difficulties in adaptive 

functioning.” Hall, 572 U.S. at 722–23 (quotation omitted). However, we 

subsequently held that Hall’s procedural constitutional rule was not retroactive. 

See Kilgore, 805 F.3d at 1314, cert. denied, 138 S. Ct. 446 (2017) (mem.); In re 

Henry, 757 F.3d 1151, 1161 (11th Cir. 2014).

Clemons relies heavily on Hall because the scores he argues are valid and 

should be considered -- 73 in 2000, 75 in 2001 (adjusted down to credit Clemons’s 

claim that Dr. King made a scoring error that produced the score of 77), 66 in 

2003, and 67 in 2004 -- average to 70.25. After Hall, this would place Clemons in 

the standard error range of 70 to 75, and the intelligence prong would not be 

dispositive on its own, but rather must be considered in conjunction with adaptive 

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functioning. But we have already held that before Hall was decided “[n]othing in 

Atkins suggested that a bright-line IQ cutoff of 70 ran afoul of the prohibition on 

executing the intellectually disabled.” Kilgore, 805 F.3d at 1312. And thus, before 

Hall, a state court could conclude that a petitioner failed to satisfy the intellectual 

functioning prong of Atkins when his scores were above 70 but below 75. 

In short, it was neither contrary to nor an unreasonable application of Atkins

for the state court to conclude, as it did, that “when Clemons puts forward some 

effort he consistently scores in the 70-80 range on intelligence tests,” and thus that 

he had failed to demonstrate significantly subaverage intellectual functioning. 

The state court’s conclusion was bolstered by the fact that of the seven 

experts who evaluated Clemons in his adult years -- five of whom administered 

tests of intellectual functioning -- only one, Dr. Golden, ever opined that Clemons 

was intellectually disabled. Indeed, five out of the seven who examined him 

(Hazelrigg, Berger, King, Rivenbark, and Grant) opined that Clemons was 

malingering psychological symptoms. In the face of this body of evidence, we 

cannot say that the state court’s determination that Clemons had failed to show 

significantly subaverage intellectual functioning was based on an unreasonable 

determination of the facts, or that it was an unreasonable application of clearly 

established Supreme Court law.

3. Adaptive Functioning

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Finally, Clemons argues that the state court unreasonably applied Atkins

because it focused on his adaptive strengths, rather than on his weaknesses, and 

because it failed to account for Dr. Golden’s testimony regarding adaptive deficits 

and the ABAS-II test. Clemons relies on Moore v. Texas, 137 S. Ct. 1039 (2017), 

a Supreme Court case that long post-dates the state court’s denial of his Rule 32 

petition and thus could not have been “clearly established” at the time the state 

courts decided this matter.

3

 In Moore, the Supreme Court held that the Texas 

Court of Criminal Appeals had erred in “overemphasiz[ing] [petitioner’s] 

perceived adaptive strengths,” despite the medical community’s focus on “adaptive 

deficits.” Id. at 1050 (emphasis in original). Moreover, the Supreme Court heard 

Moore on direct review, rather than on collateral review, where AEDPA requires 

substantial deference. And in a more recent decision -- Shoop v. Hill, 139 S. Ct. 

504 (2019) (per curiam) -- the Supreme Court, this time on collateral review,

rejected the argument that a pre-Moore state court decision unreasonably applied 

Atkins by focusing on adaptive strengths over adaptive deficits. The Court 

reasoned that because “Atkins did not definitively resolve how [the adaptive 

functioning prong] was to be evaluated but instead left its application in the first 

instance to the States,” it was not an unreasonable application of Atkins to focus on 

3 This Court also has held that Moore cannot be applied retroactively under Teague v. Lane, 489 

U.S. 288 (1989). See Smith v. Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330, 1338–40 (11th Cir. 

2019), cert. denied sub nom., Smith v. Dunn, 2020 WL 3578738 (July 2, 2020).

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adaptive strengths. Id. at 508. While that approach today would be contrary to 

clearly established federal law -- that is, contrary to Moore v. Texas -- it was 

neither contrary to nor an unreasonable application of clearly established Supreme 

Court law when the state court denied Clemons’s petition.

* * *

At the end of the day, we hold that the district court properly denied 

Clemons’s habeas petition and AFFIRM its judgment. 

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