PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARICK DEMORRIS WALKER,
Petitioner-Appellant,
v.
No. 06-23
LORETTA K. KELLY, Warden,
Sussex I State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Senior District Judge.
(1:03-cv-00764-CMH)
Argued: September 22, 2009
Decided: January 27, 2010
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Chief Judge Traxler joined. Judge Gregory
wrote a separate opinion concurring in part and dissenting in
part.
COUNSEL
ARGUED: Jody Manier Kris, WILMERHALE, Washington,
D.C., for Appellant. Steven Andrew Witmer, OFFICE OF
2 WALKER v. KELLY
THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: Amy Oberdorfer Nyberg,
Susan S. Friedman, Jeremy D. Dresner, WILMERHALE,
Washington, D.C., for Appellant. Robert F. McDonnell,
Attorney General of Virginia, Jerry P. Slonaker, Senior Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
OPINION
SHEDD, Circuit Judge:
In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme
Court held that the Eighth Amendment prohibits the execution
of mentally retarded persons. Relying on Atkins, Virginia cap-
ital inmate Darick Demorris Walker filed a petition for federal
habeas corpus relief seeking to prevent his execution. Finding
that Walker failed to prove that he is mentally retarded under
Virginia law,1 the district court denied the petition, and he
now appeals. For the following reasons, we affirm the judg-
ment of the district court.
I
In 1998, the Commonwealth of Virginia convicted Walker
of capital murder for the killings of two men within a three-
year period. Walker was sentenced to death, and his convic-
tion and capital sentence were affirmed. Walker v. Common-
wealth, 515 S.E.2d 565 (Va. 1999), cert. denied, 528 U.S.
1125 (2000). The underlying facts of his crimes, which are
not pertinent to this appeal, are set forth in the state supreme
court’s opinion. See 515 S.E.2d at 568-69.
1
"While Walker’s claim ultimately derives from his rights under the
Eighth Amendment, whether he is mentally retarded is governed by Vir-
ginia law." Walker v. True, 399 F.3d 315, 319 (4th Cir. 2005) ("Walker
v. True II").
WALKER v. KELLY 3
After unsuccessfully pursuing state post-conviction relief,
Walker filed the first of two petitions for habeas corpus relief
in the district court. The claims involved in Walker’s first
habeas petition are not before us in this appeal. See Walker v.
Kelly, No. 08-11 (4th Cir. Dec. 16, 2009) (affirming the
denial of Walker’s first habeas petition).
While Walker’s first habeas petition was pending in the
district court, the Supreme Court decided Atkins. Concluding
that a national consensus had developed against the execution
of the mentally retarded, the Court held that the Eighth
Amendment bars their execution. In doing so, the Court
noted:
To the extent there is serious disagreement about the
execution of mentally retarded offenders, it is in
determining which offenders are in fact retarded. . . .
Not all people who claim to be mentally retarded
will be so impaired as to fall within the range of
mentally retarded offenders about whom there is a
national consensus.
Atkins, 536 U.S. at 317. However, the Court "did not provide
definitive procedural or substantive guides for determining
when a person who claims mental retardation will be so
impaired as to fall" within the class of defendants ineligible
for capital punishment. Bobby v. Bies, 129 S.Ct. 2145, 2150
(2009) (internal punctuation omitted). Instead, the Court
expressly left to the states the "‘task of developing appropriate
ways to enforce the constitutional restriction upon [their] exe-
cution of sentences.’" Atkins, 536 U.S. at 317 (quoting Ford
v. Wainwright, 477 U.S. 399, 405 (1986)). "States . . . have
responded to that challenge by adopting their own measures
for adjudicating claims of mental retardation." Schriro v.
Smith, 546 U.S. 6, 7 (2005).
The Virginia General Assembly responded to Atkins by
enacting a statutory scheme to determine capital defendants’
4 WALKER v. KELLY
claims of mental retardation. Pertinent to this case, the Gen-
eral Assembly mandated that a capital defendant has the bur-
den of proving mental retardation by a preponderance of the
evidence, Va. Code § 19.2-264.3:1.1(C), and it defined the
term "mentally retarded" as:
[A] disability, originating before the age of 18 years,
characterized concurrently by (i) significantly subav-
erage intellectual functioning as demonstrated by
performance on a standardized measure of intellec-
tual functioning administered in conformity with
accepted professional practice, that is at least two
standard deviations below the mean and (ii) signifi-
cant limitations in adaptive behavior as expressed in
conceptual, social and practical adaptive skills.
Va. Code § 19.2-264.3:1.1(A). For a capital defendant (such
as Walker) who had completed his direct appeal and state
habeas proceeding as of the effective date of the legislation,
the General Assembly specified that "he shall not be entitled
to file any further habeas petitions in the [Virginia] Supreme
Court and his sole remedy shall lie in federal court." Va. Code
§ 8.01-654.2.
Walker initially presented his Atkins claim in his appeal
from the denial of his first federal habeas petition. Construing
his Atkins claim in that appeal as a motion for authorization
to file a successive habeas corpus petition, we granted Walker
authorization. See Walker v. True, 67 Fed. Appx. 758, 770-71
(4th Cir.) ("Walker v. True I"), vacated on other grounds, 540
U.S. 1013 (2003). Walker then filed his second federal habeas
petition (which is now before us), and the Commonwealth
moved to dismiss that petition. The district court granted the
Commonwealth’s motion and entered judgment against
Walker.
On appeal, we vacated the judgment, concluding that the
district court erred by dismissing the petition without holding
WALKER v. KELLY 5
an evidentiary hearing; consequently, we remanded the case
for an evidentiary hearing to address whether Walker is men-
tally retarded under Virginia law. See Walker v. True II, 399
F.3d at 327. However, although we ruled in Walker’s favor
concerning his right to have an evidentiary hearing, we
rejected his contention that he was entitled to have a jury
decide whether he is mentally retarded. As we explained:
[T]he portion of the Virginia statute that refers to a
jury determination does so in the context of the
appropriate procedure at sentencing in state court. It
does not bear on the appropriate federal procedure
governing Walker’s Eighth Amendment claim that is
based, in part, upon Virginia’s definition of mentally
retarded.
399 F.3d at 324-25.
On remand, the district court held a multi-day evidentiary
hearing without a jury, during which the parties introduced a
substantial amount of evidence on the issue of Walker’s men-
tal retardation. This evidence included Walker’s scores on
various standardized tests; documentary evidence from
school, prison, and medical records; and declarations from his
family, acquaintances, and fellow inmates. The court also
heard testimony from several witnesses, including designated
experts who testified on the issue of Walker’s mental retarda-
tion. Eventually, the court denied Walker’s petition. This
appeal followed.
II
In accordance with Virginia law, Walker presented his
Atkins claim only in federal court; therefore, the standard of
review mandated by AEDPA does not apply. See Walker v.
True II, 399 F.3d at 319. Instead, we review the district
court’s legal conclusions de novo and its factual findings for
clear error. Green v. Johnson, 515 F.3d 290, 301 (4th Cir.),
6 WALKER v. KELLY
cert. denied, 128 S. Ct. 2999 (2008). Because the determina-
tion of mental retardation involves a question of fact, Atkins
v. Commonwealth, 631 S.E.2d 93, 98 (Va. 2006), we review
the district court’s finding that Walker is not mentally
retarded for clear error, Holladay v. Allen, 555 F.3d 1346,
1353 (11th Cir. 2009). When we review factual findings
under this standard,
Our scope of review is narrow; we do not exercise
de novo review . . . or substitute our version of the
facts for that found by the district court. Instead, "[i]f
the district court’s account of the evidence is plausi-
ble in light of the record viewed in its entirety, the
court of appeals may not reverse it even though con-
vinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently." Thus,
facts found by the district court are conclusive on
appeal "unless they are plainly wrong." A factual
finding by the district court may be reversed only if,
"although there is evidence to support it, the review-
ing court on the entire evidence is left with the defi-
nite and firm conviction that a mistake has been
committed."
Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir. 2006) (en
banc) (citations omitted).
A.
To prevail on his Atkins claim under Virginia law, Walker
must meet the comprehensive definition of the statutory term
"mentally retarded." Green, 515 F.3d at 298. Thus, he must
prove by a preponderance of the evidence that he has a dis-
ability that originated before the age of 18, and that the dis-
ability is characterized by (1) significantly subaverage
intellectual functioning as demonstrated by performance on a
standardized measure of intellectual functioning administered
in conformity with accepted professional practice, that is at
WALKER v. KELLY 7
least two standard deviations below the mean ("the I.Q.
prong") and (2) significant limitations in adaptive behavior as
expressed in conceptual, social, and practical adaptive skills
("the adaptive prong"). Although Walker devotes much of his
appeal to the district court’s analysis of the I.Q. prong, it is
unnecessary for us to address those arguments because we
conclude that the court did not clearly err in rejecting his
claim on the adaptive prong. See Green, 515 F.3d at 301 (rec-
ognizing that the failure to prevail on the adaptive prong nec-
essarily defeats an Atkins claim).
As noted, the adaptive prong focuses on whether a person
can prove "significant limitations in adaptive behavior" and it
measures such behavior by looking to the person’s concep-
tual, social, and practical adaptive skills. Conceptual adaptive
skills "involve skills pertaining to language, reading and writ-
ing, money concepts, and self-direction;" social adaptive
skills "are measured by interpersonal skills and responsibility,
self-esteem, gullibility and naivete, and ability to follow rules
and obey laws;" and practical adaptive skills "involve activi-
ties relevant to daily living, occupational skills, and mainte-
nance of a safe environment." Green, 515 F.3d at 302.2
During the evidentiary hearing the parties presented a sub-
stantial amount of evidence pertaining to Walker’s adaptive
behavior. We now turn to a brief summary of that evidence.
(1)
As evidence of his conceptual limitations, Walker pointed
to his difficulties reading and writing. He presented evidence
that "he never reads or looks at books or magazines," J.A.
310, and he also claimed that he relies on other inmates to
help him read, write, and fill out forms. Moreover, affidavits
from family members note that Walker would ask others to
2
These definitions come from the American Association of Mental
Retardation’s standards for measuring adaptive skills. See Green, 515 F.3d
at 302.
8 WALKER v. KELLY
read letters to him, and his brother’s affidavit related a partic-
ularly telling moment: "When I was in Ninth grade and Dar-
ick was seventeen years old, I remember coming back from
school to find Darick at home with a bunch of blank job appli-
cations. I had to fill them out for him." J.A. 159.
Walker also pointed to his inability to handle money and
his heavy reliance on others to get by in the world. His family
members noted that, while growing up, Walker never knew
what to do with money. Moreover, his fellow inmates claimed
that he relies on them for help in maintaining his account with
the prison commissary. His experts also observed that "[a]fter
leaving home, Mr. Walker consistently relied on others to
help him negotiate the basics of everyday life," J.A. 378, and
that even in prison he is dependent on others to "support and
intercede on his behalf," J.A. 313. There was also evidence
that Walker relies on others for help in seeking medical atten-
tion.
Finally, Walker pointed to evidence of his lack of direction
and inability to deal with unstructured time. He claimed that
he lacks interest in any activities, other than watching televi-
sion. During interviews with his experts, Walker could not
state who the President of the United States was, had not
heard of Hurricane Katrina (which had just recently
occurred), and misstated his age as 32 when he had in fact
turned 33 two months prior.
The Commonwealth took a different tack with respect to
Walker’s conceptual skills. While admitting that Walker pos-
sessed conceptual skills that are "below average," the Com-
monwealth’s expert, Dr. Hagan, opined that these limitations
"did not significantly impair his capacity to adapt to the
requirements of life including transportation, use of communi-
cation technology, planning, scheming, dealing with reason-
ably foreseeable contingencies, self advocacy, self-protective
mechanisms, and selective portrayal of facts and circum-
stances." J.A. 977. In support of this assertion, the Common-
WALKER v. KELLY 9
wealth and Dr. Hagan pointed to several events that purport
to showcase Walker’s conceptual skills.
In particular, the Commonwealth focused on Walker’s
extensive criminal history as evidencing his conceptual abili-
ties. The Commonwealth referenced a fraudulent scheme con-
cocted by Walker, whereby he arranged to sell a vehicle to an
individual, told the individual that some money was needed
to correct problems with the title, and absconded with the
money. Dr. Hagan opined:
This conduct clearly demonstrates Mr. Walker’s
capacity to develop a plan, consider various contin-
gencies in connection with that plan, promote the
plan to an unsuspecting person, and pull off the ruse
by affecting [sic] his departure without being
detected at least for the time being. He not only had
to put the plan together, but also had to fool his vic-
tim into going along with the plan without arousing
suspicion. This reflects considerable conceptual
capabilities.
J.A. 978.
Dr. Hagan also considered how Walker reacted when he
was being investigated for an armed robbery and drew the fol-
lowing conclusions:
Mr. Walker gave a statement to law enforcement on
3/2/93 (age 20) in connection with the Virginia
Beach Armed Robbery charge. Mr. Walker had suf-
ficient conceptual grasp of his situation to deny any
involvement in or knowledge of the offense. This
was designed to protect his liberty interest. After [a
law enforcement official] advised Mr. Walker of
additional information provided by a witness, Mr.
Walker then made an adjustment in his story to deal
with this contingency. This reflects a degree of exec-
10 WALKER v. KELLY
utive functioning and conceptual reasoning in that
Mr. Walker had entered the interview with one strat-
egy in mind and then changed that strategy based on
immediately unfolding circumstances. He then gave
a written statement which, although marked by mis-
spelling and grammatical error, reflected a linear
thought process with no oddities or illogical reason-
ing. The statement, which if believed, would have
furthered his liberty interest.
J.A. 985. The Commonwealth also introduced court tran-
scripts that contain examples of Walker testifying as to histor-
ical events and even correcting prosecutors as to the timeline
of his various arrests.
In addition, the Commonwealth presented evidence of
Walker’s ability to read and write. For example, the Com-
monwealth provided several examples of Walker’s writing
ability, including prison forms and the written statement that
he prepared in connection with an armed robbery charge. Dr.
Hagan noted Walker’s admission that he would use a fellow
inmate to write letters, not because "I cannot find the words,"
but because "it’s easier for him to do it." J.A. 979. Thus,
according to Dr. Hagan, Walker’s reason for having others
write letters for him was less a matter of inability and more
a matter of convenience.
(2)
In attempting to prove significant limitations in his social
skills, Walker presented evidence that he is a loner who has
always had difficulties maintaining appropriate relationships
with his peers. In particular, Walker presented school records
replete with observations of his social and behavioral difficul-
ties. His records describe his behavior variously as "aberrant,"
"inappropriate," "disruptive," and "deviant." J.A. 607, 609,
613, 1073. One report from Walker’s school years notes that
he would "threaten[] smaller children and tease[] other stu-
WALKER v. KELLY 11
dents cruelly." J.A. 607. Walker also presented evidence that
this anti-social behavior continues to this day, in the form of
affidavits from fellow inmates that he will flood his cell when
he gets upset.
However, the Commonwealth presented its own evidence
suggesting that Walker’s deficits in social skills are not signif-
icant. First, although Walker’s school records generally indi-
cate his difficulties getting along with peers at school, other
records from the same time period suggest that he was capa-
ble of developing and maintaining social relationships outside
of the classroom. For example, his mother’s responses to a
1987 Virginia Department of Education Social Behavior
Checklist indicate that Walker had "plenty of friends" and got
along well with adults. J.A. 1064. Among his favorite activi-
ties, his mother listed "sports, church activities and talking to
adults." J.A. 1067. Moreover, a 1983 psychiatric evaluation
noted:
There is no history of school avoidance or separation
difficulties. Patient states that in classroom he is
made fun of and called "retarded" by his classmates.
He states that they get jealous when he makes 100’s
and they get C’s and D’s on their tests. He states that
they will not let him play any games with them and
so then goes to play with the sixth graders. He and
his mother both report that he is able to get along
with neighborhood children without problems. He
and his mother both report that he is the "class-
clown" and this may bring some attention to him in
addition to his hyperactive type behavior in the
classroom and might set him up to be the scape-goat.
J.A. 1076-77. Further, some of Walker’s school records indi-
cate his ability to maintain appropriate social intercourse.
Classroom reviews from 1987 note his "very appropriate
classroom behavior" and his ability to "get[] along with his
peers." J.A. 1097.
12 WALKER v. KELLY
Additionally, Dr. Hagan pointed to reports from prison offi-
cials of Walker’s behavior as indicative of social skills. Prison
officials reported that Walker never had difficulty communi-
cating his needs and interests and was cordial and conversa-
tional. Prison mental health services screenings of Walker
note that he was clean, cooperative, and capable of engaging
in "extensive conversations about family [and] security com-
plaints." J.A. 1435. His behavior during these screenings was
variously described as "polite" and "cooperative." J.A. 1435,
1438, 1441, 1444. Moreover, Dr. Hagan noted Walker’s abil-
ity to ingratiate himself to women and establish intimate rela-
tionships with them in a relatively short period of time as
evidence of his social skills.
(3)
Walker presented evidence suggesting that he suffers from
limitations in his practical adaptive skills. For example, he
pointed to evidence that he is incapable of performing the
basic tasks incidental to an independent life, such as renting
an apartment, managing money, and paying bills. His moth-
er’s affidavit portrays him as a man who "just wouldn’t have
been able to read and understand a bill or a lease," J.A. 156,
and his brother averred that Walker "never knew how to han-
dle money," J.A. 159. The Commonwealth’s expert agreed
that there is no evidence that Walker ever had a bill in his
name.
Walker also introduced evidence that he was unable to
obtain a driver’s license and was wholly dependent on others
for transportation. His brother averred that Walker "never had
a driver’s license. I never saw him take a public bus. If Darick
wanted to get somewhere, me or another relative would have
to drive him." J.A. 159. Another relative stated that Walker
"had a tough time understanding easy directions. I used to
work straight down the street from my apartment. I told Dar-
ick exactly how to get from one place to the other, but he
WALKER v. KELLY 13
couldn’t find his way home even though it was right down the
street." J.A. 864.
Finally, Walker put forth evidence that he has a very lim-
ited job history and was unable to maintain steady employ-
ment prior to his incarceration. According to one of his
experts, Walker "did not have a regular job or even stable
part-time employment." J.A. 311. Walker’s expert considered
these facts important because "[a] critical adaptive behavior
domain for adults is employment and self-support." J.A. 310.
On the other hand, the Commonwealth presented a consid-
erable amount of evidence illustrating Walker’s practical
skills. For example, the Commonwealth presented Walker’s
own testimony from his 1998 trial for armed robbery. That
testimony included the following exchanges:
Q: And when you were stopped by Officer Hamil-
ton, you were coming out of 3404 Howard Road?
A: Yes, I was, that’s my apartment number.
***
The Court: Mr. Walker, how did you get from Rich-
mond down to Chesapeake?
Witness Derrick [sic] Walker: Well, sir, um, the per-
son’s car that I had, I returned the car, and that per-
son wanted to know why did I want a ride to the
Tidewater area. I explained to that person what I had
did. I just didn’t want to take the car and go to the
Tidewater area and then have that person without a
car, so she gave me a ride and dropped me off at my
brother’s house.
J.A. at 1296, 1300. According to Dr. Hagan, these exchanges
showcased Walker’s ability to remember addresses, his ability
14 WALKER v. KELLY
to make his way from one place to another, and his ability to
drive. Dr. Hagan also pointed to records from Walker’s case
file on his carnal knowledge conviction that relate instances
of Walker driving a car, using a pager, and renting a hotel
room.
In addition, Dr. Hagan testified as to his interviews with
one of Walker’s girlfriends, Kelly Walker White. Ms. White
related that Walker shared an apartment with her for a period
of time, during which Walker babysat her son, cared for the
apartment, and cooked from scratch. During the evidentiary
hearing, Dr. Hagan gave the following testimony:
And it wasn’t just that he took on these tasks, he did
them effectively, he did them repeatedly, he did
them consistently. She would come home from
work, the child was clean, was dressed, was pow-
dered, bathed and not with a whimper of discontent
from the child, and dinner was ready. And she was
very pleased to have his able assistance.
J.A. 1876.
Moreover, Dr. Hagan noted that, with respect to Walker’s
employment history, there was no evidence that Walker was
ever discharged from employment due to an inability to per-
form the duties of the job. In his report, Dr. Hagan observed:
Although his experts declare that Mr. Walker was
not able to secure and maintain a job, his own state-
ment is that he found several jobs, but quit them at
his own election, just as he quit Job Corps. He left
because he did not have family support. . . . He said
he left Long John Silver in Richmond after 7-8
months because he wanted to go home and help his
mother who had an unconfirmed heart condition.
This was voluntary unemployment.
WALKER v. KELLY 15
J.A. 1018. Dr. Hagan went on to explain that "[Walker’s]
elected lifestyle, including chronic involvement in criminal
activities, did not lend itself to mainstream employment, but
there was no indication of an actual inability in that regard."
J.A. 1019-20.
Finally, there is evidence in the record tending to show that
Walker is able to adequately care for himself. For example,
Walker washes his own clothing in prison in order to avoid
skin irritation which he attributed to the soap used in the
prison laundry. Dr. Hagan’s report also relied on statements
from prison officials that they had never observed hygiene
problems with regard to Walker and that Walker had never
had any trouble communicating his needs and concerns to
prison officials.
B.
Ultimately, four experts testified that Walker’s skills limita-
tions are significant, basing their conclusions on school and
medical records, clinical interviews, prior psychological eval-
uations, declarations from individuals familiar with Walker,
and other records concerning his background, as well as the
results of a standardized measure called the Adaptive Behav-
ior Assessment System, second edition ("ABAS-II"). In con-
trast, the Commonwealth’s expert, Dr. Hagan, testified that
Walker does not suffer from significant limitations in his
adaptive behavior. He based his conclusions on "[a] clinical
interview with a collateral informant, review of interview
summaries by trial defense investigators and mitigation spe-
cialist, in-person observation of Walker’s interviews with
three psychologists on two occasions, numerous reports of
psychological testing including IQ scores as well as [a]
review of educational, correctional and vocational records."
J.A. 976. In his report, Dr. Hagan also concluded that Walk-
er’s experts’ reliance on the ABAS-II to determine Walker’s
adaptive behavior was not "sound practice." J.A. 977.
16 WALKER v. KELLY
Apparently crediting Dr. Hagan’s testimony over Walker’s
experts’ testimony, the district court concluded that Walker
failed to meet his burden of showing significant limitations in
his adaptive behavior:
Petitioner has failed to show by a preponderance of
the evidence that he has "significant limitations in
adaptive behavior as expressed in conceptual, social,
and practical adaptive skills." See Va. Code Ann.
§ 19.2-264.3:1.1(A). While Petitioner has presented
evidence that he suffers from below average mental
intelligence, struggles to perform some basic activi-
ties, exhibits anti-social behavior, and obtains finan-
cial support from others, Petitioner has not shown by
a preponderance of the evidence that he has signifi-
cant limitations in adaptive behavior. Petitioner has
committed various crimes requiring the ability to
relate to others, associated himself with women on a
personal and intimate level, engaged in homemaking
activities, seduced under-aged girls, used others to
help him avoid authorities, independently invoked
his Miranda rights, used his brother’s identity to
obtain a driver’s license, and obtained goods for
himself while in prison. Therefore, while [P]etitioner
has below average mental intelligence and some lim-
itations in adaptive behavior, the Court finds that
Petitioner has not shown by a preponderance of the
evidence that he is mentally retarded as defined by
Virginia law.
J.A. 2370-71.3
3
That the district court set forth these factual findings under the heading
"Conclusions of Law" is immaterial to our review. See Tri-Tron Int’l v.
Velto, 525 F.2d 432, 435 (9th Cir. 1975) ("The fact that the district court
intermingled some of its findings of fact with its conclusions of law is of
no significance. We look at a finding or a conclusion in its true light,
regardless of the label that the district court may have placed on it.").
WALKER v. KELLY 17
In challenging these findings as being clearly erroneous,
Walker argues that the district court’s holding "could only
result from a complete failure to consider his overwhelming
proof, appropriately weigh it, and make specific findings to
explain the basis for its ruling." Brief for Appellant Darick
Demorris Walker, at 16. He further contends that the court’s
"general findings . . . lack evidentiary support and are consis-
tent with the definition of mental retardation." Id. We find no
merit to these contentions.
As we have summarized above, the district court was pre-
sented with conflicting evidence concerning Walker’s adap-
tive skills, and it had the opportunity to assess the various wit-
nesses who testified. Unfortunately for Walker, the court was
not persuaded by his evidentiary presentation, and it con-
cluded that he failed to meet his burden of proving the neces-
sary fact that he suffers from significant limitations in
adaptive behavior.4 Although the court’s finding in this regard
may not be compelled by the evidence in the record, there is
certainly evidence in the record to support it. Applying our
limited standard of appellate review, we cannot conclude on
the record presented that the court clearly erred. See Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)
("Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly errone-
ous."); see e.g., Green, 515 F.3d at 301-03 (affirming district
court’s finding that the petitioner failed to prove significant
4
To the extent that Walker challenges the adequacy of the district
court’s findings, we find no error. The district court listed the characteris-
tics that it felt militate against finding that Walker met his burden. The
court noted Walker’s criminal history, his social relationships, his practi-
cal skills, and his ability to navigate the prison environment, among other
evidence, as supporting its judgment. Moreover, the court heard from
competing experts, and its decision suggests that it credited the testimony
of the Commonwealth’s expert over those of Walker.
18 WALKER v. KELLY
limitations in adaptive behavior under Virginia law notwith-
standing conflicting evidence).5
III
Walker also claims that he was entitled to a jury determina-
tion of his mental retardation and that the district court erred
by failing to empanel a jury. Although we previously rejected
this claim in Walker II, he contends that our prior decision is
erroneous based on what he perceives to be an intervening
change in the law. We disagree.
Section 8.01-654.2 of the Virginia Code sets forth the
framework for the resolution of Atkins claims filed by peti-
tioners, like Walker, who were sentenced to death before
April 29, 2003. It provides:
Notwithstanding any other provision of law, any per-
son under sentence of death whose sentence became
final in the circuit court before April 29, 2003, and
who desires to have a claim of his mental retardation
presented to the Supreme Court, shall do so by one
of the following methods: (i) if the person has not
commenced a direct appeal, he shall present his
claim of mental retardation by assignment of error
and in his brief in that appeal, or if his direct appeal
is pending in the Supreme Court, he shall file a sup-
5
We also are unpersuaded by Walker’s contention that the judgment
must be reversed because mentally retarded individuals are capable of
exhibiting many of the skills that the district court relied on when it made
its finding that he is not mentally retarded. As noted, Walker bore the bur-
den of proving significant limitations in adaptive behavior, and he unsuc-
cessfully attempted to meet that burden during the evidentiary hearing. As
we view his argument, he now implicitly argues that the Commonwealth
had some obligation to establish that he does not suffer from significant
limitations in adaptive behavior. However, we rejected that view in
Walker II. See 399 F.3d at 326 ("The state does not have a corollary duty
to prove that a defendant is ‘not retarded. . . .’").
WALKER v. KELLY 19
plemental assignment of error and brief containing
his claim of mental retardation, or (ii) if the person
has not filed a petition for a writ of habeas corpus
under subsection C of § 8.01-654, he shall present
his claim of mental retardation in a petition for a writ
of habeas corpus under such subsection, or if such a
petition is pending in the Supreme Court, he shall
file an amended petition containing his claim of
mental retardation. A person proceeding under this
section shall allege the factual basis for his claim of
mental retardation. The Supreme Court shall con-
sider a claim raised under this section and if it deter-
mines that the claim is not frivolous, it shall remand
the claim to the circuit court for a determination of
mental retardation; otherwise the Supreme Court
shall dismiss the petition. The provisions of §§ 19.2-
264.3:1.1 and 19.2-264.3:1.2 shall govern a determi-
nation of mental retardation made pursuant to this
section. If the claim is before the Supreme Court on
direct appeal and is remanded to the circuit court and
the case wherein the sentence of death was imposed
was tried by a jury, the circuit court shall empanel a
new jury for the sole purpose of making a determina-
tion of mental retardation.
If the person has completed both a direct appeal and
a habeas corpus proceeding under subsection C of
§ 8.01-654, he shall not be entitled to file any further
habeas petitions in the Supreme Court and his sole
remedy shall lie in federal court.
Va. Code Ann. § 8.01-654.2.
We explained in Walker II that on its face "the Virginia
statute does not provide for a jury for claims raised in federal
court." 399 F.3d at 324. We also held that § 19.2-
264.3:1.1(C), which provides that "in any case in which the
offense may be punishable by death and is tried before a jury,
20 WALKER v. KELLY
the issue of mental retardation . . . shall be determined by the
jury as part of the sentencing proceeding," does not entitle
Walker to a jury determination because that section’s refer-
ence to a jury determination is "in the context of the appropri-
ate procedure at sentencing in state court." Id. at 324-25.
Walker now argues that a subsequent Virginia case, Burns
v. Warden of Sussex I State Prison, 609 S.E.2d 608 (Va.
2005), constitutes an intervening change in the law that estab-
lishes his right to a jury. The issue in Burns was whether the
jury provisions of § 19.2-264.3:1.1 apply to a determination
of mental retardation when the Atkins claim is brought in a
state habeas corpus proceeding. Specifically, in Burns the
Commonwealth argued that § 8.01-654.2 only provides for a
jury determination of an individual’s mental retardation claim
when that claim is raised to the Virginia Supreme Court on
direct appeal. 609 S.E.2d at 610. The Virginia Supreme Court
rejected that argument, however, interpreting § 8.01-654.2 as
requiring that the jury provisions of § 19.2-264.3:1.1 "apply
whether the claim is raised in a direct appeal or as a habeas
corpus petition." 609 S.E.2d at 610.
Walker claims that Burns has somehow clarified that the
jury provisions of § 19.2-264.3:1.1 are a substantive compo-
nent of his rights under Atkins that must be applied to his
case. We disagree. Burns squarely holds that the jury provi-
sions of § 19.2-264.3:1.1 apply to mental retardation claims
that proceed in state court, regardless of whether they are
raised on direct review or in a state habeas proceeding. This
is wholly consistent with the language of § 8.01-654.2, which
expressly states that "[t]he provisions of §§ 19.2-264.3:1.1
and 19.2-264.3:1.2 shall govern a determination of mental
retardation made pursuant to this section" — referencing
claims brought in state court. Burns does not address the lan-
guage that our panel found to be controlling when Walker
originally raised this claim — specifically, the provision pro-
viding that: "If the person has completed both a direct appeal
and a habeas corpus proceeding under subsection C of § 8.01-
WALKER v. KELLY 21
654, he shall not be entitled to file any further habeas petitions
in the Supreme Court and his sole remedy shall lie in federal
court." § 8.01-654.2.
In short, Burns merely clarifies that the jury provisions of
§ 19.2-264.3:1.1 apply to all Atkins claims brought in a state
court proceeding, both on direct review and state habeas
review. This does not affect our prior determination that
Walker is not entitled to a jury in this case because he is in
federal court. Accordingly, the district court did not err by
refusing to empanel a jury to determine Walker’s mental
retardation claim.
IV
Based on the foregoing, we affirm the judgment of the dis-
trict court.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting
in part:
In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the
Supreme Court held that the imposition of the death penalty
on individuals with mental retardation violates the Eighth
Amendment. While the Supreme Court "le[ft] to the States the
task of developing appropriate ways to enforce the constitu-
tional restriction upon their execution of sentences," id. at 317
(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17
(1986)) (internal quotations omitted), it surely set some floor
for determining who is mentally retarded.
The Supreme Court found that "[b]ecause of their disabili-
ties in areas of reasoning, judgment, and control of their
impulses, . . . [mentally retarded persons] do not act with the
level of moral culpability that characterizes the most serious
adult criminal conduct. Moreover, their impairments can jeop-
22 WALKER v. KELLY
ardize the reliability and fairness of capital proceedings
against mentally retarded defendants." Id. at 306-07. Thus,
there is a substantive component of the Eighth Amendment
that must not be eviscerated by judicial interpretation of state
definitions of mental retardation. Yet, today’s result allows
the Commonwealth to defeat any mental retardation claim, no
matter how compelling in its entirety, by cherry picking evi-
dence relevant to a single component of Virginia’s definition.
This does satisfy Atkins’ mandate.
While I agree that both prongs of the Virginia definition
must be satisfied for a defendant to prove mental retardation,
I depart from the majority’s assertion that each component of
the definition may always be read in isolation. The Virginia
statute itself states that the defendant must "prov[e] that he is
mentally retarded by a preponderance of the evidence" and
not that the defendant must prove each component by a pre-
ponderance of the evidence. Va. Code Ann. § 19.2-
264.3:1.1(C) [hereinafter Section 3:1.1]. Furthermore, though
we are guided by state law, this Court has an obligation to ful-
fill the federal Supreme Court directive from Atkins that per-
sons with mental retardation shall not be executed. The spirit
of Atkins cannot be upheld by an interpretation of a mental
retardation definition that ignores vast quantities of relevant
evidence as well as blatant constitutional violations that pre-
vent a petitioner from presenting his claim. For example, it
must not be that a court tasked with following Atkins may find
it immaterial that the defendant was diagnosed as mentally
retarded by scoring more than two standard deviations below
the mean on an I.Q. test, regardless of how low the score, sim-
ply because a defendant can have intimate relations with a
woman or obtain a driver’s license.
The majority cites to our decision in Green v. Johnson, 515
F.3d 290 (4th Cir. 2008) to support its conclusion that it is
unnecessary to reach Walker’s intellectual functioning argu-
ments. In Green, we found that under Virginia law, "Green
must prove both prongs of Virginia’s statutory definition for
WALKER v. KELLY 23
mental retardation in order to establish that he is mentally
retarded." Id. at 301 (citation omitted). We then affirmed the
district court’s dismissal of petitioner’s Atkins claim based on
evidence relevant to the adaptive functioning prong of Virgin-
ia’s definition of mental retardation. Id. at 301-03.
I believe Green comes perilously close to the substantive
floor set in Atkins by seemingly analyzing the two prongs of
the Virginia definition independently.1 In Green, however, we
affirmed the dismissal of the mental retardation claim only
after finding that "the district court’s (and magistrate judge’s)
consideration of the evidence [relevant to petitioner’s adap-
tive functioning] was thorough." Id. ("The magistrate judge
set forth in detail the expert testimony presented by both sides
at the evidentiary hearing and explained its findings and con-
clusions with respect to [petitioner’s] adaptive skills."). Thus,
although close, the constitutional floor set in Atkins was pro-
tected by a thorough and complete review of petitioner’s evi-
dence of mental retardation. The same cannot be said of the
case before us now.
In this capital case, a case that has generated an appellate
record of over 2,300 pages, the district court’s opinion
spanned fewer than ten pages. In particular, the district court’s
"consideration of the evidence" on the adaptive functioning
prong in this case amounted to at most three sentences. J.A.
2370-71. Based on this record, we cannot have the degree of
confidence required to affirm the district court’s dismissal of
Walker’s Atkins claim by looking exclusively to the adaptive
functioning prong.
Furthermore, this Court in Green was not faced with seri-
ous errors by the district court that affected the petitioner’s
ability to present his mental retardation claim in the first
1
Green at least analyzes both prongs. This Court in Green, in contrast
to the majority here, undertook an analysis of the intellectual functioning
prong as an alternative basis for its holding. 515 F.3d at 300.
24 WALKER v. KELLY
instance: a blatant due process violation affecting Walker’s
ability to present evidence of significantly subaverage intel-
lectual functioning and a failure by the district court to con-
sider Walker’s evidence of generally accepted professional
practices in interpreting the results of intellectual functioning
tests. These errors cannot be harmless, as the majority finds,
when the floor set by Atkins is not secure.
Nor did we face in Green a case in which the district court
specifically failed to adhere to a previous order from this
Court. In Walker v. True II, 399 F.3d 315 (4th Cir. 2005), we
described the nature of the evidentiary hearing that Walker
should have been afforded on remand: "Walker is entitled
under law both to an evidentiary hearing in which he is
afforded an opportunity to fully develop the factual basis of
his mental retardation claim and to consideration by the
courts of all of the evidence that is relevant to that claim
under Virginia’s statutory framework." Id. at 327 (internal
citations omitted) (emphasis added). If our decision in Walker
v. True II is to have any significance, we must remand this
case so that Walker may receive the consideration to which he
is entitled.
Because I find that the district court committed clear error
by not properly considering Walker’s evidence of significant
limitations in adaptive behavior, I also consider Walker’s
claims on the intellectual functioning prong. On that prong, I
find both that the district court violated Walker’s procedural
due process rights and erred in failing to consider Walker’s
evidence of generally accepted professional practices in inter-
preting the results of intellectual functioning tests. Based on
these errors, this Court should remand for the district court to
consider all evidence relevant to Walker’s Atkins claim.
Moreover, I do not read our precedent to mean that any evi-
dence on one prong, no matter how slight, may always be
cited by the district court to preclude our review of a petition-
er’s full Atkins claim under Virginia law. Atkins requires a
reasonable appellate review to uphold the constitutional pro-
WALKER v. KELLY 25
scription of the use of capital punishment on offenders who
are mentally retarded. Thus, I respectfully dissent from sec-
tion II of this opinion.
I.
A.
On this record, I would find that the district court commit-
ted clear error by not properly considering Walker’s evidence
of significant limitations in adaptive behavior. Based on this
error alone, I believe this Court has an obligation to consider
Walker’s claim that his due process rights were violated and
his claim that the district court failed to follow this Court’s
previous decision and consider Walker’s evidence of gener-
ally accepted professional practices in interpreting intellectual
functioning tests’ results.
The majority finds that Walker’s Atkins claim fails because
Walker possesses some adaptive skills. However, the district
court made no finding that Walker was unequivocally func-
tioning at such a level that he could not be classified as a per-
son with mental retardation. The district court simply parroted
several findings of the Commonwealth’s expert that should
have been considered along with all other evidence proffered
on the issue of adaptive functioning. This three-sentence rea-
soning by the district court should not withstand any level of
scrutiny.
While the district court acknowledged that Walker "suffers
from below average mental intelligence, struggles to perform
some basic activities, exhibits anti-social behavior, and
obtains financial support from others," the court dismissed
Walker’s claim by citing evidence that he "has committed
various crimes requiring the ability to relate to others, associ-
ated with women on a personal and intimate level, engaged in
homemaking activities, seduced under-aged girls, used others
to help him avoid authorities, independently invoked his
26 WALKER v. KELLY
Miranda rights, used his brother’s identity to obtain a driver’s
license, and obtained goods for himself while in prison." J.A.
2370-71.
Although the clear error standard under which we review
the district court’s findings is quite deferential, this Court may
reverse the district court where its determination was "made
without properly taking into account substantial evidence to
the contrary." Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361
(4th Cir. 1983). Thus, the question here is whether the district
court properly took into account Walker’s expert testimony
regarding his limitations in adaptive behavior.
In its decision, the district court did not specifically discuss
any of Walker’s evidence; instead, it merely summarized the
testimony of the Warden’s expert, Dr. Hagan. On its face, this
seems like a classic "battle of the experts," and thus it would
be extremely difficult to find that the district court erred in
believing one expert’s testimony over another.2 However, the
district court did not purport to lend more credence to Dr.
Hagan’s testimony than to Walker’s experts. Rather, the court
apparently found that Dr. Hagan’s testimony somehow
negated Walker’s showing of significant limitations in adap-
tive behavior. But as Walker’s experts testified, the activities
cited by the district court are entirely consistent with mental
retardation.3 This adheres to the logic that the American Asso-
ciation on Mental Retardation ("AAMR") says one must fol-
low when applying the definition of mental retardation:
"Within an individual, limitations often coexist with
strengths." This means that people with mental retar-
dation are complex human beings who likely have
2
Indeed, this is the majority’s interpretation of the district court’s opin-
ion. Supra at 16. However, even the majority seems to assume that the
court credited Dr. Hagan’s testimony over Walker’s experts’ testimony.
3
Thus, the district court was not necessarily "presented with conflicting
evidence," as the majority states. Supra at 17.
WALKER v. KELLY 27
certain gifts as well as limitations. Like all people,
they often do some things better than other things.
Individuals may have capabilities and strengths that
are independent of their mental retardation.
AAMR, User’s Guide: Mental Retardation: Definition, Clas-
sification, and Systems of Support 8 (10th ed. 2002) (2007).
In particular, individuals with mental retardation can have
intimate relationships, perform homemaking activities, craft
simple lies, and invoke4 their Miranda rights. With regard to
the crime cited by Dr. Hagan which purportedly demonstrated
that Walker had the "ability to relate to others," Walker’s
expert testified that his execution of the scheme, including
giving the victim his phone number, did not demonstrate a
high level of cognitive or conceptual ability.
Because the district court did not properly consider Walk-
er’s evidence of significant limitations in adaptive behavior,
the district court committed clear error. This basis is sufficient
for this Court to proceed to Walker’s arguments on the intel-
lectual functioning prong. In addition, I believe that Atkins
requires more in this case than simply relying on the Com-
monwealth’s evidence of Walker’s adaptive functioning, to
the exclusion of all else, in order to dismiss Walker’s claim
of mental retardation.
B.
Because the majority relies only on the Commonwealth’s
evidence of Walker’s adaptive functioning, it fails to recog-
nize a blatant due process violation by the district court. This
constitutional violation resulted in the exclusion of two empir-
ical tests that satisfied the intellectual functioning component
of Virginia’s definition of mental retardation, thus preventing
Walker from fully developing the basis for his claim, in con-
4
In fact, the record indicates that Walker did not affirmatively invoke
his Miranda rights but rather merely remained silent.
28 WALKER v. KELLY
tradiction of our previous decision in Walker v. True II, 399
F.3d at 327.
In order to establish "significantly subaverage intellectual
functioning," Virginia requires the "administration of at least
one standardized measure generally accepted by the field of
psychological testing." Section 3:1.1(B)(1). The statute fur-
ther directs the Commissioner of Mental Health, Mental
Retardation and Substance Abuse Services (the "Depart-
ment") to "maintain an exclusive list of standardized measures
of intellectual functioning generally accepted by the field of
psychological testing." Id.
On January 4, 2005, the Department published the exclu-
sive list of standardized measures as required by Section 3:1.1
(the "January list"). It is undisputed that the January list was
in effect at the time that this Court reversed the district court’s
dismissal of Walker’s petition. Included in the January list
were three standardized tests administered to Walker: the
Comprehensive Test of Nonverbal Intelligence ("CTONI"),
the General Ability Measure for Adults ("GAMA"), and the
Wechsler-series tests.
Walker’s scores on two tests, the GAMA and CTONI, were
indisputably two standard deviations below the mean, and
both of those tests were included in the January list. Walker
relied on the January list in developing the record to support
his Atkins claim, and Walker was required to submit all expert
disclosures by September 7, 2005. The Department only pub-
lishes its list on its website, and according to Walker, the Jan-
uary list remained posted until after the commencement of
Walker’s evidentiary hearing, which began on November 1,
2005. On the first day of the hearing, Dr. James Morris, the
Director of the Office of Forensic Services for the Department
and the person with "final responsibility for what’s included
or not included on the list," J.A. 1598, testified that the
GAMA qualified as an approved measure on Virginia’s pub-
lished list. Dr. Morris also testified that the public could rely
WALKER v. KELLY 29
on the list that was published on the Department’s website,
which contained both the GAMA and the CTONI.
Then, in January 2006, after the close of the evidence, the
Warden filed a post-hearing brief. This brief referenced a new
list of I.Q. tests approved by the Department for use in capital
proceedings. That new list ("the October list") bore a date of
October 31, 2005, which was the day prior to Walker’s hear-
ing. According to Walker, neither the Warden nor Dr. Morris
disclosed the existence of the new list to the district court or
himself before this post-hearing brief. The October list did not
include either the GAMA or the CTONI as approved mea-
sures.
Following the evidentiary hearing, the district court found
that Walker could not prove that he scored two standard devi-
ations below the mean on an approved measure. In reaching
this conclusion, the district court relied on the October list and
excluded Walker’s scores on the GAMA and CTONI.
Under the Due Process Clause of the Fifth Amendment to
the United States Constitution, no person shall be "deprived
of life, liberty, or property, without due process of law." At
a minimum, procedural due process requires both fair notice
and an opportunity to be heard. Matthews v. Eldridge, 424
U.S. 319, 333 (1976); Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314-15 (1950). In order to determine
whether an individual has received fair notice, this Court
"must examine the relevant facts of each case." United States
v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997).
While "[g]enerally, ignorance of the law or a mistake of the
law is no defense," courts will determine "fair notice" by
examining whether particular persons would reasonably know
the consequences of their conduct. See id. (internal citations
and quotations omitted); see also Goodman v. United States,
151 F.3d 1335, 1337 (11th Cir. 1998) (per curiam).
This concept of fair procedure is of "special importance . . .
in the capital sentencing context." Lankford v. Idaho, 500
30 WALKER v. KELLY
U.S. 110, 125 (1991). This Circuit has impliedly recognized
this concept as well. In United States v. Barnette, 211 F.3d
803, 824 (4th Cir. 2000), this Court vacated a death sentence
where the defendant was unable to present surrebuttal evi-
dence to counter rebuttal evidence of an aggravating factor
because such an action violated the concept of "simple fair-
ness."
In the present case, the district court’s application of the
October list did not give Walker "fair notice" of the require-
ments for proving his Atkins claim, and thus violated the Due
Process Clause. First, the October list was not discovered by
the Warden until after the evidentiary hearing, and Walker
had relied on the January list in developing and presenting
evidence of mental retardation. Second, there was no evidence
in the record regarding whether the October list was in fact
published on the Department website prior to the hearing.
Without this evidence, it is unknown whether Walker would
have learned of the existence of the October list had he exam-
ined the website on that date. Indeed, Walker’s own counsel
avers that it checked the website on October 31st, and the
October list was not posted. Third, and perhaps most impor-
tantly here, Dr. Morris, who is the person with "final responsi-
bility for what’s included or not included on the list," J.A.
1598, testified during the hearing that the GAMA qualified as
an approved measure on Virginia’s published list, J.A. 1603-
04. It would be patently unfair to require Walker to conform
his evidence to a list when a representative of the Department
represented that a different test was on that list. Given this,
the district court should have at least afforded Walker the
opportunity to develop a claim of mental retardation based
upon the approved measures in the October list.
The district court excluded two of Walker’s I.Q. scores that
indisputably were two standard deviations below the mean. In
applying the October list instead of the January list without
affording Walker the opportunity to develop evidence of men-
WALKER v. KELLY 31
tal retardation in accordance with the October list, the district
court thus violated Walker’s procedural due process rights.
C.
The district court also determined that Walker failed to
show that he was mentally retarded before age eighteen. In
particular, the district court found that
[e]ach WISC-R ["Weschler Intelligence Scale for
Children-Revised"] administered to Petitioner before
the age of eighteen supports a finding that Petitioner,
while suffering from below average mental intelli-
gence, is not mentally retarded. The evidence pre-
sented by Petitioner of his below average mental
intelligence and limitations in conceptual, practical,
and social skills do not constitute mental retardation
or outweigh the results of the three WISC-R admin-
istrations in 1982, 1984, and 1987.
J.A. 2368. Apparently, the district court did not consider the
impact of the Flynn effect and Standard Error of Measure-
ment ("SEM") on the 1984 administration of the WISC-R.5
See id.
5
Dr. Daniel Reschly testified that the Flynn effect and SEM should be
considered in interpreting I.Q. scores, and thus Walker’s score of seventy-
six on the 1984 administration of the WISC-R would be within the range
of mental retardation.
I.Q. tests are almost universally scaled so that the mean for the popula-
tion is 100, with a standard deviation of fifteen. For such tests, an individ-
ual must score seventy or lower for the score to be at least two standard
deviations below the mean. However, several phenomena have been iden-
tified that may be considered for purposes of adjusting or interpreting I.Q.
scores.
The Flynn effect is the theory that I.Q. tests rise by .3 points per year
after they are normed, and thus one must consider when an individual is
administered an I.Q. test compared to when that test was last normed.
The SEM is an interpretative tool that reflects the idea that I.Q. scores
have a ninety-five percent confidence interval, and thus an individual’s
true score is somewhere within a five-point range of the reported score.
32 WALKER v. KELLY
I find that the district court erred in determining that the
1984 WISC-R full scale score of seventy-six could not satisfy
the intellectual functioning prong of the Virginia mental retar-
dation definition. For its part, the district court did not express
any opinion regarding whether the Flynn effect could be taken
to account,6 but rather found that this Court’s decisions in
Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006), and Hedrick
v. True, 443 F.3d 342 (4th Cir. 2006), foreclosed consider-
ation of the SEM.
The district court rejected Walker’s contention that his
1984 WISC-R full scale score of seventy-six could support
his claim of mental retardation because it interpreted this
Court’s decisions in Walton and Hedrick as standing for the
proposition that courts should "refus[e] to use the standard
error of measurement to lower IQ scores in Atkins cases due
to the inherent speculation of using the standard error of mea-
surement to lower an IQ score when it could just as likely be
used to raise an IQ score." J.A. 2370. However, the district
court misconstrued the import of these two decisions. In Wal-
ton, this Court found that the petitioner’s claim regarding the
SEM should be dismissed because "Walton does not explain
what this ‘standard error of measurement’ is or why it should
reduce his particular score to 70 or less. Walton can only
speculate that this standard measure error . . . actually lowered
his given score of 77 enough to meet Virginia’s mental retar-
dation standard." 440 F.3d at 178. Similarly, in Hedrick, the
Court declined to consider the SEM because the petitioner did
not provide expert evidence regarding the application of the
SEM, and thus "only speculation on [the Court’s] part would
lower Hedrick’s IQ score of 76." 443 F.3d at 368. Fairly read,
Walton and Hedrick stand for the proposition that bare allega-
tions, without more, are insufficient to state a claim for Atkins
6
The failure to consider the Flynn effect itself was error because this
Court in Walker v. True II, 399 F.3d at 323, held that "on remand the dis-
trict court should consider the persuasiveness of Walker’s Flynn Effect
evidence."
WALKER v. KELLY 33
relief, and the decisions do not imply that the SEM can never
be considered on account of "inherent speculation."
Nor can the district court’s ruling be sustained on the
ground that Walker provided no evidence on the accepted
professional practice regarding the SEM. The definitions of
mental retardation promulgated by the AAMR and the Ameri-
can Psychiatric Association state that the SEM should be con-
sidered in diagnosing mental retardation. J.A. 879, 888-89.
Moreover, Walker’s experts testified that the SEM creates a
band of approximately five points around a particular I.Q.
score, which means that an individual who scores within five
points of two standard deviations below the mean should be
diagnosed as having mental retardation.
Had the district court taken into account the Flynn effect
and SEM, Walker’s score of seventy-six on the 1984 WISC-
R may have been two standard deviations below the mean.
Given this, the district court erred in not considering this
score for purposes of subaverage intellectual functioning or
for onset before the age of eighteen. In particular, even if a
score such as this is not conclusive proof of subaverage intel-
lectual functioning, it is certainly consistent with onset before
the age of eighteen, and thus it should have been considered
in that regard. Thus, the district court erred in interpreting our
precedent as foreclosing consideration of the SEM in assess-
ing scores on I.Q. tests and in not considering the Flynn
effect. Like the due process violation, these errors thwarted
Walker’s efforts to develop the basis for his mental retarda-
tion claim, in contradiction of our previous decision in Walker
v. True II, 399 F.3d at 327.
II.
The Supreme Court has unambiguously held that a person
with mental retardation can not be executed. I fear that the
substance of this constitutional prohibition is put in jeopardy
by affirming a district court’s dismissal of an Atkins claim
34 WALKER v. KELLY
based on scant evidence exclusively relevant to the adaptive
component of a state’s mental retardation definition where, as
here, the empirical tests forming the basis of the intellectual
functioning component were excluded. Accordingly, I would
find that in this case, the district court erred by finding that
Walker had not shown significant limitations in adaptive
behavior without meaningfully considering Walker’s expert
testimony in that regard, applying the October list without
giving Walker the opportunity to develop and present evi-
dence in accordance with the new list, and refusing to con-
sider Walker’s evidence of generally accepted professional
practices in interpreting the results of intellectual functioning
tests, in particular his evidence regarding the SEM. On this
basis, I must dissent.