IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30256

KEVAN BRUMFIELD,

Petitioner-Appellee,

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.

CARL E. STEWART, Chief Judge:

The State of Louisiana appeals the district court’s imposition of a 

permanent injunction, enjoining the State from executing Petitioner-Appellee 

Kevan Brumfield. The district court granted habeas relief in favor of 

Brumfield, finding that he is mentally retarded1 and therefore ineligible for 

execution based on Atkins v. Virginia, 536 U.S. 304 (2002). For the reasons 

stated herein, we REVERSE the district court’s judgment.

1 As some of our sister Circuits have noted, the preferred terminology for mental 

retardation is now “intellectual disability.” See Pizzuto v. Blades, 729 F.3d 1211, 1214 n.1 

(9th Cir. 2013) (citation omitted); Hooks v. Workman, 689 F.3d 1148, 1159 n.1 (10thCir. 2012) 

(citation omitted). Nevertheless, because mental retardation is used by the parties and the 

applicable legal authority, we use mentally retarded throughout our opinion.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2014

Lyle W. Cayce

Clerk

 

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial and Direct Appeal

In 1995, a jury convicted Brumfield of the first degree murder of a Baton 

Rouge police officer—Corporal Betty Smothers—and sentenced him to death. 

The Louisiana Supreme Court affirmed his conviction on direct appeal. State 

v. Brumfield, 737 So. 2d 660 (La. 1998). He appealed to the United States 

Supreme Court, but it denied his petition for a writ of certiorari. Brumfield v. 

Louisiana, 526 U.S. 1025 (1999).

B. State Post-Conviction Proceedings

In 2000, Brumfield filed for post-conviction relief in Louisiana state court 

alleging, inter alia, that he was ineligible for execution due to insanity. In his 

petition, he also requested funds to further develop his claims. Before the state 

court considered Brumfield’s petition, the Supreme Court issued its decision in 

Atkins, which prohibited the execution of mentally retarded criminals. 

Brumfield then amended his state petition to assert an Atkins claim and that 

he was entitled to an evidentiary hearing on his mental retardation claim. As 

evidence of his claim, Brumfield provided the following: 1) his IQ score, 

obtained prior to trial, of 75; 2) his slow progress in school;2 3) his premature 

birth;3 4) his treatment at multiple psychiatric hospitals; 5) various 

medications he was prescribed; and 6) testimony that he exhibited slower 

responses than “normal babies,” suffered from seizures,4 and was hospitalized 

2 There was testimony that Brumfield read on a fourth grade level, was placed in 

special education classes, and was diagnosed with a learning disability.

3 We note that, while Brumfield claimed he was born prematurely, this assertion is 

contradicted by the record. However, he accurately stated that his birth weight was 3.5 

pounds.

4 This assertion is also belied by the record, which only reflects that one seizure 

occurred. 

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for months after his birth. In the petition, Brumfield again requested funds to 

develop his claims.

On October 23, 2003, the state trial court conducted a hearing on 

Brumfield’s pending petition. At the hearing, the trial court denied 

Brumfield’s petition in its entirety and stated as to the Atkins claim:

I guess the biggest [issue] we need to address is the claims of 

mental retardation and Atkins and whether or not the defendant 

is entitled to a hearing to determine that issue, and I’ve read the 

cases that were cited and also both sides’ arguments, and even in 

Atkins it is clear that everybody that’s facing the death penalty is 

not entitled to an Atkins hearing.

The cases say that that’s to be taken up on a case-by-case method, 

and the burden of proving that [] is an issue that needs to be 

addressed is on the defendant here. I’ve looked at the application, 

the response, the record, portions of the transcript on that issue, 

and the evidence presented, including Dr. Bolter’s testimony, Dr. 

Guinn’s testimony, which refers to and discusses Dr. Jordan’s 

report, and based on those, since this issue—there was a lot of 

testimony by all of those in Dr. Jordan’s report. Dr. Bolter in 

particular found [Brumfield] had an IQ of over—or 75. Dr. Jordan 

actually came up with a little bit higher IQ. I do not think that the 

defendant has demonstrated impairment based on the record in 

adaptive skills. The doctor testified that he did have an anti-social 

personality or sociopath, and explained it as someone with no 

conscience, and the defendant hadn’t carried his burden placing 

the claim of mental retardation at issue. Therefore, I find he is not 

entitled to [an Atkins] hearing based on all of those things that I 

just set out.

The trial court did not address Brumfield’s request for funding, and 

Brumfield’s counsel did not raise the issue or specifically object to the court’s 

failure to address it.

Brumfield then filed a writ with the Louisiana Supreme Court, alleging, 

inter alia, that the district court erred in failing to hold an Atkins hearing 

because he had presented substantial evidence supporting the claim. In the 

application, Brumfield requested an Atkins hearing as well as funding. The 

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Louisiana Supreme Court denied petitioner’s writ without explanation. 

Brumfield v. State, 885 So. 2d 580 (La. 2004).

C. Federal Post-Conviction Proceedings

On November 4, 2004, Brumfield timely filed a petition for a writ of 

habeas corpus with the federal district court. The petition asserted, among 

other things, that the state court erred in failing to grant relief as to 

Brumfield’s Atkins claim and in failing to hold an Atkins hearing. Brumfield

also requested funds to enable him to properly present his claims.

After Brumfield filed his petition, the district court appointed counsel, 

and the Federal Public Defender Board provided expert funding. In 2007, 

Brumfield amended his petition to incorporate the expert findings. The 

magistrate judge (“MJ”) issued a Report and Recommendation, which first 

found, when considering the evidence Brumfield submitted to the state court, 

the state court’s refusal to grant an Atkins hearing to be “reasonable and in 

accordance with clearly established federal law.” However, the MJ concluded 

that it should consider the additional evidence Brumfield presented in his 

amended habeas petition. In the MJ’s view, Brumfield demonstrated cause for 

failing to provide the state court with the new evidence because he did not have 

the requisite funding. Additionally, if Brumfield was barred from presenting 

the new evidence, he would be prejudiced due to a state statute of limitation. 

After reviewing the additional evidence, the MJ concluded that Brumfield had 

established a prima facie case of mental retardation such that he was entitled 

to an Atkins hearing. The district court adopted the MJ’s report and 

recommendations, and it held a six-day Atkins evidentiary hearing in 2010.

On February 22, 2012, the district court granted Brumfield’s petition for 

a writ of habeas corpus on the ground that he is mentally retarded and 

therefore ineligible for execution. The district court then issued a permanent 

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injunction, forbidding the State from executing Brumfield. The State timely 

appealed.5

II. DISCUSSION

On appeal, the State first argues that the district court erred by failing 

to give the proper deference to the state court’s denial of Brumfield’s request 

for an Atkins hearing. The district court therefore erred, in the State’s view, 

by holding an evidentiary hearing. Alternatively, the State contends that, even 

if this court were to consider the evidence produced in the federal evidentiary 

hearing, Brumfield has not proven that he was mentally retarded. We address 

each argument in turn.

A. Standard of Review

When considering an appeal from a district court’s grant of habeas relief, 

this court reviews issues of law de novo and findings of fact for clear error. 

Wiley, 625 F.3d at 204–05 (citing Fratta v. Quarterman, 536 F.3d 485, 499 (5th

Cir. 2008)). The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

limits the ability of a federal court to issue a writ of habeas corpus to a state 

prisoner where the prisoner’s claim was “adjudicated on the merits in State 

court proceedings.” 28 U.S.C. § 2254(d). “When a federal claim has been 

presented to a state court and the state court has denied relief, it may be 

presumed that the state court adjudicated the claim on the merits in the 

absence of any indication or state-law procedural principles to the contrary.” 

Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). This is true whether the 

state court addresses all, some, or none of a prisoner’s claims. See Johnson v. 

Williams, 133 S. Ct. 1088, 1094 (2013).

5 Because the State is the appellant, no Certificate of Appealability is required. Wiley 

v. Epps, 625 F.3d 199, 204 n.2 (5th Cir. 2010); Fed. R. App. P. 22(b)(3).

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When a state court adjudicates a prisoner’s claim on the merits, a federal 

habeas court “shall not” grant the prisoner’s writ of habeas corpus unless the 

state court’s ruling:

(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.

28 U.S.C. § 2254(d).

Under § 2254(d)(1), the law must be “clearly established in the holdings 

of [the Supreme] Court” at the time of the state court’s decision. Harrington, 

131 S. Ct. at 785 (citation omitted). “[A]n unreasonable application of federal 

law is different from an incorrect application of federal law.” Renico v. Lett, 

559 U.S. 766, 773 (2010) (citation omitted). “[I]t is not an unreasonable 

application of clearly established Federal law for a state court to decline to 

apply a specific legal rule that has not been squarely established by [the 

Supreme] Court.” Harrington, 131 S. Ct. at 786 (internal quotation marks and 

citation omitted) (first alteration in original). “[A] habeas court must 

determine what arguments or theories supported or . . . could have supported, 

the state court’s decision; and then it must ask whether it is possible 

fairminded jurists could disagree that those arguments or theories are 

inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. 

A state court’s decision is not entitled to AEDPA deference under § 2254(d)(1) 

“if the state court correctly identifies the governing legal principle from the 

Supreme Court’s decisions, but unreasonably applies it to the facts of the 

particular case” or if the state court “extends a legal principle from [Supreme 

Court] precedent to a new context where it should not apply or unreasonably 

refuses to extend that principle to a new context where it should apply.” 

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Chester v. Thaler, 666 F.3d 340, 344 (5th Cir. 2011) (alteration in original) 

(citations and internal quotation marks omitted).

Under § 2254(d)(2), “relief may not be granted unless the decision was 

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

presented in the State court proceedings. A factual determination made by a 

state court must be rebutted by clear and convincing evidence.” Id. at 348 

(quoting Clark v. Quarterman, 457 F.3d 441, 443 (5th Cir. 2006)) (internal 

quotation marks omitted). “The question of whether a defendant suffers from 

mental retardation involves issues of fact, and thus is subject to a presumption 

of correctness that must be rebutted by clear and convincing evidence under 

Section 2254(e)(1).” Id. (quoting Maldonado v. Thaler, 625 F.3d 229, 236 (5th 

Cir. 2010)) (internal quotation marks omitted).

B. Applicable Law

The Supreme Court “did not provide definitive procedural or substantive 

guides for determining when a defendant is mentally retarded.” Hearn v. 

Thaler, 669 F.3d 265, 272 (5th Cir. 2012) (quoting Bobby v. Bies, 556 U.S. 825, 

831 (2009)) (internal quotation marks omitted). Instead, the Supreme Court 

left “to the State[s] the task of developing appropriate ways to enforce the 

constitutional restriction upon [the] execution of sentences.” Atkins, 536 U.S. 

at 317 (internal quotation marks and citation omitted). Therefore, we examine 

Louisiana law to determine whether Brumfield established the prerequisites 

of an Atkins claim.

Louisiana defines mental retardation as “a disability characterized by 

significant limitations in both intellectual functioning and adaptive behavior 

as expressed in conceptual, social, and practical adaptive skills. The onset 

must occur before the age of eighteen years.” La. Code Crim. Proc. art. 

905.5.1(H)(1). The Louisiana Supreme Court has held that the confidence 

range associated with an intellectual quotient (“I.Q.”) score of 75 “brush[es] the 

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threshold score for a mental retardation diagnosis; however, it is possible for 

someone with an I.Q. score higher than 70 to be considered mentally retarded 

if his adaptive functioning is substantially impaired.” State v. Dunn (Dunn 

III), 41 So. 3d 454, 470 (La. 2010). 

Adaptive functioning “refers to how effectively individuals cope with 

common life demands and how well they meet the standards of personal 

independence expected of someone in their particular age group, sociocultural 

background, and community setting.” Id. at 463 (internal quotation marks and 

citation omitted). The Louisiana Supreme Court has recognized “six major life 

activities related to adaptive functioning: self-care, understanding and use of 

language, learning, mobility, self-direction, and capacity for independent 

living.” Id. (citation omitted). This prong is satisfied when there are 

“significant limitations in . . . at least two of the following skill areas: 

communication, self-care, home living, social/interpersonal skills, use of 

community resources, self-direction, functional academic skills, work, leisure, 

health, and safety . . . .” Id. at 459

In State v. Dunn (Dunn II), 974 So. 2d 658, 662 (La. 2008) (per curiam), 

the Louisiana Supreme Court held that the procedure it explained in State v. 

Williams, 831 So. 2d 835 (La. 2002) governed cases in which the issue of 

whether to hold an Atkins hearing is raised post-trial. That is, a defendant 

must first “come forward with some evidence to put his mental condition at 

issue.” State v. Dunn (Dunn I), 831 So. 2d 862, 884 (La. 2002). The defendant 

must undergo a mental examination “[i]f the court has reasonable ground to 

doubt whether the defendant is mentally retarded.” Id. Essentially, “[t]he 

defendant [must] come forward with some evidence initially to put his or her 

mental condition at issue.” Dunn III, 41 So. 3d at 461. Then, the “defendant 

must prove his or her mental retardation by a preponderance of the evidence.” 

Id.

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C. Analysis

We first consider whether the state court’s judgment was “on the merits” 

as contemplated by § 2254(d). We agree with the district court that the state 

court’s decision was “on the merits.” 28 U.S.C. § 2254(d). The state court did 

not cite any procedural grounds relating to Brumfield’s mental retardation 

claim in its decision or at its hearing.6 Therefore, the state court’s 

determination is due AEDPA deference unless an exception under §§ 

2254(d)(1)–(2) applies. Because no exception applies, we hold that the state 

court’s judgment was entitled to AEDPA deference.

1. 28 U.S.C. § 2254(d)(1)

The district court erred in its determination that the state court decision 

was not entitled to AEDPA deference. In the district court’s view, the state 

court was required to provide Brumfield with the funds necessary to develop 

his claims. However, there is no Supreme Court decision that has held that 

prisoners asserting Atkins claims are entitled to expert funds to make out a 

prima facie case. Rather than present cases holding that Brumfield was 

entitled to funding to develop his prima facie case, the district court faulted 

the state court for failing to extend the due process precepts in Atkins, Ford, 

and Panetti to encompass this aspect of due process. See Chester, 666 F.3d at 

344 (holding that a state court’s decision is not entitled to AEDPA deference 

under 2254(d)(1) where the court “unreasonably refuses to extend [a legal 

principle from Supreme Court precedent] to a new context where it should 

apply”).

6 Even though the state court did not discuss Brumfield’s funding request, we presume 

that its denial of funds was also a decision “on the merits.” See Johnson, 133 S. Ct. at 1096

(“When a state court rejects a federal claim without expressly addressing that claim, a federal 

habeas court must presume that the federal claim was adjudicated on the merits—but that 

presumption can in some limited circumstances be rebutted.”).

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The district court’s holding was an unwarranted extension of Supreme 

Court jurisprudence. See id. at 345 (“The first step in determining whether a 

state court unreasonably applied clearly established federal law is to identify 

the Supreme Court holding that the state court supposedly unreasonably 

applied.”). Under Panetti v. Quarterman, 551 U.S. 930 (2007), and Ford v. 

Wainwright, 477 U.S. 399 (1986), a court is explicitly required to provide an 

“opportunity to be heard” once the prisoner has made a “substantial threshold 

showing of insanity.” Panetti, 551 U.S. at 949 (internal quotation marks and 

citation omitted). This includes the opportunity to submit expert evidence. Id.

at 951. However, nowhere does the Supreme Court hold that this opportunity 

requires the court or the state to provide the prisoner with funds to obtain this 

expert evidence. Nor has this circuit recognized that such an established 

federal right exists. See Morris v. Dretke, 413 F.3d 484, 501 (5th Cir. 2005) 

(Higginbotham, J., concurring) (“[T]he State was within its rights to deny [the 

petitioner] assistance in obtaining intellectual testing [in order to make out a 

prima facie case of mental retardation].”).

We have explained the due process rights due “under Ford[:] [o]nce a 

prisoner seeking a stay of execution has made a ‘substantial threshold showing 

of insanity,’ the protection afforded by procedural due process includes a ‘fair 

hearing’ in accord with fundamental fairness.” Rivera v. Quarterman, 505 F.3d 

349, 358 (5th Cir. 2007) (second alteration in original) (quotation omitted). 

Similarly, “[t]he lesson we draw from Panetti is that, where a petitioner has 

made a prima facie showing of retardation . . . the state court’s failure to 

provide him with the opportunity to develop his claim deprives the state court’s 

decision of the deference normally due.” Id. Thus, the strictures of procedural 

due process associated with Ford and Panetti attach only after a prisoner has 

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made a “substantial threshold showing.” Accordingly, we hold that the state 

court did not violate § 2254(d)(1).7

2. 28 U.S.C. § 2254(d)(2)

Similarly, the state court’s judgment did not violate § 2254(d)(2). 

Brumfield does not contend that he presented a prima facie showing of mental 

retardation before the state court. Accordingly, he has waived this claim. See 

Trico Marine Assets Inc. v. Diamond B. Marine Servs. Inc., 332 F.3d 779, 790 

n.6 (5th Cir. 2003) (“Issues not raised or argued in the brief of the appellant 

may be considered waived and thus will not be noticed or entertained by the 

court of appeals.” (citation and emphasis omitted)). Nevertheless, even if this

claim were not waived, our review of the record persuades us that the state 

court did not abuse its discretion when it denied Brumfield an evidentiary 

hearing. The district court erroneously found that the state court rested its 

ruling on Brumfield’s adaptive skills and faulted the state court for failing to 

provide Brumfield with the requisite funding. The district court also chided 

the state court for relying on evidence presented for mitigation purposes and 

deciding Brumfield’s claim based on a record which failed to discuss all of the 

necessary elements. In addition, the district court concluded that the state 

court wrongly used competency evidence to determine Brumfield’s Atkins 

claim. 

Contrary to the district court’s ruling, the state court considered both the 

intellectual functioning and adaptive behavior prongs of Louisiana’s test for 

7 Unlike the situation before us in Wiley, 625 F.3d 199, there is no violation of due 

process that would render deference to the state court inappropriate. In Wiley, because the 

state court failed to follow its own procedure, we held that the state court was not due 

deference under AEDPA. Id. at 211. Conversely, neither Brumfield nor the district court 

could point to any state law or procedure violated by the state court when it denied his Atkins 

claim and request for funds. The cases relied on by Brumfield and the district court simply 

do not support their contention that the state court strayed from the applicable Louisiana 

law on this issue.

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mental retardation. The state court noted that of the two I.Q. tests, one 

returned a score of 75 and the other returned “a little bit higher I.Q.” The state 

court then properly considered the evidence of adaptive functioning that 

Brumfield presented. The state court concluded that Brumfield had not 

“demonstrated impairment in adaptive skills.” The district court criticized the 

state court for not analyzing each sub-factor of the adaptive skills prong, but 

there is no requirement that the state court articulate all of its reasons. 

Notably, no one testified that Brumfield was mentally retarded. Indeed, the 

record showed that at least one doctor diagnosed him with attention-deficit 

disorder and an anti-social personality. There was also testimony that 

Brumfield was capable of daily life activities such as working and establishing 

relationships. Based on the evidence in the record, we conclude that the state 

court did not clearly err in determining that Brumfield did not meet his burden 

of presenting a prima facie case of mental retardation under Louisiana law. 

Thus, the state court’s decision does not fall under the exceptions in § 2254(d) 

and was entitled to AEDPA deference.

In sum, the district court erred when it failed to give the proper AEDPA 

deference to the state court’s decision. Because the state court’s judgment was 

entitled to AEDPA deference, “there was no reason for the district court to 

conduct an evidentiary hearing.” Blue v. Thaler, 665 F.3d 647, 661 (5th Cir. 

2011). Accordingly, it was error for the district court to conduct such a hearing, 

and we therefore disregard the evidence adduced for the first time before the 

district court for purposes of our analysis under § 2254(d). See Cullen v. 

Pinholster, 131 S. Ct. 1388, 1398 (2010) (“[R]eview under § 2254(d)(1) is limited 

to the record that was before the state court that adjudicated the claim on the 

merits.”); Blue, 665 F.3d at 655–56 (“Pinholster prohibits a federal court from 

using evidence that is introduced for the first time at a federal-court 

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evidentiary hearing as the basis for concluding that a state court’s adjudication 

is not entitled to deference under § 2254(d).”).8

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of 

habeas relief in favor of Brumfield.

8 Even if we were to consider the new evidence presented to the district court, we likely 

would hold that Brumfield failed to establish an Atkins claim. See Dunn III, 41 So.3d 454 

(holding, under similar circumstances, that the defendant failed to carry his burden of 

establishing that he was mentally retarded).

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