Paul M. McManus v. Ron Neal , 779 F.3d 634 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2001
PAUL M. MCMANUS,
Petitioner-Appellant,
v.
RON NEAL, Superintendent,
Indiana State Prison,*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-1483-TWP-MJD — Tanya Walton Pratt, Judge.
ARGUED SEPTEMBER 25, 2013 — DECIDED FEBRUARY 17, 2015
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
*
We have substituted Ron Neal, the current Superintendent of the Indiana
State Prison, for Bill Wilson, the former Superintendent.
2 No. 12-2001
SYKES, Circuit Judge. An Indiana jury convicted Paul
McManus of murdering his estranged wife and two young
daughters, and the trial judge sentenced him to death in
accordance with the jury’s recommendation. The Indiana
Supreme Court affirmed on direct appeal, but on postconvic-
tion review the trial judge found McManus intellectually
disabled and thus ineligible for the death penalty. See Atkins v.
Virginia, 536 U.S. 304 (2002); see also IND. CODE § 35-36-9-6. A
divided Indiana Supreme Court disagreed and reimposed the
death sentence.
McManus then sought federal habeas review on several
claims of constitutional error, including a challenge to the
rejection of his claim of intellectual disability under Atkins. The
district court denied relief but authorized an appeal on the
Atkins issue. We expanded the certificate of appealability to
include the following questions: (1) whether the state courts
unreasonably applied federal due-process standards in finding
McManus competent to stand trial, see Pate v. Robinson, 383 U.S.
375 (1966); Dusky v. United States, 362 U.S. 402 (1960);
(2) whether McManus was forced to appear before the jury in
a “drug-induced stupor” in violation of Riggins v. Nevada,
504 U.S. 127 (1992); and (3) whether McManus’s trial attorneys
were ineffective for failing to present additional mitigating
evidence about his intellectual disability during the sentencing
phase of the trial.
We agree with the district court that McManus is not
entitled to habeas relief on his claim of categorical ineligibility
for the death penalty. The state high court applied the rule of
Atkins and made a reasonable factual determination that
No. 12-2001 3
McManus is not intellectually disabled. But the state courts
unreasonably applied clearly established due-process stan-
dards for adjudicating a defendant’s competency to stand trial.
The record reflects that McManus decompensated soon after
the trial testimony got underway. He had several panic attacks,
and his symptoms were severe enough to require two trips to
the emergency room. There he was treated with a potent
combination of several psychotropic drugs—including one that
knocks out memory—as well as an opioid painkiller. He
remained on a regimen of mind-altering medications for the
duration of the trial.
The powerful effect of the medications alone created
substantial doubt about McManus’s mental fitness for trial, but
the judge never ordered a competency evaluation. Instead, the
judge focused on getting McManus “fixed up” enough to
complete the trial. By taking this approach, the judge failed to
apply the legal framework established in Dusky and Pate for
addressing competency questions. The Indiana Supreme Court
recited the correct legal standard but in the end did not
actually apply it. Although habeas review of state judgments
is deferential, see 28 U.S.C. § 2254(d)(1)–(2) (2012), the record
does not permit a conclusion that the state courts reasonably
applied federal constitutional requirements for adjudicating a
defendant’s competency to stand trial.
Accordingly, we reverse and remand to the district court
with instructions to grant the writ unless Indiana gives notice
of its intent to retry McManus within a reasonable time to be
set by the district court. This holding makes it unnecessary for
4 No. 12-2001
us to address McManus’s remaining claims, which rest on
other allegations of constitutional error at trial.
I. Background
A. The Murders, Trial, and Posttrial Motion to Correct Errors
Habeas review in capital cases usually entails a lengthy
procedural record, and this case is no exception. We limit our
historical account of the case to the details that are important
to the claims on which the appeal was authorized. Even so,
significant length cannot be avoided.
Paul McManus married his wife, Melissa, in 1992. They had
two daughters, Lindsey and Shelby, and the family lived in
Evansville, Indiana. Shelby, the younger girl, had serious birth
defects. She was born without eyes and her esophagus did not
connect to her stomach; she received nourishment through a
feeding tube.
At the time of the crimes, McManus was working three
jobs: He was a laborer at a plastics factory, a barback at a local
pool hall (he stocked the bar with ice and beverages and
otherwise assisted the bartender), and one day a week he did
janitorial work at a freight company.
In the fall of 2000, Melissa left Paul, taking their daughters
with her. At the time Lindsey was almost eight years old and
Shelby was not quite two. The couple officially separated in
December, although Melissa and the girls continued to live in
Evansville.
No. 12-2001 5
On January 24, 2001, McManus was arrested for domestic
battery against his estranged wife. Melissa told the arresting
officer that McManus had threatened to kill “everyone.”
During the next few weeks, McManus talked of suicide and
continued to threaten violence against his family. He was
fearful that Melissa would leave Evansville with the girls, and
he spoke of wanting to kill himself and his family so they could
be together.
On the morning of February 26, 2001, McManus was served
with divorce papers. Later that day he carried out his threats
against his family. He got a handgun from his brother’s house,
bought ammunition at a gun store, and took a taxi to his wife’s
home. There he shot Melissa once in the leg and three times in
the head. Turning the gun on the girls, he shot Lindsey three
times in the head and Shelby once, also in the head. After
killing his family, McManus took Melissa’s car, left the scene,
and called his mother and sister to confess what he had done.
Then he drove to the Ohio River Bridge, climbed to the top,
and threw himself into the river. Law-enforcement officers saw
the jump and rescued him.
McManus was charged with three counts of murder.
Indiana sought the death penalty, citing the multiple murders
and the murder of two persons under the age of 12 as statutory
aggravating factors. See IND. CODE § 35-50-2-9(b)(8), (12) (2013).
McManus’s counsel filed a notice of intent to assert an insanity
defense, so the judge postponed the trial to accommodate the
forensic psychiatric examinations required to mount that
defense.
6 No. 12-2001
For 14 months while in pretrial detention, McManus was
treated with the antidepressant drug Elavil and also a beta-
blocker to control his anxiety. Trial was scheduled for April 24,
2002. About a month before trial, the jail psychiatrist changed
McManus’s medication regimen, tapering his doses of Elavil
from March 25, 2002 until April 17, 2002, then eliminating that
drug altogether and substituting Effexor, another antidepres-
sant. Expert testimony later established that Effexor can
aggravate anxiety in some patients. Jail medical personnel also
discontinued McManus’s beta-blocker, apparently out of a
concern that it was exacerbating his depression.
Voir dire began as scheduled on April 24. By April 29 a jury
was sworn and testimony began. During the noon recess on the
first day of testimony, McManus suffered a panic attack. He
was hyperventilating, his blood pressure was elevated, and he
reported chest pain. His symptoms were severe enough that he
had to be taken to the hospital, so the judge recessed the
proceedings for the remainder of the day. McManus was
treated in the emergency room and returned to the jail.
The next day McManus had another panic attack, with the
same symptoms as the day before. His attorneys reported
having great difficulty communicating with him and advised
the court that he was not competent to assist the defense or
decide whether to testify. The judge again recessed the
proceedings and sent McManus back to the hospital. This time
the judge called ahead and spoke to Dr. Reza Mohammadi, one
of the emergency-room physicians, apparently to let him know
that McManus was coming, although the record does not
reflect exactly what was said during the phone call.
No. 12-2001 7
Dr. Mohammadi treated McManus with several intrave-
nous medications: Versed (a drug used to treat seizures and to
achieve sedation and amnesia during medical procedures);
morphine (an opioid for pain); and Xanax (a psychoactive drug
used to treat panic and anxiety disorders). Before releasing
McManus back to the jail, Dr. Mohammadi prescribed oral
Xanax and Lortab, a combination of acetaminophen and
hydrocodone, an opioid. The Xanax prescription specified a
dosing regimen of three times per day—down from the usual
four—because the drug has a sedative effect.
Before resuming the trial, the judge summoned
Dr. Mohammadi to the courtroom to question him about
McManus’s condition. McManus was not in the courtroom
during this testimony. The judge asked Dr. Mohammadi if the
drugs he had given McManus were “mind altering” or would
“affect a person’s mental processes.” The doctor replied
“[a]bsolutely.” He explained that “if the medicine is given to
someone who’s not having any problems like this gentleman,
it would probably put you to sleep and you will not be able to
interact, period.” But “when someone is as anxious as this
gentleman was, it probably would bring him down to a level
that he can actually communicate.” Dr. Mohammadi cau-
tioned, however, that patients who are treated with “this type
of medication” are routinely instructed not to drive for four to
six hours because “we believe it does alter their decision
making and so on and so forth.”
The judge pressed the doctor to elaborate:
8 No. 12-2001
Q: But the medications you gave him today,
would it prevent him from thinking ratio-
nally?
A: I would say that he would—it would alter the
way he would perceive things. Now, in the
spectrum of what we are dealing with today,
I would say that he would be thinking more
rationally now than he was when he was so
anxious, if that answers your question.
Q: Yes. And how about the medications that you
prescribed for him, the Xanax and the Lortab,
how would they affect his mind and his
judgment?
A: I believe he can—he can make judgments
in—if he was given enough time to make the
judgment at, and again, it’s a decision that if,
in fact, this man is not—if his condition is not
controlled, he would not be able—in the state
of mind he presented today, he would not be
able to answer any questions rationally,
period, and now that he’s on medicine, he
may be—in my view, he can possibly now
proceed and give some rational answers, but
these medicines do alter—alter people’s
judgment in the vast majority of people, yes
they do.
The prosecutor asked the doctor if McManus would be able
to recognize his attorneys and understand that they were
“trying to help him be found not guilty.” Dr. Mohammadi
No. 12-2001 9
replied, “I believe so.” He also said that McManus should be
able to follow the trial testimony for at least the next few
hours.1 But his testimony was equivocal; the doctor cautioned
that “[i]t’s very difficult on one encounter in an emergency
room to decide what a patient’s response to a medicine would
be.” And he qualified his testimony even further based on the
limited scope of his expertise: he was an emergency-room
physician, not a psychiatrist. In response to questions from
defense counsel, Dr. Mohammadi could not predict how
McManus would respond to the prescribed oral medication or
whether his condition was likely to improve. He also acknowl-
edged that McManus would need to be seen by a psychiatrist
to determine what medication was appropriate to treat his
symptoms yet permit him to understand and participate in the
trial.
The uncertainties in Dr. Mohammadi’s testimony prompted
the prosecutor to suggest that the doctor talk to McManus in
the holding cell to get “a better feeling for how well he can
respond or how well he’s doing on the medication.” The judge
1
From the transcript:
Q: So for the next four and a half hours, there’s no reason
that he wouldn’t—if somebody got up here and said I
saw him commit the crime, he would know what they
were saying?
A: Yes.
Q: And he would know whether it was true or not?
A: I would believe so, yes.
10 No. 12-2001
agreed and invited the doctor to “go back and talk to him and
see what you think.”
Dr. Mohammadi talked to McManus in the holding cell and
reported back that he was “more calm” and able to answer a
few basic questions but had difficulty with others. For exam-
ple, McManus knew what year it was, but he was unsure about
the month and day. The judge asked the doctor if he found
McManus to be “rational right now.” Dr. Mohammadi replied,
“[r]ight now, he’s definitely rational.” After a few more
questions from the court and counsel, Dr. Mohammadi was
excused.
McManus’s attorneys moved for a mistrial or, alternatively,
a continuance so that McManus could be examined by a
psychiatrist for competency to stand trial and stabilized on
appropriate medication. The judge summarily denied the
motion:
THE COURT: … I believe that the defendant
is competent to assist in his own defense and I’m
not convinced that the situation would improve
any more over the next few weeks than it is right
now and that the—if he stays on his medication,
that he will be rational—remain rational and be
able to assist in his defense and understand the
proceedings against him, so I’m going to deny
the motion for a continuance and/or mistrial.
Trial resumed. When McManus was escorted into the
courtroom, however, he could not walk under his own power.
His lawyer noted for the record that McManus “had to be
helped in by the sheriff” and again asked the judge for a
No. 12-2001 11
continuance and a psychiatric examination. The judge ac-
knowledged that McManus “doesn’t appear to be in the
condition the doctor testified he was in.” Nonetheless, the
judge denied the motion without further comment and called
on the prosecutor to present his next witness.
The following day—May 1, the third day of testimony—
McManus again became ill, complaining of light-headedness
and nausea. His counsel reported that McManus was sick and
renewed the mistrial motion; the judge again denied it and
pressed on with the trial. Later that day McManus had another
panic attack. He was hyperventilating and said he felt like the
room was getting smaller. His counsel alerted the court that
McManus was “about to fall out of his chair”and seemed like
he was going to faint. The judge called another recess while
McManus was treated in the jail infirmary. During the recess,
the judge put one of the courtroom deputies under oath to
make a record about McManus’s condition. The deputy
testified that the jail nursing staff was tending to McManus but
he was “still having a hard time getting his breath. He’s
hyperventilating. They cannot get his breath calmed down, so
they’re going to give him a shot of what, I do not know, but the
nurse said it will knock him out for hours.”
Defense counsel again moved for a mistrial. The judge
deferred ruling but ordered a one-week continuance, excusing
the jury until Wednesday, May 8. The purpose of the continu-
ance, however, was not to have McManus examined by a
qualified expert for an opinion about his competency to stand
trial. Instead, the judge intended to meet with jail medical
personnel, “get ahold of a psychiatrist,” and “have sort of a
12 No. 12-2001
confab so we’re all on the same page of what needs to be done”
to get McManus “fixed up” enough to proceed. The judge
made it clear that he intended to move forward with the trial:
“[W]e need to do it as soon as we can to get him fixed up—
whatever it takes to get him fixed up for next Wednesday.”
The judge contacted Dr. Willard Whitehead, a psychiatrist
at the Southwestern Indiana Mental Health Center, and asked
him to examine McManus in the jail. No record was made of
the judge’s instructions to Dr. Whitehead, but it’s clear from
the doctor’s report and testimony that he was brought in to
consult on McManus’s treatment, not to conduct a competency
examination.
On May 6 McManus’s defense team filed a verified motion
for a mistrial, explaining that McManus had suffered two more
panic attacks during the continuance and was unaware of what
had occurred thus far during the trial. They also asserted that
McManus lacked the ability to communicate with counsel or
assist in his own defense, and was in no condition to make
critical trial decisions such as whether to testify.
Dr. Whitehead saw McManus on May 2 and again on
May 7, just before the hearing on the latest mistrial motion. The
May 2 consultation is memorialized in a written report, but the
visit on May 7 was apparently quite brief; no report is in the
record.
To prepare for the May 2 meeting, Dr. Whitehead reviewed
McManus’s jail medical records, but he did not read the reports
of the mental-health experts who had examined McManus for
purposes of the insanity defense. At the beginning of the
interview, Dr. Whitehead told McManus that he was not
No. 12-2001 13
evaluating him forensically but instead was there to help him
feel better. The doctor thereafter had difficulty obtaining a
psychiatric history from McManus and ultimately could not
complete the examination. Although McManus was “pleasant
and cooperative” and showed no signs of medication intoxica-
tion, he spoke and moved slowly and had trouble understand-
ing directions. He was able to answer some initial questions
about the symptoms he experienced during the panic attacks.
Dr. Whitehead catalogued them as follows: shortness of breath,
a racing heart, “needle-like pains in his head,” “heavy pain in
his chest,” nausea, feeling hot or cold, “feeling unreal,” and not
being able to feel his arms or face. Dr. Whitehead’s initial
impression was that the attacks were caused by the stress of
the trial and not an underlying panic disorder. After these
initial questions, however, the interview was cut short because
McManus experienced another attack: he began hyperventilat-
ing and was lying on the floor, unable to talk any further.
Because the examination could not be completed,
Dr. Whitehead’s observations about McManus were necessar-
ily tentative and qualified. He explained that “[t]here were
some aspects of the interview that I didn’t get to even start
because of that attack.” And his brief visit with McManus just
before the hearing didn’t add much to his font of knowledge
about his patient; the doctor said he found it “very hard to
collect meaningful information today.” Dr. Whitehead also said
he could not form an opinion about whether the panic attack
was faked or self-induced or whether McManus was malinger-
ing.
14 No. 12-2001
Despite the limits on his examination, Dr. Whitehead did
order a change in McManus’s medication. He removed Effexor,
apparently because it can exacerbate anxiety, and he substi-
tuted Remeron, another antidepressant. He also put McManus
back on a beta-blocker to try to achieve better control over his
anxiety. McManus’s other medications—most notably Xanax—
were continued. With these adjustments, Dr. Whitehead
advised the court that McManus was receiving appropriate
treatment, although he acknowledged that achieving the right
balance was “a little bit of a tightrope between intoxicating and
undertreating.” Dr. Whitehead was unable to testify to the
precise effect of Dr. Mohammadi’s treatment—in particular, his
use of Versed to calm McManus’s panic attack. He said he was
not well-acquainted with that drug, although he understood
that it “knocks out memory. I think that’s one reason they use
it.” And he agreed that combining that medication with
morphine would significantly slow a person’s mental acuity.
Dr. Whitehead was not asked to state an opinion about
McManus’s competency to stand trial under the standard
established in Dusky. He did not independently offer such an
opinion.
At the end of the hearing, defense counsel again asked the
court to order a mistrial because McManus was incompetent to
proceed. In a brief bench ruling, the judge denied the motion:
THE COURT: Okay. I’m going to deny the
motion. I’m convinced that it’s either self-
induced, or if not self-induced, it’s something
that’s caused by this trial. I think these—this—
these doctors are giving him the optimum
No. 12-2001 15
treatment he can get. I’m convinced that we’re
not going to face any better situation the next
time than what we’re facing right now and I
believe we can get through this trial in a proper
fashion and that’s what I want to do.
Trial resumed on May 8. When the prosecution rested,
defense counsel presented testimony from mental-health
experts, a childhood friend, a co-worker, and McManus’s
mother and sister, all in an effort to substantiate an insanity
defense. The expert witnesses testified that McManus has a low
IQ and several mental-health conditions, including depression,
attention deficit and hyperactivity disorder (“ADHD”), and a
reading learning disability. Court-appointed experts also
described McManus’s “low-average” intelligence and mental
illnesses, and his IQ tests were entered into the record.
The jury rejected the insanity defense and found McManus
guilty. The parties stipulated to incorporate the guilt-phase
evidence into the penalty phase of the trial. The defense called
one witness, Dr. John Ireland, who offered additional testi-
mony about McManus’s mental illness, learning disability, and
low IQ. The jury recommended the death penalty. After
weighing the aggravating and mitigating factors, the judge
imposed a sentence of death as recommended by the jury.
New lawyers were appointed to perfect McManus’s appeal.
They first filed a verified motion to correct errors, arguing that
McManus had been incompetent for much of the trial. In
support of the motion, the new defense team called two
witnesses: Glenn Grampp, one of McManus’s trial attorneys;
16 No. 12-2001
and Dr. Roger Maickel, professor emeritus of pharmacology
and toxicology at Purdue University.
Grampp testified that before the trial began, McManus was
capable of understanding the proceedings and participating in
his defense, though he had difficulty reading. Things changed
dramatically after the panic attack on the first day of testi-
mony. Grampp testified that when he spoke to McManus after
he returned from the hospital, “I don’t think he had a clue of
what happened earlier in the trial.” From that point onward
McManus “provided no assistance whatsover.” Grampp
testified that McManus was unresponsive, seemed unaware of
what was going on in the courtroom, and for the next two days
“just sat slouched over like he was in a stupor.” Grampp saw
little improvement in his client’s condition when trial resumed
after the one-week recess.
Dr. Maickel testified about the cognitive effects of the
medications used to treat McManus during trial. He told the
judge that although the drug combination and dosages were
nontoxic, their net effect was to turn McManus’s brain into “a
neuropsychopharmacological soup,” significantly altering his
ability to function rationally. Remeron (the antidepressant) and
Xanax (the antianxiety drug) each have a sedative effect;
Dr. Maickel explained that the effect is more pronounced if the
drugs are taken together because each one interferes with the
metabolic breakdown of the other. He testified that Xanax is,
in fact, classified as a sedative: “the older term used to be
minor tranquilizer” and the “prototype drug of that class is
Valium.” He explained that Xanax “by itself” disrupts normal
thought processes, producing a general “spaciness” or
No. 12-2001 17
“fuzziness” and frequent involuntary lapses into “daydream-
ing.” Dr. Maickel testified that a therapeutic dose of these two
drugs in combination would significantly impair the patient’s
ability to absorb what’s going on around him and make
important decisions: “at best” the patient would be functioning
at about 50 percent of normal cognitive capacity. Dr. Maickel
also said that it takes at least two to three weeks for a patient
to adapt to and become tolerant of these medications.
In a brief bench ruling, the judge denied the motion to
correct errors:
[O]n the issue of competency, we were faced
with a situation that from the testimony of the
physicians and the people involved, that this
Defendant was having panic attacks, because he
was on trial, in this trial. And the question was if
we postpone the trial, and have the trial two
weeks or two months from now or two years
from now, is there any reason to believe that he
would not be having these panic attacks again,
because they, apparently, if they were valid, and
I have no reason to believe they weren’t, were
caused by the trial. What this Court tried to do,
then, was to get competent people to either
adjust his medication or do whatever it took to
get him in good enough shape to be competent
to stand trial in this very serious trial, because
the alternative would be never to try him, which
wasn’t acceptable. And by the time they were
done, I was convinced that he was competent.
18 No. 12-2001
With that, McManus began his appeals and pursuit of
postconviction remedies.
B. Subsequent Procedural History
1. Direct Appeal
The Indiana Supreme Court affirmed the judgment on
direct appeal. McManus v. State (“McManus I”), 814 N.E.2d 253(Ind. 2004). On the question of McManus’s competency to
stand trial, the court gave the trial judge’s rulings “great
deference.” Id. at 260. After reviewing the testimony of
Drs. Mohammadi and Whitehead in some detail, the court held
as follows:
While the testimony was often equivocal, the
consensus of the witnesses was that the medica-
tions assisted McManus in participating in his
trial. Without the medications, McManus proved
unable to cope with the stress of the proceeding.
McManus’s situation is markedly different from
the defendant who requires medication to attain
competence so that the trial can begin. Before
trial, McManus was competent and participated
in preparing his case. The administration of
medication appeared to manage a sudden onset
of stress, rather than to medicate a diagnosed
psychosis. Reliance on psychotropic drugs
during trial is obviously to be approached with
great care, and competency hearings to evaluate
the effects on a defendant’s ability to
No. 12-2001 19
appropriately participate in his or her defense
are very important. In the case at bar, we cannot
say that the trial court’s competency determina-
tion was clearly erroneous … .
Id. at 264.
2. State Postconviction Review
Shortly after McManus was sentenced, the Supreme Court
issued its decision in Atkins holding that executing the intellec-
tually disabled violates the Eighth Amendment’s prohibition
of cruel and unusual punishments.2 536 U.S. at 321. Long
before Atkins, however, Indiana prohibited the execution of the
intellectually disabled. See 1994 Ind. Acts 1851–52 (codified at
IND. CODE § 35-36-9-6). Indiana law also establishes a proce-
dure for litigating the question of intellectual disability before
trial. See IND. CODE §§ 35-36-9-3, -5. Failure to use the statutory
procedure waives the right to raise the claim later. See
Smallwood v. State, 773 N.E.2d 259 (Ind. 2002).
2
Atkins and earlier opinions used the term “mental retardation,” not
“intellectual disability” or “intellectual developmental disorder,” the
preferred terms used today. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014);
AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 33 (5th ed. 2013) [hereinafter DSM–V]. We will follow the
Supreme Court’s lead in Hall and use the term “intellectual disability”
rather than “mental retardation,” although some references to the older
term cannot be avoided because that is the term used in previous court
decisions and the relevant Indiana statutes, IND. CODE §§ 35-36-9-1, et seq.
20 No. 12-2001
McManus did not use the statutory procedure for litigating
the issue pretrial. Instead, he waited until his postconviction
petition to argue that he is intellectually disabled and thus
categorically ineligible for the death penalty under Atkins.
Shortly before he filed his petition, however, the Indiana
Supreme Court held that the state’s statutory procedure did
not fully comply with Atkins and modified it accordingly. See
Pruitt v. State, 834 N.E.2d 90, 102–03 (Ind. 2005) (holding that
the statutory requirement that the defendant prove intellectual
disability by “clear and convincing evidence” is inconsistent
with Atkins and substituting a lower “preponderance of the
evidence” burden of proof). The court later held that
McManus’s Atkins claim was properly raised by postconviction
motion because it did not “ripen” until Pruitt modified the
statutory procedure. State v. McManus (“McManus II”),
868 N.E.2d 778, 784–85 (Ind. 2007).
Atkins largely left to the states the task of developing
standards for determining intellectual disability. 536 U.S. at
317. Indiana uses the following definition: An “‘individual with
mental retardation’ means an individual who, before becoming
twenty-two (22) years of age, manifests: (1) significantly
subaverage intellectual functioning; and (2) substantial
impairment of adaptive behavior.” IND. CODE § 35-36-9-2. To
measure “subaverage intellectual functioning,” the Indiana
Supreme Court has adopted the clinical standard used by the
American Association on Mental Retardation (“AAMR”) and
the American Psychiatric Association (“APA”): a “full-scale IQ
test score … two standard deviations below the mean; i.e., an
No. 12-2001 21
IQ between 70 and 75.”3 Woods v. State, 863 N.E.2d 301, 304
(Ind. 2007) (citing Atkins, 536 U.S. at 309 n.5); see also Williams v.
State, 793 N.E.2d 1019, 1028 (Ind. 2003).
To support his claim, McManus presented testimony from
family members, employers, and teachers, but the key wit-
nesses were Dr. Dennis Olvera, a psychologist and expert in
intellectual disability, and Dr. Edmond Haskins, a clinical
neuropsychologist who gave McManus a battery of IQ tests in
anticipation of the postconviction petition.
Dr. Haskins reported that McManus’s test results yielded
a full-scale IQ score of 78. Earlier IQ tests from McManus’s
childhood and a round of testing administered for purposes of
the insanity defense had produced a range of scores from a low
of 70 to a high of 81. (We will discuss the IQ scores in more
detail in a moment.) At a hearing on the postconviction
petition, Dr. Haskins testified that “it’s fair to say [McManus]
3
A score of 70 is two standard deviations below the mean IQ test score of
100. Hall, 134 S. Ct. at 1994–95. The five-point range accounts for the
standard margin of testing error. See id. at 1995–96; see also Atkins v. Virginia,
536 U.S. 304, 309 n.5 (2002) (“[A]n IQ between 70 and 75 or lower … is
typically considered the cutoff IQ score for the intellectual function prong
of the mental retardation definition.”). In Hall the Supreme Court struck
down a Florida rule requiring an IQ score of 70 or below for a claim of
intellectual disability; the Court held that a hard cutoff of 70 is too rigid
because it fails to account for the standard margin of error in IQ testing. See
134 S. Ct. at 2001. Indiana law accounted for a 5-point margin of error long
before Hall made this a constitutional requirement. See State v. McManus
(“McManus II”), 868 N.E.2d 778, 785–86 (Ind. 2007); Woods v. State,
863 N.E.2d 301, 304 (Ind. 2007); Williams v. State, 793 N.E.2d 1019,1028 (Ind.
2003).
22 No. 12-2001
has an IQ that’s in the high 70s, maybe even low 80s, under the
most optimal of conditions.” But he also said it was his “best
guess” that McManus was functioning at “a drastically
reduced level of adaptiveness and effectiveness” at the time of
the crimes because of his other deficits (in particular, his
ADHD) and the severe stress he was experiencing due to his
impending divorce. Dr. Olvera likewise concluded that
although McManus’s IQ scores were too high to meet the
clinical standard for intellectual disability, there was a “good
possibility” that he was functioning at the level of intellectual
disability at the time of the crimes.
The state relied on testimony from Dr. Martin Groff, a
psychologist. Dr. Groff did not examine McManus, but he
reviewed the relevant record evidence, including the IQ tests,
Dr. Haskins’s report, Dr. Olvera’s report, and the reports of the
mental-health experts who testified at trial. Dr. Groff testified
that McManus did not meet the clinical standard for intellec-
tual disability.
McManus raised several other claims in his postconviction
petition; only two are relevant here. McManus reasserted his
claim that he was not competent for most of the trial. He also
alleged that his trial attorneys were ineffective for failing to
present more evidence of intellectual disability during the
penalty phase.
The postconviction court found by a preponderance of the
evidence that McManus was intellectually disabled and thus
ineligible for the death penalty under Atkins. All other claims
were rejected. The judge vacated the death sentence and
resentenced McManus to life without parole.
No. 12-2001 23
A divided Indiana Supreme Court reversed the finding of
intellectual disability, reinstating the death sentence. See
McManus II, 868 N.E.2d 778. The majority opinion began by
reviewing the evidence of McManus’s intellectual functioning.
The court noted that of the five IQ tests in the record, three
placed McManus’s full-scale IQ above the 70–75 range required
to establish significantly subaverage intellectual functioning. Id.at 785–86. Two tests produced full-scale numerical IQ scores
above the range: (1) a score of 81 on a test administered when
McManus was 11 years old; and (2) a score of 78 on
Dr. Haskins’s test, administered at age 34. A third test (at age
7) placed McManus in the “lower limits of [the] low average
range,” though no numerical score was reported. Id. at 782,
786. The remaining two tests recorded full-scale IQ scores of 72
(at age 14) and 70 (this test was administered at age 30, while
McManus was awaiting trial). Although these scores were
within the range for subaverage intellectual functioning, the
examiners cautioned that the scores may not accurately reflect
McManus’s true IQ because he was not putting forth his
maximum effort (during the test administered at age 14) and
was anxious and depressed (during the test administered at
age 30, while he was awaiting trial). Id. at 787.
After recounting this evidence, the state supreme court
concluded that the “testing history alone demonstrates
McManus is not significantly subaverage as to intellectual
functioning.” Id. But the court did not stop its analysis there;
the justices also traced the circumstantial evidence bearing on
McManus’s intellectual functioning and concluded that it did
not support a claim of intellectual disability. The court noted,
for example, that McManus graduated from high school, had
24 No. 12-2001
a positive work history at several jobs, and was able to care for
his seriously disabled daughter. Id.The court then reviewed the evidence of McManus’s
adaptive functioning—the second part of the definition of
intellectual disability—and concluded that McManus’s scores
in conceptual, social, and practical functioning did not reflect
substantial impairment in these adaptive-behavior domains. Id.at 788–90. The failure of proof on either component of the
definition independently defeated McManus’s claim of
intellectual disability. Accordingly, the majority reversed the
postconviction court’s finding of intellectual disability, reinstat-
ing the death sentence. Id. at 789. Two justices dissented,
faulting the majority for not deferring to the findings of the
postconviction court. Id. at 792–93 (Boehm, J., dissenting).
Having addressed the Atkins claim at significant length, the
justices swiftly rejected McManus’s remaining claims. As
relevant here, the court held that res judicata barred McManus
from relitigating the issue of his competency to stand trial. Id.
at 790. And the court rejected the challenge to trial counsel’s
decision not to present additional evidence of McManus’s
intellectual impairment during the penalty phase of trial. Id. at
791–92. Substantial evidence on this subject was admitted
during the guilt phase of trial (including the IQ evidence) and
incorporated by stipulation into the penalty phase; the court
held that counsel’s decision not to repeat or bolster this
evidence during the penalty phase was not deficient perfor-
mance. Id.No. 12-2001 25
3. Federal Habeas Review
The case then moved to federal district court. McManus
filed a habeas petition under 28 U.S.C. § 2254 raising six claims
of constitutional error; four are relevant to this appeal. First,
McManus reprised his claim of categorical ineligibility for the
death penalty under Atkins. Second, he faulted the state courts
for misapplying federal due-process standards regarding his
competency to stand trial. He also raised a new claim under
Riggins v. Nevada that he was forced to appear before the jury
in a “drug-induced stupor” in violation of his right to due
process. Finally, he argued that his trial attorneys were
constitutionally ineffective because they did not present
additional evidence of intellectual disability during the penalty
phase of the trial.
The district court denied relief on all claims but granted a
certificate of appealability on the Atkins issue. We expanded
the certificate to include the three additional claims we have
listed above.
II. Discussion
Federal habeas review of state criminal judgments is highly
deferential. AEDPA authorizes federal courts to grant a writ of
habeas corpus only when the state-court proceeding “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 “resulted in a
decision that was based on an unreasonable determination of
26 No. 12-2001
the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(1)–(2).
A state-court decision is contrary to clearly established
federal law when “it applies a rule that contradicts the govern-
ing law set forth in [Supreme Court] cases, or if it confronts a
set of facts that is materially indistinguishable from a decision
of [the Supreme] Court but reaches a different result.” Brown v.
Payton, 544 U.S. 133, 141 (2005). An unreasonable application
of clearly established federal law occurs when “‘the state court
correctly identifies the governing legal principle from
[Supreme Court] decisions but unreasonably applies it to the
facts of the particular case.’” Emerson v. Shaw, 575 F.3d 680, 684
(7th Cir. 2009) (brackets in original) (quoting Bell v. Cone,
535 U.S. 685, 694 (2002)).
“Unreasonable” in this context means more than merely
incorrect; a state court’s application of Supreme Court prece-
dent must be “‘so erroneous as to be objectively unreason-
able.’” Id. (quoting Badelle v. Correll, 452 F.3d 648, 654 (7th Cir.
2006)). This standard exceeds even the clear-error standard of
review. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Put
differently, a state court’s application of Supreme court
precedent will satisfy reasonableness review if there is room
for fair-minded jurists to disagree about it. Quintana v.
Chandler, 723 F.3d 849, 855 (7th Cir. 2013).
The state court’s factual determinations are cloaked with a
presumption of correctness, and the presumption can be
overcome only by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1). What this means is that we must be “objectively
convinced that the record before the state court does not
No. 12-2001 27
support the state court’s findings in question.” Ben-Yisrayl v.
Davis, 431 F.3d 1043, 1048 (7th Cir. 2005); see also Ward v.
Sternes, 334 F.3d 696, 704 (7th Cir. 2003) (explaining that a state
court’s factual determination is unreasonable only if it is
“against the clear and convincing weight of the evidence”);
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (explaining
that a factual finding is unreasonable under AEDPA if “an
appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is
supported by the record”). Stated differently, a state court’s
decision is factually unreasonable only when it “rests upon
fact-finding that ignores the clear and convincing weight of the
evidence.” Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010);
see also § 2254(e)(1) (requiring clear and convincing evidence to
overturn a state-court determination of a factual issue).
We review the district court’s denial of habeas relief de
novo. McElvaney v. Pollard, 735 F.3d 528, 531 (7th Cir. 2013).
A. Atkins Claim
McManus first challenges the Indiana Supreme Court’s
determination that he is not intellectually disabled. He focuses
solely on the state high court’s factual findings, apparently
conceding that the court reasonably applied the rule of Atkins
and that Indiana’s definition of intellectual disability is
constitutionally sound.
A claim of factual unreasonableness is difficult to win. To
succeed, the petitioner must grapple with the statutory
presumption of correctness and the steep burden required to
28 No. 12-2001
overcome it. And here, the state supreme court comprehen-
sively scrutinized the evidence of intellectual disability before
finding it wanting, making McManus’s burden especially
daunting.
As we’ve explained, Atkins largely left to the states the job
of developing criteria to determine which death-row prisoners
are “so impaired as to fall within the range of mentally
retarded offenders” who may not be executed. 536 U.S. at 317.
Even so, the Court noted with approval the accepted clinical
definitions of intellectual disability that require both subaver-
age intellectual functioning and substantial deficits in adaptive
skills, both of which must manifest before adulthood. Id. at 318.
More recently the Court held in Hall v. Florida that the general
understanding of medical experts will “inform[]” but not
“dictate” whether a person has an intellectual disability that
precludes his execution under the Eighth Amendment.
134 S. Ct. 1986, 2000 (2014). Hall also mandated that the legal
standard for determining subaverage intellectual functioning
must account for the margin of error in IQ testing. Id. at 2001.
As we’ve noted, McManus does not attack Indiana’s
statutory definition of intellectual disability, which borrows
from the criteria used by the medical community and thus is
not out of step with either Atkins or Hall. Indiana requires a
showing of both “significantly subaverage intellectual
functioning” and “substantial impairment of adaptive
behavior,” both of which must manifest before the age of 22.
§ 35-36-9-2. This definition is consistent with the clinical
standards promulgated by the APA in the Diagnostic and
Statistical Manual of Mental Disorders. See AM. PSYCHIATRIC
No. 12-2001 29
ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 33 (5th ed. 2013) [hereinafter DSM–V]. Based on the
DSM–V diagnostic criteria, a person is considered to have
subaverage intellectual functioning if he scores two standard
deviations below the mean on an appropriate intelligence test.
Id. at 37. For most IQ tests the mean is 100, the standard
deviation is 15, and thus a full-scale IQ score of 70 is the
benchmark. See Hall, 134 S. Ct. 1995–96. Accounting for the
standard margin of error, as required by Hall, yields a range
not a point: a full-scale IQ score of 70–75 or lower ordinarily
will satisfy the first requirement for a finding of intellectual
disability. Id. (discussing the standard error of measurement).
The second requirement evaluates impairment of adaptive
functioning. The medical community measures adaptive
behavior across three domains: conceptual, social, and practi-
cal.4 To satisfy this component of the definition, a person’s
adaptive functioning in at least one domain must be “suffi-
ciently impaired that ongoing support is needed in order for
4
The conceptual domain “involves competence in memory, language,
reading, writing, math reasoning, acquisition of practical knowledge,
problem solving, and judgment in novel situations, among others.” DSM–V,
supra note 2, at 37. The social domain examines interpersonal skills, such as
communication, empathy, and social judgment. Id. And the practical
domain inquires into a person’s ability to manage his life, such as money
management, behavior, and job responsibilities. Id. The DSM–IV requires
deficits in at least two of the following areas: communication, self-care,
home living, social/interpersonal skills, use of community resources, self-
direction, functional academic skills, work, leisure, health, and safety. AM.
PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 41 (4th ed. 2000).
30 No. 12-2001
the person to perform adequately in one or more life settings
at school, at work, at home, or in the community.” DSM–V,
supra, at 38. Moreover, the deficits must be caused by the
person’s intellectual impairment. Id. The DSM–V requires that
the deficits in both intellectual and adaptive functioning
appear during childhood or adolescence. Id. at 33, 38.
The American Association on Intellectual and Developmen-
tal Disabilities (“AAIDD”) (f/k/a the American Association on
Mental Retardation) uses an essentially equivalent definition
of intellectual disability: a person must manifest, before the age
of 18, “significant limitations in both intellectual functioning
and in adaptive behavior as expressed in conceptual, social,
and practical adaptive skills.” AM. ASS’N ON INTELLECTUAL &
DEVELOPMENTAL DISABILITIES, INTELLECTUAL DISABILITY:
DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 221
(11th ed. 2010) [hereinafter AAIDD, INTELLECTUAL DISABILITY].
Indiana’s definition largely tracks that used by the AAIDD.
See Pruitt, 834 N.E.2d at 108. The only difference is the age by
which the deficits in intellectual and adaptive functioning must
manifest: the statute raises the age from 18 to 22.
After canvassing the record evidence in some detail, the
Indiana Supreme Court found that McManus failed to establish
that he suffered from either significantly subaverage intellectual
functioning or substantial impairment of adaptive behavior.
Each of these findings is independently sufficient to defeat his
claim of intellectual disability, so if either one holds up under
reasonableness review, habeas relief is unwarranted.
No. 12-2001 31
1. Intellectual Functioning
The state high court began its analysis by recounting the
IQ-score evidence, noting that McManus was tested on five
occasions, at the ages of 7, 11, 14, 30, and 34. McManus II,
868 N.E.2d at 782. The first test placed McManus “within the
lower limits of the low average range,” but the examiner did not
record a precise numerical score. Id. (emphasis added). The
second test, administered at age 11, recorded a full-scale IQ
score of 81, which the examiner also classified as “within a low
average range.” Id. McManus scored a 72 on his third IQ test at
age 14—within the range of mild intellectual disability—but
the court observed that this test was accompanied by a note
from the examiner indicating that McManus had not put forth
his full effort and the score likely understated his true intellec-
tual ability. Id.
McManus was tested again at age 30, while he was awaiting
trial, and achieved a full-scale IQ score of 70. Again, however,
the examiner—Dr. Michael Gelbort, a clinical psychologist who
was a defense witness at trial—noted that the score likely
understated McManus’s true intellectual capacity because he
was “anxious and depressed at the time of testing.” Id. The
most recent IQ test was administered by Dr. Haskins in
February 2006 in connection with the postconviction petition.
McManus was then 34 and achieved a full-scale IQ score of 78.
Id.
The state supreme court found it significant that all of the
mental-health experts agreed that based on his IQ scores,
McManus was not intellectually disabled. Id. at 786 (“Experts
for the trial court, the State, and the defense testified both at
32 No. 12-2001
trial and during the post-conviction hearing that McManus is
not below the level of intellectual functioning that defines
mental retardation.”). Dr. Ireland testified that McManus’s true
IQ was likely in the “80-type range.” Id. Dr. Gelbort testified
that although McManus scored a 70 on the test he adminis-
tered, he “could probably score slightly higher” if his depres-
sion and anxiety abated, though “not significantly so.”
Dr. Haskins agreed that the two lowest scores were likely
not indicative of McManus’s true intellectual functioning. He
administered the most recent IQ test, on which McManus
achieved a full-scale score of 78. Dr. Haskins explained at the
postconviction hearing that McManus’s true IQ was “in the
high 70s, maybe even low 80s, under the most optimal of
conditions,” although it was his “best guess” that he was
functioning at a lower level at the time of the crimes.
Dr. Olvera agreed that McManus was not intellectually
disabled because his IQ score of 78 was too high, but he shared
Dr. Haskins’s view that McManus may have been functioning
at the level of an intellectually disabled person at the time of
the murders. Finally, Dr. Groff discounted the two lower IQ
scores for the reasons noted by the examiners: McManus had
not applied his full effort or was anxious and depressed at the
time of the test. Id. at 786–87. Dr. Groff concluded that
McManus’s IQ scores did not meet the clinical standard for
significantly subaverage intellectual functioning.
After cataloging all this evidence, the Indiana Supreme
Court found that “McManus’ testing history alone demon-
strates McManus is not significantly subaverage as to intellec-
tual functioning.” Id. at 787. This finding is amply supported
No. 12-2001 33
by the record. The IQ-test evidence does not place McManus
within the range of intellectual disability. Three of the five
scores placed him in the “low-normal” or “low-average” range
of intellectual functioning, and the two borderline scores were
accompanied by examiner notes qualifying the results. On this
record, it was objectively reasonable for the state supreme
court to discount the two lowest test scores (because they came
with qualifiers) and give greater weight to the other IQ scores,
as interpreted by the experts. See Thomas v. Allen, 607 F.3d 749,
757 (11th Cir. 2010) (holding that the district court’s finding of
subaverage intellectual functioning was not clearly erroneous
despite an isolated IQ score above the intellectual-disability
cutoff).
It’s worth emphasizing that none of the experts testified that
McManus falls within the range for a diagnosis of intellectual
disability based on the IQ-test evidence as a whole. It’s true
that two defense experts—Dr. Haskins and Dr. Olvera—said
that McManus may have been functioning at the level of an
intellectually disabled person at the time of the crimes based on
the combination of his other mental-health deficits and the
stress of his looming divorce.5 But that’s not the relevant
question under Atkins. The Supreme Court approved the use
of medically accepted clinical criteria defining intellectual
disability by reference to impairments in intellectual and
adaptive functioning that manifest by the end of the develop-
mental period. 536 U.S. at 308 n.3; id. at 317 n.22. In other
5
They couched their testimony in nonscientific terms as a “best guess”
(Dr. Haskins) and a “good possibility” (Dr. Olvera) that McManus was
functioning at a lower intellectual level at the time of the crimes.
34 No. 12-2001
words, intellectual disability for both diagnostic and Eighth
Amendment purposes is not transitory; it’s a chronic condition
based on symptoms that manifest before adulthood. To accept
the testimony of Drs. Haskins and Olvera as a basis to find
McManus ineligible for the death penalty would require an
extension of Atkins, not an application of it.
McManus argues that the older IQ scores may have
overstated his performance because of the so-called “Flynn
Effect,” which refers to the increase in IQ scores over time. IQ
tests are scored on a scale that is relative to the population. Test
developers determine the mean and standard deviation
relative to the population at the time the test is developed; this
is referred to as “norming” the test. Because IQ scores rise over
time, the Flynn Effect posits that the mean score will rise above
100 until the test is re-normed. See Geraldine W. Young, Note,
A More Intelligent and Just Atkins: Adjusting for the Flynn Effect
in Capital Determinations of Mental Retardation or Intellectual
Disability, 65 VAND. L. REV. 615, 617 (2012). For example, a
person with a measured IQ of 76 on a test normed in 1990
would not be two standard deviations below the mean if he
took the test the year it was normed. But if the same person
took the same test in 2010, a score of 76 might amount to a
measure of intellectual functioning two standard deviations
below the mean because the average IQ score would have risen
by about six points (0.3 points per year multiplied by
20 years).6
6
James Flynn, the eponym of the “Flynn Effect” theory, estimated that IQ
scores increase at 0.3 points per year. James R. Flynn, The Mean IQ of
(continued...)
No. 12-2001 35
The Flynn Effect is taking on increased prominence in
habeas litigation alleging death ineligibility under Atkins. See
Frank M. Gresham & Daniel J. Reschly, Standard of Practice and
Flynn Effect Testimony in Death Penalty Cases, 49 INTELLECTUAL
& DEVELOPMENTAL DISABILITIES 131 (2011). The circuits are not
consistent in their approach on this point. Compare, e.g., Black v.
Bell, 664 F.3d 81, 95 (6th Cir. 2011) (faulting state court for not
considering the Flynn Effect under Tennessee law) and
Walker v. True, 399 F.3d 315, 322–23 (4th Cir. 2005) (finding the
Flynn Effect relevant to whether someone is two standard
deviations below the mean), with Hooks v. Workman, 689 F.3d
1148, 1170 (10th Cir. 2012) (“Atkins does not mandate an
adjustment for the Flynn Effect.”). See also Thomas, 607 F.3d at757–58 (collecting cases and noting that no expert consensus
exists on how to apply the Flynn Effect to individual cases);
Young, Adjusting for the Flynn Effect, supra, at 631–41 (analyzing
the different approaches used in state and federal courts);
Gresham & Reschly, supra, at 136–37 (criticizing those adminis-
tering psychological tests for failing to consider the Flynn
Effect). Our circuit has not yet weighed in.
Although the Flynn Effect is acknowledged in the field, it
is not common practice to adjust IQ scores by a specific amount
to account for the phenomenon. Hooks, 689 F.3d at 1170. More
to the point here, nothing in Atkins suggests that IQ test scores
must be adjusted to account for the Flynn Effect in order to be
considered reliable evidence of intellectual functioning. The
6
(...continued)
Americans: Massive Gains 1932 to 1978, 95 PSYCHOL. BULL. 29, 32–34 (1984).
36 No. 12-2001
Indiana Supreme Court found as a factual matter that
McManus does not suffer from significantly subaverage
intellectual functioning based on the IQ evidence; that finding
is well supported by the record, including the testimony of the
expert witnesses, all of whom agreed that his scores do not
place him within the clinical range for intellectual disability.
The court’s failure to consider the Flynn Effect does not make
its factual determination objectively unreasonable.
McManus also argues that the court’s decision was based
on stereotypes and other misconceptions about people with
intellectual disabilities. More specifically, he takes issue with
two parts of the court’s analysis. First, he claims that the court
wrongly attributed his two lowest test scores to his learning
disability and ADHD. Second, he argues that the court should
not have placed any weight on the evidence that he graduated
from high school, successfully worked three jobs, and took care
of his profoundly disabled child. He notes in particular that
although he graduated from high school, he was in a special-
education curriculum, and his jobs were in unskilled labor.
Finally, he maintains that no evidence supports the proposition
that intellectually disabled parents cannot care for disabled
children.
We do not doubt that intellectually disabled people
graduate from high school (with or without the assistance of
special-education programming) and also hold down jobs. And
we accept that some intellectually disabled parents have the
capacity to care for a disabled child. But McManus overstates
the Indiana Supreme Court’s use of this circumstantial evi-
dence. The court did not draw any firm conclusions about
No. 12-2001 37
McManus’s intellectual functioning from this evidence alone.
Rather, the court mentioned this evidence only in passing and
only as additional support for its conclusion that McManus’s
higher IQ scores reflected his true intellectual ability. See
McManus II, 868 N.E.2d at 787.
Similarly, the state supreme court did not conclude that
McManus’s lower test scores were exclusively attributable to his
learning disability and ADHD. Under current diagnostic
criteria, intellectual disability and specific learning disorders
may explain low testing performance. See DSM–V, supra, at 67
(“The learning difficulties are not better accounted for by
intellectual disabilities … .”). IQ tests have “performance” and
“verbal” components, and the test-taker’s scores on each
component combine to produce a full-scale IQ score. With only
one exception, McManus consistently achieved a performance
score in the 80s, but his verbal scores were lower.7 This
suggests that McManus’s full-scale IQ scores were pulled
down by his poor verbal performance. It’s reasonable to infer
that McManus’s learning disability and ADHD contributed to
his lower verbal scores, and indeed Drs. Ireland and Haskins
testified to that effect.
In short, the Indiana Supreme Court’s factual determination
that McManus’s intellectual functioning is not significantly
subaverage is solidly grounded in the record and thus is not
objectively unreasonable. This holding alone is independently
sufficient to reject McManus’s Atkins claim. For completeness,
7
His three other performance scores were 81, 85, and 88. See McManus II,
868 N.E.2d at 786.
38 No. 12-2001
however, we move to the state supreme court’s assessment of
McManus’s adaptive functioning.
2. Adaptive Behavior
As noted, Indiana has adopted the AAIDD’s criteria for
measuring substantial impairment of adaptive behavior, which
requires “significant limitations … in conceptual, social, and
practical adaptive skills.”8 AAIDD, INTELLECTUAL DISABILITY,
supra, at 221; McManus II, 868 N.E.2d at 788. To quantify and
measure McManus’s adaptive skills, Dr. Olvera administered
the Adaptive Behavior Assessment System II (“ABAS–II”). One
of his assistants administered a second test, the Vineland–II
Adaptive Behavior Scales (“VABS–II”).
The ABAS–II arrives at composite scores in the domains of
conceptual, social, and practical skills by evaluating ten
subdomains. The conceptual domain has three subdomains:
(1) communication; (2) functional academics; and (3) self-
direction. The social domain has two subdomains: (4) leisure
and (5) social. And the practical domain has five subdomains:
(6) community use; (7) home/school living; (8) self-care;
(9) health and safety; and (10) work. McManus II, 868 N.E.2d at
788 n.8. Dr. Olvera scored the ABAS–II based on interviews
with people who knew McManus well: his mother and three of
his employers. Id. at 783. Each domain has a mean score of 100
and a standard deviation of 15, so (like IQ tests) a score at or
8
The DSM–V, like the AAIDD, now looks to the conceptual, social, and
practical domains. The older list of skill areas has been subsumed into these
categories. See DSM–V, supra note 2, at 37.
No. 12-2001 39
below 70 will signal intellectual disability. For scores in the
subdomains, the mean is 10 and the standard deviation is 3;
accordingly, a person is considered to be in the range of
intellectual disability if he scores 4 or lower, two standard
deviations below the subdomain mean. Id. at 788 n.8.
McManus achieved composite scores of 82 in the concep-
tual domain, 90 in the social domain, 93 in the practical
domain, for a General Adaptive Composite score of 88 on the
ABAS–II. None of these scores falls within the intellectually
disabled range. Id. at 788. McManus’s subdomain scores, which
formed the basis for the composite scores, likewise do not fall
within the range commonly associated with intellectual
disability. Eight of the subdomain scores ranged from 8–12,
with an average of 9.5, well within the average range. A ninth
score was lower—a 5 in community use—but still above the
threshold for intellectual disability. McManus’s only subdo-
main score below the threshold was a 2 in functional academ-
ics.
In contrast, McManus’s composite score on the VABS–II fell
well within the range of an intellectually disabled person. The
VABS–II test is a bit different; it evaluates the domains of
communication, daily living, and socialization, and each
category has three subdomains.9 Id. at 789. The composite
scores have a mean of 100 and a standard deviation of 15, so
again, a score at or below 70 will signal intellectual disability.
9
These subdomains are: receptive, expressive, and written (for communica-
tion); personal, domestic, and community (for daily living); and interper-
sonal/relations, play and leisure, and coping (for socialization).
40 No. 12-2001
Like the ABAS–II, the VABS–II test is based on interviews with
people familiar with the subject, though for this test
Dr. Olvera’s assistant interviewed only McManus’s sister and
sister-in-law. McManus achieved a composite score of 75 in the
domain of daily living, 71 in socialization, and 21 in communi-
cation skills, for an overall composite score of 55.
Faced with contradictory testing data, the Indiana Supreme
Court credited the ABAS–II results. The court found that this
testing instrument “most closely resembles the AAMR
definition” of intellectual disability, which the Indiana statute
largely mirrors. Id. at 788. The court also noted that the
VABS–II data was obtained through interviews with
McManus’s family members only, so the results might have
been skewed by “the affection of the relatives who supplied the
input.” Id. at 789. Finally, the court noted that McManus’s
dismal communication score of 21 on the VABS–II had a
substantial impact on his overall composite score on that test.
Dr. Olvera testified that a communication score that low would
indicate the presence of a severe intellectual disability; no one
had suggested that McManus suffers from an intellectual
disability of that magnitude. This anomaly, the court held, was
an additional reason to be suspicious of the VABS–II results. Id.
McManus argues that the court erred in disregarding the
VABS–II test scores. We see two problems with this argument.
First, nothing in Atkins commands the use of a particular test
or clinical instrument for determining whether a person is
intellectually disabled. See 536 U.S. at 316. Indiana’s high court
had the discretion to find the ABAS–II a more discerning
measure of adaptive behavior. Second, McManus’s argument
No. 12-2001 41
ignores the deferential standard of review. We have no
authority to second-guess the state supreme court’s resolution
of a conflict in the testing evidence; we are authorized to grant
habeas relief only if the state court’s determination of the facts
is against the clear weight of the evidence. That’s hardly the
case here. The Indiana Supreme Court made a considered
judgment about which test results were more reliable and gave
sound reasons, grounded in the evidence, for crediting one test
over the other.
Finally, McManus zeroes in on his low scores in the
subdomains of functional academics and community use.
Dr. Groff characterized the functional-academics score as
“clearly” within the range of intellectual disability and the
community-use score as “close.” But a low score in a single
subdomain of adaptive behavior is not clear and convincing
evidence of intellectual disability under any commonly
accepted definition. Moreover, with his diagnosis of a reading
disorder, it’s not surprising that McManus would have a low
score in functional academics while scoring within (or near) the
low-average range in other areas of adaptive behavior.
In sum, the Indiana Supreme Court made an objectively
reasonable factual determination that McManus is not
intellectually disabled and thus not categorically ineligible for
the death penalty under Atkins.
42 No. 12-2001
B. Competency
McManus also argues that the state courts unreasonably
applied federal due-process principles in addressing his
competency to stand trial. We agree.
“[T]he Constitution does not permit trial of an individual
who lacks mental competency.” Indiana v. Edwards, 554 U.S.
164, 170 (2008) (internal quotation marks omitted). A person is
competent to stand trial when “he has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding [] and … a rational as well as factual under-
standing of the proceedings against him.” Dusky, 362 U.S. at
402; see also Edwards, 554 U.S. at 170; Drope v. Missouri, 420 U.S.
162, 171–72 (1975); Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir.
2004).
The due-process rule announced in Dusky has deep
common-law origins and implements the fundamental
principle that it is unjust to punish a person who lacks the
mental capacity to understand the proceedings against him
and participate in his own defense. Drope, 420 U.S. at 171 (“It
has long been accepted that a person whose mental condition
is such that he lacks the capacity to understand the nature and
object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to
a trial.”); see also 4 WILLIAM BLACKSTONE, COMMENTARIES
*24–25. The trial court must conduct a competency hearing—
sua sponte if necessary—when there is substantial reason to
doubt the defendant’s mental fitness to stand trial. Pate,
383 U.S. at 385; Sturgeon v. Chandler, 552 F.3d 604, 612 (7th Cir.
2009). Whether a competency hearing is warranted is
No. 12-2001 43
necessarily an individualized determination. “Relevant factors
include any evidence of irrational behavior, the defendant’s
demeanor in court, and any medical opinions on the defen-
dant’s competency to stand trial.” Sturgeon, 552 F.3d at 612.
Again, because this is a habeas case, we do not apply these
standards directly. Rather, we ask whether the state court’s
decision was contrary to, or an unreasonable application of,
clearly established federal law, or was based on an unreason-
able determination of the facts. See § 2254(d)(1)–(2).
It’s undisputed that McManus’s panic attacks and the
medications used to treat them raised bona fide doubts about
his competency. The panic attacks were severe enough to
require two trips to the hospital, and every medical doctor who
testified in this case agreed that the drugs used to treat
McManus have significant cognitive effects, most notably on
perception, judgment, and (in the case of Versed) memory.
Dr. Maickel, the pharmacologist, testified that the medications
in combination turned McManus’s brain into “a neuropharma-
cological soup.” We do not need to go that far to accept that
the medications raised substantial doubt about McManus’s
mental fitness to proceed. Indeed, everyone agrees that a
competency inquiry was necessary. The disputed question is
whether the state courts reasonably applied the federal due-
process framework for adjudicating competency questions. We
conclude that they did not.
We begin with the trial judge’s rulings. The defense team
repeatedly moved for a mistrial or a continuance, arguing that
McManus’s panic attacks and the medications prescribed to
control them rendered him incompetent to proceed. The judge
44 No. 12-2001
summarily denied each motion. The first of these rulings
contains faint echoes of the Dusky standard, so we can safely
assume that the judge was aware of the constitutional mini-
mums. But the judge’s rulings do not reflect a process of
reasoning tied to the legal standard; they are entirely conclus-
ory. And the record does not supply the missing premises,
largely because the judge never ordered a formal competency
examination.
Recall that after the second panic attack and hospital visit,
the judge summoned Dr. Mohammadi, the emergency-room
physician, to testify about McManus’s condition.
Dr. Mohammadi told the court that McManus was calmer and
more rational than he was in the emergency room. But he also
said that McManus’s mental processes were significantly
slowed by medication. Importantly, Dr. Mohammadi did not
give an expert opinion about McManus’s competency to stand
trial. He wasn’t asked to—he was an emergency-room physi-
cian, after all, not a forensic psychiatrist. And indeed, he
qualified his testimony at every turn, acknowledging the limits
on both the scope of his expertise and his examination of
McManus; he agreed with defense counsel that McManus
would need to be seen by a psychiatrist to determine an
appropriate medication regimen that would allow him to
understand and participate in the trial. Dr. Mohammadi’s
testimony was at once equivocal and contingent and does not
provide an evidentiary foundation for us to conclude that the
judge’s summary decision implicitly addressed the federal
competency standard.
No. 12-2001 45
The judge’s ruling on the verified motion for a mistrial was
even more problematic. This time the judge did have testimony
from a specialist: Dr. Whitehead, a psychiatrist. But
Dr. Whitehead was not asked to—and in fact did not—conduct
a forensic competency examination. To use the judge’s own
words, Dr. Whitehead was brought in to get McManus “fixed
up” enough to complete the trial, or as Dr. Whitehead put it
more diplomatically, he was there to “help McManus feel
better.” And Dr. Whitehead qualified his testimony in two
crucial respects: (1) although McManus was pleasant and
cooperative, he spoke and moved slowly, so the doctor had
difficulty obtaining useful information from him; and
(2) McManus had a panic attack in the middle of the interview,
so Dr. Whitehead could not complete the examination.
Again, the judge summarily denied the defense motion,
never addressing whether McManus was competent to
proceed or even hinting at the elements of the applicable legal
standard. Instead, the judge simply asserted his belief that
McManus’s condition was either self-induced or the result of
stress from the trial and would not improve if a mistrial or
continuance were granted. Whether McManus’s condition
would “improve” is not the right question; it does not address
whether McManus was presently competent to proceed in the
sense required to comply with minimum standards of due
process. The Dusky standard is not relative to a person’s
normal functioning; it is a minimum objective threshold that
must be exceeded.
In the end, we cannot escape the fact that despite substan-
tial evidence of McManus’s decompensation and the powerful
46 No. 12-2001
cognitive effect of the psychotropic medication he was taking,
the judge failed to directly address the competency standard
and never made a clean factual finding that McManus had a
rational and factual understanding of the proceedings and a
present rational capacity to consult with his lawyers about his
defense. And because no competency examination was ordered
(and thus no expert testified to the elements of the legal
standard), we cannot infer that the judge’s ruling was implicitly
keyed to the appropriate legal test. The judge might have
conducted his own on-the-record colloquy with McManus to
check his understanding of the proceedings and his capacity to
assist in his defense. If that had happened, we might be able to
conclude that the judge made a reasonable independent
judgment about McManus’s competency. After all, a defen-
dant’s competency to stand trial is a legal inquiry, not a
medical inquiry, and “the judge is the expert on what mental
capabilities the litigant needs in order to be able to assist in the
conduct of the litigation.” Holmes v. Buss, 506 F.3d 576, 581 (7th
Cir. 2007). But that did not happen here.10
10
On May 9 defense counsel engaged in a short colloquy with McManus to
make a record about his decision not to testify. A second brief colloquy
occurred the next day, during the sentencing phase of trial, on the same
subject. The judge relied on these colloquies as support for his decision to
deny the motion to correct errors. This is problematic for several reasons.
The colloquies were brief; they were conducted by counsel, not the court;
and they were not addressed to the competency standard. Moreover, given
the powerful effects of the medication, the colloquies on May 9 and 10 did
not answer whether McManus was competent during the earlier phases of
the trial.
No. 12-2001 47
The judge’s failure to order a proper competency evalua-
tion is itself problematic. Because there were bona fide doubts
about McManus’s mental fitness, the Indiana Code required
the court to appoint two or three medical experts having
expertise in determining competency and hold an appropriate
hearing. See IND. CODE § 35-36-3-1.11 Indiana’s procedures are
facially sufficient to satisfy due process, see Drope, 420 U.S. at
173 (approving an analogous Missouri statute), but it’s clear
the judge wasn’t using the statutory procedure. One of the
doctors who testified did not have the required expertise, and
neither doctor conducted an appropriate examination.
Dr. Mohammadi was an emergency-room physician whose
expertise was in stabilizing patients. Dr. Whitehead was a
treating psychiatrist whose qualifications to assess competency
11
Section 35-36-3-1 of the Indiana Code provides:
If at any time before the final submission of any criminal
case to the court or the jury trying the case, the court has
reasonable grounds for believing that the defendant lacks
the ability to understand the proceedings and assist in the
preparation of a defense, the court shall immediately fix a
time for a hearing to determine whether the defendant has
that ability. The court shall appoint two (2) or three
(3) competent, disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the Indiana state board
of examiners in psychology as health service providers
in psychology; or
(3) physicians;
who have expertise in determining competency.
48 No. 12-2001
were not placed in the record. We can probably assume that he
had the relevant expertise, but he was not asked to evaluate
McManus for competency and did not in fact do so. Instead,
Dr. Whitehead was brought in to get McManus “fixed up” to
finish the trial.
Although the judge failed to follow Indiana’s statutory
procedure, that’s not a basis for federal habeas relief. See
Wilson v. Corcoran, 131 S. Ct. 13, 14 (2010) (“Federal courts may
not issue writs of habeas corpus to state prisoners whose
confinement does not violate federal law.”); Drope, 420 U.S. at
172 (“The Court did not hold [in Pate] that the procedure
prescribed by [Illinois law] was constitutionally mandated,
although central to its discussion was the conclusion that the
statutory procedure, if followed, was constitutionally ade-
quate.” (citations omitted)). A competency hearing may be
constitutionally adequate yet fall short of Indiana’s statutory
requirements. For the reasons we have explained, however, the
judge did not conduct a constitutionally adequate competency
hearing.
The trial court’s failure to adjudicate the competency
question under the standards established in Dusky, Pate, and
Drope becomes significant for our review of the Indiana
Supreme Court’s decision. As we have noted, the state high
court deferred to the trial judge’s rulings. McManus I, 814 N.E.
2d at 260, 264. By subjecting a constitutionally inadequate trial-
court decision to deferential review, the Indiana Supreme
Court did not adequately vindicate the federal due-process
interests at stake. See Harrison v. McBride, 428 F.3d 652, 666–67
(7th Cir. 2005).
No. 12-2001 49
Moreover, the state supreme court’s analysis was itself
incomplete. Although the court recited the correct due-process
standard early in its decision, McManus I, 814 N.E.2d at 260–61,
the court never actually applied it. After acknowledging that
the doctors’ testimony was equivocal, the court held that the
“consensus of the witnesses was that the medications assisted
McManus in participating in his trial.” Id. at 264. Reasonable
minds can differ about whether the record fairly supports that
interpretation. But asking whether the medications were
“assisting” McManus does not resolve the competency
question, at least not without further factual and legal analysis.
The due-process inquiry asks whether the defendant had a
present factual and rational understanding of the trial proceed-
ings and the capacity to assist his lawyers with a reasonable
degree of rational understanding. See Dusky, 362 U.S. at 402.
Because the court never actually applied this standard, it too
committed unreasonable error.
Accordingly, although the standard of review under
AEDPA is deferential, the record does not permit a conclusion
that the state courts reasonably applied federal due-process
standards in adjudicating McManus’s competency to stand
trial.12 McManus prevails on this claim.
12
A slightly different way of looking at it is that a legal error infected the
trial court’s fact-finding process, so the resulting factual determination is
unreasonable. See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)
(“Obviously, where the state court’s legal error infects the fact-finding
process, the resulting factual determination will be unreasonable and no
presumption of correctness can attach to it.”). In other words, the state
supreme court affirmed an unreasonable factual finding on deferential
(continued...)
50 No. 12-2001
This brings us to the question of remedy. Sometimes a
retrospective competency hearing is possible, though for
obvious reasons contemporaneous determinations are pre-
ferred. Young v. Walls, 311 F.3d 846, 848 (7th Cir. 2002). A
retrospective hearing may be a remedial option if “it is still
possible to hold a meaningful retrospective hearing to deter-
mine if the defendant was fit to stand trial at the time of the
original state proceedings.” Estock v. Lane, 842 F.2d 184, 188
(7th Cir. 1988). “The passage of even a considerable amount of
time may not be an insurmountable obstacle if there is suffi-
cient evidence in the record derived from knowledge contem-
poraneous to trial.” United States ex rel. Bilyew v. Franzen,
686 F.2d 1238, 1247 (7th Cir. 1982) (quoting United States v.
Makris, 535 F.2d 899, 904 (5th Cir. 1976)). Compare Burt v.
Uchtman, 422 F.3d 557, 566 (7th Cir. 2005) (granting the writ of
habeas corpus where medication disrupted a defendant’s
alertness during trial), with Young, 311 F.3d at 848–49 (noting
that “when a defendant’s condition is stable, evidence adduced
after trial allows a reliable reconstruction of the defendant’s
mental state at trial”).
Here, the problem extends far beyond the passage of time.
McManus’s condition was highly unstable; the panic attacks
might have resulted from changes in his medication, difficul-
ties that would not be observable after he was stabilized. And
regardless of what caused the attacks, the drugs administered
to curtail them clearly affected McManus’s cognition during
trial. We cannot see how new testimony before the district
12
(...continued)
review.
No. 12-2001 51
court could possibly provide the necessary information to
retrospectively assess his competency under the applicable
legal standard. Habeas relief is warranted.13
III. Conclusion
For the foregoing reasons, McManus is not entitled to
habeas relief on his claim of intellectual disability under Atkins.
But the state courts unreasonably applied federal due-process
standards in adjudicating McManus’s competency to stand
trial. Accordingly, we REVERSE the district court’s judgment
and REMAND with instructions to grant the writ unless Indiana
gives notice of its intent to retry McManus within a reasonable
time to be fixed by the district court.
13
Our holding on the competency issue makes it unnecessary for us to
address McManus’s remaining claims, which allege other constitutional
errors at trial.