Joseph Clifton Smith v. Commissioner, Alabama Department of Corrections

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14519
____________________
JOSEPH CLIFTON SMITH,
Petitioner-Appellee,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
Respondent-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:05-cv-00474-CG-M
____________________
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2 Opinion of the Court 21-14519
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
This appeal concerns whether the district court clearly erred
in finding that Joseph Clifton Smith is intellectually disabled and, as
a result, that his death sentence violates the Eighth Amendment.
We hold that the district court did not clearly err. We therefore
affirm the district court’s judgment vacating Smith’s sentence.
I.
A. A jury found petitioner Joseph Clifton Smith guilty of capital
murder.
Durk Van Dam was brutally murdered on November 23,
1997. Smith v. Campbell (“Smith III”), 620 F. App’x 734, 736 (11th Cir.
2015). Police found Van Dam’s body in an isolated area near his
pick-up truck in Mobile County. Id. On the same day that police
discovered Van Dam’s body, they interviewed Petitioner Joseph
Clifton Smith. Id.Although Smith confessed to Van Dam’s murder, he offered
two conflicting versions of the crime. Id. At first, he said that he
watched Van Dam’s murder. Id. Then, he said that he participated,
but that he didn’t intend to kill Van Dam. Id.A grand jury in Mobile County eventually indicted Smith for
capital murder. Id. The case went to trial, and the jury found Smith
guilty. Id. at 736–37.
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B. During the sentencing phase of Smith’s trial, the parties pre-
sented evidence of Smith’s intellectual abilities.
During the sentencing phase, the parties presented evidence
concerning aggravating and mitigating factors. One mitigating fac-
tor was whether Smith committed the crime while he “was under
the influence of extreme mental or emotional disturbance.” Ala.
Code § 13A-5-51(2). Both sides presented evidence of Smith’s child-
hood, family background, and intellectual abilities to contest
whether that mitigating factor applied to Smith.
Smith’s mother and sister testified that his father was an abu-
sive alcoholic. Smith III, 620 F. App’x at 738–39. Smith’s father beat
the children with belts and water hoses. Id. Smith’s mother and
father divorced when Smith was nine or ten years old. Id. at 738.
Soon after his parents divorced, Smith’s mother remarried
to a man named Hollis Luker. Like Smith’s father, Luker beat the
children and was drunk “just about every day.” Id. at 739. Smith’s
neighbor testified that his mother would bring Smith and his sib-
lings to the neighbor’s home to escape Luker’s beatings. Id.
In the meantime, Smith struggled in school. He had been
described as a “slow learner” since he was in the first grade. Smith
was eight years old when he reached third grade. At that point, he
still needed help to function at a first-grade level, prompting his
teacher to label him an underachiever and refer him for an “intel-
lectual evaluation.”
During that evaluation, Smith obtained a full-scale IQ score
of 75. That score meant that Smith was “functioning in the
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4 Opinion of the Court 21-14519
Borderline range of measured intelligence.” Smith’s school then
asked his mother for permission to do more testing.
At the beginning of Smith’s fourth-grade year, which coin-
cided with his parents’ divorce, his mother agreed to have the
school perform additional testing. After undergoing more testing,
Smith was placed in a learning-disability class.
After that placement, Smith developed an unpredictable
temper and often fought with classmates. His behavior became so
troublesome that his school placed him in an “emotionally con-
flicted classroom.” These types of classrooms hosted special-edu-
cation classes for students who could not adjust to a regular class-
room, according to Dr. James Chudy, a clinical psychologist. Dr.
Chudy met with Smith three times after Van Dam’s murder, ad-
ministered several tests, analyzed records from Smith’s past, au-
thored a report about his findings, and testified during Smith’s sen-
tencing phase. Id. at 738–39.
Smith’s academic deficits persisted through junior high
school. When he entered sixth grade, his school reevaluated his
intellectual abilities. This time, he obtained a full-scale IQ score of
74, again placing him “in the Borderline range of measured intelli-
gence.” By grade seven, the school determined that Smith was el-
igible for the “Educable [Intellectually Disabled]” program. He
went on to fail the seventh and eighth grades before dropping out
of school for good. Id. at 740.
Smith spent much of the next fifteen years in prison. When
he was nineteen, Smith went to prison for burglary and receiving
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stolen property. He was released from prison after six years. But
he returned a year later when he violated the conditions of his pa-
role. There he remained until his release in November 1997, just
two days before Van Dam’s murder.
Dr. Chudy reevaluated Smith just after Van Dam’s murder.
When Dr. Chudy tested Smith’s IQ, Smith obtained a full-scale
score of 72. During the sentencing phase, Dr. Chudy testified that
Smith’s true IQ score could be as high as 75 or as low as 69 after
accounting for the standard error of measurement inherent in IQ
tests. “69 is considered clearly [intellectually disabled],” 1 he ex-
plained. Either way, Smith’s raw score of 72 suggests that he func-
tions at a lower level than 97% of the general population. Dr.
Chudy also described Smith as “barely literate in reading.”
The sentencing phase eventually came to an end, and the Al-
abama trial court found that the aggravating circumstances out-
weighed the mitigating ones. The court thus sentenced Smith to
death.
C. Smith petitioned for habeas relief and argued, among other
things, that his sentence violates the Eighth and Fourteenth
Amendments because he is intellectually disabled.
After exhausting his direct appeals, Smith sought habeas re-
lief in state court. He argued, among other things, that his
1 We alter quotations that use outdated language to describe intellectual disa-
bilities. E.g., Brumfield v. Cain, 576 U.S. 305, 308 n.1 (2015); Kilgore v. Sec’y, Fla.
Dep’t of Corr., 805 F.3d 1301, 1303 n.1 (11th Cir. 2015).
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sentence violated the Eighth and Fourteenth Amendments because
he is intellectually disabled. See Atkins v. Virginia, 536 U.S. 304(2002).
Consistent with the medical community’s general consen-
sus, Alabama law defines intellectual disability as including three
criteria: (1) significantly subaverage intellectual functioning (i.e.,
an IQ of 70 or below); (2) significant or substantial deficits in adap-
tive behavior; and (3) the onset of those qualities during the devel-
opmental period (i.e., before the age of 18). Ex parte Perkins, 851
So. 2d 453, 456 (Ala. 2002).
Applying that definition, the Alabama Court of Criminal
Appeals ultimately rejected Smith’s Atkins claim, finding that he
could not meet the intellectual-disability criteria based on the evi-
dence adduced during his trial and sentencing phase. See Smith v.
State (“Smith I”), 71 So. 3d 12, 19–21 (Ala. Crim. App. 2008) (“[T]he
record in Smith’s direct appeal supports the circuit court’s conclu-
sion that Smith does not meet the broadest definition of [intellec-
tually disabled] adopted by the Alabama Supreme Court in Ex parte
Perkins, 851 So. 2d 453 (Ala. 2002).”), cert denied, No. 1080589 (Ala.
2010) (mem.).
Smith then invoked 28 U.S.C. § 2254 and pressed his Atkins
claim in federal court. The district court rejected Smith’s Atkins
claim without holding an evidentiary hearing, concluding that the
Alabama Court of Criminal Appeals did not unreasonably apply
federal law. Smith v. Thomas (“Smith II”), No. 05-0474-CG-M, 2013
WL 5446032, at *29 (S.D. Ala. 2013). In doing so, the district court
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relied on Smith’s failure “to prove that his intellectual functioning
was or is significantly subaverage,” id. at *29 n.1, which is the first
prong for Alabama’s intellectual-disability definition and requires
an IQ of 70 or below. Ex parte Perkins, 851 So. 2d at 456. The district
court therefore treated “an IQ of 70 as the ceiling for significantly
subaverage intellectual functioning” and held that Smith’s full-scale
IQ scores of 75, 74, and 72 were “fatal to Smith’s Atkins claim.”
Smith II, 2013 WL 5446032, at *28–29.
Smith then appealed, and we reversed. Smith III, 620 F.
App’x at 749–52. We first explained that Alabama law does not em-
ploy “a strict IQ cut-off of 70” to define significantly subaverage in-
tellectual functioning. Id. at 749. And that was key because Dr.
Chudy’s testimony during the sentencing phase “showed that
Smith’s IQ could be as low as 69 given a standard error of measure-
ment of plus-or-minus three points.” Id. at 749–50 (citation omit-
ted). We also noted that “other trial evidence” suggested that
Smith had “deficits in intellectual functioning,” id. at 750. Based on
that evidence and “the fact that Alabama does not employ a strict
IQ cut-off score of 70,” we held that the Alabama Court of Crimi-
nal Appeals “determination that Smith conclusively did not possess
significantly subaverage intellectual functioning was an unreasona-
ble determination of the facts.” Id. (citation omitted).
We then turned to the Alabama Court of Criminal Appeals’s
finding “that Smith did not suffer from significant or substantial
deficits in adaptive behavior.” Id. This, too, was an unreasonable
determination of the facts, we said, because the record contained
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8 Opinion of the Court 21-14519
evidence “that would support a fact finding that Smith had signifi-
cant limitations in at least” two areas of adaptive functioning: “(1)
social/interpersonal skills and self-direction.” Id. We therefore
said that “the record affirmatively contradicts” the Alabama Crim-
inal court of Appeals’s finding that Smith did not suffer from sig-
nificant defects in adaptive behavior. Id. at 750–51.
For those reasons, we remanded Smith’s Atkins claim to the
district court. Id. at 751. We instructed the district court “to allow
Smith . . . to present an expert witness on his behalf.” Id. at 750–
51. And we also instructed the district court to consider “Smith’s
requests for discovery and an evidentiary hearing.” Id. at 752.
D. The district court held an evidentiary hearing to determine
whether Smith is intellectually disabled.
On remand, the district court held an evidentiary hearing to
assess whether Smith is intellectually disabled. The district court
heard lay and expert testimony and received reports from experts
who evaluated Smith and analyzed his records.
i. Evidence of Smith’s Intellectual Functioning
Smith’s first witness was Dr. Daniel Reschly, a certified
school psychologist with fifty years of experience in assessing intel-
lectual disability. Since 1998, Dr. Reschly has taught at (and some-
times chaired) the top-ranked Department of Special Education at
Peabody College of Education and Human Development. His
teaching and research focus on identifying and treating “persons
with mild intellectual disability.”
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Dr. Reschly testified that people with mild intellectual disa-
bility exhibit “borderline and overall low intellectual performance.”
“It’s important” to treat a person’s IQ score as indicating a range of
scores, he said, because the medical community can only approxi-
mate a person’s true IQ. This concept reflects the standard error
of measurement inherent in IQ tests. So “a range of about 65 to
75” is the “level for someone’s performance on an IQ test consistent
with mild intellectual disability,” Dr. Reschly explained.
Smith also called Dr. John Fabian, who holds a doctorate in
clinical psychology and works as a forensic psychologist. When Dr.
Fabian assessed Smith’s IQ, Smith obtained a full-scale IQ score of
78. Although Dr. Fabian conceded that “a 78 is definitively above”
the “70 to 75 IQ range,” he testified that Smith’s 78 does not elimi-
nate the possibility that Smith is intellectually disabled. To support
that answer, he cited Smith’s other IQ scores, all of which were
lower than 75. Those scores, he said, “trump an overall score on
one administration.”
For its part, the state called Dr. Glen King, a clinical and fo-
rensic psychologist who also practices law. When Dr. King assessed
Smith’s IQ, Smith obtained a full-scale IQ score of 74. As a result,
Smith has taken five IQ tests during his lifetime. And he has ob-
tained full-scale IQ scores of 75, 74, 72, 78, and 74. Dr. King there-
fore testified that Smith displayed “a very consistent pattern of in-
tellectual quotient scores” on all five tests. In other words, he tes-
tified that the standard error of measurement deserves less weight
here because Smith’s scores all “fall in the borderline range of
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10 Opinion of the Court 21-14519
intellectual functioning.” “I think that the scores speak for them-
selves,” and “they are what they are,” he said.
ii. Evidence of Smith’s Adaptive Behavior
While intellectual functioning aims “to assess the individ-
ual’s best level of functioning,” Dr. Reschly testified that adaptive
behavior looks at the person’s “typical performance” and asks,
“[W]hat do they do on a day-to-day basis?” A person has significant
adaptive behavior limitations if he has “significant deficits in one of
[three] areas: conceptual, social, and practical.” The conceptual do-
main includes literacy skills, language, and financial literacy. “The
social domain of adaptive behavior refers to various social compe-
tencies” that a person “use[s] on an everyday basis.” “The practical
domain includes a wide diverse set of behaviors that” involve “sim-
ple self-care” including “eating, toileting, [and] dressing oneself.” A
person who shows “significant deficits in one of those areas” meets
the medical community’s standard for having significant deficits in
adaptive behavior.
Dr. King testified that the ABAS-3 test is the “only” test that
is “appropriate” for assessing a person’s adaptive functioning. The
test requires the subject to read a series of statements describing a
behavior and rate, on a scale of one to three, how often they per-
form that behavior without a reminder and without help.
Dr. King administered the ABAS-3 test when he met with
Smith before the evidentiary hearing. At the evidentiary hearing,
Dr. King testified that in his “experience with capital litigation
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cases,” Smith “generated the highest scores” on the ABAS-3 that
Dr. King has seen.
For his part, Dr. Fabian used a different test—called the In-
dependent Living Scales test—to assess Smith’s adaptive behavior.
The results suggested to Dr. Fabian that Smith had “deficits in every
area.”
Dr. King sought to undermine those results by testifying that
the Independent Living Scales test “is not a recommended device
for assessing adaptive behavior.” But in other cases where he pro-
vided expert testimony, Dr. King testified that the Independent Liv-
ing Scales test “measures adaptive functioning in a number of dif-
ferent domains,” Tarver v. State, 940 So. 2d 312, 324 (Ala. Ct. Crim.
App. 2004) (Cobb, J., concurring in part and dissenting in part).
Dr. Reschly discussed Smith’s “failure to acquire literacy
skills at an age-appropriate level, which relates to the conceptual
demand of adaptive behavior.” Dr. Fabian agreed. Smith’s school
records show signs “consistent with significant limitations in at
least [the] conceptual domain,” he said.
Dr. Reschly and Dr. Fabian also testified that Smith exhibited
deficits in the social domain of adaptive behavior. Relying on
Smith’s school records, Dr. Reschly testified that Smith was poor at
following rules, obeying instructions, and forming relations with
his peers. Dr. Fabian agreed.
Dr. Fabian assessed Smith’s communication skills using the
Expressive One-Word Picture Vocabulary and the Receptive One-
Word Picture Vocabulary tests. The Expressive test assessed
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Smith’s ability to express through language; the Receptive test as-
sessed his receptiveness to language. Both tests relate “to func-
tional academics or conceptual areas of adaptive functioning and
even academic achievement,” said Dr. Fabian. Smith scored in the
first percentile on the expressive test and in the third percentile on
the receptive test. The age equivalents for those scores are thirteen
and fifteen, respectively. Those scores, according to Dr. Fabian,
“are consistent with someone who is intellectually disabled.”
iii. Evidence of Smith’s Developmental Period
As Dr. Reschly explained, the medical community defines in-
tellectual disability to include not only deficits in intellectual and
adaptive functioning, but also the onset of those qualities during
the developmental period. Dr. Reschly said that Smith satisfies this
prong of the intellectual-disability definition because Smith was
placed in an “Educable [Intellectually Disabled]” program while he
was in school, the criteria for which is “largely parallel to the crite-
ria used to identify mild intellectual disability today.” Dr. Reschly
also testified that Smith’s school records reflect that Smith exhib-
ited symptoms “consistent” with someone who has “adaptive be-
havioral deficits and the intellectual functioning deficits.”
Dr. Fabian also concluded that Smith exhibited behavior
“consistent with mild intellectual disability” during the develop-
mental period. Dr. Fabian reached that conclusion after reviewing
Smith’s school records and Dr. Chudy’s report.
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E. After the evidentiary hearing, the district court found that
Smith is intellectually disabled and therefore granted his ha-
beas petition.
After the evidentiary hearing, the district court issued an or-
der and found that Smith is intellectually disabled. Smith v. Dunn
(“Smith IV”), No. 05-00474-CG, 2021 WL 3666808, at *1 (S.D. Ala.
Aug. 17, 2021). Under Alabama law, the court explained, Smith had
the burden of establishing (1) that he has significantly subaverage
intellectual functioning (i.e., an IQ of 70 or below); (2) that he has
significant or substantial deficits in adaptive behavior; and (3) that
those qualities manifested during the developmental period (i.e.,
before he turned 18). Id. at *2 (citation omitted).
Starting with the first prong, the district court explained that
when an offender’s IQ score is close to, but higher than, 70, he
“must be allowed to present additional evidence of intellectual dis-
ability, including testimony of adaptive deficits.” Id. (quoting Smith
v. Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330, 1337 (11th Cir. 2019)).
The court then noted that Smith had “scores as low as 72, which
according to testimony could mean his IQ is actually as low as 69 if
you take into account the standard error of measurement.” Id. At
the same time, the court recognized that “all of Smith’s IQ scores”
are higher than 70. Id. at *3. The court then acknowledged Dr.
King’s testimony that the consistency with which Smith scored
above 70 makes it more likely that his true IQ is higher than 70. Id.
But the court did not find Dr. King’s testimony “strong enough” to
throw out the lowest score “as an outlier” or to disregard the stand-
ard error of measurement. Id. The court therefore determined
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that it needed to consider additional evidence, including testimony
about Smith’s adaptive deficits. Id.
Then the court turned to Smith’s adaptive behavior. Id. at
*4. Invoking our decision in Smith III, the court explained that evi-
dence from Smith’s sentencing phase “support[ed] a fact finding
that Smith had significant limitations in at least two” areas of adap-
tive behavior: “(1) social/interpersonal skills and (2) self-direction.”
Id. at *5 (quoting Smith III, 620 F. App’x at 750). Besides evidence,
the court noted that evidence from the evidentiary hearing, like the
results from Dr. Fabian’s Independent Living Scales Test, “indi-
cated that Smith had deficits in most areas” of adaptive function-
ing. Id. at *10.
The court acknowledged Dr. King’s criticism of the Inde-
pendent Living Scales test. Id. But the court “question[ed] the ve-
racity of Dr. King’s criticism” because he used the Independent Liv-
ing Scales test in another case and testified that the test “measures
adaptive functioning in a number of different domains.” Id. (quot-
ing Tarver, 940 So. 2d at 324.)
In the end, the court explained that “whether Smith has sig-
nificant or substantial deficits in adaptive behavior largely comes
down to which expert is believed.” Id. at *11. The court then found
that “Smith has significant deficits in social/interpersonal skills,
self-direction, independent home living, and functional academ-
ics.” Id. at *11. For that reason, the court found that “Smith has
shown by a preponderance of the evidence that he has significantly
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subaverage intellectual functioning and significant deficits in adap-
tive behavior.” Id.
The question thus became whether Smith’s deficits in intel-
lectual and adaptive functioning manifested during the develop-
mental period. The court noted that Smith “enrolled in [Educable
Intellectually Disabled] classes in the 7th and 8th grades” and that,
according to Dr. Reschly, the criteria for such classes “was largely
parallel to the criteria used to identify mild intellectual disability
today.” Id. at *11–12 (internal quotations omitted). The court also
cited testimony from Dr. Fabian, who similarly concluded that
Smith exhibited behavior “consistent with intellectual disability”
during the developmental period. Id. at *12. The court therefore
found “that Smith’s intellectual and adaptive functioning issues
clearly arose before he was 18 years of age.” Id.
For those reasons, the court granted Smith’s habeas petition
and vacated his death sentence, explaining that “Smith is intellec-
tually disabled and cannot constitutionally be executed.” Id. at *13.
II.
Whether a capital offender suffers from an intellectual disa-
bility is a question of fact. Ledford v. Warden, Ga. Diagnostic & Clas-
sification Prison, 818 F.3d 600, 632 (11th Cir. 2016) (quoting Fults v.
GDCP Warden, 764 F.3d 1311, 1319 (11th Cir. 2014)). We thus review
for clear error a district court’s finding that an individual is intellec-
tually disabled. Id. (citing Conner v. GDCP Warden, 784 F.3d 752, 761
(11th Cir. 2015)). “Clear error is a highly deferential standard of
review.” Holladay v. Allen, 555 F.3d 1346, 1354 (11th Cir. 2009)
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16 Opinion of the Court 21-14519
(citation omitted). “Under that standard, we may not reverse just
because we ‘would have decided the [matter] differently.’ A finding
that is ‘plausible’ in light of the full record—even if another is
equally or more so—must govern.” Cooper v. Harris, 581 U.S. 285,
293 (2017) (citations omitted).
III.
The question presented is whether the district court clearly
erred by finding that Smith is intellectually disabled and, as a result,
that his sentence violates the Eighth and Fourteenth Amendments.
The Eighth and Fourteenth Amendments prohibit states from ex-
ecuting intellectually disabled offenders. Atkins, 536 U.S. at 321.
That prohibition stems from “a national consensus” against the
practice of executing such offenders. Id. at 316. “To the extent
there is serious disagreement about the execution of [intellectually
disabled] offenders, it is in determining which offenders are in fact
[disabled].” Id. at 317.
To resolve that disagreement, the Supreme Court has
granted the states some discretion to develop standards for as-
sessing whether an offender is intellectually disabled. Id. (quoting
Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)). But states do not
wield “unfettered discretion” to determine “how intellectual disa-
bility should be measured and assessed.” Hall v. Florida, 572 U.S.
701, 719 (2014).
Instead, a state’s assessment of whether an offender is intel-
lectually disabled “must be ‘informed by the medical community’s
diagnostic framework.’” Moore v. Texas, 581 U.S. 1, 13 (2017)
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21-14519 Opinion of the Court 17
(quoting Hall, 581 U.S. at 721). Courts identify that framework us-
ing “the most recent (and still current) versions of the leading diag-
nostic manuals—the DSM-5 and the AAIDD-11.” Id. (citing Hall,
572 U.S. at 704–05, 713); see also Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders (5th ed. 2013) (hereinafter
DSM-5); Am. Ass’n on Intell. & Dev. Disabilities, Intellectual Disabil-
ity: Definition, Classification, and Systems of Support (12th ed. 2021)
(hereinafter AAIDD-12).
We start, then, with Alabama’s standard for determining in-
tellectual disability. Under Alabama law, Smith “has the burden of
proving by a preponderance of the evidence that he . . . is [intellec-
tually disabled] and thus ineligible for the death penalty.” Smith v.
State, 213 So. 3d 239, 252 (Ala. 2007). Carrying that burden requires
Smith “to show significant subaverage intellectual functioning at
the time the crime was committed, to show significant deficits in
adaptive behavior at the time the crime was committed, and to
show that these problems manifested themselves before the de-
fendant reached the age of 18.” Id. at 249.
IV.
Whether Smith has significantly subaverage intellectual
functioning turns on whether he has an IQ equal to or less than 70.
Ex parte Perkins, 851 So. 2d at 456. But the medical community rec-
ognizes “that the IQ test is imprecise.” Hall, 572 U.S. at 723. “Each
IQ test score has a ‘standard error of measurement.’” Id. at 713(citation omitted). “The standard error of measurement accounts
for a margin of error both below and above the IQ test-taker’s
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18 Opinion of the Court 21-14519
score.” Ledford, 818 F.3d at 640. The standard error of measure-
ment thus “allows clinicians to calculate a range within which one
may say an individual’s true IQ score lies.” Hall, 572 U.S. at 713.
For that reason, the intellectual functioning inquiry must
recognize “that an IQ test score represents a range rather than a
fixed number.” Id. at 723. So when the lower end of that range is
equal to or less than 70, an offender “must be able to present addi-
tional evidence of intellectual disability, including testimony re-
garding adaptive deficits.” Id. at 723; see also Moore, 581 U.S. at 14
(“Because the lower end of Moore’s score range falls at or below
70, the [Texas Court of Criminal Appeals] had to move on to con-
sider Moore’s adaptive functioning.”).
A. The district court did not err by turning to evidence of Smith’s
adaptive functioning after finding that his IQ score could be as
low as 69.
While he was in school, Smith took two IQ tests. He ob-
tained a full-scale IQ score of 75 on the first test. On the second
test, he obtained a full-scale score of 74. Dr. Reschly testified that
those scores are consistent with mild intellectual disability, “partic-
ularly if you consider the standard error of measurement.”
Dr. Chudy assessed Smith’s IQ for a third time after Van
Dam’s murder. Smith obtained a full-scale score of 72 on that test.
Based on that test, Dr. Chudy testified that Smith’s true IQ score
could be as high as 75 or as low as 69 after accounting for the test’s
standard error of measurement. He added that “69 is considered
clearly [intellectually disabled].” And when he was asked whether
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that finding was consistent with the results on Smith’s prior IQ
tests, Dr. Chudy said, “Yes, all the scores are very much the same.”
Then, before the evidentiary hearing, Smith obtained a full-
scale IQ score of 74 on the test that Dr. King administered. Because
that score falls within the 70 to 75 range, Dr. Fabian testified that
the results of Dr. King’s IQ test are consistent with mild intellectual
disability.
Dr. Fabian also tested Smith’s IQ ahead of the evidentiary
hearing. Smith obtained a full-scale score of 78 on that test. Alt-
hough Dr. Fabian conceded that “a 78 is definitively above” the “70
to 75 IQ range,” he testified that Smith’s 78 does not eliminate the
possibility that Smith is intellectually disabled. Instead, he cited
Smith’s other scores, all of which were lower than 75, and said that
those scores “trump an overall score on one administration.”
Dr. King contradicted Dr. Fabian. According to Dr. King,
Smith displayed “a very consistent pattern of intellectual quotient
scores” on all five tests. Dr. King therefore testified that the stand-
ard error of measurement deserves less weight because Smith’s
scores all “fall in the borderline range of intellectual functioning.”
“I think that the scores speak for themselves,” he said, “they are
what they are.”
In the end, the district court said that Dr. King’s testimony
was not “strong enough” for the court to find “that the lowest score
can be thrown out as an outlier or that the standard error for the
tests can be disregarded.” Smith IV, 2021 WL 3666808, at *3. As
the district court twice noted, Smith had an IQ score of 72,
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20 Opinion of the Court 21-14519
meaning that his IQ could be “as low as 69 if you take into account
the standard error of measurement.” Id. at *2; id. at *3. The court
therefore “conclude[d] that additional evidence must be consid-
ered, including testimony on [Smith’s] adaptive deficits.” Id. at *3.
In reaching that conclusion, the district court merely applied
the Supreme Court’s decisions in Hall and Moore, which hold that a
district court must move on to consider an offender’s adaptive func-
tioning when the lower end of his lowest IQ score is equal to or less
than 70.
We start with Hall, which arose after the Florida Supreme
Court denied Freddie Lee Hall’s Atkins claim that he could not be
put to death because he was intellectually disabled. Hall “had re-
ceived nine IQ evaluations in 40 years, with scores ranging from 60
to 80,” Hall, 572 U.S. at 707. Because “the sentencing court ex-
cluded the two scores below 70 for evidentiary reasons,” that left
only seven “scores between 71 and 80.” Id. And because none of
those scores were equal to or lower than 70, the Florida Supreme
Court rejected Hall’s Atkins claim and affirmed his death sentence.
Id. (citation omitted).
The Supreme Court reversed. It said that when an offender’s
“IQ test score falls within the test’s acknowledged and inherent
margin of error, the [offender] must be able to present additional
evidence of intellectual disability, including testimony regarding
adaptive deficits.” Id. at 723. Because Hall had obtained an IQ score
as low as 71, the Court held that “the law require[d] that he have an
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21-14519 Opinion of the Court 21
opportunity to present evidence of his intellectual disability, includ-
ing deficits in adaptive functioning over his lifetime.” Id. at 724
Now for Moore, which arose after the Texas Court of Crimi-
nal Appeals denied Bobby Moore’s Atkins claim. Moore, 581 U.S. at
5. Although Moore had obtained IQ scores of 74 and 78, 2 the Texas
Court of Criminal Appeals “discounted the lower end of the stand-
ard-error range associated with those scores” and concluded that
Moore functioned above the intellectually disabled range. Id. at 10
(citation omitted).
Again, the Supreme Court reversed, this time explaining that
“Moore’s score of 74, adjusted for the standard error of measure-
ment, yields a range of 69 to 79,” id. at 14. “Because the lower end
of Moore’s score range falls at or below 70,” the Supreme Court
said that the Texas Court of Criminal Appeals “had to move on to
consider Moore’s adaptive functioning.” Id.
In sum, then, both Hall and Moore hold that when an of-
fender’s lowest IQ score, adjusted for the test’s standard error of
measurement, is equal to or less than 70, a court must move on and
consider evidence of the offender’s adaptive deficits. See Hall, 572
U.S. at 707, 724 (holding that “the law require[d]” that Hall have an
“opportunity to present evidence” concerning his “adaptive func-
tioning” when his lowest score was a 71, even though he also
2 Although the habeas court credited seven of Moore’s IQ scores, the Texas
Court of Criminal Appeals rejected five of those scores as unreliable and “lim-
ited its appraisal to Moore’s scores” of 78 and 74. Id. at 8, 10.
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22 Opinion of the Court 21-14519
obtained six other IQ scores, including an 80); Moore, 581 U.S. at 14
(holding that the Texas courts “had to move on to consider Moore’s
adaptive functioning” when his lowest score, “adjusted for the
standard error of measurement, yield[ed] a range of 69 to 79”); see
also Jackson v. Payne, 9 F.4th 646, 654 (8th Cir. 2021) (disregarding a
habeas petitioner’s IQ score of 81 and holding that “the district
court ‘had to move on to consider [the petitioner’s] adaptive func-
tioning’” when his lowest score’s score range was less than 70
(quoting Moore, 581 U.S. at 14)).
And that is exactly what the district court did here. It first
noted that Smith “had IQ test scores as low as 72,” suggesting that
“his IQ is actually as low as 69 if you take into account the standard
error of measurement.” Smith IV, 2021 WL 3666808, at *2. The
court then court declined to treat that score as an outlier. Id. at *3.
And as a result, the court “conclude[d] that additional evidence
must be considered, including testimony” concerning Smith’s
“adaptive deficits.” Id.
B. Alabama’s arguments to the contrary are unpersuasive.
Alabama argues that the district court erred in three ways.
We’ll start with Alabama’s argument that the district court clearly
erred when it found that Smith suffers from significantly subaver-
age intellectual functioning. That finding was clear error, Alabama
says, because all Smith’s IQ scores “place him in the borderline
range of intelligence.” Given that consistency, Alabama contends
that the standard error of measurement warrants less weight.
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21-14519 Opinion of the Court 23
This argument ignores Hall and Moore. Just as Smith scored
between 72 and 78 on five IQ tests, Freddie Lee Hall scored be-
tween 71 and 80 on seven IQ tests. Hall, 572 U.S. at 707. 3 Relying
on the lowest of those scores, the Supreme Court mandated that
Hall “have the opportunity to present evidence of his intellectual
disability, including deficits in adaptive functioning over his life-
time.” Id. at 724. The Supreme Court reached this conclusion,
even though Hall’s highest score was an 80—two points more than
Smith’s highest score here. Heeding Hall’s command, the district
court relied on Smith’s lowest score and turned to “additional evi-
dence” including testimony concerning Smith’s adaptive deficits.
Smith IV, 2021 WL 3666808, at *3.
Alabama contends that we have read Hall in a way that per-
mits the district court to ignore the lower end of an offender’s
standard-error range. Alabama is not wrong. In Ledford, 4 we sug-
gested that Hall’s “consideration of the standard error of measure-
ment ‘is not a one-way ratchet.’” Ledford, 818 F.3d at 641 (quoting
3 In fact, Hall had nine IQ scores between 60 and 80, “but the sentencing court
excluded the two scores below 70 for evidentiary reasons,” id.4 Although Alabama also relies on our decision in Jenkins v. Commissioner, Ala-
bama Department of Corrections, 963 F.3d 1248 (11th Cir. 2020), we declined to
apply Hall retroactively in that case. See id. at 1275 (declining to apply Hall
because “our Circuit has specifically held that Hall is not retroactive to cases
on collateral review”). We need not address Hall’s (or Moore’s) non-retroac-
tivity here (1) because we already set aside the Alabama court’s denial of
Smith’s Atkins claim, see Smith III, 620 F. App’x at 746–52; and (2) because this
is Smith’s first § 2254 petition.
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24 Opinion of the Court 21-14519
Mays v. Stephens, 757 F.3d 211, 218 n.17 (5th Cir. 2014)). Instead, we
said that “the standard error of measurement is merely a factor to
consider when assessing an individual’s intellectual functioning—
one that may benefit or hurt that individual’s Atkins claim, depend-
ing on the content and quality of expert testimony presented.” Id.at 640–41; but see United States v. Wilson, 170 F. Supp. 3d 347, 366
(E.D.N.Y. 2016) (“[T]he facts in Hall require lower courts to con-
sider evidence of adaptive functioning if even one valid IQ test
score generates a range that falls to 70 or below.”).
Our decision in Ledford predates Moore, though. And Moore
rejects Ledford’s assertion that a district court can consider anything
other than the lower end of an offender’s standard-error range. See
Moore, 581 U.S. at 10, 14; see also Jackson, 9 F.4th at 655 n.8. 5 Indeed,
Moore requires courts to move on and consider adaptive deficits
when the lower end of an offender’s standard-error range is equal
to or less than 70. And to the extent that Ledford holds otherwise,
5 Moore arose after the Texas Court of Criminal Appeals “discounted the lower
end of the standard-error range associated” with Moore’s lowest admissible
score (a 74). 581 U.S. at 10 (citation omitted). Instead of focusing on the stand-
ard-error range associated with Moore’s 74, the Texas court cited Moore’s ac-
ademic history and his depression and suggested that those factors “might
have hindered his performance” on the IQ test that generated the 74. Id. (ci-
tation omitted). But the Supreme Court reversed, explaining that “the pres-
ence of other sources of imprecision in administering the test to a particular
individual cannot narrow the test-specific standard-error range.” Id. at 14
(cleaned up). Because the lower end of Moore’s score range fell at or below
70, the Texas court “had to move on to consider Moore’s adaptive function-
ing.” Id.
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21-14519 Opinion of the Court 25
see Ledford, 818 F.3d at 641 (suggesting that “the standard error of
measurement is a bi-directional concept that does not carry with it
a presumption that an individual’s IQ falls at the bottom of his IQ
range”), Ledford is no longer good law.
In sum, the district court did not clearly err by considering
Smith’s adaptive deficits. To the contrary, Hall and Moore required
the district court to turn to evidence of Smith’s adaptive deficits
because the lower end of his standard-error range was 69. See Smith
IV, 2021 WL 3666808, at *3.
Alabama also argues that the district court erred by failing
“to require Smith to prove by a preponderance of the evidence that
he has significantly subaverage intellectual functioning.” On this
view, the district court’s order “focused only on the testimony of ”
Dr. King and Dr. Chudy, 6 “both of whom found that Smith func-
tions in the borderline range of intelligence.”
We disagree, though, because Smith carried his burden un-
der the intellectual prong through Dr. Chudy’s testimony. To
6 The district court’s order never says that Dr. King’s and Dr. Chudy’s testi-
mony was the only evidence it considered when assessing Smith’s intellectual
functioning. So Alabama’s argument builds from an incorrect premise, for
“we assume all courts base rulings upon a review of the entire record.” Haynes
v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (quoting Funchess
v. Wainwright, 722 F.2d 683, 694 (11th Cir. 1985)). So regardless of what evi-
dence the district court’s order did or did not cite, we will not find clear error
when “the district court’s account of the evidence is plausible in light of the
record viewed in its entirety,” Anderson v. Bessemer City, 470 U.S. 564, 674 (1985)
(emphasis added).
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26 Opinion of the Court 21-14519
satisfy the intellectual-functioning prong, as we have observed,
Smith needed to prove only that the lower end of his standard-error
range is equal to or less than 70. And while Dr. Chudy found that
Smith functions in the borderline range of intelligence, Dr. Chudy
explained that functioning in the borderline range “means that
[Smith] operates between the Low Average and [intellectually dis-
abled] range.” Smith III, 620 F. App’x at 740.
In other words, Dr. Chudy treated Smith’s IQ score “not as
a single fixed number but as a range.” Hall, 572 U.S. at 712. And
Dr. Chudy found that the lower end of that range was 69. Smith
III, 620 F. App’x at 738. “69 is considered clearly [intellectually dis-
abled].” Id. at 738.
Alabama’s final argument is that the district court commit-
ted legal error by failing to make a finding concerning Smith’s in-
tellectual functioning. But of course, the district court did make a
finding concerning Smith’s intellectual functioning—it found that
Smith “had IQ test scores as low as 72” and that a score of 72 “is
actually as low as 69 if you take into account the standard error of
measurement.” Smith IV, 2021 WL 3666808, at *2. As a result, the
district court had to move on to assess Smith’s adaptive deficits. See
Moore, 581 U.S. at 14 (requiring the Texas courts “to move on” and
“consider Moore’s adaptive functioning” when his lowest score,
“adjusted for the standard error of measurement, yield[ed] a range
of 69 to 79”); Hall, 572 U.S. at 724 (requiring that Hall have an “op-
portunity to present evidence” concerning his “adaptive function-
ing” when his lowest score was a 71).
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21-14519 Opinion of the Court 27
V.
We turn now to the adaptive-functioning prong. To satisfy
this prong, Smith needed to demonstrate “significant or substantial
deficits in adaptive behavior.” Ex parte Perkins, 851 So. 2d at 456; see
also Carroll v. State, 300 So. 3d 59, 65 (Ala. 2019) (noting that “assess-
ments of adaptive functioning must adhere to the ‘medical com-
munity’s current standards’” (quoting Moore, 581 U.S. at 20)). This
criterion refers “to how well a person meets community standards
of personal independence and social responsibility, in comparison
to others of similar age and social background.” DSM-5, at 37;
AAIDD-12, at 29 (“Adaptive behavior is the collection of concep-
tual, social, and practical skills that have been learned and are per-
formed by people in their everyday lives.”).
“Adaptive functioning involves adaptive reasoning in three
domains: conceptual, social, and practical.” DSM-5, at 37. Deficits
in any one of those domains satisfies the adaptive-functioning
prong. See Moore, 581 U.S. at 15–16 (citation omitted); DSM-5 at 38
(explaining that the adaptive-functioning criterion “is met when at
least one domain of adaptive functioning—conceptual, social, or
practical—is sufficiently impaired” such that “ongoing support” is
necessary “for the person to perform adequately in one or more life
settings at school at work, at home, or in the community”);
AAIDD-12, at 31 (explaining that “the ‘significant limitations in
adaptive behavior’ criterion” requires “an adaptive behavior score
that is approximately 2 standard deviations or more below the
mean in at least one of the three adaptive behavior domains, con-
ceptual, social, or practical”).
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28 Opinion of the Court 21-14519
After the evidentiary hearing, the district court found that
“Smith has significant deficits in social/interpersonal skills, self-di-
rection, independent home living, and functional academics.”
Smith IV, 2021 WL 3666808, at *11. That conclusion aligns with the
one we reached before the evidentiary hearing, when we said that
the record contained evidence “that would support a finding of fact
that Smith had significant limitations in at least two” areas: “(1) so-
cial/interpersonal skills and self-direction.” Smith III, 620 F. App’x
at 750. 7 And the evidentiary hearing only reinforced that conclu-
sion.
Dr. Fabian used the Independent Living Scales test to assess
Smith’s adaptive behavior. “The ILS is probably the most readily
used adaptive functioning one-on-one test used nationally in foren-
sic psychology,” said Dr. Fabian. The test required Smith to answer
questions like “what the purpose of a will is, what would he do if
he had a pain in his chest,” how would he fix things in his home,
and how would he use a map “to drive from point A to point B.”
Based on that assessment, Dr. Fabian concluded that Smith had
“deficits in every area” of adaptive functioning.
To be sure, Dr. King testified that the ILS test “is not a rec-
ommended device for assessing adaptive behavior.” But Dr. King
uses the ILS test to evaluate whether someone “can manage them-
selves personally.” “That really is what the device was designed to
7 According to Dr. Reschly and Dr. Fabian, self-direction is a subcategory that
falls within the conceptual domain.
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21-14519 Opinion of the Court 29
do.” Of course, whether a person “can manage themselves” is at
the very core of adaptive functioning. See DSM-5, at 37; AAIDD-
12, at 29. So Dr. King’s own testimony contradicts his criticism of
the ILS test. In fact, the district court “question[ed] the veracity of
Dr. King’s criticism” of the ILS test—not because his testimony in
this case contradicted his criticism of the ILS test, but because his
testimony in another case also contradicted his criticism of the ILS
test. See Smith IV, 2021 WL 3666808, at *10 (observing that Dr. King
has previously testified that ILS test “measures adaptive function-
ing in a number of different domains” (quoting Tarver, 940 So. 2d
at 324 (Cobb, J., concurring in part and dissenting in part))).
Because we cannot disturb the district court’s finding that
Dr. King’s criticism of the ILS test lacked credibility, see, e.g., Beren-
guela-Alvarado v. Castanos, 950 F.3d 1352, 1357 (11th Cir. 2020), it fol-
lows that the conclusion that Dr. Fabian drew from the ILS test—
that Smith had “deficits in every area” of adaptive functioning—
supports the district court’s conclusion about Smith’s adaptive def-
icits. 8
The record also reveals that Smith struggled to communi-
cate effectively, which supports the district court’s finding that
8 Alabama also criticizes the district court for failing to make “findings con-
cerning Dr. Fabian’s reliance” on the ILS. But as we’ve explained, see supra
n.6, our task is to determine whether the district court’s conclusion—that
“Smith has significant deficits in social/interpersonal skills, self-direction, in-
dependent home living, and functional academics,” Smith IV, 2021 WL
3666808, at *11—“is plausible in light of the record viewed in its entirety,” An-
derson, 470 U.S. at 573–74 (emphasis added).
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30 Opinion of the Court 21-14519
Smith has deficits in the “functional academics” realm. Smith IV,
2021 WL 3666808, at *11. Functional academics is a subcategory
within the conceptual domain, which also includes communication
skills. See DSM-5, at 37 (explaining that the conceptual domain in-
volves “language, reading, writing, math reasoning,” and other ac-
ademic skills); AAIDD-12, at 30 (listing difficulty communicating
effectively as an example of significant deficits in the conceptual
domain).
Dr. Reschly, Dr. Chudy, and Dr. Fabian all testified that
Smith’s illiteracy suggests that he suffers significant deficits in the
conceptual domain. For his part, Dr. Reschly discussed Smith’s
“failure to acquire literacy skills at an age-appropriate level, which
relates to the conceptual demand of adaptive behavior.” Indeed,
Dr. Chudy’s administered a WRAT-3, an achievement test used to
gauge scholastic abilities, which revealed that “Smith is barely lit-
erate in reading.” That test is “consistent with significant limita-
tions in at least [the] conceptual domain,” according to Dr. Fabian.
Dr. Fabian also evaluated Smith’s communication skills us-
ing the Expressive One-Word Picture Vocabulary and the Receptive
One-Word Picture Vocabulary tests. These tests relate “to func-
tional academics or conceptual areas of adaptive functioning and
even academic achievement,” said Dr. Fabian. Smith scored in the
first percentile on the expressive test and in the third percentile on
the receptive test. The age equivalents for those scores are thirteen
and fifteen, respectively. Those scores, according to Dr. Fabian,
“are consistent with someone who is intellectually disabled.”
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21-14519 Opinion of the Court 31
Contending that Smith does not struggle with communica-
tion skills, Alabama repeatedly describes Smith as “savvy” and says
that he “had no problem understanding or appropriately respond-
ing to questions” during the evidentiary hearing. But the record
contradicts that description of Smith’s testimony. Take, for in-
stance, an exchange between Smith and his attorney. During this
exchange, Smith read a prompt that described a behavior. Smith
was then asked to rate, on a scale from zero to three, whether he
was able to perform that behavior and, if so, how often he per-
formed that behavior without reminders and without help. A zero
would convey that he was unable to perform that behavior while a
three would convey that he always or almost always performed that
behavior without reminders and without help:
A: “Name 20 or more familiar objects.”
Q: Would you give yourself a rating of zero, one,
two or three?
A: Yeah, I would.
Q: Would you?
A: Yeah, yeah, I would.
Q: What would that rating be?
A: Huh?
Q: What rating would you give yourself for that?
A: I don’t—I don’t know. I don’t understand the
question. Why would I name 20 or more—oh,
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32 Opinion of the Court 21-14519
it says familiar. I thought it said—“name 20 or
more familiar objects.” One.
Q: But you can name familiar objects to yourself;
correct?
A: Huh?
Q: You can name familiar objects to yourself; cor-
rect?
A: I can.
Q: Okay. Do you think you could name 20 things?
A: Yeah.
Q: So would the more correct response to that be
a three?
A: Yeah, if you ask—if I can, yeah.
As that excerpt demonstrates, the record refutes Alabama’s claim
that Smith “had no problem understanding or appropriately re-
sponding to questions” during the evidentiary hearing.
Indeed, that example adds to the mountain of evidence that
suggests Smith struggles to communicate effectively and therefore
suffers deficits in the conceptual domain of adaptive functioning.
And because deficits in any one domain satisfy the adaptive-func-
tioning criteria, see Moore, 581 U.S. at 15–16 (citation omitted);
DSM-5 at 38; AAIDD-12, at 31, we cannot say that the district court
did clearly erred by finding that Smith satisfied the adaptive-func-
tioning prong.
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21-14519 Opinion of the Court 33
Resisting that conclusion, Alabama advances three addi-
tional arguments as to why the district court clearly erred by find-
ing that Smith satisfied the adaptive-functioning prong. First, Ala-
bama argues that the district court clearly erred by failing to make
any findings concerning the ABAS-3, 9 a test that Dr. King adminis-
tered to assess Smith’s adaptive functioning. Based on the results
from that test and his interview with Smith, Dr. King concluded
that Smith lacked “any serious problems with adaptive function-
ing.”
But contrary to Alabama’s claim, the district court addressed
and discredited Dr. King’s adaptive-functioning findings because
they relied “solely” on “Smith’s self-reports.” See Smith IV, 2021 WL
3666808, at *7–8. Unlike the other tests we’ve described, 10 the
ABAS-3 relies on “an individual giving a report on himself.” And
as the district court explained, Dr. King’s reliance on Smith’s self-
reports made his findings unreliable for two reasons.
9 We just described the ABAS-3 test; it requires the subject to read a descrip-
tion of a behavior and rate, on a scale of zero to three, whether the subject can
perform that behavior and, if so, how often the subject performs that behavior
without reminders and without help. Dr. King administered the ABAS-3 to
Smith before the evidentiary hearing.
10 The ILS test, for example, requires Smith to show (rather than tell) his adap-
tive abilities by requiring him to answer questions like what is the purpose of
a will, what would you do if you had chest pains, how do you fix things in
your home, and how do you use a map to get from point A to point B. The
administering professional then assesses the test taker’s answers to evaluate
his adaptive abilities.
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34 Opinion of the Court 21-14519
First, the district court explained that the AAIDD “cautions
against reliance on self-reporting.” Id. at *7. The AAIDD warns
against “using self-report[ing] for the assessment of adaptive behav-
ior” because self-reporting “may be susceptible to biased respond-
ing.” AAIDD-12, at 40–41. To that end, Dr. Fabian testified that
Smith “has not wanted to be found intellectually disabled.” In Dr.
Fabian’s opinion, Smith is “embarrassed/offended by this.”
Second, and relatedly, the district court explained that much
of the information Smith reported to Dr. King was demonstrably
untrue:
For instance, Smith’s mother was 63 (not 69) when
she died, and Smith’s father was 64 (not 70) when he
died. Dr. King also acknowledged that Smith told him
that he had not attended school beyond the sixth
grade, but records show he did not leave school until
he was in the eighth grade. Smith also reported to
Dr. King that he was drinking on a daily basis from
the age of 20 until age 27 when he was arrested. But
Smith was actually incarcerated from age 19 to 26 and
then again at 27.
Smith IV, 2021 WL 3666808, at *7.
We also note a third reason to doubt Dr. King’s reliance on
the ABAS-3 test: Smith took that test twice and reported different
answers each time, and as we’ve mentioned (see supra at 32–33), a
review of Smith’s responses the second time he took the test
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21-14519 Opinion of the Court 35
(during the evidentiary hearing) reveal that it’s not clear he under-
stood what was being asked.
As we’ve explained, the ABAS-3 test required Smith to rate,
on a scale from zero to three, whether he was able to perform a
particular behavior and, if so, how often he performed that behav-
ior without reminders and without help. Smith first took the
ABAS-3 test when he met with Dr. King before the evidentiary
hearing. Then, Smith’s counsel administered the ABAS-3 test dur-
ing the evidentiary hearing. During the second administration of
the test, Smith reported different ratings than the ones he reported
when Dr. King administered the test before the evidentiary hearing.
When Dr. King administered the ABAS-3, for example, Smith gave
himself a three for the following prompt: “Answers the telephone
by saying ‘Hello.’” In other words, Smith reported that he always
performs that behavior. But when he read that same prompt dur-
ing the evidentiary hearing, Smith said, “I don’t answer no tele-
phone.” Similarly, Smith gave himself a one at the evidentiary hear-
ing in response to the prompt that reads: “Nods or smiles to en-
courage others when they are talking.” But Smith gave himself a
three in response to the same prompt when Dr. King administered
the test before the evidentiary hearing.
The court ultimately discredited Dr. King’s testimony con-
cerning Smith’s adaptive deficits. See id. at *11 (explaining that
“whether Smith has significant or substantial deficits in adaptive be-
havior largely comes down to which expert is believed”). We
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36 Opinion of the Court 21-14519
cannot say that the district court clearly erred in doing so given the
problems with Dr. King’s testimony.
For the same reason, we must reject Alabama’s second argu-
ment as to why the district court clearly erred when finding that
Smith satisfied the adaptive deficits prong. To support this argu-
ment, Alabama contends that Dr. King “found that Smith had
strengths in his home living and functional academics.” This argu-
ment fails because, as we have observed, the district court discred-
ited Dr. King’s testimony concerning Smith’s adaptive deficits. But
even if the district court had credited Dr. King’s testimony, this
piece of testimony does not help Alabama to show clear error, for
“‘the medical community focuses the adaptive-functioning inquiry
on adaptive deficits,’ not strengths.” Carroll, 300 So. 3d at 63 (quot-
ing Moore, 581 U.S. at 16).
Finally, Alabama claims that the district court improperly
“discounted” Dr. King’s reliance on records from the Alabama De-
partment of Corrections about Smith’s behavior in prison. Those
records were “significant,” Alabama claims, “because there was no
indication that Smith has a mental disability or psychiatric prob-
lems, and because the records indicated that he functioned nor-
mally.”
But the Supreme Court has explained that “[c]linicians . . .
caution against reliance on adaptive strengths ‘in a controlled set-
ting,’ as a prison surely is.” Moore, 581 U.S. at 16; see also DSM-5, at
38 (“Adaptive functioning may be difficult to assess in a controlled
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21-14519 Opinion of the Court 37
setting (e.g., prisons, detention centers)[.]”). So the prison records
do not allow Alabama to show clear error.
In sum, we cannot say that the district court clearly erred by
finding that Smith satisfied the adaptive-functioning prong. We
have already explained that the record contains evidence “that
would support a finding of fact that Smith had significant limita-
tions in at least two” domains. Smith III, 620 F. App’x at 750. Dr.
King’s testimony is the only new evidence that has undermined
that conclusion. But the district court discredited Dr. King’s testi-
mony. As a result, the district court did not clearly err.
VI.
Finally, we turn to the district court’s finding that “Smith’s
intellectual and adaptive functioning issues clearly arose before he
was 18 years of age.” Smith IV, 2021 WL 3666808, at *12. While in
school, Smith took two IQ tests and obtained scores of 74 and 75.
As a result, the school recommended placing Smith in the “EMR
program.” EMR at that time referred to “educable [intellectually
disabled],” according to Dr. Reschly,11 who added that “the criteria
for identifying someone with educable [intellectual disability] at
11 Alabama asks us to hold that the district court clearly erred by refusing to
discredit Dr. Reschly’s testimony. On this view, “Dr. Reschly made his diag-
nosis that Smith was intellectually disabled as a child . . . without personally
evaluating him.” But because we cannot go back in time, it was impossible
for Dr. Reschly (or anyone else, for that matter) to “personally evaluat[e]”
whether Smith exhibited deficits in intellectual and adaptive functioning be-
fore turning 18.
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38 Opinion of the Court 21-14519
that time was largely parallel to the criteria used to identify mild
intellectual disability today.” Those criteria were an IQ score “be-
low 75” and “documented deficits in adaptive behavior.” Dr. Fabian
shares Dr. Reschly’s “understanding” that EMR is “pretty con-
sistent with modern day intellectual disability mild.”
In sum, then, the record supports the district court’s conclu-
sion that Smith’s deficits in intellectual and adaptive functioning
“were present at an early age.” Id. As a result, we cannot say that
the district court clearly erred by finding that Smith satisfied the
final prong of his Atkins claim.
VII.
We hold that the district court did not clearly err in finding
that Smith is intellectually disabled and, as a result, that his sen-
tence violates the Eighth Amendment. Accordingly, we affirm the
district court’s judgment vacating Smith’s death sentence.
AFFIRMED.