### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2683

B RUCE C ARNEIL W EBSTER , Petitioner-Appellee

,

v.

T. J. W ATSON, Warden, Respondent-Appellant

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:12-cv-86 — William T. Lawrence

, Judge

.

____________________

A RGUED A UGUST 5, 2020

— D ECIDED S EPTEMBER 22, 2020

____________________

Before K ANNE , H AMILTON, and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . In 1996 the federal district court in Fort Worth, Texas sentenced Bruce Webster to death for themurder two years earlier of a 16-year-old girl. Ever since Webster has sought relief from thatsentence on the same groundhe advanced at trial—that he is intellectually disabled. His efforts gained traction in 2009, wh en his lawyers came upon records dating to 1994 from the Social Security Administration showing that three di ff erent doctors found him intellectually2 No. 19-2683

disabled. That development sparked a renewed e ff ort to secure relief in this circuit becaus e Webster is housed in the U.S. Penitentiary in Terre Haute, Indiana. In 2015, si tt ing en banc

, we held that Webster was not barred by the limitations imposed on successive requests for post-conviction relief from seeking to show that he is in eligible for the death penalty based on newly discovered evidence. Webster v. Daniels , 784 F.3d 1123, 1139–40 (7th Cir. 2015). We remanded to allow the district court to determine whether the Social Security records constituted newly discovered evidence—a question turning on whether the records were “previously existing evidence of [Webster’s] intellectual disability that counsel did not uncover despite diligent e ff orts.” Id. at 1141. Following extensive proceedings on remand, the district court found that Webster’s defense counsel did not discover the Social Security records despite reasonable diligence at the time of trial. From there the district court held a fi ve-day hearing and determined that Webster had carried his burden of showing by a preponderance of th e evidence that he is intellectually disabled. Having taken our own look at the record evidence, we conclude that the district court’s fi ndings contain no clear error. We therefore a ffi rm the decision to vacate Webster’s death sentence.

I Not unlike many capital cases, Bruce Webster’s case hastraveled a long and complex path in multiple courts. Everything began with Webster’s atrocious o ff ense conduct.

A. The Murder of Lisa Rene In the early 1990s Webster ran a marijuana tra ffi cking enterprise with others in Pine Blu ff , Arkansas. He and hisNo. 19-2683 3

associates bought marijuana near Dallas, Texas and transported it back to Arkansas. In September 1994, Webster, Orlando Hall, Demetrius Hall, and Steven Beckley traveled from Li tt le Rock to the Dallas home of Neil Rene, a local drug dealer, seeking reprisal for a drug deal gone wrong. Neil’s 16-year-old sister, Lisa Rene,was home alone at the time. When the men knocked, pretending to be FBI agents, Rene refus ed to open the door and instead called the police. Before the police could respond, however, Webster and Demetrius broke through the door and dragged her into a nearby c ar. Webster, Demetrius Hall, andBeckley then drove Rene 330 miles back to Arkansas, repeatedly raping her on the way. Upon reaching Pine Blu ff , the men rented a motel room where they tied Rene to a chai r and took turns raping her several more times. Eventually th ey decided that Rene knew too much and needed to die. Webster and Orlando Hall then drove to a nearby park and dug a grave. In the early hours of September 26, Webster, Orlando Hall, and Beckley took Rene to the park, beat her with a shovel, stripped her naked, poured gasoline on her body, and buried her alive.

Arrests soon followed and resu lted in Beckley and Demetrius Hall admi tt ing to their roles in the murder and leading the police to Webster. In time a federal grand jury indicted Webster on six counts related to the kidnapping and murder of Lisa Rene. The government sought the death penalty.

B. Webster’s Trial, Direct Appeal, and First Motion for Post-Conviction Relief Webster proceeded to a jury trial in federal court in Fort Worth, Texas in 1996. Demetrius Hall, Beckley, and others4 No. 19-2683

testi fi ed against him. The jury found Webster guilty of kidnapping in which a death occurred (18 U.S.C. § 1201(a)(1)), conspiracy to commit kidnapping (18 U.S.C. § 1201(c)), and using and carrying a fi rearm during a crime of violence (18 U.S.C. § 924(c)).

The district court then held a sentencing hearing before the same jury. Webster’s trial counsel, Larry Moore, argued that Webster was intellectually disabled—or, in the commonlexicon of the time, mentally retarded—and therefore statutorily ineligible to receive a death sentence. See 18 U.S.C. § 3596(c) (“A sentence of death sh all not be carried out upon aperson who is mentally retarded.”). Note the timing: Webster’s sentencing occurred before the Supreme Court’s 2002 holding in Atkins v. Virginia that the execution of an intellectually disabled person violat es the Eighth Amendment’s prohibition against cruel and unus ual punishment. See 536 U.S. 304. To show that Webster was intellectually disabled, Moorerelied primarily on testimony from three experts: Dr. Raymond Finn, a clinical psycholo gist; Dr. Dennis Keyes, a professor of special education and a certi fi ed school psychologist; and Dr. Robert Fulbright, a clinical neuropsychologist. Each expert o ff ered opinions based in large part on Webster’s scores on several intelligence tests (often called Intelligence Quotient or I.Q. tests) used to diagnose intellectual disability. Only one test had been administered before Rene’s murder in1994, however. In 1992, following a report of domestic violence in the family home, Webster had taken a commonly used I.Q. test called the Wechsler Adult Intelligence Scale or the WAIS test. He scored a 48, we ll below the accepted threshold for intellectual disability. At sentencing the parties agreedNo. 19-2683 5

that the 1992 score may not have been accurate because, at the time of testing, evidence showed that Webster was confused, preoccupied, and poorly oriented.

Dr. Finn testi fi ed that he administered the WAIS test to Webster twice after the crime, in January 1995 and again in June 1996. Webster scored 59 and 65, indicating that he was“mildly retarded.” Dr. Keyes also administered a separate behavioral test and testi fi ed that Webster’s adaptive functioning was that of a six- to seven-year-old. Along similar lines, Dr. Fulbright evaluated Webster, found him unable to thinkabstractly or understand complex communications, and concluded that he was “mildly to moderately retarded.”The government strongly contested that Webster is intellectually disabled. First, the government emphasized Webster’s intellectual and adaptive strengths by presenting evidence from lay witnesses, including police o ffi cers, school teachers, jailers, and a fellow inmate who testi fi ed, among other things, that Webster passed his driving test, was “street smart,” had the capacity to quot e scripture in prison, and scored in the 43rd percentile on a seventh grade national achievement test. The witnesses also denied that Webster was enrolled in special education classes in grade school. One of the government’s two expert witnesses, Dr. Richard Coons, found Webster to be well-oriented to time, place, chronologyof events, and people, and concluded that his adaptive functioning was inconsistent with intellectual disability. Second, the government argued that Webster had everyincentive to manipulate his intelligence test results—a concept known as malingering—to avoid the death penalty. The government’s other expert, Dr. George Parker, administered a truncated WAIS test to Webster, resulting in a full-scale6 No. 19-2683

score of 72. Webster argued that Dr. Parker omi tt ed important subtests that would have lowered the fi nal score. The bo tt om line for Dr. Parker, though, was that Webster did not exhibit an intellectual disability. He agreed with the government that motivation can modify test result s, particularly in the “forensic” se tt ing.The sentencing hearing concluded with a majority of jurors fi nding that Webster was not intellectually disabled. Because the operative sentencing statute, 18 U.S.C. § 3596(c),does not specify whether a judge or jury should make this determination, the district court entered its own fi nding that Webster was not intellectually disabled and sentenced him to death. See United States v. Webster, 162 F.3d 308, 352 (5th Cir. 1998) (rejecting Webster’s challenge to the court’s separate fi nding because “[t]he statutory scheme simply does not answer who decides this issue”). The Fifth Circuit a ffi rmed thesentence on direct review, and the Supreme Court denied certiorari. See Webster v. United States , 528 U.S. 829 (1999). In 2000 Webster invoked 28 U.S.C. § 2255 and began his pursuit of post-conviction relief. Recognizing the potential impact of the Supreme Court’s intervening decision in Atkins

,Webster amended his petition in 2002. The district court rejected all 16 of Webster’s grounds for relief, but granted a certi fi cate of appealability on two issues—whether “the evidence presented at trial was insu ffi cient to warrant the district court’s fi nding that Webster is not mentally retarded” and whether Webster’s “alleged retardation renders him ineligible for a death sentence.” United States v. Webster, 421 F.3d 308, 310 (5th Cir. 2005). The Fifth Circ uit denied the § 2255 motion, reasoning that Webster’s petitionwas “nothing more than an

a tt empt to re-litigate the question” of his mental capacity. Id.No. 19-2683 7

at 314. The Supreme Court again denied review. See Webster v. United States , 549 U.S. 828 (2006).

C. Discovery of New Evidence A signi fi cant development occurred in 2009 that ultimately paved the way to this appeal. One year earlier, the law fi rm of Dorsey & Whitney took over from Webster’s original post-conviction counsel. Dors ey & Whitney soon uncovered evidence that revived Webster’s e ff orts to vacate his death sentence: Social Security Administration records dating to 1993—before the murder of Lisa Rene—showing that three doctors had diagnosed Webster as “mentally retarded.” Because these records predated the murder, Webster’s new legal team saw the records as except ionally important, as the evidence would be immune from a tt ack on the ground that Webster manipulated the diagnosis by malingering.

The e ff orts Webster’s a tt orney Larry Moore made to obtain these Social Security records before trial became a major issue in Webster’s pursuit of relief from his death sentence. Fornow, though, what is important is understanding the information revealed in the records. The Social Security records showed that Webster, with his mother’s help, had applied for disability bene fi ts in 1993 on the basis of headaches and sinus issues. In the course of evaluating his application, two psychologists and one physicianexamined Webster’s intellectual capacity. The records contained these fi ndings and opinions:8 No. 19-2683

 Dr. Charles Spellmann, a clinical psychologist, foundthat Webster’s “ideation was sparse,” he could not register and repeat three objects or complete simple calculations, and he did not understand basic expressions. Dr. Spellmann observed that Webster’s functioning seemed limited as he was “idle around the house and on the streets.” Dr. Spellma nn estimated that Webster’s I.Q. was around 69 and diagnosed him with “mental retardation” and “antisocial personality by history.”

 A second psychologist, Dr. Edward Hacke tt, administered the WAIS intelligence test to Webster and calculated a score of 59. Dr. Hacke ttalso diagnosed Websterwith “mild mental retardation” and “antisocial personality disorder.”

 A general physician, Dr. C.M. Ri tt elmeyer, gave Webster a standard physical ex amination. In reporting his fi ndings, Dr. Ri tt elmeyer diagnosed Webster with “mental retardation.” In the course of reviewing the Social Security records, the Dorsey & Whitney team also came upon a le tt er from Webster’s grade school, dated November 8, 1993, referring to records regarding special education classes. The le tt er bore the signature of the Special Education Supervisor of Watson Chapel Schools and stated (with express reference to Webster)that “[t]he above student’s Special Education records were destroyed in 1988.” The le tt er then added that “[a] le tt er was mailed to parents at the last known address, telling them they could have the records if they wanted them. There was no response to the le tt er.” Dorsey & Whitney believed that Webster’s enrollment in special education classes would help establish an intellectual disability.No. 19-2683 9

D. Webster’s Renewed E ff orts to Vacate His Death Sentence Relying on the fi ndings of intellectual disability embodied in the newly obtained Social Security records, and pointing again to the Supreme Court’s decision in Atkins , Webster returned to federal court with renewed requests to vacate his death sentence. He fi rst asked for permission to fi le a new motion for post-conviction relief under 28 U.S.C. § 2255. The Fifth Circuit denied the request, determining that Webster failed to meet the stringent limitations Congress imposed on second or successive motions fo r post-conviction relief. See 28 U.S.C. § 2255(h) (permi tt ing a second or successive motiononly if it relies on either (1) newly discovered evidence showing by clear and convincing evid ence that no reasonable jury would have found the applicant guilty of the o ff ense, or (2) a new rule of constitutional law previously unavailable that theSupreme Court has made retroactive to cases on collateral review). Applying § 2255(h), the Fi fth Circuit reasoned that not only was Atkins available to Webster at the time of his fi rst amended § 2255 motion, but, even more, the Social Security records in no way undermined the jury’s fi nding of guilt for the kidnapping resulting in death o ff ense for which he received a capital sentence. See In re: Webster, 605 F.3d 256, 258 (5th Cir. 2010). Unable to pursue relief under § 2255, Webster turned to 28 U.S.C. § 2241, once again relied on Atkins , and sought anew to vacate his sentence in the Southern District of Indiana—the location of the U.S. Penitentiary in Terre Haute, where he was housed on death row. See Rumsfeld v. Padilla , 542 U.S. 426, 447 (2004) (explaining that a § 2241 petitioner “should name his10 No. 19-2683

warden as respondent and fi le the petition in the district of

con fi nement”).Whether Webster could pursue relief under § 2241 was itself a vigorously contested issue, one that touched o ff its own round of litigation that culminated in our 2015 en bancdecision answering in the a ffi rmative. See Webster, 784 F.3d at 1125. The issue turned on whether Webster’s Atkins claim fi t within the so-called savings clau se of § 2255(e)—a question of substantial complexity. In the end, we held that “there is nosuch absolute bar to the use of the safety valve found in section 2255(e) for new evidence that would demonstrate categorical ineligibility for the death penalty [under the Eighth Amendment].” Id.In resolving the legal question in Webster’s favor, we remanded to allow the district court to determine whether he could meet the “new evidence” standard. We provided clear and precise direction for the re mand proceedings and that instruction frames much of ou r review in this new appeal: The district court must hold a hearing for the purpose of deciding whether the Social Security records were indeed unavailable to Webster and his counsel at the time of the trial. In considering that question, the districtcourt must also evaluate trial counsel’s diligence. If the court concludes, as Webster’s lawyers urge, that the records were unavailable and all due diligence was exercised, and that Webster has them now only because of a fl uke, then it must turn to the merits of the petition: is Webster so intellectually disabled that he is catego rically ineligible for the death penalty under Atkins and Hall?No. 19-2683 11

Both the government and Webster would be entitled at a hearing to o ff er evidence relevant to that determination; if Webster is not limited to the record before the original trial court, there isno reason to impose such a limit on the government. Webster, as the petitioner, bears the burden of proving intellectual disability. If he gets this far, what this will be as a practical ma tt er is a partial new sentencing hearing. At this laterstage, the proper burden of proof is a preponderance of the evidence , not “clear and convincing” evidence.

Id. at 1146.

So Webster’s case returned to the district court in Indiana.

II

A. The District Court Proceedings on Trial Counsel’s Due Diligence In June 2018 the district court held a hearing to determine whether Webster’s trial team was duly diligent in seeking the Social Security records that Dorsey & Whitney later received in 2009. The court heard testimony from two witnesses: lead trial counsel Larry Moore and Kristen LeRoux, one of theDorsey & Whitney paralegals who helped to retrieve the Social Security records.

Moore testi fi ed that he had extensive experience as a prosecutor and a defense a tt orney by the time the trial court appointed him to represent Webster in 1994. Indeed, Moore hadparticipated in six previous capital cases—three as a prosecutor and three as defense counsel.12 No. 19-2683

Moore explained that his strategy in Webster’s case focused on sentencing, as the government had overwhelming evidence of Webster’s role in kidnapping and murdering LisaRene. So Moore quickly determined that Webster’s intellectual capacity would be the “single biggest issue” at trial anddevoted considerable energy to pursuing an intellectual disability defense to the death penalty. Moore testi fi ed that he had Webster evaluated by fi ve experts and “sought out every medical record that [he] could fi nd, every school record that [he] could fi nd, [and] every person that [he] could fi nd that had known Mr. Webster growing up.”

Moore added that he and his team traveled to Li tt le Rock before trial to interview family and other potential witnesses about Webster’s intellectual ability. Webster’s mother told Moore that sometime in the e arly 1990’s (and thus before the murder of Lisa Rene) she ha d applied for disability bene fi ts with the Social Security Administration on her son’s behalf.Upon learning this information, and drawing on his experience in other cases, Moore thought the Social Security Administration may have records shedding light on Webster’s intellectual functioning. He testi fi ed that he directed his paralegal Kim Whitehead to request records from the agency. According to Moore, Whitehead then contacted Hal West of the Social Security o ffi ce in Pine Blu ff , the Li tt le Rock suburb where Webster lived before his arrest. Whitehead learned that to obtain Social Security records, she would have to submit a formal Business Records Authorization request accompanied by a release executed by Webster. Moore testi fi ed thatWhitehead followed those steps and advised West that the defense team’s investigator J.W. Strickland would visit the Pine Blu ff o ffi ce in person to pick up any records.No. 19-2683 13

Webster introduced several documents to corroborate Moore’s testimony. The exhibits included two handwri tt en notes between Moore and Whitehead from his trial fi le. In one note, wri tt en after Moore met with Webster’s mother, he directed Whitehead to “call [the Pine Blu ff ] o ffi ce to fi nd out what we need to get copies of those records.” Moore ended the note by underscoring, “I n eed test results!” Moore’s second note emphasized that the team “need[ed] to know how to get Bruce’s records re: Appl. For disability bene fi ts (any testing?).”

Webster further introduced a faxed le tt er from Whitehead to West at the Pine Blu ff Social Security o ffi ce. The le tt er was dated February 29, 1996 and bore a transmi tt al legend of March 4. Signed by Whitehead, the le tt er stated that “[a]s yourequested I have enclosed a copy of a Business Records Authorization and Release,” and “[i]t is my understanding that Mr. Webster applied for disability in 1992 and some testing was done.” A tt ached to the le tt er (and included with the fax) was a records release signed by Webster, with Whitehead’s le tt er further indicating that investigator J.W. Strickland would visit Pine Blu ff from March 1–5, 1996 to pick up any records and to deliver the original release form.

Moore also recalled that Strickland had in fact visited Pine Blu ff . Moore testi fi ed that he remembered receiving a call from Strickland during jury se lection, with Strickland telling him that the Pine Blu ff Social Security o ffi ce reported having no records on Webster. Moore added that he followed up by personally calling the o ffi ce in Pine Blu ff to con fi rm that “they didn’t have any record regarding Mr. Webster’s application for bene fi ts.” At that point, Moore continued, he took the14 No. 19-2683

Social Security o ffi ce at its word and did not think there was anything else he could do. At the hearing on diligence, Webster also called Dorsey & Whitney paralegal Kristen LeRoux, who testi fi ed about how the fi rm came to discover the existence of Social Security records after all. According to LeRoux, Dorsey & Whitneystarted representing Webster in 2008. Drawing upon a diligence checklist used in a di ff erent case, a group of paralegals (including LeRoux and Katherine Slaikeu) asked Webster to sign a blanket records release form. They then a tt ached thesigned release to records requests to multiple institutions, including the Social Security o ffi ce in Pine Blu ff . When the agency failed to respond, paralegal Slaikeu followed up by phone. Only then, inFebruary 2009, did the fi rm receive a packet of records from the Pine Blu ff o ffi ce. Upon reviewing the records, LeRoux immediately noticed determinations bythree doctors that Webster was “mentally retarded” and conveyed this information to a tt orneys working on the case.

LeRoux also testi fi ed that the Social Security records contained a list of exhibits purportedly included in the package provided by the agency. Some of the referenced documents were missing, though, so she submi tt ed a renewed records request in October 2009. In a subsequent telephone discussion, a member of the Pine Blu ff o ffi ce told LeRoux to contact the Social Security o ffi ce in Terre Haute, where Webster was detained, with any further record s requests. When LeRoux did so, a representative from Terre Haute informed her, by phone and then by le tt er, that the o ffi ce could not ful fi ll her request because Webster’s fi le had been “destroyed.”The record sheds no light on what Social Security documents were destroyed. We have come across no informationNo. 19-2683 15

(such as an a ffi davit from a records custodian) from theagency itself on the topic. It troubles us that the agency reported destroying documents in 2010, at a time when Webster’s new legal team had received records dating to 1993 showing the prior fi ndings of mental retardation. That development alone made it predictabl e with certainty that Webster would embark on a new e ff ort to obtain relief from his death sentence. The stakes for Webster—indeed for all—are far too high for records to be destroyed while someone’s life is on the line. In the district court, the government cross-examined Larry Moore and LeRoux and introduced several exhibits designed to show that Moore’s account of his diligence in trying to obtain any Social Security records before Webster’s trial lacked credibility. These exhibits included three a ffi davits Mooreprepared in the years since Webster’s trial—one in 2000, a second in 2009, and a third in 2018 (in advance of the hearing on remand in the district court) . The government compared and contrasted the information in Moore’s a ffi davits—focusing speci fi cally on his enhanced and hi ghly particular recollection in 2018—to discredit his account.On this score, the details become important. Moore prepared and submi tt ed the fi rst a ffi davit, dated September 26, 2000, as part of Webster’s initia l § 2255 motion in the Northern District of Texas. The 2000 A ffi davit describes the mitigation investigation undertaken by Larry Moore prior to Webster’s trial and focuses on the issues that arose with a particular mitigation expert appointed to assi st with capital sentencing. The 2000 A ffi davit makes no mention of Moore’s e ff orts to obtain Webster’s Social Security records.16 No. 19-2683

Moore prepared his second a ffi davit (actually a declaration) in October 2009, shortly after Dorsey & Whitney had received Webster’s Social Security records. In the 2009 A ffi davit,Moore described how he thought Webster’s “mental retardation was going to be a critical issue” at trial, so he “made every

e ff ort” to secure evidence rela ted to that issue. Moore explained that his team cont acted the Social Security o ffi ce in Pine Blu ff , requested records, and arranged for investigator Strickland to retrieve them in March 1996. Moore then added that, “While I do not currently have any direct recollection of the response which we received [from the Social Security Administration], it is my good faith belief that we must havebeen told that no records regarding Mr. Webster existed, otherwise we would have continue d to pursue them by every means available to us.” Moore further stated that he prepared the 2009 A ffi davit based on his best recollection of past events but without the bene fi t of an opportunity to review his case fi le from trial.

Moore authored the third a ffi davit in April 2018, following our 2015 en bancdecision and in conne ction with the remand proceedings in the district court. He did so after reviewing portions of his trial fi le, which he received from the Dorsey & Whitney team. Explaining that the case fi le had refreshed his memory, Moore updated and expa nded upon his original account of the records request to the Pine Blu ff Social Security

o ffi ce before trial. More speci fi cally, he stated in the 2018 Affi davit that he spoke to a representative in the Pine Blu ff o ffi ce before trial and was told “there were no records in existence.” At the hearing in the districtcourt, Moore emphasized the importance of receiving (portions of) his case fi le to refreshing his memory:No. 19-2683 17

Q. How did [the case fi le] refresh your recollection? A. Well, in a number of ways. I had not looked at that fi le since I gave it up in the late 1990’s, and it was able to help me in terms of various dates and the things that we were doing. Like I did not recall that we had begin—that we had begun jury selection the fi rst week of March. And by reviewing the fi le, I was able to determine that’s exactly when it all occurred. Reviewing his fi le proved particularly useful, Moore continued, because he had tried “[p] robably more than a hundred” cases since he handled Webster’s case in 1996. The government urged the district court to fi nd that Moore’s enhanced and changed account of events dating to1995 and 1996 lacked credibility. It was implausible, the government argued, that Moore—some 25 years later—would come to have such a detailed recollection of past events that conveniently aligned with Webs ter’s renewed request for relief. After considering the evidence, the district court found that Webster had carried his burden of showing that the Social Security records obtained by Dorsey & Whitney in 2009 were unavailable at the time of trial despite diligent e ff orts by Larry Moore to obtain those records. Several factors weighed heavily in the district court’s reasoning:

First, the district court found Larry Moore’s “testimony to be credible” after “observing [his] demeanor” during the hearing. Webster v. Locke tt, No. 2:12-cv-86, 2018 WL 4181706,at *6 (S.D. Ind. Aug. 31, 2018). Moore is an accomplished attorney who, at the time of Webster’s trial, had substantial experience in criminal cases, incl uding capital cases, on both the18 No. 19-2683

prosecution and defense side. It made sound sense, the district court underscored, that a seasoned criminal lawyer like Moore would have recognized the potential importance of records from the Social Security Administration and sought to obtain them in the ways he described. So, too, did it make good sense, the district cour t continued, that Moore would have avoided expending additional resources to obtain Social Security records upon learning fr om investigator J.W. Strickland that a representative of the agency’s Pine Blu ff o ffi ce stated that no such records existed. The district court likewise found it credible that Moore took the added step of calling the Pine Blu ff o ffi ce and receiving the same information.

Second, the district court found that the documentary evidence introduced at the hearing reinforced Moore’s account. The court included in its order scanned copies of the two handwri tt en notes from Moore as well as the faxed le tt er fromWhitehead to West. This contemporaneous documentary evidence, in the court’s view, aligned fully with Moore’s testimony of the e ff orts he made before trial to obtain the Social Security records.

Third, the district court found itimportant that Moore, before preparing his 2018 A ffi davit and testifying at the hearing, had received and been able to review his trial fi le. This opportunity was unavailable to Moor e for many years and allowed him to refresh his memory by looking at speci fi c documents, including his own handwri tt en notes. Having decided that Webster carried his burden on the threshold issue of diligence, the district court scheduled a hearing to consider the merits ofhis contention that he is intellectually disabled and therefore ineligible for the death penalty.No. 19-2683 19

B. The District Court Proceedings on Intellectual DisabilityIn April 2019, after an additional discovery period, the district court held a week-long hearing on the merits of Webster’s Atkins claim. The court considered the transcripts and other evidence from Webster’s trial while also, and in accord with our remand order, not limiting either party to the trial recordalone. Webster and the government both presented new evidence on intellectual disability. Everyone agreed that Webster shouldered the burden of proving intellectual disability by a preponderance of evidence. He had to show three “core elements,” each borrowed from the medical community’s understanding of intellectual disability. Moore v. Texas , 137 S. Ct. 1039, 1045 (2017). As the district court recognized, Webster had to show a de fi cit in intellectual functioning (indicated by an adjusted-for-error I.Q. score of roughly 70 or below), a de fi cit in adaptive functioning (indicated by su ffi cient impairment without support in either the conceptual, social, or practical domains), and the onset of both de fi cits during his developmental years. See Atkins , 536 U.S. at 308 n.3; Hall v. Florida , 572 U.S. 701, 710 (2014). Webster called three expert witnesses—Dr. Mark Tassé,Dr. Daniel Reschly, and Dr. John Fabian. The government relied on the testimony of Dr. Robert Denney and of two Bureau of Prisons employees who have interacted with Webster during his period of incarceration in Terre Haute. The district court also reviewed trial testimony from Webster’s friends and family and documentary evidence.

The district court heard fi rst from Dr. Mark Tassé, a psychologist who co-authored the clinical de fi nition of20 No. 19-2683

intellectual disability promulgated by the American Association on Intellectual and Developmental Disabilities. Dr. Tassédid not examine Webster or opine on the question of intellectual disability. Rather, Webster called Dr. Tassé for the limited purpose of educating the district court on the criteria requisite to establish intellectual disability.Beyond describing the three primary elements of intellectual disability, Dr. Tassé stressed that a disability diagnosis must be the product of clinical judgment, not of a lay person’sobservations of someone else. He also emphasized that people with intellectual disability ca n exhibit strengths in particular areas, explaining that it is not unusual for someone intellectually disabled to be able to read, write, drive, or work. Webster then called the two experts who evaluated him following our 2015 remand and concluded he is intellectually disabled. First up was Dr. Resch ly, a retired professor of education and psychology at Vanderbilt University, who evaluated Webster in January 2019. Webster scored below the sixthgrade level on each test that Dr. Reschly administered, save for one subtest. Dr. Reschly co ncluded that Webster’s scores “are consistent with intellectual disability.” He also evaluated language performance, concluding that Webster’s expressive and receptive language was very low,—“to put it bluntly, [Webster] talks a lot; but there’s li tt le structure or content inhis language expression.” Dr. Reschly noted that Dr. Fulbright, a defense expert who testi fi ed at Webster’s trial in1996, “made virtually identical observations about Mr. Webster’s language.” Dr. Reschly also conveyed information he received during interviews of friends and fam ily who knew Webster before he entered prison. These individuals described practical ways inNo. 19-2683 21

which Webster exhibited limitations—for example, being unable to track the plot of television programs, to follow jokes, or to distinguish between spad es and clubs in card games. Portions of Webster’s Social Security application also stood out to Dr. Reschly. For example, in response to a question whether the candidate contributes around the house, Webster wrote “make my room.” The app lication then asks follow-up questions like do you need help with chores and how much time do you spend on chores, Webster twice wrote “I don’t know” and then added “I told you I make my room.” Dr. Reschly opined that Webster’s intellectual functioning is “signi fi cantly subaverage,” he “displayed de fi cits in the three domains of adaptive behavior,” and these “signi fi cant limitations in intellectual funct ioning [and] in adaptive behavior emerged during the developmental period.” He ultimately opined that “Webster is a person with intellectual disability and should be so regarded.”

The district court then heard from Dr. Fabian, a clinicalpsychologist with experience evaluating inmates’ competency, including in 70 to 80 Atkins cases. Dr. Fabian explained that his opinions in pastcases have been mixed, fi nding about half of the inmates intellectually disabled and the other halfnot. Based on his evaluation of Webster and analysis of Webster’s history and records, Dr. Fabian found that Webster suffers from serious intellectual and adaptive de fi cits. Foremost emphasizing Webster’s many low I.Q. scores over manyyears, Dr. Fabian then drew on observations from his examination, highlighting, for exampl e, that Webster’s intellectual and adaptive shortcomings manifested themselves when he struggled to answer simple questions about daily life like “why would you want to tell a doctor that you’re taking22 No. 19-2683

medication from another doctor,” or “why would you not want to use a blow dryer in a bathtub?” Nor was it surprising that Webster was unable to group photos of six people into smaller groups based on their pl ace of birth or job even after Dr. Fabian explained the task to him a few times. Dr. Fabian also testi fi ed that Webster’s exhibiting certain strengths while incarcerated did not change his conclusion because the prison environment is not conducive to sound analysis of adaptive de fi cits. The totality of these fi ndings led Dr. Fabian to conclude that Webster is intellectually disabled.Drs. Reschly and Fabian both noted that the severe emotional, physical, and sexual abuse Webster su ff ered throughout childhood is a risk factor toward the development of intellectual disability. Both experts likewise reviewed (and the district court considered) other evidence, including the Social Security records retrieved by Dorsey & Whitney in 2009. Those records showed that all three agency doctors who evaluated Webster in connection with his Social Security application found him mentally retarded. Drs. Reschly and Fabian also placed emphasis on the special education le tt er dating to November 1993 and included in the Social Security fi le. Dr. Reschly further noted that Webster “readily admi tt ed that he was in spec ial education,” and thatit would be odd for the parents of someone not in special education to receive such a le tt er. The experts likewise considered the fact that Webster failed the fi rst grade, with Dr. Fabian fi nding this evidence “critical,” as fi rst grade is “the foundation” for skills like “readin g, writing, [and] spelling.” For its part, the government presented testimony fromclinical psychologist Dr. Robert Denney, who evaluated Webster for 11-plus hours over two days following our 2015No. 19-2683 23

remand. He testi fi ed that “none” of the other cognitive testing Webster completed is “a valid re fl ection of his genuine cognitive abilities,” as each test re sult was the product of substantial malingering by Webster. Malingering must have been present, in Dr. Denney’s view, because Webster’s real-world functioning was “strikingly inco nsistent” with all prior test results. A person with scores similar to Webster’s would notbe able to play the guitar or drive a car—“it just can’t happen.” Dr. Denney concluded that “life choices of criminal misconduct” and “maladaptive personality style” describe Webster—factors “not related to intellectual disability.” The government also called several lay witnesses. Dr. Erin Conner, a licensed psychologist working at Terre Haute, has observed Webster (and othe r death row inmates) on a monthly basis for three years. Without o ff ering any expert opinion (or even being disclosed or quali fi ed as an expert witness), Dr. Conner testi fi ed that she has never “observed anything that would cause [her] co ncern about Mr. Webster’s intellectual functioning.” On cross-examination, Dr. Conner acknowledged that her interactions with Webster ranged from about 30 seconds in length to 10 minutes at most. The district court also admi tt ed into evidence and reviewed the deposition testimony of Dr. Jacqueline Blessinger, who met with Webster as the lead psychologist of the Special Con fi nement Unit at Terre Haute. Dr. Blessinger likewise testi fi ed asa lay witness, stating that she was impressed by Webster’s capacity to express frustration, control his emotions, and speak appropriately. Dr. Blessinger st ated that she based her views on spending about one hour withWebster over the course of approximately ten months, but concluded that “throughout [her] observations, there was nothing to clinically indicate a need for further testing.”24 No. 19-2683

Finally, the government relied on trial testimony from Webster’s ex-girlfriends, who described him as sweet, fun to be around, and someone able to do the “normal things couples do.” The government also highlighted certain adaptive functioning strengths by draw ing upon Dr. Reschly’s testimony that Webster “certainly mastered the basic fundamental daily living skills of eating, toile ting, dressing, [and] things of that nature,” and the fact that he played guitar in prison and passed a driving test.

In the end, the district court found that Webster met all three criteria to qualify as intellectually disabled. See Webster v. Locke tt, No. 2:12-cv-86-WTL-MJD, 2019 WL 2514833, at *11 (S.D. Ind. June 18, 2019). The court rooted its fi nding in the three criteria for intellectual disability.

 Onset Before Age 18. The government did not dispute (nor did the district court fi nd any reason to question) that Webster’s de fi cits arose prior to age 18.

 Intellectual Functioning . The district court began with Webster’s intellectual functioning, giving weight to his many low I.Q. test scores:No. 19-2683 25

Year Psychologist Score

1992 Dr. Patrick Ca ff ey (Arkansas Department of Mental Health) 48 (Full scale) 56 (Verbal) 48 (Performance)

1993 Dr. Edward Hacke tt(Social Security Administration) 59 (Full scale) 71 (Verbal) 49 (Performance)1995 Dr. Raymond Finn (Webster trial expert) 59 (Full scale) 59 (Verbal) 60 (Performance)1995 Dr. Dennis Keyes (Webster trial expert) 55 (Composite) 67 (Crystalized) 46 (Fluid)1996 Dr. Raymond Finn (Webster trial expert) 65 (Full scale) 72 (Verbal) 59 (Performance) 1996 Dr. Dennis Keyes (Webster trial expert) 51 (Full scale) N/A (Verbal) N/A (Performance)1996 Dr. George Parker (Government trial expert) 72 (Full scale) 77 (Verbal) 67 (Performance)2018 Dr. Robert Denney (Government expert) 61 (Full scale) 63 (Verbal) 69 (Performance)2018 Dr. Daniel Reschly (Webster expert) 53 (Full scale) N/A (Verbal) N/A (Performance)26 No. 19-2683

In emphasizing these low I.Q. scores, the district court determined that the evidence did not support a fi ndingof malingering, choosing instead to credit Dr. Reschly’s testimony that it would be “extremely di ffi cult” to manipulate so many test scores over the course of 27 years. Webster, 2019 WL 2514833, at *7. Indeed, the district court found that Dr. Denney’s testimony—on the speci fi c point of malingering and even more generally—lacked credibility, giving it li tt le or no weight. Inthe district court’s view Dr. Denney “ignore[d], disregard[ed], or minimize[d] evidence that called his conclusions into question.” Id. at *7 n.13. For example, thearticle Dr. Denney cited for the proposition that malingering is easy actually re ached the conclusion that “faking low on the WAIS-R is a di ffi cult endeavor.” Id. The district court also high lighted that Webster, in 1993and thus before the murder of Lisa Rene, sought benefi ts from the Social Security Administration due to sinus symptoms and not due to any intellectual disability. That three separate agency doctors diagnosed Webster as mentally retarded at a time when he had no incentive to manipulate his I.Q. test results only further undermined Dr. Denney’s conclusion that Webster had exhibited malingering during prior tests.

 Adaptive Functioning. Accepting Dr. Fabian’s contention that the prison enviro nment is too structured toyield the most accurate information on adaptive abilities, the district court focused on evidence from Webster’s life outside of prison. The Social Security records, the district court reasoned, showed Webster is “barely literate.” While the government pointed to evidence about Webster’s strengths, including his musicalNo. 19-2683 27

ability, hygiene, and conversational ability, the districtcourt focused its adaptive functioning analysis on deficits rather than strengths. Th e district court noted that Dr. Fabian and Dr. Reschly spent substantial time with Webster, with family and friends, and reviewing the school and Social Security records. On the other hand, the court gave li tt le weight to the lay testimony of Dr. Conner and Dr. Blessinger because “[n]either the quantity nor depth of their interactions with Webster would lead the Court to fi nd their testimony to be more persuasive than that of Drs. Fabian and Reschly.” Weighing the evidence, the district court found that Webster has adaptive functioning de fi cits. The government now appeals.

III The government challenges the district court’s fi ndings on defense counsel’s diligence in pursuit of the Social Securityrecords before trial, and, in turn, Webster’s intellectual disability. The same clear error standard applies to both. We can reverse only if we are “left with the de fi nite and fi rm conviction that a mistake has been commi tt ed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); see also F ED

. R. C IV

. P. 52(a)(6). A reviewing court may not set aside factual fi ndings “simply because it is convinced that itwould have decided the case di ff erently.” Anderson , 470 U.S. at 573. Rather, reversal is warranted only if the district court’s fi nding was “so internally inconsistent or implausible on it s face that a reasonable factfi nder would not credit it.” Id. at 575; see also Greyer v. Illinois Dep’t of Corr. , 933 F.3d 871 (7th Cir. 2019) (reversing a fi ndingof fraud because the district court never explained its reasoning and the record contained dire ctly contradictory evidence).28 No. 19-2683

Credibility determinations are entitled to “even greater deference” because “only the tr ial judge can be aware of the variations in demeanor and tone of voice.” Anderson , 470 U.S. at 575; see also United States v. Austin , 806 F.3d 425, 431 (7th Cir. 2015) (noting that credibility fi ndings “can virtually never be clear error” (quoting United States v. Longstreet, 669 F.3d 834, 837 (7th Cir. 2012))).

A. Diligence of Webster’s Trial Counsel Larry Moore We begin with the government’s challenge to the fi nding that Larry Moore was diligent in his pretrial pursuit of the Social Security records ultimately received in 2009 by Dorsey &Whitney. Due diligence, we have explained, means “reasonable diligence,” not “the maximum feasible diligence.” Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004). “[T]he duty to investigate does not force defense lawyers to scour the globe on the o ff chance something will tu rn up; reasonably diligent counsel may draw a line when th ey have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005) (citing Wiggins v. Smith , 539 U.S. 510, 525 (2003)). Where counsel travels a path of particular inquiry and encounters information suggestin g that “further investigation would [be] fruitless,” limiting the investigation is reasonable. Wiggins , 539 U.S. at 525. To proc eed with his § 2241 petition, Webster had to show by clear and convincing evidence that Moore exercised reasonable diligence. See Webster, 784 F.3d at 1146. During the 2018 hearing, Webster presented the district court with meaningful evidence of Moore’s pretrial e ff orts back in 1996. The most compelling evidence came from Moore’s own pen—from notes in his trial fi le. Webster presented the district court wi th contemporaneous handwri tt enNo. 19-2683 29

notes from Moore to his paralegal Kimberly Whitehead.Those notes—the authenticity of which nobody has questioned—show that Moore recognized the importance of any Social Security records anddirected Whitehead before trial began to request any such records from the agency’s Pine Blu ff

o ffi ce. Moore’s trial fi le also contained, and the district court reviewed, the le tt er Whitehead faxed to the agency requesting any records they might have on Webster. At the hearing, Moore then wa lked the district court stepby-step through the process he and Whitehead went through before Strickland traveled to Pine Blu ff to pick up the Social Security records. Upon being told by the Social Security o ffi ce that no records existed, Moore ended the inquiry and turned his a tt ention to other aspects of Webster’s defense. Against this evidentiary showing, the district court concluded that Moore was duly diligent, and we see no clear error in that fi nding. The government begs to di ff er, insisting that Moore’s account—root and branch—is implau sible. What most troubles the government is that Moore’s account of his own diligencehas grown in clarity and detail despite the passage of substantial time—a result at odds with the workings of human memory, at least as the government would have it. But the district court heard and considered the government’s position and responded with fi ndings that are plenty reasonable and

re fl ect no clear error. The government points fi rst to Moore’s improved recollection between the 2009 A ffi davit and the 2018 A ffi davit he submi tt ed to the district court. In 2009 Moore stated that it washis “good faith belief that we must have been told that no records regarding Mr. Webster existed,” but in 2018 Moore30 No. 19-2683

stated that “I am certain that I was personally told that such records did not exist, although I cannot actually recall whether this was via phone orin person.” The government also highlights that Moore’s inconsistencies continued even after he spent meaningful time with Webster’s trial fi le. In his 2018 A ffi davit, Moore could not reca ll whether the Social Security employee told him no records existed “via phone or inperson.” During the hearing on diligence later that year, however, Moore testi fi ed de fi nitively that the conversation was via phone. In the government’s view, this detail came out of thin air. To be sure, Moore added to his account during the remand proceedings. But that reality was no t lost on the district court. To the contrary, the district co urt listened to Moore’s accountof the newfound detail, observed the government’s cross examination, and chose in the end to credit Moore’s explanation. As the district court emphasized, Moore explained that when he executed the 2009 A ffi davit he had not yet had the opportunity to review his fi le. In contrast, before executing the 2018 A ffi davit, Moore noted that he “spent hours reviewing relevant portions of [his] trial fi le and the trial transcript,” and “consider[ed] this ma tt er in depth.” Recall that between Webster’s 1996 trial and the 2018 hearing on diligence, Moore estimated that he tried “[p]robably more than a hundred” cases. A number of these cases were death penalty cases, like Webster’s. The district court pl ausibly reasoned that the lines between the many cases Moore tried could blur over time, and that reviewing the Webster case fi le (indeed reviewing his own handwri tt en notes) could provide needed clarity. See Webster, 2018 WL 4181706, at *5 n.2.No. 19-2683 31

We also see no clear error in the district court’s fi nding that “Moore’s additional review of the fi le ... further helpedMoore recall the events, as he remembered that his direct contact with the [Social Security Administration] took place during voir dire .” Reviewing this fi nding with the knowledge that credibility determinations can “virtually never be clear error,” Austin , 806 F.3d at 431, it is plausible that a second review of the trial fi le jogged Moore’s memory about voir direscheduling. At bo tt om, the district court heard and credited Moore’stestimony over the government’s vigorous cross-examination. We see Moore’s account as entirely plausible, and, regardless, it was up to the distri ct court to weigh and evaluate the government’s a tt acks on credibility. See id. (“The district court is best situated to make credibility determinations in light of the totality of the evid ence.”). And that is especiallyso in light of the undeniable fact that contemporaneous records from Moore’s case fi le so tightly reinforced the testimony he provided in the district court. Finally, the government arg ues that even if we fi nd no error in the district court’s crediting of Moore’s testimony, heshould have kept pushing to obtain the Social Security records even after “he was initially told that the records were destroyed.” But the government’s description of Moore’s testimony is inaccurate. At no po int did Moore state (in his 2009 A ffi davit, 2018 A ffi davit, or otherwise) that the Pine Blu ffoffi ce told him before trial that the records had been destroyed. To the contrary, Moore explained that the agency told him no records existed. The two are not synonymous, for no records existing meant there was nothin g to continue requesting. Andthat understanding left Moore with no reason to believe anything had been destroyed. As Moore explained—and the district court credited—he did not think “there was a basis to32 No. 19-2683

issue a court order” because he “had no good faith belief that the records existed at that po int.” A lawyer in Moore’s circumstances ought to be able to take the government at its word when it says no records exist.

The district court found thatMoore pushed far enough, and we are not “left with the de fi nite and fi rm conviction” that this fi nding re fl ects any clear error. Anderson , 470 U.S. at 573. The documentary evidence from Moore’s trial fi le furtherestablishes that Moore focused on the possible existence of Social Security records and repeatedly communicated with Whitehead about requesting them.

Because the district court’s fi ndings—that Moore’s testimony was credible and support ed by contemporaneous documentary evidence—are not “int ernally inconsistent or implausible,” we will not upset them. Anderson , 470 F.3d at 575.

B. Webster’s Intellectual Disability This brings us to the gove rnment’s challenge to the fi ndingthat Webster is intellectually disabled. All agree that the district court applied the proper criteria for fi nding intellectual disability. The standard comes from the 11th edition of the A MERICAN A SSOCIATION ON I NTELLECTUAL AND D EVELOPMENTAL D ISABILITIES D EFINITION M ANUAL (AAIDD11) and the 5th edition of the D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS (DSM-5). See Moore, 137 S. Ct. at 1048–49 (recognizing these exact standards).

Recall that three criteria must be present for a person to be intellectually disabled. Two of these criteria—onset by the age of 18 and the presence of intellectual de fi cits—are not contested here. Right to it, the p arties dispute only whether Webster su ff ers from adaptive de fi cits.No. 19-2683 33

As a general ma tt er, adaptive de fi cits are present when someone cannot “learn basic skills and adjust behavior to changing circumstances.” Hall , 572 U.S. at 710. The adaptive functioning analysis consider s whether a person is “su ffi

ciently impaired” such that “ong oing support is needed in order for the person to perform adequately” in one of three domains:

 The conceptual (academic) domain , which “involves competence in memory, language, reading, writing, math reasoning, acquisition of p ractical knowledge, problemsolving, and judgment in novel situations, among others;”

 The social domain , which “involves awareness of others’thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment, among others;”

 The practical domain , which “involves learning and selfmanagement across life se tt ings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization, among others.”

DSM-5 at 33, 37–38; see also AAIDD-11 at 44. A de fi cit in adaptive functioning requires showing su ffi cient impairment in “at least one domain”—but no t all three. DSM-5 at 38; see also AAIDD-11 at 27. No ma tt er the a ff ected domain, the adaptive de fi cit “must be directly related to the intellectual impairments described in [the fi rst criteria].” DSM-5 at 38. The DSM-5 and AAIDD-11 provide additional guidancefor assessing adaptive functioning. The AAIDD-11 emphasizes that demonstrating stre ngths in one area does not34 No. 19-2683

preclude a fi nding of intellectual disability. See AAIDD-11 at 47. As Dr. Fabian testi fi ed, many people with intellectual disabilities “can live independently, especially with support, can get a job, can work, [and can] fi nd employment.” Nor is it unusual for people with intellectua l disabilities to have unique skills, from “musical talents” to “artistic talents [like] drawing [or] painting.” The AAIDD puts th e point even more directly, explaining that “signi fi cant limitations in conceptual, social,or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills.” AAIDD at 47.The DSM-5 and AAIDD-11 likewise emphasize that adaptive skills are best measured no t within the structured prison environment but “within the context of ordinary community environments typical of the pers on’s age peers and tied to the person’s individualized needs for support.” AAIDD at 16; see also DSM-5 at 38 (“Adaptive functioning may be di ffi cult to assess in a controlled se tt ing (e.g., prisons, detention centers); if possible, corroborative information re fl ecting functioning outside those se tt ings should be obtained.”). And the operative focus should be on “what the person typically does, rather than what the individual can do or could do.” AAIDD at 47.

1. Intellectual Functioning Because adaptive de fi cits must be tied to intellectual impairments, we owe a few words on Webster’s intellectual functioning. This analysis focu ses primarily on I.Q. scores. See AAIDD-11 at 31 (“Although far from perfect, intellectual functioning is currently best represented by IQ scores whenthey are obtained from appropriate, standardized and individually administered assessment instruments.”); DSM-5 at 37 (“Intellectual functioning is typically measured withNo. 19-2683 35

individually administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound tests of intelligence.”).

We see no clear error in the district court’s fi nding that Webster su ff ers from intellectual de fi cits. Even a cursory review of the I.Q. tests lays b are Webster’s intellectual shortcomings. “Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean,” which tran slate to “a score of 65–75.” DSM-5 at 37. This is not a case where Webster has one or two low I.Q. scores si tt ing alongside many hi gher scores. To the contrary, every one of Webster’s nine I.Q. scores over 27 years falls below 75—with many fallin g well below that number.

The district court found no evidence of malingering on any of these tests—before or after Webster’s murder of Lisa Rene. We start with the full-scale I.Q. scores of 48 from 1992 (though recall that the parties agree this score may not have been accurate because Webster was preoccupied) and 59 from the 1993 Social Security records. Se tt ing aside the 1992 score, the 1993 score was the product of an intellectual assessment performed in connection with th e agency’s evaluation of Webster’s application for disability bene fi ts. This occurred a year before the murder, at a time when Webster had no incentive to malinger.As for the I.Q. tests administered after the murder, Webster undeniably had an incentive to malinger. The government pressed this precise point, and the district court assessed the evidence with care. We have no reason to disturb the district court’s decision to credit testimony that it would have been challenging to malinger on so many additional I.Q. tests over the course of decades. Nor will we second guess the36 No. 19-2683

decision to give li tt le or no weight to Dr. Denney’s testimonyabout malingering. As the district court explained, “Dr. Denney focused on evidence that supported his conclusions,” andsome of his testimony was “demonstrably incorrect or appears to reveal biases.” Webster, 2019 WL 2514833, at *7 n.13. For example, Dr. Denney would have rejected the results of the Test of Malingering MemoryDr. Reschly administered to Webster because Dr. Reschly did not administer the wholetest. As the district court found, though, this rejection was improper as Dr. Reschly did administer all three portions of the test—all of which Webster completed. See id.

On this record, the district court commi tt ed no error in determining that Webster demonstrated de fi cits in intellectual functioning. Perhaps owing to the weight of the I.Q. evidence, the government, to its credit, conceded the same conclusion during oral argument.

2. Adaptive Functioning The government does challe nge the district court’s fi nding that Webster demonstrated de fi ciencies in each of the threeadaptive functioning domains—conceptual, social, and practical. But Webster need only exhibit a de fi ciency in one domain (not all three)—a point the government agrees with— and the district court’s conclusionthat he did so is not clearly wrong. Webster’s adaptive de fi cits show most clearly in the conceptual domain. Because this domain considers language, reading, and writing skills, along with math reasoning and problem solving, there is mean ingful overlap between the evidence of intellectual de fi cits (measured by intelligence tests) and the evidence of de fi cits in the conceptual domain. SeeNo. 19-2683 37

DSM-5 at 37 (“The conceptual (academic) domain involves competency in memory, language, reading, writing, [and] math reasoning” skills); AAIDD-1 1 at 44 (noting that conceptual skills include “language; reading and writing”).

The record amassed on remand shows that Webster has substantial limitations with lang uage, reading, writing, problem-solving, and judgment. Dr. Reschly testi fi ed that Webster’s speech is “imprecise, rambling, and disorganized.” On Webster’s own account, he “struggle[ed] in school,” and had “di ffi culty learning and keeping up with other students.” He failed the fi rst grade, and “readily admi tt ed that he was inspecial education”—a fact the district court found amply corroborated by the November 8, 1993 le tt er from the Special Education Supervisor of the Watson Chapel Schools in Pine Blu ff , Arkansas. See Webster, 2019 WL 2514833, at *2.

We likewise fi nd no error in the district court’s reliance on information in Webster’s 1993 application for Social Security bene fi ts as indicating a de fi cit in conceptual functioning. Webster’s answers to application questions, the district court observed, revealed an inability to write or reason coherently. See id. at *9. Dr. Reschly saw the responses this exact way, testifying that the Social Security application “related to the conceptual domain of adaptive behavior,” and pointed to answers like “I sleeps look at cartoon,” and “don’t sleep to good at night wakes up sneezing” as examples of literary de fi ciencies. On appeal, the government argues that Webster does not have de fi cits in the conceptual domain because he “performed well on two standardized tests of academic ability.” Webster scored in the 43rd perc entile on a grade school test called the MAT6, and after his conviction he scored at the freshman college level on two subjects of the Adult Basic38 No. 19-2683

Learning Exam. No question th is evidence points in a di ff erent direction. As the government points out, Webster’s own experts acknowledged on cross examination that these test scores, when viewed in isolatio n, are not consistent with a fi nding of intellectual disability. But Dr. Reschly took care in his testimony to explain that the Adult Basic Learning Examis unreliable and indeed “no longer available” because it employs “poor normative standards and [yields] inaccurate grade equivalent scores.” And importantly, “the medical community focuses the adaptive-functioning inquiry on adaptive de fi cits .” See Moore, 137 S. Ct. at 1050.

The district court reasoned that the de fi cits chronicled byDrs. Reschly and Fabian (and further corroborated by Webster’s special education records, academic history, and Social Security application) are not o ff set by two academic test scores. The resultant fi nding that Webster su ff ers from de fi cits in the conceptual domain does not re fl ect clear error. Whether Webster possesses de fi cits in the practical and social domains presents a more challenging question. But Webster did not need to convince anyone one way or the other. We will not disturb the district court’s fi nding that Webster exhibits adaptive de fi cits in one of the three adaptive domains, and that fi nding is all that is needed for the adaptive functioning analysis. Having demonstrated substantial de fi cits in intellectual functioning and adaptive functioning (at the very least in the conceptual domain) as well as an onset of the de fi ciencies before the age of 18, Webster has carried his burden of proving that he is intellectually disabled and therefore constitutionally ineligible to remain under a death sentence.No. 19-2683 39

IV There runs through the government’s position on appeal a stream of frustration over Webster receiving relief in federal court in Indiana after years of proceedings that had seemed to reach fi nality in federal court in Texas. At one level the government’s position is well-founde d, for there is no question the litigation path has been long, de fi ned by an unexpectedturn, and laden with great investments of resources by all involved. At another level, though, the government’s position is not well-received, for much of the frustration seems aimed at registering disagreement with our 2015 en bancdecision holding that Webster had made a su ffi cient showing to satisfy the safety valve in 28 U.S.C. § 2255(h)(1) to pursue the prospect of relief in the district court in Indianapolis. But now is not the time to relitigate our en bancdecision. We consider it—as we must—law of the case for pu rposes of this appeal. See Dobbs v. DePuy Orthopaedics, Inc. , 885 F.3d 455, 458 (7th Cir. 2018) (“‘Once an appellate court either expressly or by necessary implication decides an issue, th e decision is binding upon allsubsequent proceedings in the same case’ under the law-ofthe-case doctrine.” (quoting Key v. Sullivan , 925 F.2d 1056, 1060 (7th Cir. 1991))). Nor do we agree that the re mand proceedings in the district court “all but swept away the nearly month-long trial andsentencing proceedings involving 50-plus sentencing witnesses and detailed jury fi ndings on Webster’s intellectual functioning that took place in the Fort Worth trial court.” Remember the reason for the remand: the government, in particular the Social Security Admi nistration, failed to produce documents pre-dating the murder showing that Webster was mentally retarded. But even more, the evidence from the40 No. 19-2683

Texas proceeding was before the district court in Indiana. Butso too was substantial other evidence developed by the parties on remand. If particular aspects of the Texas evidence undermined Webster’s showing on remand, the government should have so argued—not at a high level of generality (like we see with many points on appeal), but rather at a high level of speci fi city. At this stage, we cannot decide this appeal in any way other than by focusing on evidentiary details.Above all else, the record shows that the district court proceeded with great care on remand. Over the course of many years leading to the 2018 and 2019 hearings, the district court held status conferences, sought discovery brie fi ng, reviewed exhibit and witness lists, solicited fi ndings of fact and conclusions of law, and ruled on moti ons. It then held extensive hearings on whether Webster exercised reasonable diligence pursuing the Social Security reco rds before trial and, in turn,whether, based on those records and other evidence, he carried his burden of proving that he is intellectually disabled. Both parties had full and fair opportunities to assemble their evidence and present it to the district court. And from there the district court made detailed fi ndings of fact and ultimately determinations on the question s presented. There is no way to read the transcripts of the proceedings below and not walk away impressed with the care taken by Judge Lawrence. Our role is limited. Weighty though the obligation, the question before us is whether the evidence presented on remand leaves us with the de fi nite and fi rm conviction that the district court’s fi ndings re fl ect clear error. Having taken our own detailed look at all aspects of the proceedings on remand,we see no clear error anywhere. We therefore AFFIRM the district court’s judgment vacating Webster’s capital sentence.