Smith v. Sharp
Opinion of the Court
Roderick Smith was sentenced to death by an Oklahoma state jury for the 1993 murders of his wife and four stepchildren. Before the resolution of Smith's collateral attacks on his convictions and sentence, the Supreme Court issued its decision in Atkins v. Virginia,
Smith again sought federal habeas relief. The district court denied relief in an unpublished opinion. Smith v. Royal, No. CIV-14-579-R,
Exercising jurisdiction under
I
A
Smith was convicted of the murder of his wife, Jennifer Smith, and her four children from a prior relationship. The following facts concerning the underlying offense are undisputed and taken from the opinion of the OCCA affirming Smith's convictions and sentences on direct appeal. Smith v. State,
On the morning of June 28, 1993, Jennifer Smith's mother called the police and asked them to check on her daughter, who had not been seen or heard from for ten days. When the responding officer arrived *1070at the residence where Smith and Jennifer lived with her four children, he smelled decaying flesh and observed many flies around the windows. The responding officer contacted his supervisor, and the officers entered the house together. They discovered the body of a woman in one closet, and the body of a child in another. The officers requested assistance from the homicide division of the police department, and the bodies of three more children were found. The bodies were identified as those of Jennifer and her four children, and were determined to have been dead for at least two days and up to two weeks.
Later that day, Smith walked into the Oklahoma County Sheriff's Office. He was then arrested by the Oklahoma City Police. Smith was interrogated and admitted that he had stabbed Jennifer and the two male children. Smith also admitted that he "got" the female children, but could not remember any details. He told the police where he had placed each of the bodies.
B
As summarized in Smith's first habeas case, Smith was tried and convicted before an Oklahoma County jury of five counts of first-degree murder. Smith v. Mullin,
Smith then filed his first habeas corpus action, and the district court denied relief. Smith v. Gibson, No. CIV-98-601-R (W.D. Okla. Jan. 10, 2002) (unpublished). Smith appealed to this court. Pending the resolution of that appeal, the Supreme Court held the Eighth Amendment prohibits the execution of the intellectually disabled. Atkins, 504 U.S. at 321,
Smith's first Atkins trial ended in a mistrial, but a state jury eventually concluded that he was not intellectually disabled. Smith appealed to the OCCA, which affirmed the jury's verdict. Smith v. State, No. O-2006-683 (Okla. Crim. App. Jan. 29, 2007) (unpublished) ("OCCA's Atkins Op.").
Shortly after Smith's Atkins trial, however, this court granted in part Smith's habeas petition, entitling Smith to resentencing due to ineffective assistance of counsel. Smith v. Mullin,
Smith then filed a second habeas petition in federal court, bringing claims related to: (1) sufficiency of evidence supporting the jury's determination that he was not intellectually disabled; (2) purported irregularities in his Atkins trial; and (3) ineffective assistance of counsel during his Atkins, competency, and resentencing trials. The district court denied relief on all counts. We granted certificates of appealability as to: (1) sufficiency of evidence as to the jury's determination that Smith was not intellectually disabled at his Atkins trial; (2) his Atkins challenge to language in the jury instructions at that trial; and (3) various effectiveness of counsel claims during his Atkins, competency, and resentencing trials.
II
On appeal from orders denying a writ of habeas corpus, "we review the district court's legal analysis of the state court decision de novo and its factual findings, if any, for clear error." Michael Smith v. Duckworth,
The Supreme Court has explained that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter,
Applying § 2254(d)(1)'s legal inquiry, "we ask at the threshold whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court." Grant,
"If clearly established federal law exists, a state-court decision is contrary to it if the state applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a *1072case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Hooks v. Workman,
Applying § 2254(d)(2)'s factual inquiry, we "conclude that a state court's determination of the facts is unreasonable" if "the court plainly and materially misstated the record or the petitioner shows that reasonable minds could not disagree that the finding was in error." Michael Smith,
"The § 2254 standard does not apply to issues not decided on the merits by the state court." Welch v. Workman,
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter,
And as with un-adjudicated prongs of Strickland's two-part analysis, we review un-adjudicated prongs of Atkins' three-part analysis de novo. As the Supreme Court explained in Brumfield, if the relevant state "court never made any finding that [petitioner] failed to produce evidence suggesting he could meet" one of the Atkins prongs, federal habeas courts review that prong of the Atkins analysis de novo because "[t]here is thus no determination on that point to which a federal court must defer in assessing whether [petitioner] satisfied § 2254(d)."
III
Smith appeals the district court's denial of habeas relief on five grounds. With respect to his Atkins trial, Smith asserts: (1) he is intellectually disabled and his execution would violate Atkins; (2) flawed jury instructions rendered his Atkins trial fundamentally unfair; and (3) ineffective assistance for his counsel's failures to investigate and call an expert specializing in the employment capabilities of the intellectually disabled, and to refute the State's impeachment of Smith's adaptive functioning measurement. Because we grant habeas relief on Smith's claim that his execution would violate Atkins, we need not address the remaining claims concerning his Atkins trial.
With respect to his competency and resentencing trials, Smith asserts he was *1074denied effective assistance of trial and appellate counsel for counsel's failure to call Anna Wright, a mental health worker at the Oklahoma County jail, to testify and sponsor the introduction of a video recording of Smith speaking. Smith also asserts cumulative error.
A
Smith first argues he cannot legally be executed pursuant to Atkins because he is intellectually disabled. At the time of Smith's Atkins trial, the OCCA implemented Atkins' prohibition on the execution of the intellectually disabled through its decision in Murphy v. State,
A person is "mentally retarded": (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. It is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.
Id. at 567-68. Smith contends that based on the evidence presented, a reasonable jury would be compelled to find he was intellectually disabled.
1
Smith argued insufficiency of evidence to the OCCA in his direct appeal from the jury verdict following his Atkins trial. OCCA Atkins Op. at 6. The OCCA concluded that "Smith failed to meet even the first prong of the Murphy definition of mental retardation" because "[t]he evidence, viewed in the light most favorable to the State, portrayed Smith as a person who is able to understand and process information, to communicate, to understand the reactions of others, to learn from experience or mistakes, and to engage in logical reasoning." Id. at 11. Accordingly, to prevail on this sufficiency of evidence challenge, Smith must demonstrate the OCCA's decision that he failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable application of, Atkins, or an unreasonable determination of the facts. Hooks,
*1075But the OCCA did not adjudicate on the merits Smith's challenge to the sufficiency of evidence on either the age-of-onset or the deficits in adaptive functioning prongs of Murphy, meaning there exists no state court decision to which we must defer under AEDPA. Grant,
Instead, the OCCA's dispositive language rejecting Smith's sufficiency of evidence claim referred only to the first prong of the Murphy definition of intellectual disability, detailing each component of significantly sub-average intellectual functioning and explaining that Smith failed to meet that prong. Id. at 11. The OCCA neither addressed how a rational jury could have viewed the adaptive functioning evidence, nor concluded that the "evidence presented at trial support[ed]" a finding of deficits in adaptive functioning, as it stated for the intellectual functioning prong. Id. And a state court does not adjudicate a claim on the merits without addressing the claim's factual basis. See Fairchild v. Workman,
Moreover, the OCCA couches the entirety of its discussion regarding the "persuasive evidence" in terms relevant to the intellectual functioning prong of Murphy, stating the evidence "portrayed Smith as a person who is able to understand and process information, to communicate, to understand the reactions of others, to learn from experiences or mistakes, and to engage in logical reasoning." OCCA Atkins Op. at 11. These are Murphy's intellectual functioning categories. Although they may overlap with the adaptive functioning skills, the psychological terms are different. And even if evidence supporting these intellectual functioning findings could be relevant to the adaptive functioning prong, we cannot ignore the fact that the OCCA addresses this evidence exclusively in the context of Murphy 's definition of the intellectual functioning prong. Compare
The OCCA's statement that comes closest to adjudicating on the merits the third Murphy prong closely resembles the relevant state court statement in Pruitt. Compare
*1076with OCCA Atkins Op. at 8 ("the State presented persuasive evidence from lay witnesses to refute Smith's evidence of subaverage intellectual function and of adaptive functioning deficits"). As the Seventh Circuit similarly concluded, such a cursory reference to the evidence presented absent any conclusion does not constitute an adjudication on the merits. Pruitt,
As explained above, if the state court explicitly relies on one element of a multi-element test to the exclusion of others, we review challenges to the remaining elements de novo. See Brumfield,
The proper standard as to the latter two prongs are thus set forth in Jackson v. Virginia,
2
In addressing the Murphy prongs, we first conclude Smith has demonstrated the OCCA either unreasonably applied Atkins or unreasonably construed the facts in deciding the evidence justified the jury's verdict regarding the intellectual functioning prong of Murphy. Next, as the State conceded at oral argument, Smith met the age-of-onset Murphy prong, and that prong thus does not provide a viable justification for upholding the jury's determination that Smith was not intellectually disabled. Finally, we conclude Smith has successfully demonstrated that based on the evidence presented, a reasonable jury would have been compelled to find that he suffers from deficiencies in at least two of the nine listed skill areas of adaptive functioning. We thus reverse the district court's denial of this claim.
a
The first Murphy prong requires Smith prove by a preponderance of evidence that he "functions at a significantly sub-average intellectual level that substantially limits *1077his [ ] ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others."
But this is not an insurmountable barrier. Even under AEDPA's deferential review, at least four of our sibling circuits have held unreasonable a state court's determination that an individual was not intellectually disabled, or that an individual failed to meet a particular prong of the relevant definition of intellectual disability. Pruitt,
Because Smith's sufficiency of evidence challenge "presents a mixed question of fact and law," we will grant relief if the OCCA's decision to uphold the jury determination on the first Murphy prong was contrary to, or an unreasonable application of, Atkins, or was an unreasonable determination of the facts. Hooks,
We recognized the centrality of expert testimony to our review of Atkins verdicts in Hooks. In that case, the defendant's IQ test scores ranged from 53 to 80. The experts testified that he fell into a "gray area." Hooks,
As in Hooks, id. at 1167, the OCCA applied the correct legal standard in this case, explaining that "[w]hen a defendant challenges the sufficiency of evidence following a jury verdict finding him not mentally retarded, [the OCCA] reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have reached the same conclusion." OCCA Atkins Op. at 6. "Because the OCCA applied the correct legal standard, our inquiry is limited to whether its determination that the evidence was sufficient to support the jury's verdict was reasonable ... [T]hat inquiry also requires us to consider whether the OCCA ... reasonably applied Atkins." Hooks,
We conclude that in holding Smith failed to satisfy the intellectual functioning Murphy prong, the OCCA either relied upon an unreasonable determination of the facts or unreasonably applied Atkins. Every IQ test Smith took placed him firmly within the intellectually disabled range. The sub-average intellectual ability requirement generally turns on IQ scores. See
In light of Smith's consistent scoring in the intellectually disabled range and the Supreme Court's clear statements regarding the significant role of IQ assessments under the intellectual functioning prong of Atkins, for the OCCA's decision to withstand review there must be evidence that either: (1) all of the IQ assessments administered to Smith significantly underestimate his intellectual functioning; or (2) contrary to the clinical definitions of the intellectual functioning prong at the time of Smith's Atkins trial, expert assessments relying upon standardized metrics are not dispositive. The State cannot prevail on either basis. The former requires an unreasonable construction of the facts; the *1079latter an unreasonable application of Atkins.
Three experts testified at Smith's Atkins trial: Dr. Clifford Allen Hopewell, a clinical neuropsychologist retained by Smith; Dr. Frederick H. Smith, a psychologist with the Oklahoma Department of Corrections initially retained by the State for Smith's first habeas petition but called to testify as an expert for Smith at his Atkins trial; and Dr. John A. Call, a forensic psychologist retained by the State. The doctors' opinions largely track the clinical and legal definitions of intellectual disability set forth in Murphy. Both Dr. Hopewell and Dr. Smith concluded Smith was intellectually disabled. And Dr. Hopewell testified that Smith's "case is pretty obvious." Dr. Call suggested Smith was malingering but admitted he could not "say that [Smith] is not mentally retarded." In other words, although Dr. Call challenged the accuracy of some of Smith's tests, even Dr. Call could not conclusively contradict the ultimate diagnosis of intellectual disability.
And Smith's IQ scores, all of which place him in the intellectually disabled range, strongly compel a finding of significant deficits in intellectual functioning. Unlike in previous cases in which we denied relief on the intellectual functioning prong, not even one of Smith's IQ scores falls outside the intellectually disabled range "between 70 and 75 or lower," Atkins,
Of the scores presented at Smith's Atkins trial and to the OCCA, the 55 scores were obtained by Dr. Hopewell, one of Smith's experts, and Dr. Call, the State's expert, roughly nine months apart. Dr. Hopewell administered the WAIS-III to Smith in January 2003, and obtained a Verbal IQ interval of 51-61, a Performance IQ interval of 59-73, and a full scale interval of 52-60. Dr. Call's administration of the same assessment nine months later produced not only an identical full scale score of 55, but also similar intervals. Dr. Call obtained a Verbal IQ interval of 53-63, a Performance IQ interval of 58-71, and a full scale interval of 52-60. Dr. Call's administration of the assessment produced age-adjusted scales either identical to or within one point of Dr. Hopewell's administration in nine of the eleven areas the WAIS-III measures.
Dr. Smith administered the WAIS-R and the Raven's Standard Progressive Matrices to Smith in 1997, five years prior to the Supreme Court's decision in Atkins.
*1080On the WAIS-R assessment, Smith's Verbal IQ score was 64, his Performance IQ was 70, and full scale IQ was 65. Dr. Smith testified that the score indicated Smith was intellectually disabled.
Finally, the 73 results from a test administered in preparation for Smith's original criminal trial in 1994. Smith notes that the type of test administered to obtain the 73 is unclear. Dr. Call's testimony provides the only source for the score in the Atkins trial record, noting that Dr. Murphy administered the test in 1994. The transcript from Smith's original criminal trial includes testimony from Dr. Murphy that Smith's full scale IQ is 73, and "in the mentally retarded range of intellectual functioning." At no point in his testimony did Dr. Murphy state what type of test was administered, and he did not testify at Smith's Atkins trial. Accordingly, although we note the score obtained by Dr. Murphy for its consistent placement of Smith in the intellectually disabled range, we do not consider a score on an unknown test and only introduced into the Atkins trial record indirectly to be of particular significance to our review.
In view of the evidence showing Smith's consistent low IQ scores and Atkins' statement that a score of 75 or lower will generally satisfy the intellectual functioning prong of an intellectual disability diagnosis, the State must provide some basis for a reasonable juror to believe that every single one of Smith's IQ assessments was inaccurate, and that his actual IQ was some ten to fifteen points higher than his scores indicate. The OCCA dismissed the relevance of these scores consistently placing Smith in the intellectually disabled range by first emphasizing Dr. Call's testimony that Smith was likely malingering. OCCA Atkins Op. at 8. But to the extent the OCCA determined Smith failed to satisfy the intellectual functioning Murphy prong because he was malingering, we conclude such a determination amounts to an unreasonable factual conclusion. Byrd,
As explained supra, Smith has consistently scored in the intellectually disabled range on every IQ test he has taken. And Smith almost certainly scored in that range when he was first placed in courses for the educable mentally handicapped while in grade school, as special education instructors from his school testified that placement in such courses required IQ testing in the intellectually disabled range. Dr. Hopewell testified that children would not fake an intellectual disability for placement in the educable mentally handicapped courses. Two of Smith's high school teachers testified that Smith was one of the lower functioning students in their educable mentally handicapped courses.
As all three experts expressly testified, Smith's consistent placement in the intellectually disabled range provides compelling evidence that he was not malingering. Dr. Hopewell testified that Smith's consistent scoring across a wide range of tests and his prior experience with the intellectually disabled refuted any claims that Smith was malingering. Dr. Smith testified that Smith's scores from 1997 through 2003 demonstrate a "remarkable" consistency difficult to reconcile with a malingering diagnosis. And Smith obtained the 65 score in 1997 on the assessment that Dr. Smith administered, five years prior to the Supreme Court's decision in Atkins, calling into question any purported motivation for malingering. Even the State's expert, Dr. Call, agreed that comparing test performance on the same or similar tests over time would provide one way of assessing whether an individual was malingering. Moreover, as the Seventh Circuit explains, "a defendant cannot readily feign the symptoms of mental retardation." Newman v. Harrington,
The State's assertion that Smith was malingering thus rests on Dr. Call, the sole expert to so testify. Unlike Dr. Hopewell, who had extensive experience with both the intellectually disabled and malingering patients, Dr. Call had no prior experience with the intellectually disabled and practiced almost exclusively in the unrelated field of forensic psychology. See Lambert v. State,
*1082The OCCA also emphasized Dr. Call's testimony that the tests he and Dr. Hopewell administered to assess malingering demonstrate "Smith did not put forth his best efforts during his and Dr. Hopewell's testing and that Smith's I.Q. test results were unreliable." OCCA Atkins Op. at 8. Dr. Call testified that the Test of Memory and Malingering and 15-Item Memory Test both demonstrated Smith was malingering. Dr. Hopewell disputed this conclusion, testifying the assessments of malingering that he and Dr. Call administered would not accurately assess the intellectually disabled.
Even if the OCCA had used the malingering assessments to disregard Smith's scores (both 55) on the WAIS-III assessments, Smith still averaged a 69 on the remaining fixed score assessments. For a reasonable jury not to be compelled to conclude that Smith satisfied the first Murphy prong based on the malingering assessments, there must exist some basis for the jurors to infer that Smith's actual IQ falls outside the intellectually disabled range. But every score presented refuted such an inference. And "[w]hile the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable." Torres v. Lytle,
The OCCA's conclusion that Smith "failed to meet even the first prong of the Murphy definition," OCCA Atkins Op. at 11, is thus an unreasonable determination of the facts in light of Smith's consistent IQ scores that demonstrate significantly subaverage intellectual functioning. See Pruitt,
The OCCA attempted to justify its disregard for Smith's consistent IQ scores by explaining "the State presented persuasive evidence from lay witnesses to refute Smith's evidence of subaverage intellectual functioning." OCCA Atkins Op. at 8. But to the extent that the OCCA determined Smith failed to satisfy the intellectual functioning Murphy prong because of evidence from lay witnesses, such a determination constitutes an unreasonable application of Atkins. See Wiggins,
Atkins demands the Eighth Amendment's prohibition of the execution of the mentally disabled tracks the "national consensus [that] developed against" the execution of "offenders possessing a known IQ less than 70." Atkins,
Therefore, the OCCA's determination Smith did not satisfy the first prong of the Murphy definition constitutes either an unreasonable determination of the facts, or amounts to an unreasonable application of Atkins because such determination requires the OCCA to have disregarded the clinical definitions Atkins mandated states adopt. We conclude the OCCA erred in determining a reasonable jury would not have been compelled to find Smith intellectually disabled.
b
The State conceded at oral argument that there exists insufficient evidence for a reasonable jury to conclude that Smith's symptoms did not manifest before the age of eighteen. The record supports the State's concession: throughout his schooling, Smith was placed in educable mentally handicapped courses, and placement in those courses required Smith submit to a psychometrist-administered test and score a full scale IQ in the intellectually disabled range. Two of Smith's teachers from his educable mentally handicapped courses confirmed that his placement in those classes was appropriate. We accordingly conclude that Smith's sufficiency of evidence challenge prevails with regards to the age-of-onset prong of the Murphy definition of intellectual disability.
c
Finally, Smith must demonstrate that a rational jury would have been compelled to find he satisfied the adaptive functioning prong of the Murphy analysis: "that he has significant limitations in adaptive functioning in at least two of the nine listed skill areas." OCCA Atkins Op. at 6. As explained by the OCCA, the "adaptive functioning skill areas are: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work."
Under de novo review, we are not constrained to consider only Supreme Court precedent "clearly established at the time of the [state] adjudication," as required under AEDPA. Shoop,
In general, "[o]nly when we apply a settled rule may a person avail herself of the decision on collateral review."
When the Supreme Court "appl[ies] a general standard to the kind of factual circumstances it was meant to address, [it] will rarely state a new rule." Chaidez,
Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection. The Atkins Court twice cited definitions of intellectual disability .... Atkins itself not only cited clinical definitions for intellectual disability but also noted that the States' standards, on which the Court based its own conclusion, conformed to those definitions .... The clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of Atkins ... If the States were to have complete autonomy to define intellectual disability as they wished, the Court's decision in Atkins could become a nullity, and the Eighth Amendment's protection of human dignity would not become a reality. This Court thus reads Atkins to provide substantial guidance on the definition of intellectual disability.
As in Strickland, the Supreme Court in Atkins declared "a rule of general application ... designed for the specific purpose of evaluating a myriad of factual contexts." Chaidez,
Accordingly, we consider on de novo review the Supreme Court's application of Atkins in Hall, Moore I, and Moore II. The Court's decisions in Moore I and Moore II, which directly address the adaptive functioning component of the clinical definitions that Atkins mandated, make clear that no reasonable jury could conclude Smith failed to establish by a preponderance of evidence that he suffered deficits in at least two areas of adaptive functioning, with the most compelling evidence concerning academics and communication. And the State conceded at oral argument that Smith demonstrated significant limitations in adaptive functioning in the academics category.
Dr. Hopewell, the only expert to conduct a formal assessment of Smith's adaptive functioning capacities, concluded Smith suffers from profound deficits in at least five of the nine adaptive functioning areas: communication; academics; social skills; home living; and health and safety. Dr. Hopewell based this assessment on the Vineland Adaptive Behavior Scales assessment; his own interactions with Smith; and his review of Department of Corrections testing on Smith's adaptive functions, which revealed significant deficits in reading, writing, and personal finances (placing Smith at the third and fifth grade levels). With regard to Smith's significant communication deficits, Dr. Hopewell noted that Smith could not keep a cellmate because his fellow prisoners would become bored with his lack of engagement, and frustrated that he spent much of his time completing grade-school level coloring books.
Dr. Hopewell also administered the Wide Range Achievement Test III (WRAT-III), intended to assess an individual's ability in reading, writing, and arithmetic to substantiate the finding of significant deficits in the functional academics category of adaptive functioning. Smith scored at the kindergarten or first grade level in each academic area, at or below two standard deviations from the mean. Dr. Hopewell characterized Smith as functionally illiterate, unable to read more than a few words at a very basic level.
And Smith's teachers from high school confirmed his illiteracy, with one teacher testifying that she never asked Smith to read aloud because of his illiteracy, and another stating it was "very, very likely" that he graduated high school without having learned to read. Smith was unable to fill out job applications without the assistance of his teachers. Evidence of Smith's adult illiteracy arose out of his employment; one teacher in the school where Smith worked as a custodian noted that he was unable to read notes containing special cleaning requests. And we noted the evidence that "Smith is completely illiterate" in resolving Smith's first habeas petition. Smith v. Mullin,
Only Smith presented a standardized assessment of his adaptive behavior; contrary to the AAMR's recommendations, the State neither conducted nor presented *1086a single standardized assessment of Smith's adaptive behavior. AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at 83 (10th ed. 2002) ("Regardless of the purpose of diagnosis ... adaptive behavior should be measured with a standardized instrument that provides normative data on people without mental retardation."). The evidence Smith presented, including the only formal assessment of his deficits in adaptive functioning corroborated by expert testimony and testimony from Smith's teachers and colleagues about his deficits, thus overwhelmingly supports Smith's claim that he satisfies the third Murphy prong.
The evidence the State emphasizes on appeal to refute Smith's adaptive functioning argument carries little weight in light of the Supreme Court's warnings against undue emphasis on "perceived adaptive strengths," Moore I,
[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits. E.g., AAIDD-11, at 47 ("significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills"); DSM-5, at 33, 38 (inquiry should focus on "[d]eficits in adaptive functioning"; deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits).
Evidence that rests on lay stereotypes about the intellectually disabled, such as the incorrect stereotypes that they cannot have jobs or relationships, is similarly disfavored. See Moore II,
The State first emphasizes the testimony of Smith's former prison case manager, Watts, who testified that Smith could communicate with her and "use manipulative behavior to get a more desirable cell or cellmate." However, Watts has no experience with intellectual disabilities, and the State's own expert acknowledged at the proceeding that the intellectually disabled can lie. Additionally, the Supreme Court has "caution[ed] against reliance on adaptive strengths developed in prison." Moore II,
Reliance on the testimony of Smith's insurance agent and work supervisor by the State is similarly unavailing. As with Smith's prison case manager, these individuals have no experience in diagnosing intellectual disability, and based their opinions *1087exclusively on lay stereotypes. Moreover, the testimony of Smith's insurance agent concerned two interactions with Smith over ten years earlier cumulatively taking roughly an hour. The mere fact that Smith's insurance company wanted to hire him, or that his work supervisor did not have problems with Smith's performance of his work duties, is of limited significance. The Supreme Court has repudiated the notion that persons with intellectual disability "never have ... jobs" when "it is estimated that between nine and forty percent of persons with intellectual disability have some form of paid employment." Moore II,
Reference to the testimony of an assistant district attorney from the team that prosecuted Smith's initial criminal trial does not overcome the strong medical evidence of significant deficits in adaptive functioning. The assistant district attorney testified that Smith filed and presented several motions on his behalf, and made good arguments in support of those motions. But one of those motions was a request that the prosecutor's table be moved because Smith thought the prosecutor was making faces at him, which the prosecutor denied making at the Atkins trial. And the Supreme Court has warned against using papers an individual files in court as convincing evidence of communication skills, especially where, as in this case, evidence suggests the papers were written by a cellmate. See Moore II,
The State next emphasizes Smith's relationship with Laura Dich to refute Smith's evidence of deficits in adaptive functioning. Such emphasis further evinces impermissible "reliance upon ... lay stereotypes of the intellectually disabled," as the Court has warned against adopting the "incorrect stereotypes that persons with intellectual disability never have [relationships]." Moore II, 139 S. Ct. at 672 (quotations omitted). And the State makes no efforts on appeal to provide any scientific or clinical justifications that would render meaningful evidence of Smith's relationships.
*1088The [state court] emphasized too heavily in its analysis the facts of the crime, which are not relevant to the analysis of most of the areas of adaptive behavior, especially that of functional academics.").
In sum, Atkins and its progeny prohibit states from "disregard[ing] established medical practice." Moore I,
Because Smith has demonstrated a reasonable jury would have been compelled to conclude he satisfied all three prongs of the Murphy test, we reverse the district court's denial of his habeas petition for relief on this claim.
B
Because we grant habeas relief on Smith's sufficiency of evidence Atkins challenge, we do not need to address Smith's Atkins challenge to the "present and known" jury instruction or his claims of ineffective assistance of counsel at his Atkins proceedings. See Pruitt,
We must nevertheless consider Smith's ineffective assistance of counsel claim concerning counsel's representation at the competency and resentencing trials. The relief Smith seeks on that claim could require the OCCA to vacate his sentences and order a new competency trial. Only if Smith were found competent could the OCCA then order resentencing, including on Smith's three murder convictions for which he was not sentenced to death. Accordingly, *1089we address this claim and affirm the district court's denial of habeas relief.
Smith argues his counsel at the competency and resentencing trials, and attendant direct appeal, was constitutionally ineffective for failing to present to the jury a video recording of an interview with Smith, which he contends would have shown his humanity and intellectual disability. Specifically, Smith argues that counsel was ineffective in these proceedings for failing to call Anna Wright, a mental health worker at the Oklahoma County jail, to testify and sponsor the introduction of a video recording of Smith speaking. Wright assisted in a video interview of Smith conducted in preparation for one of Smith's prior cell mate's clemency hearing. Smith claims this video would have made clear his intellectual disability and demonstrated his humanity to the juries in those proceedings. Smith also attaches an auxiliary ineffective assistance of appellate counsel claim to this failure, arguing his appellate counsel at resentencing was ineffective for failing to raise the deficiency of his trial counsel on direct appeal.
1
The Sixth Amendment guarantees a criminal defendant "the right ... to have Assistance of Counsel for his defense." U.S. Const. amend. VI. Criminal defendants' constitutional right to counsel encompasses post-conviction Atkins proceedings. Hooks,
The right to counsel requires a minimum quality of advocacy from a professional attorney. See Strickland v. Washington,
To establish deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness" as assessed from counsel's perspective at the time. Strickland,
"[T]o establish prejudice, the defendant must show that, but for counsel's deficient performance, there is a reasonable probability the result of the proceeding would have been different." Michael Smith,
In cases in which the OCCA has adjudicated a Strickland claim on the merits, our review of the OCCA decision is "doubly deferential" because "[w]e take a highly deferential look at counsel's performance through the deferential lens of [AEDPA]." Pinholster,
2
The parties agree that the OCCA adjudicated the merits of Smith's ineffective assistance of counsel claims concerning Wright's testimony and the attendant video. See OCCA Resentencing and Competency Op. at 9-10 n.5. The OCCA addressed deficient performance and prejudice, holding both that Smith failed to demonstrate counsel's purported failings amounted to more than a strategic decision and that Smith failed to demonstrate the omitted materials are "of a character substantially different from the evidence that trial counsel ultimately chose to use," rendering their omission immaterial.
Smith nonetheless contends we should review these ineffective assistance claims de novo because the OCCA "misidentified" the allegations by holding Smith alleged mere strategic error rather than counsels' failures to investigate and prepare. He relies on Chadwick v. Janecka,
But the OCCA need not accept an inaccurate characterization of a claim to adjudicate that claim on the merits. And the OCCA did not misconstrue Smith's claim by concluding that he alleges only an imprecise strategic decision by counsel. OCCA Resentencing and Competency Op. at 9-10. Smith does not and cannot dispute that his counsel was aware of Wright and the video testimony because counsel provided notice that she intended to present Wright at the competency and resentencing trials and intended to have her authenticate *1091and sponsor the video recording in question. Any failure to present the evidence thus cannot amount to a failure to investigate; counsel merely chose not to present the evidence after investigating. The OCCA's presumption that counsel made an appropriate strategic decision not to present the evidence thus properly understands Smith's argument. See Burt v. Titlow,
Applying this standard, we reject Smith's claim that counsel inadequately investigated and prepared for trial by failing to submit evidence of which counsel was fully aware. Smith submits an affidavit from his trial counsel, attesting that her failure to present Wright and the video was due to a "lack of investigation and preparation." We may not consider this affidavit on habeas review because it was not presented to the OCCA. Pinholster,
This analysis would not change even were we to consider the affidavits submitted for the first time on habeas review. The affidavit from Smith's trial counsel during the resentencing and competency hearings states only that trial counsel could not recall why she did not call Wright to testify. Because, at best, the "evidence establishes that there is no discernable explanation for counsel's failure to call" the witness in question, Smith "most certainly ha[s] not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Sallahdin v. Mullin,
Smith contends the OCCA's deficiency determination is unreasonable because the OCCA declined to identify any strategic justification for the failure of his counsel to present Wright's testimony and the attendant video. But "[i]t should go without saying that the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Titlow,
Relying upon Bullock v. Carver,
Accordingly, we conclude that Smith has failed to demonstrate ineffective assistance of trial counsel for failure to call Wright as a witness to sponsor the introduction of the video interview of Smith. And because trial counsel's performance was neither deficient nor prejudicial for failing to introduce the evidence in question, Smith's ineffective assistance of appellate counsel necessarily fails. Johnson,
IV
For the foregoing reasons, we REVERSE in part and AFFIRM in part the district court's decision denying Smith's § 2254 petition for a writ of habeas corpus. We REMAND with instructions to grant a conditional writ vacating Smith's death sentence and remanding to the State.
The Supreme Court formerly employed the phrase "mentally retarded," but now "uses the term 'intellectual disability' to describe the identical phenomenon," noting "[t]his change in terminology is approved and used in the latest edition of the Diagnostic and Statistic Manual of Mental Disorders." Hall v. Florida,
As we have previously observed, there is "some possible tension between" the language in Richter requiring federal habeas courts to grant AEDPA deference to the adjudication of claims, not arguments, and "the approach of Wiggins and its progeny where" we deny AEDPA deference to the "portion of a Strickland claim ... not reached by a state court." Grant,
Moreover, Richter establishes only a rebuttable presumption that the state court has adjudicated a claim, or portions of that claim. See Wilson v. Sellers, --- U.S. ----,
Because the law of our circuit clearly states that a sufficiency of evidence challenge necessarily "presents a mixed question of law and fact," Hooks,
In Grant, the majority concluded we may not sua sponte deny AEDPA deference when the OCCA purportedly "misunderstood" petitioner's argument.
Atkins is thus consistent with other areas of the law concerning medical diagnoses, which place similar emphasis on expert testimony. For example, the Supreme Court has recognized the importance of experts in diagnosing insanity for a defense in a criminal trial. Ake v. Oklahoma,
We cite to the Tenth Edition as the current AAMR at the time of Smith's Atkins trial in 2004.
Smith also attempts to present scores of 55 (WAIS-III) and 55 (WAIS-IV) obtained by Drs. Hall and Ruwe in 2005 and 2010, respectively. But these scores were obtained after Smith's Atkins trial, and were thus not presented to the OCCA. Under AEDPA, our "review is limited to the record that was before the state court," Pinholster,
And experts on both sides believed Smith to be intellectually disabled before Atkins was decided. Although our opinion on Smith's first habeas petition concerned mitigation evidence rather than Smith's intellectual disability, we noted the strong evidence of his intellectual disability: "Smith is completely illiterate. Even the State's experts and prison doctors determined ... Smith's IQ to be in the mentally retarded or borderline mentally retarded range. His understanding and his emotional development and his ability to relate all seem to be fairly similar to what we would perceive to be a 12-year-old-child." Smith v. Mullin,
Dr. Hopewell addressed the discrepancy between the scores of 55 that Dr. Call and Dr. Hopewell obtained and the 65 Dr. Smith obtained, testifying that the scores are consistent because Dr. Smith administered the older version of the WAIS assessment that would have inflated Smith's score pursuant to the Flynn effect. As we explained in Hooks, under the Flynn effect, "if an individual's test score is measured against a mean of a population sample from prior years, then his score will be inflated in varying degrees (depending on how long ago the sample was first employed) and will not provide an accurate picture of his IQ."
And we consider the reliability of a particular IQ assessment when reviewing a sufficiency of evidence challenge under AEDPA. See Hooks,
Because we conclude the OCCA's holding that Smith failed to meet the intellectual functioning prong constitutes a "decision that was based on an unreasonable determination of the facts," § 2254(d)(2), we have necessarily concluded that Smith has carried his Jackson burden. A reasonable jury would have been compelled to find that Smith satisfied the intellectual functioning Murphy prong. See Hooks,
Although Dr. Call heavily criticized Dr. Hopewell's administration of the Vineland test directly to Smith, rather than a caretaker, it remains the only formal assessment of adaptive functioning conducted at the time of Smith's Atkins trial. And, as Dr. Hopewell explained, his analysis of Smith's deficits in adaptive functioning was not wholly reliant on the Vineland assessment, because he determined many of Smith's deficits to be manifest without testing, and thus "pathological." Dr. Hopewell also made efforts to independently verify or corroborate Smith's deficits by speaking with his nurse, prison guards, and his attorneys.
The testimony of Dr. Call, the State's primary expert witness, provides no such basis. Dr. Call acknowledged that the intellectually disabled can lie, hold a job, work hard, drive, cook, clean, use a telephone, marry, and love. To the extent the State would rely upon Dr. Call's testimony to refute Smith's showing of deficits in adaptive function, Dr. Call explicitly acknowledged that he did not assess Smith using any "standardized instrument," and could therefore not definitively testify to Smith's deficits in adaptive functioning.
We also need not address Smith's cumulative error argument for purported aggregated constitutional violations. "A cumulative-error analysis merely aggregates all the errors that individually have found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Hanson v. Sherrod,
Smith asserts on appeal that we may consider the affidavits of trial and appellate counsel because the OCCA never adjudicated Smith's allegations of deficient performance. This assertion fails for the same reason as Smith's efforts to free this claim from the confines of AEDPA deference: the OCCA's rejection of Smith's characterization of his claim does not preclude it from adjudicating that claim on the merits. And the OCCA plainly did adjudicate this claim on the merits, holding that Smith failed to satisfy either prong of the Strickland analysis. OCCA Resentencing and Competency Op. at 9-10.
Moreover, even if Smith's counsel performed deficiently, Smith fails to demonstrate the OCCA's prejudice determination was unreasonable. Smith contends the video renders obvious his humanity and intellectual disability, and emphasizes the uniquely persuasive nature of video evidence. "The likelihood of a different result must be substantial, not just conceivable." Richter,
Because we reject as unmeritorious Smith's ineffective assistance claim, we also reject as unnecessary Smith's request for an evidentiary hearing on the question.
Reference
- Full Case Name
- Roderick L. SMITH v. Tommy SHARP, Interim Warden, Oklahoma State Penitentiary
- Cited By
- 18 cases
- Status
- Published