Andrew Sasser v. Dexter Payne ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1678
___________________________
Andrew Sasser
lllllllllllllllllllllPetitioner - Appellee
v.
Dexter Payne
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 18-1768
___________________________
Andrew Sasser
lllllllllllllllllllllPetitioner - Appellant
v.
Dexter Payne
lllllllllllllllllllllDefendant - Appellee
____________
Appeals from United States District Court
for the Western District of Arkansas - Texarkana
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Submitted: September 24, 2020
Filed: June 2, 2021
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
Andrew Sasser is an Arkansas prisoner under a sentence of death for capital
murder. After he pursued a direct appeal and a collateral attack on his conviction and
sentence in state court, Sasser petitioned for a writ of habeas corpus in the federal
district court. In a previous appeal, this court affirmed the dismissal of several
claims, but remanded for further proceedings on four claims alleging ineffective
assistance of counsel under the Sixth Amendment. Sasser v. Hobbs, 735 F.3d 833,
854-55 (8th Cir. 2013). The court also remanded for further proceedings on Sasser’s
claim that he is ineligible for the death penalty, due to intellectual disability, under
the Eighth Amendment and the rule of Atkins v. Virginia, 536 U.S. 304 (2002). On
remand, the district court rejected the Atkins claim, but granted relief on two of the
ineffective-assistance claims and set aside Sasser’s sentence. Both parties appeal.
We affirm the denial of relief under the Eighth Amendment, but reverse the grant of
relief based on alleged ineffective assistance of counsel.
I.
Sasser killed Jo Ann Kennedy in July 1993 while she was working alone as the
store clerk at an E-Z Mart Store in Garland, Arkansas. Ms. Kennedy was discovered
nude from the waist down; pants and panties found in the men’s restroom were hers.
An autopsy report showed that she died of multiple stab and cutting wounds and
blunt-force head injuries. No anal or vaginal injury or spermatozoa was present. At
trial, another woman testified that Sasser attacked and raped her in April 1988 while
she was working alone at an E-Z Mart Store in Lewisville, Arkansas. The jury
imposed a sentence of death for the murder of Ms. Kennedy after finding that an
aggravating circumstance (commission of a previous violent felony) outweighed
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mitigating circumstances (that Sasser would be a productive inmate, had a supporting
family, and had stipulated that he caused the victim’s death). See Sasser v. State, 902
S.W.2d 773, 774-77 (Ark. 1995).
After litigating an unsuccessful petition for postconviction relief in Arkansas,
see Sasser v. State, 993 S.W.2d 901 (Ark. 1999) (per curiam), Sasser petitioned for
a writ of habeas corpus in federal court. In this court’s most recent decision on the
case, the panel ruled that the district court had applied an incorrect legal standard in
rejecting Sasser’s Eighth Amendment claim based on alleged intellectual disability.
Accordingly, the court remanded that claim to the district court for further
proceedings. Sasser, 735 F.3d at 850.
On Sasser’s claims alleging ineffective assistance of trial counsel, the prior
panel ruled that all but four of Sasser’s sixteen claims were procedurally barred,
meritless, or both. But the court listed four remaining claims on which it said that
Sasser was “entitled to an evidentiary hearing in light of . . . Trevino v. Thaler, 569
U.S. 413 (2013).” Sasser, 735 F.3d at 851. Trevino held that ineffective assistance
of counsel in state postconviction proceedings may be grounds to excuse a procedural
default under state law that would otherwise bar a prisoner from obtaining federal
review of a claim alleging ineffective assistance of trial counsel. 569 U.S. at 429.
The Sasser panel said that the district court was “authorized under 28 U.S.C.
§ 2254(e)(2) and required under Trevino to hold an evidentiary hearing on the
claims.” 735 F.3d at 853 (internal quotation marks and brackets omitted). In
response to the State’s petition for rehearing, however, the panel clarified that “on
remand, the State is free to argue Sasser’s postconviction counsel fully raised the four
claims,” Sasser v. Hobbs, 743 F.3d 1151, 1151 (8th Cir. 2014), such that Trevino
would be inapplicable.
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II.
On remand, the district court considered Sasser’s “four remaining claims”
alleging ineffective assistance of counsel—namely, that Sasser’s trial counsel
ineffectively failed to:
1. Prepare for the sentencing phase of the trial;
2. Obtain a timely psychological evaluation of Sasser;
3. Meaningfully consult with a mental health professional;
and
4. Object “when the prosecutor misconstrued the mitigating
evidence that the defense had presented concerning
[Sasser’s] mental impairment and lessened culpability” or
to rebut that argument.
Sasser, 735 F.3d at 851.
The district court declined to grant relief on two claims: Sasser abandoned the
fourth claim, and the court rejected the first claim. On the first claim, the court
determined that Sasser’s procedural default could not be excused under Trevino,
because he fairly presented the claim in state court during the postconviction process
before declining to raise it on appeal.
As to the second and third claims, however, the court concluded that Sasser’s
claims as developed on remand were different from those raised in the state
postconviction proceeding. The court then determined that those two claims were
procedurally defaulted, but the default was excused under Trevino based on
ineffective assistance of postconviction counsel. The court reasoned that
postconviction counsel’s investigation and representation were not reasonably
effective, and that Sasser was prejudiced by the ineffectiveness.
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On appeal, the State maintains that postconviction counsel did raise the second
and third claims during the postconviction process, and they were then defaulted on
appeal in state court. To address this contention, it is necessary to compare the claims
in Sasser’s federal habeas petition with those set forth in his petition for
postconviction relief under Arkansas Rule of Criminal Procedure 37.
When this court listed claims for consideration on remand, the claims were
derived from Sasser’s amended federal habeas petition filed July 17, 2001. R. Doc.
23. The second claim on remand—that trial counsel failed to “obtain a timely
psychological evaluation of Sasser”—was pleaded as follows in the amended habeas
petition:
Both at trial and on direct appeal, Petitioner was represented by the same
attorney, Charles Potter. Mr. Potter was appointed to represent Sasser
in this Capital case on August 16, 1993, however the record reflects that
virtually nothing was done by way of trial preparation until February
7, 1994, less than two weeks before the beginning of pretrial
proceedings when Potter requested a psychological examination. Some
four days later, on February 11, 1994, an investigator was requested and
although this record reflects that a number of pretrial motions were filed,
it is clear that trial counsel was unprepared for a Capital case at the
time Sasser’s trial began.
R. Doc. 23, at 3-4 (emphases added). Sasser’s amended petition alleged that this
claim “was fully adjudicated in the state court.” Id. at 4.
A review of the Rule 37 petition shows that this second claim was indeed fairly
presented in state court. The petition alleged:
Counsel failed to request assistance of a psychological expert in
sufficient time for her to prepare a proper evaluation. Counsel obtained
motions, including one for expert assistance, from the Arkansas Death
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Penalty Resource Center as early as September, 1993. . . . He
nevertheless waited until February 7, 1994, to file the motion for expert
assistance. The Court granted the request on February 11, 1994,
appointing Mary Pat Carlson, who has an agreement with the Court to
provide psychological assistance to criminal defendants. . . . The
evaluation was set for February 17, 1994, with pre-trial beginning on
February 22, 1994.
Due to this time frame, Ms. Carlson was unable to conduct the in-
depth evaluation she would ordinarily have performed.
App. 1218-19 (emphases added). The Rule 37 petition cited the same alleged
shortcoming advanced in the federal petition—namely, that counsel did not request
expert assistance until February 7, 1994, and that due to the short time frame, the
defense was unprepared when trial began. Sasser’s federal claim that trial counsel
failed to obtain a timely psychological evaluation of Sasser was therefore presented
in the state postconviction court and defaulted when Sasser declined to appeal on that
ground. As such, the procedural default cannot be excused based on alleged
ineffectiveness of state postconviction counsel. Thomas v. Payne, 960 F.3d 465, 473
(8th Cir. 2020); Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012).
The third claim on remand—that trial counsel failed to “meaningfully consult
with a mental health professional”—was pleaded this way in the amended federal
habeas petition: “Trial counsel requested a psychological exam on February 7, 1994,
however after the exam was performed, counsel failed to meaningfully consult with
the examiner so as to prepare for her trial testimony.” R. Doc. 23, at 4. Again, the
amended petition asserted that this claim was fully adjudicated in state court. The
Rule 37 petition confirms that the same claim was fairly presented in state court. It
alleged: “Counsel also failed to consult meaningfully with Ms. Carlson prior to trial
and as a result, relevant mitigating evidence was inadequately presented, as
demonstrated by the fact that the jury did not find that evidence of any mental
disease/defect was presented . . . , when in fact there was.” App. 1219.
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The state postconviction court construed this claim as a challenge to counsel’s
performance at the penalty phase and rejected it: “Trial counsel is taken to task for
failing to have adequately prepared the testimony of his only expert witness during
the penalty phase, Mary Pat Carlson. This contention is simply not borne out by the
testimony at the Rule 37 hearing. Trial counsel testified that he believed that Ms.
Carlson was adequately prepared and that she never indicated that she did not have
enough time to evaluate the petitioner.”
The third claim on remand, therefore, was fairly presented to the state
postconviction court in Sasser’s Rule 37 motion, but the claim was procedurally
defaulted on appeal. Accordingly, as with the second claim, the procedural default
cannot be excused based on alleged ineffectiveness of state postconviction counsel.
Arnold, 675 F.3d at 1086-87.
The district court reached a different conclusion on the view that “the second
and third claims as characterized on remand” were different from the claims raised
in the Rule 37 petition. The court characterized the second claim on remand as one
that “trial counsel should have begun his preparations and obtained a psychological
evaluation earlier so that he would know that he needed a qualified and licensed
expert, and not Carlson, to present mental health evidence in mitigation.” The court
described the third claim on remand as one that counsel “should have had meaningful
consultation with a qualified and licensed mental health professional” other than
Carlson. Neither of these claims, the court concluded, was fairly presented in the
Rule 37 petition.
We reject this conclusion because the “claims as characterized on remand” are
not the claims that were pleaded in the amended petition and remanded by the panel
in Sasser v. Hobbs. Sasser’s effort to bring new ineffective-assistance claims on
remand constituted an unauthorized second or successive habeas petition that should
have been dismissed. See 28 U.S.C. § 2244(b)(3)(A).
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The claims considered by the district court on remand first appeared in Sasser’s
second supplemental and amended habeas petition, dated September 3, 2004. R. Doc.
48. That filing came after this court remanded the case in August 2003 for the limited
purpose of considering whether the Eighth Amendment prohibited Sasser’s execution
in light of Atkins v. Virginia. R. Doc. 37. The second amended petition raised new
claims that trial counsel was ineffective for failing to obtain an adequate social
history of Sasser or to retain “qualified experts” to evaluate Sasser completely, so that
Sasser could present additional mitigating evidence at sentencing. R. Doc. 48, at 16-
17, 22.
The district court in January 2007 concluded that these claims should have
been known when Sasser filed his first habeas petition, and the court thus dismissed
them with prejudice as abusive. R. Doc. 71, at 18. This court on appeal agreed that
the new ineffective-assistance claims were not properly before the district court after
the 2003 remand. Sasser v. Norris, 553 F.3d 1121, 1127 (8th Cir. 2009). Sasser’s
effort to revive these ineffective-assistance claims during the most recent remand
functioned as a second or successive habeas petition and an abuse of the writ.
The evidentiary hearing on remand was not a proper forum for Sasser to
develop new federal claims that were not raised in his first habeas petition. This
court’s statement that Sasser was entitled to an evidentiary hearing on remand was
limited to the question whether Sasser could show cause and prejudice under Trevino
to excuse any procedural default allegedly caused by ineffective assistance of
postconviction counsel. The panel clarified in response to a rehearing petition that
the State was free to argue on remand that Sasser fairly presented his federal claims
in the Rule 37 motion. The federal claims at issue in that comparison were only those
claims presented in Sasser’s amended habeas petition in 2001, R. Doc. 23, not new
ineffective-assistance claims that were improperly raised in the second amended
petition in 2004, R. Doc. 48, or developed in an evidentiary hearing after the remand
in 2014.
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We therefore conclude that the district court’s grant of relief based on Sasser’s
second and third claims “as characterized on remand” was in error. The second and
third claims on remand were fairly presented in Sasser’s Rule 37 motion, and then
abandoned on appeal, so alleged ineffective assistance of postconviction counsel is
not cause to excuse Sasser’s procedural default. The claims identified by the district
court on remand were not presented in Sasser’s first federal habeas petition, and they
are barred as a second or successive petition and an abuse of the writ.
III.
On Sasser’s claim asserting ineligibility for execution under the Eighth
Amendment based on intellectual disability, this court in 2014 remanded the case “so
that the district court may answer the critical factual questions in the first instance
according to the correct legal standard.” Sasser, 735 F.3d at 850. The district court
on remand detailed several factual findings and legal conclusions.
To prove that he was intellectually disabled, Sasser was required to prove
several elements by a preponderance of the evidence: (1) “Significantly subaverage
general intellectual functioning”; (2) “[a] significant deficit or impairment in adaptive
functioning”; (3) “[t]hat both of the above ‘manifest[ed] . . . no later than age
eighteen’”; and (4) “[a] deficit in adaptive behavior.” Id. at 843 (quoting Ark. Code
Ann. § 5-4-618(a)). If Sasser was intellectually disabled “at the time of committing
the crime,” id. at 846; see Ark. Code Ann. § 5-4-618(b)-(c), then his execution would
be prohibited by the Eighth Amendment. See Atkins, 536 U.S. at 321; Sasser, 735
F.3d at 845-46 & n.7.
A.
The district court first considered whether Sasser could prove significantly
subaverage intellectual functioning that manifested no later than age eighteen.
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Sasser’s intelligence quotient (IQ) scores were 83 on a 2010 test, and 79 on a 1994
test; the court adjusted the 1994 score downward to 75 to account for “norm
obsolescence.” The score ranges were 78 to 88 for the 2010 test, and 70 to 80 for the
1994 test. The court concluded that both scores fell within “the range described as
‘borderline intellectual functioning’ rather than mental retardation.”
Because IQ scores are not conclusive evidence of subaverage intellectual
functioning, Sasser, 735 F.3d at 844, the court considered additional
evidence—namely, Sasser’s scores on an aptitude achievement test, a military
admission exam, and academic standardized tests; his high school grades; and his
performance on a driver’s license exam administered shortly before Kennedy’s
murder. Weighing this evidence along with Sasser’s IQ scores, the court concluded
that only the lowest ends of the IQ ranges “had any statistical significance,” and the
other evidence indicated “intelligence that . . . was not so subaverage as to meet the
standard for mental retardation.” But the court recognized that “impairments in
adaptive functioning, rather than an IQ score, are the clearest indicators of intellectual
disability,” so proceeded to analyze the other criteria for intellectual disability.
The court next considered whether Sasser had proven a significant deficit or
impairment in adaptive functioning that manifested no later than age eighteen. The
parties disputed whether the court should apply the standard from the fourth or fifth
edition of the American Psychological Association’s Diagnostic and Statistical
Manual of Mental Disorders, known as the DSM-IV-TR and DSM-V, respectively.
The court chose to rely on the fourth edition, because the “updated medical standards
in the DSM-V” did not “have any bearing on [Sasser’s] case,” but the court also found
that “the same decision would be reached under both definitions.”
To show a significant deficit under the DSM-IV-TR, Sasser was required to
prove “significant limitations in at least two . . . skill areas.” Jackson v. Norris, 615
F.3d 959, 962 (8th Cir. 2010) (quoting DSM-IV-TR, at 41). The court considered
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evidence of Sasser’s deficits in the areas of “academic skills, work, and
social/interpersonal skills.”
On academic skills, the court considered Sasser’s enrollment in “remedial or
special courses throughout his school years,” reports on Sasser’s functioning from
school teachers and peers to expert psychologists, and Sasser’s participation in a
prison pre-release program designed to prepare him for a driver’s license
examination. Sasser achieved perfect scores on both the written and sign portions of
the driver’s license test in 1993, shortly before Kennedy’s murder. The court noted
“that ordered environments like prison may result in artificial improvements to
adaptive functioning,” and thus did not consider Sasser’s prison performance as
evidence of improved adaptive functioning. But the court did view the information
“as evidence undermining Sasser’s claimed limitations in areas of adaptive
functioning prior to incarceration.” The court found that its conclusion was bolstered
by statements from school friends “that Sasser may have suffered as much from a lack
of motivation as a lack of ability.” The court ultimately found that Sasser had not
proven a significant limitation in academic skills.
On work skills, the court considered reports on Sasser’s jobs from his early life,
his time in prison, and before and after his prior incarceration. Sasser worked in
“basic position[s]” and completed “repetitive, simple task[s]” in some jobs after high
school. But other reports indicated that Sasser was able to work independently at a
range of tasks on a farm before the age of eighteen, and that he worked successfully
“with various levels of supervision” while imprisoned. The court found that Sasser
proved neither a significant limitation in work, nor any limitation that manifested
before the age of eighteen.
The court next analyzed Sasser’s alleged deficit in the social and interpersonal
skill domain. Sasser’s expert interviewed Sasser’s teachers, coaches, and peers from
middle school and high school. They reported that Sasser “stared blankly during
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conversations,” reacted inappropriately to jokes, was “treated as a nerd or weird
student,” and had few friends. But the court also considered evidence that pointed
in the other direction, including reports that Sasser had friends in high school, “was
a good storyteller,” and had girlfriends during high school and as an adult, both
before and after his prior term of imprisonment. Based on the entirety of the
evidence, the court found that Sasser had not established a significant deficit in social
and interpersonal skills.
The court also considered whether Sasser had demonstrated a deficit in
adaptive behavior. Because this criterion “largely duplicates the second prong” of
adaptive functioning deficits, Sasser, 735 F.3d at 845, and because Sasser presented
no additional evidence, the court found that Sasser failed to prove a behavioral deficit
for the same reasons he failed to prove a functioning deficit. The court thus found
that Sasser was not intellectually disabled at the time he committed his offense of
murder.
The court then analyzed Sasser’s claim alternatively under the framework of
the DSM-V. To prove adaptive functioning deficits under the DSM-IV-TR, Sasser was
required to show “significant limitations in adaptive functioning in at least two . . .
skill areas,” including “social/interpersonal skills,” “functional academic skills,” and
“work.” DSM-IV-TR, at 41. Under the DSM-V, he was required to prove that he was
“sufficiently impaired” in “at least one domain of adaptive functioning—conceptual,
social, or practical”—so as to require “ongoing support” to “perform adequately.”
DSM-V, at 38. The district court explained that the three DSM-IV-TR “skill areas” in
which Sasser claimed impairments are now “heavily centered” in three different
DSM-V “domains”: academic skills in the conceptual domain, work skills in the
practical domain, and social/interpersonal skills in the social domain. See DSM-IV-
TR, at 42; DSM-V, at 37. Because Sasser failed to prove “any limitation in these
areas” that was sufficiently significant to require ongoing support, the court
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concluded that Sasser could not prove intellectual disability under the updated DSM-
V criteria for the same reasons he failed to do so under the DSM-IV-TR criteria.
B.
Sasser challenges the district court’s resolution of his Eighth Amendment claim
on several grounds. We review the legal standard applicable to an Atkins claim de
novo, and the factual finding whether an individual is intellectually disabled for clear
error. Sasser, 735 F.3d at 841-42.
First, Sasser argues that the court erred by applying the diagnostic framework
of the DSM-IV-TR, rather than the DSM-V. Analysis of intellectual disability “must
be ‘informed by the medical community’s diagnostic framework.’” Moore v. Texas,
137 S. Ct. 1039, 1048 (2017) (quoting Hall v. Florida, 572 U.S. 701, 721 (2014)).
To be “informed by the medical community does not demand adherence to everything
stated in the latest medical guide,” but a court may not “disregard current medical
standards.” Id. at 1049. Sasser seems to urge a rule that would require a court to
reassess an Atkins claim each time the medical profession revises its standards, but
we need not resolve that issue here. The district court in this case considered Sasser’s
claim under both the DSM-IV-TR and DSM-V criteria, and reached the same
conclusion based on each, so there was no legal error.
Sasser contends that the district court tied its analysis of his intellectual
functioning to the analysis of his adaptive deficits, and therefore relied too heavily
on “non-clinical criteria.” The court found that Sasser failed to prove significantly
subaverage intellectual functioning. The ruling noted that IQ scores are inconclusive,
and reasoned that if Sasser demonstrated a significant deficit or impairment in
adaptive functioning, then that showing would be evidence that “Sasser’s inarguably
subaverage general intelligence—as measured by IQ testing, school grades, and other
similar markers—was significantly subaverage.” R. Doc. 283, at 23 (emphasis
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added). Where “the lower end of [a defendant’s] score range falls at or below 70,”
courts must “move on to consider . . . adaptive functioning.” Moore, 137 S. Ct. at
1049. The lowest end of Sasser’s lower IQ score range was 70, so the district court
did not err by considering additional indicia of intellectual disability. This inquiry
necessarily required consideration of “non-clinical” evidence, including statements
from people who knew Sasser during his developmental years.
Sasser challenges the court’s alleged use of “lay stereotypes” as evidence of his
adaptive functioning. He points out that factors such as whether a defendant’s
“conduct showed ‘leadership,’” or whether “those who knew the person best during
the developmental stage thought of him as mentally retarded” are not dispositive,
because those factors are not grounded in prevailing medical practice and invite “lay
perceptions of intellectual disability.” Moore v. Texas, 139 S. Ct. 666, 669 (2019)
(per curiam) (internal quotations omitted).
Some evidence to which Sasser objects came from the State’s expert
psychologist, Dr. Roger Moore, who interviewed Sasser’s peers, family members, and
former employers to learn about his adaptive deficits. Dr. Moore necessarily
considered the information retrospectively to analyze Sasser’s adaptive functioning
during his adolescence. For example, Dr. Moore interviewed an employer on whose
farm Sasser had worked during high school. The employer told Dr. Moore that Sasser
was capable of independent work if he found it engaging. The employer did not
render an opinion on whether Sasser was intellectually disabled or whether his
conduct demonstrated leadership. Cf. Moore, 139 S. Ct. at 669. And Sasser’s own
expert psychologist, Dr. Jethro Toomer, also considered “firsthand accounts of
Sasser’s behavior by people who knew him before he turned eighteen years old,”
including former classmates. Sasser, 735 F.3d at 841. The district court permissibly
considered expert testimony or reports that conveyed statements from people who
knew Sasser during his developmental years.
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Sasser also objects to reliance on statements by a prison official who
supervised Sasser’s work; the official testified that Sasser worked well and had “no
problems doing light work as far as I know.” The court, however, cited only the fact
that Sasser earned credit toward his sentence, “which could only be given if he was
doing the job each position required him to do.” The court found that this evidence
indicated that Sasser’s limitations may be due more to a lack of engagement or
motivation than to a significant limitation. Evidence of Sasser’s successful work
while incarcerated was relevant to the analysis of Sasser’s claimed adaptive deficits
at the time of his crime, and there was no error in considering it.
Sasser argues that the court unduly emphasized evidence of his adaptive
strengths, and used it to “offset proven deficits.” Intellectual disability depends on
evidence of adaptive deficits, and a court should not consider “significant limitations
in adaptive skills” to be “outweighed by potential strengths in other adaptive skills.”
Jackson v. Kelley, 898 F.3d 859, 864 (8th Cir. 2018) (emphasis added).
The district court did not err in its consideration of adaptive strengths. The
court properly recognized that it could not balance evidence of Sasser’s strengths in
one skill area against evidence of his deficits in a different skill area. The court said
that it is an “open question whether strengths in one area of adaptive functioning can
be weighed against weaknesses in the same area when analyzing whether a person
has limitations in that area.” R. Doc. 283, at 26 (emphasis added). Moore is not to
the contrary; the Court there assumed for the sake of analysis that “clinicians would
consider adaptive strengths alongside adaptive weaknesses within the same adaptive-
skill domain.” 137 S. Ct. at 1050 n.8.
Citing Moore, Sasser argues that a court considering intellectual disability must
focus solely on evidence of adaptive deficits. Moore, however, observed only that
there was no “clinical authority permitting the arbitrary offsetting of deficits against
unconnected strengths.” Id. The district court did not balance unconnected strengths
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against weaknesses, but “weigh[ed] evidence of strengths against evidence of
limitations in order to see whether Sasser . . . met his burden to show” any limitation
in a single skill domain. R. Doc. 283, at 28 n.10. For example, the court addressed
conflicting evidence of Sasser’s social and interpersonal skills: one classmate
testified that Sasser had few friends, but other classmates testified that he had friends.
The district court did not weigh evidence across skill domains, but properly
considered all available evidence of Sasser’s adaptive functioning in order to make
the necessary findings of fact in each relevant domain.
Sasser challenges the district court’s consideration of evidence of his
functioning in prison to support the conclusion that he could not demonstrate
adaptive deficits. Medical experts “caution against reliance on adaptive strengths
developed ‘in a controlled setting,’ as a prison surely is,” and seek to obtain
corroborating evidence of functioning in uncontrolled settings. Moore, 137 S. Ct. at
1050 (quoting DSM-V, at 38). The district court, however, was “mindful that ordered
environments like prison may result in artificial improvements to adaptive
functioning,” and thus did not rely on Sasser’s behavior in prison as evidence of
improved adaptive functioning. Rather, the court found that evidence of Sasser’s
performance in prison was consistent with other evidence that he “suffered as much
from a lack of motivation as a lack of ability.” On academics, the court found that
Sasser’s performance on the driver’s license examination while incarcerated
supported a statement from a school friend that Sasser was “more capable than his
grades reflected.” On work, the court found that Sasser’s successful employment in
multiple jobs while incarcerated corroborated testimony that Sasser was capable of
independent farm work before he turned eighteen. The court properly recognized the
risk that prison behavior might reflect artificial improvements in functioning, and
adequately limited its consideration of prison evidence.
Next, Sasser argues the court inappropriately required him to prove the
existence of adaptive functioning deficits “beyond the developmental period” ending
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at age eighteen. The court explained that Sasser’s evidence of academic skill
limitations was “primarily limited to his school career.” Because that evidence was
“called into question by reports and evidence that Sasser’s performance was due at
least in part to a lack of motivation,” the court found that Sasser had not “met his
burden to demonstrate . . . that he had a significant limitation in academic skills at the
time he committed the crime.”
Sasser argues that the relevant time for assessing his academic functioning
skills was before the age of eighteen, because a significant deficit or impairment must
manifest during the developmental period. See Ark. Code Ann. § 5-4-618(a)(1)(A).
But the DSM-IV-TR criteria require both an “onset” that “is before age 18 years,” and
a showing of “[c]oncurrent deficits or impairments in present adaptive functioning”
in at least two skill areas. DSM-IV-TR, at 49 (emphasis added). Likewise, the DSM-V
criteria require both an “onset during the developmental period,” that is, “during
childhood or adolescence,” and a showing that “at least one domain of adaptive
functioning . . . is sufficiently impaired that ongoing support is needed . . . to perform
adequately.” DSM-V, at 38 (emphasis added). In any event, the court found no
significant deficits at either point in time, and there was no error in the time period
considered.
Sasser contends that the court created “a composite portrait” of his adaptive
functioning by piecing together evidence from different points in his life. The court
considered evidence of Sasser’s functioning during the developmental period and
near the time of his crime, both of which were “relevant points in time.” Sasser, 735
F.3d at 849 n.10. Some evidence from later in Sasser’s life confirmed or supported
evidence from the developmental period, but it cannot be said that the court on
remand mistakenly “mixed and matched evidence of Sasser’s capacities from
different points in his life, creating a composite portrait of Sasser” at an artificial
peak. Id. at 849. For example, the court considered evidence that Sasser was able to
work independently at manual farm tasks as an adolescent, and found this evidence
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consistent with Sasser’s success while working as an electrician and furniture
manufacturer in prison. On social skills, the court cited reports that Sasser had
friends in school and a high school girlfriend, but found that even evidence
suggesting that he was not liked by peers and did not have a girlfriend was not good
evidence of a substantial limitation in social skills during the developmental period.
The court properly analyzed whether Sasser demonstrated intellectual disability at a
relevant point in time and found that he failed to do so.
Finally, Sasser argues that the district court required him to “rule out other
potential contributing causes” of his adaptive deficits by noting that he “may have
suffered as much from a lack of motivation as a lack of ability.” “[A] defendant is not
required to rule out other contributing causes of his adaptive deficits in order to meet
the standard for intellectual disability.” Jackson, 898 F.3d at 868 (internal quotation
omitted). Stated differently, if an individual has demonstrated significant intellectual
impairment and significant adaptive deficits, a court may not also require him to
prove that his intellectual disability is the cause of those deficits. See id. But the
district court did not require such a showing here, because it found that Sasser failed
to prove the existence of any significant functioning deficits in the first place.
* * *
For these reasons, we reverse the grant of relief with respect to Sasser’s
ineffective-assistance claims, affirm the denial of relief on his Atkins claim, and
remand with directions to dismiss the petition.
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